{"_id":"passage_118","text":"INTRODUCTION\n\nThe case concerns various aspects of the applicant’s arrest and pre-trial detention.\n\nTHE FACTS\n\n1.  The applicant was born in 1984. The applicant, who had been granted legal aid, was represented by Ms O.O. Richko, a lawyer practising in Kharkiv.\n\n2.  The Government were represented by their Agent, Mr I. Lishchyna, of the Ministry of Justice.\n\n3.  On 8 November 2015 the applicant died. On 2 August 2018 his mother, Ms Svitlana Oleksiyivna Romanova (hereinafter “the applicant’s mother”), expressed the wish to pursue the proceedings before the Court.\n\n4.  The facts of the case, as submitted by the parties, may be summarised as follows.\n\n5.  On 16 June 2011 criminal proceedings for grievous bodily harm were instituted against the applicant. On 25 June 2011 the investigators reclassified the charges against the applicant as attempted murder.\n\n6.  On 21 July 2011 the applicant appeared before the investigator in connection with the criminal investigation into attempted murder and gave an undertaking not to abscond.\n\n7.  On 25 July 2011 the investigator arrested the applicant and placed him in police custody on suspicion of attempted murder. The investigator drew up a report on his arrest, making a general reference to Article 106 § 2 and Article 115 of the 1960 Code of Criminal Procedure (“the CCP”).\n\n7.  On 25 July 2011 the investigator arrested the applicant and placed him in police custody on suspicion of attempted murder. The investigator drew up a report on his arrest, making a general reference to Article 106 § 2 and Article 115 of the 1960 Code of Criminal Procedure (“the CCP”).\n\n8.  According to the official report, the applicant had been arrested on the following grounds:\n\n“1.  [He] was caught at the scene of the crime immediately after an offence had been committed, and\n\n2.  eyewitnesses, including the victim, directly identified [him] as the one who had committed the offence.”\n\nIt stated that his arrest was justified by the necessity of preventing him from evading justice or obstructing the establishment of the truth, and to ensure that any eventual court judgment could be executed.\n\nIt stated that his arrest was justified by the necessity of preventing him from evading justice or obstructing the establishment of the truth, and to ensure that any eventual court judgment could be executed.\n\n9.  On 26 July 2011 a forensic psychiatric examination of the applicant was carried out. The experts provided the following conclusions:\n\n“1.  Mr Romanov is currently showing signs of chronic mental illness in the form of paranoid schizophrenia. The present psychiatric condition of [Mr Romanov] is such that he is unaware of and cannot control his actions.\n\n2.  At the time of the offence with which he has been charged, Mr Romanov was affected by the above-mentioned mental illness and could not have been aware of or controlled his actions.\n\n3.  In view of his mental health Mr Romanov requires involuntary medical treatment by way of admission to a psychiatric hospital under close supervision.”\n\n3.  In view of his mental health Mr Romanov requires involuntary medical treatment by way of admission to a psychiatric hospital under close supervision.”\n\n10.  On 28 July 2011 the Kyivskyy District Court of Kharkiv (“the District Court”) extended the applicant’s detention in police custody to ten days with a view to obtaining an assessment of his personality and the likelihood of his absconding the investigation. No further reasons were provided by the District Court.\n\n10.  On 28 July 2011 the Kyivskyy District Court of Kharkiv (“the District Court”) extended the applicant’s detention in police custody to ten days with a view to obtaining an assessment of his personality and the likelihood of his absconding the investigation. No further reasons were provided by the District Court.\n\n11.  On 4 August 2011 the District Court ordered the applicant’s continued detention without specifying any time-limits. The District Court referred in its decision to the conclusions of the psychiatric examination of 26 July 2011 and stated that the applicant had been accused of a serious offence and might otherwise escape and hinder the investigation or continue with his criminal activity. No further reasons were provided by the District Court, which further ruled that the applicant was to be detained in the Kharkiv pre-trial detention centre (“the SIZO”). On 11 August 2011 that decision was upheld on appeal.\n\n11.  On 4 August 2011 the District Court ordered the applicant’s continued detention without specifying any time-limits. The District Court referred in its decision to the conclusions of the psychiatric examination of 26 July 2011 and stated that the applicant had been accused of a serious offence and might otherwise escape and hinder the investigation or continue with his criminal activity. No further reasons were provided by the District Court, which further ruled that the applicant was to be detained in the Kharkiv pre-trial detention centre (“the SIZO”). On 11 August 2011 that decision was upheld on appeal.\n\n12.  On 12 September 2011 the investigator requested compulsory psychiatric treatment for the applicant. On 19 September 2011 the investigator’s request and the case file were transferred to the District Court.\n\n12.  On 12 September 2011 the investigator requested compulsory psychiatric treatment for the applicant. On 19 September 2011 the investigator’s request and the case file were transferred to the District Court.\n\n13.  On 2 December 2011 the District Court committed the applicant to a special psychiatric facility for compulsory psychiatric treatment under close supervision. In substantiating its decision the District Court referred to the conclusions of the forensic psychiatric examination of 26 July 2011. The District Court also specified that the applicant was to be held in the SIZO pending his transfer to a special psychiatric facility.\n\n14.  The applicant and his defence lawyer appealed against that decision on 9 and 8 December 2011 respectively.\n\n15.  On 15 December 2011 the Court of Appeal dismissed their appeals without examining them, on the ground that the applicant and his defence lawyer had both missed the time-limit for lodging their appeals without having requested an extension.\n\n15.  On 15 December 2011 the Court of Appeal dismissed their appeals without examining them, on the ground that the applicant and his defence lawyer had both missed the time-limit for lodging their appeals without having requested an extension.\n\n16.  On 7 February 2012 the applicant was placed in the psychiatric hospital under close supervision pursuant to the District Court’s decision of 2 December 2011.\n\n17.  On 23 November 2013 the applicant was discharged from the psychiatric hospital. He died on 8 November 2015.\n\nRELEVANT LEGAL FRAMEWORK AND PRACTICE\n\nRELEVANT LEGAL FRAMEWORK AND PRACTICE\n\n18.  The provisions of the CCP concerning the conditions of arrest of a suspect by the body of inquiry and further pre-trial detention can be found in Osypenko v. Ukraine (no. 4634/04, § 33, 9 November 2010).\n\nTHE LAW\n\nLOCUS STANDI OF THE APPLICANT’S mother\n\n19.  The Court notes at the outset that the applicant died while the case was pending before it. The applicant’s mother informed the Court that she wished to pursue his application. In a number of cases relating to Article 5 of the Convention in which an applicant has died in the course of the proceedings, the Court has taken into account the statements of the applicant’s heirs or of close family members expressing the wish to pursue the proceedings (see, for example, Dimitar Krastev v. Bulgaria, no. 26524/04, § 42, 12 February 2013, with further references). It sees no reason to reach a different conclusion in the present case and therefore accepts that the applicant’s mother can pursue the application initially brought by the applicant. For convenience, the Court will continue to refer to Mr Ivan Volodymyrovych Romanov as “the applicant” in the present judgment.\n\nALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION\n\n20.  The applicant complained that his arrest and further pre-trial detention had been unlawful and unjustified and that he had had no enforceable right to compensation for his allegedly arbitrary detention. He relied on Article 5 §§ 1, 3 and 5 of the Convention, the relevant parts of which read as follows:\n\n“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:\n\n...\n\n(c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;\n\n...\n\n(e)  the lawful detention of ... persons of unsound mind ...\n\n3.  Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial ...\n\n5.  Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”\n\nAdmissibility\n\n21.  The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.\n\nMerits\n\nArticle 5 § 1 of the Convention\n\nThe applicant’s arrest on 25 July 2011\n\n22.  The applicant complained that his arrest on 25 July 2011 without a judicial warrant had been in breach of the domestic law and the Convention.\n\n23.  The Government contended that the applicant’s arrest had been in compliance with both the domestic law and the Convention.\n\n24.  The Court notes that the investigator justified the applicant’s arrest by making a general reference to Article 106 of the CCP and stating that the applicant might try to abscond from justice and obstruct the investigation (see paragraph 8 above). No further specific reasons for the applicant’s arrest on the basis of the above-mentioned provision of the CCP were indicated in the detention report.\n\n25.  The Court also notes that, under Ukrainian legislation, deprivation of liberty without a reasoned court decision was possible only in a limited number of situations defined with sufficient precision (see Osypenko v. Ukraine, cited above, § 33). However, the Court observes that there was no explanation why the applicant’s case fell within the scope of those exceptional situations affording investigators the power of arrest without a court decision first being delivered (see, for example, Makarenko v. Ukraine, no. 622/11, §§ 73-74, 30 January 2018).\n\n26.  It is also of relevance that, except of the general statements in the report on his arrest (see paragraph 8 above), the parties’ submissions do not contain any further indications of attempts by the applicant to abscond from justice, obstruct the investigation and influence witnesses in the proceedings, or of the possibility that the authorities were faced with an urgent situation such as catching the applicant in flagrante delicto. Overall, there is nothing to suggest that the general requirement that a preliminary arrest warrant be issued by a court could not or should not have been adhered to.\n\n27.  The Court notes that it has examined similar situations in a number of cases against Ukraine in which it found that depriving applicants of their liberty without a judicial warrant had contravened the domestic legislation and had thus been incompatible with the requirements of Article 5 § 1 of the Convention (see, mutatis mutandis, Strogan v. Ukraine, no. 30198/11, § 88, 6 October 2016, with further references therein, and, as a most recent authority, Korniychuk v. Ukraine, no. 10042/11, §§ 48-52, 30 January 2018).\n\n27.  The Court notes that it has examined similar situations in a number of cases against Ukraine in which it found that depriving applicants of their liberty without a judicial warrant had contravened the domestic legislation and had thus been incompatible with the requirements of Article 5 § 1 of the Convention (see, mutatis mutandis, Strogan v. Ukraine, no. 30198/11, § 88, 6 October 2016, with further references therein, and, as a most recent authority, Korniychuk v. Ukraine, no. 10042/11, §§ 48-52, 30 January 2018).\n\n28.  The Court does not see any reason to depart from its earlier findings in the present case. There has accordingly been a violation of Article 5 § 1 of the Convention regarding the applicant’s arrest on 25 July 2011.\n\nThe applicant’s detention in police custody between 28 July and 4 August 2011\n\n29.  The applicant submitted that the District Court’s decision of 28 July 2011 extending his detention in police custody had not been lawful or in compliance with Article 5 § 1.\n\n30.  The Government contested that complaint.\n\n31.  The Court notes that, once the applicant was brought before a court on 28 July 2011, he was not remanded in custody, but his detention was extended to ten days with reference to Article 165-2  of the CCP, which provides that a court may extend a person’s detention for up to ten days (fifteen days at the request of the suspect or accused) in order to examine all the information necessary to take a balanced decision on the person’s detention. The Court has previously held that an extension of detention under Article 165 § 2 may be justified in certain circumstances where the court requires time to establish the person’s identity and to collect other information crucial for taking a decision on his or her pre-trial detention. At the same time, the Court has noted that the reasons not to release the person should be compelling (see Barilo v. Ukraine, no. 9607/06, § 93, 16 May 2013). In the present case, the reasons for extending the applicant’s detention were the need to obtain an assessment of his personality and of the likelihood of his absconding (see paragraph 10 above). The Court notes that the reasons given do not substantiate the existence of any risks or circumstances justifying the need to keep the applicant in detention. In fact, the District Court’s decision did not contain any assessment of his individual circumstances or the risks justifying his detention having regard to the specificity of his condition (see paragraph 9 above).\n\n32.  The Court thus considers that the applicant was detained between 28 July and 4 August 2011 in breach of Article 5 § 1 of the Convention.\n\nThe applicant’s detention from 25 September to 2 December 2011\n\n33.  The applicant submitted that his detention upon expiry of the statutory time-limit (two months from the time of his arrest on 25 July 2011) had been arbitrary as it had not been authorised by a court order.\n\n34.  The Government submitted that there had been no violation of the applicant’s rights.\n\n35.  The Court observes that the District Court’s decision of 4 August 2011 ordering the applicant’s pre-trial detention did not indicate a time-limit for such detention. Under the provisions of the CCP (as in force at the material time), the maximum term of a suspect’s initial pre-trial detention was two months from the moment of arrest – that is to say (in the applicant’s case) until 25 September 2011.\n\n36.  The Court furthermore notes that on 19 September 2011 – that is, before the expiry of the statutory time-limit – the investigator’s request for the applicant’s compulsory psychiatric treatment and the case file were transferred to the District Court for consideration. However, no further decision on the applicant’s detention was taken by the District Court until 2 December 2011 (see paragraphs 12 and 13 above). Therefore, the applicant’s detention from 25 September to 2 December 2011 seemed to be lacking a lawful basis.\n\n37.  It appears that the reason for the applicant’s being held in custody during the above-mentioned period of time was based on the fact that the investigator’s request for the applicant’s compulsory psychiatric treatment and the case file had been submitted to the District Court for consideration. In that connection, the Court notes that it has previously examined similar situations in other cases against Ukraine and found them to be incompatible with the principles of legal certainty and protection from arbitrariness under Article 5 § 1 of the Convention (see Kharchenko v. Ukraine, no. 40107/02, § 71, 10 February 2011).\n\n38.  The Court does not see any reason to depart from its earlier findings in the present case. It thus considers that from 25 September to 2 December 2011 the applicant was detained in breach of Article 5 § 1 of the Convention.\n\nThe applicant’s detention from 2 December 2011 to 7 February 2012 pending his transfer to a special psychiatric facility\n\n39.  The applicant stressed that his detention pending his transfer to a special psychiatric facility pursuant to the District Court’s decision of 2 December 2011 had not been justified.\n\n40.  The Government contested and submitted that the period of the applicant’s detention had been justified and reasonable.\n\n41.  The Court reiterates that Article 5 § 1 of the Convention contains an exhaustive list of permissible grounds for deprivation of liberty. However, the applicability of one ground does not necessarily preclude that of another; a detention may, depending on the circumstances, be justified under more than one sub-paragraph (see Eriksen v. Norway, 27 May 1997, § 76, Reports of Judgments and Decisions 1997III).\n\n42.  The Court firstly observes that in the instant case the applicant’s deprivation of liberty, ordered by decision of 2 December 2011, falls within the scope of Article 5 § 1 (e) (see Aerts v. Belgium, 30 July 1998, § 45, Reports 1998V).\n\n43.  It must further be established whether the continuation of the applicant’s detention in the SIZO from 2 December 2011 to 7 February 2012 was “in accordance with a procedure prescribed by law” and “lawful” within the meaning of Article 5 § 1. The Convention here refers essentially to national law and states the obligation to conform to the substantive and procedural rules thereof. The parties being in agreement that the applicant’s detention during the above-mentioned period of time was in conformity with the provisions of the procedural legislation, the Court sees no reason to hold otherwise.\n\n44.  However, for the purposes of Article 5 of the Convention, the lawfulness under domestic law of the applicant’s detention is not in itself decisive. It must also be established that his detention during the relevant period was in conformity with the purpose of Article 5 § 1, which is to prevent persons from being deprived of their liberty in an arbitrary fashion (see Witold Litwa v. Poland, no. 26629/95, §§ 7273, ECHR 2000III).\n\n45.  The Court notes that the length of detention pending transfer to a psychiatric hospital is not specified by any statutory or other provision. Nevertheless, it must determine whether the continuation of the applicant’s detention in the SIZO for more than two months following the relevant decision of the District Court (see paragraphs 13 and 16 above) can be regarded as lawful.\n\n46.  It further notes that the Government did not provide any explanation regarding whether there had existed any special circumstances justifying the period of more than two months in the applicant’s transfer from the SIZO to the psychiatric hospital. Even though that delay may not at first glance seem particularly excessive, the Court is deprived of the possibility to assess its reasonableness (compare Brand v. the Netherlands, no. 49902/99, §§ 58-67, 11 May 2004, and Pankiewicz v. Poland, no. 34151/04, §§ 38-46, 12 February 2008).\n\n47.  In the absence of any reasons on the part of the Government explaining the applicant’s continued detention in the SIZO pending his transfer to a special psychiatric facility, the Court considers that it was not justified and thus compatible with the requirements of Article 5 § 1 of the Convention. There has accordingly been a violation of the above provision as regards this aspect too.\n\nArticle 5 § 3 of the Convention\n\n48.  The applicant submitted that the decision of the District Court of 4 August 2011 (see paragraph 11 above) altering the preventive measure of his pre-trial detention had not contained any reasons.\n\n49.  The Government submitted that there had been reasonable grounds to place the applicant in detention. They referred, in particular, to the conclusions of the psychiatric examination of 26 July 2011 (see paragraph 9 above), the seriousness of the offence allegedly committed by the applicant, and the risk of his absconding and hindering the investigation or continuing with his criminal activity.\n\n50.  The applicable general principles on deprivation of liberty are set out in Buzadji v. the Republic of Moldova ([GC], no. 23755/07, §§ 84-91 and 102, 5 July 2016).\n\n51.  The Court observes that the reasons given by the District Court for the applicant’s pre-trial detention in its decision of 4 August 2011 were the seriousness of the offence he was accused of, and the possibility of his escaping and hindering the investigation. However, no further specific details were given. It furthermore observes that the District Court, when taking its decision, referred, without making any assessment, to the forensic psychiatric examination report of 26 July 2011 concluding that the applicant required involuntary medical treatment by way of admission to a psychiatric hospital with close supervision.\n\n52.  In this connection, it remains unclear to the Court what investigative activities could have been carried out in relation to the applicant, who, because of his psychiatric condition at the material time, was unaware of and could not control his actions (see paragraph 9 above).\n\n53.  In the light of the foregoing, the Court finds that the decision of the District Court of 4 August 2011 ordering the applicant’s pre-trial detention does not seem to have contained any assessment of the individual circumstances and of the risks justifying the alteration of the preventive measure imposed on him. The reasons given by the court may have been relevant, but they were not sufficient.\n\n54.  There has accordingly been a violation of Article 5 § 3 of the Convention.\n\nArticle 5 § 5 of the Convention\n\n55.  The Court observes that the applicant’s complaint under Article 5 § 5 is similar to the complaints examined by the Court in a number of other cases against Ukraine (see, as the most recent example, Sinkova v. Ukraine, no. 39496/11, §§ 79-84, 27 February 2018). The Court concludes that the applicant did not have an enforceable right to compensation for his unjustified detention, as required by Article 5 § 5. There has therefore been a violation of that provision.\n\nAPPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n56.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\n57.  The applicant’s mother claimed 20,000 euros (EUR) in respect of non-pecuniary damage. The Government argued that that claim was unsubstantiated.\n\n58.  Making its assessment on an equitable basis, the Court awards the applicant’s mother EUR 9,800 in respect of non-pecuniary damage, plus any tax that may be chargeable.\n\n59.  The applicant’s mother did not request any sum in respect of costs and expenses. Therefore, the Court is not called upon to make an award under this head.\n\n60.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\nDeclares that the applicant’s mother, Ms Svitlana Oleksiyivna Romanova, has standing to continue the present proceedings in the applicant’s stead;\n\nDeclares the application admissible;\n\nHolds that there have been violations of Article 5 § 1 of the Convention regarding the applicant’s arrest on 25 July 2011, his detention in police custody from 28 July to 4 August 2011, his detention from 25 September to 2 December 2011 without being covered by a court order, and his detention from 2 December 2011 to 7 February 2012 pending his transfer to a special psychiatric facility;\n\nHolds that there has been a violation of Article 5 § 3 of the Convention regarding the lack of relevant and sufficient reasons for the applicant’s detention following the decision of the Kyivskyi District Court of Kharkiv of 4 August 2011;\n\nHolds that there has been a violation of Article 5 § 5 of the Convention concerning the absence of an enforceable right to compensation for the applicant’s unlawful and unjustified detention;\n\nHolds\n\nthat the respondent State is to pay the applicant’s mother, Ms Svitlana Oleksiyivna Romanova, within three months, EUR 9,800 (nine thousand eight hundred euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable, in respect of non-pecuniary damage;\n\nthat from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\nDismisses the remainder of the claim for just satisfaction.\n\nDone in English, and notified in writing on 28 May 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_921","text":"PROCEDURE\n\n1.  The case originated in an application (no. 29178/95) against the United Kingdom of Great Britain and Northern Ireland lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Irish national, Mrs Geraldine Finucane (“the applicant”), on 5 July 1994.\n\n2.  The applicant was represented by Mr P. Madden, a lawyer practising in . The  Government (“the Government”) were represented by their Agent, Mr C. Whomersley, of the Foreign and Commonwealth Office.\n\n3.  The applicant alleged that there had been no proper, effective investigation into the death of her husband, Patrick Finucane.\n\n4.  The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).\n\n5.  The application was initially allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court).\n\n6.  On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Fourth Section (Rule 52 § 1). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.\n\n7.  By a decision of 2 July 2002, the Chamber declared the application admissible.\n\n8.  The applicant and the Government each filed observations on the merits (Rule 59 § 1). The Chamber decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine).\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n9.  The applicant was born in 1950 and lives in .\n\n10.  Around 7.25 p.m. on 12 February 1989 the applicant's husband, solicitor Patrick Finucane, was killed in front of her and their three children by two masked men who broke into their home. She herself was injured, probably by a ricochet bullet. Patrick Finucane was shot in the head, neck and chest. Six bullets had struck the head and there was evidence that one or more of these had been fired within a range of 15 inches when he was lying on the floor. The day after the murder, 13 February 1989, a man telephoned the press and stated that the illegal loyalist paramilitary group the Ulster Freedom Fighters (UFF) claimed responsibility for killing Patrick Finucane – the Provisional Irish Republican Army (Provisional IRA) officer – not the solicitor.\n\n11.  Patrick Finucane represented clients from both sides of the conflict in  and was involved in a number of high-profile cases arising from that conflict. The applicant believed that it was because of his work on these cases that prior to his murder he had received death threats, via his clients, from officers of the Royal Ulster Constabulary (RUC) and was targeted for murder. Patrick Finucane had been threatened occasionally since the late 1970s. After acting for Brian Gillen in a case concerning maltreatment in RUC custody, the threats apparently escalated, and clients reported that police officers often abused and threatened to kill him during interrogations at holding centres such as Castlereagh. On 5 January 1989, five weeks before his death, one of Patrick Finucane's clients reported that an RUC officer had said that the solicitor would meet his end. On 7 January 1989 another client claimed that he was told that Patrick Finucane was “getting took out” (murdered). His death came less than four weeks after Douglas Hogg MP, then Parliamentary Under-Secretary of State for the Home Department, had said in a committee stage debate on the Prevention of Terrorism (Temporary Provisions) Bill on 17 January 1989:\n\n“I have to state as a fact, but with great regret, that there are in  a number of solicitors who are unduly sympathetic to the cause of the IRA.”\n\nA.  The investigation into the killing\n\n12.  After the shooting, the applicant's house was cordoned off by the RUC and a forensic examination of the scene conducted by experts. Photographs were taken and maps prepared. A scene of crimes officer examined the car believed to have been used by those responsible for the shooting and which had been found abandoned.\n\n13.  On 13 February 1989 a consultant in pathology conducted a post-mortem examination.\n\n14.  A “major incident room” was set up at the  police station. Many suspected members of the UFF were detained and interviewed about the murder.\n\n15.  On 4 July 1989 the RUC found one of the weapons believed to have been used in the murder. On 5 April 1990 three members of the UFF were convicted of possessing this and another weapon and of membership of the UFF. The weapon had been stolen from the barracks of the Ulster Defence Regiment (UDR – a locally recruited regiment of the British army) in August 1987, and in 1988 a member of the UDR was convicted of this theft.\n\n16.  In or around September 1990 the police found firearms in the attic of William Stobie's flat. The latter was arrested. He was, according to the applicant, questioned about the Finucane murder from 13 to 20 September 1990. A journalist had allegedly interviewed William Stobie and had told the police about the interview but declined to make a statement. The applicant alleged that William Stobie denied to the police any direct involvement in the shooting but admitted that he was the quartermaster for the Ulster Defence Association (UDA), supplying weapons and recovering them after use. He is also reported as having told the police that he had been acting as an informer for Special Branch for the past three years. A decision was taken on 16 January 1991 not to prosecute William Stobie in connection with the Finucane case, apparently on the ground that there was insufficient evidence. On 23 January 1991 it was decided not to proceed with two arms charges against William Stobie. The prosecution adduced no evidence and he was acquitted.\n\nB.  The inquest proceedings\n\n17.  The inquest into Patrick Finucane's death opened on 6 September 1990 and ended the same day. Evidence was heard from RUC officers involved in investigating the death, as well as from the applicant, two neighbours and a taxi driver whose car had been hijacked and used by those responsible for the shooting. The applicant was represented  by counsel, who was able to question witnesses on her behalf. After giving evidence, the applicant wanted to make a statement concerning the threats made against her husband by the RUC but was refused permission to do so by the coroner on the ground that it was not relevant to the proceedings.\n\n18.  Forensic evidence showed that the victim had been hit at least eleven times by a 9 mm Browning automatic pistol and twice by a .38 Special revolver. Detective Superintendent (D/S) Simpson of the RUC, who was in charge of the murder investigation, gave evidence that the Browning pistol was one of thirteen weapons stolen from Palace army barracks in August 1987 by a member of the UDR who was subsequently jailed for theft. These weapons found their way into the hands of three members of the UFF who were convicted of possession of the weapons and of membership of the UFF. However, the police were satisfied that those individuals had not been in possession of the weapons at the time of Patrick Finucane's murder.\n\n19.  According to the evidence given by D/S Simpson at the inquest, the police had interviewed fourteen people in connection with the murder, but had found that, although their suspicions were not assuaged, and they remained reasonably certain that the main perpetrators of the murder were among the suspects, there was insufficient evidence to sustain a charge of murder. None of the fourteen persons had any connection with the security forces. D/S Simpson further stated that none of the suspects had any connection with the security services. He rejected the claim made by the UFF that Patrick Finucane was a member of the Provisional IRA.\n\n20.  The inquest heard evidence that the murderers had used a red Ford Sierra car with the registration no. VIA 2985, which had been hijacked by three men from a taxi driver, W.R., shortly before the murder. D/S Simpson stated that he did not think that the hijackers had carried out the murder and that the precision of the killing indicated that the murderers had killed before. He had heard that a death threat had been made in front of a prisoner who was a client of the deceased. He had also seen parts of a report by a group of international lawyers. This had been investigated by the Stevens inquiry team (see below), with whom he liaised closely. Although he did not know who had been interviewed, as the Stevens inquiry was separate from the murder investigation, he said that no evidence had been found substantiating the allegation. On further questioning, he said that he had only read the report by the international lawyers that lunchtime and was unaware of the existence of material linking the security forces to Patrick Finucane's death.\n\nC.  The Stevens inquiries\n\n21.  On 14 September 1989 the Chief Constable of the RUC appointed John Stevens, then Deputy Chief Constable of the Cambridgeshire Constabulary, to investigate allegations of collusion between members of the security forces and loyalist paramilitaries (the Stevens 1 inquiry).\n\n22.  While, according to the applicant, it was claimed by the RUC at the inquest that John Stevens had also investigated her husband's death, the Government state that the inquiry was prompted by events other than the shooting of Patrick Finucane.\n\n23.  On 5 April 1990 John Stevens submitted his report to the Chief Constable of the RUC. While the full report was not made public, the Secretary of State for Northern Ireland made a statement to the House of Commons on 17 May 1990 in which he declared, inter alia, that as a result of the inquiry ninety-four persons had been arrested, fifty-nine of whom had been reported or charged with criminal offences. He stated that while the passing of information to paramilitaries by the security forces had taken place, it was restricted to a small number of individuals and was neither widespread nor institutionalised. Any evidence or allegation of criminal conduct had been rigorously followed up. No charges had been laid against members of the RUC, but John Stevens had concluded that there had been misbehaviour by a few members of the UDR. He had made detailed recommendations aimed at improving the arrangements for the dissemination and control of sensitive information.\n\n24.  As a result of the Stevens inquiry, Brian Nelson, who had worked as an undercover agent providing information to British military intelligence and who had become the chief intelligence officer of the UDA, an illegal loyalist paramilitary group which directed the activities of the UFF, was arrested. At his trial, the British authorities claimed that he had got out of hand and had become personally involved in loyalist murder plots. Originally, he faced thirty-five charges, but thirteen were dropped and he was eventually convicted on five charges of conspiracy to murder, for which he was sentenced to ten years' imprisonment. During the Stevens inquiry, members of the team had interviewed him. According to the Government, he had denied any complicity in the murder.\n\n25.  In prison, Brian Nelson allegedly admitted that, in his capacity as a UDA intelligence officer, he had himself targeted Patrick Finucane and, in his capacity as a double agent, had told his British army handlers about the approach at the time. It was also alleged that he had passed a photograph of Patrick Finucane to the UDA before he was killed. Loyalist sources further alleged that Brian Nelson had himself pointed out Patrick Finucane's house to the killers. These allegations were transmitted in a BBC Panorama programme on 8 June 1992 and the transcript of the programme was sent to the Director of Public Prosecutions (DPP).\n\n26.  Following the Panorama programme, the DPP asked the Chief Constable of the RUC to conduct further inquiries into the issues raised in the programme. In April 1993 John Stevens, then Chief Constable of the Northumbria Police, was appointed to conduct a second inquiry (the Stevens 2 inquiry). According to the Government, he investigated the alleged involvement of Brian Nelson and members of the army in the death of Patrick Finucane (see, however, John Steven's press statement, paragraph 33 below). The applicant stated that no member of the inquiry team contacted her or her legal representative, or any former clients of Patrick Finucane, about the death threats made prior to the murder.\n\n27.  On 21 January 1995 John Stevens submitted his final report to the DPP, having submitted earlier reports on 25 April 1994 and 18 October 1994. On 17 February 1995 the DPP issued a direction of “no prosecution” to the Chief Constable of the RUC.\n\n28.  In answer to a parliamentary question published on 15 May 1995, Sir John Wheeler MP said that the DPP had concluded that there was insufficient evidence to warrant the prosecution of any person, despite Brian Nelson's alleged confession. He refused to place copies of Mr Stevens' three reports in the House of Commons library, claiming that police reports were confidential.\n\nD.  The civil proceedings\n\n29.  On 11 February 1992 the applicant issued a writ of summons against the Ministry of Defence and Brian Nelson, claiming damages on behalf of the estate of the deceased, herself and other dependants of the deceased. It was alleged that the deceased's murder had been committed by or at the instigation of or with the connivance, knowledge, encouragement and assistance of the first defendant and by the second defendant, who was at all material times a servant or agent of the first defendant. It was also alleged that the first defendant had been negligent in the gathering, recording, retention, safe-keeping and dissemination of material concerning the deceased, and in the warning, protection and safeguarding of the deceased.\n\n30.  The applicant's statement of claim was served on 8 December 1993 and the defence of the Ministry of Defence on 29 December 1993. In its amended defence of 11 October 1995, it was admitted that Brian Nelson had acted as agent for and on behalf of the Ministry of Defence but it was claimed that if he had had any information about the proposed attack on Patrick Finucane he had not communicated it to the ministry as he was required to do.\n\n31.  On 22 January 1998 the applicant served further and better particulars of her case and a request for further and better particulars of the Ministry of Defence's case. She served a list of documents on 8 April 1998. On 20 May 1999 a supplemental list of documents, certified by an affidavit sworn by the Permanent Under Secretary of the Ministry of Defence, was served on the applicant. The applicant requested copies of those documents, which were provided on 20 July 1999. The applicant then asked to inspect the originals but was informed on 21 October 1999 that the Ministry of Defence did not have them.\n\nE.  Recent developments\n\n1.  The Stevens 3 inquiry\n\n32.  On 12 February 1999 the Government stated that at a meeting between the applicant and Dr Mowlem, the Secretary of State for , a paper was handed over to Dr Mowlem which, it was claimed, contained new material relating to the murder of Patrick Finucane. This paper was passed on to John Stevens, now Deputy Commissioner of the Metropolitan Police, who had been appointed by the Chief Constable of the RUC to conduct an independent investigation into the murder of the applicant's husband (the Stevens 3 inquiry).\n\n33.  On 28 April 1999, at a press conference, John Stevens stated:\n\n“... in September 1989 ... I was appointed ... to conduct the so-called 'Stevens inquiry' into breaches of security by the security forces in .\n\nThis commenced after the theft of montages from Dunmurry Police Station.\n\nThis inquiry resulted in 43 convictions and over 800 years of imprisonment for those convicted.\n\nMy subsequent report contained over 100 recommendations for the handling of security documents and information.\n\nAll of those recommendations were accepted and have been implemented.\n\nThis 'Stevens 1' inquiry was followed by a 'Stevens 2' inquiry in April 1993 ...\n\nAt the request of the DPP I was asked to investigate further matters which solely related to the previous inquiry and prosecutions. [The then RUC Chief Constable] referred to our return as 'tying up some loose ends'.\n\nAt no time, either in Stevens 2 or in the original Stevens 1 inquiry did I investigate the murder of Patrick Finucane ... However, those inquiries through the so-called double agent, Brian Nelson, were linked into the murder of Patrick Finucane.\n\n[The] Chief Constable of the [RUC] has now asked me to conduct an independent investigation into the murder of Patrick Finucane. I am also investigating the associated matters raised by the British Irish Rights Watch document 'Deadly Intelligence' and the UN Commissioner's Report. ...”\n\n2.  The criminal prosecution\n\n34.  On or around 23 June 1999 charges were brought against William Stobie for the murder of Patrick Finucane and against Mark Barr, Paul Givens and William Hutchinson for offences of possession of documents containing information useful to terrorists.\n\n35.  It was reported by the Committee for the Administration of Justice that on being charged William Stobie made the following statement:\n\n“Not guilty of the charge that you have put to me tonight. At the time I was police informer for Special Branch. On the night of the death of Patrick Finucane I informed Special Branch on two occasions by telephone of a person who was to be shot. I did not know at the time of the person who was to be shot.”\n\n36.  William Stobie's solicitor told the court that his client was a paid police informer from 1987 to 1990 and that he had given information to the police on two occasions before the Finucane murder which was not acted upon. He also stated that, at his client's trial on 23 January 1991 on firearms charges, the prosecution had adduced no evidence and his client was acquitted. The bulk of the evidence against his client had, he alleged, been known to the authorities for almost ten years.\n\n37.  On 26 November 2001 it was reported in the press that William Stobie's trial had collapsed when the Lord Chief Justice returned a verdict of not guilty in the absence of evidence. The prosecution had informed the court that the key witness, a journalist, was not able to give evidence due to serious mental illness.\n\n38.  On 12 December 2001 William Stobie was shot dead by gunmen, shortly after receiving threats from loyalist paramilitaries.\n\n39.  Further arrests were reported as having been made by officers in the Stevens inquiry in March 2002, with persons being questioned in relation to the Finucane murder.\n\n3.  the proposed international investigation\n\n40.  On 24 October 2001 the government announced in Parliament that, amongst the measures proposed to the Irish government in the context of the Good Friday Agreement, was the proposal for the United Kingdom and Irish governments to appoint a judge of international standing from outside both jurisdictions to undertake an investigation into allegations of security force collusion in loyalist paramilitary killings, including that of Patrick Finucane. In the light of the investigation, the judge would decide whether to recommend a public inquiry into any of the killings.\n\n4.  the Stevens 3 inquiry report\n\n41.  On 17 April 2003 John Stevens submitted his report to the DPP. A nineteen-page overview with recommendations was made public. It included the following:\n\n“4.6.  I have uncovered enough evidence to lead me to believe that the murders of Patrick Finucane and Brian Adam Lambert could have been prevented. I also believe that the RUC investigation of Patrick Finucane's murder should have resulted in the early arrest and detection of his killers.\n\n4.7.  I concluded that there was collusion in both murders and the circumstances surrounding them. Collusion is evidenced in many ways. This ranges from the wilful failure to keep records, the absence of accountability, the withholding of intelligence and evidence, through to the extreme of agents being involved in murder ...”\n\nHe stated that his inquiries with regard to satisfying the test for prosecution in relation to possible offences arising out of these matters were continuing.\n\nII.  RELEVANT DOMESTIC LAW AND PRACTICE\n\nA.  Inquests\n\n1.  Statutory provisions and rules\n\n42.  The conduct of inquests in  is governed by the Coroners Act () 1959 and the Coroners (Practice and Procedure) Rules () 1963. These provide the framework for a procedure within which deaths by violence or in suspicious circumstances are notified to the coroner, who then has the power to hold an inquest, with or without a jury, for the purpose of ascertaining, with the assistance as appropriate of evidence from witnesses and reports of, inter alia, post-mortem and forensic examinations, who the deceased was and how, when and where he died.\n\n43.  Under the Coroners Act, every medical practitioner, registrar of deaths or funeral undertaker who has reason to believe that a person died directly or indirectly by violence must inform the coroner (section 7). Every medical practitioner who performs a post-mortem examination has to notify the coroner of the result in writing (section 29). Whenever a dead body is found, or an unexplained death or death in suspicious circumstances occurs, the police of the district are required to give notice to the coroner (section 8).\n\n44.  Rules 12 and 13 of the Coroners Rules give power to the coroner to adjourn an inquest where a person may be or has been charged with murder or other specified criminal offences in relation to the deceased.\n\n45.  Where the coroner decides to hold an inquest with a jury, persons are called from the Jury List, compiled by random computer selection from the electoral register for the district on the same basis as in criminal trials.\n\n46.  The matters in issue at an inquest are governed by Rules 15 and 16 of the Coroners Rules:\n\n“15.  The proceedings and evidence at an inquest shall be directed solely to ascertaining the following matters, namely –\n\n(a)  who the deceased was;\n\n(b)  how, when and where the deceased came by his death;\n\n(c)  the particulars for the time being required by the Births and Deaths Registration (Northern Ireland) Order 1976 to be registered concerning his death.\n\n16.  Neither the coroner nor the jury shall express any opinion on questions of criminal or civil liability or on any matters other than those referred to in the last foregoing Rule.”\n\n47.  The verdict forms used in Northern Ireland accord with this recommendation, recording the name and other particulars of the deceased, a statement of the cause of death (for example, bullet wounds) and findings as to when and where the deceased met his death. In England and Wales, the verdict form appended to the English Coroners Rules contains a section marked “conclusions of the jury/coroner as to the death”, in which conclusions such as “lawfully killed” or “killed unlawfully” are inserted. These findings involve expressing an opinion on criminal liability in that they involve a finding as to whether the death resulted from a criminal act, but no finding is made that any identified person is criminally liable. The jury in  and  may also append recommendations to their verdict.\n\n48.  However, in , the coroner is under a duty (section 6(2) of the Prosecution of Offences () Order 1972) to furnish a written report to the DPP where the circumstances of any death appear to disclose that a criminal offence may have been committed.\n\n49.  Until recently, legal aid was not available for inquests as they did not involve the determination of civil liabilities or criminal charges. Legislation which would have provided for legal aid at the hearing of inquests (the Legal Aid, Advice and Assistance () Order 1981, Schedule 1, paragraph 5) has not been brought into force. However, on 25 July 2000, the Lord Chancellor announced the establishment of an Extra-Statutory Ex Gratia Scheme to make public funding available for representation for proceedings before coroners in exceptional inquests in . In March 2001 he published for consultation the criteria to be used in deciding whether applications for representation at inquests should receive public funding. These included, inter alia, consideration of financial eligibility, whether an effective investigation by the State was needed and whether the inquest was the only way to conduct it, whether the applicant required representation to be able to participate effectively in the inquest and whether the applicant had a sufficiently close relationship to the deceased.\n\n50.  The coroner enjoys the power to summon such witnesses as he thinks should attend the inquest (section 17 of the Coroners Act) and he may allow any interested person to examine a witness (Rule 7 of the Coroners Rules). In  and , as in , a witness is entitled to rely on the privilege against self-incrimination. In , this privilege is reinforced by Rule 9(2) of the Coroners Rules, which provides that a person suspected of causing the death may not be compelled to give evidence at the inquest.\n\n51.  In relation to both documentary evidence and the oral evidence of witnesses, inquests, like criminal trials, are subject to the law of public interest immunity, which recognises and gives effect to the public interest, such as national security, in the non-disclosure of certain information or certain documents or classes of document. A claim of public interest immunity must be supported by a certificate.\n\n2.  The scope of inquests\n\n52.  Rules 15 and 16 of the Coroners Rules (see paragraph 46 above) follow from the recommendation of the Brodrick Committee on Death Certification and Coroners:\n\n“... [T]he function of an inquest should be simply to seek out and record as many of the facts concerning the death as the public interest requires, without deducing from those facts any determination of blame ... In many cases, perhaps the majority, the facts themselves will demonstrate quite clearly whether anyone bears any responsibility for the death; there is a difference between a form of proceeding which affords to others the opportunity to judge an issue and one which appears to judge the issue itself.”\n\n53.  Domestic courts have made, inter alia, the following comments:\n\n“... It is noteworthy that the task is not to ascertain how the deceased died, which might raise general and far-reaching issues, but 'how ... the deceased came by his death', a far more limited question directed to the means by which the deceased came by his death.\n\n... [Previous judgments] make it clear that when the Brodrick Committee stated that one of the purposes of an inquest is '[t]o allay rumours or suspicions' this purpose should be confined to allaying rumours and suspicions of how the deceased came by his death and not to allaying rumours or suspicions about the broad circumstances in which the deceased came by his death.” (Sir Thomas Bingham, MR, Court of Appeal, R. v. the Coroner for North Humberside and Scunthorpe, ex parte Roy Jamieson, April 1994, unreported)\n\n“The cases establish that although the word 'how' is to be widely interpreted, it means 'by what means' rather than in what broad circumstances ... In short, the inquiry must focus on matters directly causative of death and must, indeed, be confined to those matters alone ...” (Simon Brown LJ, Court of Appeal, R. v. Coroner for Western District of East Sussex, ex parte Homberg and Others, (1994) 158 Justice of the Peace Reports 357)\n\n“... [I]t should not be forgotten that an inquest is a fact finding exercise and not a method of apportioning guilt. The procedure and rules of evidence which are suitable for one are unsuitable for the other. In an inquest it should never be forgotten that there are no parties, no indictment, there is no prosecution, there is no defence, there is no trial, simply an attempt to establish the facts. It is an inquisitorial process, a process of investigation quite unlike a trial ...\n\nIt is well recognised that a purpose of an inquest is that rumour may be allayed. But that does not mean it is the duty of the Coroner to investigate at an inquest every rumour or allegation that may be brought to his attention. It is ... his duty to discharge his statutory role – the scope of his enquiry must not be allowed to drift into the uncharted seas of rumour and allegation. He will proceed safely and properly if he investigates the facts which it appears are relevant to the statutory issues before him.” (Lord Lane, Court of Appeal, R. v. South London Coroner, ex parte Thompson (1982) 126 Solicitors' Journal 625)\n\nB.  The Director of Public Prosecutions\n\n54.  The Director of Public Prosecutions (DPP), appointed pursuant to the Prosecution of Offences (Northern Ireland) Order 1972 (“the 1972 Order”), is an independent officer with at least ten years' experience of the practice of law in Northern Ireland who is appointed by the Attorney General and who holds office until retirement, subject only to dismissal for misconduct. His duties under Article 5 of the 1972 Order are, inter alia:\n\n“(a)  to consider, or cause to be considered, with a view to his initiating or continuing in Northern Ireland any criminal proceedings or the bringing of any appeal or other proceedings in or in connection with any criminal cause or matter in Northern Ireland, any facts or information brought to his notice, whether by the Chief Constable acting in pursuance of Article 6(3) of this Order or by the Attorney General or by any other authority or person;\n\n(b)  to examine or cause to be examined all documents that are required under Article 6 of this Order to be transmitted or furnished to him and where it appears to him to be necessary or appropriate to do so to cause any matter arising thereon to be further investigated;\n\n(c)  where he thinks proper to initiate, undertake and carry on, on behalf of the Crown, proceedings for indictable offences and for such summary offences or classes of summary offences as he considers should be dealt with by him.”\n\n55.  Article 6 of the 1972 Order requires, inter alia, coroners and the Chief Constable of the RUC to provide information to the DPP as follows:\n\n“(2)  Where the circumstances of any death investigated or being investigated by a coroner appear to him to disclose that a criminal offence may have been committed he shall as soon as practicable furnish to the [DPP] a written report of those circumstances.\n\n(3)  It shall be the duty of the Chief Constable, from time to time, to furnish to the [DPP] facts and information with respect to –\n\n(a)  indictable offences [such as murder] alleged to have been committed against the law of ; ...\n\nand at the request of the [DPP], to ascertain and furnish to the [DPP] information regarding any matter which may appear to the [DPP] to require investigation on the ground that it may involve an offence against the law of Northern Ireland or information which may appear to the [DPP] to be necessary for the discharge of his functions under this Order.”\n\nIII.  RELEVANT INTERNATIONAL LAW\n\n56.  Paragraph 9 of the United Nations Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions (“United Nations Principles on Extra-Legal Executions”), adopted on 24 May 1989 by the Economic and Social Council in Resolution 1989/65, provides, inter alia:\n\n“There shall be a thorough, prompt and impartial investigation of all suspected cases of extra-legal, arbitrary and summary executions, including cases where complaints by relatives or other reliable reports suggest unnatural death in the above circumstances. ...”\n\n57.  Paragraphs 10 to 17 of the United Nations Principles on Extra-Legal Executions contain a series of detailed requirements that should be observed by investigative procedures into such deaths.\n\nParagraph 10 states, inter alia:\n\n“The investigative authority shall have the power to obtain all the information necessary to the inquiry. Those persons conducting the inquiry ... shall also have the authority to oblige officials allegedly involved in any such executions to appear and testify. ...”\n\nParagraph 11 specifies:\n\n“In cases in which the established investigative procedures are inadequate because of a lack of expertise or impartiality, because of the importance of the matter or because of the apparent existence of a pattern of abuse, and in cases where there are complaints from the family of the victim about these inadequacies or other substantial reasons, Governments shall pursue investigations through an independent commission of inquiry or similar procedure. Members of such a commission shall be chosen for their recognised impartiality, competence and independence as individuals. In particular, they shall be independent of any institution, agency or person that may be the subject of the inquiry. The commission shall have the authority to obtain all information necessary to the inquiry and shall conduct the inquiry as provided in these Principles.”\n\nParagraph 16 provides, inter alia:\n\n“Families of the deceased and their legal representatives shall be informed of, and have access to, any hearing as well as all information relevant to the investigation and shall be entitled to present other evidence. ...”\n\nParagraph 17 provides, inter alia:\n\n“A written report shall be made within a reasonable time on the methods and findings of such investigations. The report shall be made public immediately and shall include the scope of the inquiry, procedures, methods used to evaluate evidence as well as conclusions and recommendations based on findings of fact and on applicable law. ...”\n\n58.  The “Minnesota Protocol” (Model Protocol for a Legal Investigation of Extra-Legal, Arbitrary and Summary Executions, contained in the United Nations Manual on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions) provides, inter alia, in Section B on the “Purposes of an inquiry”:\n\n“As set out in paragraph 9 of the Principles, the broad purpose of an inquiry is to discover the truth about the events leading to the suspicious death of a victim. To fulfil that purpose, those conducting the inquiry shall, at a minimum, seek:\n\n(a)  to identify the victim;\n\n(b)  to recover and preserve evidentiary material related to the death to aid in any potential prosecution of those responsible;\n\n(c)  to identify possible witnesses and obtain statements from them concerning the death;\n\n(d)  to determine the cause, manner, location and time of death, as well as any pattern or practice that may have brought about the death;\n\n(e)  to distinguish between natural death, accidental death, suicide and homicide;\n\n(f)  to identify and apprehend the person(s) involved in the death;\n\n(g)  to bring the suspected perpetrator(s) before a competent court established by law.”\n\n59.  In Section D, it is stated that “in cases where government involvement is suspected, an objective and impartial investigation may not be possible unless a special commission of inquiry is established”.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION\n\n60.  The applicant complained that there was no effective investigation into the death of her husband, Patrick Finucane, which had occurred in circumstances giving rise to suspicions of collusion of the security forces with his killers. She relied on Article 2 of the Convention, which provides in its first paragraph:\n\n“Everyone's right to life shall be protected by law. ...”\n\nA.  The parties' submissions\n\n1.  The applicant\n\n61.  The applicant submitted that the RUC investigation into her husband's death was, inter alia, hopelessly inadequate as it failed entirely to explore the possibility of collusion and as the investigating officers were hierarchically linked to those against whom allegations were made. The inquest was also strictly limited in its scope, involving no key witnesses or any persons suspected of involvement in the death and could not provide an effective part of the process of identifying or prosecuting the perpetrators of any unlawful act. As regards the first two Stevens inquiries, neither was concerned with investigating the murder of Patrick Finucane and neither fulfilled the requirements of independence, promptness, public scrutiny or accessibility to the next-of-kin. The inquiry teams never, for example, made contact with the applicant's family, her husband's firm of solicitors or any of his clients who had reported death threats.\n\n62.  As regards the third inquiry, this was commenced ten years after the murder. So far, the Stevens team had refused to disclose to the applicant any material held by it. As regards her alleged lack of cooperation in various investigations, she had always taken the position that an independent judicial inquiry was the appropriate solution. Nor was the third inquiry sufficiently independent as, like the others, it had been instigated by the Chief Constable of the RUC at the relevant time and John Stevens had reported, as far as she knew, to the Chief Constable. There was thus a hierarchical connection between the head of the investigation and the chief constable of the force against whom serious allegations had been made.\n\n63.  Further, the applicant argued that the examination by the DPP of the evidence throughout the history of the case had been secret, without any reasons being given for decisions not to prosecute. He could not be regarded as independent due to the relationship between his office and the police. His decisions not to prosecute also cast grave doubt on his independence, in particular as the evidence against William Stobie had been known to the authorities for at least ten years. She referred to the decision not to prosecute William Stobie in 1991 for his role in the Finucane murder or his involvement in the UDA, the decision not to adduce evidence against William Stobie at his trial on arms charges in January 1991 and the failure to prosecute Brian Nelson for conspiracy to murder, despite the evidence that he had passed a photograph of Patrick Finucane to known killers, or to prosecute Brian Nelson's army handlers for collusion despite their knowledge that Patrick Finucane was targeted.\n\n2.  The Government\n\n64.  The Government accepted that, in the light of the Court's previous judgments (Hugh Jordan v. the United Kingdom, no. 24746/94, 4 May 2001, McKerr v. the United Kingdom, no. 28883/95, ECHR 2001-III, Kelly and Others v. the United Kingdom, no. 30054/96, 4 May 2001, and Shanaghan v. the United Kingdom, no. 37715/97, 4 May 2001), the RUC investigation, the inquest and the Stevens inquiries did not cumulatively satisfy the procedural requirement imposed by Article 2 of the Convention. They pointed out, however, that the reports following the first and second Stevens inquiries were not made public as this would have prejudiced national security.\n\n65.  In any event, the Government stated that the third inquiry represented the only comprehensive investigation into the death of Patrick Finucane. This was ongoing, conducted by eighteen to twenty police officers from outside  and it was to report to the DPP. So far, apart from William Stobie, fourteen persons had been arrested and interviewed in connection with the murder. While the RUC were resisting the applicant's current application for disclosure of material generated in the third inquiry because of potential prejudice to national security, the material's relevance to matters before, or likely to come before, the courts or to ongoing investigations, it had been made clear that disclosure would be reconsidered if it were to become apparent that there would be no harm to those interests.\n\n66.  Furthermore, the Government submitted that significant efforts had been made by the Stevens team to keep the applicant as fully informed as possible. However, the applicant refused to meet with the police or the Stevens' team and repeatedly indicated her unwillingness to cooperate in the inquiry. In those circumstances, the Government argued that, although the first two Stevens inquiries did not satisfy the procedural obligation in Article 2 as they were not centrally concerned with the murder of the applicant's husband, the third inquiry was so concerned and it was being conducted with thoroughness. The Government accepted that, as it was taking place some years after the events, it did not satisfy the requirements of promptness and reasonable expedition.\n\nB.  The Court's assessment\n\n1.  General principles\n\n67.  The obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State's general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see, mutatis mutandis, McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, p. 49, § 161, and Kaya v. Turkey, judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, p. 324, § 86). The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. What form of investigation will achieve those purposes may vary in different circumstances. However, whatever mode is employed, the authorities must act of their own motion, once the matter has come to their attention. They cannot leave it to the initiative of the next-of-kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures (see, for example, mutatis mutandis, İlhan v.  [GC], no. 22277/93, § 63, ECHR 2000-VII).\n\n68.  For an investigation into alleged unlawful killing by State agents to be effective, it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events (see, for example, Güleç v. Turkey, judgment of 27 July 1998, Reports 1998-IV, p. 1733, §§ 81-82; Oğur v. Turkey [GC], no. 21594/93, §§ 91-92, ECHR 1999-III). This means not only a lack of hierarchical or institutional connection but also a practical independence (see, for example, Ergi v. Turkey, judgment of 28 July 1998, Reports 1998-IV, pp. 1778-79, §§ 83-84, and the recent Northern Irish cases cited above, for example, McKerr, § 128, Hugh Jordan, § 120, and Kelly and Others, § 114).\n\n69.  The investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used was or was not justified in the circumstances (see, for example, Kaya, cited above, p. 324, § 87) and to the identification and punishment of those responsible (see Oğur, cited above, § 88). This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death (see, for example, Salman v. Turkey [GC], no. 21986/93, § 106, ECHR 2000-VII; Tanrıkulu v. Turkey [GC], no. 23763/94, § 109, ECHR 1999-IV; and Gül v. Turkey, 22676/93, § 89, 14 December 2000). Any deficiency in the investigation which undermines its ability to establish the cause of death or the person or persons responsible will risk falling foul of this standard (see the recent Northern Irish cases concerning the inability of inquests to compel the security force witnesses directly involved in the use of lethal force, for example McKerr, cited above, § 144, and Hugh Jordan, cited above, § 127).\n\n70.  A requirement of promptness and reasonable expedition is implicit in this context (see Yaşa v. Turkey, judgment of 2 September 1998, Reports 1998-VI, pp. 2439-40, §§ 102-04; Çakıcı v. Turkey [GC], no. 23657/94, §§ 80, 87 and 106, ECHR 1999-IV; Tanrıkulu, cited above, § 109; and Mahmut Kaya v. Turkey, no. 22535/93, §§ 106-07, ECHR 2000-III). While there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities in investigating a use of lethal force may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see, for example, Hugh Jordan, cited above, §§ 108, 13640).\n\n71.  For the same reasons, there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next-of-kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests (see Güleç, cited above, p. 1733, § 82; Oğur, cited above, § 92; Gül, cited above, § 93; and the recent Northern Irish cases, for example McKerr, cited above, § 148).\n\n2.  Application to the present case\n\n72.  The Court observes that, following the death of Patrick Finucane on 12 February 1989, an investigation was opened by the RUC. No prosecutions resulted at that stage. An inquest opened on 6 September 1990 and closed the same day. Two police inquiries, Stevens 1 and 2, took place in 1989-90 and 1993-95. A third inquiry, Stevens 3, commenced in 1999 and is still ongoing. On 23 June 1999 a criminal prosecution was brought against William Stobie for the murder of Patrick Finucane. A verdict of not guilty was returned on or around 26 November 2001, the prosecution having adduced no evidence.\n\n73.  The applicant has made numerous complaints about these procedures, alleging that they do not satisfy the procedural obligation imposed by Article 2 of the Convention. The Court notes that the Government have accepted, in large part, that the procedures failed to provide the requisite safeguards, although they do not agree with all the criticisms made by the applicant.\n\n(a)  The police investigation\n\n74.  Firstly, concerning the police investigation, the Court notes that it started immediately after the death and that the necessary steps were taken to secure evidence at the scene. The car and gun used in the incident were located, although this did not lead to any charges being brought in respect of the killing. A number of suspects from the loyalist paramilitaries, commonly believed to have carried out the killing, were interviewed. During the inquest, the officer in charge of the investigation stated that, although he was reasonably certain that the main perpetrators of the murder were amongst them, there was insufficient evidence to support a prosecution.\n\n75.  It is not apparent to what extent the initial police investigation included inquiries into possible collusion by the security forces in the targeting of Patrick Finucane by a loyalist paramilitary group. A weapon believed to have been used in the murder had been stolen from the UDR, a member of which was convicted of the theft, and UFF members were convicted of possession of the gun. It was therefore apparent that the weapon had come into the hands of the loyalists via the security forces. At the inquest, however, the police officer in charge of the investigation stated that none of the fourteen persons interviewed in relation to the murder had any connection with the security forces. Allegations of collusion involving the police were also made from a very early stage, in particular with regard to threats made by the RUC in front of Patrick Finucane's clients.\n\n76.  In so far therefore as the investigation was conducted by RUC officers, they were part of the police force which was suspected by the applicant and other members of the community of issuing threats against Patrick Finucane. They were all under the responsibility of the Chief Constable of the RUC, who played a role in the process of instituting any disciplinary or criminal proceedings (see paragraph 55 above). In the circumstances, there was a lack of independence attaching to this aspect of the investigative procedures, which also raises serious doubts as to the thoroughness or effectiveness with which the possibility of collusion was pursued.\n\n(b)  The inquest\n\n77.  In , as in  and , investigations into deaths may also be conducted by inquests. Inquests are public hearings conducted by coroners – independent judicial officers – normally sitting with a jury, to determine the facts surrounding a suspicious death. Judicial review lies from procedural decisions by coroners and in respect of any mistaken directions given to the jury. There are thus strong safeguards as to the lawfulness and proper conduct of the proceedings. In McCann and Others (cited above, p. 49, § 162), the Court found that the inquest held into the deaths of the three IRA suspects shot by the SAS on Gibraltar satisfied the procedural obligation contained in Article 2, as it provided a detailed review of the events surrounding the killings and provided the relatives of the deceased with the opportunity to examine and cross-examine witnesses involved in the operation. However, it must be noted that the inquest in that case was to some extent exceptional when compared with the proceedings in a number of cases in  (see Hugh Jordan, McKerr and Kelly and Others, cited above). The promptness and thoroughness of the inquest in McCann and Others left the Court in no doubt that the important facts relating to the events had been examined with the active participation of the applicants' highly competent legal representative.\n\n78.  In this case, however, the inquest was concerned only with the immediate circumstances surrounding the shooting of Patrick Finucane. There was no inquiry into the allegations of collusion by the RUC or other sections of the security forces. The applicant was refused permission to make a statement at the inquest about the threats made by the police against her husband as the coroner regarded these matters as irrelevant. As later events were to show, however, there were indications that informers working for Special Branch or the security forces knew about, or assisted in, the attack on Patrick Finucane (see paragraphs 16, 25 and 36 above, concerning William Stobie and Brian Nelson), which supported suspicions that the authorities knew about or connived in the murder. The inquest accordingly failed to address serious and legitimate concerns of the family and the public and cannot be regarded as providing an effective investigation into the incident or a means of identifying or leading to the prosecution of those responsible. In that respect, it fell short of the requirements of Article 2.\n\n(c)  The Stevens inquiries\n\n79.  The Court notes that the authorities responded to concerns arising out of allegations of collusion between the loyalist organisations and the security forces by instituting special police inquiries, headed by a senior police officer from outside . It is not apparent, however, that the first two inquiries, however useful they may have been in uncovering information, were in fact concerned with investigating the death of Patrick Finucane with a view to bringing prosecutions as appropriate. In any event, the reports were not made public and the applicant was never informed of their findings. The necessary elements of public scrutiny and accessibility of the family are therefore missing.\n\n80.  As regards the most recent inquiry, Stevens 3, which is squarely concerned with the Finucane murder, the Government have admitted that, taking place some ten years after the event, it cannot comply with the requirement that effective investigations be commenced promptly and conducted with due expedition. It is also not apparent to what extent, if any, the final report will be made public, although a summary overview has recently been published. In the light of these defects, the Court does not find it necessary to consider further allegations of lack of accessibility of the applicant to the procedure or lack of independence of the inquiry from the Police Service in  (which has replaced the RUC).\n\n(d)  The DPP\n\n81.  The applicant also alleged that the DPP had shown a lack of independence in this case. The Court has noted in previous cases that the DPP, who is the legal officer responsible for deciding whether to bring prosecutions in respect of any possible criminal offences, is not required to give reasons for a decision not to prosecute, and in this case he did not do so. No challenge by way of judicial review exists in Northern Ireland to require him to give reasons, although it may be noted that in England and Wales, where the inquest jury may still reach verdicts of unlawful death, the courts have required the DPP to reconsider a decision not to prosecute in the light of such a verdict, and will review whether those reasons are sufficient. This possibility does not exist in , where the inquest jury is no longer permitted to issue verdicts concerning the lawfulness or otherwise of a death.\n\n82.  The Court does not consider it possible at this stage for it to determine what in fact occurred in 1990-91 and in 1995 when decisions were taken concerning the prosecution of persons possibly implicated in the Finucane murder (see paragraphs 16 and 27 above). However, where the police investigation procedure is itself open to doubts as to its independence and is not amenable to public scrutiny, it is of increased importance that the officer who decides whether or not to prosecute also gives an appearance of independence in his decision-making. As the Court observed in Hugh Jordan (cited above, § 123), the absence of reasons for decisions not to prosecute in controversial cases may in itself not be conducive to public confidence and may deny the family of the victim access to information about a matter of crucial importance to them and prevent any legal challenge of the decision.\n\n83.  Notwithstanding the suspicions of collusion, however, no reasons were forthcoming at the time for the various decisions not to prosecute and no information was made available either to the applicant or the public which might have provided reassurance that the rule of law had been respected. This cannot be regarded as compatible with the requirements of Article 2, unless that information was forthcoming in some other way. This was not the case.\n\n(e)  Conclusion\n\n84.  The Court finds that the proceedings following the death of Patrick Finucane failed to provide a prompt and effective investigation into the allegations of collusion by security personnel. There has consequently been a failure to comply with the procedural obligation imposed by Article 2 of the Convention and there has been, in this respect, a violation of that provision.\n\nII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n85.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n86.  The applicant stated that the quantum of any award for non-pecuniary damage was for the Court to assess on an equitable basis. She raised concerns, however, that any just satisfaction award, as was made in the other  cases (Hugh Jordan, McKerr, Kelly and Others and Shanaghan, cited above), would be regarded as bringing to an end the investigative obligation imposed by Article 2 of the Convention. She referred in that regard to the approach adopted by the domestic courts in the application brought by Jonathan McKerr after the Court's judgment for a declaration that the State was in continuing breach of the procedural obligation under Article 2 and for an order of mandamus to compel it to provide an effective investigation. On 26 July 2002 the High Court in Northern Ireland rejected the application, finding that this Court would not have exercised its discretion to award just satisfaction had it envisaged the possibility of restitutio in integrum through the holding of an effective investigation and therefore considered that any continuing obligation had come to an end once the Court had delivered its judgment. This decision has since been overturned by the Northern Ireland Court of Appeal, on 10 January 2003, and an application by the Crown for leave to appeal is apparently pending before the House of Lords. The applicant requested the Court to state that awards of just satisfaction do not bring to an end the rights conferred by Article 2. Since she would not wish any just satisfaction award to jeopardise action taken at the domestic level to enforce an investigation, she requested the Court not to make such an award if it were to agree with the High Court's approach mentioned above.\n\n87.  The Government stated that the applicant had received a very significant sum – some half a million pounds sterling (GBP) – under the Criminal Injuries Compensation Scheme and had shown a certain ambivalence as to whether she wished to claim compensation for non-pecuniary damage. As her main concern was to obtain a judgment of the Court against the , any such judgment would constitute in itself sufficient just satisfaction.\n\n88.  The Court observes that it has made awards for non-pecuniary damage in other similar cases in which it has found a breach of the procedural obligation under Article 2 of the Convention (see Hugh Jordan, McKerr, Kelly and Others and Shanaghan, cited above). The compensation referred to by the Government does not relate to the shortcomings in the official investigation and would not prevent an award for non-pecuniary damage in that respect.\n\n89.  As regards the applicant's views concerning the provision of an effective investigation, the Court has not previously given any indication that a Government should, as a response to such a finding of a breach of Article 2, hold a fresh investigation into the death concerned and has on occasion expressly declined to do so (see Ülkü Ekinci v. Turkey, no. 27602/95, § 179, 16 July 2002). Nor does it consider it appropriate to do so in the present case. It cannot be assumed in such cases that a future investigation can usefully be carried out or provide any redress, either to the victim's family or to the wider public by ensuring transparency and accountability. The lapse of time and its effect on the evidence and the availability of witnesses inevitably render such an investigation unsatisfactory or inconclusive, by failing to establish important facts or put to rest doubts and suspicions. Even in disappearance cases, where it might be argued that more is at stake since the relatives suffer from the ongoing uncertainty about the exact fate of the victim or the location of the body, the Court has refused to issue any declaration that a new investigation should be launched (see Orhan v. Turkey, no. 25656/94, § 451, 18 June 2002). It rather falls to the Committee of Ministers acting under Article 46 of the Convention to address the issues as to what may be required in practical terms by way of compliance in each case (see, mutatis mutandis, Akdivar and Others v. Turkey (Article 50), judgment of 1 April 1998, Reports 1998-II, pp. 723-24, § 47).\n\n90.  In sum, the Court is unable to make the declaration or clarifications requested by the applicant with a view to the consequences of this judgment. As she has stated that in this event she does not wish any award to be made, it will proceed on the basis that her claim is withdrawn.\n\nB.  Costs and expenses\n\n91.  The applicant claimed GBP 94,020.22, inclusive of value-added tax (VAT), for costs and expenses related to legal work done since the introduction of the case in 1995. This included fees of GBP 31,385.75 for over 207 hours' work by a senior solicitor, GBP 6,580 for over 117 hours' work by a paralegal, GBP 29,375 for fees of senior counsel and GBP 19,583.32 for junior counsel.\n\n92.  The Government submitted that this was grossly excessive. While the case was complex, many of the legal issues were similar to those raised in the other  cases. The claims by lawyers included well over 300 hours by solicitors plus unspecified hours by two counsel. They considered there must have been a significant degree of duplication of work and that the applicant has not demonstrated that these legal costs were reasonably and necessarily incurred.\n\n93.  The Court notes that this case, which has been pending for some considerable time, has involved several rounds of written submissions and may be regarded as factually and legally complex. Nonetheless, no oral hearing has been held. It finds the fees claimed to be on the high side when compared with other cases from the  and is not persuaded that they are reasonable as to quantum. Having regard to equitable considerations, it awards the sum of 43,000 euros, plus any VAT which may be payable.\n\nC.  Default interest\n\n94.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Holds that there has been a violation of Article 2 of the Convention;\n\n2.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 43,000 (forty-three thousand euros) in respect of costs and expenses, to be converted into pounds sterling at the rate applicable at the date of settlement, plus any tax that may be chargeable;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n3.  Dismisses the remainder of the applicant's claim for just satisfaction.\n\nDone in English, and notified in writing on 1 July 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_722","text":"PROCEDURE\n\n1.  The case originated in an application (no. 49659/99) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Adil Cıbır (“the applicant”), on 24 June 1999.\n\n2.  The applicant was represented by Mr I. Ezerbolat, a lawyer practising in . The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.\n\n3.  On 2 October 2001 the Court decided to communicate the application to the Government. In a letter of 27 May 2003, the Court informed the parties that in accordance with Article 29 §§ 1 and 3 of the Convention it would decide on both the admissibility and merits of the application.\n\nTHE FACTS\n\nI.  CIRCUMSTANCES OF THE CASE\n\n4.  The applicant lives in .\n\n5.  On 20 April 1992 the General Directorate of National Roads and Highways expropriated plots of land belonging to the applicant in Mamak, . A committee of experts assessed the value of the plots of land belonging to the applicant and compensation was paid to him when the expropriation took place.\n\n6.  Following the applicant’s request for increased compensation, the Ankara First Instance Court awarded him 2,033,884,335 Turkish liras (TRL) of additional compensation plus interest at the statutory rate of 30% per annum, namely the rate applicable at the date of the court’s decision. The date, 29 August 1995 was fixed by the domestic court for the running of the statutory rate of interest.\n\n7.  On 30 March 1998, upon the General Directorate’s appeal, the Court of Cassation upheld the decision of the first instance court. On 25 December 1998 the administration paid the applicant TRL 4,449,000,000 as the additional compensation together with interest. The interest on the additional compensation was calculated at the statutory rate applicable between the running date of the interest and 31 December 1997, namely 30%. As regards the period after 1 January 1998 the interest was calculated at the then applicable rate, namely 50%.\n\nII. RELEVANT DOMESTIC LAW AND PRACTICE\n\n8.  The relevant domestic law and practice are set out in the Aka v. Turkey judgment of 23 September 1998 (Reports of Judgments and Decisions 1998-VI, pp. 2674-76, §§ 17-25).\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1\n\n9.  The applicant complained that the additional compensation for expropriation, which he had obtained from the authorities only after nine months of court proceedings, had fallen in value, since the default interest payable had not kept pace with the very high rate of inflation in . He relied on Article 1 of Protocol No. 1, which reads as follows:\n\n“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.\n\nThe preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”\n\nA.  Admissibility\n\n10.  The Government maintained that the applicant had not exhausted domestic remedies as required by Article 35 of the Convention, as he had failed to make proper use of the remedy available to him under Article 105 of the Code of Obligations. Under that provision, he would have been eligible for compensation for the losses allegedly sustained as a result of the delays in payment of the additional compensation if he had established that the losses exceeded the amount of default interest.\n\n11.  The Court observes that it dismissed a similar preliminary objection in the case of Aka v. Turkey (cited above, pp. 2678-79, §§ 34-37). It sees no reason to do otherwise in the present case and therefore rejects the Government’s objection.\n\n12.  It finds that, in the light of the principles it has established in its case-law (see, among other authorities, Akkuş v. Turkey, judgment of 9 July 1997, Reports 1997-IV) and of all the evidence before it, this complaint requires examination on the merits and there are no grounds for declaring it inadmissible.\n\nB.  Merits\n\n13.  The Court has found a violation of Article 1 of Protocol No. 1 in a number of cases that raise similar issues to those arising here (see Akkuş, cited above, p. 1317, § 31; and Aka, cited above, p. 2682, §§ 50-51).\n\n14.  Having examined the facts and arguments presented by the Government, the Court considers that there is nothing to warrant a departure from its findings in the previous cases. It finds that the delay in paying for the additional compensation awarded by the domestic courts was attributable to the expropriating authority and caused the owner to sustain loss additional to that of the expropriated land. As a result of that delay and the length of the proceedings as a whole, the Court finds that the applicant has had to bear an individual and excessive burden that has upset the fair balance that must be maintained between the demands of the general interest and protection of the right to the peaceful enjoyment of possessions.\n\n15.  Consequently, there has been a violation of Article 1 of Protocol No. 1.\n\nII.  ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No. 1\n\n16.  The applicant also complained under Article 14 of the Convention in conjunction with Article 1 of Protocol 1 of the exceptional situation which was favourable to the State as a result of the difference between the rate of interest payable on debts owed to the State (around 84% per annum) and the rate of interest on overdue State debts (30% per annum) at the material time.\n\nA.  Admissibility\n\n17.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds.\n\nB.  Merits\n\n18.  In the light of its findings with regard to Article 1 of Protocol No. 1, the Court considers that no separate examination of the case under Article 14 in conjunction with Article 1 of Protocol No. 1 is necessary.\n\nIII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n19.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Pecuniary and non-pecuniary damage, and costs and expenses\n\n20.  The applicant sought compensation for pecuniary and non-pecuniary damages and for costs and expenses the sum of 100,114 US dollars.\n\n21.  The Government contested the applicant’s claims.\n\n22.  Using the same method of calculation as in the Akkuş judgment (cited above, pp. 2683-84, §§ 55-56) and having regard to the relevant economic data, the Court awards the applicant 1,400 euros (EUR) for pecuniary damage.\n\n23.  The Court observes that the applicant sustained actual non-pecuniary damage. Ruling on an equitable basis, the Court finds that in the circumstances of the present case finding a violation constitutes a sufficient satisfaction.\n\n24.  In the light of the information in its possession and its case-law on the subject, the Court considers it reasonable to award the applicant the sum of EUR 300, covering costs under all heads.\n\nB.  Default interest\n\n25.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Declares the application admissible;\n\n2.  Holds that there has been a violation of Article 1 of Protocol No. 1;\n\n3.  Holds that it is unnecessary to examine the complaint under Article 14 of the Convention;\n\n4.  Holds that finding a violation constitutes a sufficient satisfaction for non-pecuniary damage;\n\n5.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following sums plus any tax, stamp duty or imposts that may be chargeable at the date of payment, to be converted into Turkish liras at the rate applicable at the date of settlement;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n6.  Dismisses the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 19 May 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_843","text":"PROCEDURE\n\n1.  The case originated in an application (no. 34503/97) against the Republic of Turkey lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Turkish nationals, Mr Kemal Demir and Mrs Vicdan Baykara (“the applicants”), the latter in her capacity as President of the trade union Tüm Bel Sen, on 8 October 1996.\n\n2.  The applicants were represented by Mrs S. Karaduman, a lawyer practising in Ankara. The Turkish Government (“the Government”) were represented by their Co-Agent, Mrs D. Akçay.\n\n3.  The applicants complained that, in breach of Article 11 of the Convention, by itself or in conjunction with Article 14, the domestic courts had denied them, firstly, the right to form trade unions and, secondly, the right to engage in collective bargaining and enter into collective agreements.\n\n4.  The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).\n\n5.  The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.\n\n6.  By a decision of 23 September 2004, the Chamber declared the application partly admissible and partly inadmissible.\n\n7.  On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Second Section (Rule 52 § 1).\n\n8.  On 21 November 2006 the Chamber, composed of Jean-Paul Costa, President, Ireneu Cabral Barreto, Rıza Türmen, Mindia Ugrekhelidze, Antonella Mularoni, Elisabet Fura-Sandström, Dragoljub Popović, judges, and Sally Dollé, Section Registrar, delivered its judgment. It held, unanimously, that there had been a violation of Article 11 of the Convention in so far as the domestic courts had refused to recognise the legal personality of the trade union Tüm Bel Sen and had considered null and void the collective agreement between that trade union and Gaziantep Municipal Council, and that there was no need for a separate examination of the complaints under Article 14 of the Convention. The concurring opinion of Judges Türmen, Fura-Sandström and Popović was annexed to that judgment.\n\n9.  On 21 February 2007 the Government requested the referral of the case to the Grand Chamber in accordance with Article 43 of the Convention and Rule 73.\n\n10.  A panel of the Grand Chamber granted that request on 23 May 2007.\n\n11.  The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24.\n\n12.  The applicants and the Government each filed a memorial.\n\n13.  A hearing took place in public in the Human Rights Building, Strasbourg, on 16 January 2008 (Rule 59 § 3).\n\nThere appeared before the Court:\n\nThe Court heard addresses by Mrs S. Karaduman, Mrs V. Baykara and Mrs D. Akçay.\n\nTHE FACTS\n\n14.  The applicants, Mr Kemal Demir and Mrs Vicdan Baykara, were born in 1951 and 1958 and live in Gaziantep and Istanbul respectively. The first applicant was a member of the trade union Tüm Bel Sen and the second applicant was its President.\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n15.  The trade union Tüm Bel Sen was founded in 1990 by civil servants from various municipalities whose employment was governed by the Public Service Act (Law no. 657). Under Article 2 of its constitution, the trade union’s objective is to promote democratic trade unionism and thereby assist its members in their aspirations and claims. Its head office is located in Istanbul.\n\n16.  On 27 February 1993 Tüm Bel Sen entered into a collective agreement with the Gaziantep Municipal Council for a period of two years, effective from 1 January 1993. The agreement concerned all aspects of the working conditions of the Gaziantep Municipal Council’s employees, such as salaries, allowances and welfare services.\n\n17.  As the Gaziantep Municipal Council had failed to fulfil certain of its obligations under the agreement, in particular its financial obligations, the second applicant, as President of the trade union, brought civil proceedings against it in the Gaziantep District Court (“the District Court”) on 18 June 1993.\n\n18.  In a judgment of 22 June 1994, the District Court found in favour of Tüm Bel Sen. The Gaziantep Municipal Council appealed on points of law.\n\n19.  On 13 December 1994 the Court of Cassation (Fourth Civil Division) quashed the District Court’s judgment. It found that, even though there was no legal bar preventing civil servants from forming a trade union, any union so formed had no authority to enter into collective agreements as the law stood.\n\n20.  In arriving at this conclusion, the Court of Cassation took into account the special relationship between civil servants and the public administration as regards recruitment, the nature and scope of the work concerned, and the privileges and guarantees afforded to officials by virtue of their status. It considered that this relationship was different from that which existed between employers and ordinary contractual staff (that is to say, employees in the private sector together with manual workers employed by a public administration). As a result, Law no. 2322, governing collective agreements and the right to take strike or lock-out action, could not apply to relations between civil servants and a public administration. Any agreement of a “collective” nature between civil servants’ unions and a public administration had to be grounded in specific legislation.\n\n21.  In a judgment of 28 March 1995, the Gaziantep District Court stood by its original judgment on the ground that, despite the lack of express statutory provisions recognising a right for trade unions formed by civil servants to enter into collective agreements, this lacuna had to be filled by reference to international treaties such as the conventions of the International Labour Organisation (ILO) which had already been ratified by Turkey and which, by virtue of the Turkish Constitution, were directly applicable in domestic law.\n\n22.  Among other things, the District Court indicated, firstly, that the trade union Tüm Bel Sen was a legally established entity which had filed its constitution with the provincial governor’s office a long time ago and which, since then, had carried on its activities without the slightest intervention by the competent authorities. The court added that, on this matter, there was no discrepancy between its judgment and that of the Fourth Civil Division of the Court of Cassation.\n\n23.  As regards the right of civil servants to enter into collective agreements, the court considered that, even if there was an omission in Turkish law on this point, the court to which a dispute was referred had an obligation, under Article 1 of the Civil Code, to make good the omission itself and to adjudicate the case. In the court’s view, the same obligation also arose from Article 36 of the Turkish Constitution, under which everyone was afforded the right of access to a court. In this context the relevant provisions of the ILO conventions ratified by Turkey had to be applied in the case, even though the specific national laws had not yet been enacted by the legislature. Directly applying the relevant provisions of these international instruments ratified by Turkey, the court considered that the applicant trade union did have the right to enter into collective agreements.\n\n24.  As to the question whether the validity of the collective agreement in question was affected by the fact that it had not been provided for by any legislation at the time it was entered into, the court considered that, since it concerned employer-employee relations, the agreement was of a private-law nature. In the context of the limits imposed by Articles 19 and 20 of the Code of Obligations, namely compliance with statutory provisions, customary law, morals and public order, the parties had been freely entitled to determine the content of this collective agreement. An examination of the text of the collective agreement in question did not reveal any contradiction with those requirements. Consequently, the court found that the collective agreement between the applicant trade union and the Gaziantep Municipal Council had been a valid legal instrument with binding effect for the parties.\n\n25.  The court awarded Mr Kemal Demir a sum equivalent to the increases in pay and allowances provided for by the collective agreement in question.\n\n26.  In a judgment of 6 December 1995, the Court of Cassation (combined civil divisions) quashed the District Court’s judgment of 28 March 1995. It found that certain rights and freedoms mentioned in the Turkish Constitution were directly applicable to litigants, whereas others were not. In fact, the Constitution, by the indication “the exercise of this right shall be governed by legislation” clearly earmarked the rights and freedoms which, to be used and applied, required the enactment of specific legislation. Absent such legislation, these rights and freedoms, which included the freedom to join a trade union and to bargain collectively, could not be exercised.\n\n27.  The Court of Cassation further considered that the principle of the individual’s free will was not absolute in respect of the establishment of legal entities. They could acquire legal personality, distinct from their constituent persons, only by complying with the formal conditions and procedures laid down by law for that purpose. The creation of a legal entity was no more than a legal consequence conferred by the law on an expression of free will by the founders.\n\n28.  The Court of Cassation pointed out that the freedom to form associations, trade unions and political parties, even if provided for in the Turkish Constitution, could not be exercised simply by a declaration of the free will of individuals. As there was no specific law on the subject, the existence of such a legal entity could not be recognised. According to the Court of Cassation, this finding was not at odds with the principles of “the rule of law” and “democracy” mentioned in the Constitution, since supervision of legal entities by the State, in order to ensure public usefulness, was necessary in any democratic legal system.\n\n29.  The Court of Cassation further pointed out that the legislation in force at the time when the trade union was founded did not permit civil servants to form trade unions. It added that the amendments subsequently made to the Turkish Constitution, recognising the right of civil servants to form trade unions and bargain collectively, were not such as to invalidate the finding that Tüm Bel Sen had not acquired legal personality and, as a result, did not have the capacity to take or defend court proceedings.\n\n30.  An application by representatives of the trade union for rectification of that decision was rejected by the Court of Cassation on 10 April 1996.\n\n31.  Following an audit of the Gaziantep Municipal Council’s accounts by the Audit Court, the members of the trade union Tüm Bel Sen had to reimburse the additional income they had received as a result of the defunct collective agreement. The Audit Court, in a number of decisions that it gave as the court of last resort in respect of the collective agreements entered into by the trade union, pointed out that the rules applicable to civil servants, including the salaries and allowances to which they were entitled, were laid down by law. It further considered that, since the amendment on 23 July 1995 of Article 53 of the Turkish Constitution and the enactment on 25 June 2001 of Law no. 4688 on civil servants’ trade unions, such unions were admittedly entitled to engage in collective bargaining under certain conditions of representation, but were not entitled to enter into valid collective agreements directly with the authorities concerned, unlike trade unions of ordinary contractual employees who could enter into such agreements with their employers. If an agreement was entered into between the employing authority and the trade union concerned, it could only become binding following its approval by the Council of Ministers. The Audit Court, after finding that the collective agreement entered into by the applicant trade union had not fulfilled these conditions, decided that the accountants who had authorised higher payments than those provided for by law should reimburse the surplus amounts to the State’s budget.\n\n32.  The Audit Court refused to apply section 4 of Law no. 4688, which required the discontinuance of any administrative, financial or judicial proceedings brought against accountants who were responsible for such payments. It considered that this provision did not render the collective agreements valid and did not release the accountants in question from the obligation to reimburse the State for any losses sustained by it as a result of payments made in accordance with those agreements.\n\n33.  The accountants concerned in turn brought proceedings against the civil servants who were members of the trade unions and had benefited from the additional payments granted under the defunct collective agreements.\n\nII.  RELEVANT DOMESTIC AND INTERNATIONAL LAW\n\nA.  Domestic law\n\n34.  The relevant provisions of the Turkish Constitution read as follows:\n\nArticle 51\n(at the material time)\n\n“Ordinary contractual employees (işçi) and employers shall have the right to form trade unions and federations of unions, without prior permission, in order to safeguard and develop their economic and social rights and interests in the context of their labour relations.\n\nIn order to form a union or a federation of unions, it shall suffice to submit the information and documents prescribed by law to the competent authority designated by law. If it finds that this information and documentation are not in conformity with the law, the competent authority shall apply to the appropriate court for the suspension of activities or the dissolution of the union or federation of unions.\n\nEveryone shall be entitled to join or resign from a trade union.\n\nNo one shall be compelled to become a member, remain a member, or resign from a trade union.\n\nOrdinary contractual employees and employers shall not be entitled to join more than one trade union at a time.\n\nEmployment in a particular workplace shall not be made conditional on membership or lack of membership of a trade union of ordinary contractual employees.\n\nIn order to hold an executive post in a trade union or federation of trade unions of ordinary contractual employees, it is necessary to have effectively been employed as such an employee for at least ten years.\n\nThe constitution, administration, and functioning of trade unions and federations of trade unions shall not be inconsistent with the characteristics of the Republic or with democratic principles as defined in the Constitution.”\n\nArticle 51\n(as amended by Law no. 4709 of 3 October 2001)\n\n“Employees and employers shall have the right to form trade unions and federations of unions, without prior permission, in order to safeguard and develop the economic and social rights and interests of their members in the context of their labour relations, and to join or withdraw from such entities of their own free will. No one shall be compelled to join or resign from a trade union.\n\nThe right to form a union may only be limited as prescribed by law in the interests of national security or public order, for the prevention of crime, for the protection of public health or morals or for the protection of the rights and freedoms of others.\n\nThe formalities, conditions and procedures applicable to the right to form a trade union shall be prescribed by law.\n\nMembership of more than one trade union within the same sector of activity shall be prohibited.\n\nThe scope of the rights in this sphere of public officials other than those who have the status of ordinary contractual employee, and the exceptions and limitations applicable to them, shall be prescribed by law in a manner appropriate to the nature of the services they provide.\n\nThe constitution, administration and functioning of trade unions and federations of unions shall not be inconsistent with the fundamental characteristics of the Republic or with democratic principles.”\n\nArticle 53\n(at the material time)\n\n“Ordinary contractual employees and employers shall be entitled ... to enter into collective agreements in order to regulate their economic and social position and conditions of work.\n\nCollective agreements shall be entered into in accordance with the statutory procedure.\n\nIt shall be prohibited to enter into or apply more than one collective agreement in a single workplace at any given time.”\n\nArticle 53\n(as amended by Law no. 4121 of 23 July 1995)\n\n“Ordinary contractual employees and employers shall be entitled ... to enter into collective agreements in order to regulate their economic and social position and conditions of work.\n\nCollective agreements shall be entered into in accordance with the statutory procedure.\n\nThe trade unions and federations of unions which the public officials referred to in the first paragraph of Article 128 shall be entitled to form, and which do not fall within the scope of the first and second paragraphs of the present Article, nor that of Article 54, shall be entitled to take or defend court proceedings and to bargain collectively with the public administration in accordance with their objectives and on behalf of their members. If an agreement is reached as a result of collective bargaining, the text of the agreement shall be signed by the parties. This text shall be submitted to the Council of Ministers so that legal or administrative arrangements can be made for its implementation. If no such agreement is reached through collective bargaining, a record of the points of agreement and disagreement shall be drawn up and signed by the relevant parties and submitted for consideration by the Council of Ministers. The procedure for the implementation of this paragraph shall be laid down by law.\n\nIt shall be prohibited to enter into or apply more than one collective agreement in a single workplace at any given time.”\n\nArticle 90\n\n“... International treaties that are duly in force are directly applicable in domestic law. Their constitutionality cannot be challenged in the Constitutional Court.\n\nIn the event of conflict as to the scope of fundamental rights and freedoms between an international agreement duly in force and a domestic statute, the provisions of the international agreement shall prevail.” (Second sub-paragraph added by Law no. 5170 of 7 May 2004)\n\nArticle 128\n\n“The essential and permanent duties necessitated by the public services that the State, public economic undertakings and other public-law entities are required to provide, in accordance with general principles of public administration, shall be performed by civil servants and other public officials.\n\nThe qualifications, appointment, duties and powers, rights and responsibilities, and salaries and allowances of civil servants and other public officials, and other matters related to their status, shall be provided for by law.\n\nThe procedure and principles governing the training of senior civil servants shall be specially provided for by law.”\n\n35.  Section 22 of the Public Service Act (Law no. 657 of 14 July 1965) stated that civil servants were authorised to form and join trade unions and professional organisations, in accordance with the conditions set out in special legislation. The second subsection of that provision stated that the said professional organisations were authorised to defend the interests of their members before the competent authorities.\n\nSection 22 was repealed by Article 5 of Legislative Decree no. 2 of 23 December 1972. It was reinstated by section 1 of Law no. 4275 of 12 June 1997. The text now reads:\n\n“In accordance with the provisions of the Constitution and of the special legislation, civil servants shall be permitted to form and to become members of trade unions and federations of trade unions.”\n\n36.  The Civil Servants’ Trade Union Act (Law no. 4688 – which was enacted on 25 June 2001 and entered into force on 12 July 2001) applies, according to section 2, to public officials, other than those who have the status of ordinary contractual employees (işçi), working for government agencies and other public-law entities providing a public service, organisations operating on a general, supplementary or special budget, public administrations and municipal authorities in provinces and services attached thereto, publicly owned enterprises, banks and other private-law undertakings and establishments attached thereto, and for all other public organisations and establishments.\n\nSection 30 of the Act provides as follows:\n\n“The trade union with the greatest number of members in each branch of public administration and the federations to which those unions are affiliated shall have the capacity to bargain collectively. The delegate from the most representative trade union shall chair the delegation taking part in the negotiations.”\n\nThe determination of which civil servants’ trade unions and federations are competent to bargain collectively is made by the Minister for Labour and Social Security on the basis of lists that are co-signed and presented by the public administrations and the trade unions (section 30 of Law no. 4688).\n\nDuring the collective bargaining, the employer is represented by the Public Employers’ Committee. Civil servants and other public officials are represented by the trade union that is recognised as competent and the federation to which it is affiliated.\n\nThe Public Employers’ Committee and the trade unions and federations concerned are required to meet on 15 August every year. The parties then submit their proposals, which will form the starting-point and agenda of the collective bargaining. The principles governing the negotiations are determined by the parties (section 32 of Law no. 4688).\n\nThe collective negotiations must be concluded within fifteen days. If agreement is reached within that time, the parties concerned sign a collective agreement which is sent to the Council of Ministers to enable the legal and administrative steps required for its implementation to be taken. The Council of Ministers takes the appropriate measures within a period of three months and presents its draft law to the Grand National Assembly of Turkey (section 34 of Law no. 4688).\n\nIf the parties concerned are unable to reach an agreement within the time-limit thus fixed, each one may refer the matter to the Arbitral Board, which is made up of academics who are not members of political parties. If the parties approve the decision of the Arbitral Board, an agreement is signed and sent to the Council of Ministers. If there is still no agreement, the parties sign a record indicating the points on which they have agreed and disagreed. This record is also sent to the Council of Ministers (section 35 of Law no. 4688).\n\nB.  International law\n\n1.  Universal instruments\n\n(a)  Right to organise and civil servants\n\n37.  Article 2 of ILO Convention No. 87 on Freedom of Association and Protection of the Right to Organise (adopted in 1948 and ratified by Turkey on 12 July 1993) provides as follows:\n\n“Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.”\n\n38.  In its Individual Observation to the Turkish government concerning ILO Convention No. 87, adopted in 2005, the Committee of Experts on the Application of Conventions and Recommendations stated as follows:\n\n“The Committee underlines that Article 2 of the Convention [No. 87] provides that workers without distinction whatsoever should have the right to form and join organisations of their own choosing and that the only admissible exception under the Convention concerns the armed forces and the police. ...”\n\n39.  The ILO Committee on Freedom of Association declared as follows concerning municipal civil servants (see Digest of Decisions 1996, paragraph 217):\n\n“Local public service employees should be able effectively to establish organisations of their own choosing, and these organisations should enjoy the full right to further and defend the interests of the workers whom they represent.”\n\n40.  Article 22 of the International Covenant on Civil and Political Rights provides as follows:\n\n“1.  Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.\n\n2.  No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right.\n\n...”\n\n41.  Article 8 of the International Covenant on Economic, Social and Cultural Rights provides as follows:\n\n“1.  The States Parties to the present Covenant undertake to ensure:\n\n(a)  the right of everyone to form trade unions and join the trade union of his choice, subject only to the rules of the organisation concerned, for the promotion and protection of his economic and social interests. No restrictions may be placed on the exercise of this right other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others;\n\n...\n\n(c)  the right of trade unions to function freely subject to no limitations other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others;\n\n...\n\n2.  This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces or of the police or of the administration of the State.\n\n...”\n\n(b)  Collective bargaining law and civil servants\n\n42.  The relevant Articles of ILO Convention No. 98 concerning the Application of the Principles of the Right to Organise and to Bargain Collectively (adopted in 1949 and ratified by Turkey on 3 January 1952) read as follows:\n\nArticle 4\n\n“Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers’ organisations and workers’ organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements.”\n\nArticle 5\n\n“1.  The extent to which the guarantees provided for in this Convention shall apply to the armed forces and the police shall be determined by national laws or regulations.\n\n2.  In accordance with the principle set forth in paragraph 8 of Article 19 of the Constitution of the International Labour Organisation the ratification of this Convention by any member shall not be deemed to affect any existing law, award, custom or agreement in virtue of which members of the armed forces or the police enjoy any right guaranteed by this Convention.”\n\nArticle 6\n\n“This Convention does not deal with the position of public servants engaged in the administration of the State, nor shall it be construed as prejudicing their rights or status in any way.”\n\n43.  The ILO Committee of Experts interpreted this provision as excluding from the scope of Convention No. 98 only those officials who are directly employed in the administration of the State. With that exception, all other persons employed by the government, by public enterprises or by autonomous public institutions should benefit, according to the Committee, from the guarantees provided for in Convention No. 98 in the same manner as other employees, and consequently should be able to engage in collective bargaining in respect of their conditions of employment, including wages (General Survey 1994, Freedom of Association and Collective Bargaining, on Conventions Nos. 87 and 98 [ILO, 1994a], paragraph 200).\n\n44.  The relevant provisions of ILO Convention No. 151 (adopted in 1978 and ratified by Turkey on 12 July 1993) concerning Protection of the Right to Organise and Procedures for Determining Conditions of Employment in the Public Service read as follows:\n\nArticle 1\n\n“1.  This Convention applies to all persons employed by public authorities, to the extent that more favourable provisions in other international labour conventions are not applicable to them.\n\n2.  The extent to which the guarantees provided for in this Convention shall apply to high-level employees whose functions are normally considered as policy-making or managerial, or to employees whose duties are of a highly confidential nature, shall be determined by national laws or regulations.\n\n3.  The extent to which the guarantees provided for in this Convention shall apply to the armed forces and the police shall be determined by national laws or regulations.”\n\nArticle 7\n\n“Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for negotiation of terms and conditions of employment between the public authorities concerned and public employees’ organisations, or of such other methods as will allow representatives of public employees to participate in the determination of these matters.”\n\nThe General Conference of the ILO, in the Preamble to Convention No. 151, noted “the terms of the Freedom of Association and Protection of the Right to Organise Convention, 1948, [and] the Right to Organise and Collective Bargaining Convention, 1949” and took into account:\n\n“... the particular problems arising as to the scope of, and definitions for the purpose of, any international instrument, owing to the differences in many countries between private and public employment, as well as the difficulties of interpretation which have arisen in respect of the application of relevant provisions of the Right to Organise and Collective Bargaining Convention, 1949, to public servants, and the observations of the supervisory bodies of the ILO on a number of occasions that some governments have applied these provisions in a manner which excludes large groups of public employees from coverage by that Convention.”\n\n2.  European instruments\n\n(a)  Right to organise and civil servants\n\n45.  Article 5 of the European Social Charter (revised), not yet ratified by Turkey, provides as follows:\n\nArticle 5 – The right to organise\n\n“With a view to ensuring or promoting the freedom of workers and employers to form local, national or international organisations for the protection of their economic and social interests and to join those organisations, the Contracting Parties undertake that national law shall not be such as to impair, nor shall it be so applied as to impair, this freedom. The extent to which the guarantees provided for in this Article shall apply to the police shall be determined by national laws or regulations. The principle governing the application to the members of the armed forces of these guarantees and the extent to which they shall apply to persons in this category shall equally be determined by national laws or regulations.”\n\n46.  Principle 8 of Recommendation No. R (2000) 6 of the Committee of Ministers of the Council of Europe on the status of public officials in Europe reads as follows:\n\n“Public officials should, in principle, enjoy the same rights as all citizens. However, the exercise of these rights may be regulated by law or through collective agreement in order to make it compatible with their public duties. Their rights, particularly political and trade union rights, should only be lawfully restricted in so far as it is necessary for the proper exercise of their public functions.”\n\n47.  Article 12 § 1 of the European Union’s Charter of Fundamental Rights provides as follows:\n\n“Everyone has the right to freedom of peaceful assembly and to freedom of association at all levels, in particular in political, trade union and civic matters, which implies the right of everyone to form and to join trade unions for the protection of his or her interests.”\n\n48.  As to European practice, it can be observed that the right of public servants to join trade unions is now recognised by all Contracting States. This right applies to public servants under a career or contractual system and to employees of publicly owned industrial or commercial enterprises, whether national or municipal. Civil servants, whether they work for central government or a local authority, are generally entitled to join the trade union of their choosing. The density of trade-union membership is generally higher in the public sector than in the private sector. In the majority of member States, the few restrictions that can be found are limited to judicial offices, to the police and to the fire services, with the most stringent restrictions, culminating in the prohibition of union membership, being reserved for members of the armed forces.\n\n(b)  The right to bargain collectively and civil servants\n\n49.  Article 6 of the European Social Charter (revised), not yet ratified by Turkey, contains the following provision concerning the right to bargain collectively:\n\n“With a view to ensuring the effective exercise of the right to bargain collectively, the Parties undertake:\n\n1.  to promote joint consultation between workers and employers;\n\n2.  to promote, where necessary and appropriate, machinery for voluntary negotiations between employers or employers’ organisations and workers’ organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements;\n\n3.  to promote the establishment and use of appropriate machinery for conciliation and voluntary arbitration for the settlement of labour disputes;\n\nand recognise:\n\n4.  the right of workers and employers to collective action in cases of conflicts of interest, including the right to strike, subject to obligations that might arise out of collective agreements previously entered into.”\n\n50.  According to the meaning attributed by the Charter’s Committee of Independent Experts (now the European Committee of Social Rights) to Article 6 § 2 of the Charter, which in fact fully applies to public officials, States which impose restrictions on collective bargaining in the public sector have an obligation, in order to comply with this provision, to arrange for the involvement of staff representatives in the drafting of the applicable employment regulations (see, for example, in respect of Germany, Conclusions III, pp. 34-35).\n\n51.  Article 28 of the European Union’s Charter of Fundamental Rights provides as follows:\n\nRight of collective bargaining and action\n\n“Workers and employers, or their respective organisations, have, in accordance with Community law and national laws and practices, the right to negotiate and conclude collective agreements at the appropriate levels and, in cases of conflicts of interest, to take collective action to defend their interests, including strike action.”\n\n52.  As to the practice of European States, it can be observed that, in the vast majority of them, the right for public servants to bargain collectively with the authorities has been recognised, subject to various exceptions so as to exclude certain areas (disciplinary procedures, pensions, medical insurance, wages of senior civil servants) or certain categories of civil servants who hold exclusive powers of the State (members of the armed forces and of the police, judges, diplomats, career civil servants at federal level). The right of public servants working for local authorities and not holding State powers to engage in collective bargaining in order to determine their wages and working conditions has been recognised in the vast majority of Contracting States. The remaining exceptions can be justified by particular circumstances.\n\nTHE LAW\n\nI.  THE GOVERNMENT’S PRELIMINARY OBJECTIONS\n\n53.  The Government raised two objections to admissibility before the Grand Chamber: one to the effect that it was impossible to rely against them on international instruments other than the Convention, particularly instruments that Turkey had not ratified; and the other to the effect that Article 11 of the Convention was not applicable to the applicants as they were civil servants and not ordinary contractual employees.\n\n54.  As to the first objection, the Government contended that the Court, by means of an interpretation of the Convention, could not create for Contracting States new obligations that were not provided for in the Convention. In particular, considering that the Chamber had attached great importance to the European Social Charter (Articles 5 and 6 of which had not been ratified by Turkey) and to the case-law of its supervisory organ, they requested the Grand Chamber to declare the application inadmissible as being incompatible ratione materiae with the Convention, in view of the impossibility of relying against the Government on international instruments that Turkey had not ratified.\n\n55.  As to the second objection, the Government, relying for the most part on the restriction provided for in the last sentence of Article 11 of the Convention in respect of the applicability of this provision to “members ... of the administration of the State”, argued that Turkish civil servants, including municipal civil servants, were covered by a specific and highly detailed set of legal rules under the Public Service Act (Law no. 657), thus being distinguished from other employees. The Government requested the Court to dismiss the application as being incompatible ratione materiae with the provisions of Article 11.\n\n56.  The applicants disputed the objections submitted by the Government.\n\n57.  The Court observes that the Government’s objection to the Court’s consideration of the European Social Charter cannot be regarded as a preliminary objection. Even supposing that the Government’s objection was well-founded, an application does not become inadmissible solely by the effect of instruments in the light of which a Section of the Court has assessed its merits. In reality, this objection by the Government relates more to the examination of the substantive questions raised by the case and will be dealt with in that context.\n\n58.  As to the objection concerning the scope of the Convention ratione materiae, the Court first observes that the Government are not estopped from raising it since they submitted before the Chamber, prior to the examination of admissibility, an essentially similar argument. That being said, the Court notes that, even if there had been estoppel, it could not have avoided examining this issue, which goes to its jurisdiction, the extent of which is determined by the Convention itself, in particular by Article 32, and not by the parties’ submissions in a particular case (see, mutatis mutandis, Blečić v. Croatia [GC], no. 59532/00, §§ 63-69, ECHR 2006III).\n\nThis objection by the Government nevertheless requires the Court to examine the notion of “members ... of the administration of the State”, which appears in the last sentence of Article 11. The Court therefore finds it appropriate to join it to the merits.\n\nII.  ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION\n\n59.  The applicants complained that the domestic courts had denied them the right to form trade unions and to enter into collective agreements. In this connection they relied on Article 11 of the Convention, which reads as follows:\n\n“1.  Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.\n\n2.  No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”\n\nA.  Interpretation of the Convention in the light of other international instruments\n\n60.  The Court decided above to examine at the merits stage the Government’s submission to the effect that, in adjudicating a case, it was impossible to rely against Turkey on international instruments other than the Convention, particularly instruments that Turkey had not ratified. As it relates more to the methodology to be adopted in an examination of the merits of the complaints submitted under Article 11 of the Convention, the Court considers it necessary to dispose of this submission before turning to any other question.\n\n1.  The parties’ submissions\n\n(a)  The Government\n\n61.  The Government argued that the Court was not entitled to create, by way of interpretation, any new obligations not already provided for in the Convention. They contended, among other submissions, that an international treaty to which the party concerned had not acceded, could not be relied on against it. While the Government accepted that the Court had always taken into account, where necessary, “any relevant rules of international law applicable in the relations between the parties” (see AlAdsani v. the United Kingdom [GC], no. 35763/97, § 55, ECHR 2001XI), they considered that this approach was only legitimate if it complied with the criteria set out in Article 31 § 3 of the Vienna Convention on the Law of Treaties (“the Vienna Convention”), and, in particular, if account was taken only of those instruments by which the State concerned was bound.\n\n62.  Turkey was not a party to Article 5 (the right to organise) or Article 6 (the right to bargain collectively) of the European Social Charter, which it ratified in 1989. An interpretation that rendered these provisions binding on an indirect basis was even more problematic where, as in the present case, the absence in the Convention of an express provision guaranteeing the right to enter into collective agreements was counterbalanced by consideration of other instruments to which the State concerned was not a party.\n\n(b)  The applicants\n\n63.  The applicants criticised the manner in which the Government had raised the question concerning interpretation of the Convention. They pointed out that the Chamber had not applied the above-mentioned provisions of the European Social Charter in the present case, but that it had taken into account, in its interpretation of Article 11 of the Convention, an opinion of the Committee of Independent Experts (now called the European Committee of Social Rights) concerning the connection between the right to organise and collective bargaining.\n\n2.  The Chamber\n\n64.  The Chamber did not have cause to rule on the objection in question. It referred, as a supplementary argument, to the opinion of the European Social Charter’s Committee of Independent Experts when pointing out the organic link between freedom of association and freedom to bargain collectively (see Demir and Baykara v. Turkey, no. 34503/97, § 35, 21 November 2006). In its judgment, the Chamber used references to conventions of the International Labour Organisation (ILO) in assessing whether the impugned measure was necessary in a democratic society, and, in particular, whether the trade union Tüm Bel Sen had been acting in good faith when it chose collective bargaining as a means to defend its members’ interests (ibid., § 46).\n\n3.  The practice of interpreting Convention provisions in the light of other international texts and instruments\n\n(a)  Basis\n\n65.  In order to determine the meaning of the terms and phrases used in the Convention, the Court is guided mainly by the rules of interpretation provided for in Articles 31 to 33 of the Vienna Convention (see, for example, Golder v. the United Kingdom, 21 February 1975, § 29, Series A no. 18; Johnston and Others v. Ireland, 18 December 1986, §§ 51 et seq., Series A no. 112; Lithgow and Others v. the United Kingdom, 8 July 1986, §§ 114 and 117, Series A no. 102; and Witold Litwa v. Poland, no. 26629/95, §§ 57-59, ECHR 2000III). In accordance with the Vienna Convention, the Court is required to ascertain the ordinary meaning to be given to the words in their context and in the light of the object and purpose of the provision from which they are drawn (see Golder, cited above, § 29; Johnston and Others, cited above, § 51; and Article 31 § 1 of the Vienna Convention). Recourse may also be had to supplementary means of interpretation, either to confirm a meaning determined in accordance with the above steps, or to establish the meaning where it would otherwise be ambiguous, obscure, or manifestly absurd or unreasonable (see Article 32 of the Vienna Convention, and Saadi v. the United Kingdom [GC], no. 13229/03, § 62, ECHR 2008I).\n\n66.  Since the Convention is first and foremost a system for the protection of human rights, the Court must interpret and apply it in a manner which renders its rights practical and effective, not theoretical and illusory. The Convention must also be read as a whole, and interpreted in such a way as to promote internal consistency and harmony between its various provisions (see, among other authorities, Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, §§ 47-48, ECHR 2005X).\n\n67.  In addition, the Court has never considered the provisions of the Convention as the sole framework of reference for the interpretation of the rights and freedoms enshrined therein. On the contrary, it must also take into account any relevant rules and principles of international law applicable in relations between the Contracting Parties (see Saadi, cited above, § 62; Al-Adsani, cited above, § 55; Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], no. 45036/98, § 150, ECHR 2005VI; and Article 31 § 3 (c) of the Vienna Convention).\n\n68.  The Court further observes that it has always referred to the “living” nature of the Convention, which must be interpreted in the light of present-day conditions, and that it has taken account of evolving norms of national and international law in its interpretation of Convention provisions (see Soering v. the United Kingdom, 7 July 1989, § 102, Series A no. 161; Vo v. France [GC], no. 53924/00, § 82, ECHR 2004VIII; and Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 121, ECHR 2005I).\n\n(b)  Diversity of international texts and instruments used for the interpretation of the Convention\n\n69.  The precise obligations that the substantive provisions of the Convention impose on Contracting States may be interpreted, firstly, in the light of relevant international treaties that are applicable in the particular sphere (thus, for example, the Court has interpreted Article 8 of the Convention in the light of the United Nations Convention on the Rights of the Child of 20 November 1989 and the European Convention on the Adoption of Children of 24 April 1967 – see Pini and Others v. Romania, nos. 78028/01 and 78030/01, §§ 139 and 144, ECHR 2004V, and Emonet and Others v. Switzerland, no. 39051/03, §§ 65-66, 13 December 2007).\n\n70.  In another case where reference was made to international treaties other than the Convention, the Court, in order to establish the State’s positive obligation concerning “the prohibition on domestic slavery” took into account the provisions of universal international conventions (the ILO Forced Labour Convention; the United Nations Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery; and the United Nations Convention on the Rights of the Child – see Siliadin v. France, no. 73316/01, §§ 85-87, ECHR 2005VII). After referring to the relevant provisions of these international instruments, the Court considered that limiting the question of compliance with Article 4 of the Convention only to direct action by the State authorities would be inconsistent with the international instruments specifically concerned with this issue and would amount to rendering it ineffective (ibid., § 89).\n\n71.  Moreover, as the Court indicated in the Golder case (cited above, § 35), the relevant rules of international law applicable in the relations between the parties also include “general principles of law recognised by civilized nations” (see Article 38 § 1 (c) of the Statute of the International Court of Justice). The Legal Committee of the Consultative Assembly of the Council of Europe foresaw in August 1950 that “the Commission and the Court [would] necessarily [have to] apply such principles” in the execution of their duties and thus considered it to be “unnecessary” to insert a specific clause to this effect in the Convention (Documents of the Consultative Assembly, working papers of the 1950 session, vol. III, no. 93, p. 982, paragraph 5).\n\n72.  In the Soering judgment (cited above), the Court took into consideration the principles laid down by texts of universal scope in developing its case-law concerning Article 3 of the Convention in respect of extradition to third countries. Firstly, it considered, with reference to the 1966 International Covenant on Civil and Political Rights and the 1969 American Convention on Human Rights, that the prohibition of treatment contrary to Article 3 of the Convention had become an internationally accepted standard. Secondly, it considered that the fact that the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment prohibited the extradition of a person to another State where he would be in danger of being subjected to torture did not mean that an essentially similar obligation was not already inherent in the general terms of Article 3 of the European Convention.\n\n73.  Furthermore, the Court found in its Al-Adsani judgment, with reference to universal instruments (Article 5 of the Universal Declaration of Human Rights, Article 7 of the International Covenant on Civil and Political Rights, Articles 2 and 4 of the United Nations Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment) and their interpretation by international criminal courts (judgment of the International Criminal Tribunal for the Former Yugoslavia in Prosecutor v. Furundzija, 10 December 1998) and domestic courts (judgment of the House of Lords in Regina v. Bow Street Metropolitan Stipendiary Magistrate and Others, ex parte Pinochet (No. 3)), that the prohibition of torture had attained the status of a peremptory norm of international law, or jus cogens, which it incorporated into its case-law in this sphere (see Al-Adsani, cited above, § 60).\n\n74.  In a number of judgments the Court has used, for the purpose of interpreting the Convention, intrinsically non-binding instruments of Council of Europe organs, in particular recommendations and resolutions of the Committee of Ministers and the Parliamentary Assembly (see, among other authorities, Öneryıldız v. Turkey [GC], no. 48939/99, §§ 59, 71, 90 and 93, ECHR 2004XII).\n\n75.  These methods of interpretation have also led the Court to support its reasoning by reference to norms emanating from other Council of Europe organs, even though those organs have no function of representing States Parties to the Convention, whether supervisory mechanisms or expert bodies. In order to interpret the exact scope of the rights and freedoms guaranteed by the Convention, the Court has, for example, made use of the work of the European Commission for Democracy through Law (“the Venice Commission”) (see, among other authorities, Russian Conservative Party of Entrepreneurs and Others v. Russia, nos. 55066/00 and 55638/00, §§ 70-73, 11 January 2007; Basque Nationalist Party – Iparralde Regional Organisation v. France, no. 71251/01, §§ 45-52, ECHR 2007II; and Çiloğlu and Others v. Turkey, no. 73333/01, § 17, 6 March 2007), of that of the European Commission against Racism and Intolerance (see, for example, Bekos and Koutropoulos v. Greece, no. 15250/02, §§ 3336, ECHR 2005XIII; Ivanova v. Bulgaria, no. 52435/99, §§ 65-66, 12 April 2007; Cobzaru v. Romania, no. 48254/99, §§ 49-50, 26 July 2007; and D.H. and Others v. the Czech Republic [GC], no. 57325/00, §§ 59-65, 184, 192, 200 and 205, ECHR 2007IV) and of the reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (see, for example, Aerts v. Belgium, 30 July 1998, § 42, Reports of Judgments and Decisions 1998V; Slimani v. France, no. 57671/00, §§ 22 et seq., ECHR 2004IX; Nazarenko v. Ukraine, no. 39483/98, §§ 94-102, 29 April 2003; Kalashnikov v. Russia, no. 47095/99, § 97, ECHR 2002VI; and Kadiķis v. Latvia (no. 2), no. 62393/00, § 52, 4 May 2006).\n\n76.  The Court recently confirmed, in its Saadi judgment (cited above, § 63), that when it considers the object and purpose of the Convention provisions, it also takes into account the international law background to the legal question before it. Being made up of a set of rules and principles that are accepted by the vast majority of States, the common international or domestic law standards of European States reflect a reality that the Court cannot disregard when it is called upon to clarify the scope of a Convention provision that more conventional means of interpretation have not enabled it to establish with a sufficient degree of certainty.\n\n77.  By way of example, in finding that the right to organise had a negative aspect which excluded closed-shop agreements, the Court considered, largely on the basis of the European Social Charter and the case-law of its supervisory organs, together with other European or universal instruments, that there was a growing measure of agreement on the subject at international level (see Sigurður A. Sigurjónsson v. Iceland, 30 June 1993, § 35, Series A no. 264, and Sørensen and Rasmussen v. Denmark [GC], nos. 52562/99 and 52620/99, §§ 72-75, ECHR 2006I).\n\n78.  The Court observes in this connection that in searching for common ground among the norms of international law it has never distinguished between sources of law according to whether or not they have been signed or ratified by the respondent State.\n\n79.  Thus, in the Marckx v. Belgium case, concerning the legal status of children born out of wedlock, the Court based its interpretation on two international conventions of 1962 and 1975 that Belgium, like other States Parties to the Convention, had not yet ratified at the time (see Marckx v. Belgium, 13 June 1979, §§ 20 and 41, Series A no. 31). The Court considered that the small number of ratifications of these instruments could not be relied on in opposition to the continuing evolution of the domestic law of the great majority of the member States, together with the relevant international instruments, towards full juridical recognition of the maxim “mater semper certa est”.\n\n80.  Moreover, in the cases of Christine Goodwin v. the United Kingdom ([GC], no. 28957/95, ECHR 2002VI), Vilho Eskelinen and Others v. Finland ([GC], no. 63235/00, ECHR 2007II) and Sørensen and Rasmussen (cited above), the Court was guided by the European Union’s Charter of Fundamental Rights, even though this instrument was not binding. Furthermore, in the cases of McElhinney v. Ireland ([GC], no. 31253/96, ECHR 2001XI), Al-Adsani (cited above) and Fogarty v. the United Kingdom ([GC], no. 37112/97, ECHR 2001XI), the Court took note of the European Convention on State Immunity, which had only been ratified at the time by eight member States.\n\n81.  In addition, in its Glass v. the United Kingdom judgment, the Court took account, in interpreting Article 8 of the Convention, of the standards enshrined in the Oviedo Convention on Human Rights and Biomedicine of 4 April 1997, even though that instrument had not been ratified by all the States Parties to the Convention (see Glass v. the United Kingdom, no. 61827/00, § 75, ECHR 2004II).\n\n82.  In order to determine the criteria for State responsibility under Article 2 of the Convention in respect of dangerous activities, the Court, in the Öneryıldız judgment, referred among other texts to the Convention on Civil Liability for Damage resulting from Activities Dangerous to the Environment (ETS no. 150 – Lugano, 21 June 1993) and the Convention on the Protection of the Environment through Criminal Law (ETS no. 172 – Strasbourg, 4 November 1998). The majority of member States, including Turkey, had neither signed nor ratified these two conventions (see Öneryıldız, cited above, § 59).\n\n83.  In the Taşkın and Others v. Turkey case, the Court built on its caselaw concerning Article 8 of the Convention in matters of environmental protection (an aspect regarded as forming part of the individual’s private life) largely on the basis of principles enshrined in the United Nations Economic Commission for Europe’s Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (ECE/CEP/43) (see Taşkın and Others v. Turkey, no. 49517/99, §§ 99 and 119, 4 December 2003). Turkey had not signed the Aarhus Convention.\n\n84.  The Court notes that the Government further invoked the absence of political support on the part of member States, in the context of the work of the Steering Committee for Human Rights, for the creation of an additional protocol to extend the Convention system to certain economic and social rights. The Court observes, however, that this attitude of member States was accompanied, as acknowledged by the Government, by a wish to strengthen the mechanism of the European Social Charter. The Court regards this as an argument in support of the existence of a consensus among Contracting States to promote economic and social rights. It is not precluded from taking this general wish of Contracting States into consideration when interpreting the provisions of the Convention.\n\n4.  Conclusion\n\n85.  The Court, in defining the meaning of terms and notions in the text of the Convention, can and must take into account elements of international law other than the Convention, the interpretation of such elements by competent organs, and the practice of European States reflecting their common values. The consensus emerging from specialised international instruments and from the practice of Contracting States may constitute a relevant consideration for the Court when it interprets the provisions of the Convention in specific cases.\n\n86.  In this context, it is not necessary for the respondent State to have ratified the entire collection of instruments that are applicable in respect of the precise subject matter of the case concerned. It will be sufficient for the Court that the relevant international instruments denote a continuous evolution in the norms and principles applied in international law or in the domestic law of the majority of member States of the Council of Europe and show, in a precise area, that there is common ground in modern societies (see, mutatis mutandis, Marckx, cited above, § 41).\n\nB.  The right for municipal civil servants to form trade unions\n\n1.  The Chamber judgment\n\n87.  The Chamber considered that it had not been shown before it that the absolute prohibition on forming trade unions imposed on civil servants by Turkish law, as it was applied at the material time, met a “pressing social need”. It found that the mere fact that the “legislation [had] not provide[d] for such a possibility” was not sufficient to warrant a measure as radical as the dissolution of a trade union.\n\n88.  Referring to the judgment in Tüm Haber Sen and Çınar v. Turkey (no. 28602/95, §§ 36-39, ECHR 2006II), the Chamber considered that, absent any concrete evidence to show that the activities of the trade union Tüm Bel Sen represented a threat to society or to the State, the respondent State, in refusing to recognise the legal personality of the applicants’ union, had failed to comply with its obligation to secure the enjoyment of the rights enshrined in Article 11 of the Convention. It held that there had been a violation of Article 11 of the Convention on this point.\n\n2.  The parties’ submissions\n\n(a)  The Government\n\n89.  Before the Grand Chamber, the Government raised a plea of incompatibility ratione materiae with the provisions of the Convention: Article 11 of the Convention not being applicable to “members ... of the administration of the State”, it could not be applied to the applicants in the present case as they belonged to that category of worker. The Court has decided to join this objection to the merits (see paragraph 58 above).\n\n90.  In support of their argument, the Government observed that all public officials in Turkey were covered by a specific set of rules. The situation of municipal civil servants was no different from that of other civil servants, as local-government bodies were clearly governmental organisations performing public duties.\n\n91.  The Government were of the opinion that it was impossible to render ineffective, by means of interpretation or use of case-law, the express terms of Article 11 in fine, which authorised States to impose, in respect of members of the armed forces, the police or the administration of the State, restrictions other than those that had to pass the test of necessity in a democratic society.\n\n92.  The Government further argued before the Grand Chamber that the judgment of the Court of Cassation of 6 December 1995 had had no repercussions on the intensive union activities of the trade union Tüm Bel Sen, because it had subsequently displayed an undeniable organisational efficiency and had been able to enter into hundreds of collective agreements, currently for the benefit of some ten thousand municipal employees.\n\n(b)  The applicants\n\n93.  As regards the fact that civil servants were prohibited from forming trade unions, the applicants agreed with the view of the Chamber, but pointed out that their main grievance related to the annulment of the collective agreement. They observed that the prohibition as applied in the present case did not take into account the fact that certain civil servants performed exactly the same work as employees in the private sector.\n\n94.  As to the effects that the Court of Cassation judgment of 6 December 1995 had had on the activities of the trade union Tüm Bel Sen, the applicants observed in the first place that the Ministry of the Interior had brought criminal and civil proceedings, for abuse of authority, against mayors who had entered into collective agreements with trade unions. Even though, more recently, such proceedings had been abandoned, the municipal authorities, fearing fresh proceedings, had ceased to engage in collective bargaining with trade unions. The activities of the trade union Tüm Bel Sen had thus been considerably limited.\n\n95.  The applicants also claimed, in this connection, that the Audit Court, following the Court of Cassation judgment of 6 December 1995, had invalidated the collective agreements signed by the trade union Tüm Bel Sen and that civil servants belonging to the union had had to reimburse all the additional wages or allowances they had received as a result of the defunct agreements. This development, which in itself constituted interference with the trade union’s activities, had also prevented the union from persuading other municipal authorities to sign new collective agreements.\n\n3.  The Court’s assessment\n\n(a)  Can the applicants, as municipal civil servants, be afforded the guarantees of Article 11 of the Convention?\n\n96.  The Court must now deal with the Government’s objection that the application is incompatible ratione materiae with the provisions of the Convention on the ground that Article 11 of the Convention is not applicable to “members ... of the administration of the State”.\n\nIt is true that Article 11 § 2 in fine clearly indicates that the State is bound to respect the freedom of association of its employees, subject to the possible imposition of lawful restrictions on the exercise by members of its armed forces, police or administration of the rights protected in that Article (see Swedish Engine Drivers’ Union v. Sweden, 6 February 1976, § 37, Series A no. 20).\n\n97.  In this connection, the Court considers that the restrictions imposed on the three groups mentioned in Article 11 are to be construed strictly and should therefore be confined to the “exercise” of the rights in question. These restrictions must not impair the very essence of the right to organise. On this point the Court does not share the view of the Commission that the term “lawful” in the second sentence of Article 11 § 2 requires no more than that the restriction in question should have a basis in national law, and not be arbitrary and that it does not entail any requirement of proportionality (see Council of Civil Service Unions et al v. the United Kingdom, no. 11603/85, Commission decision of 20 January 1987, Decisions and Reports 50, p. 228). Moreover, in the Court’s view, it is incumbent on the State concerned to show the legitimacy of any restrictions to such persons’ right to organise. The Court further considers that municipal civil servants, who are not engaged in the administration of the State as such, cannot in principle be treated as “members of the administration of the State” and, accordingly, be subjected on that basis to a limitation of their right to organise and to form trade unions (see, mutatis mutandis, Tüm Haber Sen and Çınar, cited above, §§ 35-40 and 50).\n\n98.  The Court observes that these considerations find support in the majority of the relevant international instruments and in the practice of European States.\n\n99.  While Article 8 § 2 of the International Covenant on Economic, Social and Cultural Rights, which concerns the same subject matter, includes members of the administration of the State among the categories of persons who may be subject to restrictions, Article 22 of the International Covenant on Civil and Political Rights, the wording of which is similar to that of Article 11 of the Convention, provides that the State is entitled to restrict the exercise of the right to freedom of association only of members of the armed forces and of the police, without referring to members of the administration of the State.\n\n100.  The Court points out that the principal instrument guaranteeing, internationally, the right for public officials to form trade unions is ILO Convention No. 87 on Freedom of Association and Protection of the Right to Organise, Article 2 of which provides that all workers, without distinction whatsoever, have the right to establish and to join organisations of their own choosing (see paragraph 37 above).\n\n101.  The Court observes that the right of public officials to join trade unions has been confirmed on a number of occasions by the Committee of Experts on the Application of Conventions and Recommendations. This Committee, in its Individual Observation to the Turkish government concerning ILO Convention No. 87, considered that the only admissible exception to the right to organise as contemplated by that instrument concerned the armed forces and the police (see paragraph 38 above).\n\n102.  The Court further notes that the ILO Committee on Freedom of Association adopted the same line of reasoning as regards municipal civil servants. In the Committee’s view, local public service employees should be able effectively to establish organisations of their own choosing, and these organisations should enjoy the full right to further and defend the interests of the workers whom they represent (see paragraph 39 above).\n\n103.  The instruments emanating from European organisations also show that the principle whereby civil servants enjoy the fundamental right of association has been very widely accepted by the member States. For example, Article 5 of the European Social Charter guarantees the freedom of workers and employers to form local, national or international organisations for the protection of their economic and social interests and to join those organisations. National legislation may impose partial restrictions on the police and total or partial restrictions on members of the armed forces, but no possibility of restriction is provided for in respect of other members of the administration of the State.\n\n104.  The right of association of civil servants has also been recognised by the Committee of Ministers of the Council of Europe in its Recommendation No. R (2000) 6 on the status of public officials in Europe, Principle 8 of which declares that public officials should, in principle, enjoy the same rights as all citizens, and that their trade-union rights should only be lawfully restricted in so far as that is necessary for the proper exercise of their public functions (see paragraph 46 above).\n\n105.  Another European instrument, the European Union’s Charter of Fundamental Rights, has adopted an open approach to the right to organise, declaring, in its Article 12 § 1, among other things, that “everyone” has the right to form and to join trade unions for the protection of his or her interests (see paragraph 47 above).\n\n106.  As to European practice, the Court reiterates that the right of public servants to join trade unions is now recognised by all Contracting States (see paragraph 48 above). This right applies to public servants under a career or contractual system and to employees of publicly owned industrial or commercial enterprises, whether national or municipal. Civil servants, whether they work for central government or a local authority, are generally entitled to join the trade union of their choosing. The Court also takes note of the fact that the density of trade-union membership is generally higher in the public sector than in the private sector, which constitutes a manifest indication of a favourable legal and administrative environment created by member States. In the majority of member States, the few restrictions that can be found are limited to judicial offices, the police and the fire services, with the most stringent restrictions, culminating in the prohibition of union membership, being reserved for members of the armed forces.\n\n107.  The Court concludes from this that “members of the administration of the State” cannot be excluded from the scope of Article 11 of the Convention. At most, the national authorities are entitled to impose “lawful restrictions” on those members, in accordance with Article 11 § 2. In the present case, however, the Government have failed to show how the nature of the duties performed by the applicants, as municipal civil servants, requires them to be regarded as “members of the administration of the State” subject to such restrictions.\n\n108.  Accordingly, the applicants may legitimately rely on Article 11 of the Convention and the objection raised by the Government on this point must therefore be dismissed.\n\n(b)  General principles\n\n109.  The Court reiterates that Article 11 § 1 presents trade-union freedom as one form or a special aspect of freedom of association (see National Union of Belgian Police v. Belgium, 27 October 1975, § 38, Series A no. 19, and Swedish Engine Drivers’ Union, cited above, § 39). The Convention makes no distinction between the functions of a Contracting State as holder of public power and its responsibilities as employer. Article 11 is no exception to that rule. On the contrary, § 2 in fine of this provision clearly indicates that the State is bound to respect freedom of assembly and association, subject to the possible imposition of “lawful restrictions” in the case of members of its armed forces, police or administration (see Tüm Haber Sen and Çınar, cited above, § 29). Article 11 is accordingly binding upon the “State as employer”, whether the latter’s relations with its employees are governed by public or private law (see Swedish Engine Drivers’ Union, cited above, § 37).\n\n110.  The Court further reiterates that, although the essential object of Article 11 is to protect the individual against arbitrary interference by public authorities with the exercise of the rights protected, there may in addition be positive obligations on the State to secure the effective enjoyment of such rights. In the specific context of the present case, the responsibility of Turkey would be engaged if the facts complained of by the applicants – that is to say, principally, the non-recognition of their trade union by the State at the material time – resulted from a failure on its part to secure to the applicants under domestic law the rights set forth in Article 11 of the Convention (see Wilson, National Union of Journalists and Others v. the United Kingdom, nos. 30668/96, 30671/96 and 30678/96, § 41, ECHR 2002-V, and Gustafsson v. Sweden, 25 April 1996, § 45, Reports 1996-II).\n\n111.  However, as the Court has pointed out in the context of Article 8 of the Convention, whether the case is analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the rights of an applicant under the Article or in terms of an interference by a public authority, to be justified in accordance with § 2 of the Article, the applicable principles are broadly similar (see Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 98, ECHR 2003VIII).\n\n(c)  Effects of State action or inaction on Tüm Bel Sen’s activities\n\n112.  The Court must ascertain in the first place whether the Government’s argument that the judgment of the Court of Cassation of 6 December 1995 had no effect on the union activities of Tüm Bel Sen is confirmed by the facts of the case.\n\n113.  It observes in this connection that the said judgment, to the extent that it was found therein that the applicant trade union had not acquired legal personality when it was created and, accordingly, that it was not entitled to take or defend legal proceedings, had two effects on the union’s activities, one retrospective, the other prospective.\n\n114.  The judgment in question had the retrospective effect of rendering null and void ab initio all the activities and actions that Tüm Bel Sen had undertaken between 1991 and 1993 in relation to the Gaziantep Municipal Council for the purpose of protecting its members’ interests, including the collective agreement involved in the present case. That effect was compounded by the decisions of the Audit Court requiring the reimbursement of the advantages obtained by members of the trade union as a result of negotiations with the employing authority.\n\n115.  As to the prospective effect of the judgment in question, the Court regards as credible the applicants’ argument that the trade union Tüm Bel Sen had seen its activities considerably restricted as a result of the reluctance on the part of the heads of local authorities to enter into negotiations with it. It can be seen from the case file, firstly, that heads of municipal authorities who had agreed to grant advantages to civil servants under collective agreements had faced administrative, financial and judicial proceedings prior to the enactment of Law no. 4688 on 25 June 2001, and, secondly, that even after that date they were themselves obliged to reimburse to the State any additional sums that had been paid at the material time and then in turn bring proceedings against the civil servants who had received them.\n\n116.  As noted above (paragraph 88), the Chamber not only considered that there had been an unjustified interference with the rights of the applicants under Article 11 but that, in refusing to recognise the legal personality of the applicants’ trade union, the State had failed to comply with its positive obligation to secure the enjoyment of the rights enshrined in that Article. Like the Chamber, the Grand Chamber considers that the present case can be analysed either as an interference with Article 11 or as a failure by the State to comply with its positive obligation to secure the applicants’ rights under this provision. In the particular circumstances of the present case, the Court considers that both approaches are possible given the mixture of action and inaction on the part of the authorities with which it is confronted. Accordingly, it will proceed on the basis that this part of the case should be analysed from the standpoint of whether there was an interference with the applicants’ rights but it will also have regard to the State’s positive obligations in so doing.\n\n(d)  Compliance with Article 11\n\n117.  Such interference will constitute a breach of Article 11 unless it was “prescribed by law”, pursued one or more legitimate aims and was “necessary in a democratic society” for the achievement of those aims.\n\n118.  The Court notes that the impugned interference was in accordance with the domestic law as interpreted by the combined civil divisions of the Court of Cassation. Moreover, it is not in dispute that the judgment in question, in so far as it sought to prevent discrepancy between legislation and practice, was intended to prevent disorder (see Tüm Haber Sen and Çınar, cited above, §§ 33-34).\n\n119.  As to the necessity of such interference in a democratic society, the Court reiterates that lawful restrictions may be imposed on the exercise of trade-union rights by members of the armed forces, of the police or of the administration of the State. However, it must also be borne in mind that the exceptions set out in Article 11 are to be construed strictly; only convincing and compelling reasons can justify restrictions on such parties’ freedom of association. In determining in such cases whether a “necessity” – and therefore a “pressing social need” – within the meaning of Article 11 § 2 exists, States have only a limited margin of appreciation, which goes hand in hand with rigorous European supervision embracing both the law and the decisions applying it, including those given by independent courts (see, for example, Sidiropoulos and Others v. Greece, 10 July 1998, § 40, Reports 1998IV). The Court must also look at the interference complained of in the light of the case as a whole and determine whether it was “proportionate to the legitimate aim pursued” and whether the reasons adduced by the national authorities to justify it were “relevant and sufficient”. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in the appropriate provision of the Convention and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see, for example, Yazar and Others v. Turkey, nos. 22723/93, 22724/93 and 22725/93, § 51, ECHR 2002II).\n\n120.  As to whether, in the present case, the non-recognition of the applicants’ trade union was justified by a “pressing social need”, the Grand Chamber endorses the following assessment of the Chamber:\n\n“... it has not been shown before it that the absolute prohibition on forming trade unions imposed on civil servants ... by Turkish law, as it applied at the material time, met a ‘pressing social need’. The mere fact that the ‘legislation did not provide for such a possibility’ is not sufficient to warrant as radical a measure as the dissolution of a trade union.”\n\n121.  The Court further considers that at the material time there were a number of additional arguments in support of the idea that the non-recognition of the right of the applicants, as municipal civil servants, to form a trade union did not correspond to a “necessity”.\n\n122.  Firstly, the right of civil servants to form and join trade unions was already recognised by instruments of international law, both universal (see paragraphs 98-102 above) and regional (see paragraphs 103-05 above). In addition, an examination of European practice shows that the freedom of association of public officials was generally recognised in all member States (see paragraph 106 above).\n\n123.  Secondly, Turkey had already, at the material time, ratified (by an instrument deposited on 12 July 1993) ILO Convention No. 87, the fundamental text securing, internationally, the right of public officials to form trade unions. This instrument was already, by virtue of the Turkish Constitution, directly applicable in domestic law (see paragraph 34 above).\n\n124.  Lastly, Turkey confirmed, by its subsequent practice, its willingness to recognise the right to organise of civil servants – a willingness already expressed by the ratification of ILO Convention No. 87 in 1993 – by the amendment of the Turkish Constitution in 1995 and by the practice of the judicial organs from the early 1990s onwards. That latter practice is illustrated by the decisions taken in the present case by the District Court and the Fourth Civil Division of the Court of Cassation. Moreover, in 2000 Turkey signed the two United Nations instruments recognising the right in question (see paragraphs 40 and 41 above).\n\n125.  The Court observes that, in spite of these developments in international law, the Turkish authorities were unable to secure to the applicants the right to form a trade union, mainly for two reasons. Firstly, the Turkish legislature, after the ratification in 1993 of ILO Convention No. 87 by Turkey, did nothing more until 2001, the year in which it enacted the Civil Servants’ Trade Union Act (Law no. 4688), which governs the practical application of this right. Secondly, during this transitional period, the combined civil divisions of the Court of Cassation refused to follow the solution proposed by the Gaziantep District Court, which had been guided by developments in international law, and gave a restrictive and formalistic interpretation of the domestic legislation concerning the forming of legal entities. This interpretation prevented the combined civil divisions from assessing the specific circumstances of the case and from ascertaining whether a fair balance had been struck between the respective interests of the applicants and of the employing authority, Gaziantep Municipal Council (see, mutatis mutandis, Sørensen and Rasmussen, cited above, § 58).\n\n126.  The Court thus considers that the combined effect of the restrictive interpretation by the Court of Cassation and the legislature’s inactivity between 1993 and 2001 prevented the State from fulfilling its obligation to secure to the applicants the enjoyment of their trade-union rights and cannot be justified as “necessary in a democratic society” within the meaning of Article 11 § 2 of the Convention.\n\n127.  Accordingly, there has been a violation of Article 11 of the Convention on account of the failure to recognise the right of the applicants, as municipal civil servants, to form a trade union.\n\nC.  Annulment of a collective agreement between the trade union Tüm Bel Sen and the authority which had been applied for the previous two years\n\n1.  The Chamber judgment\n\n128.  The Chamber examined this point separately from the complaint concerning the refusal of the Court of Cassation to recognise the right of civil servants to form trade unions.\n\n129.  As to the question whether there had been a breach of the applicants’ trade-union rights, the Chamber considered that the Court’s case-law did not exclude the possibility that the right to enter into a collective agreement might represent, in the particular circumstances of a case, one of the principal means – even the foremost of such means – for trade unionists to protect their interests. It noted the organic link between freedom of association and freedom to bargain collectively, as previously referred to by the European Social Charter’s Committee of Independent Experts.\n\n130.  The Chamber, after observing that, in the present case, the trade union Tüm Bel Sen had persuaded the authority to engage in collective bargaining and to enter into a collective agreement, and that this agreement had for a period of two years governed all working relations between municipal-council staff and their employer, considered that this collective agreement represented for the trade union the principal, if not only, means of promoting and safeguarding its members’ interests (see §§ 30-40 of the Chamber judgment).\n\n131.  The Chamber also considered that the interference in question was prescribed by law and that the prevention of discrepancy between practice and the current domestic law could be regarded as a legitimate aim within the meaning of Article 11 § 2 (see § 42 of the Chamber judgment). As regards the justification for the interference, the Chamber found that no pressing need in this connection had been shown by the Government. It also found that Turkey had failed in its positive obligation under Article 11 to assist the applicants’ trade union in defending its members’ interests.\n\n2.  The parties’ observations\n\n132.  The parties agreed that the Grand Chamber had to examine the complaint concerning the annulment of the collective agreement separately from the complaint concerning the applicants’ right to form trade unions.\n\n(a)  The Government\n\n133.  The Government argued that the complaint relating to the annulment of the collective agreement had to be examined separately, in so far as, in their opinion, it raised separate legal questions from those raised by the applicants’ right to form a trade union.\n\n134.  In the Government’s opinion, it was not appropriate to modify the case-law established in the 1970s to the effect that the right to enter into collective agreements was not a right guaranteed as such by Article 11. Going beyond the early classical cases of National Union of Belgian Police or Swedish Engine Drivers’ Union (cited above), this case-law had been reiterated more recently in inadmissibility decisions (see Francesco Schettini and Others v. Italy (dec.), no. 29529/95, 9 November 2000, and UNISON v. the United Kingdom (dec.), no. 53574/99, ECHR 2002I).\n\n135.  The Government pointed out in this connection that trade-union rights could be implemented in a number of different forms and they argued that the State was free to select those that were to be used by trade unions. They claimed that it was not for the Court to impose any particular form on Contracting States for the purposes of Article 11.\n\n136.  They contended, moreover, that it was impossible to establish a common European practice as regards the right of civil servants to enter into collective agreements. In certain Contracting States, only contractual State employees (as opposed to career civil servants) enjoyed such a right, while in others only those civil servants who held senior posts were excluded.\n\n137.  Lastly, the Government considered that the ILO conventions ratified by Turkey were not pertinent in the context of Article 11 of the Convention. They argued that the Court should not make use of them to create new rights that could be relied upon under the Convention.\n\n(b)  The applicants\n\n138.  The applicants explained that their principal complaint concerned the annulment of the collective agreement between them and the Gaziantep Municipal Council. They stated that they shared the Chamber’s analysis of this question, while pointing out that the Court of Cassation’s position totally disregarded their rights in this connection.\n\n139.  They further agreed with the concurring opinion of three judges in the Chamber who had stated that the right to bargain collectively should be regarded nowadays as one of the essential elements inherent in the right to form trade unions, within the meaning of Article 11 of the Convention.\n\n3.  Whether there was interference\n\n(a)  General principles concerning the substance of the right of association\n\n140.  The development of the Court’s case-law concerning the constituent elements of the right of association can be summarised as follows: the Court has always considered that Article 11 of the Convention safeguards freedom to protect the occupational interests of trade-union members by the union’s collective action, the conduct and development of which the Contracting States must both permit and make possible (see National Union of Belgian Police, cited above, § 39; Swedish Engine Drivers’ Union, cited above, § 40; and Schmidt and Dahlström v. Sweden, 6 February 1976, § 36, Series A no. 21).\n\n141.  As to the substance of the right of association enshrined in Article 11 of the Convention, the Court has taken the view that § 1 of that Article affords members of a trade union a right, in order to protect their interests, that the trade union should be heard, but has left each State a free choice of the means to be used towards this end. What the Convention requires, in the Court’s view, is that under national law trade unions should be enabled, in conditions not at variance with Article 11, to strive for the protection of their members’ interests (see National Union of Belgian Police, cited above, § 39; Swedish Engine Drivers’ Union, cited above, § 40; and Schmidt and Dahlström, cited above, § 36).\n\n142.  As regards the right to enter into collective agreements, the Court initially considered that Article 11 did not secure any particular treatment of trade unions, such as a right for them to enter into collective agreements (see Swedish Engine Drivers’ Union, cited above, § 39). It further stated that this right in no way constituted an element necessarily inherent in a right guaranteed by the Convention (see Schmidt and Dahlström, cited above, § 34).\n\n143.  Subsequently, in the case of Wilson, National Union of Journalists and Others, the Court considered that even if collective bargaining was not indispensable for the effective enjoyment of trade-union freedom, it might be one of the ways by which trade unions could be enabled to protect their members’ interests. The union had to be free, in one way or another, to seek to persuade the employer to listen to what it had to say on behalf of its members (ibid., § 44).\n\n144.  As a result of the foregoing, the evolution of case-law as to the substance of the right of association enshrined in Article 11 is marked by two guiding principles: firstly, the Court takes into consideration the totality of the measures taken by the State concerned in order to secure trade-union freedom, subject to its margin of appreciation; secondly, the Court does not accept restrictions that affect the essential elements of trade-union freedom, without which that freedom would become devoid of substance. These two principles are not contradictory but are correlated. This correlation implies that the Contracting State in question, while in principle being free to decide what measures it wishes to take in order to ensure compliance with Article 11, is under an obligation to take account of the elements regarded as essential by the Court’s case-law.\n\n145.  From the Court’s case-law as it stands, the following essential elements of the right of association can be established: the right to form and join a trade union (see, as a recent authority, Tüm Haber Sen and Çınar, cited above), the prohibition of closed-shop agreements (see, for example, Sørensen and Rasmussen, cited above) and the right for a trade union to seek to persuade the employer to hear what it has to say on behalf of its members (see Wilson, National Union of Journalists and Others, cited above, § 44).\n\n146.  This list is not finite. On the contrary, it is subject to evolution depending on particular developments in labour relations. In this connection, it is appropriate to remember that the Convention is a living instrument which must be interpreted in the light of present-day conditions, and in accordance with developments in international law, so as to reflect the increasingly high standard being required in the area of the protection of human rights, thus necessitating greater firmness in assessing breaches of the fundamental values of democratic societies. In other words, limitations to rights must be construed restrictively, in a manner which gives practical and effective protection to human rights (see, mutatis mutandis, Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, § 100, ECHR 2003II, and Selmouni v. France [GC], no. 25803/94, § 101, ECHR 1999V).\n\n147.  The Court observes that in international law, the right to bargain collectively is protected by ILO Convention No. 98 concerning the Right to Organise and to Bargain Collectively. Adopted in 1949, this text, which is one of the fundamental instruments concerning international labour standards, was ratified by Turkey in 1952. It states in Article 6 that it does not deal with the position of “public servants engaged in the administration of the State”. However, the ILO Committee of Experts interpreted this provision as excluding only those officials whose activities were specific to the administration of the State. With that exception, all other persons employed by government, by public enterprises or by autonomous public institutions should benefit, according to the Committee, from the guarantees provided for in Convention No. 98 in the same manner as other employees, and consequently should be able to engage in collective bargaining in respect of their conditions of employment, including wages (see paragraph 43 above).\n\n148.  The Court further notes that ILO Convention No. 151 (which was adopted in 1978, entered into force in 1981 and has been ratified by Turkey) on labour relations in the public service (“Convention No. 151 concerning Protection of the Right to Organise and Procedures for Determining Conditions of Employment in the Public Service”) leaves States free to choose whether or not members of the armed forces or of the police should be accorded the right to take part in the determination of working conditions, but provides that this right applies everywhere else in the public service, if need be under specific conditions. In addition, the provisions of Convention No. 151, under its Article 1 § 1, cannot be used to reduce the extent of the guarantees provided for in Convention No. 98 (see paragraph 44 above).\n\n149.  As to European instruments, the Court finds that the European Social Charter, in its Article 6 § 2 (which Turkey has not ratified), affords to all workers, and to all trade unions, the right to bargain collectively, thus imposing on the public authorities the corresponding obligation to promote actively a culture of dialogue and negotiation in the economy, so as to ensure broad coverage for collective agreements. The Court observes, however, that this obligation does not oblige authorities to enter into collective agreements. According to the meaning attributed by the ECSR to Article 6 § 2 of the Charter, which in fact fully applies to public officials, States which impose restrictions on collective bargaining in the public sector have an obligation, in order to comply with this provision, to arrange for the involvement of staff representatives in the drafting of the applicable employment regulations.\n\n150.  As to the European Union’s Charter of Fundamental Rights, which is one of the most recent European instruments, it provides in Article 28 that workers and employers, or their respective organisations, have, in accordance with Community law and national laws and practices, the right to negotiate and conclude collective agreements at the appropriate levels.\n\n151.  As to the practice of European States, the Court reiterates that, in the vast majority of them, the right of civil servants to bargain collectively with the authorities has been recognised, subject to various exceptions so as to exclude certain areas regarded as sensitive or certain categories of civil servants who hold exclusive powers of the State. In particular, the right of public servants employed by local authorities and not holding State powers to engage in collective bargaining in order to determine their wages and working conditions has been recognised in the majority of Contracting States. The remaining exceptions can be justified only by particular circumstances (see paragraph 52 above).\n\n152.  It is also appropriate to take into account the evolution in the Turkish situation since the application was lodged. Following its ratification of ILO Convention No. 87 on Freedom of Association and Protection of the Right to Organise, Turkey amended, in 1995, Article 53 of its Constitution by inserting a paragraph providing for the right of trade unions formed by public officials to take or defend court proceedings and to engage in collective bargaining with authorities. Later on, Law no. 4688 of 25 June 2001 laid down the terms governing the exercise by civil servants of their right to bargain collectively.\n\n153.  In the light of these developments, the Court considers that its caselaw to the effect that the right to bargain collectively and to enter into collective agreements does not constitute an inherent element of Article 11 (see Swedish Engine Drivers’ Union, cited above, § 39, and Schmidt and Dahlström, cited above, § 34) should be reconsidered, so as to take account of the perceptible evolution in such matters, in both international law and domestic legal systems. While it is in the interests of legal certainty, foreseeability and equality before the law that the Court should not depart, without good reason, from precedents established in previous cases, a failure by the Court to maintain a dynamic and evolutive approach would risk rendering it a bar to reform or improvement (see Vilho Eskelinen and Others, cited above, § 56).\n\n154.  Consequently, the Court considers that, having regard to the developments in labour law, both international and national, and to the practice of Contracting States in such matters, the right to bargain collectively with the employer has, in principle, become one of the essential elements of the “right to form and to join trade unions for the protection of [one’s] interests” set forth in Article 11 of the Convention, it being understood that States remain free to organise their system so as, if appropriate, to grant special status to representative trade unions. Like other workers, civil servants, except in very specific cases, should enjoy such rights, but without prejudice to the effects of any “lawful restrictions” that may have to be imposed on “members of the administration of the State” within the meaning of Article 11 § 2 – a category to which the applicants in the present case do not, however, belong (see paragraphs 106-07 above).\n\n(b)  Application of the foregoing principles to the present case\n\n155.  In the light of the foregoing principles, the Court considers that the trade union Tüm Bel Sen, already at the material time, enjoyed the right to engage in collective bargaining with the employing authority, which had moreover not disputed that fact. This right constituted one of the inherent elements of the right to engage in trade-union activities, as secured to that union by Article 11 of the Convention.\n\n156.  As to the impugned collective agreement entered into after collective bargaining, the Grand Chamber, like the Chamber, takes note of the following facts:\n\n“In the first place, the trade union Tüm Bel Sen persuaded the employer, Gaziantep Municipal Council, to engage in collective bargaining over questions that it regarded as important for the interests of its members and to reach an agreement in order to determine their reciprocal obligations and duties.\n\nSubsequently, following those negotiations, a collective agreement was entered into between the employer and the union Tüm Bel Sen. All the rights and obligations of its members were provided for and protected under that agreement.\n\nMoreover, the collective agreement was implemented. For a period of two years, with the exception of certain financial provisions that were in dispute between the parties, the collective agreement governed all employer-employee relations within Gaziantep Municipal Council.”\n\n157.  Accordingly, the Court observes that the collective bargaining in the present case and the resulting collective agreement constituted, for the trade union concerned, an essential means to promote and secure the interests of its members. The absence of the legislation necessary to give effect to the provisions of the international labour conventions already ratified by Turkey, and the Court of Cassation judgment of 6 December 1995 based on that absence, with the resulting de facto annulment ex tunc of the collective agreement in question, constituted interference with the applicants’ trade-union freedom as protected by Article 11 of the Convention.\n\n158.  As to the applicants’ arguments concerning the insufficiency of the new legislation with regard to the trade-union rights of civil servants, the Court points out that the object of the present application does not extend to the fact that the new Turkish legislation fails to impose on the authorities an obligation to enter into collective agreements with civil servants’ trade unions, or to the fact that those unions do not have the right to strike in the event that their collective bargaining should prove unsuccessful.\n\n4.  Whether the interference was justified\n\n159.  The Court considers that the interference in question, namely the annulment ex tunc of the collective agreement that the trade union Tüm Bel Sen had entered into following collective bargaining with the authority that employed the applicants, should be regarded as having breached Article 11, unless it can be shown that it was “prescribed by law”, that it pursued one or more legitimate aims, in accordance with § 2, and that it was “necessary in a democratic society” to fulfil such aims.\n\n(a)  Prescription by law\n\n160.  The Government and the applicants agreed with the Chamber’s finding that the interference in question was prescribed by law. For the purposes of the present case, the Grand Chamber can accept that the interference was prescribed by law, as interpreted by the combined civil divisions of the Court of Cassation, the highest judicial body to have ruled on the case.\n\n(b)  Pursuit of a legitimate aim\n\n161.  The Court can also accept, like the Chamber and the parties themselves, that the interference in question, in so far as it aimed to prevent discrepancy between law and practice, pursued a legitimate aim: the prevention of disorder. As to the fact that the risk of such discrepancy was the result of the time taken by the legislature to adapt the legislation to Turkey’s international commitments in the field of international labour standards, the Court considers that its assessment must likewise relate to the question whether such a measure was necessary in a democratic society.\n\n(c)  Necessity in a democratic society\n\n162.  The Court refers in this connection to the case-law set out above concerning the negative and positive obligations imposed on the Government by Article 11 of the Convention (see paragraphs 109-11 above).\n\n163.  As to the application of these principles to the present case, the Court notes that the Government have omitted to show how the impugned restriction was necessary in a democratic society, standing by their principal argument to the effect that the applicants, in their capacity as civil servants, did not have the right to bargain collectively or enter into collective agreements.\n\n164.  The Court, performing its own examination, considers that at the material time a number of elements showed that the refusal to accept that the applicants, as municipal civil servants, enjoyed the right to bargain collectively and thus to persuade the authority to enter into a collective agreement, did not correspond to a “pressing social need”.\n\n165.  Firstly, the right for civil servants to be able, in principle, to bargain collectively, was recognised by international law instruments, both universal (see paragraphs 147-48 above) and regional (see paragraphs 14950 above). Moreover, an examination of European practice shows that this right was recognised in the majority of member States (see paragraphs 52 and 151 above).\n\n166.  Secondly, Turkey had in 1952 ratified ILO Convention No. 98, the principal instrument protecting, internationally, the right for workers to bargain collectively and enter into collective agreements (see paragraphs 42-43 and 151 above). There is no evidence in the case file to show that the applicants’ union represented “public servants engaged in the administration of the State”, that is to say, according to the interpretation of the ILO Committee of Experts, officials whose activities are specific to the administration of the State and who qualify for the exception provided for in Article 6 of ILO Convention No. 98.\n\n167.  In these circumstances, the Grand Chamber shares the following consideration of the Chamber:\n\n“The Court cannot accept that the argument based on an omission in the law – caused by a delay on the part of the legislature – was sufficient in itself to make the annulment of a collective agreement which had been applied for the past two years satisfy the conditions for any restriction of the freedom of association.”\n\n168.  Moreover, the Grand Chamber observes that the Government failed to adduce evidence of any specific circumstances that could have justified the exclusion of the applicants, as municipal civil servants, from the right, inherent in their trade-union freedom, to bargain collectively in order to enter into the agreement in question. The explanation that civil servants, without distinction, enjoy a privileged position in relation to other workers is not sufficient in this context.\n\n169.  The Court thus finds that the impugned interference, namely the annulment ex tunc of the collective agreement entered into by the applicants’ union following collective bargaining with the authority was not “necessary in a democratic society”, within the meaning of Article 11 § 2 of the Convention.\n\n170.  There has therefore been a violation of Article 11 of the Convention on this point also, in respect of both the applicants’ trade union and the applicants themselves.\n\nIII.  ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION\n\n171.  The applicants argued that the restrictions imposed on their freedom to form trade unions and enter into collective agreements constituted a discriminatory distinction for the purposes of Article 14 of the Convention taken in conjunction with Article 11.\n\n172.  However, in view of its findings under Article 11, the Court, as did the Chamber, does not consider it necessary to examine this complaint separately.\n\nIV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n173.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n174.  Before the Chamber, Mr Kemal Demir claimed that he had sustained pecuniary damage in the sum of 551 euros (EUR), on account of the additional pay that he would have received over a thirteen-year period if the collective agreement had not been annulled. He also claimed EUR 14,880 in respect of non-pecuniary damage resulting from his disappointment at being deprived of the means to assert his rights.\n\n175.  Mrs Vicdan Baykara, on behalf of the trade union that she represented and of its members, claimed compensation for non-pecuniary damage in the sum of EUR 148,810.\n\n176.  The Chamber awarded EUR 20,000 in respect of non-pecuniary damage to Mrs Vicdan Baykara, in her capacity as representative of the trade union Tüm Bel Sen, to be shared between the members of the union, together with EUR 500 to Mr Kemal Demir for all heads of damage combined.\n\n177.  The applicants requested the Grand Chamber to award them exactly the same amounts.\n\n178.  The Government disputed these claims. They submitted that there was no causal link between the pecuniary damage alleged by the two applicants and the Court of Cassation judgment in question, which concerned the legal capacity of the trade union Tüm Bel Sen. Moreover, they indicated that no documentary evidence had been adduced in support of the claims submitted on that basis. Lastly, they argued that Mrs Vicdan Baykara, in her capacity as President of the trade union Tüm Bel Sen, had simply been discharging her duty as its representative and on that basis could not receive compensation for non-pecuniary damage.\n\n179.  As to the claim submitted by Mr Kemal Demir in respect of pecuniary damage, the Court considers that the sum which the applicant was obliged to pay back to the State following the annulment of the relevant collective agreement must be returned to him. Admittedly, the claim is not entirely supported by documentary evidence. However, the calculations produced in a simplified form by the applicants enable its accuracy to be verified. Making its assessment on an equitable basis, the Court awards Mr Kemal Demir EUR 500 for all heads of damage combined.\n\n180.  As to the claim submitted in respect of non-pecuniary damage by Mrs Vicdan Baykara on behalf of the trade union she represented, the Court draws attention to its case-law to the effect that the frustration felt by members of an organ that has been dissolved or prevented from acting can be taken into account in this connection (see, for example, Dicle for the Democratic Party (DEP) of Turkey v. Turkey, no. 25141/94, § 78, 10 December 2002, and Presidential Party of Mordovia v. Russia, no. 65659/01, § 37, 5 October 2004). The Court observes that at the material time the trade union Tüm Bel Sen was the principal union of municipal-council staff. Its dissolution and the annulment of its collective agreement with the Gaziantep Municipal Council must have caused deep feelings of frustration among its members, as they were thus deprived of their principal means of defending their occupational interests.\n\n181.  Making its assessment on an equitable basis, the Court awards the sum of EUR 20,000 in respect of non-pecuniary damage to the trade union Tüm Bel Sen. This sum is to be paid to Mrs Vicdan Baykara, who will be responsible for making the sum available to the said trade union.\n\nB.  Costs and expenses\n\n182.  Before the Grand Chamber, as before the Chamber, the applicants did not submit any claim for costs and expenses. The Court thus considers that there is no cause to make any award under this head.\n\nC.  Default interest\n\n183.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Joins to the merits the Government’s preliminary objections and dismisses them;\n\n2.  Holds that there has been a violation of Article 11 of the Convention on account of the interference with the right of the applicants, as municipal civil servants, to form a trade union;\n\n3.  Holds that there has been a violation of Article 11 of the Convention on account of the annulment ex tunc of the collective agreement entered into by the trade union Tüm Bel Sen following collective bargaining with the employing authority;\n\n4.  Holds that it is not necessary to examine separately the complaints submitted under Article 14 of the Convention;\n\n5.  Holds\n\n(a)  that the respondent State is to pay, within three months, the following amounts, to be converted into new Turkish liras at the rate applicable at the date of settlement:\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n6.  Dismisses the remainder of the applicants’ claim for just satisfaction.\n\nDone in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 12 November 2008.\n\nIn accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following opinions are annexed to this judgment:\n\n(a)  separate opinion of Judge Zagrebelsky;\n\n(b)  concurring opinion of Judge Spielmann joined by Judges Bratza, Casadevall and Villiger.\n\nI would like to add to the reasoning in the judgment as regards the right of trade unions to bargain collectively by expounding a few considerations of my own on the subject of the Court’s departures from precedent.\n\n1.  On 6 February 1976 in the case of Swedish Engine Drivers’ Union v. Sweden (Series A no. 20) the Court found in its judgment as follows (§ 39):\n\nThe Court went on to conclude (§ 40):\n\n(see, also, a judgment of the same date, Schmidt and Dahlström v. Sweden, §§ 34-35, Series A no. 21, and National Union of Belgian Police v. Belgium, 27 October 1975, § 39, Series A no. 19).\n\nThis case-law was referred to more recently, without being called into question, in 1996 and 2002, in the Gustafsson v. Sweden judgment (25 April 1996, § 45, Reports of Judgments and Decisions 1996II) and in the Wilson, National Union of Journalists and Others v. the United Kingdom judgment of 2 July 2002 (nos. 30668/96, 30671/96 and 30678/96, § 44, ECHR 2002V).\n\nIn the present judgment, by contrast, the Court has found that “the right to bargain collectively with the employer has, in principle, become one of the essential elements of the ‘right to form and to join trade unions for the protection of [one’s] interests’ set forth in Article 11 of the Convention” (see paragraph 154 of the judgment).\n\n2.  The Court has thus expressly departed from its case-law, taking into account “the perceptible evolution in such matters, in both international law and domestic legal systems” (see paragraph 153 of the judgment). In reality, the new and recent fact that may be regarded as indicating an evolution internationally appears to be only the proclamation (in 2000) of the European Union’s Charter of Fundamental Rights. The evolution of legislation in the various States (see paragraphs 52 and 151 of the judgment) is a more difficult basis on which to assess the time or period from which a significant change became perceptible.\n\nI have the feeling that the Court’s departure from precedent represents a correction of its previous case-law rather than an adaptation of case-law to a real change, at European or domestic level, in the legislative framework (as was the case, for example, in its Stafford v. the United Kingdom judgment of 28 May 2002 ([GC], no. 46295/99, ECHR 2002IV)) or in the relevant social and cultural ethos (as, for example, in the Christine Goodwin v. the United Kingdom judgment of 11 July 2002 ([GC], no. 28957/95, ECHR 2002VI)). This departure is probably closer to the situation dealt with by the Court in the case of Pessino v. France (no. 40403/02, 10 October 2006) than to the domestic case-law in the S.W. v. the United Kingdom judgment of 22 November 1995 (Series A no. 335B). In any event, the evolution of public opinion which rendered foreseeable the solution adopted by the domestic courts in the S.W. v. the United Kingdom case was already evident by the time of the offence of which the applicant stood accused.\n\n3.  The Court, recognising that “it is in the interests of legal certainty, foreseeability and equality before the law that [it] should not depart, without good reason, from [its] precedents”, and being responsible for interpretation of the Convention (Article 32 of the Convention), has nevertheless proceeded with this departure, considering that “a failure by [it] to maintain a dynamic and evolutive approach would risk rendering it a bar to reform or improvement” (see paragraph 153 of the judgment).\n\nThis is all perfectly consistent with the practice of the Court, which, while in principle following its own previous rulings, does from time to time, very cautiously, develop its case-law by a reversal of precedent (see Christine Goodwin, cited above, §§ 74 and 93; Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 56, ECHR 2007II; and Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, §§ 109, 121 and 125, ECHR 2005I).\n\n4.  All courts have to interpret the law in order to clarify it and, if need be, to keep pace with the changes in the society which they are serving (see, among many other authorities, Kokkinakis v. Greece, 25 May 1993, § 40, Series A no. 260A, and Cantoni v. France, 15 November 1996, § 31, Reports 1996V). For the purposes of the Convention, the term “law” covers both enactments and the interpretation thereof by the courts (see Kruslin v. France, 24 April 1990, § 29, Series A no. 176A), such that divergences in case-law create uncertainty and a lack of foreseeability that are capable of raising doubt as to the legality of an interference with a Convention right (see Driha v. Romania, no. 29556/02, § 32, 21 February 2008, and Păduraru v. Romania, no. 63252/00, § 98, ECHR 2005XII). Any judicial interpretation of the law is by nature retrospective, in the sense that it applies to a prior situation or conduct.\n\nHowever, in my opinion, the act of departing from precedent raises a particular problem, because the interaction between the new interpretation and the law, as previously contemplated, will give rise to a new “law” whose content is different to that of the previous “law”. The retrospectiveness of the new “law” is problematic with regard to the requirements of foreseeability and legal certainty. I would compare this to the problems raised by the retrospective effect of an Act interpreting a previous Act, justifying a certain resistance on the part of the Court. The requirements in terms of the quality of the law, and particularly that of the foreseeability of its application, entail a need for a similar approach to the nature of judicial interpretation to that obtaining in the situation of laws succeeding each other in time, for which transitional provisions are often made.\n\n5.  As regards the case-law of domestic courts, the Court has already shown that it is aware of the problem in cases where it has taken note of rulings affording new domestic remedies to applicants (see Di Sante v. Italy (dec.), no. 56079/00, 24 June 2004; Cocchiarella v. Italy [GC], no. 64886/01, § 44, ECHR 2006V; Giummarra and Others v. France (dec.), no. 61166/00, 12 June 2001; Mifsud v. France (dec.) [GC], no. 57220/00, ECHR 2002VIII; Broca and Texier-Micault v. France, nos. 27928/02 and 31694/02, § 20, 21 October 2003; and Paulino Tomas v. Portugal (dec.), no. 58698/00, ECHR 2003VIII), while dealing with such situations as if they entailed the creation of a new law due to take effect (“enter into force”) after a certain period of time, in the manner of a vacatio legis.\n\nThe same awareness is reflected in certain judgments of the Court of Justice of the European Union and of certain domestic courts, which, adopting the principle of prospective overrulings, or addressing the consequences of a mistake of law caused by existing case-law, do not apply (retrospectively and automatically) the new case-law to the case pending before it or to similar situations (see Les Revirements de Jurisprudence – Report presented to President Guy Canivet by the Working Party chaired by Nicolas Molfessis – Paris, Litec, 2004). In this connection, a particularly clear and pointed argument, in respect of Article 6 of the Convention, was used by the French Court of Cassation in a plenary judgment of 21 December 2006 (Dalloz, 2007, pp. 835 et seq., with a note by P. Morvan, Le Sacre du Revirement Prospectif sur l’Autel de l’Équitable). The opinion of Lord Nicholls of Birkenhead in the National Westminster Bank plc v. Spectrum Plus Limited and others and others judgment of the House of Lords of 30 June 2005 ([2005] UKHL 41) is also worthy of note.\n\n6.  In its Marckx v. Belgium judgment of 13 June 1979 (§ 58, Series A no. 31), the Court, responding to the Government’s request for determination of the effects of its ruling on previous situations, and taking into account the slow evolution towards the equality of treatment at issue in that case, dispensed the Belgian State from reopening legal acts or situations that antedated the delivery of its judgment.\n\nThe Court, out of a concern for legal certainty, thus showed that it was aware of the need to refrain from calling into question situations concerning individuals whose proceedings relating to distributions of estates had already been concluded. However, that was an exceptional case, which could probably also be explained by the significance of the consequences that could otherwise have affected a large number of individuals.\n\nThe Court nevertheless applied its new case-law, finding that Belgium had breached the Convention in respect of the applicants. In the same vein, the Court held in its Aoulmi v. France judgment of 17 January 2006 (no. 50278/99, ECHR 2006I) that there had been a violation of Article 34 of the Convention, dismissing the respondent Government’s argument to the effect that the applicant’s expulsion had taken place prior to the adoption by the Court, in its Mamatkulov and Askarov judgment of 4 February 2005 (cited above), of its new case-law as to the binding nature of measures indicated under Rule 39 of the Rules of Court. The Court thus considered that Contracting States had already been required to fulfil their obligations arising from Article 34 of the Convention at the time of the expulsion in question (see Aoulmi, cited above, § 111). Rightly so, but in the meantime the “content” of the obligation had changed as a result of the Court’s new interpretation of Rule 39.\n\n7.  When it departs from precedent, the Court certainly changes the content of the Convention in relation to its own previous interpretation, given with the authority conferred on it by Article 32 of the Convention. If the new case-law extends the scope of a Convention provision and thus imposes a new obligation on States, a retrospective effect that is automatic and not subject to directions by the Court would, in my view, be difficult to reconcile with the requirements of foreseeability and legal certainty, which are essential pillars of the Convention system. Moreover, the application in each State, by domestic courts, of the Convention as interpreted by the Court, will then become difficult, if not impossible. I therefore find it necessary that provision be made for the period that precedes the departure from precedent.\n\n8.  In the light of the foregoing, I would have preferred it if the Court had stipulated the time from which the right in question “became” (see paragraph 154 of the judgment) one of the essential elements of the right set forth in Article 11. In my own opinion, it would seem legitimate to doubt that this could already have come about by 1995, when the Turkish Court of Cassation disposed of the case at domestic level. Moreover, I find it regrettable that the Court has once again allowed the “natural” retrospectiveness of judicial interpretation to impugn an approach that, at the material time, was (probably) not in breach of the Convention.\n\nI did, however, vote in favour of finding a violation on account of the annulment of the collective agreement at issue (operative paragraph 3), as I share the Court’s interpretation of Article 11. I must also take account of the Court’s practice concerning the retrospective effect of its departures from precedent, although I personally believe that this practice should itself be the subject of such a departure.\n\n1.  I voted without hesitation for finding a violation of Article 11 of the Convention on account of the failure to recognise the right of the applicants, as municipal civil servants, to form a trade union.\n\n2.  In the following lines I wish to explain why I also voted with the majority in favour of finding a violation of Article 11 of the Convention on account of the annulment ex tunc of the collective agreement entered into by the trade union Tüm Bel Sen following collective bargaining with the authority.\n\n3.  Paragraph 154 of the judgment reads as follows:\n\n4.  The emphasis is thus placed on the “right to bargain collectively with the employer”.\n\n5.  It would be erroneous to infer that, for those working in the public service, “bargaining” has only one possible outcome: the “collective agreement”. It should not be forgotten that, in many legal systems, the statutory situation of civil servants is an objective situation, governed by laws and/or regulations, from which no derogation can be made by means of individual agreements. The introduction of an unlimited contractual dimension through Article 11 of the Convention would have a drastic impact on civil-service law in many States. The status of civil servant is based on the unification, organisation and efficiency of the public service.\n\n6.  The following comments have been made by Nicolas Valticos with regard to Convention No. 151 of the International Labour Organisation (ILO) and the Labour Relations (Public Service) Recommendation, 1978 (R159):\n\n7.  That being said, it is no longer in dispute – as is made clear by the judgment – that freedom of association exists in the public service. Similarly, trade union associations have become permanent partners in discussions on working conditions between State employees and public authorities. Such associations cannot be ignored by the State as employer, or more generally by public authorities.\n\n8.  Even though the right to bargain collectively can no longer be called into question as such (see paragraphs 42-44 and 49-52 of the judgment), certain exceptions or limits must nevertheless always be possible in the public service, provided that the role of staff representatives in the drafting of the applicable employment conditions or regulations remains guaranteed. For example, as indicated by the Court in paragraph 149 of the judgment:\n\nSimilarly, the following provision is made by Article 7 of ILO Convention No. 151, quoted at paragraph 44 of the judgment:\n\nThis provision thus authorises a certain flexibility in the choice of procedures for determining conditions of employment with the participation of civil servants (see also J. Llobera, “La Fonction Publique et la Liberté Syndicale dans les Normes Internationales du Travail”, Revue Trimestrielle des Droits de l’Homme, 1992, p. 336, for whom such flexibility would not even entail recourse to collective bargaining).\n\n9.  In short, the basic issue is to ascertain what is meant by “collective bargaining”. The authorising of public officials to make their voices heard certainly implies that they have a right to engage in social dialogue with their employer, but not necessarily the right to enter into collective agreements or that States have a corresponding obligation to enable the existence of such agreements. States must therefore be able to retain a certain freedom of choice in such matters.\n\n10.  In the present case, however, the right to bargain collectively at issue had been rendered totally meaningless by the obstacles placed in the way of the social dialogue. The annulment ex tunc of the collective agreement entered into following collective bargaining with the authority had therefore entailed a violation of Article 11 of the Convention.\n\n10.  In the present case, however, the right to bargain collectively at issue had been rendered totally meaningless by the obstacles placed in the way of the social dialogue. The annulment ex tunc of the collective agreement entered into following collective bargaining with the authority had therefore entailed a violation of Article 11 of the Convention.","title":""}
{"_id":"passage_665","text":"INTRODUCTION\n\n1.  The application concerns the alleged failure of the Constitutional Court to examine all of the three timely appeals lodged by the applicant, a former judge, in the disciplinary proceedings which resulted in his removal from office.\n\nTHE FACTS\n\n2.  The applicant was born in 1962 and lives in Krapina. He was represented by Mr V. Leskovar, an advocate practising in Pregrada.\n\n3.  The Government were represented by their Agent, Ms Š. Stažnik.\n\n4.  The facts of the case, as submitted by the parties, may be summarised as follows.\n\n5.  On 23 January 2010 police officers in Krapina noticed a vehicle swerving from one side of the road to the other and pulled it over. The vehicle was being driven by the applicant, who was a judge of the Krapina Municipal Court at the time. The test conducted on the spot and subsequent tests showed that his blood alcohol content was above the permissible level. The Government’s and the applicant’s account of this event differ as to whether the applicant was actively or only passively resisting the police officers, and whether he made threats against them or not.\n\nDisciplinary proceedings\n\n6.  On 31 May 2010 the President of the Krapina Municipal Court instituted disciplinary proceedings against the applicant before the National Judicial Council, proposing that he be reprimanded. He was charged with the disciplinary offence of damaging the reputation of the court and judicial office.\n\n7.  By a decision of 8 March 2012, the National Judicial Council found the applicant guilty as charged of making threats against the police officers – conduct unbecoming of a judge – and imposed a disciplinary measure of removal from office.\n\n8.  The applicant initially lodged two appeals against that decision. The first appeal was eleven pages long, was not dated and, even though it had the applicant’s advocate’s stamp on it, seemed to have been prepared by the applicant himself (“the first appeal”). The second appeal was seven pages long, was dated 6 July 2012, had the applicant’s advocate’s stamp on it and seemed to have been prepared by the advocate (“the second appeal”). Postal records show that both appeals were sent on 11 July 2012 and received by the National Judicial Council on 12 July 2012.\n\n9.  By a letter of 24 September 2012, the National Judicial Council forwarded those two appeals to the Constitutional Court and in so doing mistakenly referred to case file no. U-IX-2253/2012, which was the number that had been assigned to one of the applicant’s appeals lodged in the concurrent suspension proceedings (see paragraphs 15-16 below). In the letter, the National Judicial Council remarked that the appeals had been erroneously submitted to it instead of to the Constitutional Court directly.\n\n10.  On 19 February 2013 the applicant lodged another appeal (“the third appeal”) which was four pages long, prepared by the applicant himself and dated 19 February 2013. The National Judicial Council received it on 21 February 2013 and then forwarded it to the Constitutional Court, which registered it under case file no. U-IX-1182/2013. In the third appeal the applicant stated that he maintained all the arguments he had set out in the first two appeals (see paragraph 8 above). However, in the third appeal he also added a new argument, stating that prosecution of the disciplinary offence in question had become time-barred.\n\n11.  According to the Government, the mention of the previous two appeals in the third appeal prompted the judge rapporteur and the law clerk assigned to the applicant’s case to consult case file no. U-IX-2253/2012 (see paragraph 9 above), that is to say, one of the case files concerning the applicant’s suspension from office (see paragraphs 15-16 below), in which they found his two previous appeals (see paragraph 8 above). They considered that in his first appeal the applicant had raised the same arguments as in the third appeal, save for the argument concerning the statutory limitation period (see paragraphs 8 and 10 above). They therefore concluded that only the second appeal had to be taken out of the case file concerning the applicant’s suspension (no. U-IX-2253/2012, see paragraphs 9 above and 15-16 below) and inserted into the case file concerning his removal from office (no. U-IX-1182/2013).\n\n12.  In a letter of 7 November 2013, the Constitutional Court invited the National Judicial Council to reply to the applicant’s argument concerning the expiry of the statutory limitation period. The letter indicated that copies of the applicant’s appeals of 6 July 2012 (the second appeal, see paragraph 8 above) and of 19 February 2013 (the third appeal, see paragraph 10 above) were attached to it.\n\n13.  By a decision of 18 December 2013, the Constitutional Court dismissed the applicant’s appeals against the National Judicial Council’s decision of 8 March 2012. The relevant parts of that decision read as follows:\n\nDECISION\n\n“The appeal is dismissed.\n\nReasons\n\nI.  PROCEEDINGS BEFORE THE CONSTITUTIONAL COURT\n\n1.\t  R.K., a judge of the Krapina Municipal Court ... lodged an appeal ... against the decision of the National Judicial Council (‘the NJC’) ... of 8 March 2012.\n\nBy that decision, the NJC found the appellant guilty of damaging the reputation of the court and of judicial office – conduct contrary to the main principles of the Code of Judicial Ethics – thereby committing a disciplinary offence defined in subparagraph 6 of section 20(1) of the National Judicial Council Act ...\n\nAs a result of the disciplinary offence committed, the disciplinary sanction of removal from office was imposed on the appellant.\n\n2.\t  The appellant lodged several appeals with the Constitutional Court against [the decisions] of the President of the Krapina Municipal Court imposing or extending the measure of temporary suspension from judicial office.\n\n...\n\nIII.  THE APPELLANT’S SUBMISSIONS\n\n5.\t  The appellant opposes the NJC’s view that his conduct damaged the reputation of the court and judicial office, stating in essence that such a conclusion did not follow from either the documents in the case file or the police record describing the appellant’s conduct on the date in question. The appellant disputes ... the reasoning of the NJC’s decision, according to which the witnesses examined were clear and specific in their statements, which tallied with and complemented each other, and [according to which] there were no circumstances that could call into question the credibility of their statements about the decisive [facts].\n\nIn the very extensive presentation of his arguments, the appellant does not adduce constitutionally relevant arguments, but aims instead to argue against the reasons and conclusions in the NJC’s decision, the manner in which it was adopted, the manner in which the witnesses gave their statements, and the conduct of the police officers, because he is of the opinion that the intention was to present his case as being more serious than it really is.\n\nHe finds it significant that by a judgment of 20 December 2011 of the Krapina Minor Offences Court he was acquitted, for lack of evidence, of [having committed a traffic offence] on 20 December 2011 by swerving on the road with his car. The appellant considers that this fact calls into question the authenticity and reliability of the testimonies of the witnesses heard in the disciplinary proceedings.\n\nLastly, he states:\n\n‘It is also submitted that on 23 January 2013 the statutory limitation period [for prosecution of the offence] expired, given that three years had passed since commission of the disciplinary offence ...’\n\nThe appellant proposes that the appeal be allowed, the NJC’s decision quashed and the case remitted to the NJC for fresh examination, or that the NJC’s decision be overturned so that he can continue to serve as a judge.\n\n...\n\nV.  THE CONSTITUTIONAL COURT’S ASSESSMENT\n\n9.\t ... the Constitutional Court considers that the NJC conducted the proceedings for determining the appellant’s disciplinary liability impartially and gave clear and valid reasons in its decision as regards the extent of liability found. The NJC’s reasons for the particular disciplinary sanction, imposed in accordance with the ethical principles and rules on judges’ conduct, and which in the NJC’s view was proportionate to the nature of the disciplinary offence and the level of the appellant’s liability, were given in a constitutionally acceptable manner.\n\nIn these circumstances it is of no relevance that the appellant was acquitted by a final judgment [adopted] in the minor-offence proceedings of the charge of ‘swerving on the road with his car’. In particular, the assessment of the appellant’s disciplinary liability and of the gravity of the disciplinary offence does not depend on a possible assessment by a minor offences court as to whether the appellant ‘was swerving on the road’, but on the relevant facts and circumstances established by taking evidence in the disciplinary proceedings conducted under the rules of criminal procedure while taking into account the procedural guarantees of the appellant’s rights of defence.\n\nAs regards the appellant’s argument concerning the statute of limitations for instituting the disciplinary proceedings, the Constitutional Court considers the reasons given by the NJC to be constitutionally acceptable. Certain procedural delays operated in the appellant’s favour, and therefore their effects did not result in a violation of the appellant’s constitutional rights.\n\n9.1.  In its decision no. U-IX-3911/2009 of 24 September 2009 ... the Constitutional Court reiterated the basic principles of judicial office:\n\n...\n\nThe proper exercise of judicial office entails following the highest standards of professional behaviour and etiquette in general, even in the judge’s free time (the events in the appellant’s case occurred at 8 p.m.).\n\nA judge must always behave in such a way as to maintain the reputation of the judicial profession; in that sense, the appellant has grossly violated the principles of the Code of Judicial Ethics. In no way can the appellant’s physical and verbal conduct towards the police officers, described in greater detail in the reasoning of the NJC’s decision, be considered acceptable. This is all the more so because Krapina is a relatively small town, and it can thus be objectively assumed that most of its inhabitants know or can recognise each other.\n\nThe appellant took flagrant advantage of this fact ... by making threats against the police officers as regards their job security ...\n\nThis portrays the appellant in a particular light, as a person who wants to ‘dispense justice’ with his aggressive behaviour, which in a democratic society is absolutely incompatible with the European and international legal and civilizational standards listed in Constitutional Court decision no. U-IX-3911/2009.”\n\n14.  The Constitutional Court’s decision was served on the applicant on 16 January 2014.\n\nSuspension proceedings\n\n15.  Meanwhile, following the National Judicial Council’s decision of 8 March 2012 imposing the disciplinary measure of removal from office (see paragraph 7 above), in a decision of 16 March 2012 the President of the Krapina Municipal Court suspended the applicant for a period of three months until the Constitutional Court decided on his appeals and the decision of the National Judicial Council became final. That suspension was subsequently extended by the National Judicial Council in decisions of 14 June, 6 September and 16 November 2012 and 28 February, 6 June and 5 September 2013.\n\n16.  The applicant appealed to the Constitutional Court against each of those decisions. The first of those seven appeals was registered at the Constitutional Court under case file no. U-IX-2253/2012 (see paragraph 9 above). By a single decision of 18 December 2013, the Constitutional Court dismissed all the applicant’s appeals.\n\nOther relevant proceedings\n\n17.  By a judgment of 20 December 2011, the Krapina Minor Offences Court, owing to a lack of sufficient evidence, acquitted the applicant of the minor offence of endangering road traffic by swerving with his car on the road on 23 January 2010 (see paragraph 5 above).\n\n18.  By a decision of 20 November 2013, the same court acquitted the applicant of the minor offence of driving under the influence of alcohol because it was not clear whether the test results concerning his blood alcohol content referred to the time of the commission of the offence or to the time when the test had been carried out (see paragraph 7 above).\n\n19.  By a decision of 16 March 2012, the Krapina Minor Offences Court found the applicant guilty of the minor offence of disturbing the public peace by making threats against the police officers (see paragraph 7 above) and imposed a fine. That judgment was overturned, following an appeal by the applicant, by a judgment of 13 February 2014 of the High Minor Offences Court acquitting him because prosecution of the offence had become time-barred.\n\nRELEVANT LEGAL FRAMEWORK\n\n20.  Under Croatian criminal procedure law, both the accused and his or her advocate have the right to lodge an appeal independently.\n\n21.  Section 30(1) of the 1993 National Judicial Council Act (Zakon o državnom sudbenom vijeću, Official Gazette no. 58/93 with further amendments), which was in force from 26 June 1993 until 20 October 2010, stipulated that the provisions of the relevant criminal procedure legislation applied in disciplinary proceedings before the National Judicial Council, mutatis mutandis, and as subsidiary rules. Section 29 provided that the judge in question could lodge an appeal with the Constitutional Court against the National Judicial Council’s decision on his or her removal from office.\n\n22.  Identical provisions are contained in sections 71(1) and 72(1) of the 2010 National Judicial Council Act (Zakon o državnom sudbenom vijeću, Official Gazette no. 116/10 with further amendments). Section 94(2) provides that the ongoing proceedings before the Council are to be conducted and concluded under the rules set out in the 1993 National Judicial Council Act.\n\nTHE LAW\n\nALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION\n\n23.  The applicant complained that the failure of the Constitutional Court to rule on two out of three of his appeals against the decision of the National Judicial Council of 8 March 2012 had rendered the proceedings against him unfair. He relied on Article 6 § 1 and Article 13 of the Convention.\n\n24.  Being master of the characterisation to be given in law to the facts of the case (see Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998-I, and Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 124, 20 March 2018), and having regard to its case-law (see Kudła v. Poland [GC], no. 30210/96, § 146, ECHR 2000-XI), the Court, when giving notice of the application to the Government, found that this complaint should be examined under Article 6 § 1 of the Convention alone. The relevant part of that Article reads as follows:\n\n“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing ... by [a] ... tribunal ...”\n\nAdmissibility\n\n25.  The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.\n\nMerits\n\nSubmissions by the parties\n\nThe applicant\n\n26.  The applicant maintained his argument that the Constitutional Court had not decided on all three of the appeals lodged in his name (see paragraph 23 above). As regards the Government’s argument to the contrary (see paragraphs 11 above and 32 below), he submitted that the Government’s explanation had been concocted after he had lodged his application with the Court. Specifically, he alleged that only after the Government had been given notice of his application to the Court had the second appeal been taken out of the case file concerning his suspension and inserted into the case file concerning his removal from office.\n\n27.  The applicant further submitted that the Government’s contention that the first and third appeals were identical, save for the argument concerning the statutory limitation period (see paragraphs 11 above and 32 below), was illogical in view of the fact that the first appeal was eleven pages long, whereas the third appeal was only four pages long (see paragraphs 8 and 10 above). Those appeals had not been identical but had contained different grounds of appeal and different arguments. What was even more illogical was that the first appeal, which had undoubtedly concerned the decision on his removal from office, had been left in the case file concerning his suspension where it clearly did not belong.\n\n28.  Even assuming that the judge rapporteur and the law clerk of the Constitutional Court had taken the second appeal from the case file concerning his suspension and inserted it into the case file concerning his removal from office before he had lodged his application with the Court, the applicant submitted that their actions had been unlawful because it had not been for them to make an assessment as to whether the first appeal was, save for one ground of appeal, identical to the third appeal. Any such assessment should have been carried out by all the judges on the panel of the Constitutional Court which had examined his case.\n\n29.  Lastly, the applicant acknowledged that it had been the Constitutional Court’s practice, when deciding on two or more appeals lodged against a single decision of the National Judicial Council, to refer to an appeal in the singular, as submitted by the Government (see paragraph 31 below). However, that had been true only for the operative part of such decisions. In their reasoning, the Constitutional Court usually in some way indicated that multiple appeals had been lodged.\n\n30.  That was evident from the three Constitutional Court decisions to which the Government themselves had referred in their observations (see paragraph 31 below). The absence of such references in the reasoning of the Constitutional Court’s decision in his case (see paragraph 13 above) thus suggested that not all of his appeals had been taken into account.\n\nThe Government\n\n31.  The Government submitted that the Constitutional Court had decided on all three of the appeals lodged by the applicant against the decision on his removal from office (see paragraphs 8, 10 and 13 above). They stated that it had been the Constitutional Court’s practice, when deciding on two or more appeals lodged against a single decision of the National Judicial Council, to refer to an appeal in the singular in the reasoning of its decision (they referred to decisions nos. U-IX-2491/2015 of 19 November 2015, UIX-461/2014 of 17 April 2014 and U-IX-736/2006 of 23 March 2006.)\n\n32.  The Government admitted that the first two appeals by the applicant had initially been mistakenly inserted into the wrong case file (see paragraphs 9 and 11 above). However, that mistake had been rectified after the applicant had lodged his third appeal, in which he had referred to his previous two appeals (see paragraphs 8 and 10 above). The judge rapporteur and the law clerk assigned to the case had consulted the case file into which the previous appeals had been wrongly inserted and, after realising that the third appeal was identical to the first (save for the argument concerning the statutory limitation period), had inserted the second appeal into the proper case file (see paragraph 11 above).\n\n33.  That rectification had been done before the Constitutional Court had reached its decision in the applicant’s case on 18 December 2013 (see paragraph 13 above). The applicant’s allegations that the parts of the Constitutional Court’s case file concerning his appeals against the decision on his removal from office had been falsified or tampered with after he had lodged his application with the Court (see paragraph 26 above) were baseless.\n\n34.  The Government further argued that the content of the Constitutional Court’s decision did not in any way indicate that the court had failed to decide on all of the appeals lodged by the applicant. It was evident from the reasoning of the Constitutional Court’s decision (see paragraph 13 above) that it had examined and addressed all the grounds of appeal relied on by the applicant in all three appeals.\n\n35.  In view of the foregoing (see paragraphs 31-34 above), the Government concluded that the Constitutional Court had decided on all three of the applicant’s appeals and that there had therefore been no violation of Article 6 § 1 of the Convention.\n\nThe Court’s assessment\n\n36.  The Court reiterates that the right to a fair trial as guaranteed by Article 6 § 1 of the Convention includes the right of the parties to submit any observations that they consider relevant to their case. The purpose of the Convention being to guarantee not rights that are theoretical or illusory but rights that are practical and effective, this right can only be seen to be effective if the observations are actually “heard”, that is duly considered by the trial court. In other words, the effect of Article 6 is, among others, to place the “tribunal” under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties, without prejudice to its assessment of whether they are relevant (see, among many other authorities, Perez v. France [GC], no. 47287/99, § 80, ECHR 2004I).\n\n37.  The Court also reiterates that, even though the courts are not required to give a detailed answer to every argument, they are not exempted from duly examining and replying to the arguments which are decisive for the outcome of the proceedings (see Felloni v. Italy, no. 44221/14, § 24, 6 February 2020, and Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, § 84, 11 July 2017).\n\n38.  Turning to the present case, the Court notes that, by the Government’s own admission, the first and second appeals by the applicant were initially inserted into the wrong case file and that, in order to rectify that error, only the second appeal was later transferred to the correct case file, namely the one concerning his removal from office (see paragraphs 9, 11 and 32 above). The first appeal was not transferred because the judge rapporteur and the law clerk assigned to the case considered that the first and third appeals were identical, save for one additional argument in the third appeal (see paragraphs 11 and 32 above).\n\n39.  In view of the fact that the applicant’s first appeal was eleven pages long and his third appeal was only four pages long (see paragraphs 8 and 10 above), the Court finds it difficult to accept the Government’s contention that, except for one argument, those two appeals were identical.\n\n40.  Since the first and third appeals were clearly not duplicates, the Court finds that not including the applicant’s first appeal in the case file concerning his removal from office, where it evidently belonged, is in itself contrary to the right of the parties under Article 6 § 1 of the Convention to submit any observations which they consider relevant to their case, and to the corresponding duty of the domestic courts to conduct a proper examination of those submissions without prejudice to their assessment of whether they are relevant (see paragraph 36 above, and the cases cited therein).\n\n41.  This fact alone is sufficient to enable the Court to conclude that not all of the applicant’s appeals were taken into account by the Constitutional Court.\n\n42.  There has accordingly been a violation of Article 6 § 1 of the Convention.\n\nAPPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n43.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nDamage\n\n44.  The applicant claimed 135,719.87Croatian kunas (HRK) in respect of pecuniary damage, corresponding to his loss of earnings and a fee he had had to pay to become an advocate and be admitted to the Bar. He also claimed HRK 50,000 in respect of non-pecuniary damage for the mental pain and suffering resulting from his removal from office and the unlawful proceedings.\n\n45.  The Government contested the claims as excessive and lacking any causal link with the violation complained of.\n\n46.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, the Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards him EUR 4,000 under that head.\n\nCosts and expenses\n\n47.  The applicant claimed HRK 20,000 in respect of costs and expenses.\n\n48.  The Government contested that claim as unsubstantiated and unsupported by any documents.\n\n49.  The Court observes that there is no evidence to suggest that the applicant incurred any costs and expenses before the domestic courts as a result of the violation found. The Court therefore rejects this claim. On the other hand, the Court finds it reasonable to award the applicant EUR 1,665 in respect of the costs and expenses incurred before the Court, plus any tax that may be chargeable to him.\n\nDefault interest\n\n50.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\nDeclares the application admissible;\n\nHolds that there has been a violation of Article 6 § 1 of the Convention;\n\nHolds,\n\nthat the respondent State is to pay the applicant, within three months, the following amounts, to be converted into Croatian kunas at the rate applicable at the date of settlement:\n\nthat from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\nDismisses the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 18 March 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_935","text":"PROCEDURE\n\n1.  The case originated in two applications (nos. 346/04 and 39779/04) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Turkish nationals, Mr Mustafa Erdoğan and Mr Haluk Kürşad Kopuzlu, and a Turkish company, Liberte A. Ş. (“the applicants”), on 15 October 2003 and 16 September 2004 respectively.\n\n2.  The applicants were represented by Mr O. K. Cengiz, a lawyer practising in Ankara. The Turkish Government (“the Government”) were represented by their Agent.\n\n3.  On 4 March 2010 the applications were communicated to the Government. It was also decided to rule on the admissibility and merits of the applications at the same time (Article 29 § 1).\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n4.  The first and the second applicants were born in 1956 and 1975 respectively.\n\n5.  At the time of the events the first applicant Mr Mustafa Erdoğan was a professor of constitutional law at the University of Hacettepe in Ankara. The second applicant Mr Haluk Kürşad Kopuzlu was the editor of the quarterly publication Liberal Thinking and the third applicant Liberte A. Ş. was a joint-stock company and the publisher of Liberal Thinking (hereinafter: “the publishing company”). Mr Buhay Baytekin, the president of the board of members of Liberte A. Ş. at the material time, applied to the Court on behalf of the publishing company.\n\n6.  In 2001 an article entitled ‘Turkey’s Constitutional Court problem in the light of its decision to dissolve the Fazilet [Virtue] Party’ written by the first applicant was published in Liberal Thinking. It read as follows:\n\n“The Constitutional Court has finally delivered its judgment on the Fazilet Party at the end of a long period, which lasted more than two years, and has dissolved the party on the grounds that it had become ‘a hub of activity contrary to [the] principles of secularism’. As a result, the high court has decided that Nazlı Ilıcak and Bekir Sobacı, who were members of parliament at the date of the judgment, [should be] stripped of their parliamentary status and it has prohibited former parliamentarians Merve Kavakçı, Mehmet Sılay and Ramazan Yenidede from participating in political activities for the next five years. Only three members of the Court have dissented and I am of the opinion that their names should be mentioned: Haşim Kılıç, Sacit Adalı and Samia Akbulut.\n\nThe judgment of the Constitutional Court has naturally created widespread discontent throughout the country. Apart from a few fanatical individuals in the media who have character deficiencies, everyone who is sensible and whose conscience has not been paralysed has considered the judgment legally wrong and politically inappropriate. Even people whose sensitivities to democratic issues have never been that obvious have criticised the Constitutional Court about this judgment. Nevertheless, it is clear that concerns about the difficulties that the judgment might cause Turkey in its dealings with the Council of Europe and the European Union have played a great role in the emergence of this reaction. Moreover, it is commonly believed that this judgment was not the product of the free will of the Constitutional Court but that it was brought about under pressure [from] and at the suggestion of military circles.\n\nIt is certain that the dissolution of the Fazilet Party is closely related to the current political situation, the direction of which has been determined by the status quo powers (‘the deep State’). However, it seems to me that we cannot be sure whether the Court was put under direct pressure. The first point is important to find out the nature of the present regime in Turkey. From a legal point of view, however, what is more important is how the Constitutional Court gave such a judgment. In other words, the people who should be criticised and who should be held responsible are the eight judges at the Court, all of whom are ‘adults’ and ‘sensible’. The real issue is to examine to what extent the professional backgrounds and intellectual capacities of these individuals are sufficient for such a job and to question whether they had the right to act in accordance with their prejudices. This can be done only through analysing the judgment from a legal point of view. As a matter of fact, the reasons for judgment have not yet been published. But there is nothing wrong in subjecting the judgment to such an analysis in its form as pronounced to the public. Besides, I do not think that the reasons for judgment when they are published in a few weeks’ time will invalidate our first analysis. Our observations and information regarding the previous judicial approach of the Court demonstrate that the reasoning in the judgment will be ‘prearranged’. In other words, in the established practice of the Court the thing which is termed ‘the reasoning’ is fabricated and formulated at subsequent stages to justify the predetermined judgment [made] on the basis of prior opinions. Now we can submit our first legally relevant observations and evaluation of this judgment.\n\n1.  The Constitutional Court did the right thing by not dissolving the Fazilet Party on the grounds that ‘it was a continuation of a party’. The Court might have acted in this way for two reasons: firstly, the Court might have maintained the type of interpretation which it adopted in its previous judgments on the meaning of ‘being a continuation’ of a party. This means that a distinction was made between continuation in the sociological sense and the continuation of a political tradition, and continuation in a technical legal sense among consecutive political parties. This is an extraordinarily appropriate legal understanding. If this is the case, it means that the Constitutional Court considered that the Fazilet Party, while continuing the political line represented by Milli Nizam (national order) and the Milli Selamet Party in the sociological and political sense, was not the continuation of the Refah Party with another title.\n\nA second possibility might be the fact that the Constitutional Court adopted the view which is insistently voiced by some constitutional law experts, including the author of this article. According to this view, the Constitution stipulates that ‘a party which was dissolved cannot be re-established under another title’, but neither the Constitution nor the Law on Political Parties require that the sanction of dissolution be applied to such a party if it has acted contrary to the Constitution. If this was the reason for which the Constitutional Court refused the Chief Public Prosecutor’s request to dissolve the Fazilet Party on the basis of it being a continuation of the Refah Party, this only demonstrates that the court did not, at least, violate the positive law in this respect. This in itself does not deserve praise, since acting to the contrary would have been openly unlawful.\n\n2.  On the other hand, the Constitutional Court’s decision to dissolve the Fazilet Party on the grounds that it had become ‘a hub of activity contrary to the principles of secularism’ is clearly contrary to the law and has no factual or legal basis. This judgment is faulty on two grounds. Firstly, the activity which is claimed to be ‘contrary to secularism’ – in fact, it is only comprised of words [and] statements – does not have such characteristics. Most of them concern expressions of concern [about] the social consequences of the lack of freedom created by the prohibition on wearing the headscarf. In other words, these statements have the nature of being demands for freedom voiced by Members of Parliament – mostly from the podium of Parliament. Criticism of a prohibition, especially if it is voiced by members of parliament, cannot be contrary to any democratic and constitutional regime. As long as it is voiced in a peaceful way, a demand for freedom cannot be contrary to the principles of secularism and democracy, even if the right or freedom which constitutes the subject of the demand has not been recognised in positive law. Besides, wearing the headscarf is not prohibited for university students in Turkish law. The prohibition on wearing the headscarf which has been implemented in Turkey in recent years is not a requirement of the current legal order, but it is a result of current power relations. In other words, the existence of this prohibition is a de facto and not a de jure phenomenon.\n\nSecondly, even if it was against the law for university students to wear the headscarf, this would not make the party whose members are criticising the prohibition and demanding its removal contrary to secularism in a democratic system. Let us leave this fact aside and let us assume that such criticism and such a demand for freedom are contrary to secularism. Even in this case, the fact that some MPs or party members are making such criticism individually does not make the party “a hub” of that activity. In fact, being the “hub” or “focus” of any kind of activity for an organisation means the following: that the activity arose from the centre of that organisation, it is directed, controlled and administered by that centre; and that the activity is performed intensively, decisively and continuously. The facts in the trial record clearly demonstrate that these criteria did not apply to the legal personality of the Fazilet Party. Apart from [the fact that it was] far from being in a position to become the “hub” of the [relevant] activity, the Fazilet Party did not become a determined follower of the issue of the headscarf ban in addition to many other issues. In fact, this party has been the most “obedient” party of the system for the last three years and did not hold a clear and decisive view on any major issue, probably because of the fear of being dissolved.\n\nIt seems that the Constitutional Court considered Merve Kavakçı’s election as an MP for the Fazilet Party – she is still an MP – and the support given by the party to her as proof of the claim that the party had become “a hub of activity contrary to the principles of secularism”. In other words, according to the Constitutional Court, the election of a citizen who wears a headscarf as an MP and her attempt to take the oath in Parliament while wearing the headscarf are contrary to secularism. This is an unsound understanding for many reasons. First of all, if “national sovereignty” is one of the true – not fake – basic principles of Turkey’s constitutional order, no constitutional organ, particularly the Constitutional Court, whose legitimate authority stems from this principle, can impose any restrictions on the nation’s right to elect its representatives. Merve Kavakçı was put forward as a candidate by the Fazilet Party, but she was elected by the Turkish nation. If the Constitutional Court had found this fact to be contrary to secularism, it would have “annulled” the nation. Secondly, there is no provision in the Constitution stipulating that a person who wears a headscarf cannot be an MP and that she cannot take the oath in Parliament in a headscarf. [Nor does] such a provision exist in Parliament’s standing orders. This can be understood from the fact that an initiative was recently launched in Parliament to add such a prohibition to its standing orders. Besides, even if there were such a provision, this would be considered null and void because it would be contrary to the Constitution. In fact, the Turkish Grand National Assembly does not have the right to act [in a way] which would bring about the abolition of the citizens’ rights to elect representatives and to be elected as representatives, which are one of [their] basic rights. Actually, since the aim of the standing orders is to ensure the conduct of Parliament’s activities in an orderly way, a right cannot be annulled with such a procedural action.\n\n3.  This judgment demonstrates that the dominant majority of the Constitutional Court continues to apply its incorrect understanding of what “secularism in a democratic system” is. Unfortunately, the High Court has interpreted secularism in many of its judgments in a totalitarian manner. According to the Court, secularism is not a pro-freedom and pro-peace principle restricting the State, but is a higher principle legitimising the imposition by the State of a certain way of life on citizens. The Constitutional Court considers secularism as the categorical refusal of the demands of religion in the social, public and political arenas. Therefore, it thinks that secularism authorises the State to remove manifestations of religion in society. Moreover, it exalts this principle to the level of being the most important value of the constitutional order. According to this understanding, democracy, the rule of law and human rights are all secondary values, which should [only] be recognised to the degree allowed by secularism.\n\nHere, the more interesting point is that the Constitutional Court insists on continuing the doctrine of “secularism as a project of social engineering”, which was developed during the authoritarian (occasionally totalitarian) one-party era, in the democratic-pluralist environment. It also stubbornly ignores the pro-freedom/democratic criticism of this notion. Despite the fact that even the Turkish literature on the subject of “secularism in a democratic system” has expanded to a considerable degree in the last ten or fifteen years, our judges in the Constitutional Court turn a blind eye to this literature. Furthermore, in this trial at least, our senior judges did not need to undertake additional efforts to obtain new sources and information on this issue. For example, there was detailed information in the defence brief on how secularism is understood and implemented in contemporary democracies, but it seems that the members of the Court did not read these passages or if they did, they ignored it.\n\nIn this connection, the two judgments of the Constitutional Court which directly concerned the issue of wearing headscarves and its judgments dissolving the Refah Party and the Fazilet Party indicate that this matter has become the key focus of secularism. The conclusion which the Court has reached can be formulated as the following: “to demand the freedom of wearing the headscarf means categorically being against secularism – and indirectly against the Constitution.” This is a totally wrong idea regardless of the perspective one has: it is anti-democratic, it is anti-freedom, it is contrary to secularism and it is pro-conflict. It is anti-democratic because it restricts in an arbitrary way the field of democratic politics and the sphere of activity of democratic political actors. It is anti-freedom because it is oppressive and imposing. It is contrary to secularism because it oppresses religious choices and creates discrimination on the grounds of religion. Finally, it is pro-conflict because it forces the State to quarrel with society and in this way it allows the State to destroy the social peace and order.\n\n4.  The part of this judgment which ends the MP status of some politicians and prohibits them from involvement in further political activities does not contain valid grounds pertaining to the relevant individuals. Specifically, the application of the sanctions against Nazlı Ilıcak on the grounds that she “was one of the people who brought about the dissolution of their party with their activity contrary to secularism” bears no relation to reality and is a ridiculous assertion. The situation is really awkward. A high court imagines that it protects “secularism” by prohibiting a person from being involved in political activities and by ending the MP status of that individual, who meets the criteria of a “contemporary way of life” and “contemporary personal appearances” perfectly. Everybody knows that she has never been in favour of a political regime established on the basis of religion and that she has never made any effort in this direction. This is a typical example of the attitude of the Court demonstrating the absurd results [its] formalist legal reasoning can produce.\n\n5.  All these explanations highlight that the statement of the chairman of the Constitutional Court to the effect that “there is nothing we can do, the laws force us to act in this way, if you do not want us to do so, change the laws”, has no value from a legal point of view. It is true that the Constitution and the laws in Turkey are not pro-freedom; therefore, it is, of course, necessary to improve the positive law. But the major problem in the judgment which dissolved the Fazilet Party is not the unsuitable character of the current law. The problem is that the Constitutional Court interprets the Constitution and the laws which are in force in an authoritarian and narrow-minded way. Let us leave the necessity of the Constitutional Court complying with the provisions of the European Convention on Human Rights and the Strasbourg case-law [to one side]. There are no serious grounds for dissolving the Fazilet Party, even on the basis of the Constitution and the Law on Political Parties. But there is no need [to know] the [provisions of those] laws to understand this fact. The notions which are needed are the notion of law, which does not see legitimacy as the same as the law [itself], a considerable amount of knowledge about the technique of interpretation and legal reasoning and sensitivity to freedom and democracy. In other words, our problem is the fact that most of our constitutional law judges do not know the law, and do not have knowledge of democracy, political and constitutional theory or secularism. Nor do they intend to acquire it.\n\nIt is assumed that the pro-freedom and pro-democracy case-law of the European Court of Human Rights is brought about by the strict interpretation of the Convention. The real situation is different from the one which is assumed: when deciding on cases on the basis of the Convention, which does not include the concept of a “political party”, the Strasbourg Court concludes them by applying a broad interpretation to the provisions concerning freedom of association and expression in accordance with [general] principles and the universal understanding [of those concepts]. The Turkish constitutional court judges, if they wished to do so and could develop the necessary intellectual skills, could ease the restrictive provisions of positive law in Turkey. So long as they wanted to do so.\n\nMoreover, it is difficult to consider the aforementioned statement of the chairman to be sincere. If the problem is [one of] making changes to the Constitution and the law, the Turkish Grand National Assembly actually enacted a statutory amendment, which defined [what it means] for political parties to become a “hub” in a highly reasonable way and which set criteria to ensure its implementation. Why did the Constitutional Court annul this amendment in accordance with an authoritarian understanding? In this case, the problem is related to the fact that our constitutional court judges have not taken on board freedoms, rather than the assertion that the current laws are unsuitable.\n\n6.  This latest judgment of the Constitutional Court has demonstrated another thing: the professional capabilities of most of the court members are insufficient for the job. Moreover, they are not willing to compensate for this insufficiency. They are closed to knowledge, they have no passion for their jobs and they are incapable of becoming open-minded. They try to fulfil the requirements of their vital duty, finding their way out by sticking together, without feeling uneasy about it. It is because of this reason that the obstacle to freedoms in Turkey is not Parliament, which does not change the Constitution and which does not enact the necessary laws. The real obstacle is the Constitutional Court, which does not shy away from being the systematic shredder of freedoms. It is urgently necessary to deal with the issue of membership in the Constitutional Court.”\n\n7.  It appears that following the publication of the article all members of the Constitutional Court brought separate civil actions against Mr Mustafa Erdoğan, Mr Haluk Kürşad Kopuzlu and the publishing company (hereinafter “the defendants”), seeking damages for the injury they claimed to have sustained as a result of the applicants’ serious attack on their honour and integrity through the publication of the above article, which had contained, in their view, defamatory passages.\n\n8.  The present applications concern the damages claims brought against the applicants by Ms F.K., Mr Y.A. and Mr M.B., judges and in the case of the last claimant, the president, of the Constitutional Court at the material time.\n\n9.  Before the domestic courts the applicants maintained that, while the expressions used in the article had been severe in terms of form and style, they had remained within the limits of the freedom of expression, as they had had a basis in fact. In this connection, the applicants, referring to the case-law of the European Court of Human Rights, asserted that the article in question had criticised the judgment of the Constitutional Court with respect to its decision to dissolve the Fazilet Party, that the acceptable limits of criticism should be more extensive for judges, high level public officials and politicians than others, and that value judgments which were made on the basis of fact were in conformity with the law.\n\nOn this latter point, the applicants, relying on the views of various academics, politicians and journalists, underlined that a segment of the public believed – rightly or wrongly – that the judgment of the Constitutional Court had been given under the influence of the military and that there were certain parallels between the outcome of the judgment and the general political situation existing in Turkey at the time. Likewise, again relying on various articles, notably certain statements made by a number of judges sitting on the bench of the higher courts, including the Constitutional Court, the applicants argued that the statements regarding the lack of skill of the judges sitting at the Constitutional Court were not without any factual basis.\n\nThe applicants submitted that numerous criticisms had been voiced against the judgment of the Constitutional Court by academics, journalists and politicians, and underlined that the first applicant, who was a professor of constitutional law, had consistently emphasised in his publications that the basic function of constitutional courts – or similar organs – in constitutional democratic systems is to serve as the guarantee of basic rights against arbitrary actions of the State and that high court judges – and indeed judges in general – have to avoid giving judgments corresponding to their ideological opinions and political tendencies.\n\n10.  On 28 March 2002 the 17th Chamber of the Ankara Civil Court of First Instance ordered the applicants to pay Ms F.K., jointly, 2,500,000,000 Turkish lira (TRL – approximately 2,000 euros (EUR)) in damages, plus interest at the legal statutory rate running from the date the article in question was published.\n\n11.  In its judgment, the court referred to the following passages:\n\n“...it is commonly believed that this judgment is not the product of the free will of the Constitutional Court but that it was brought about under pressure from and at the suggestion of military circles... it is certain that the dissolution of the Fazilet Party is closely related to the current political situation, the direction of which has been determined by the status quo powers (‘the deep State’). However, it seems to me that we cannot be sure whether the court was put under direct pressure... From a legal point of view, however, what is more important is how the Constitutional Court gave such a judgment. In other words, the people who should be criticised and who should be held responsible are the eight judges at the court, all of whom are ‘adults’ and ‘sensible’. The real issue is to examine to what extent the professional backgrounds and intellectual capacities of these individuals are sufficient for such a job and to question whether they had the right to act in accordance with their prejudices... In other words, our problem is that most of our constitutional law judges do not know the law and do not have knowledge of democracy, political and constitutional theory and secularism. Nor do they intend to acquire it ... This latest judgment of the Constitutional Court has demonstrated another thing: the professional capabilities of most of the court members are insufficient for the job. Moreover, they are not willing to compensate for this insufficiency. They are closed to knowledge, they have no passion for their jobs and they are incapable of becoming open-minded. They try to fulfil the requirements of their vital duty, finding their way out by sticking together, without feeling uneasy about it.”\n\n12.  The court held that the author, in the above statements, had asserted that the members of the Constitutional Court had rendered their judgment under pressure, that the judges of the court did not know the law, and that their professional knowledge and intellectual capabilities were insufficient. It considered that these expressions constituted defamation of the members of the Constitutional Court, including the claimant, who had rendered the judgment ordering the dissolution of the Fazilet Party.\n\n13.  On 19 December 2002 the Court of Cassation held a hearing and upheld the judgment of the first-instance court.\n\n14.  On 24 March 2003 the Court of Cassation dismissed the defendants’ request for rectification of its decision. The defendants were fined in accordance with Article 442 of the Code of Civil Procedure. This decision was served on the applicants’ lawyer on 26 April 2003.\n\n15.  In the meantime, on 16 July 2002 the 20th Chamber of the Ankara Civil Court of First Instance ordered the applicants to pay Mr Y.A., jointly, TRL 3,000,000,000 (approximately EUR 1,755) in damages plus interest at the legal statutory rate running from the date of the publication of the article.\n\n16.  In its decision, the court observed that, when read as a whole, the article, instead of merely criticising the establishment, development, and selection of members of the Constitutional Court or providing a technical criticism of the judgment, had contained severe attacks against the judges themselves and their professional or analytical capabilities. Referring to various passages, notably those mentioned by the 17th Chamber above, the 20th Chamber considered that the author, who had accused the judges of serious misconduct such as receiving instructions, of acting irresponsibly and of not being independent and lacking reasonable logic and conscience, had gone beyond objective and technical criticism of the Constitutional Court and its judgment and that the article had therefore defamed the claimants.\n\n17.  On 15 April 2003 the Court of Cassation held a hearing and upheld the judgment of the first-instance court.\n\n18.  On 3 July 2003 the Court of Cassation dismissed the defendants’ request for rectification of its decision. The defendants were fined in accordance with Article 442 of the Code of Civil Procedure. This decision was served on the applicants’ lawyer on 30 July 2003.\n\n19.  Likewise, on 12 December 2002 the 9th Chamber of the Ankara Civil Court of First Instance ordered the applicants to pay Mr M.B., jointly, TRL 2,500,000,000 (approximately EUR 1,557) in damages, plus interest at the legal statutory rate running from the date the article in question was published.\n\n20.  In its decision, the court, referring to similar passages to those relied on by the other Chambers, considered that the contents of the article had upset the balance between freedom of expression and the need to protect a person’s dignity and honour, and that the author had overstepped the boundaries of acceptable criticism and had used words which constituted defamation.\n\n21.  In this connection, the court stated that the aim of press freedom is to provide correct and truthful news regarding issues of public interest, and that the privileges attached to press freedom were not without limits. It noted in that regard that the freedom of the press was limited by the private law rights and obligations established by the relevant provisions of the Code of Obligations and the Civil Code. The court underlined that in its duty to inform, the press was limited in its criticism by the following rules: truthfulness, public interest, topicality and interconnectedness between the thoughts, the subject and the words used.\n\n22.  The court opined that in the present case, while the overall content of the author’s article had been within the boundaries of criticism, certain remarks contained in the article had gone beyond the limits of acceptable criticism, there had not been harmony between the form and the content, the content had gone beyond the subject of criticism, and words used in the article had constituted defamation of the claimant. It held that the author could have made the same criticism without the use of these words.\n\n23.  On 18 November 2003 the Court of Cassation held a hearing and upheld the judgment of the first-instance court.\n\n24.  On 29 April 2004 the Court of Cassation dismissed the defendants’ request for rectification of its decision. The defendants were fined in accordance with Article 442 of the Code of Civil Procedure. This decision was served on the applicants’ lawyer on 7 June 2004.\n\nII.  RELEVANT DOMESTIC LAW AND PRACTICE\n\n25.  A description of the relevant domestic law at the material time can be found in Sapan v. Turkey, no. 44102/04, §§ 24-25, 8 June 2010.\n\nTHE LAW\n\nI.  JOINDER\n\n26.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to join them.\n\nII.  ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION\n\n27.  The applicants complained that the judgments given in the civil cases against them had breached their right to freedom of expression as provided in Article 10 of the Convention, which, in so far as relevant, reads as follows:\n\n“1.  Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers [...].\n\n2.  The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of [...] for the protection of the reputation or rights of others [...]”\n\n28.  The Government did not submit any observations.\n\nA.  Admissibility\n\n29.  The Court notes that the above complaint is not manifestly illfounded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n30.  The Court considers that the final judgments given in respect of the actions brought by the three members of the Constitutional Court seeking damages for defamation interfered with the applicants’ right to freedom of expression, as guaranteed by Article 10 § 1 of the Convention.\n\n1.  Prescribed by law and legitimate aim\n\n31.  It finds that the interference in question was prescribed by law, namely Article 24 of the Civil Code and Article 49 of the Code of Obligations, and that it pursued the legitimate aim of protecting the reputation or rights of others, within the meaning of Article 10 § 2.\n\n2.  Necessary in a democratic society\n\n32.  In the present case what is in issue is whether the interference was “necessary in a democratic society”.\n\n33.  The Court reiterates that freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”. As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly (see, among others, Perna v. Italy [GC], no. 48898/99, § 39, ECHR 2003V and the references cited therein).\n\n34.  The test of “necessary in a democratic society” requires the Court to determine whether the interference complained of corresponded to a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10 (see, for example, Tuşalp v. Turkey, nos. 32131/08 and 41617/08, § 41, 21 February 2012).\n\n35.  The Court’s task in exercising its supervisory function is not to take the place of the competent domestic courts but rather to review under Article 10 the decisions they have taken pursuant to their power of appreciation. In particular, the Court must determine whether the reasons adduced by the national authorities to justify the interference were “relevant and sufficient” and whether the measure taken was “proportionate to the legitimate aims pursued”. In doing so, the Court has to satisfy itself that the national authorities, basing themselves on an acceptable assessment of the relevant facts, applied standards which were in conformity with the principles embodied in Article 10 (see Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 45, ECHR 2007IV, and Mengi v. Turkey, nos. 13471/05 and 38787/07, § 48, 27 November 2012).\n\n36.  In this connection, the Court reiterates that in order to assess the justification of an impugned statement, a distinction needs to be made between statements of fact and value judgments. While the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof. The requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10. The classification of a statement as a fact or as a value judgment is a matter which in the first place falls within the margin of appreciation of the national authorities, in particular the domestic courts. However, even where a statement amounts to a value judgment, there must exist a sufficient factual basis to support it, failing which it will be excessive (see, for example, Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 76, ECHR 2004XI).\n\n37.  When called upon to examine the necessity of an interference in a democratic society in the interests of the “protection of the reputation or rights of others”, the Court may be required to ascertain whether the domestic authorities struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in certain cases, namely, on the one hand, freedom of expression protected by Article 10, and on the other the right to respect for private life enshrined in Article 8 (see MGN Limited v. the United Kingdom, no. 39401/04, § 142, 18 January 2011).\n\n38.  Where the right to freedom of expression is being balanced against the right to respect for private life, the relevant criteria have been laid down in the Court’s case-law as follows: (a) contribution to a debate of general interest; (b) how well known the person concerned is and what the subject of the publication was; (c) prior conduct of the person concerned; (d) method of obtaining the information and its veracity; (e) content, form and consequences of the publication; and (f) severity of the sanction imposed (see Axel Springer AG v. Germany [GC], no. 39954/08, §§ 89-95, 7 February 2012, and Ungváry and Irodalom Kft v. Hungary, no. 64520/10, § 45, 3 December 2013).\n\n39.  In the instant case, the Court notes that the applicants were ordered to pay damages for defamation on account of the publication of an article written by the first applicant, a constitutional law professor, who criticised a decision of the Constitutional Court to dissolve a political party. In particular, the applicant considered that the conditions for dissolving the party in question on the grounds that it had become a hub of activity contrary to the principles of secularism had not been met and that the interpretation given by the court to the principle of secularism in general and its application in the case under discussion was not in accordance with the contemporary understanding of that notion in a democracy. In this connection, the applicant questioned the professional competence and the impartiality of the majority of judges sitting on the bench of that court.\n\n40.  The Court has stated on many occasions that issues concerning the functioning of the justice system constitute questions of public interest, the debate on which enjoys the protection of Article 10 (see, for example, Błaja News Sp. z o. o. v. Poland, no. 59545/10, § 60, 26 November 2013, and Prager and Oberschlick v. Austria, 26 April 1995, § 34, Series A no. 313). It has also underlined the importance of academic freedom (see, for example, Sorguç v. Turkey, no. 17089/03, § 35, 23 June 2009; and Sapan v. Turkey, cited above, § 34) and of academic works (see Aksu v. Turkey [GC], nos. 4149/04 and 41029/04, § 71, ECHR 2012; and Hertel v. Switzerland, 25 August 1998, § 50, Reports of Judgments and Decisions 1998VI). In this connection, academic freedom in research and in training should guarantee freedom of expression and of action, freedom to disseminate information and freedom to conduct research and distribute knowledge and truth without restriction (see Recommendation 1762 (2006) of the Parliamentary Assembly of the Council of Europe). It is therefore consistent with the Court’s case-law to submit to careful scrutiny any restrictions on the freedom of academics to carry out research and to publish their findings (see Aksu v. Turkey [GC], cited above, § 71). This freedom, however, is not restricted to academic or scientific research, but also extends to the academics’ freedom to express freely their views and opinions, even if controversial or unpopular, in the areas of their research, professional expertise and competence. This may include an examination of the functioning of public institutions in a given political system, and a criticism thereof.\n\n41.  The Court finds that the subject matter of the article in question, written by an academic, concerned an important and topical issue in a democratic society which the public had a legitimate interest in being informed of and therefore that the article in question contributed to a debate of general interest. The article was published in the quarterly publication edited by the second applicant and owned by the publishing company represented by the third applicant. In this connection, it reiterates that questions of public interest reported by the press undoubtedly include those concerning the functioning of the system of justice, an institution that is essential for any democratic society (see De Haes and Gijsels v. Belgium, 24 February 1997, § 37, Reports 1997-I). The press is one of the means by which politicians and public opinion can verify that judges are discharging their heavy responsibilities in a manner that is in conformity with the aim which is the basis of the task entrusted to them (see Prager and Oberschlick, cited above, § 34).\n\n42.  The Court observes that the claimants in the three sets of damages proceedings summarised above were members of the Constitutional Court who had voted in favour of the dissolution of the Fazilet Party. Consequently, whilst it cannot be said that they knowingly laid themselves open to close scrutiny of their every word and deed to the extent to which politicians do and should therefore be treated on an equal footing with the latter when it comes to the criticism of their actions, members of the judiciary acting in an official capacity, as in the present case, may nevertheless be subject to wider limits of acceptable criticism than ordinary citizens (see, for example, July and SARL Libération v. France, no. 20893/03, § 74, ECHR 2008 (extracts)). At the same time, however, the Court has on many occasions emphasised the special role in society of the judiciary, which, as the guarantor of justice, a fundamental value in a State governed by the rule of law, must enjoy public confidence if it is to be successful in carrying out its duties. It may therefore prove necessary to protect that confidence against destructive attacks which are essentially unfounded, especially in view of the fact that judges who have been criticised are subject to a duty of discretion that precludes them from replying (see Prager and Oberschlick, cited above, § 34).\n\n43.  The domestic courts considered that certain expressions used in the article constituted defamation of the claimants (see paragraphs 12, 16 and 20 above). In particular, the 20th and the 9th Chambers of the Ankara Civil Court of First Instance considered that the author had overstepped the boundaries of acceptable criticism in the article.\n\n44.  The Court has examined the article in question and the reasons given in the domestic courts’ decisions to justify the interference with the applicants’ right to freedom of expression. It has taken into consideration the applicants’ interest in conveying to the public the first applicant’s view on a topic of general interest and voicing his criticism, balanced against the claimants’ interest as individuals exercising a judicial function in having their reputations protected and being protected against personal insult. In this connection, the Court reaffirms that the courts, as with all other public institutions, are not immune from criticism and scrutiny. In particular, a clear distinction must be made between criticism and insult. If the sole intent of any form of expression is to insult a court, or members of that court, an appropriate sanction would not, in principle, constitute a violation of Article 10 of the Convention (see Skałka v. Poland, no. 43425/98, § 34, 27 May 2003). The Court considers that some of the language and expressions used in the article in question, notably those highlighted by the domestic courts, were harsh and that they could be perceived as offensive. They were, however mostly, value judgments, coloured by the author’s own political and legal opinions and perceptions. In this connection, the Court also observes that they were based on the manner in which the Constitutional Court ruled on certain issues and that these rulings, including the dissolution of the Fazilet Party, were already subject to virulent public debate, as the applicant sought to demonstrate in the domestic proceedings. They could therefore be considered to have had a sufficient factual basis (see, a contrario, Barfod v. Denmark, 22 February 1989, § 35, Series A no. 149). In so far as it concerns statements of fact contained in the impugned article, the Court finds that the domestic courts did not attempt to distinguish them from value judgments, nor do they appear to have examined whether the “duties and responsibilities” incumbent on the applicants within the meaning of Article 10 § 2 of the Convention were observed, or to have assessed whether the article was published in good faith.\n\n45.  In particular, the Court considers that the domestic courts, in their examination of the cases, omitted to place the impugned remarks within the context in which they were expressed. In this connection, it reiterates that style constitutes part of the communication as the form of expression and is as such protected together with the content of the expression (see Uj v. Hungary, no. 23954/10, § 20, 19 July 2011). Thus, when account is taken of the content of the article as a whole, and the context in which they were expressed, the Court is of the opinion that the impugned strong and harsh remarks contained in the article, set out in general terms, with respect to the judges of the Constitutional Court, cannot be construed as a gratuitous personal attack against the claimants. The Court also takes note that the article in question was published in a quasi-academic quarterly as opposed to a popular newspaper.\n\n46.  In the light of the above considerations, and notwithstanding the national authorities’ margin of appreciation, the Court considers that the interference with the applicants’ freedom of expression was not based on sufficient reasons to show that the interference complained of was necessary in a democratic society for the protection of the reputation and rights of others. This finding makes it unnecessary for the Court to pursue its examination in order to determine whether the amount of damages which the applicants were ordered to pay was proportionate to the aim pursued. It follows that there has been a violation of Article 10 of the Convention.\n\nIII.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION\n\n47.  The applicants further complained under Article 6 of the Convention that the domestic courts had failed to give reasons for their judgments, that they had refused to hear defence witnesses and that they had been denied access to court on account of the imposition of fines at the rectification of judgment stage. They further complained under Article 1 of Protocol No. 1 that the damages awarded to the claimants had been excessive.\n\n48.  Having regard to the facts of the case and its finding of a violation of Article 10, the Court considers that it has examined the main legal question raised in the present application. It therefore concludes that it is not necessary to examine the admissibility or the merits of the above-mentioned complaints (see, for example, Youth Initiative for Human Rights v. Serbia, no. 48135/06, § 29, 25 June 2013; see also Sorguç, cited above, § 44; and Pakdemirli v. Turkey, no. 35839/97, § 63, 22 February 2005).\n\nIV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n49.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage, costs and expenses\n\n50.  The first applicant, Mr Erdoğan, claimed 40,478 euros (EUR) in respect of pecuniary damage. This sum was comprised of the damages he had been ordered to pay in eight sets of legal proceedings and the legal fees he had incurred as a result of those proceedings. He further claimed EUR 10,000 in respect of non-pecuniary damage. Finally, this applicant requested EUR 5,000 in respect of his legal representation before the Court.\n\n51.  The Government underlined that the applicants’ representative had submitted just satisfaction claims only in respect of the first applicant and that the amounts sought were excessive. In this connection, they noted that the applicant was claiming the reimbursement of the damages he had been ordered to pay in eight separate sets of legal proceedings, although he had lodged an application with the Court only in respect of three sets of proceedings.\n\n52.  The Court considers that there is a causal link between the pecuniary damage referred to by the applicant and the violation of the Convention found above only in so far as it concerns the damages claims lodged by Ms F.K., Mr Y.A. and Mr B.M. (see paragraph 8 above). Therefore, the Court finds that the reimbursement by the Government of the damages paid by the applicant in respect of those proceedings, plus the statutory interest applicable under domestic law, running from the date on which the applicant paid the relevant sums, would satisfy his claim in respect of pecuniary damage (see Mengi, cited above, § 63).\n\n53.  It further considers that the applicant has suffered nonpecuniary damage as a result of the domestic courts’ judgments in respect of his article, which were incompatible with Convention principles. This damage cannot be sufficiently compensated for by a finding of a violation. Taking into account the circumstances of the case and having regard to its case-law, the Court awards the applicant EUR 7,500 in respect of nonpecuniary damage.\n\n54.  As to costs and expenses, the Court observes that the applicants’ representative submitted, in support of the first applicant’s claim, receipts corresponding to lawyers’ fees in respect of eight sets of legal proceedings, three of which are relevant for the purpose of the present case. It notes, however, that the payments appear to have been made by the publishing company and not by the first applicant. Furthermore, no document or explanation was provided by the applicants’ representative as regards the amount claimed in respect of the costs and expenses incurred before the Court. Accordingly, the Court makes no award under this head.\n\n55.  Likewise, the second and the third applicants did not submit a claim for just satisfaction. Therefore, the Court considers that there is no call to award them any sum on that account.\n\nB.  Default interest\n\n56.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\n1.  Decides to join the applications;\n\n2.  Declares the complaints under Article 10 of the Convention admissible;\n\n3.  Holds that there has been a violation of Article 10 of the Convention;\n\n4.  Holds that there is no need to examine the admissibility and merits of the applicants’ complaints under Article 6 of the Convention and Article 1 of Protocol No. 1;\n\n5.  Holds\n\n(a)  that the respondent State is to reimburse to the first applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the damages paid by him with respect to the damages claims lodged by Ms F.K., Mr Y.A. and Mr B.M, plus the statutory interest applicable under domestic law, running from the date of payment, and to pay to the applicant within the same period EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of nonpecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n6.  Dismisses the remainder of the first applicant’s claim for just satisfaction.”\n\nDone in English, and notified in writing on 27 May 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.\n\nIn accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the joint concurring opinion of Judges Sajó, Vučinič and Kūris is annexed to this judgment.\n\n1.  We voted with the majority in finding that there had been a violation of Article 10 of the Convention. To our mind, however, it is important to take into consideration one additional point which has not been made explicit in the reasoning.\n\n2.  When it comes to the use of concepts and principles which are not yet clearly spelled out in the Court’s case-law, it is imperative to explain the reasons for and scope of those concepts and principles. This is required by the judicial duty to ensure that judgments are convincing and transparent. Without transparency of the underlying considerations, the meaning which is attributed to a concept and the scope of the applicability of a principle run the risk of being seen as arbitrary and do not offer sufficient guidance for the determination of future cases.\n\n3.  In paragraph 40 of the judgment, academic freedom has been defined as being “not restricted to academic or scientific research, but also [as] extend[ing] to the academics’ freedom to express freely their views and opinions, even if controversial or unpopular, in the areas of their research, professional expertise and competence” and as “includ[ing] an examination of the functioning of public institutions in a given political system, and a criticism thereof”. One could hardly disagree that academic freedom is not limited to debates in scholarly journals, debates in academic settings and teaching. This freedom is protected under Article 10, which guarantees the freedom of expression in its various manifestations, including “extramural” speech, which embraces not only academics’ mutual exchange (in various forms) of opinions on matters of academic interest, but also their addresses to the general public – of which, by the way, academics themselves are also part. (As a broader concept, academic freedom transcends the scope of Article 10 in certain areas, but this dimension is irrelevant to the present case and will not be discussed further here.)\n\n4.  The level of protection granted to academic freedom, especially in its “extramural” manifestation, cannot be explained fully (and consequently, in a convincing and transparent way) within the four corners of the assumptions that underlie the Court’s case-law concerning freedom of expression. At least as matters currently stand, these assumptions remain at the level of intuitions. The meaning, rationale and scope of academic freedom are not obvious, as the legal concept of that freedom is not settled. Traditionally, academic freedom referred to a crucial element of university autonomy: non-interference by external powers in university teaching. This core academic freedom has increasingly been accepted as including personal freedom of expression, often in the sense of scholars’ autonomy. It is in this sense that the maxim of the independence of university teachers and researchers was recognised as a constitutional principle by the French Constitutional Council (see decision no. 83-165 DC, 20 January 1984, in which it was held that “by their very nature, the functions of teaching and research not only permit but require ... that free expression and personal independence are guaranteed by the provisions applicable to them” and that “the guarantee of [teachers’] independence stems from a fundamental principle recognised by the laws of the Republic”). A similar approach can be found in the constitutional case-law of many other European countries. Also, teachers’ freedom of expression is interlinked with the freedom of research. In order to provide for the self-determination necessary for the autonomous advancement of learning, knowledge and science, institutional autonomy is guaranteed under the name of academic freedom. However, although academic freedom refers, first and foremost, to institutional autonomy, it cannot be reduced to its institutional setting, since scholars’ institutional autonomy is meaningful only if they enjoy personal freedom of research that entails unimpeded communication of ideas within, but not exclusively within, the scholarly community. This interrelatedness between academic institutional autonomy and personal freedom of scholars is expressed in various instruments including Recommendation CM/Rec(2012)7 of the Committee of Ministers to member States on the responsibility of public authorities for academic freedom and institutional autonomy. In this Recommendation, academic freedom and institutional autonomy are characterised as “essential values of higher education” which “serve the common good of democratic societies”. It is also emphasised that “academic freedom should guarantee the right of both institutions and individuals to be protected against undue outside interference, by public authorities or others”, which is “an essential condition for the search for truth”, and that “[u]niversity staff and/or students should be free to teach, learn and research without the fear of disciplinary action, dismissal or any other form of retribution” (see paragraphs 4 and 5 of the Recommendation).\n\n5.  Thus, although scholars’ personal academic freedom is by all means a manifestation of freedom of expression covered by Article 10, it would make little sense to attempt to justify the specific instance of “extramural” academic speech by a general reference to “the needs of a democratic society”, the typical justification accepted for freedom of expression in the Court’s case-law. This would be superficial. Convincing justification for impugned “extramural” academic speech can very often be arrived at only if one takes into consideration the need to communicate ideas, which is protected for the sake of the advancement of learning, knowledge and science.\n\n6.  There is no Chinese wall between science and a democratic society. On the contrary, there can be no democratic society without free science and free scholars. This interrelationship is particularly strong in the context of social sciences and law, where scholarly discourse informs public discourse on public matters including those directly related to government and politics. In Recommendation No. R(2000)12 of the Committee of Ministers to member States on the social sciences and the challenge of transition, it is emphasised that “the social sciences play a strategic role in guaranteeing an informed public and in building a society based on democracy” and that “all democracies have a growing need for the social sciences for their economic and social development, to help their institutions to understand and to solve societal problems, to increase the confidence of their citizens in democracy and to enhance the vigour of the democratic process itself, encompassing electoral politics, government, and civil society”. As a matter of principle, social and legal scientists’ contributions to public discourse and other “extramural” utterances that are based on their research, professional expertise and competence serve the public interest. It is for this reason that social and legal scientists’ judgments, those of value no less than those of fact, where these academics freely express their views and opinions on matters belonging to the area of their research, professional expertise and competence, deserve the highest level of protection under Article 10. True, in general, in order to be protected under Article 10, a public comment or utterance on any matter, not only on one of public concern and irrespective of who has pronounced it, does not need to have an “academic element”. However, ceteris paribus, the presence or absence of an “academic element” in an impugned comment or utterance may be decisive in finding whether a particular “speech” which otherwise would constitute an unlawful infringement of personal rights is protected under Article 10.\n\n7.  In this case the Court has been confronted with “extramural speech” by Mr Erdoğan, namely his public comments on a matter of public concern in the area of his professional competence, which is constitutional law. In paragraph 40 of the judgment, the majority have cited Aksu v. Turkey ([GC], nos. 4149/04 and 41029/04, § 71, ECHR 2012) in finding that “it is ... consistent with the Court’s case-law to submit to careful scrutiny any restrictions on the freedom of academics to carry out research and to publish their findings”. This very general principle, which we fully endorse, calls for a tool for its application, that is to say an applicable test by which it could be determined whether academic freedom, and not only freedom of expression as an “umbrella concept”, has been impeded. So far, no such test has been applied in the Court’s case-law. This case presented an opportunity to fill this gap. Regrettably, this opportunity has not been taken.\n\n8.  We submit that in determining whether “speech” has an “academic element” it is necessary to establish: (a) whether the person making the speech can be considered an academic; (b) whether that person’s public comments or utterances fall within the sphere of his or her research; and (c) whether that person’s statements amount to conclusions or opinions based on his or her professional expertise and competence. These conditions being satisfied, an impugned statement must enjoy the utmost protection under Article 10, as indicated in paragraph 6 above. Where and how (inter alia, in what form of publication or to what audience) the “speech” was given or was otherwise made public is a secondary, auxiliary and often not decisive factor.\n\n9.  Turning to the circumstances of this particular case, the reasoning set out in paragraph 45 of the judgment has to be cited, namely that “when account is taken of the content of the article as a whole, and the context and the form in which they were expressed, the Court is of the opinion that the impugned strong and harsh remarks contained in the article, set out in general terms, with respect to the judges of the Constitutional Court, cannot be construed as a gratuitous personal attack against the claimants”. In fact, to substantiate this finding only one argument has been explicitly put forward, namely that Mr Erdoğan’s “article ... was published in a quasi-academic quarterly as opposed to a popular newspaper”. That is clearly not enough and could therefore be misleading. We think that it should also have been explicitly noted that the said “strong and harsh remarks ... with respect to the judges of the Constitutional Court”, as value judgments, were part of an explanatory opinion based on the scholarly analysis conducted by a professional academic in the field of constitutional law. This is precisely what can justify their protection under Article 10 in the context in which they were expressed. We do not intend to speculate here whether hypothetical generalised “strong and harsh remarks” of an identical nature but lacking an “academic element” (for example, because they were made by a non-academic commentator) would likewise have been regarded as not constituting “a gratuitous personal attack against the claimants” and would enjoy the same level of protection under Article 10, even if they had been made public in the same or equivalent “quasi-academic” journal.\n\n10.  This is by no means to deny the offensive nature of the personal conclusions of Mr Erdoğan’s article. Under “ordinary” circumstances such language, especially if read in isolation, should raise serious concerns as being offensive to personal reputation, in particular because it depicts identifiable members of a court on the grounds of their judgment. The Court’s case-law has on more than one occasion recognised that “the courts – the guarantors of justice, whose role is fundamental in a State based on the rule of law – must enjoy public confidence; and it may therefore prove necessary to protect judges from offensive and abusive verbal attacks” (see De Haes and Gijsels v. Belgium, 24 February 1997, § 37, Reports of Judgments and Decisions 1997–I; Janowski v. Poland [GC], no. , § 33, ECHR 1999-I; and Ungváry and Irodalom Kft. v. Hungary, no. 64520/10, § 44, 3 December 2013). However, in the present case the Court has dealt with a situation where a professor of constitutional law had offered a scholarly analysis of a Constitutional Court judgment, a matter clearly within his academic expertise and competence. His professional analysis preceded his opinion on the personalities of certain judges, and the opinion was based on that analysis. Professor Erdoğan, after having considered alternative explanations for the specific reasoning and conclusions of the Constitutional Court, came to the conclusion that the judgment analysed was unprofessional and that this lack of professionalism originated in the lack of professionalism of the judges of that court. This is an informed opinion – not in the sense that it is factually correct, but in the sense that it is research-and-facts-related. To express such an opinion in that situation was a legitimate thing to do for an academic within the scope of the professional freedom needed in the field of constitutional law, which by its nature plays “a strategic role in guaranteeing an informed public and in building a society based on democracy” (see Recommendation No. R(2000)12, cited above). We find that these considerations were not properly taken into account in the proportionality analysis, when the domestic courts accepted that the protection of the reputation of judges – which is necessary in a democratic society – did not allow a constitutional law professor to express his informed opinion, even if factually incorrect, on the alleged lack of professionalism of the judges of the Constitutional Court.\n\n10.  This is by no means to deny the offensive nature of the personal conclusions of Mr Erdoğan’s article. Under “ordinary” circumstances such language, especially if read in isolation, should raise serious concerns as being offensive to personal reputation, in particular because it depicts identifiable members of a court on the grounds of their judgment. The Court’s case-law has on more than one occasion recognised that “the courts – the guarantors of justice, whose role is fundamental in a State based on the rule of law – must enjoy public confidence; and it may therefore prove necessary to protect judges from offensive and abusive verbal attacks” (see De Haes and Gijsels v. Belgium, 24 February 1997, § 37, Reports of Judgments and Decisions 1997–I; Janowski v. Poland [GC], no. , § 33, ECHR 1999-I; and Ungváry and Irodalom Kft. v. Hungary, no. 64520/10, § 44, 3 December 2013). However, in the present case the Court has dealt with a situation where a professor of constitutional law had offered a scholarly analysis of a Constitutional Court judgment, a matter clearly within his academic expertise and competence. His professional analysis preceded his opinion on the personalities of certain judges, and the opinion was based on that analysis. Professor Erdoğan, after having considered alternative explanations for the specific reasoning and conclusions of the Constitutional Court, came to the conclusion that the judgment analysed was unprofessional and that this lack of professionalism originated in the lack of professionalism of the judges of that court. This is an informed opinion – not in the sense that it is factually correct, but in the sense that it is research-and-facts-related. To express such an opinion in that situation was a legitimate thing to do for an academic within the scope of the professional freedom needed in the field of constitutional law, which by its nature plays “a strategic role in guaranteeing an informed public and in building a society based on democracy” (see Recommendation No. R(2000)12, cited above). We find that these considerations were not properly taken into account in the proportionality analysis, when the domestic courts accepted that the protection of the reputation of judges – which is necessary in a democratic society – did not allow a constitutional law professor to express his informed opinion, even if factually incorrect, on the alleged lack of professionalism of the judges of the Constitutional Court.","title":""}
{"_id":"passage_789","text":"PROCEDURE\n\n1.  The case originated in an application (no. 19940/05) against the Republic of Armenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Armenian nationals, Mr Grigori Gharibyan, Mrs Gohar Gharibyan and Mrs Anna Gharibyan (“the applicants”), on 1 June 2005.\n\n2.  The applicants were represented by Mr A. Grigoryan, a lawyer practising in Yerevan. The Armenian Government (“the Government”) were represented by their Agent, Mr G. Kostanyan, Representative of the Republic of Armenia at the European Court of Human Rights.\n\n3.  On 28 September 2007 the application was communicated to the Government.\n\n4.  On 15 November 2011 the Court decided to strike part of the application out of its list of cases in accordance with Article 37 § 1 (a) of the Convention on the basis of the Government’s unilateral declaration and to declare the remainder inadmissible.\n\n5.  On 10 July 2012 the Court decided to restore part of the application to its list of cases in accordance with Article 37 § 2 of the Convention.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n6.  The applicants were born in 1946, 1954 and 1985 respectively and live in Yerevan.\n\n7.  The applicants jointly owned a flat which measured 44.1 sq. m. and was situated at 25 Byuzand Street, Yerevan.\n\n8.  On 1 August 2002 the Government adopted Decree no. 1151-N, approving the expropriation zones of the real estate situated within the administrative boundaries of the Kentron District of Yerevan to be taken for State needs for town-planning purposes, having a total area of 345,000 sq. m. Byuzand Street was listed as one of the streets falling within such expropriation zones. A special body, the Yerevan Construction and Investment Project Implementation Agency (hereafter, the Agency) was set up to manage the implementation of the construction projects.\n\n9.  On 7 September 2004 the applicants’ flat was valued upon the request of the Agency by a valuation organisation. The market value of the flat was found to be 16,350 United States dollars (USD).\n\n10.  By a letter of 14 January 2005 the Agency informed the applicants that their flat was subject to expropriation and that it had been valued at USD 16,350 by an independent licensed organisation. An additional sum of USD 12,638.55 was offered to the applicants as a financial incentive if they signed an agreement within five days.\n\n11.  The applicants did not accept the offer, not being satisfied with the amount of compensation offered.\n\n12.  On an unspecified date the Agency lodged a claim against the applicants, seeking to oblige them to sign an agreement on the taking of their flat for State needs and to have them evicted.\n\n13.  On 1 March 2005 the Kentron and Nork-Marash District Court of Yerevan granted the Agency’s claim, ordering the applicants to sign the agreement for the total amount of USD 16,350.\n\n14.  On 15 March 2005 the applicants lodged an appeal.\n\n15.  On 30 March 2005 the Civil Court of Appeal granted the Agency’s claim upon appeal.\n\n16.  On 13 April 2005 the applicants lodged an appeal on points of law, in which they argued, inter alia, that the deprivation of their property was not prescribed by law as required by Article 28 of the Constitution.\n\n17.  On 26 May 2005 the Court of Cassation decided to dismiss the applicants’ appeal.\n\n18.  On an unspecified date the awarded sum was paid to the applicants.\n\nII.  RELEVANT DOMESTIC LAW\n\n19.  For a summary of the relevant domestic provisions see the judgment in the case of Minasyan and Semerjyan v. Armenia (no. 27651/05, §§ 23-25, 23 June 2009).\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION\n\n20.  The applicants complained under Article 1 of Protocol No. 1 and Article 8 of the Convention that the deprivation of their flat had not been prescribed by law. The Court considers that their complaint falls to be examined under Article 1 of Protocol No. 1 which, in so far as relevant, provides as follows:\n\n“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”\n\nA.  Admissibility\n\n21.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n22.  The applicants submitted that the deprivation of their possessions had not been carried out under the conditions provided for by law since it had been effected in violation of the guarantees of Article 28 of the Constitution.\n\n23.  The Government admitted that the expropriation of the applicants’ flat had not been carried out under the conditions provided for by law and constituted a violation of Article 1 of Protocol No. 1.\n\n24.  The Court reiterates that the first and most important requirement of Article 1 of Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of possessions should be lawful: the second sentence of the first paragraph authorises a deprivation of possessions only “subject to the conditions provided for by law” and the second paragraph recognises that States have the right to control the use of property by enforcing “laws”. Moreover, the rule of law, one of the fundamental principles of a democratic society, is inherent in all the Articles of the Convention (see Former King of Greece and Others v. Greece [GC], no. 25701/94, § 79, ECHR 2000-XII). The Court further reiterates that the phrase “subject to the conditions provided for by law” requires in the first place the existence of and compliance with adequately accessible and sufficiently precise domestic legal provisions (see Lithgow and Others v. the United Kingdom, 8 July 1986, § 110, Series A no. 102).\n\n25.  The Court notes that it has already examined identical complaints and arguments in a number of cases against Armenia and concluded that the deprivation of property was not carried out in compliance with “conditions provided for by law” (see, for example, Minasyan and Semerjyan, cited above, §§ 69-77; Tunyan and Others v. Armenia, no. 22812/05, §§ 35-39, 9 October 2012; and Danielyan and Others v. Armenia, no. 25825/05, §§ 35-39, 9 October 2012). The Court does not see any reason to depart from that finding in the present case.\n\n26.  There has accordingly been a violation of Article 1 of Protocol No. 1.\n\nII. APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n27.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n28.  The applicants claimed that they should be awarded as compensation the market value of the flat which had been promised to them by the Government’s unenforced unilateral declaration. The flat in question measured 115.6 sq. m. and the average market value per square metre amounted to USD 3,000. The applicants further claimed EUR 70,000 for non-pecuniary damage.\n\n29.  The Government objected to the proposed method of calculation of compensation for pecuniary damage and submitted that such compensation should be based on the violation found and not on the offer made by the Government in their unilateral declaration. The Government further submitted that the amount of non-pecuniary damages claimed was excessive.\n\n30.  The Court agrees with the Government that pecuniary damage must be calculated on the basis of the violation found. It notes that it has previously awarded pecuniary damages in an identical situation (see Minasyan and Semerjyan v. Armenia (just satisfaction), no. 27651/05, §§ 17-21, 7 June 2011), which it finds to be fully applicable to the present case. Using the same approach and making an assessment based on all the materials at its disposal, the Court estimates the pecuniary damage suffered at EUR 34,000 and decides to award this amount jointly to the applicants, while dismissing the remainder of their claim. It further decides to award each applicant EUR 6,000 in respect of non-pecuniary damage.\n\nB.  Costs and expenses\n\n31.  The applicants did not claim any costs and expenses, legal services having been provided to them on a pro bono basis.\n\nC.  Default interest\n\n32.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY,\n\n1.  Declares the complaint concerning the deprivation of the applicants’ flat admissible;\n\n2.  Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;\n\n3.  Holds\n\n(a)  that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n4.  Dismisses the remainder of the applicants’ claim for just satisfaction.\n\nDone in English, and notified in writing on 13 November 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_375","text":"PROCEDURE\n\n1.  The case originated in an application (no. 5738/10) against the Republic of Slovenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovenian national, Mr Milan Šabić (“the applicant”), on 18 December 2009.\n\n2.  The applicant was represented by Odvetniška Družba Matoz O.P. D.O.O., a law firm practising in Koper. The Slovenian Government (“the Government”) were represented their Agents, Mrs T. Mihelič Žitko and Mrs N. Aleš Verdir, State Attorneys.\n\n3.  The applicant alleged, in particular, that the conditions of his detention in Ljubljana prison amounted to a violation of Articles 3 and 8 of the Convention, and that he had no effective remedy in this regard as required by Article 13 of the Convention.\n\n4.  On 27 April 2010 the Court decided to give notice of the application to the Government. It also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1) and to give priority to it under Rule 41 of the Rules of the Court.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n5.  The applicant was born in 1963 and lives in Novo mesto.\n\n6.  The applicant served his prison sentence in the period between 24 November 2008 and 25 March 2010, in the semi-open and closed sections of Ljubljana prison as well as in the open section Ig, Ljubljana prison (the open section).\n\n7.  From 24 November 2008 to 22 January 2009 and from 15 July 2009 to 10 August 2009 he was held in the closed section. From 24 November 2008 to 22 January 2009 he was held in cell 3 (third floor) measuring 18 square metres (including a separate 1.72 square metre sanitary facility). From 15 July 2009 to 16 July 2009 he was held in cell 6 (third floor) measuring 18 square metres (including a separate 1.72 square metre sanitary facility). From 16 July 2009 to 10 August 2009 he was held in cell 4 (third floor) measuring 18 square metres (including a separate 1.72 square metre sanitary facility).\n\n8.  From 23 January 2009 to 12 July 2009 and from 10 August 2009 to 16 November 2009 he was held in the semi-open section. From 23 January 2009 to 12 July 2009 he was held in cell 138 (third floor) measuring 18.6 square metres (including a separate 1.72 square metre sanitary facility). From 10 August 2009 to 16 November 2009 he was held in cell 145 (third floor) measuring 18.8 square metres (including a separate 1.72 square metre sanitary facility).\n\n9.  All the cells in the closed and semi-open sections contained, apart from the furniture, five sleeping places (two bunk beds and one single bed). According to the applicant, five prisoners were being held in each of the cells during his detention. The Government, however, submitted that the number varied between four and five. Each cell had one 107 x 110 cm double casement window, which the prisoners could freely open or close.\n\n10.  As regards the general characteristics of the cells in the closed and semi-open sections, material conditions inside the cells, sanitary conditions and health care, see the judgment in Štrucl and Others v. Slovenia, nos. ,  and , §§ 21 to 32, 20 October 2011.\n\n11.  As to the out-of-cell time in the closed section, the Court found in the aforementioned judgment that sentenced prisoners in the closed section of the prison were locked up in their cells and were only able to leave them if they applied for certain activities, most of which were to take place in the recreation room. There was, however, only one 50square-metre recreation room per floor, which was to be used by ten inmates at most (see Štrucl and Others, § 86).\n\n12.  As to the out-of-cell time in the semi-open section, the Government submitted that the cell doors in the semi-open section of the prison were unlocked, except from 9.45 p.m. (on Fridays, Saturdays and before holidays from midnight) until 6.00 a.m. (on Saturdays, Sundays and during holidays until 8.30 a.m.). During this time prisoners could move freely in the corridor (35.7 square metres), living quarters of co-prisoners or in the indoor or outdoor exercise areas, in accordance with prison rules. The Government contended that this regime had been in place for several years.\n\n13.  From 12 July 2009 to 15 July 2009 and from 16 November 2009 to 25 March 2010 the applicant was held in the open section in cell 2 measuring 40 square metres, which contained six sleeping places. The Government submitted that four prisoners were held in that cell during the applicant’s detention. On 15 July 2009, he was transferred back to the closed section on the ground of abuse of a more liberal prison regime in the open section.\n\n14.  In the open section cells were open twenty-four hours per day and prisoners could, except when sleeping, move around freely, inside the open section (in a dining room, classroom, recreation room) and in outdoor areas (a park and sports ground). Further, the prisoners were allowed to exercise for four hours per day, they could do shopping in a shop outside the prison, their visits were unsupervised and their correspondence with people from outside the prison and the use of a telephone were not limited and supervised. The open section had a capacity for twenty seven prisoners in five cells. The prisoners shared sanitary facilities with five showers, five washbasins in the lavatory, three toilets on the ground floor and four toilets on the first floor of the section and a laundry room with a washing machine and a drier, which prisoners could freely use. Prisoners in the open section were also entitled to unsupervised visits outside prison for five hours during weekends, unsupervised leave and annual leave if working in Ljubljana prison.\n\n15.  During his imprisonment the applicant had twenty five consultations with a general practitioner and visited a dentist on two occasions. He never requested treatment by a psychiatrist.\n\n16.  As regards the cell temperature, the data provided by the Government showed that the average temperature in the cells in the late afternoon (5- 5.30 p.m.) in the second half of July and August 2009 had been approximately 28oC, exceeding 30oC on seven days.\n\nII.  RELEVANT DOMESTIC LAW AND PRACTICE AND RELEVANT INTERNATIONAL DOCUMENTS\n\n17.  For the relevant domestic law and practice as well as relevant international documents see Štrucl and Others, cited above, §§ 33-56.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION\n\n18.  The applicant complained that the conditions of his detention in Ljubljana prison amounted to a violation of Article 3 of the Convention. In particular, he complained of severe overcrowding which had led to a lack of personal space, poor sanitary conditions and inadequate ventilation, as well as excessive restriction on out-of-cell time, high temperatures in the cells, inadequate health care and psychiatric support and exposure to violence from other inmates due to insufficient security.\n\n19.  He submitted that the situation amounted to a structural problem, and that this has been acknowledged by the domestic authorities.\n\n20.  The applicant also complained about restrictions on telephone conversations. However, this complaint falls to be examined under Article 8 of the Convention only.\n\nArticle 3 of the Convention reads as follows:\n\n“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”\n\nA.  Admissibility\n\n1.  Complaint relating to physical conditions of detention\n\n21.  In Jevšnik v. Slovenia, no. 5747/10, §§ 25 – 26, 9 January 2014 the Court found that the conditions in which the applicant was held in the semiopen section in Ljubljana prison, personal space (about 3.3 or 3.4 square metres) taken together with the time he could spend outside the cell (from Monday to Thursday fifteen hours and forty five minutes per day, on Fridays eighteen hours, on Saturdays fifteen hours and a half and on Sundays thirteen hours and fifteen minutes), could not be considered as to be contrary to Article 3 of the Convention, as the restricted space in the sleeping facilities was compensated by the freedom of movement enjoyed by the applicant during the day-time. As regards the temperatures in cells in the summer of 2009, the Court found that although the applicant was imprisoned also in the second half of July and August 2009, his situation during that period could not be considered as being further exacerbated by high temperatures as he was held in the semi-open section and could therefore spent a considerable amount of time outside the cell.\n\n22.  In the present case, the applicant was held in the semi-open section with about 3.37 or 3.4 square metres of personal space and enjoyed the same out-of-cell time as the applicant in the case of Jevšnik v. Slovenia. As the conditions of the applicant’s detention in the semi-open section were the same as those of the applicant in the case of Jevšnik v. Slovenia, this part of the application should be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.\n\n23.  The Court reaches the same conclusion regarding the applicant’s detention in the open section, where the applicant had at least 6.7 square metres of personal space (or 10 square metres of personal space if sharing the cell with three other prisoners) and where the cells were open twentyfour hours per day, so that he could, except when sleeping, move around freely, inside the open section and in outdoor areas. The Government argued that the applicant did not seem to be complaining also as regards his detention in the open section. However, the Court finds that the applicant complained about the detention in Ljubljana prison and the open section Ig is a section of Ljubljana prison and in any event the conditions of detention there are not contrary to the Convention standards. Therefore, this part of the application must also be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.\n\n24.   As the Court rejected the part of the application regarding the applicant’s detention in the semi-open and open sections from 23 January 2009 to 15 July 2009 for being manifestly ill-founded, the part of the application regarding the detention in the closed section from 24 November 2008 to 22 January 2009 should be rejected as not complying with the sixmonth rule within the meaning of Article 35 § 3 (a) of the Convention, as the application was lodged to the Court only on 18 December 2009.\n\n25.  As regards the rest of the application, in the present case as well as in the case of Štrucl and Others and Praznik v. Slovenia, no. 6234/10, 28 June 2012, the Government raised an objection of non-exhaustion of domestic remedies, relying on the same arguments as in the above cases. In Štrucl and Others the Court joined the issue of exhaustion of domestic remedies to the merits of the complaint under Article 13 of the Convention. After finding a violation of the latter provision it rejected the Government’s objection (see Štrucl and Others, §§ 62 and 98-113). The Court sees no reason to reach a different conclusion in the present case. It further finds that this part of the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor is it inadmissible on any other grounds. It should therefore be declared admissible.\n\n2.  Complaints relating to inadequate health care and psychiatric support and insufficient security measures\n\n26.  The parties in the present case adduced the same arguments as in Štrucl and Others, where the Court found the part of the application concerning inadequate health care, psychiatric support and insufficient security measures manifestly ill-founded (§§ 63-69). The Court decided the same in Praznik. In the absence of any reasons that would lead the Court to reach a different conclusion in the present case, the Court finds these complaints to be manifestly ill-founded and should therefore be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.\n\nB.  Merits\n\n27.  The parties relied on the same arguments as in the case of Štrucl and Others (cited above, §§ 70-79).\n\n28.  The Court refers as regards the relevant principles to paragraphs 7276 of its judgment in the case of Mandić and Jović v. Slovenia, nos. 5774/10 and 5985/10, 20 October 2011.\n\n29.  The Court notes that the applicant was held in the closed section of Ljubljana prison from 15 July 2009 to 10 August 2009 with four other prisoners and with 3.26 square metres of personal space.\n\n30.  His personal space in the cells was further reduced by the amount of furniture (see Modarca v. Moldova, no. , § 63, 10 May 2007). As regards the Government’s suggestion that not all the beds in the cells were occupied all the time, the Court has already rejected it, finding that no official documents indicating the exact number of prisoners being held in a particular cell had been provided to substantiate it (see Štrucl and Others, cited above, § 81).\n\n31.  It was found in Praznik that the personal space of the applicant, which was for most of the period of his detention in the closed section about 3.3 square metres, and which was slightly larger than the space available to the prisoners in Štrucl and Others, still fell short of the recommendation of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. It was further found in Praznik that the applicant’s situation was exacerbated by the very limited time which could be spent outside the cell and by high temperatures in the cell in the summer (see Praznik, cited above, § 20) therefore, it was concluded that the conditions of detention were contrary to Article 3 of the Convention.\n\n32.  Likewise, in the present case the applicant was detained in the closed section for twenty-six days with 3.26 square metres of personal space and his situation was further exacerbated by the very limited time which could be spent outside the cell and by high temperatures in the cell in the summer. Having regard to the cumulative effects of these conditions of the applicant’s detention, the Court considers, as in Praznik, that the hardship he endured appears to have exceeded the unavoidable level inherent in detention, and finds that the resulting suffering went beyond the threshold of severity under Article 3 of the Convention (see, Praznik, cited above, § 21 and mutatis mutandis, Szél v. Hungary, no. 30221/06, § 18, 7 June 2011, and Peers v. Greece, no. 28524/95, § 75, ECHR 2001III).\n\n33.  The Court therefore finds that the conditions of detention in which the applicant was held in the closed section from 15 July 2009 to 10 August 2009 were contrary to Article 3 of the Convention.\n\nII.  ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION\n\n34.  The applicant complained that his allegations in respect of Article 3 also gave rise to a violation of Article 8 of the Convention. In addition, he complained about restrictions on telephone calls. As regards the latter, the applicant submitted that he had often been under pressure from other inmates to terminate his telephone conversations before the allotted time had expired.\n\n35.  Article 8 of the Convention reads as follows:\n\n“1. Everyone has the right to respect for his private and family life, his home and his correspondence.\n\n2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”\n\n36.  As already found in Praznik, the Court notes that in so far as the complaints under Article 8 overlap with those under Article 3 they should be for the same reasons and to the same extent declared admissible. In view of the applicant’s submissions and having regard to the finding relating to Article 3, the Court considers that no separate issue arises under Article 8 in this regard (see Orchowski v. Poland, no. 17885/04, § 198, ECHR 2009... (extracts)). However, as regards the complaints under Article 8 overlapping with those under Article 3, which were in the present case declared inadmissible, the Court considers that the situation in which the applicant was detained has also not given rise to an issue under Article 8 of the Convention. Therefore, this part of the application should be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.\n\n37.  As regards the applicant’s complaints concerning his contact with persons outside the prison, the Court notes that the parties adduced the same arguments as in the case of Štrucl and Others. In the latter case the Court found that these complaints were unsubstantiated (cited above, §§ 96-97). The Court sees no reason to reach a different conclusion in the present case. These complaints should therefore be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.\n\nIII.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION\n\n38.  The applicant complained that owing to the systemic nature of the inadequate prison conditions he did not have any effective remedy at his disposal as regards his complaints under Articles 3 and 8 of the Convention. In any event, there is no evidence that the remedies which were available in theory could work effectively in practice when it came to prison conditions and the treatment of prisoners. He cited Article 13 of the Convention, which reads as follows:\n\n“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”\n\nA.  Admissibility\n\n39.  In so far as the applicant’s complaint under Article 13 of the Convention refers to the lack of effective remedies in respect of inadequate physical conditions of detention in the closed section from 15 July 2009 to 10 August 2009, as already found by the Court in Štrucl and Others and Praznik, this aspect of the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. It must therefore be declared admissible.\n\n40.  As to the lack of effective remedies in respect of inadequate physical conditions of detention in the semi-open and open sections of Ljubljana prison and in the closed section of Ljubljana prison from 24 November 2008 to 22 January 2009 and in respect of the allegedly inadequate medical and psychological care, inadequate security measures and the restrictions on maintaining contact with people outside the prison, having declared the relevant issues under Articles 3 and 8 of the Convention inadmissible, the Court concludes that the applicant has no arguable claim for the purpose of Article 13 of the Convention (see Visloguzov v. Ukraine, no. 32362/02, §§ 745, 20 May 2010). It follows that this aspect of the applicant’s complaint under Article 13 of the Convention should be rejected as manifestly illfounded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.\n\nB.  Merits\n\n41.  The parties’ arguments are identical to those in the case of Štrucl and Others (§§ 101-117) in which the Court found that none of the remedies relied on by the Government could be regarded with a sufficient degree of certainty as constituting an effective remedy for the applicants (ibid., §§ 11833). Since there appear to be no reasons to reach a different conclusion in the present case, the Court finds that there has been a violation of Article 13 of the Convention on account of the lack of an effective and accessible remedy under domestic law for the applicant’s complaints in respect of the conditions of his detention\n\nIV.  APPLICATION OF ARTICLE 46 OF THE CONVENTION\n\n“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.\n\n2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.”\n\n43.  The applicant argued that his allegations related to a structural problem of overcrowding in Slovenian prisons. This assertion was disputed by the Government.\n\n44.  The parties’ arguments are identical to those in the case of Štrucl and Others. In the latter case the Court emphasized the need to take steps to reduce the number of prisoners in Ljubljana prison (ibid., §§ 137-141). In view of the fact that the applicant’s complaint of a structural problem applies to the same period of time that was addressed in Štrucl and others (2009), the Court considers that it raises no separate issue which would call for an examination under Article 46 in the present case.\n\nV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n45.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n46.  The applicant claimed 15,000 euros (EUR) in respect of nonpecuniary damage.\n\n47.  The Government contested the claim.\n\n48.  The Court awards the applicant EUR 1,000 in respect of nonpecuniary damage.\n\nB.  Costs and expenses\n\n49.  The applicant also claimed EUR 1,520 for costs and expenses incurred before the Court. This sum consisted of EUR 1,500 in lawyer’s fees, which he claimed were calculated on the basis of statutory domestic rates and EUR 20 for material expenses.\n\n50.  The Government argued that this claim was excessive. They also argued that the Court should take into account the fact that the applicant’s representative was representing a number of other applicants before the Court and had submitted almost identical pleadings in all these cases.\n\n51.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. With regard to an applicant’s Convention costs, the Court reiterates that it does not consider itself bound by domestic scales and practices, although it may derive some assistance from them (see, among many other authorities, Gaspari v. Slovenia, no. 21055/03, § 83, 21 July 2009, and Başkaya and Okçuoğlu v. Turkey [GC], nos. 23536/94 and 24408/94, § 98, ECHR 1999-IV). In the present case, regard being had to the information in its possession and in particular the fact that the law firm representing the applicant has already been reimbursed in other cases for preparation of submissions almost identical to the present ones (see Mandić and Jović, cited above, §§ 133-35, Štrucl and Others, cited above, §§ 146-48 and Praznik, cited above §§ 38-40), the Court considers it reasonable to award the sum of EUR 500 to cover the costs of the proceedings before the Court.\n\nC.  Default interest\n\n52.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Declares the complaint concerning the physical conditions of detention under Articles 3 and 8 of the Convention as regards the detention in the closed section from 15 July 2009 to 10 August 2009, as well as the complaint under Article 13 of the Convention relating to the complaint concerning the physical conditions of detention in the closed section from 15 July 2009 to 10 August 2009, admissible and the remainder of the application inadmissible;\n\n2.  Holds that there has been a violation of Article 3 of the Convention as regards the detention in the closed section from 15 July 2009 to 10 August 2009;\n\n3.  Holds that there is no need to examine the complaint concerning the physical conditions of detention in the closed section under Article 8 of the Convention;\n\n4.  Holds that there has been a violation of Article 13 of the Convention;\n\n5.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n6.  Dismisses the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 3 April 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_794","text":"PROCEDURE\n\n1.  The case originated in an application (no. 11982/02) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Ernest Ernestovich Novinskiy (“the applicant”), on 21 February 2002. Before the adoption of the judgment, the Court was informed that the applicant had passed away on 2 January 2009. However, his widow, Ms Olga Aleksandrovna Novinskaya, expressed her wish to pursue the application. For practical reasons Mr Ernest Ernestovich Novinskiy will continue to be called “the applicant” in this judgment, although Ms Olga Aleksandrovna Novinskaya is now to be regarded as such (Dalban v. Romania [GC], no. 28114/95, § 1, ECHR 1999VI).\n\n2.  The applicant, who had been granted legal aid, was represented by his wife, Mrs O. Novinskaya, and by Mrs O. Preobrazhenskaya of the International Protection Centre, . The Russian Government (“the Government”) were represented by Mr P. Laptev and Mrs V. Milinchuk, former Representatives of the  at the European Court of Human Rights.\n\n3.  The applicant alleged, in particular, that the conditions of his detention in IZ-63/1 (from 11 to 16 June 2001 and from 13 November to 5 December 2001) and IZ-77/3 (between 16 June and 13 November 2001) had been appalling and that the prison authorities had put pressure on him and some of his fellow prisoners in connection with his application to the Court.\n\n4.  By a decision of 6 December 2007, the Court declared the application partly admissible.\n\n5.  The applicant and the Government each filed further written observations (Rule 59 § 1). The Chamber decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine).\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n6.  The applicant was born in 1963 and previously resided in the town of .\n\nA.  Criminal proceedings against the applicant\n\n7.  On 22 December 1999 police officers searched the applicant’s flat and arrested him on suspicion of having committed a number of crimes.\n\n8.  Thereafter the applicant was remanded in custody pending the outcome of the criminal proceedings against him.\n\n9.  The applicant alleged that he had been tortured during the pre-trial investigation.\n\n10.  By a judgment of 1 November 2000 the  convicted the applicant and a number of co-accused and sentenced them to various terms of imprisonment. Having regard to various pieces of evidence, including the oral evidence given by a number of witnesses, the court found the applicant guilty of organising and inciting others to murder and bribery and sentenced him to twenty-one years’ imprisonment.\n\n11.  The applicant, one of his co-accused and their counsel appealed against the judgment of 1 November 2000.\n\n12.  On 22 October 2001 the Supreme Court examined and partly allowed the defence appeals. The applicant was acquitted of some of the charges and his sentence was reduced to nineteen years’ imprisonment.\n\nB.  The applicant’s pre-trial detention\n\nB.  The applicant’s pre-trial detention\n\nB.  The applicant’s pre-trial detention\n\n13.  The parties agree on the following time-line with regard to the applicant’s pre-trial detention.\n\n14.  The applicant was initially arrested on 22 December 1999. He has remained in detention since that date. Pending criminal proceedings against him, he was detained intermittently in IVS-1, IZ-63/1, IZ-77/3 and IZ-63/2.\n\n15.  From 11 to 16 June 2001 he was detained in IZ-63/1. On 16 June 2001 the applicant was sent to IZ-77/3 in the city of  to take part in the appeal proceedings in his case. On 13 November 2001 the authorities transferred the applicant back to IZ-63/1. The applicant remained there until 5 December 2001. On that date he was transferred to prison facility IK-13 of the Samara Region to serve his sentence of imprisonment. Some years later, on 23 August 2006, the applicant was transferred from IK-13 to IK-26.\n\n1.  Conditions of the applicant’s detention in pre-trial detention centre IZ-63/1 in the town of\n\n16.  From 11 to 16 June 2001 and from 13 November to 5 December 2001 the applicant was detained in cell no. 36 of IZ-63/1.\n\n(a)  Information submitted by the parties at the admissibility stage of the proceedings\n\n17.  According to the Government, the cell measured 34.02 square metres (6.3 x 5.4 x 3.1 metres), had a window and contained eight sleeping places, with no more than seven inmates being held together with the applicant.\n\n18.  The applicant stated that the cell measured around 30 square metres, contained ten two-tier beds designed for twenty detainees and a wooden table for ten persons. There were between 18 and 32 detainees in the cell at the relevant time. The prisoners were permitted daily outdoor exercise which lasted for 40 minutes. It was cold in the cell in winter (+13o C to +15o C) and stiflingly hot (+30o C to +40o C) in summer.\n\n19.  To support his allegations, the applicant referred to statements of support signed by a number of his fellow inmates who had witnessed the conditions of detention in the same cell or in other cells of IZ-63/1 (see paragraphs 37, 40, 43, 47, 56, 58, 59, 63 and 65 below).\n\n20.  The Government disputed the validity and veracity of these statements, submitting that none of the witnesses in question had been detained in the same cell simultaneously with the applicant.\n\n(b)  Information submitted by the parties at the post-admissibility stage of the proceedings\n\n21.  The Government were requested to submit specific information on the number of inmates and beds in pre-trial detention centre IZ-63/1 from 11 to 16 June 2001 and from 13 November to 5 December 2001. They were invited to provide separate information for each day of the periods in question.\n\n22.  In response the Government submitted that no more than 1,100 inmates had been held in IZ-63/1 during the specified periods.\n\n22.  In response the Government submitted that no more than 1,100 inmates had been held in IZ-63/1 during the specified periods.\n\n23.  They could not submit copies of official logs and documentation as these documents had been destroyed following the expiry of the time-limit for their storage. From the documents confirming the destruction it follows that the registration logs in respect of the cells for the following three periods – 3 June to 25 September 2001, 26 September to 22 November 2001 and 23 November 2001 to 5 March 2002 – were destroyed in January 2007. The duty sheet (постовая ведомость) for June and November-December 2001 was destroyed in March 2005. The certificates on daily movements of inmates (справки о движении заключённых за сутки), daily logs on the presence and movements of inmates (суточные сводки о наличии и движении заключённых) and lists of inmates’ moves between cells (списки перемещения заключённых из камеры в камеру) for the year 2001 were destroyed in February 2003.\n\n23.  They could not submit copies of official logs and documentation as these documents had been destroyed following the expiry of the time-limit for their storage. From the documents confirming the destruction it follows that the registration logs in respect of the cells for the following three periods – 3 June to 25 September 2001, 26 September to 22 November 2001 and 23 November 2001 to 5 March 2002 – were destroyed in January 2007. The duty sheet (постовая ведомость) for June and November-December 2001 was destroyed in March 2005. The certificates on daily movements of inmates (справки о движении заключённых за сутки), daily logs on the presence and movements of inmates (суточные сводки о наличии и движении заключённых) and lists of inmates’ moves between cells (списки перемещения заключённых из камеры в камеру) for the year 2001 were destroyed in February 2003.\n\n24.  Instead, the Government submitted the following statements dated 10 January 2008 from officers D.K. and D.S., who had both served in that prison at the relevant time:\n\n“In accordance with decree no. 63 of the Ministry of Justice of the RF dated 19 February 2001, the capacity of pre-trial detention centre no. 1 of the town of  was 1,100 inmates in 2001 and the overall number of inmates did not exceed that figure.\n\nCell no. 36 is equipped with eight sleeping places. In 2001 there were no more than eight inmates in the cell, including [the applicant].”\n\nCell no. 36 is equipped with eight sleeping places. In 2001 there were no more than eight inmates in the cell, including [the applicant].”\n\n25.  The Government also submitted, with reference to official certificates issued by the head of the prison authorities of IZ-63/1, that there had been 1,056 beds for inmates and 44 beds in the hospital unit of facility IZ-63/1. They also referred to order no. 63 of the Ministry of Justice dated 19 February 2001 on, among other things, the capacity of pre-trial detention centres in . The order states specifically that IZ/63-1 had at the relevant time an overall living surface in cells of 4,400 square metres and was capable of accommodating 1,100 inmates.\n\n25.  The Government also submitted, with reference to official certificates issued by the head of the prison authorities of IZ-63/1, that there had been 1,056 beds for inmates and 44 beds in the hospital unit of facility IZ-63/1. They also referred to order no. 63 of the Ministry of Justice dated 19 February 2001 on, among other things, the capacity of pre-trial detention centres in . The order states specifically that IZ/63-1 had at the relevant time an overall living surface in cells of 4,400 square metres and was capable of accommodating 1,100 inmates.\n\n26.  The applicant partly agreed and partly disagreed with the information submitted by the Government. He stated that he may have remembered the exact number of inmates incorrectly and it was likely that in the specified periods there had been between 14 and 18 inmates with him in the cell. The applicant insisted that the cell was nevertheless overcrowded. He also specified that there had been eight two-tier bunk beds which had provided a total of sixteen sleeping places.\n\n27.  He submitted further statements by former inmates Mr S.V. Sidorchuk and Mr S.A. Rassokhin, who both again confirmed their earlier support (see paragraphs 46 and 51 below).\n\n27.  He submitted further statements by former inmates Mr S.V. Sidorchuk and Mr S.A. Rassokhin, who both again confirmed their earlier support (see paragraphs 46 and 51 below).\n\n28.  The applicant also submitted an article dated 25 September 2006 entitled “SIZO-1 – The gates of the Samara Prison System” (СИЗО-1 – ворота Самарской УИС), from an official newspaper published by the Central Department for the Execution of Sentences of the Ministry of Justice called Prison and Freedom (Тюрьма и воля) (issue no. 17-18), in which it was stated that:\n\n“... for over forty-two years the staff of SIZO [IZ-63/1] have been carrying out difficult tasks on the State’s behalf. They do so in difficult conditions. In the first place, they have to cope with overcrowding. Although it has a capacity of 1,200 persons, around 1,600 inmates are being held here, whilst a couple of years ago the number of inmates was in excess of 3,000. For continuous periods of time, not only male but also female inmates were being held there.”\n\n2.  Conditions of the applicant’s detention in pre-trial detention centre IZ-77/3 in the city of\n\n29.  Between 16 June and 12 November 2001 the applicant was held in IZ-77/3 in the city of .\n\n30.  The applicant submitted that he had been detained in cell no. 524, measuring 27 square metres and containing 24 bunk beds. During the period between June and November 2001 the cell held between 34 and 48 inmates. It was infested with insects and had neither a separate toilet nor proper ventilation.\n\n30.  The applicant submitted that he had been detained in cell no. 524, measuring 27 square metres and containing 24 bunk beds. During the period between June and November 2001 the cell held between 34 and 48 inmates. It was infested with insects and had neither a separate toilet nor proper ventilation.\n\n31.  The Government submitted that the applicant had been detained in cells no. 523 and no. 524. Cell no. 523 measured 35.8 square metres, had 32 sleeping berths and contained no more than 28 persons besides the applicant. Cell no. 524 measured 32.8 square metres, had 32 sleeping places and contained no more than 28 persons besides the applicant. Each of the cells had two windows.\n\n32.  The Government submitted handwritten statements by prison inspectors Kh. and L. dated 20 January 2006, in which they certified that in 2001 there had been no more than 28 persons in cells 523 and 524.\n\n33.  According to the applicant these two cells were similar to each other and measured about 27 square metres, with 24 sleeping places each. At all the relevant times there were between 32 and 48 inmates in these cells. The prisoners had to sleep in turns. The cells were infested with insects, cockroaches and lice. The applicant admitted that some sanitation work had been carried out, but noted that it had been to no avail as the insects from the prisoners’ bedding had re-infested the cells each time.\n\n3.  The Government’s factual submissions in respect of the above facilities\n\n34.  The Government submitted that the inmates in both prisons had been provided with all the necessary bed linen, including a mattress, a blanket, two sheets, a pillowcase and a towel.\n\n35.  In respect of both prisons, the Government submitted that all prisoners had a fifteen-minute shower every seven days, that all the cells had been equipped with day-time as well as night-time lighting, that there had been a central heating system in the cells, that the inmates had been provided with food in accordance with the relevant instructions and rules and had had the possibility of receiving food parcels from their relatives, that the prisoners had been provided with medical assistance and had been regularly examined by prison doctors, that the WC area in both prisons had been separated from the living area by a brick wall and that the applicant had never complained about the conditions of his detention at the domestic level.\n\nC.  Statements by the applicant’s fellow prisoners\n\n36.  In his observations on the admissibility of the case the applicant submitted a number of statements from his fellow prisoners.\n\n1.  Statements by Mr S.N. Vasilyev\n\n1.  Statements by Mr S.N. Vasilyev\n\n1.  Statements by Mr S.N. Vasilyev\n\n37.  In an undated statement Mr S.N. Vasilyev fully confirmed the applicant’s account of the conditions of detention, specifically supporting his submissions in respect of, among other things, conditions in IZ-63/1.\n\n37.  In an undated statement Mr S.N. Vasilyev fully confirmed the applicant’s account of the conditions of detention, specifically supporting his submissions in respect of, among other things, conditions in IZ-63/1.\n\n38.  In a statement dated 28 April 2006 Mr S.N. Vasilyev contested the Government’s factual submissions in respect of IZ-63/1. He stated that the Government’s presentation of the situation had been wrong, and he fully confirmed the applicant’s description of cells in IZ-63/1.\n\n38.  In a statement dated 28 April 2006 Mr S.N. Vasilyev contested the Government’s factual submissions in respect of IZ-63/1. He stated that the Government’s presentation of the situation had been wrong, and he fully confirmed the applicant’s description of cells in IZ-63/1.\n\n39.  Mr S.N. Vasilyev is currently at liberty, living in the town of .\n\n2.  Statement by Mr A.V. Bogolyubov\n\n2.  Statement by Mr A.V. Bogolyubov\n\n2.  Statement by Mr A.V. Bogolyubov\n\n40.  In an undated statement Mr A.V. Bogolyubov, who also spent some time in IZ-63/1 (although not simultaneously with the applicant), supported the applicant’s submissions in respect of that prison.\n\n41.  The Government also stated that one Mr A.V. Bogolyubov, whom they had traced to one of the prisons of the Samara Region, had never been detained in the same cell of the same prison in the Samara Region together with the applicant.\n\n42.  It appears that the Mr A.V. Bogolyubov referred to by the applicant is a different person from the one referred to by the Government. The former is at liberty and currently resides in the town of .\n\n3.  Statement by Mr  Rassokhin\n\n3.  Statement by Mr  Rassokhin\n\n3.  Statement by Mr  Rassokhin\n\n43.  In a statement of 3 March 2006 Mr S.A. Rassokhin confirmed the applicant’s account of the conditions of detention in IZ-63/1.\n\n44.  The Government also stated that one Mr S.A. Rassokhin, whom they had traced to one of the prisons of the Samara Region, had never been detained in the same cell of the same prison in the Samara Region together with the applicant.\n\n45.  It appears that the Mr S.A. Rassokhin referred to by the applicant is a different person from the one referred to by the Government. The former is at liberty and currently resides in the town of .\n\n45.  It appears that the Mr S.A. Rassokhin referred to by the applicant is a different person from the one referred to by the Government. The former is at liberty and currently resides in the town of .\n\n45.  It appears that the Mr S.A. Rassokhin referred to by the applicant is a different person from the one referred to by the Government. The former is at liberty and currently resides in the town of .\n\n46.  At the post-admissibility stage of the proceedings, the applicant submitted a fresh statement by Mr Rassokhin dated 27 January 2008, in which he said that he had been detained in IZ-63/1 in 2000-01 (although not in the same cell as the applicant) and had witnessed the fact that the actual number of beds in cells at that time was twice the figure submitted by the Government. Furthermore, in reality the cells measuring 30 square metres and containing 16 to 20 beds held twice as many inmates as there were beds.\n\n4.  Statement by Mr S.V. Sidorchuk\n\n4.  Statement by Mr S.V. Sidorchuk\n\n4.  Statement by Mr S.V. Sidorchuk\n\n47.  In a statement of 25 April 2006 Mr S.V. Sidorchuk said that he had spent some time in IZ-63/1 at approximately the same time as the applicant. Mr Sidorchuk confirmed the applicant’s account of the conditions of detention.\n\n48.  In response to this statement, the Government submitted the following information. According to them, the inquiry revealed that Mr S.V. Sidorchuk had never been detained simultaneously with the applicant. They did not appear to dispute that Mr Sidorchuk had been detained in IZ-63/1 and had witnessed the conditions of detention in that prison.\n\n49.  Furthermore, the Government submitted a statement from Mr Sidorchuk dated 24 August 2006, in which he retracted his earlier statement in support of the applicant’s complaints.\n\n49.  Furthermore, the Government submitted a statement from Mr Sidorchuk dated 24 August 2006, in which he retracted his earlier statement in support of the applicant’s complaints.\n\n49.  Furthermore, the Government submitted a statement from Mr Sidorchuk dated 24 August 2006, in which he retracted his earlier statement in support of the applicant’s complaints.\n\n50.  In a statement of 6 February 2007 submitted by the Government, Mr Sidorchuk said that he remained a witness in the case, that he had not withdrawn his statement and that no pressure had been put on him by anyone. He added that he had never been detained at the same time as the applicant, with the result that his account of the conditions of detention concerned only himself and not the applicant.\n\n50.  In a statement of 6 February 2007 submitted by the Government, Mr Sidorchuk said that he remained a witness in the case, that he had not withdrawn his statement and that no pressure had been put on him by anyone. He added that he had never been detained at the same time as the applicant, with the result that his account of the conditions of detention concerned only himself and not the applicant.\n\n51.  At the post-admissibility stage of the proceedings, the applicant submitted a fresh statement by Mr S.V. Sidorchuk dated 27 January 2008. Mr Sidorchuk was then at liberty and resided in the town of . He again confirmed the truth of the applicant’s factual allegations in respect of IZ-63/1. He also explained that his earlier retraction of the statement of 25 April 2006 had been due solely to the fact that at the relevant time he had applied for release on parole and that the prison officials had made insinuations and disguised remarks to the effect that his application for release might not be granted unless he retracted.\n\n51.  At the post-admissibility stage of the proceedings, the applicant submitted a fresh statement by Mr S.V. Sidorchuk dated 27 January 2008. Mr Sidorchuk was then at liberty and resided in the town of . He again confirmed the truth of the applicant’s factual allegations in respect of IZ-63/1. He also explained that his earlier retraction of the statement of 25 April 2006 had been due solely to the fact that at the relevant time he had applied for release on parole and that the prison officials had made insinuations and disguised remarks to the effect that his application for release might not be granted unless he retracted.\n\n52.  By letter of 21 March 2008 the applicant’s counsel, Ms Preobrazhenskaya, informed the Court that on 10 March 2008 Mr S.V. Sidorchuk had been apprehended by police officers and had spent the next six hours in the local department of the interior (the fact that Mr Sidorchuk was there between 1 p.m. and 7.15 p.m. is confirmed by an official certificate). He was questioned there by an assistant to the prosecutor, Mr S. Sviridov, in connection with his earlier statements in support of the applicant.\n\n53.  Mr S.V. Sidorchuk submitted a written statement dated 12 March 2008, according to which he was apprehended at 1.35 p.m. on 10 March 2008 and was then escorted to the police station, where he waited four and a half hours to be questioned by Mr S. Sviridov. The interview concerned the applicant’s case before the Court and the statements made by Mr S.V. Sidorchuk in that connection. No direct threats or overt intimidation were used, but Mr S.V. Sidorchuk stated that he had felt pressurised by the State in connection with the applicant’s case.\n\n54.  Mr S.V. Sidorchuk also submitted a copy of an interview record dated 10 March 2008 and a copy of the summons served on him by police officers on 10 March 2008. The interview record shows that he confirmed, among other things, the authenticity of his earlier statement dated 27 January 2008. The summons mentioned explicitly that Mr S.V. Sidorchuk was invited to an interview as a witness within the meaning of the domestic Code of Criminal Procedure, that he could come with his lawyer if he so wished and that he could be brought to the investigator by force or fined if he ignored the summons.\n\n54.  Mr S.V. Sidorchuk also submitted a copy of an interview record dated 10 March 2008 and a copy of the summons served on him by police officers on 10 March 2008. The interview record shows that he confirmed, among other things, the authenticity of his earlier statement dated 27 January 2008. The summons mentioned explicitly that Mr S.V. Sidorchuk was invited to an interview as a witness within the meaning of the domestic Code of Criminal Procedure, that he could come with his lawyer if he so wished and that he could be brought to the investigator by force or fined if he ignored the summons.\n\n55.  The Government acknowledged that the interview had taken place (having submitted copies of official duty rosters and police station logs to that effect as well as explanatory statements by the escorting police officers), but denied any pressure or coercion and argued that the aim had been to check the veracity of earlier statements made by Mr S.V. Sidorchuk.\n\n5.  Statement by V.I. Molochkov\n\n5.  Statement by V.I. Molochkov\n\n5.  Statement by V.I. Molochkov\n\n56.  In a statement of 18 April 2006 Mr V.I. Molochkov supported the applicant’s submissions in so far as they concerned cell no. 36 in IZ-63/1. It appears that Mr Molochkov was detained in that cell in 2001 at the same time as the applicant and that there were between 20 and 24 detainees and only 20 beds at that time.\n\n56.  In a statement of 18 April 2006 Mr V.I. Molochkov supported the applicant’s submissions in so far as they concerned cell no. 36 in IZ-63/1. It appears that Mr Molochkov was detained in that cell in 2001 at the same time as the applicant and that there were between 20 and 24 detainees and only 20 beds at that time.\n\n57.  The Government also stated that Mr V.I. Molochkov had never been detained in the same cell of the same prison in the Samara Region together with the applicant. According to them, he had been detained in a different cell of IZ-63/1 from 8 December 2000 until an unspecified date.\n\n6.  Joint statement by nineteen prisoners\n\n6.  Joint statement by nineteen prisoners\n\n6.  Joint statement by nineteen prisoners\n\n58.  The following nineteen prisoners who were serving their sentence in IK-13 along with the applicant also supported his application: Mr A.S.Tikhonov (in respect of IZ-63/1), Mr V.G. Pamurzin (in respect of IZ-63/1), Mr S.Z. Suleymanov (in respect of IZ-63/1), Mr D.V. Vodopyanov (in respect of the conditions of detention in IZ-63/1), Mr O.V. Tkachenko (all complaints), Mr M. Moiseyev (all complaints), Mr D.N. Kartashov (all complaints), Mr S.N. Smirnov (all complaints), Mr D.I. Karlov (all complaints), Mr A.V. Borodin (in respect of IZ-63/1 in 2001), Mr N.R. Kofinullov (all complaints), Mr V.M. Kapitonov (all complaints), Mr V.S. Kalashnikov (all complaints), Mr A.V. Pronin (all complaints), Mr M.A. Mikhalkin (all complaints), Mr S.V. Sulkin (all complaints), Mr S.S. Kirzhenko (all complaints), Mr S.V. Karyakin (in respect of IZ-63/1), Mr S.V. Ashkhabekov (all complaints).\n\n7.  Statement of Mr V.V. Slivin\n\n7.  Statement of Mr V.V. Slivin\n\n7.  Statement of Mr V.V. Slivin\n\n59.  In a statement of 27 April 2006 Mr V.V. Slivin mentioned that he had been detained from 1997 to 2002 in IZ-63/1 in overcrowded cells. According to Mr Slivin, the Government’s factual submissions could not reflect the true conditions in IZ-63/1 any earlier than 2003.\n\n60.  The Government objected to this statement, as the applicant and Mr V.V. Slivin had never been detained in IZ-63/1 simultaneously. The Government did not appear to dispute that Mr V.V. Slivin had witnessed the conditions of detention in IZ-63/1 from 1997 to 2002.\n\n60.  The Government objected to this statement, as the applicant and Mr V.V. Slivin had never been detained in IZ-63/1 simultaneously. The Government did not appear to dispute that Mr V.V. Slivin had witnessed the conditions of detention in IZ-63/1 from 1997 to 2002.\n\n61.  In a statement of 24 August 2006 Mr Slivin said that he had been detained in IZ-63/1 from 1997 to 2002, that he personally had had no complaints about the conditions of detention there and that he had promised no support to the applicant. Mr Slivin confirmed that he had previously supported the applicant only in so far as his own personal experience was concerned.\n\n61.  In a statement of 24 August 2006 Mr Slivin said that he had been detained in IZ-63/1 from 1997 to 2002, that he personally had had no complaints about the conditions of detention there and that he had promised no support to the applicant. Mr Slivin confirmed that he had previously supported the applicant only in so far as his own personal experience was concerned.\n\n62.  In a statement of 6 February 2007 submitted by the Government, Mr V.V. Slivin stated that he had never supported the application and described the applicant’s allegation concerning pressure by the prison authorities as unfounded. He also wrote that “all references to him” were “without basis”.\n\n8.  Statement by Mr A.A. Zotov\n\n8.  Statement by Mr A.A. Zotov\n\n8.  Statement by Mr A.A. Zotov\n\n63.  In a statement of 7 May 2006 Mr A.A. Zotov confirmed that in 1998 and 1999 the conditions of detention in IZ-63/1 had been similar to the applicant’s description and that in 2003 some renovation work had been carried out by the prison authorities.\n\n64.  The Government also stated that Mr A.A. Zotov had never been detained in the same cell of the same prison in the Samara Region together with the applicant. They conceded that Mr A.A. Zotov had been detained in IZ-63/1 from 31 October 1997 to 27 March 1998.\n\n9.  Statement by Mr I.V. Katkov\n\n9.  Statement by Mr I.V. Katkov\n\n65.  In a statement of 12 May 2006 Mr I.V. Katkov said that the prisons in question had suffered from overcrowding both in 2005 and in 2006.\n\n66.  The Government questioned this statement, submitting that Mr I.V. Katkov had never been detained simultaneously with the applicant. They did not appear to dispute that Mr I.V. Katkov had been detained in IZ63/1 in 2005 and 2006.\n\n66.  The Government questioned this statement, submitting that Mr I.V. Katkov had never been detained simultaneously with the applicant. They did not appear to dispute that Mr I.V. Katkov had been detained in IZ63/1 in 2005 and 2006.\n\n67.  The Government also submitted a statement by Mr I.V. Katkov dated 24 August 2006 in which he withdrew his support in respect of the applicant’s grievances.\n\n10.  Further statements by the applicant’s fellow inmates\n\n68.  The applicant submitted a number of further statements from his fellow inmates in support of his application, along with his observations on the merits of the case.\n\n68.  The applicant submitted a number of further statements from his fellow inmates in support of his application, along with his observations on the merits of the case.\n\n69.  In handwritten statements dated 27 January 2008 one S.V Yunoshev and one M.Yu. Kondratyev, who had served their sentences along with the applicant in IK-26, confirmed the applicant’s description of the cells in IZ63/1, including the fact that they had been equipped with two-tier bunk beds, and the overcrowding in all of the cells in which he had been detained. Mr S.V. Yunoshev had not been detained in the same cells as the applicant, but he stated that the whole establishment had been overcrowded to twice its capacity. He also confirmed the applicant’s version of events in respect of the abortive visit by the applicant’s wife on 19 February 2007 (see paragraphs 81-82 below).\n\nD.  Alleged interference with the applicant’s right of individual petition\n\n1.  Alleged pressure on witnesses\n\n70.  By letter of 13 September 2006 the applicant informed the Court that he had learnt that Mr S.V. Sidorchuk and Mr V.V. Slivin, under coercion from the authorities, had signed a retraction of their previous statements.\n\n71.  In the same letter he also alleged that the authorities had put “silent pressure” on him by refusing him access to work corresponding to his skills and preferences, that other prisoners had approached him with disguised threats, that there had been a general tightening of the prison regime “with reference to the applicant’s complaints to the Court” and that the authorities had sought to create a social vacuum around the applicant.\n\n71.  In the same letter he also alleged that the authorities had put “silent pressure” on him by refusing him access to work corresponding to his skills and preferences, that other prisoners had approached him with disguised threats, that there had been a general tightening of the prison regime “with reference to the applicant’s complaints to the Court” and that the authorities had sought to create a social vacuum around the applicant.\n\n72.  The Government in their letter of 20 February 2007 gave a detailed response to the applicant’s complaints and flatly denied his allegations, including those concerning the alleged pressure and tightening of the prison regime, claiming them to be unfounded. According to them, no pressure had been put on either Mr Sidorchuk or Mr Slivin.\n\n72.  The Government in their letter of 20 February 2007 gave a detailed response to the applicant’s complaints and flatly denied his allegations, including those concerning the alleged pressure and tightening of the prison regime, claiming them to be unfounded. According to them, no pressure had been put on either Mr Sidorchuk or Mr Slivin.\n\n72.  The Government in their letter of 20 February 2007 gave a detailed response to the applicant’s complaints and flatly denied his allegations, including those concerning the alleged pressure and tightening of the prison regime, claiming them to be unfounded. According to them, no pressure had been put on either Mr Sidorchuk or Mr Slivin.\n\n73.  The Government further submitted statements dated 6 February 2007 by the applicant’s fellow prisoners Mr V.V. Andreyev, Mr A.V. Ilyin, Mr I.A. Bokurskiy and Mr V.A. Myatlev, and statements from the applicant’s “good friends” Mr A.A. Skachkov, Mr A.S. Kobelev, Mr M.A. Cherantayev, Mr V.V. Gromadskiy and Mr V.E. Litvinov, who all confirmed that no pressure had been put on the applicant during his detention, that there had been no tightening of the prison regime or that at least the applicant had never spoken to them on the subject.\n\n73.  The Government further submitted statements dated 6 February 2007 by the applicant’s fellow prisoners Mr V.V. Andreyev, Mr A.V. Ilyin, Mr I.A. Bokurskiy and Mr V.A. Myatlev, and statements from the applicant’s “good friends” Mr A.A. Skachkov, Mr A.S. Kobelev, Mr M.A. Cherantayev, Mr V.V. Gromadskiy and Mr V.E. Litvinov, who all confirmed that no pressure had been put on the applicant during his detention, that there had been no tightening of the prison regime or that at least the applicant had never spoken to them on the subject.\n\n74.  Similar statements had been made by a foreman of the applicant’s prison group, Mr A.V. Temkinov, as well as by prison staff including doctors and medical assistants.\n\n75.  On 6 February 2007 the applicant too had made a statement to the prison authorities to the effect that no pressure had been put on him since his transfer to prison IK-26 on 23 September 2006.\n\n75.  On 6 February 2007 the applicant too had made a statement to the prison authorities to the effect that no pressure had been put on him since his transfer to prison IK-26 on 23 September 2006.\n\n76.  In response, the applicant submitted a handwritten statement by Mr V.V. Gromadskiy dated 27 November 2007 (see paragraph 73 above), explaining that the prison authorities had been putting pressure on him and other prisoners in connection with the applicant’s case and that the statement dated 6 February 2007 had been written as dictated by the head of prison IK-26.\n\n2.  Transfer from IK-13 to IK-26 on 23 August 2006\n\n77.  The applicant also submitted that the pressure placed on him by the authorities had been demonstrated by his allegedly unjustified transfer to prison facility IK-26 in August 2006 as well as the refusal of permission for a visit by his wife in mid-February 2007.\n\n77.  The applicant also submitted that the pressure placed on him by the authorities had been demonstrated by his allegedly unjustified transfer to prison facility IK-26 in August 2006 as well as the refusal of permission for a visit by his wife in mid-February 2007.\n\n78.  The Government commented on these allegations by stating the following.\n\n78.  The Government commented on these allegations by stating the following.\n\n79.  In respect of the applicant’s transfer from IK-13 to IK-26 on 23 August 2006, they submitted an official certificate issued by V.S., head of the Central Department of the Federal Service for the Execution of Sentences in the Samara Region. The certificate states as follows:\n\n“In accordance with the legislation in force on the execution of sentences, individuals sentenced to imprisonment for the first time are held separately from those who have served a previous sentence of imprisonment.\n\nWith a view to executing this legislative provision, [IK-13] was reorganised into a strict-regime correctional facility for dangerous recidivists, whilst [IK-26] was reorganised into a strict-regime correctional facility for persons sentenced to imprisonment for the first time. In view of this reform ..., [the applicant], who had not been sentenced to imprisonment previously, was transferred along with other convicted prisoners (total number of 126) on 23 August 2006 from [IK-13] to [IK-26].\n\nThe above-mentioned establishments are situated in the same area, within 200 metres of each other.”\n\n80.  In his observations on the merits of the case, the applicant stated that this explanation was inadequate and simply untrue. He submitted that his transfer had been arbitrary, since some of the prisoners who would otherwise have qualified for such a transfer remained for some reason in IK13 (the applicant cited the following names: I.A. Bakurskiy, V.V. Slivin, Ya.I. Pykin, S.V. Sidorchuk and N.R. Kafeyatullov). At the same time, some fellow prisoners in IK-26 had not been serving prison terms for the first time and hence, according to the Government’s logic, should not have remained there. The applicant also pointed out that the Government had obtained the retraction of statements by the witnesses S.V. Sidorchuk, I.V. Katkov and V.V. Slivin on 24 August 2006, which was the day after the applicant’s transfer to IK-26 on 23 August 2006.\n\n3.  Refusal of permission for visit\n\n3.  Refusal of permission for visit\n\n3.  Refusal of permission for visit\n\n81.  As regards the visit of the applicant’s wife, the Government submitted that on 19 February 2007 the applicant had asked for leave to see his wife, that on the same date leave had been granted (a copy of the applicant’s handwritten request with the prison officer’s stamp of approval on it was submitted), that the prison authority had made appropriate arrangements for the visit and that the visit had not taken place because the applicant’s wife failed to appear (handwritten reports by the prison officers concerned were submitted by the Government along with their observations on the merits of the case).\n\n81.  As regards the visit of the applicant’s wife, the Government submitted that on 19 February 2007 the applicant had asked for leave to see his wife, that on the same date leave had been granted (a copy of the applicant’s handwritten request with the prison officer’s stamp of approval on it was submitted), that the prison authority had made appropriate arrangements for the visit and that the visit had not taken place because the applicant’s wife failed to appear (handwritten reports by the prison officers concerned were submitted by the Government along with their observations on the merits of the case).\n\n81.  As regards the visit of the applicant’s wife, the Government submitted that on 19 February 2007 the applicant had asked for leave to see his wife, that on the same date leave had been granted (a copy of the applicant’s handwritten request with the prison officer’s stamp of approval on it was submitted), that the prison authority had made appropriate arrangements for the visit and that the visit had not taken place because the applicant’s wife failed to appear (handwritten reports by the prison officers concerned were submitted by the Government along with their observations on the merits of the case).\n\n82.  The applicant stated that his wife had wished to visit him on that date not in her private capacity but as his legal representative, with a view to collecting various documents for the purposes of submitting them to the Court. Permission for the visit was refused ostensibly because the applicant’s wife was not a lawyer, but merely a legal representative. At the same time, her visit in a private capacity had indeed been authorised but had she agreed to it, their communication would not have been covered by client-lawyer confidentiality rules and the applicant would not have been able to pass on to her his confidential documents, including the statements of his co-detainees. On 21 February 2007 the applicant’s wife had to hire a local lawyer, Ms Nechayeva, who later visited the applicant and successfully collected the documents in question. The applicant also joined his wife’s written statement dated 27 January 2008, confirming the course of events as described, and a copy of the order authorising Ms Nechayeva to represent the applicant.\n\nII.  Relevant domestic law\n\nA.  Rules on the prison regime in pre-trial detention centres (as approved by Ministry of Justice Decree No. 148 of 12 May 2000)\n\n83.  Rule 42 provided that all suspects and accused persons in detention had to be given, among other things: a sleeping place, bedding, including one mattress, a pillow and one blanket; bed linen, including two sheets and a pillow case; a towel; tableware and cutlery, including a bowl, a mug and a spoon; and seasonal clothes (if the inmate had no clothes of his own).\n\n84.  Rule 44 stated that cells in pre-trial detention centres were to be equipped, among other things, with a table and benches with a number of seating places corresponding to the number of inmates, sanitation facilities, tap water and lamps to provide day-time and night-time illumination.\n\n85.  Rule 46 provided that prisoners were to be given three warm meals a day, in accordance with the norms laid down by the Government of Russia.\n\n86.  Under Rule 47 inmates had the right to have a shower at least once a week for at least fifteen minutes. They were to receive fresh linen after taking their shower.\n\n87.  Rule 143 provided that inmates could be visited by their lawyer, family members or other persons, with the written permission of an investigator or an investigative body. The number of visits was limited to two per month.\n\nB.  Order No. 7 of the Federal Service for the Execution of Sentences dated 31 January 2005\n\n88.  Order No. 7 of the Federal Service for the Execution of Sentences of 31 January 2005 deals with implementation of the “Pre-trial detention centres 2006” programme.\n\n89.  The programme is aimed at improving the functioning of pre-trial detention centres so as to ensure their compliance with the requirements of Russian legislation. It expressly acknowledges the issue of overcrowding in pre-trial detention centres and seeks to reduce and stabilise the number of detainees in order to resolve the problem.\n\n90.  The programme mentions pre-trial detention centre IZ-77/3 amongst the ones affected. In particular, the programme states that, on 1 July 2004, the detention centre had a capacity of 1,109 inmates and in reality housed 1,562 detainees, in other words, 48.9% more than the permitted number.\n\nIII.  Relevant Council of  documents\n\n91.  The relevant extracts from the General Reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) read as follows:\n\nExtracts from the 2nd General Report [CPT/Inf (92) 3]\n\n“46.  Overcrowding is an issue of direct relevance to the CPT’s mandate. All the services and activities within a prison will be adversely affected if it is required to cater for more prisoners than it was designed to accommodate; the overall quality of life in the establishment will be lowered, perhaps significantly. Moreover, the level of overcrowding in a prison, or in a particular part of it, might be such as to be in itself inhuman or degrading from a physical standpoint.\n\n47.  A satisfactory programme of activities (work, education, sport, etc.) is of crucial importance for the well-being of prisoners ... [P]risoners cannot simply be left to languish for weeks, possibly months, locked up in their cells, and this regardless of how good material conditions might be within the cells. The CPT considers that one should aim at ensuring that prisoners in remand establishments are able to spend a reasonable part of the day (8 hours or more) outside their cells, engaged in purposeful activity of a varied nature ...\n\n48.  Specific mention should be made of outdoor exercise. The requirement that prisoners be allowed at least one hour of exercise in the open air every day is widely accepted as a basic safeguard ... It is also axiomatic that outdoor exercise facilities should be reasonably spacious ...\n\n49.  Ready access to proper toilet facilities and the maintenance of good standards of hygiene are essential components of a humane environment ...\n\n50.  The CPT would add that it is particularly concerned when it finds a combination of overcrowding, poor regime activities and inadequate access to toilet/washing facilities in the same establishment. The cumulative effect of such conditions can prove extremely detrimental to prisoners.\n\n51.  It is also very important for prisoners to maintain reasonably good contact with the outside world. Above all, a prisoner must be given the means of safeguarding his relationships with his family and close friends. The guiding principle should be the promotion of contact with the outside world; any limitations upon such contact should be based exclusively on security concerns of an appreciable nature or resource considerations ...”\n\nExtracts from the 7th General Report [CPT/Inf (97) 10]\n\n“13.  As the CPT pointed out in its 2nd General Report, prison overcrowding is an issue of direct relevance to the Committee’s mandate (cf. CPT/Inf (92) 3, paragraph 46). An overcrowded prison entails cramped and unhygienic accommodation; a constant lack of privacy (even when performing such basic tasks as using a sanitary facility); reduced out-of-cell activities, due to demand outstripping the staff and facilities available; overburdened health-care services; increased tension and hence more violence between prisoners and between prisoners and staff. This list is far from exhaustive.\n\nThe CPT has been led to conclude on more than one occasion that the adverse effects of overcrowding have resulted in inhuman and degrading conditions of detention ...”\n\nExtracts from the 11th General Report [CPT/Inf (2001) 16]\n\n“28.  The phenomenon of prison overcrowding continues to blight penitentiary systems across  and seriously undermines attempts to improve conditions of detention. The negative effects of prison overcrowding have already been highlighted in previous General Reports ...\n\n29.  In a number of countries visited by the CPT, particularly in central and eastern Europe, inmate accommodation often consists of large capacity dormitories which contain all or most of the facilities used by prisoners on a daily basis, such as sleeping and living areas as well as sanitary facilities. The CPT has objections to the very principle of such accommodation arrangements in closed prisons and those objections are reinforced when, as is frequently the case, the dormitories in question are found to hold prisoners under extremely cramped and insalubrious conditions ... Large-capacity dormitories inevitably imply a lack of privacy for prisoners in their everyday lives ... All these problems are exacerbated when the numbers held go beyond a reasonable occupancy level; further, in such a situation the excessive burden on communal facilities such as washbasins or lavatories and the insufficient ventilation for so many persons will often lead to deplorable conditions.\n\n30.  The CPT frequently encounters devices, such as metal shutters, slats, or plates fitted to cell windows, which deprive prisoners of access to natural light and prevent fresh air from entering the accommodation. They are a particularly common feature of establishments holding pre-trial prisoners. The CPT fully accepts that specific security measures designed to prevent the risk of collusion and/or criminal activities may well be required in respect of certain prisoners ... [E]ven when such measures are required, they should never involve depriving the prisoners concerned of natural light and fresh air. The latter are basic elements of life which every prisoner is entitled to enjoy ...”\n\nTHE LAW\n\nI.  THE STANDING OF THE APPLICANT’S WIDOW TO CONTINUE THE CASE\n\n92.  The Court notes at the outset that the applicant died on 2 January 2009, after having lodged his application under Article 34 of the Convention. It recalls that in various cases in which an applicant died in the course of the Convention proceedings it took into account the statements of the applicant’s heirs or of close members of his family expressing their wish to pursue the application (see, among other authorities, Kalló v. Hungary, no. 30081/02, § 24, 11 April 2006). The Court considers that the applicant’s widow, who had stated her intention of continuing the proceedings, has a legitimate interest in obtaining a finding that there has been a breach of the applicant’s rights.\n\n93.  Accordingly, the Court finds that the applicant’s widow has standing to continue the present proceedings.\n\nII.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION\n\n94.  Under Article 3 of the Convention the applicant complained that the conditions of his detention in pre-trial detention centres IZ-63/1 (from 11 to 16 June and 13 November to 5 December 2001) and IZ-77/3 (between 16 June and 12 November 2001) had been deplorable. Article 3 provides as follows:\n\n“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”\n\nA.  Submissions of the parties\n\n95.  As regards IZ-63/1, the Government considered that the conditions of detention in that prison had not been incompatible with Article 3 of the Convention. As regards IZ-77/3, they appeared to acknowledge the existence of overcrowding, but argued that the problem resulted from objective factors such as the high crime rate and the limited capacity of the detention facilities. In their view, the mere fact of holding the applicant in an overcrowded cell, provided that all other conditions of detention were observed, was not incompatible with Article 3. They also challenged the statements of the applicant’s former inmates as erroneous and irrelevant.\n\n96.  The applicant disagreed and maintained his complaints. He argued that the data and figures provided by the Government were inaccurate.\n\nB.  The Court’s assessment\n\n97.  The Court notes that in its decision of 6 December 2007 it declared admissible the applicant’s complaints concerning his continued detention between 11 June and 5 December 2001.\n\n98.  Since the applicant was initially detained in IZ-63/1, then transferred to IZ-77/3 and after that re-detained in IZ-63/1, the Court will first examine the applicant’s submissions concerning his detention in pre-trial detention centre IZ-63/1 from 11 to 16 June 2001 and from 13 November to 5 December 2001, and then turn to his detention in IZ-77/3 between 16 June and 13 November 2001. The Court will conclude by providing an overall assessment of the applicant’s detention between 11 June and 5 December 2001 in both prisons.\n\n1.  The conditions of detention in pre-trial detention centre IZ-63/1\n\n99.  The parties mostly disagreed as to the specific conditions of the applicant’s detention in cell no. 36. However, there is no need for the Court to establish the truthfulness of each and every allegation, as the case file contains sufficient documentary evidence to confirm the applicants’ allegations of severe overcrowding in pre-trial detention centre IZ-63/1, which is in itself sufficient to conclude that Article 3 of the Convention has been breached.\n\n100.  The Court notes that the main characteristic which the parties did agree upon was that cell no. 36 measured 34 square metres. However, the applicant claimed that the cell had been equipped with eight two-tier beds for 16 persons and that the cell population exceeded the capacity for which the cells had been designed. The applicant also stated that overcrowding of cells had been a problem throughout the prison and confirmed his point with reference to statements by fellow prisoners who had been detained in various other cells in IZ-63/1 (see paragraphs 37-69 above). The Government, relying on the information provided by prison officers in facility no. IZ-63/1 (see paragraph 25 above) and the certificate issued by the head of IZ-63/1 (see paragraph 24 above), argued that the cell had only had eight sleeping places and that the applicant had not been detained with more than seven inmates throughout his stay in that cell. The Government further submitted that the relevant documents indicating the exact number of inmates in the cells had been destroyed in February 2003, March 2005 and January 2007 (see paragraph 23 above).\n\n101.  The Court observes that in certain instances the respondent Government alone have access to information capable of firmly corroborating or refuting allegations under Article 3 of the Convention and that a failure on a Government’s part to submit such information without a satisfactory explanation may give rise to the drawing of inferences as to the well-foundedness of the applicant’s allegations (see Ahmet Özkan and Others v. Turkey, no. 21689/93, § 426, 6 April 2004). Thus, the first issue to be examined is whether on the basis of the facts of the present case the Government’s failure to submit copies of the relevant prison documentation has been properly accounted for.\n\n102.  In this connection, the Court would note that the destruction of the relevant documents due to expiry of the time-limit for their storage, albeit regrettable, cannot in itself be regarded as an unsatisfactory explanation for the failure to submit them. The Court also has to look at the timing of that act as well as other relevant factual circumstances. In particular, regard should be had to whether the authorities appeared to have been acting with due care in this respect (see, for example, Oleg Nikitin v. Russia, no. 36410/02, §§ 48-49, 9 October 2008).\n\n103.  Having examined the copies of materials submitted by the Government, the Court notes with regret that they reveal that the authorities did not display sufficient diligence in handling the relevant prison documentation in the Strasbourg proceedings, since some of the relevant documents, and in particular registration logs in respect of the cells in IZ63/1, were destroyed in January 2007 (see paragraph 23 above), that is to say, after the case had been communicated to the respondent Government for comments on 5 December 2005.\n\n103.  Having examined the copies of materials submitted by the Government, the Court notes with regret that they reveal that the authorities did not display sufficient diligence in handling the relevant prison documentation in the Strasbourg proceedings, since some of the relevant documents, and in particular registration logs in respect of the cells in IZ63/1, were destroyed in January 2007 (see paragraph 23 above), that is to say, after the case had been communicated to the respondent Government for comments on 5 December 2005.\n\n104.  In so far as the Government referred to the statements by officers D.K. and D.S. dated 10 January 2008 as having evidentiary value and acting as a substitute for the original prison documentation, the Court would reiterate that on several previous occasions it has declined to accept the validity of similar statements on the ground that they could not be viewed as sufficiently reliable given the lapse of time involved (see Igor Ivanov v. Russia, no. 34000/02, § 34, 7 June 2007, and Belashev v. , no. 28617/03, § 52, 13 November 2007). The Court finds that these considerations hold true in the circumstances of the present case, since the events at issue had taken place around seven years before officers D.K. and D.S. gave their statements, and it is clear from the way the statements are formulated that the officers based them on their personal recollections and not on any objective data. Furthermore, the Government were requested to provide data in respect of each day of the applicant’s detention in IZ-63/1, whereas the officers merely stated that the number of inmates had not exceeded a certain figure. The Court finds that in the circumstances of the case and given the lack of any original prison documentation, such an answer is too vague and unspecific to enable the Court to make a firm finding regarding the alleged lack of overcrowding in the facility in question. Thus, the Court takes note of the statements by officers D.K. and D.S., but it finds no objective reason to attach greater weight to those statements compared to those made, for instance, by the inmates referred to by the applicant. Overall, the Court finds that the Government have not accounted properly for their failure to submit detailed information supported by copies of the original prison documentation, with the result that the Court may draw inferences from their conduct.\n\n104.  In so far as the Government referred to the statements by officers D.K. and D.S. dated 10 January 2008 as having evidentiary value and acting as a substitute for the original prison documentation, the Court would reiterate that on several previous occasions it has declined to accept the validity of similar statements on the ground that they could not be viewed as sufficiently reliable given the lapse of time involved (see Igor Ivanov v. Russia, no. 34000/02, § 34, 7 June 2007, and Belashev v. , no. 28617/03, § 52, 13 November 2007). The Court finds that these considerations hold true in the circumstances of the present case, since the events at issue had taken place around seven years before officers D.K. and D.S. gave their statements, and it is clear from the way the statements are formulated that the officers based them on their personal recollections and not on any objective data. Furthermore, the Government were requested to provide data in respect of each day of the applicant’s detention in IZ-63/1, whereas the officers merely stated that the number of inmates had not exceeded a certain figure. The Court finds that in the circumstances of the case and given the lack of any original prison documentation, such an answer is too vague and unspecific to enable the Court to make a firm finding regarding the alleged lack of overcrowding in the facility in question. Thus, the Court takes note of the statements by officers D.K. and D.S., but it finds no objective reason to attach greater weight to those statements compared to those made, for instance, by the inmates referred to by the applicant. Overall, the Court finds that the Government have not accounted properly for their failure to submit detailed information supported by copies of the original prison documentation, with the result that the Court may draw inferences from their conduct.\n\n105.  In the light of the above finding and having regard also to the evidence submitted by the parties, the Court observes that the case file contains sufficient indication that the prison in question was experiencing severe overcrowding of its premises during the applicant’s stay there. In particular, former detainees S.N. Vasilyev (see paragraphs 37-39 above), A.V. Bogolyubov (see paragraph 40 above), S.A. Rassokhin (see paragraphs 43 and 46 above), V.I. Molochkov (see paragraphs 56 and 57 above), S.V. Sidorchuk (see paragraphs 47 and 50 above as well as the Court’s conclusions under Article 34 in paragraphs 118-123) and V.V. Slivin (see paragraphs 59 and 61 above), in their largely uncontested statements relating to various dates between 1997 and 2002, all confirmed the fact that IZ-63/1 was severely overcrowded during their stay there. The Court is aware of the Government’s objection that none of the persons mentioned above was detained in cell no. 36 of IZ-63/1 along with the applicant. However, the objection remains a mere allegation as it is not supported by any original documentation which, according to the Government’s own position, was destroyed. Furthermore, being mindful of the objective difficulties experienced by applicants in substantiating their grievances in respect of the conditions of pre-trial detention in Russia, the Court is prepared to accept the above statements as sufficient confirmation of the applicant’s point that the overcrowding of cells was a problem throughout pre-trial detention centre IZ-63/1 for a number of years before, during and after the applicant’s detention there. The existence of this deplorable state of affairs may also be inferred from the information contained in an official newspaper of the Central Department for the Execution of Sentences of the Ministry of Justice, which estimated the population of the detention centre at over three thousand detainees, despite being designed to accommodate only one thousand two hundred inmates (see paragraph 28 above).\n\n105.  In the light of the above finding and having regard also to the evidence submitted by the parties, the Court observes that the case file contains sufficient indication that the prison in question was experiencing severe overcrowding of its premises during the applicant’s stay there. In particular, former detainees S.N. Vasilyev (see paragraphs 37-39 above), A.V. Bogolyubov (see paragraph 40 above), S.A. Rassokhin (see paragraphs 43 and 46 above), V.I. Molochkov (see paragraphs 56 and 57 above), S.V. Sidorchuk (see paragraphs 47 and 50 above as well as the Court’s conclusions under Article 34 in paragraphs 118-123) and V.V. Slivin (see paragraphs 59 and 61 above), in their largely uncontested statements relating to various dates between 1997 and 2002, all confirmed the fact that IZ-63/1 was severely overcrowded during their stay there. The Court is aware of the Government’s objection that none of the persons mentioned above was detained in cell no. 36 of IZ-63/1 along with the applicant. However, the objection remains a mere allegation as it is not supported by any original documentation which, according to the Government’s own position, was destroyed. Furthermore, being mindful of the objective difficulties experienced by applicants in substantiating their grievances in respect of the conditions of pre-trial detention in Russia, the Court is prepared to accept the above statements as sufficient confirmation of the applicant’s point that the overcrowding of cells was a problem throughout pre-trial detention centre IZ-63/1 for a number of years before, during and after the applicant’s detention there. The existence of this deplorable state of affairs may also be inferred from the information contained in an official newspaper of the Central Department for the Execution of Sentences of the Ministry of Justice, which estimated the population of the detention centre at over three thousand detainees, despite being designed to accommodate only one thousand two hundred inmates (see paragraph 28 above).\n\n106.  Thus, even disregarding the statements by Mr Yunoshev and Mr Kondratiyev, as the period to which they refer is unclear (see paragraph 69 above), the statements of Mr Zotov and Mr Katkov, as they do not relate to the relevant period of time (see paragraphs 63 to 67 above) and the joint statements in the applicant’s support, as being too vague and unspecific (see paragraph 58 above), the Court cannot but accept the applicant’s allegations concerning the severe overcrowding of his cell, as the prisoners would have had, depending on the exact number of inmates, between 1.9 and 2.4 square metres of space per person. The applicant was held in these conditions for five days in June 2001 and for three weeks in November and December 2001.\n\n2.  The conditions of detention in pre-trial detention centre IZ-77/3\n\n107.  The Court reiterates that between 16 June and 12 November 2001 the applicant was detained in IZ-77/3.\n\n108.  The Court notes that the parties disputed the actual conditions of the applicant’s detention in that facility. However, there is no need for the Court to establish the truthfulness of each and every allegation, because it finds a violation of Article 3 on the basis of the facts that have been presented by the respondent Government, for the following reasons.\n\n108.  The Court notes that the parties disputed the actual conditions of the applicant’s detention in that facility. However, there is no need for the Court to establish the truthfulness of each and every allegation, because it finds a violation of Article 3 on the basis of the facts that have been presented by the respondent Government, for the following reasons.\n\n108.  The Court notes that the parties disputed the actual conditions of the applicant’s detention in that facility. However, there is no need for the Court to establish the truthfulness of each and every allegation, because it finds a violation of Article 3 on the basis of the facts that have been presented by the respondent Government, for the following reasons.\n\n109.  Even on the assumption that the Government’s information and figures are correct and the applicant was indeed detained in cells nos. 523 and 524, measuring 35.8 and 32.8 square metres respectively, with no more than 28 co-detainees at any given time (see paragraph 31 above), it follows that the detainees, including the applicant, were afforded less than 1.3 and 1.2 square metres of personal space in their respective cells.\n\n3.  The overall conclusion in respect of the period between 11 June and 5 December 2001\n\n110.  The Court has frequently found a violation of Article 3 of the Convention on account of lack of personal space afforded to detainees (see Khudoyorov v. Russia, no. 6847/02, §§ 104 et seq., ECHR 2005-X (extracts); Labzov v. Russia, no. 62208/00, §§ 44 et seq., 16 June 2005; Novoselov v. Russia, no. 66460/01, §§ 41 et seq., 2 June 2005; Mayzit v. , no. 63378/00, §§ 39 et seq., 20 January 2005; Kalashnikov v. , no. 47095/99, §§ 97 et seq., ECHR 2002-VI; and Peers v. , no. 28524/95, §§ 69 et seq., ECHR 2001-III).\n\n111.  Having regard to its case-law on the subject and the material submitted by the parties, the Court notes that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Although in the present case there is no indication that there was a positive intention to humiliate or debase the applicant, the Court finds that the fact that the applicant was obliged to live, sleep and use the toilet in the same cell as so many other inmates for an overall period of five months and twenty-five days (see the conclusions in paragraphs 106 and 109 above) was itself sufficient to cause distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention, and to arouse in him feelings of fear, anguish and inferiority capable of humiliating and debasing him.\n\n112.  There has therefore been a violation of Article 3 of the Convention, as the applicant was subjected to inhuman treatment on account of the conditions of his detention from 11 June to 5 December 2001 in facilities IZ-63/1 and IZ-77/3.\n\nIII.   ALLEGATION OF HINDRANCE OF THE RIGHT OF INDIVIDUAL PETITION UNDER ARTICLE 34 OF THE CONVENTION\n\n113.  Lastly, the applicant complained that the prison authority had put pressure on him by transferring him from IK-13 to IK-26 in mid-February 2006 and also by refusing permission for his wife to visit on 19 February 2007 in connection with his application to the Court. He also complained that some of his fellow prisoners had been coerced into withdrawing their statements of support. The Court will examine this complaint under Article 34 of the Convention, which provides as follows:\n\n“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”\n\nA.  The parties’ submissions\n\n114.  The Government denied the applicant’s allegations and submitted explanatory information, including notes by the officials allegedly involved (see paragraphs 47-55, 72-74 and 78-79 above).\n\n115.  The applicant disagreed and maintained his initial submissions.\n\nB.  The Court’s assessment\n\n116.  The Court reiterates that it is of the utmost importance for the effective operation of the system of individual petition instituted by Article 34 that applicants or potential applicants should be able to communicate freely with the Court without being subjected to any form of pressure from the authorities to withdraw or modify their complaints (see, among other authorities, Akdivar and Others v. Turkey, 16 September 1996, § 105, Reports of Judgments and Decisions 1996-IV, and Aksoy v. Turkey, 18 December 1996, § 105, Reports 1996-VI). In this context, “pressure” includes not only direct coercion and flagrant acts of intimidation but also other improper indirect acts or contacts designed to dissuade or discourage applicants from pursuing a Convention remedy (see Kurt v. Turkey, 25 May 1998, § 159, Reports 1998III).\n\n117.  Furthermore, whether or not contacts between the authorities and an applicant are tantamount to unacceptable practices from the standpoint of Article 34 must be determined in the light of the particular circumstances of the case. In this respect, regard must be had to the vulnerability of the complainant and his or her susceptibility to influence exerted by the authorities (see Akdivar and Others and Kurt, both cited above, § 105 and § 160 respectively). The applicant may be in a particularly vulnerable position when he is being held in custody with limited contacts with his family or the outside world (see Cotleţ v. Romania, no. 38565/97, § 71, 3 June 2003).\n\n117.  Furthermore, whether or not contacts between the authorities and an applicant are tantamount to unacceptable practices from the standpoint of Article 34 must be determined in the light of the particular circumstances of the case. In this respect, regard must be had to the vulnerability of the complainant and his or her susceptibility to influence exerted by the authorities (see Akdivar and Others and Kurt, both cited above, § 105 and § 160 respectively). The applicant may be in a particularly vulnerable position when he is being held in custody with limited contacts with his family or the outside world (see Cotleţ v. Romania, no. 38565/97, § 71, 3 June 2003).\n\n118.  Turning to the circumstances surrounding the various statements given by Mr S.V. Sidorchuk (see paragraphs 47-55 above), the Court notes with regret that the situation does give rise to genuine concerns as regards the authorities’ compliance with their undertakings under Article 34 of the Convention.\n\n119.  The Court would recall that even though the main purpose of that provision is to protect applicants or potential applicants, in certain cases the effective exercise of an applicant’s right of individual petition depends to a large extent on his or her ability to substantiate the claims by providing, among other things, statements from witnesses to the alleged violations of the Convention. It is especially true in conditions-of-detention cases where the Government alone have access to information capable of firmly corroborating or refuting the allegations and where, if they fail to provide such information, the factual findings by this Court are made extremely difficult, if not sometimes impossible (see paragraph 104 above).\n\n120.  In the case at hand, the Government have been found to have failed to submit appropriate information in respect of the applicant’s allegations. They have also been found to have failed to explain this shortcoming with any good reason. The Court further notes that the witness statements submitted by the applicant, including those of S.V. Sidorchuk, played a crucial role in determination of the factual background to the applicant’s Article 3 complaints (see paragraph 105 above).\n\n121.  The Court further notes that the Government essentially did not dispute that they had interviewed Mr S.V. Sidorchuk twice while the latter was still in prison (in August 2006 and in February 2007), and then once more after his release on parole (in March 2008). Whilst not denying that the Government might have checked the relevant statements of this witness by contacting and interviewing him directly, the Court cannot avoid the impression that the relevant officials went beyond mere verification of his statements and acted in a manner which could have been reasonably perceived by this witness as unnecessarily intimidating and coercive.\n\n122.  In this connection, the Court recalls that in the first statement by Mr Sidorchuk supplied by the Government and dated 24 August 2004, this witness fully retracted his support for the applicant’s case. After the Court requested the Government to comment on the applicant’s allegations of undue coercion and pressure on witnesses, the Government produced yet another statement by Mr Sidorchuk, in which he essentially retracted his submission of 24 August 2004 and endorsed his initial statement, supplied by the applicant and dated 25 April 2005. No specific reason for such a drastic change of position was provided by the Government in their comments, but it did arrive in the statement by Mr Sidorchuk dated 27 January 2008, submitted by the applicant, in which the witness accused the authorities of having put pressure on him by using his pending application for release on parole as leverage. Even though the above-mentioned statement in itself may not be conclusive, subsequent developments amply illustrate that Mr Sidorchuk was indeed subjected to pressure by the authorities. On 10 March 2008, after his release on parole, Mr Sidorchuk was again contacted and interviewed, this time by an official from the prosecutor’s office. The Court would stress that Mr Sidorchuk was not visited by the relevant official at his home or merely invited for a talk – an official from the prosecutor’s office summoned him by sending a police patrol to his home address, from where Mr Sidorchuk was escorted to the police station under threat of being brought by force or fined (see paragraphs 52-55 above). At the same time, the Government did not produce any document which would prove the existence of a criminal case in the context of which Mr Sidorchuk could have been summoned as a witness. Therefore, the Court finds that the summoning of Mr Sidorchuk in the described manner was totally inappropriate. Next, as regards the purpose of the interview, the Government cited the need to check the witness’s earlier statements concerning undue pressure from the prison authorities. The Court notes that nothing in the Government’s submissions supports this version. In fact, had any formal inquiry, either disciplinary or criminal, been launched into this matter, the Government would have been able to identify it, report on the actions taken by the responsible officials, furnish the Court with transcripts of interviews by the officials involved and provide a copy of a final document containing findings and conclusions. Since the Government failed to provide any of these documents or even argue that they existed, the Court cannot but conclude that the interview of 10 March 2008, especially given the ominous form it took, was not justified by the need to clarify Mr Sidorchuk’s previous statements, but was meant to put additional pressure on one of the witnesses in this case whose depositions played a key role in the establishment of the facts in the proceedings before the Court and were indispensable to the effective exercise of the applicant’s right of individual petition guaranteed by Article 34 of the Convention.\n\n122.  In this connection, the Court recalls that in the first statement by Mr Sidorchuk supplied by the Government and dated 24 August 2004, this witness fully retracted his support for the applicant’s case. After the Court requested the Government to comment on the applicant’s allegations of undue coercion and pressure on witnesses, the Government produced yet another statement by Mr Sidorchuk, in which he essentially retracted his submission of 24 August 2004 and endorsed his initial statement, supplied by the applicant and dated 25 April 2005. No specific reason for such a drastic change of position was provided by the Government in their comments, but it did arrive in the statement by Mr Sidorchuk dated 27 January 2008, submitted by the applicant, in which the witness accused the authorities of having put pressure on him by using his pending application for release on parole as leverage. Even though the above-mentioned statement in itself may not be conclusive, subsequent developments amply illustrate that Mr Sidorchuk was indeed subjected to pressure by the authorities. On 10 March 2008, after his release on parole, Mr Sidorchuk was again contacted and interviewed, this time by an official from the prosecutor’s office. The Court would stress that Mr Sidorchuk was not visited by the relevant official at his home or merely invited for a talk – an official from the prosecutor’s office summoned him by sending a police patrol to his home address, from where Mr Sidorchuk was escorted to the police station under threat of being brought by force or fined (see paragraphs 52-55 above). At the same time, the Government did not produce any document which would prove the existence of a criminal case in the context of which Mr Sidorchuk could have been summoned as a witness. Therefore, the Court finds that the summoning of Mr Sidorchuk in the described manner was totally inappropriate. Next, as regards the purpose of the interview, the Government cited the need to check the witness’s earlier statements concerning undue pressure from the prison authorities. The Court notes that nothing in the Government’s submissions supports this version. In fact, had any formal inquiry, either disciplinary or criminal, been launched into this matter, the Government would have been able to identify it, report on the actions taken by the responsible officials, furnish the Court with transcripts of interviews by the officials involved and provide a copy of a final document containing findings and conclusions. Since the Government failed to provide any of these documents or even argue that they existed, the Court cannot but conclude that the interview of 10 March 2008, especially given the ominous form it took, was not justified by the need to clarify Mr Sidorchuk’s previous statements, but was meant to put additional pressure on one of the witnesses in this case whose depositions played a key role in the establishment of the facts in the proceedings before the Court and were indispensable to the effective exercise of the applicant’s right of individual petition guaranteed by Article 34 of the Convention.\n\n123.  In the light of the above facts and considerations, the Court finds that the respondent State failed to comply with its obligations under Article 34 of the Convention.\n\n124.  As regards the applicant’s remaining complaints, the Court would note that some of the applicant’s allegations are either without basis or do not appear to raise any issues under Article 34 of the Convention. Hence, the Court would note in respect of the alleged pressure placed on Mr Gromadskiy (see paragraph 76 above) and the alleged refusal of permission for the applicant’s wife to visit on 19 February 2007 (see paragraphs 81-82 above), that nothing in the materials in its possession indicates that the applicant’s ability to pursue the Strasbourg proceedings was in any way affected by the incidents in question. As regards the applicant’s transfer from IK-13 to IK-26 in mid-February 2006 (see paragraphs 78-79 above), the Government explained – and in the absence of any clear evidence to the contrary the Court is satisfied with this explanation – that the above-mentioned transfer had taken place in the context of the general reorganisation of the functioning of the two prisons and had not been aimed at worsening the applicant’s situation in connection with his application to the Court. Lastly, there is nothing in the materials of the case to support the applicant’s allegation of pressure on the witness V.V. Slivin (see paragraphs 59-62 above).\n\nIV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n125.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Non-pecuniary damage\n\n126.  The applicant claimed 350,000 euros (EUR) in compensation for non-pecuniary damage.\n\n127.  The Government did not submit any comments in this respect.\n\n128.  The Court notes that the applicant was detained for almost six months in overcrowded cells in two pre-trial detention centres and thus indisputably sustained nonpecuniary damage which cannot be compensated solely by a finding of a violation. Deciding on an equitable basis, it awards the applicant’s widow EUR 4,000 for non-pecuniary damage, plus any tax that may be chargeable on this amount.\n\nB.  Costs and expenses\n\n129.  Without presenting any supporting documents, the applicant also claimed reimbursement of his costs and expenses, but left the exact amount to the Court’s discretion.\n\n130.  The Government considered this claim unsubstantiated.\n\n131.  According to the Court’s case-law, an applicant is entitled to reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. Regard being had to the fact that the applicant failed to submit any documents in support of his claims or even specify the exact amounts spent by him in this connection, the Court rejects the applicant’s claims.\n\nC.  Default interest\n\n132.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Holds that the applicant’s widow has standing to continue the case;\n\n2.  Holds that there has been a violation of Article 3 of the Convention on account of the conditions of the applicant’s detention between 11 June and 12 November 2001;\n\n3.  Holds that there has been a violation of Article 34 of the Convention;\n\n4.  Holds\n\n(a)  that the respondent State is to pay the applicant’s widow, Ms Olga Aleksandrovna Novinskaya, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 4,000 (four thousand euros) in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of settlement, plus any tax that may be chargeable;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n5.  Dismisses the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 10 February 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_206","text":"PROCEDURE\n\n1.  The case originated in an application (no. 45504/09) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a company incorporated in the Republic of Moldova, Donprut S.R.L. (“the applicant”), on 12 August 2009.\n\n2.  The applicant was represented by Mr I. Cerga, a lawyer practising in Chisinau. The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol.\n\n3.  The applicant alleged, in particular, that the closure of the company constituted a breach of its rights under Article 1 of Protocol No. 1 to the Convention.\n\n4.  On 26 May 2011 the application was communicated to the Government.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n5.  The applicant is a taxi cab company from Chişinău. At the time of the events it employed approximately ninety persons and was functioning on the basis of a licence issued by the Licensing Chamber (Camera de Licențiere din Republica Moldova) in July 2005.\n\n6.  On 13 December 2007 the Licensing Chamber issued decision no. 4891 by which the applicant company’s licence was withdrawn in view of irregularities. In particular, the applicant company failed to request the inclusion of the names of two new persons employed in administrative positions and of new cars in its licence within the ten-day time-limit provided for by law.\n\n7.  On 18 January 2008 the applicant company initiated court proceedings against the Licensing Chamber seeking the annulment of its order of 13 December 2007. The applicant company submitted, inter alia, that the sanction applied to it had been disproportionally harsh and in breach of the company’s right to property. It argued that ninety persons employed by the company had lost their jobs as a result of the measure applied to it and that the company had suffered losses of approximately 170,000 Euros (EUR). The applicant company submitted that it could not comply with the requirement of including all fifty-two new cars in the licence in ten days because of new regulations instituted by the Government according to which all taxi cabs had to be equipped with receipt printing machines. The company did not have sufficient time to equip all new cars because of the lengthy bureaucratic procedure and because all the taxi cab companies were attempting to do that at the same time. The company submitted that it only managed to equip twenty-eight of its cars with the new equipment.\n\n8.  On 9 April 2008 the Chişinău Court of Appeal found in favour of the applicant company. Referring to the alleged breach by the applicant company of the ten-day time limit to inform the authorities about the new cars, the Court of Appeal found inter alia that the formalities linked to the equipment of those cars with receipt printing machines made it impossible for the applicant company to comply with the time-limit. In that context the Court of Appeal found that all the taxi cab companies were doing the same thing at the time, which created lengthy delays. As to the applicant company’s failure to inform the Licensing Chamber about two new employees at the company, the Court of Appeal held that that breach was minor and could not justify such a severe sanction. Relying on the Court’s judgments in the cases of Megadat.com SRL v. Moldova (no. 21151/04, 8 April 2008) and Bimer S.A. v. Moldova (no. 15084/03, 10 July 2007) the Court of Appeal found that the interference with the applicant company’s right to respect for its possessions had not been proportionate with the legitimate aim pursued and, thus, that the withdrawal of the applicant company’s licences had been in breach of Article 1 of Protocol No. 1 to the Convention.\n\n9.  On 23 September 2008 the Licensing Chamber lodged an appeal against the above judgment. It does not appear that the applicant company lodged written pleadings with the Supreme Court of Justice.\n\n10.  On 12 February 2009, after an oral hearing, the Supreme Court of Justice upheld the appeal lodged by the Licensing Chamber, quashed the judgment of the Court of Appeal and dismissed the applicant company’s action. The Supreme Court held that that according to the law in force, the breaches committed by the applicant company were sufficient ground for withdrawing its licence.\n\nII.   RELEVANT DOMESTIC LAW\n\n11.  The relevant provisions of Law no. 451 on Licensing (“the Licensing Act”) read as follows:\n\n“(1)  The holder of a licence shall be obliged to inform the Chamber about any change in the data contained in the annexes to the application for licence. The information shall be provided in writing, within 10 days from the date of the change together with all relevant documents ...”\n\n“(1)  (f) [A licence may be withdrawn] if a licence holder fails to notify the appropriate authority in due time of a change in the data contained in the annexes to the application for the licence.”\n\n12.  According to Article 439 of the Code of Civil Procedure, the party to the appeal proceedings before the Supreme Court of Justice who has not lodged the appeal, shall present written pleadings (referință) in which to state his or her position in respect of the appeal. If no such pleadings are presented, the court shall nevertheless examine the case in their absence.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 6 § 1 AND OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION\n\n13.  The applicant complained that the appeal lodged by the State Licensing Chamber against the judgment of the Court of Appeal was late and that its upholding by the Supreme Court of Justice breached its right to a fair trial guaranteed by Article 6 § 1 of the Convention. In so far as relevant, Article 6 of the Convention provides as follows:\n\n“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”\n\n.  The applicant company also complained that the withdrawal of its licence had had the effect of infringing its right to peaceful enjoyment of its possessions as secured by Article 1 of Protocol No. 1 to the Convention which, in so far as relevant, provides:\n\n“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law....”\n\nA.  Admissibility\n\n15.  The Government argued that the applicant had failed to raise the issue of the late appeal in the proceedings before the Supreme Court of Justice. Therefore, they considered that the applicant had failed to exhaust domestic remedies. Alternatively they argued that the application was manifestly ill-founded.\n\n.  The applicant company submitted that its representative had raised this issue in his oral submissions before the Supreme Court. However, since no record of the proceedings before the Supreme Court was made, he could not prove it.\n\n.  The Court notes that according to Article 439 of the Code of Civil Procedure (see paragraph 12 above), the applicant company had a chance to raise the issue of the late appeal in its written pleadings. Had it done so, it could have proven to the Court that it had exhausted domestic remedies. In the absence of such proof, the complaint under Article 6 must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.\n\n18.  The Court further notes that the complaint under Article 1 of Protocol No. 1 is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It must therefore be declared admissible.\n\nB.  Merits\n\n.  The Court recalls that, according to its case-law, the termination of a valid licence to run a business amounts to an interference with the right to the peaceful enjoyment of possessions guaranteed by Article 1 of the Protocol (Tre Traktörer Aktiebolag v. Sweden judgment of 7 July 1989, Series A no. 159, § 55 and Rosenzweig and Bonded Warehouses Ltd. v. Poland, no. 51728/99,§ 48, 28 July 2005).\n\n.  Consistently with the Court’s case-law referred to in the preceding paragraph, such interference constitutes a measure of control of use of property which falls to be examined under the second paragraph of Article 1 of Protocol No. 1 to the Convention.\n\n21.  For a measure constituting control of use to be justified, it must be lawful (see, Katsaros v. Greece, no. 51473/99, § 43, 6 June 2002) and “for the general interest” or for the “securing of the payment of taxes or other contributions or penalties”. The measure must also be proportionate to the aim pursued.\n\n.  It is undisputed between the parties that the applicant company’s licence to run the taxi cab business constituted a possession for the purposes of Article 1 of Protocol No. 1 to the Convention and that its withdrawal constituted an interference with its right to the peaceful enjoyment of possessions. It is similarly common ground that the interference had a basis in the domestic law and that it pursued a legitimate aim.\n\n.  While the Government did not argue in respect of the proportionality of the interference either, the Court will nevertheless focus on determining whether the interference was proportionate with the legitimate aim pursued.\n\n.  The Court will consider at the outset the nature and the seriousness of the breach committed by the applicant company. Without underestimating the importance of State control in the field of regulating public transportation, the Court cannot but note that the Supreme Court of Justice were not able to cite any negative consequences of the applicant company’s failure to comply with the procedural requirement. Indeed, the Supreme Court contented itself with finding that the applicant company had failed to respect the ten-day time limit and did not attempt to examine the seriousness of such an omission. Neither did the Supreme Court of Justice attempt to give arguments in respect of the finding of the Court of Appeal that the failure of the applicant company to register all its new cars had been attributable to the lengthy delays caused by the bureaucratic formalities.\n\n.  The Court will consider at the outset the nature and the seriousness of the breach committed by the applicant company. Without underestimating the importance of State control in the field of regulating public transportation, the Court cannot but note that the Supreme Court of Justice were not able to cite any negative consequences of the applicant company’s failure to comply with the procedural requirement. Indeed, the Supreme Court contented itself with finding that the applicant company had failed to respect the ten-day time limit and did not attempt to examine the seriousness of such an omission. Neither did the Supreme Court of Justice attempt to give arguments in respect of the finding of the Court of Appeal that the failure of the applicant company to register all its new cars had been attributable to the lengthy delays caused by the bureaucratic formalities.\n\n25.  Against this background, the Court notes that the measure applied to the applicant company was of such severity that the company which had ninety employees had to wind up its business as a result of the decision of the Supreme Court of Justice. As a result of that all of the companies employees lost their jobs and the company supported considerable economic losses.\n\n.  The Court finally refers to its case-law in Bercut S.R.L. v. Moldova, no. 32247/07, 6 December 2011, where, in very similar circumstances, it found a breach of Article 1 of Protocol No. 1 to the Convention. In the light of the above case-law and of the considerations stated above, the Court concludes that there has been a violation of Article 1 of Protocol No. 1 to the Convention.\n\nII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n27.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\n28.  The applicant company did not submit a claim for just satisfaction. The Court notes that Article 449 (h) of the Code of Civil Procedure provides for the possibility of revision of a judgment where the Court has found a violation of fundamental rights and liberties.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\n1.  Declares the complaint under Article 1 of Protocol No. 1 admissible and the remainder of the application inadmissible;\n\n2.  Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention.\n\nDone in English, and notified in writing on 21 July 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_690","text":"PROCEDURE\n\n1. The case was referred to the Court by the European Commission of Human Rights (\"the Commission\") on 11 July 1990, within the three-month period laid down by Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the Convention. It originated in an application (no. 12849/87) against the  lodged with the Commission under Article 25 (art. 25) by Mrs Astrid Vermeire, a Belgian national, on 1 April 1987.\n\nThe Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby  recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 8 and 14 (art. 8, art. 14).\n\n2. In response to the enquiry made in accordance with Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that she wished to take part in the proceedings and designated the lawyer who would represent her (Rule 30).\n\n3. The Chamber to be constituted included ex officio Mr J. De Meyer, the elected judge of Belgian nationality (Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21 para. 3 (b)). On 27 August 1990, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mr Thór Vilhjálmsson, Mrs D. Bindschedler-Robert, Mr B. Walsh, Mr A. Spielmann, Mr S.K. Martens, Mr A.N. Loizou and Mr J.M. Morenilla (Article 43 in fine of the Convention and Rule 21 para. 4 of the Rules of Court) (art. 43).\n\n4. Mr Ryssdal assumed the office of President of the Chamber (Rule 21 para. 5) and, through the Registrar, consulted the Agent of the Belgian Government (\"the Government\"), the Delegate of the Commission and the lawyer for the applicant on the need for a written procedure (Rule 37 para. 1). In accordance with the order made in consequence, the Registrar received the applicant’s memorial on 7 February 1991 and the Government’s memorial on 18 February 1991. On 13 March the Delegate of the Commission informed the Registrar that he would submit his observations at the hearing.\n\n5. On 9 April the Secretary to the Commission produced certain documents from the proceedings before it, as the Registrar had requested on the instructions of the President.\n\n6. Having consulted, through the Registrar, those who would be appearing before the Court, the President had directed on 12 October 1990 that the oral proceedings should open on 23 May 1991 (Rule 38).\n\n7. The hearing took place in public in the , , on the appointed day. The Court had held a preparatory meeting beforehand.\n\nThere appeared before the Court:\n\n- for the Government\n\n- for the Commission\n\n- for the applicant\n\nThe Court heard addresses by Mr Huisman for the Government, Mr Danelius for the Commission and Mr Van Hoecke for the applicant, as well as their replies to its questions.\n\nAS TO THE FACTS\n\nI. THE PARTICULAR CIRCUMSTANCES OF THE CASE\n\n8. Mrs Astrid Vermeire is a Belgian national resident in . She is the recognised illegitimate daughter of Jérôme Vermeire, who died unmarried in 1939. He was the son of the late Camiel Vermeire and his late wife Irma Vermeire née Van den Berghe, who also had two other children, Gérard and Robert. They died in 1951 and 1978 respectively, Gérard unmarried and without issue, Robert survived by two children of his marriage, Francine and Michel.\n\n9. The applicant’s grandparents, who had brought her up after her father’s death, both died intestate, Irma Vermeire née Van den Berghe on 16 January 1975 and Camiel Vermeire on 22 July 1980. As the grandmother’s heirs had remained co-owners in undivided shares up to the grandfather’s death, the two estates were realised and distributed to the legitimate grandchildren Francine and Michel in a single procedure. Astrid Vermeire was excluded under the old Article 756 of the Civil Code (see paragraph 13 below).\n\n10. On 10 June 1981 she brought an action to claim a share in the estates before the Brussels Court of First Instance. In a judgment of 3 June 1983 that court allowed her the same rights as a legitimate descendant in the estates in question.\n\nIt based its decision in particular on paragraph 59 of the judgment given by the European Court in the Marckx case on 13 June 1979 (Series A no. 31, p. 26), and took the view that \"the prohibition on discrimination between legitimate and illegitimate children as regards inheritance rights [was] formulated in the judgment sufficiently clearly and precisely to allow a domestic court to apply it directly in the cases brought before it\".\n\n11. The legitimate grandchildren appealed and on 23 May 1985 the Brussels Court of Appeal set aside the judgment. It held in particular that:\n\n\"in so far as Article 8 (art. 8) entails negative obligations prohibiting arbitrary interference by the State in the private or family life of persons residing within its territory, it lays down a rule which is sufficiently precise and comprehensive and is directly applicable, but this is not the case in so far as Article 8 (art. 8) imposes a positive obligation on the Belgian State to create a legal status in conformity with the principles stated in the said provision of the Convention; (...) given that on this point the Belgian State has various means to choose from for fulfilling this obligation, the provision is no longer sufficiently precise and comprehensive and must be interpreted as an obligation to act, responsibility for which is on the legislature, not the judiciary.\"\n\nThe Court of Appeal thus refused to give direct effect to the passages in the Marckx judgment relating to an illegitimate child’s inheritance rights on intestacy with respect to relatives of the parent by whom he or she has been recognised.\n\n12. The Court of Cassation concurred substantially with the reasons for this decision, which was moreover consistent with its own case-law, and dismissed the applicant’s appeal on 12 February 1987.\n\nII. RELEVANT DOMESTIC LAW\n\n13. The former Articles 756 and 908 of the Civil Code provided as follows:\n\nArticle 756\n\n\"Illegitimate children shall not be heirs; the law does not allow them any rights in the estates of their deceased father and mother unless they have been legally recognised. It does not allow them any rights in the estates of the relatives of their father or mother.\"\n\nArticle 908\n\n\"Illegitimate children may receive by disposition inter vivos or by will no more than their entitlement under the title ‘Inheritance on Intestacy’.\"\n\n14. These provisions were repealed by a Law of 31 March 1987, which came into force on 6 June. That Law also inserted into the Civil Code a new Article 334, according to which:\n\n\"Whatever the method used to establish affiliation, children and their descendants shall have the same rights and obligations in respect of their father and mother and their relatives by blood and by marriage, and the father and mother and their relatives by blood and by marriage shall have the same rights and obligations in respect of the children and the children’s descendants.\"\n\n15. Section 107 of the Law laid down the following transitional provisions:\n\n\"The provisions of this Law shall apply to children born before the date of its coming into force and still alive at that date, but shall not give rise to any rights in respect of successions taking place before that date.\n\nHowever, the validity of acts and distributions done before the coming into force of this Law, under which a child born out of wedlock has been accorded rights greater than those allowed him by the provisions repealed by this Law, shall not be subject to challenge.\"\n\n16. Regard should also be had to Articles 718, 724 and 883 of the Civil Code:\n\nArticle 718\n\n\"Succession shall take place on death.\"\n\nArticle 724\n\n(wording in force at the time of the grandmother’s death)\n\n\"The legitimate heirs shall acquire as of right the possessions, rights and legal actions of the deceased, subject to the obligation to pay all the debts of the estate. Illegitimate children, the surviving spouse and the State must obtain a court order for possession in accordance with the procedures to be specified.\"\n\n(wording in force at the time of the grandfather’s death)\n\n\"The legitimate heirs shall acquire as of right the possessions, rights and legal actions of the deceased, subject to the obligation to pay all the debts of the estate. Illegitimate children and the State must obtain a court order for possession in accordance with the procedures to be specified.\"\n\n(wording following the Law of 31 March 1987)\n\n\"The heirs shall acquire as of right the possessions, rights and legal actions of the deceased, subject to the obligation to pay all the debts of the estate. The State must obtain a court order for possession in accordance with the procedures specified below.\"\n\nArticle 883\n\n\"Each co-heir shall be deemed to have succeeded solely and immediately to all the property included in his share or which has come to him on a sale of undivided joint property, and never to have had ownership of the other property in the estate.\"\n\nPROCEEDINGS BEFORE THE COMMISSION\n\n17. In her application to the Commission of 1 April 1987 (no. 12849/87), Mrs Astrid Vermeire complained that the Belgian courts had denied her the status of an heir of her grandparents. She claimed that she had thereby suffered a discriminatory interference with the exercise of her right to respect for her private and family life, which was not compatible with Article 8 in conjunction with Article 14 (art. 14+8) of the Convention.\n\n18. On 8 November 1988 the Commission declared the application admissible. In its report of 5 April 1990 (made under Article 31) (art. 31) it expressed the opinion that the decisions in question had not violated the said Articles as regards her grandmother’s estate (by seven votes to six), but that they had violated them with respect to her grandfather’s estate (unanimously). The full text of the Commission’s opinion and of the dissenting opinions contained in the report is reproduced as an annex to this judgment.\n\nAS TO THE LAW\n\nI. ALLEGED VIOLATION OF ARTICLE 14 IN CONJUNCTION WITH ARTICLE 8 (art. 14+8)\n\n19. The applicant complained of having been excluded from inheritance rights in her paternal grandparents’ estates. She relied on Article 8 in conjunction with Article 14 (art. 14+8) of the Convention, according to which:\n\nArticle 8 (art. 8)\n\n\"1. Everyone has the right to respect for his private and family life, his home and his correspondence.\n\n2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.\"\n\nArticle 14 (art. 14)\n\n\"The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.\"\n\nShe pointed out that in the Marckx judgment of 13 June 1979 the European Court had held that the total lack of inheritance rights on intestacy by reason solely of the \"illegitimate\" nature of the affiliation between one of the applicants and her near relatives on her mother’s side was discriminatory and hence incompatible with these Articles (Series A no. 31, p. 26, para. 59). Mrs Vermeire maintained that the domestic courts should have applied Articles 8 and 14 (art. 14, art. 8), so interpreted, directly to the estates in which she was interested; at the very least the Belgian legislature should have given the Law of 31 March 1987, amending the legislation complained of, retrospective effect as from the date of the said judgment (see paragraphs 14 and 15 above).\n\n20. The Court stated in the Marckx case that the principle of legal certainty dispensed the  from reopening legal acts or situations that antedated the delivery of the judgment (same judgment, pp. 25-26, para. 58).\n\nThe present case concerns the estates of a grandmother who died before and a grandfather who died after that date.\n\nA. The grandmother’s estate\n\n21. The applicant maintained that the succession to her grandmother’s estate could not be regarded as having taken place before 13 June 1979. The date of death was indeed 16 January 1975, but the distribution, which alone determined the nature and extent of the heirs’ claims, had not been carried out until after the said judgment, jointly with that of the grandfather’s estate.\n\n22. The succession to Irma Vermeire née Van den Berghe took place on her death and the estate devolved on her \"legitimate\" heirs as of that date (Articles 718 and 724 of the Civil Code, see paragraph 16 above).\n\nThe estate was undoubtedly not wound up until after 13 June 1979, but by reason of its declaratory nature the distribution had effect as from the date of death, that is to say, 16 January 1975 (Article 883 of the Civil Code, ibid).\n\nWhat is in issue here is therefore a legal situation antedating the delivery of the Marckx judgment. There is no occasion to reopen it.\n\nB. The grandfather’s estate\n\n23. With reference to her grandfather’s estate, the applicant alleged that it was for the Belgian authorities to ensure that it was distributed in a manner consistent with Articles 8 and 14 (art.8, art. 14) as interpreted by the European Court in the Marckx judgment. In her opinion they could have performed their obligation either by direct application of those Articles (art. 8, art. 14) or by amending the legislation, retrospectively if need be.\n\n24. The Government stated that they did not dispute the principles which followed from the Marckx judgment; they considered, however, that these principles compelled the  to carry out a thorough revision of the legal status of children born out of wedlock. Responsibility for this fell exclusively on the legislative power as the only body in a position to make full use of the freedom left to the State to choose the means to be utilised in its domestic legal system for fulfilling its undertaking under Article 53 (art. 53) (same judgment, pp. 25-26, para. 58). Articles 8 and 14 (art. 8, art. 14) were not sufficiently precise and comprehensive on the points at issue in this case, and were thus not suitable for direct application by the domestic courts.\n\nThe Government further maintained that the legislature could not be criticised for any want of diligence. A first draft reform had been introduced on 15 February 1978 (see the above-mentioned Marckx judgment, Series A no. 31, p. 25, para. 57). That it had taken over nine years to complete the task could be explained both by the acknowledged complexity of the issue and by Parliament’s foresight. Rather than partial, fragmentary alterations, Parliament had preferred an overall and systematic revision, extending inter alia to the delicate question of the status of children born in adultery. It had also pondered long over the temporal extent to be given to the new provisions; in the end concern for the legal certainty to be preserved in the interests of families, third parties and the State, together with the fear that a large number of lawsuits would follow, had induced it not to give the Law of 31 March 1987 any retrospective effect (see paragraph 15 above).\n\n25. The Marckx judgment held that the total lack of inheritance rights on intestacy, based only on the \"illegitimate\" nature of the affiliation, was discriminatory (pp. 25 and 26, paras. 56 and 59).\n\nThis finding related to facts which were so close to those of the instant case that it applies equally to the succession in issue, which took place after its delivery.\n\nIt cannot be seen what could have prevented the Brussels Court of Appeal and the Court of Cassation from complying with the findings of the Marckx judgment, as the Court of First Instance had done. There was nothing imprecise or incomplete about the rule which prohibited discrimination against Astrid Vermeire compared with her cousins Francine and Michel, on the grounds of the \"illegitimate\" nature of the kinship between her and the deceased.\n\n26. An overall revision of the legislation, with the aim of carrying out a thoroughgoing and consistent amendment of the whole of the law on affiliation and inheritance on intestacy, was not necessary at all as an essential preliminary to compliance with the Convention as interpreted by the Court in the Marckx case.\n\nThe freedom of choice allowed to a State as to the means of fulfilling its obligation under Article 53 (art. 53) cannot allow it to suspend the application of the Convention while waiting for such a reform to be completed, to the extent of compelling the Court to reject in 1991, with respect to a succession which took effect on 22 July 1980, complaints identical to those which it upheld on 13 June 1979.\n\n27. In a case similar to the present one, from the point of view of Articles 6 and 6 bis of the Belgian Constitution according to which all Belgians are equal before the law and must be able to enjoy their rights and freedoms without discrimination, the Belgian Court of Arbitration, relying in particular on the Marckx judgment, held that \"the old Article 756 of the Civil Code, preserved in force by virtue of section 107 of the Law of 31 March 1987, breach[ed] Articles 6 and 6 bis [aforesaid] in so far as it appli[ed] to successions taking place from 13 June 1979 on\" (judgment no. 18/91 of 4 July 1991, case of Verryt c. Van Calster et consorts, published in the \"Moniteur belge/Belgisch Staatsblad\" of 22 August 1991, pp. 18144, 18149 and 18153).\n\n28. Similarly, it should be found that the applicant’s exclusion from the estate of her grandfather Camiel Vermeire violated Article 14 in conjunction with Article 8 (art. 14+8) of the Convention.\n\nII. APPLICATION OF ARTICLE 50 (art. 50)\n\n29. Under Article 50 (art. 50),\n\n\"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.\"\n\nMrs Vermeire claimed in the first place 40,175,787 Belgian francs (BEF) as compensation, this being equivalent to her share in the two estates in question, after deducting inheritance tax and adding interest payable since the two deaths. She also claimed BEF 2,486,399 in respect of her costs and expenses before the domestic courts and the  institutions.\n\n30. In the Government’s opinion, were the Court to find that there had been a breach of the Convention, the judgment would in itself constitute just satisfaction. The figures put forward by the applicant could in any event not be relied on, as they were based solely on the declarations of inheritance, which were unilateral and incomplete.\n\n31. The Court agrees with the Commission that the applicant suffered pecuniary damage, the amount of which is equivalent to the share of her grandfather’s estate which she would have obtained had she been his \"legitimate\" granddaughter. Inheritance taxes and interest due must be taken into account in calculating the compensation.\n\n32. However, as the Government dispute the information supplied by Mrs Vermeire and as some of the costs claimed appear liable to revision on the basis of this judgment, the question of the application of Article 50 (art. 50) is not ready for decision. It should therefore be reserved.\n\nFOR THESE REASONS, THE COURT\n\n1. Holds by eight votes to one that the  was under no obligation to reopen the succession to the estate of Irma Vermeire née Van den Berghe;\n\n2. Holds unanimously that the applicant’s exclusion from the estate of Camiel Vermeire violated Article 14 in conjunction with Article 8 (art. 14+8) of the Convention;\n\n3. Holds unanimously that the question of the application of Article 50 (art. 50) is not ready for decision; accordingly,\n\n(a) reserves it in whole;\n\n(b) invites the Government and the applicant to submit to it in writing within the next three months their observations on the question and in particular to communicate to it any agreement which they may reach;\n\n(c) reserves the subsequent procedure and delegates to the President of the Court power to fix the same if need be.\n\nDone in French and in English, and delivered at a public hearing in the Human Rights Building, , on 29 November 1991.\n\nIn accordance with Article 51 para. 2 (art. 51-2) of the Convention and Rule 53 para. 2 of the Rules of Court, the partly dissenting opinion of Mr Martens is annexed to this judgment.\n\n1. The combined estates of the applicant’s grandparents were distributed well after the delivery of the Court’s judgment in the Marckx case. Nevertheless, the division was carried out under the former Article 756 of the Belgian Civil Code; thus only the children of the applicant’s uncle benefited and the applicant was excluded. She disputed the division. In accordance with the Marckx judgment she based her claim for an equal share in both estates on Article 14, taken in conjunction with Article 8 (art. 14+8) of the Convention. The Belgian courts refused, however, to annul the partition.\n\n2. The former Article 756 denied to an \"illegitimate\" child any rights on intestacy in the estates of the relatives of its parents. In paragraph 59 of its Marckx judgment the Court held that this \"total lack of inheritance rights\" constituted a breach of Article 14, taken in conjunction with Article 8 (art. 14+8). It is true that in so holding the Court did not, strictly speaking, pronounce on whether a different share for legitimate and \"illegitimate\" children would be compatible with the said provisions. However, the Court’s reasoning (especially in paragraphs 40 and 41 to which reference is made in paragraph 55) clearly implies that, in this province, only complete equality avoids discrimination.\n\nAccordingly, only a distribution of the estates of the applicant’s grandparents in which she shared equally with her two cousins was compatible with the requirements of Article 14, taken in conjunction with Article 8 (art. 14+8). That is why, in substance, I am in agreement with paragraph 25 of the present judgment.\n\n3. To my regret, however, I disagree with the majority finding of a violation only as far as the estate of the grandfather is concerned. Whilst the majority holds that the Marckx doctrine only applies when \"the opening of the succession\" occurred after 13 June 1979, the date of the Court’s judgment in that case, I find that it applies to all successions where the distribution of the estate had not yet been finalised on that date.\n\n4. The root of this difference of opinion is to be found in the ruling the Court gave on \"the temporal effect\" of the Marckx judgment (para. 58) which reads:\n\nThe question is how this ruling should be interpreted.\n\n5. The majority is obviously of the opinion that it requires no further argument that the ruling refers back to national law: its finding that as to the grandmother’s estate there is \"a legal situation antedating the delivery of the Marckx judgment\" within the meaning of the ruling (paragraph 22 of the judgment) is, without more ado, merely based on principles of Belgian law.\n\nIn its Marckx judgment the Court must, however, have been well aware:\n\n(1) of the fact that  was not the sole member State of the Council of Europe where the law on inheritance discriminated against \"illegitimate\" children1;\n\n(2) of the fact that, accordingly its judgment would affect other member States as well; and\n\n(3) of the differences which, in respect to the law of inheritance, exist between the legal systems of the member States2. Accordingly, an autonomous interpretation of the ruling seems appropriate.\n\n6. Query, however: does not comparative law show that the \"opening of the succession\" or \"the death of the de cujus\" are often used as the decisive starting point in the context of transitional provisions in the province of succession law3 and is it not, accordingly, to be assumed that one of these moments has the same function under an autonomous interpretation of the Court’s ruling? I have no doubt that this question must be answered in the negative.\n\n7. A first and obvious point to make is that the formula used by the Court (see paragraph 4 above) is certainly not the most natural way of expressing the idea that for the temporal effect of the Marckx doctrine the date of the opening of the succession or of the decease of the de cujus should be decisive.\n\n8. A more important consideration is, however, that the ruling by its very nature purports to limit the retroactive effect which - as the Belgian Government stressed in the Marckx case (see paragraph 58 of the Marckx judgment) - is peculiar to a judicial decision. When the Court decided that in this case such a limitation was appropriate, it did so in response to the warning by the Belgian Government that unless the Court made some proviso4:\n\nThe wording of the Court’s ruling is conspicuously similar to that of the Government’s exhortations. That makes it probable that the Court, when dispensing  (and other  where \"illegitimate\" children were still being similarly discriminated against)\n\nintended to avoid the chaotic consequences held out by the Government by limiting the retroactive effect of its judgment with the result that the new doctrine would not apply to those estates that had already been wholly distributed. The word \"reopening\" (\"remettre en cause\" in the French text) supports this interpretation of the ruling. So does the term \"legal acts and situations\" which suggests that in answer to the Government the Court stated that it would not be necessary to reopen distributions nor to undo (notarial) deeds of partition and those legal situations which, in the meantime, had been based thereon (such as ownership of goods originating from the former estate and sold by a former heir who had acquired them at the distribution).\n\n9. There is a further, and to my mind decisive point to be made in favour of the interpretation of the ruling suggested in paragraphs 3 and 8. What the Marckx judgment was about was: discrimination against \"illegitimate\" children and its \"message\" was that such discrimination was fundamentally unjust and could no longer be tolerated.\n\nAgainst this background it seems obvious that the ruling should be interpreted strictly: legal certainty should of course be taken into account where possible (in the sense of the prevention of legal \"disorder\") but where the price for attaining this end has to be the \"continuation of fundamental injustice\" that continuation should be allowed only in so far as wholly unavoidable.\n\nContinuation of injustice requires justification and that justification can only be found in the interests of third parties. The possibility of undoing even finalised distributions would affect the position of third parties who had acquired title to goods formerly belonging to the estate. It is for this reason that retroactivity had to be limited: the interests of third parties had to be safeguarded.\n\nThe interests of third parties, not those of the \"legitimate\" children. True, where the owner of the estate died before the delivery of the Marckx judgment, the \"legitimate\" children might be said to have been entitled to expect6 that they would not have to share with the \"illegitimate\" children. However, such an expectation was fundamentally unjust and as such deserved no protection. Accordingly, their interests could not serve as a justification for the Court’s acquiescence in the continuation of injustice.\n\n10. All this leads to the conclusion that it stands to reason - indeed, that it is a requirement of justice - that where, after 13 June 1979, the estate of the applicant’s grandmother had not yet been distributed so that third party interests were not at stake and it was still possible to apply the new doctrine and thereby secure for the \"illegitimate\" child an equal share in the estate, that should have been done. Under the Court’s ruling as to the temporal effects of its Marckx judgment there is no need and no justification to differentiate in this respect between the estate of the grandmother and that of the grandfather.\n\nNOTES\n\n1 See, for inheritance law around 1976, the International Encyclopedia of Comparative Law, IV, chapter 6 (H.D. Krause), pp. 6-125 et seq.\n\n2 See for example: M. Verwilghen E.A., Régimes matrimoniaux, successions et libéralités (Droit international privé et droit comparé) 1979, I, pp. 110 et seq.\n\n3 See, for example, Article 8 of The Hague Convention on the Conflict of Laws relating to the Forms of Testamentary Dispositions:\n\nIn his report on the draft convention, Batiffol noted with regard to a similar provision:\n\nIn the present context, it is interesting to quote from the same report a further comment:\n\n4 Apparently, the Government had not, however, contemplated a ruling like the one the Court gave.\n\n5 It is worthwhile to have a look at the exact wording of the original texts. See, first the Government’s memorial (Marckx case, Series B no. 29, p. 87), where the Government, having recalled that under Belgian law the relevant limitation period is thirty years, winds up its arguments by saying:\n\nand by pointing out \"l’insécurité et le désordre qu’entraînerait cette possibilité\". See, in the same sense and almost the same words, counsel for the Government at the oral hearing, telling the Court:\n\n6 In this context, I cannot refrain from noting that during the hearing in the Marckx case counsel for the applicants told the Court that since 1908 several bills had been introduced purporting to create equality between \"legitimate\" and \"illegitimate\" children but had never succeeded (see Marckx case, Series B no. 29, p. 111).","title":""}
{"_id":"passage_50","text":"PROCEDURE\n\n1.  The case originated in an application (no. 52534/09) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Hıdır Taydaş (“the applicant”), on 29 September 2009.\n\n2.  The applicant was represented by Mr B. Yıldırım, a lawyer practising in Tunceli. The Turkish Government (“the Government”) were represented by their Agent.\n\n3.  The applicant alleged that he had been shot by the gendarmerie; that the force used against him had not been absolutely necessary; and that the domestic authorities had failed to carry out an effective investigation into the circumstances of his wounding.\n\n4.  On 7 September 2011 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n5.  The applicant was born in 1960 and lives in Izmir.\n\n6.  On 3 September 2007 at around 8.10 p.m. the applicant was shot by officers from a gendarmerie special operations team immediately after he and his brother left a neighbouring house in the vicinity of their hamlet, Gölek, in the district of Mazgirt, in Tunceli, south-east Turkey.\n\n7.  As a result of the shooting, the applicant was hit with a total of eight bullets and suffered injuries to his arms, his legs, and his left shoulder. According to a medical report issued by the Forensic Medicine Department of Fırat University dated 13 November 2007, the injuries that the applicant sustained were life-threatening. According to the report, the applicant received medical treatment and underwent surgical operations at the cardiac surgery units at the Elazığ Military Hospital and the Fırat University Hospital between 3 and 19 September 2007. He was then transferred to the Ege University Hospital in Izmir upon the request of his family members. A further medical report issued on 27 June 2011 by a board of doctors from the Karşıyaka State Hospital stated that the applicant was experiencing difficulties in walking and using his left shoulder as a result of firearm injuries. In particular, he had suffered a 48% loss of function in his legs and a 10% loss of function in his left shoulder. According to the report, the applicant was permanently disabled and only able to walk with the aid of two crutches. The applicant’s brother was not injured during the shooting.\n\nA.  Crime scene investigation of 4 September 2007\n\n8.  On 4 September 2007 a crime scene investigation was carried out by gendarmerie officers from the Tunceli Provincial Gendarmerie Command, who then drafted a crime scene report. The report was signed by six gendarmerie officers, including İ.S. and M.K., who had taken part in the operation of 3 September 2007. The report drafted by the officers stated that the special operations team had received information that members of the PKK, an illegal organisation, would be going to the house where the applicant and his brother had gone. The information had been given by B.B., the son of M.B., the owner of the house, who had been threatened by members of the PKK. The security forces began search and detection activities in the region at around 3.30 a.m. after the receipt of this information and at 3.30 p.m. the commander of the operation, together with two team commanders, identified four points in the vicinity of M.B.’s house at which the officers could position themselves. At around 7.40 p.m. gendarmerie officers arrived in the vicinity, took up position at the four different points identified earlier by their commanders and waited for PKK members. The applicant and his brother arrived at the house at 8 p.m. and left at 8.10 p.m. When they had left the house, E.Ö. and G.A., officers positioned at point no. 3 who had a thermal camera and a night vision device, informed the commander of the operation, İ.S., who was positioned at point no. 2, that the applicant and his brother might have weapons on them. They also informed the commander that the applicant and his brother were acting suspiciously and that they had checked the area around the house with their torches and then turned them off. The team commander subsequently asked M.A. and Y.S., officers who were positioned at the same point and who had thermal cameras, whether the applicant and his brother were carrying weapons. The officers informed the commander that the applicant and his brother had objects in their hands which looked like weapons. The team commander then ordered the applicant and his brother to stop when they were 60 metres away. As they failed to do so, officers first fired warning shots in the air (3-5 shots) and then opened fire in the direction of the applicant and his brother (13-14 shots) towards their feet. They stopped firing when the applicant and his brother shouted that they were villagers. The report further stated that when the officers approached the applicant and his brother and found that the former was wounded, they gave him first aid straight away and the applicant was transferred to Elazığ Military Hospital by helicopter. According to the report, a total of twentysix spent bullet cases were found where the officers had been located and there was a distance of 15 to 30 metres between the officers and the applicant and his brother.\n\n9.  A gendarmerie officer also drew a sketch of the scene, according to which the applicant was 60 metres away from M.B.’s house and 15 and 30 metres away from points no. 2 and 1, respectively, where spent bullet cases had been found.\n\nB.  Investigation carried out by the Mazgirt Public Prosecutor\n\n10.  On an unspecified date the applicant and his brother lodged a complaint against the gendarmerie officers who had been responsible for the applicant’s shooting. The Mazgirt Public Prosecutor subsequently initiated an investigation against six gendarmerie officers on a charge of exceeding the limits of their powers in resorting to force.\n\n11.  On 6 September 2007 the Mazgirt Public Prosecutor took statements from the applicant’s brother, S.T. He submitted that they had gone to M.B.’s house because they had wished to inform his son, B.B., that their mother would not be going to the town centre with him the next day. S.T. further maintained that they had walked with their torches on and that there had been no warning or warning shots before the shooting. He contended that when the shooting had started, he had been 1-2 metres behind his brother. They had both thrown themselves on the ground when the shooting had started.\n\n12.  On 6 and 13 September 2007 the public prosecutor obtained statements from B.B. and M.B., the occupants of the house, respectively. They both maintained that they had informed the security forces of the threats that M.B. had received. B.B. further contended that he had seen the applicant’s mother at around 5 p.m. on the same day and that she had asked him to take her to the town centre the next day. B.B. and M.B. stated that the applicant and his brother had come to their house in order to tell them that their mother would not be going to the town centre with B.B after all and that they had subsequently left. B.B. maintained that he had been surprised when he first saw the applicant and S.T., given that their visit had occurred after sunset. B.B. further noted that he had told the applicant and S.T. to turn their torches on when they left and that they had said “OK”. M.B. maintained that the applicant and his brother had had lit torches in their hands when they had arrived at his house. He also contended that the gunfire had started 2-3 minutes after the applicant and his brother had left; that it had lasted a few minutes; and that at the same time as the gunfire he had heard the applicant and S.T. shouting “We are villagers. Do not fire.” M.B. submitted that his house had also been hit by bullets.\n\n13.  On 11 September 2007 the Mazgirt Public Prosecutor took statements from a number of gendarmerie officers who had been involved in the operation of 3 September 2007.  İ.S., the team commander, maintained before the public prosecutor that they had started the operation upon receipt of information that terrorists would be going to M.B.’s house. He noted that a total of twenty-six gendarmerie officers had taken part in the operation. He further contended that E.Ö. and G.A. had informed him that there had been a flash of light from an object carried on the shoulder of one of the suspects which extended to hip level. He further stated that M.A. and Y.S. had also informed him that one suspect was carrying an object that extended from the shoulder to the hip. The commander maintained that the applicant and his brother had come within 10 metres of the point where they were positioned when he shouted at them to stop. According to the commander, the applicant and his brother had failed to stop despite the warning and had attempted to escape when they heard the warning shots. At that point he instructed the officers to open fire. İ.S. noted that a total of five officers had fired towards their feet and that they had stopped firing when the applicant had been shot and his brother had shouted that they were villagers. İ.S. lastly contended that the applicant’s injuries had been his own fault and that they had not intended to kill the applicant or his brother. According to İ.S., if they had intended to kill them, neither the applicant nor his brother would have survived.\n\n14.  In their statements before the public prosecutor, E.Ö. and G.A. maintained that they had seen the applicant and his brother by using a night vision device and a thermal camera while the suspects were walking towards M.B.’s house. They had observed that the suspects had stopped when they were close to the house and had remained kneeling down for a while before entering into the house. They further maintained that they had seen shiny objects on the suspects’ shoulders. The officers noted that when they had left the house the suspects had lit their torches, had pointed them towards the path that they would take and had then turned them off. The officers had informed İ.S. of the aforementioned observations and had considered that the suspects might have been sending a message to another group in the area with their torches. They had then heard İ.S. ordering the suspects to stop and had subsequently heard firing for around five seconds.\n\n15.  M.A., Y.S., and three other officers, R.E., B.B.A and M.K., in almost identical statements before the Mazgirt Public Prosecutor, maintained that İ.S. had told them that officers from another position had informed him that one of the two suspects was carrying an object on his shoulder which extended to hip level. Y.S. and M.K. further noted that they had also received this information through their radio transmitters. They further stated that the applicant and his brother had attempted to run away when their commander had told them to stop. As the suspects had not complied with the commander’s instruction, they had first fired warning shots and had then opened fire towards the suspects’ feet. They had stopped firing when one of the suspects had shouted that they were villagers a few seconds later. They maintained that it had been dark when the shootings occurred and that the applicant and his brother had not had lit torches with them. They stated that the applicant had been wounded because of his own conduct and that they would not have opened fire if the applicant and his brother had stopped in the first place. According to these five officers, the applicant must have been shot in the shoulder after falling to the ground upon being shot in the legs. They lastly contended that they had not intended to kill the applicant or his brother and that if they had had that intention, neither the applicant nor his brother would have survived.\n\n16.  In their statements before the public prosecutor, Ş.Y. and A.Ş., two officers who had been positioned at the farthest point from the house, stated that they had not heard their commander give the order to stop, as it had been impossible due to the distance between them, and that they had heard gunfire for a few seconds. They had also heard their commander’s instruction to hold fire over the radio transmitter.\n\n17.  On 13 September 2007 the Mazgirt Public Prosecutor held an onsite inspection in Gölek. The public prosecutor observed the area where the applicant had been shot and heard İ.S., M.K. and A.Ş., who reiterated their statements given on 11 September 2007. During the inspection, a gendarmerie officer took photographs of the area under the instructions of the Mazgirt Public Prosecutor.\n\n18.  On 1 February 2008 the Mazgirt Public Prosecutor decided that his office did not have jurisdiction over the prosecution, given that the suspects had allegedly committed the offence of excessive use of force. The Mazgirt Public Prosecutor then sent the investigation file to the Elazığ Military Prosecutor’s Office.\n\nC.  Decision of the Elazığ Military Prosecutor\n\n19.  On 31 December 2008 the Elazığ Military Prosecutor decided not to bring criminal proceedings against the six gendarmerie officers. The military prosecutor noted that the applicant had stated that he and his brother had had their torches on when he had been shot and that there had been hundreds of shots. The prosecutor found these claims unfounded, considering that at the time of the shootings night had not entirely fallen and that it would not therefore have been reasonable to have torches switched on. In the light of the statements of the applicant and his brother that they had not at first realised that they were being targeted and had only thrown themselves to the ground after the shooting had started, the prosecutor considered that the accused officers had not fired directly towards the applicant and his brother. The prosecutor further noted that the applicant’s brother, M.B. and B.B. had all stated that the officers had fired because they had considered the applicant and his brother to be terrorists, a statement which was in line with the accused officers’ defence submissions. According to the prosecutor, the manner in which the applicant and his brother had acted (staying in the house only for 5 minutes, leaving the house without the hosts coming out of the house, keeping a distance between them and turning their torches off while walking) had justified the officers’ suspicions that they were terrorists. The prosecutor further noted that, had there been hundreds of shots fired, the applicant’s brother would also have been injured. The prosecutor considered that it had been reasonable for the gendarmerie officers to think that the torches had been weapons as it had been dark and because the torches, whose dimensions were 25 cm x 15 cm, had not been switched on, and that the information given to the security forces had corresponded to the circumstances as they unfolded. The military prosecutor finally found it established that gendarmerie officers had fired towards the ground and towards the feet of the applicant, whom they had considered to be a terrorist, and with a view to effecting his arrest in accordance with the law. He therefore concluded that the officers had not been at fault and had not used excessive force.\n\n20.  On an unspecified date the applicant lodged an objection against the decision of the military prosecutor.\n\n21.  On 6 April 2009 the Malatya Military Court upheld the Elazığ Military Prosecutor’s reasoning and dismissed the applicant’s objection.\n\nII.  RELEVANT DOMESTIC LAW\n\n22.  A description of the relevant domestic law can be found in Mustafa Aldemir v. Turkey, no. 53087/07, §§ 28-31, 2 July 2013.\n\nTHE LAW\n\nI.  ALLEGED VIOLATIONS OF ARTICLES 2, 3, 6 AND 13 OF THE CONVENTION\n\n23.  The applicant complained under Articles 2 and 3 of the Convention that the force used by the gendarmerie officers had not been absolutely necessary, that the excessive nature of the use of force had shown that the officers had in fact intended to kill him, and that he had suffered bodily harm as a result of the shootings. He further complained under Articles 2, 6 and 13 of the Convention that the domestic authorities had failed to carry out an effective investigation into the circumstances of his wounding.\n\n24.  The Government contested that argument.\n\n25.  The Court notes at the outset that the Government did not challenge the applicability of Article 2 of the Convention. In any event, the Court considers that the applicant’s fortuitous survival does not prevent the Court from examining the complaint under Article 2 of the Convention, since the use of firearms in the instant case was potentially fatal and put the applicant’s life at risk (see paragraph 7 above). Indeed, the Court has examined complaints under this provision in a number of cases where the alleged victim did not die as a result of the impugned conduct (see Makaratzis v. Greece [GC], no. 50385/99, § 55, ECHR 2004-XI); Peker (no. 2) v. Turkey, no. 42136/06, §§ 39-43, 12 April 2011 and the cases cited therein; Evrim Öktem v. Turkey, no. 9207/03, §§ 42 and 43, 4 April 2008 and the cases cited therein; and compare with Mustafa Aldemir, cited above, §§ 28-31). Thus, having regard, in particular, to the fact that the injuries that the applicant sustained were life-threatening and in the light of the aforementioned case-law, the Court deems it more appropriate to examine the applicant’s complaints solely from the standpoint of Article 2 of the Convention, which reads as follows:\n\n“1.  Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.\n\n2.  Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:\n\n(a)  in defence of any person from unlawful violence;\n\n(b)  in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;\n\n(c)  in action lawfully taken for the purpose of quelling a riot or insurrection.”\n\nA.  Admissibility\n\n26.  The Government submitted that the applicant had failed to exhaust domestic remedies as the domestic proceedings were still pending. In the alternative, they maintained that the applicant, who claimed that the investigation had been ineffective, should have applied to the Court within six months after the shooting.\n\n27.  The applicant replied that he had exhausted domestic remedies and had introduced the application within six months after the final domestic decision.\n\n28.  The Court observes that the investigation into the applicant’s allegations ended on 6 April 2009, when the Malatya Military Court dismissed the applicant’s objection to the decision of 31 December 2008, whereas the application was introduced on 29 September 2009. It therefore dismisses the Government’s objection that the domestic proceedings were pending at the time of the introduction of the present application. Similarly, given that the application was lodged within six months after the final decision in the domestic proceedings, the Court also dismisses the second limb of the Government’s objections.\n\n29.  The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n1.  The parties’ submissions\n\n30.  The applicant argued that the force used by the gendarmerie officers against him had been unlawful. He maintained that the excessive nature of the use of force, as a result of which he had become disabled, showed that the security forces had in fact intended to kill him. He further contended that the security forces had not warned him and his brother to stop and that he had not attempted to escape, as the members of the security forces had alleged. According to the applicant, the security forces had actually seen him and his brother carrying torches, and not weapons, before firing but had fired anyway, since they had thought that he and his brother were terrorists.\n\n31.  The applicant further submitted that the investigation carried out by the Mazgirt Public Prosecutor and the military prosecutor had been ineffective. He stated in this respect that the investigation had been conducted by the gendarmerie forces and that the Mazgirt Public Prosecutor had only gone to the place where he had been shot after 10 days had passed. The applicant further maintained that neither he nor his lawyer had been allowed access to the investigation file. He contended, in this connection, that the onsite inspection conducted by the Mazgirt Public Prosecutor had also been inadequate, as the fact that M.B.’s house had also been hit by bullets had not been noted in the report prepared afterwards. In addition, the Elazığ Military Public Prosecutor had also failed to carry out an onsite visit.\n\n32.  The Government submitted that the security forces had acted in accordance with the law. According to the Government, the torches carried by the applicant and his brother had been identified as weapons by the gendarmerie officers because the nature of the area had prevented the security forces from having a clear view of the applicant and his brother. Furthermore, the information given to the security forces had corresponded to the circumstances in which they had found themselves. The Government maintained that the gendarmerie officers had first warned the applicant and his brother and had fired warning shots before opening fire towards them. They concluded that the force used against the applicant had been absolutely necessary and proportionate.\n\n33.  As regards the investigation, the Government submitted that the Mazgirt Public Prosecutor had conducted an onsite visit and prepared a report and a sketch of the scene of the incident. Furthermore, the evidence found at the scene had been safeguarded. The Government contended that both the Mazgirt Public Prosecutor and the Elazığ Military Public Prosecutor had conducted an adequate investigation, to which the applicant had had access. According to the Government, both prosecutors had heard the applicant, his brother, the accused officers and witnesses. They maintained that the investigation had been effective and had been concluded within a year and seven months.\n\n2.  The Court’s assessment\n\n34.  The Court reiterates that the text of Article 2 of the Convention read as a whole demonstrates that paragraph 2 does not primarily define instances where it is permitted to intentionally kill an individual, but describes situations where it is permitted to “use force” which may result, as an unintended outcome, in the deprivation of life. The use of force, however, must be no more than “absolutely necessary” for the achievement of any of the purposes set out in subparagraphs (a), (b) or (c). In this respect the use of the term “absolutely necessary” in Article 2 § 2 indicates that a stricter and more compelling test of necessity must be employed than that normally applicable when determining whether State action is “necessary in a democratic society” under paragraph 2 of Articles 8-11 of the Convention. In particular, the force used must be strictly proportionate to the achievement of the aims set out in the subparagraphs of the Article (see McCann and Others v. the United Kingdom, 27 September 1995, §§ 148-149, Series A no. 324).\n\n35.  Turning to the circumstances of the present case, it is not disputed between the parties that the applicant was shot and seriously injured by the security forces of the respondent State. The Court will therefore examine whether the Government have discharged their burden of justifying the shooting. In doing so, it will have particular regard to the investigation carried out at the domestic level in order to establish whether that investigation was effective, in the sense that it was capable of leading to the determination of whether the force used was or was not justified in the circumstances (see, for example, Gülbahar Özer and Others v. Turkey, no. 44125/06, § 59, 2 July 2013, and Özcan v. Turkey, no. 18893/05, § 61, 20 April 2010).\n\n36.  The central importance of the protection afforded under Article 2 of the Convention is such that the Court is required to subject allegations of a breach of this provision to the most careful scrutiny, taking into consideration not only the actions of the agents of the State who actually administered the force but also all the surrounding circumstances, including such matters as the planning and control of the actions under examination – even where domestic proceedings and investigations have already taken place (see Özcan, cited above, § 63, and Erdoğan and Others v. Turkey, no. 19807/92, § 71, 25 April 2006).\n\n37.  As for the planning of the operation, the Court observes that the security forces had received information from B.B. that members of the PKK would be going to his father’s house, where the applicant and his brother subsequently went. They therefore instigated an operation in the area during the early hours of 3 September 2007. After almost twelve hours of work, the operation commander and team commanders chose four points facing M.B.’s house at which the members of the security forces could position themselves. Gendarmerie officers then took up position at those points and began waiting. The gendarmerie officers thus had adequate time and resources to give thought to different ways of observing possible suspects and apprehending them by using nonlethal methods. Thus, it cannot be said that the security forces had to take decisions and act in the heat of the moment (compare with Anik and Others v. Turkey, no. 63758/00, § 63, 5 June 2007). In this connection, the Court has serious doubts regarding the Government’s submissions that the officers – who had a thermal camera and a night vision device – were unable to have a clear view of the applicant and his brother from where they were positioned.\n\n38.  As to the investigation, the Court observes at the outset that the initial and critical phases of the investigation were carried out by members of the gendarmerie unit who had carried out the operation of 3 September 2007. M.K. and the four other officers who signed the crime scene report were subsequently identified as suspected of being responsible for the applicant’s wounding by the Mazgirt Public Prosecutor. In fact, İ.S. was the commander of the whole operation of 3 September 2007. The same officers also secured the crucial evidence, such as the spent bullet cases found in the area. The Court considers that allowing the same unit of gendarmerie officers involved in the operation to take such an active part in the investigation was not only so serious as to taint the independence of the entirety of the investigation but also entailed the risk that evidence crucial for establishing the responsibility of the gendarmerie officers would be destroyed or ignored (see Gülbahar Özer and Others, cited above, § 63; Mižigárová v. Slovakia, no. 74832/01, § 100, 14 December 2010 and Ramsahai and Others v. the Netherlands [GC], no. 52391/99, §§ 333-341, ECHR 2007II).\n\n39.  Furthermore, the Mazgirt Public Prosecutor failed to conduct an onsite inspection in the area for ten days, which entailed a further risk of the evidence being destroyed. What is more, when the public prosecutor visited the area in question three of the members of the security forces who had directed and taken part in the operation accompanied him. The Court does not ignore the fact that they made statements to the public prosecutor in their capacity as suspects. Yet, the Court finds the absence of the applicant’s lawyer, his brother or the witnesses during that visit inappropriate. In the Court’s view, their presence would not only have helped the public prosecutor in establishing the circumstances of the incident, it would have also given the applicant’s representative or his brother a chance to challenge the statements of the officers on the spot. The Court further observes that the Mazgirt Public Prosecutor failed to inspect M.B.’s house with a view to verifying his statements that his house had been hit by the bullets and, thus, assessing the proportionality of the force used. Neither did he ensure the collection of the bullets used during the operation.\n\n40.  The Court further observes that the Mazgirt Public Prosecutor did not take any steps aimed at resolving the inconsistency between the account of the applicant and his brother and that of the security forces. In particular, he failed to establish with specific evidence whether the security forces had actually fired warning shots before shooting the applicant. The public prosecutor should have ensured that the bullets, the empty cartridges and the firearms of the gendarmerie officers were collected and sent for ballistic examination (see Mustafa Aldemir, cited above, §§ 49 and 55).\n\n41.  Moreover, there is a serious inconsistency between the account of events as described by İ.S. and that of M.A. and Y.S., the officers who were also positioned at point 2. İ.S. maintained before the Mazgirt Public Prosecutor that he had received information from both the officers at point no. 3 and M.A. and Y.S. that one suspect had an object that extended from the shoulder to the hip, whereas M.A. and Y.S. stated that it had been İ.S. who had told them about that object. There is nothing in the documents submitted to the Court demonstrating that the Mazgirt Public Prosecutor attempted to eliminate this inconsistency. He also failed to enquire why and how the statements of five gendarmerie officers, namely M.A., Y.S., R.E., B.B.A. and M.K., regarding the operation were almost identical to the extent that most of the texts were word-for-word the same. The Court also cannot overlook the fact that only ten of the twenty-six officers who took part in the operation of 3 September 2007 made statements before the Mazgirt Public Prosecutor.\n\n42.  In their observations to the Court, the Government submitted that the accused officers, the applicant and the witnesses had given evidence to the Elazığ Military Public Prosecutor. However, they failed to produce any document in support of these submissions. What is more, the military public prosecutor’s decision of 31 December 2008 does not contain any reference to statements taken at his office. It appears that the Elazığ Military Public Prosecutor simply took into account the statements taken by the Mazgirt Public Prosecutor, as well as the documents prepared by the latter. It appears that he did not conduct an onsite inspection either. The Court is therefore led to conclude that the Elazığ Military Public Prosecutor rendered his decision solely on the basis of the investigation conducted by the Mazgirt Public Prosecutor, contrary to what was claimed by the Government.\n\n43.  Similarly, the applicant alleged that he and his lawyer had not been allowed to have access to the investigation file at the initial stages of the investigation by a decision of Mazgirt Magistrates’ Court. However, he did not submit the decision in issue. As a result, the Court cannot give further consideration to the applicant’s allegation.\n\n44.  Nevertheless, in the light of the serious defects in the investigation which are highlighted above and which are in breach of the obligation under Article 2 of the Convention to carry out effective investigations, the Court considers that the investigation carried out at the domestic level was clearly inadequate and left many important questions unanswered. As a result, the investigation was not capable of establishing the true circumstances surrounding the applicant’s shooting. The Court therefore concludes that the Government have failed to show to the Court’s satisfaction that the resort to the use of lethal force against the applicant was absolutely necessary and proportionate (see Gülbahar Özer and Others, cited above, §§ 74 and 75, and Peker (no. 2), cited above, § 59).\n\n45.  There has accordingly been a violation of Article 2 of the Convention in its substantive and procedural aspects in respect of the shooting of the applicant.\n\nII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n46.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n47.  The applicant claimed 700,000 Turkish liras (TRY), approximately 304,000 euros (EUR), in respect of non-pecuniary damage. He further claimed TRY 500,000 in respect of pecuniary damage. This sum concerned medical expenses incurred and loss of earnings arising as a result of his incapacity for work. In support of his claims, the applicant submitted medical reports issued by the Karşıyaka State Hospital and the Ege University Hospital. The report by the Karşıyaka State Hospital demonstrates his permanent disability. According to the report of the Ege University Hospital, the applicant was hospitalised and received medical treatment, including surgical operations, between 3 October and 14 December 2007. The applicant also submitted a number of invoices in relation to his medical examinations between December 2007 and August 2008 at the Orthopaedics Department of the Ege University Hospital amounting to a total of EUR 285.\n\n48.  The Government considered that the claims for non-pecuniary and pecuniary damage were excessive and unsubstantiated.\n\n49.  Having regard to the applicant’s failure to submit any evidence or other information in support of his claim for pecuniary damage in so far as it concerns his loss of earnings and incapacity for work, the Court rejects this part of the applicant’s claim for pecuniary damage. On the other hand, the Court considers that there is a direct causal link between the applicant’s injuries sustained as a result of the shooting and the applicant’s medical examinations between December 2007 and August 2008 for which invoices were submitted to the Court. In addition, the Government did not challenge this causal link. The Court accordingly awards the applicant EUR 285 in respect of pecuniary damage.\n\n50.  As to the claim in respect of non-pecuniary damage, in the light of the violation of Article 2 of the Convention found above and taking into account the applicant’s permanent disability, the Court awards the applicant EUR 52,000 in respect of non-pecuniary damage.\n\nB.  Costs and expenses\n\n51.  The applicant also claimed TRY 5,100, approximately EUR 2,200, for costs and expenses incurred before the Court. He sought EUR 650 to cover administrative costs, such as postage and translation fees. He further claimed EUR 1,550 for his lawyer’s fee, referring to the recommendations of the Union of Bar Associations of Turkey regarding lawyers’ fees.\n\n52.  The Government submitted that the applicant’s claims were not supported by documentary evidence.\n\n53.  According to the Court’s case-law, an applicant is entitled to reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the applicant failed to substantiate that he actually incurred the costs claimed. In particular, he failed to submit documentary evidence, such as invoices demonstrating administrative costs, a contract, a fee agreement or a breakdown of the hours spent by his lawyer on the case. Accordingly, the Court makes no award under this head.\n\nC.  Default interest\n\n54.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Declares the application admissible;\n\n2.  Holds that there has been a violation of Article 2 of the Convention in both its substantive and procedural aspects;\n\n3.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n4.  Dismisses the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 26 November 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_497","text":"PROCEDURE\n\n1.  The case originated in two applications (nos. 31145/96 and 35580/97) against the United Kingdom lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two British nationals, Mr Mark Wilkinson and Mr Kevin Allen (“the applicants”), on 13 April 1996 and 1 April 1997, respectively.\n\n2.  The applicants were represented by Mr J. Mackenzie, a lawyer practising in London. The British Government (“the Government”) were represented by their Agents, Mr M. Eaton and Mr C. Whomersley, both of the Foreign and Commonwealth Office.\n\n3.  The applicants alleged, as regards their trial by court-martial, that they did not have a fair and public hearing by an independent and impartial tribunal established by law. On 31 May 1999 the Commission found a violation of Article 6 § 1 of the Convention. By letter dated 27 September 1999 the Government referred the cases to the Court explaining that the reference had been made not to contest the breach of Article 6 § 1 which had been found by the Commission but to seek a ruling pursuant to Article 41 on what just satisfaction, if any, should be awarded to the applicants.\n\n4.  In accordance with Article 5 § 4 of Protocol No. 11 to the Convention and Rules 100 § 1 and 24 § 6 of the Rules of Court, a panel of the Grand Chamber decided on 13 December 1999 that the applications should be considered by a Chamber constituted within one of the Sections of the Court. The applications were then allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court).\n\nWithin that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1 of the Rules of Court. Sir Nicolas Bratza, the judge elected in respect of the United Kingdom, withdrew from sitting in the case (Rule 28). While the Government initially appointed Sir Stephen Richards to sit as an ad hoc judge, by letter dated 9 November 2000 they agreed that Judge Costa, the judge elected in respect of France, would sit in place of Sir Nicolas Bratza (Article 27 § 2 of the Convention and Rule 29 § 1).\n\n5.  The Chamber decided to join the proceedings in the applications (Rule 43 § 1).\n\n6.  The applicants and the Government each filed observations on the merits (Rule 59 § 1). The Chamber decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 2 in fine).\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASES\n\n7.  At the time of the events in question, both applicants were serving in the army and were tried by district courts-martial convened pursuant to the Army Act 1955.\n\n8.  Mr Wilkinson pleaded guilty to the armed forces’ disciplinary offence of absence without leave (contrary to section 38(a) of the Army Act 1955). Although the Army Board upheld his petition against the custodial part of his sentence, the charge for which he was convicted carried a potential sentence of two years’ imprisonment (see paragraph 17 below).\n\n9.  Mr Allen pleaded guilty to two charges of possession of controlled drugs contrary to the Misuse of Drugs Act 1971, these being civilian criminal offences. The Army Board reduced the custodial element of his sentence to six months’ imprisonment.\n\nII.  RELEVANT DOMESTIC LAW AND PRACTICE\n\n10.  The relevant provisions of the Army Act 1955 are set out in the judgment of the European Court of Human Rights in the Findlay case (Findlay v. the United Kingdom judgment of 25 February 1997, Reports of Judgments and Decisions 1997-I, §§ 32-51).\n\n11.  Central to the system under the 1955 Act was the role of the “convening officer”. This officer (who had to be of a specified rank and in command of a body of the regular forces or of the command within which the person to be tried was serving) assumed responsibility for every case to be tried by court-martial. He or she had the final decision on the nature and detail of the charges to be brought and the type of court-martial required, and was responsible for convening the court-martial.\n\n12.  The convening officer would draw up a convening order, which would specify, inter alia, the date, place and time of the trial, the name of the president and the details of the other members, all of whom he could appoint. Failing the appointment of a judge advocate by the Judge Advocate General’s Office, the convening officer could appoint one. He also appointed, or directed a commanding officer to appoint, the prosecuting officer.\n\n13.  Prior to the hearing, the convening officer was responsible for sending an abstract of the evidence to the prosecuting officer and to the judge advocate, and could indicate the passages which might be inadmissible. He procured the attendance at trial of all witnesses to be called for the prosecution. When charges were withdrawn, the convening officer’s consent was normally obtained, although it was not necessary in all cases, and a plea to a lesser charge could not be accepted from the accused without it. He had also to ensure that the accused had a proper opportunity to prepare his defence, legal representation if required and the opportunity to contact the defence witnesses, and was responsible for ordering the attendance at the hearing of all witnesses “reasonably requested” by the defence.\n\n14.  The convening officer could dissolve the court-martial either before or during the trial, when required in the interests of the administration of justice. In addition, he could comment on the proceedings of a court-martial. Those remarks would not form part of the record of the proceedings and would normally be communicated in a separate minute to the members of the court, although in an exceptional case, where a more public instruction was required in the interests of discipline, they could be made known in the orders of the command.\n\n15.  The convening officer usually acted as confirming officer also. A court-martial’s findings were not effective until confirmed by the confirming officer, who was empowered to withhold confirmation or substitute, postpone or remit in whole or in part any sentence.\n\n16.  Since the applicants’ trials, the law has been amended by the Armed Forces Act 1996 (see the above-mentioned Findlay v. the United Kingdom judgment, §§ 52-57).\n\n17.  A person convicted of absence without leave shall be liable to imprisonment for a term not exceeding two years (section 38(a) of the 1955 Act).\n\nTHE LAW\n\ni.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION\n\n18.  Each of the applicants complained, invoking Article 6 § 1 of the Convention, that he did not have a fair hearing by an independent and impartial tribunal established by law. Mr Wilkinson also complained that he did not have a public hearing. Article 6 § 1, insofar as relevant, reads as follows:\n\n“1.  In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law. ...”\n\nA.  Applicability of Article 6 § 1 of the Convention\n\n19.  The Court notes the potential penalty of two years’ imprisonment (in Mr Wilkinson’s case) and the final sentence imposed on Mr Allen (six months’ imprisonment) together with the nature of the charges to which, in particular, Mr Allen pleaded guilty. It considers that the applicants’ court-martial proceedings involved the determination of their sentence on charges of a criminal nature within the meaning of Article 6 § 1 of the Convention (the above-cited Findlay judgment, § 69, and the Garyfallou aebe v. Greece judgment of 24 September 1997, Reports 1997-V, no. 49, §§ 32-33, with further references).\n\nB.  Independence and impartiality of the applicants’ courts-martial\n\n20.  The Commission concluded that there had been a violation of Article 6 § 1 in that the applicants were not given a fair hearing by an independent and impartial tribunal. The Government made no observations on the merits of these complaints except to clarify that the cases had been referred to the Court by the Government not to contest the Commission’s conclusions but to seek a ruling on the just satisfaction awards, if any, to be made.\n\n21.  The Court recalls that, in the above-mentioned Findlay judgment, the Court held that a general court-martial convened pursuant to the Army Act 1955 did not meet the requirements of independence and impartiality set down by Article 6 § 1 of the Convention in view, in particular, of the central part played in its organisation by the convening officer. In this latter respect, the Court considered that the convening officer was central to the applicant’s prosecution and was closely linked to the prosecution authorities; the Court expressed some concern that the members of the court-martial were subordinate (either directly or indirectly) to the convening officer, and the Court found it significant that the convening officer also acted as confirming officer.\n\n22.  The Court subsequently found a district court-martial convened pursuant to the Air Force Act 1955 to have similar deficiencies (Coyne v. the United Kingdom judgment of 24 September 1997, Reports 1997-V, pp. 1848-52, §§ 20-44). In particular, it considered that there were no significant differences between the part played by the convening officer in Mr Coyne’s court-martial, under the Air Force Act 1955, and in that of Mr Findlay, under the Army Act 1955. While an appeal to the Courts-Martial Appeal Court was open to Mr Coyne, the Court concluded that the organisational defects in the court-martial could not be corrected by any subsequent review procedure because an accused faced with a serious criminal charge is entitled to a first instance tribunal which meets the requirements of Article 6 § 1 of the Convention.\n\n23.  The Court subsequently found a violation of Article 6 § 1 on the same basis in a series of cases involving complaints about the independence and impartiality of army and air force district and general courts-martial convened pursuant to the Army and Air Force Acts 1955 (Cable and Others v. the United Kingdom [GC], No 24436/94 et seq., 18.2.1999).\n\n24.  In the present case, the Court recalls that district army courts-martial were convened pursuant to the Army Act 1955 to try the applicants. It finds no reason to distinguish the present cases from those of Mr Findlay, Mr Coyne or of Mr Cable and Others as regards the part played by the convening officer in the organisation of their courts-martial. Accordingly, the Court considers that the applicants’ courts-martial did not meet the independence and impartiality requirements of Article 6 § 1 of the Convention. The Court also considers that, since the applicants were faced with, inter alia, charges of a serious and criminal nature and were therefore entitled to a first instance tribunal complying with the requirements of Article 6 § 1, such organisational defects in their courts-martial could not be corrected by any subsequent review procedure.\n\n25.  Accordingly, and for the reasons expressed in detail in the above-cited judgment of the Court in Mr Findlay’s case, the Court concludes that the courts-martial which dealt with the present applicants’ cases were not independent and impartial within the meaning of Article 6 § 1 of the Convention.\n\n26.  The Court is further of the opinion that, since the applicants’ courts-martial have been found to lack independence and impartiality, they could not guarantee either of the applicants a fair trial (Smith and Ford v. the United Kingdom, no. 37475/97, 29.9.1999, § 25, and Moore and Gordon v. the United Kingdom, no. 39036/97, 29.9.1999, § 24).\n\nC.  Remaining points at issue\n\n27.  The applicants also complained that their courts-martial were not “established by law” within the meaning of Article 6 § 1 of the Convention. Mr Wilkinson also claimed that his court-martial was not “public” within the meaning of that Article.\n\n28.  In view of its conclusions at paragraphs 25 and 26 above, the Court finds that it is unnecessary also to examine these complaints of the applicants.\n\nII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n29.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Loss\n\n30.  The applicants did not claim to have suffered any pecuniary loss.\n\n31.  They sought £7500 and £5000 pounds sterling (GBP), respectively in compensation for the non-pecuniary loss suffered as a result of the violations of their rights guaranteed by Article 6 § 1 of the Convention.\n\n32.  The Government observed that there were no grounds for believing that the applicants would not have been convicted and suffered the same or similar consequences if the courts-martial had been organised to comply with Article 6 § 1, and they submitted that no causal link had been established between the breach of the Convention of which the applicants complained and the alleged loss. The Government relied on the approach adopted by the Court on the question of just satisfaction following a finding of the same violation of Article 6 § 1 of the Convention in the above-cited Findlay, Coyne and Cable and Others cases.\n\n33.  The Court recalls that in the aforementioned Findlay judgment it decided not to award compensation for either pecuniary or non-pecuniary damage on the ground that it was impossible to speculate as to the outcome of the court-martial proceedings had the violation of the Convention not occurred (loc. cit., §§ 85 and 88, and the Coyne judgment at § 62).\n\nThe Court, accordingly, considers that it would not be justified in awarding compensation for the alleged non-pecuniary loss of the present applicants, since no causal link has been established between any such loss and the breaches of the Convention established.\n\n34.  The Court therefore considers that the finding of a violation in itself constitutes sufficient just satisfaction for any non-pecuniary damage suffered by the applicants.\n\nB.  Costs and expenses\n\n35.  The applicants requested reimbursement of their legal costs and expenses in the sums of GBP 1988.10 and GBP 1022.25 (inclusive of value-added tax), respectively and the Government do not dispute this claim.\n\n36.  The Court recalls that it has found a violation of Article 6 § 1 of the Convention in respect of each applicant and considers it appropriate, in the circumstances of the cases, to award the sums claimed by the applicants in costs and expenses (which figures are inclusive of any value-added tax which may be chargeable).\n\nC.  Default interest\n\n37.  According to the information available to the Court, the statutory rate of interest applicable in the United Kingdom at the date of adoption of the present judgment is 7.5% per annum.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Holds that there has been a violation of Article 6 § 1 of the Convention;\n\n2.  Holds that the finding of a violation in itself constitutes sufficient just satisfaction for any non-pecuniary damage alleged by the applicants;\n\n3.  Holds\n\n(a)  that the respondent State is to pay the applicants, within three months, GBP £1988.10 and GBP £1022.25, respectively for costs and expenses, which figures are inclusive of any value-added tax that may be chargeable;\n\n(b)  that simple interest at an annual rate of 7.5% shall be payable from the expiry of the above-mentioned three months until settlement;\n\n4.  Dismisses the remainder of the applicants’ claims for just satisfaction.\n\nDone in English, and notified in writing on 6 February 2001, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_318","text":"PROCEDURE\n\n1.  The case originated in an application (no. 31805/06) against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Azerbaijani national, Mr Sarvan Samad oglu Rizvanov (Sarvan Səməd oğlu Rizvanov – “the applicant”), on 27 July 2006.\n\n2.  The applicant was represented by Mr I. Aliyev, a lawyer practising in Azerbaijan. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov.\n\n3.  The applicant alleged, in particular, that he had been the victim of police brutality during a demonstration and that the domestic authorities had failed to investigate the incident effectively.\n\n4.  On 7 January 2008 the case was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n5.  The applicant was born in 1966 in Gabala, Azerbaijan and lives in .\n\nA. The alleged ill-treatment\n\n6.  At the time of the events in question, the applicant was a journalist working at the Turan Information Agency based in .\n\n7.  On 9 November 2005 a group of political parties representing the opposition held an authorised demonstration at  in . The applicant, who was covering the demonstration, was wearing a special blue vest identifying him as a journalist.\n\n8.  At the edge of the square where the demonstration was held, there was a tall metal construction resembling a staircase. The applicant, who was taking pictures of the demonstration, climbed up this construction to get a better view. During a number of previous demonstrations in the same square, the construction had been used by journalists for the same purpose.\n\n9.  While the applicant was taking pictures, the Deputy Head of the Yasamal District Police Office, Colonel C. M., hit him with a truncheon several times. This event was witnessed by a number of journalists and other people standing nearby.\n\n10.  Shortly after this incident, C. M. approached a group of journalists and remarked: “I hit him softly, if I hit him hard he would die.” One of the journalists managed to record the remark on tape.\n\n11.  On 10 November 2005 the applicant went to hospital to seek medical treatment. He was given certain medical advice for outpatient treatment verbally but was not given a written prescription. The doctor who examined him issued a medical certificate which read as follows, in the relevant parts:\n\n“Full diagnosis: contusion (əzilmə) of the left leg, contusion (əzilmə) of the left upper arm.\n\nAccording to the patient, at around 3 p.m. on 9 November 2005 he was injured during a demonstration... The patient received treatment and [medical] advice. This certificate was issued on 10 November 2005.”\n\nB. The criminal proceedings\n\n12.  On 11 November 2005 the applicant lodged a criminal complaint with the Prosecutor General’s Office and the Ministry of Internal Affairs. He complained that C. M. had used excessive and unjustified force against him, that several people had witnessed this and that he had a tape recording of C. M.’s admission that he had hit the applicant with a truncheon. Other journalists’ organisations, including the Azerbaijani Press Council, also wrote to the Prosecutor General’s Office and the Ministry of Internal Affairs asking them to punish the person responsible for the applicant’s illtreatment.\n\n13.  According to the Government, the applicant’s complaint of 11 November 2005 was received by the Prosecutor General’s Office on 14 November 2005 and was subsequently transferred to the Yasamal District Prosecutor’s Office, which received it on 28 November 2005.\n\n14.  On 1 December 2005, at a prosecutor’s request, the applicant was examined by a forensic expert who discovered no injuries which might have been inflicted on 9 November 2005 on the applicant’s person. In particular, the forensic report, issued on the same day, read as follows:\n\n“[Examination:] There is a clear-contoured dark blue-violet bruise (qançır) of an indefinite shape, measuring 3.5x2.5 cm, on the upper one-third portion of the outward side of the left thigh. No other injuries or traces of injuries were discovered on other parts of the body, including the left upper arm. ...\n\n[Conclusion:] 1. The forensic examination of [the applicant] revealed one bruise on the upper one-third portion of the outward side of his left thigh; the bruise was caused by a blunt object (it is impossible to make more specific observations about the type of the blunt object because the injured area bears no signs of individual characteristics of the object that came into contact with it); the time [of infliction of the injury] is approximately two to four days prior to the examination; [the injury] is not harmful to health...\n\n2. It is impossible to determine whether [the applicant] had sustained any injuries on 9 November 2005 because no injuries or traces of injuries inflicted on that day have been observed during the forensic examination and because the certificate [of 10 November 2005] issued in his name did not specify objective signs of injury (in other words, the observation of “contusions” (əzilmə) in that certificate was not supported by description of objective criteria of an injury such as a bruise (qançır), abrasion (sıyrıq), wound (yara), and so on).”\n\n15.  On 3 December 2005 the Deputy Prosecutor of the Yasamal District Prosecutor’s Office issued a decision not to institute criminal proceedings. The prosecutor had examined two witness testimonies, submitted by two journalists, in support of the applicant’s version of events, and the submissions of C. M., who argued that he had not used excessive force on the applicant, but that he had asked him to climb down from the metal construction due to a risk of it collapsing and injuring people standing in the vicinity. Two police officers had testified in support of C. M.’s version of events. The prosecutor also had regard to the forensic report of 1 December 2005 and concluded that the available evidence did not disclose any appearance of a criminal act.\n\n16.  The applicant lodged a complaint against that decision with the Yasamal District Court. He argued that the prosecutor’s decision was unsubstantiated. In particular, the prosecutor had not taken into consideration the witness testimonies, the medical certificate of 10 November 2005, the tape recording and the photos submitted on his behalf. He also disputed the impartiality of the forensic report of 1 December 2005, on which the prosecutor had largely relied. In support of his claim, the applicant submitted the medical certificate of 10 November 2005, the tape recording and the photos.\n\n17.  On 26 January 2006 the Yasamal District Court dismissed the applicant’s complaint and found that the prosecutor’s decision of 3 December 2005 had been lawful and properly substantiated. The court noted that C.M. had acted within his competence and performed his duties in bringing the applicant down from the metal construction in order to ensure the safety of the people nearby. The court also relied on the forensic report of 1 December 2005, noting that no injuries which might have been inflicted on 9 November 2005 were discovered on the applicant’s body.\n\n18.  The decision contained no reference to the evidence submitted by the applicant, the medical certificate of 10 November 2005, the tape recording and the photos. It appears from the transcripts of the hearing that the court did not hear evidence from any witnesses.\n\n19.  On 27 January 2006 the applicant appealed against the decision, reiterating his previous complaints.\n\n20.  On 8 February 2006 the Court of Appeal upheld the Yasamal District Court’s decision of 26 January 2006.\n\nC. The civil proceedings\n\n21.  On 22 March 2006 the applicant lodged a civil action against C. M., claiming compensation for damage to his human dignity and professional reputation. He also asked the court to forward the case materials to the prosecution authorities for a new examination of the question of C. M.’s criminal liability.\n\n22.  On 10 April 2006 the Yasamal District Court refused to admit the applicant’s claim. The court considered that the claim was, in essence, the same as his previous criminal complaint, which had already been rejected by a final decision of the domestic courts.\n\n23.  Following a series of appeals by the applicant, on 5 October 2006 the Supreme Court upheld the lower courts’ decisions in the part relating to the complaint against the alleged hitting of the applicant. However, the Supreme Court quashed the decision in the part relating to the compensation for the alleged damage to the applicant’s human dignity and professional reputation, finding that this claim should be examined by the courts.\n\n24.  On 15 July 2007 the Yasamal District Court delivered a judgment on the merits. The court dismissed the applicant’s compensation claim, noting that he had failed to prove that C. M. had caused any non-pecuniary damage to him.\n\n25.  On 3 October 2007 the Baku Court of Appeal upheld the judgment of 15 July 2007.\n\n26.   The applicant lodged an appeal on points of law. On 29 December 2007 the Baku Court of Appeal refused to admit his appeal. The court noted, in particular, that the appeal had not been signed by an authorised person and that the applicant was not represented by a lawyer as required by the domestic law.\n\n27.  On 25 June 2008 the Supreme Court upheld the Baku Court of Appeal’s inadmissibility decision of 29 December 2007.\n\n28.  In the meantime, in August 2006 the applicant applied to the Judicial Legal Council with a request to institute disciplinary proceedings against a judge of the Yasamal District Court who had originally refused to admit his civil action. The Judicial Legal Council refused to entertain this request. The applicant subsequently applied to the domestic courts complaining about that refusal, but his complaints were unsuccessful.\n\nII. RELEVANT DOMESTIC LAW\n\nA. The Constitution of the\n\n29.  Article 46 (III) of the Constitution of the  reads as follows:\n\n“No one shall be subjected to torture or ill-treatment. No one shall be subjected to degrading treatment or punishment. ...”\n\nB. Law on Police of 28 October 1999\n\n30.  Police officers may use special equipment when, inter alia, there is an assumption that as a result of dangerous activities a person could cause damage to himself or people around him (Article 26.II). “Special equipment” includes truncheons, arm-restraining instruments, tear gas, rubber bullets and water cannons (Article 1). Physical force, special equipment or firearms may be used when absolutely necessary in a manner proportionate to the danger posed. The police authorities must carry out an enquiry into every incident involving the use of physical force, special equipment or firearms and issue an opinion concerning its lawfulness (Article 26.VII). Unlawful use of force by a police officer entails the officer’s responsibility under the relevant legislation (Article 26.IX).\n\n31.  Police officers may use physical force, special equipment or firearms only in the event of absolute necessity or necessary self-defence, after all other means of coercion have failed to produce the required result, and depending on the gravity of the offence and the conduct of the offender (Article 27.I.1). Persons injured as a result of the use of physical force, special equipment or firearms must be provided with the necessary medical aid (Article 27.I.5). The police officer must inform the relevant police authority, in writing, about the instances in which he or she used physical force, special equipment or firearms (Article 27.I.7). The relevant prosecutor must also be informed about such use of force within twentyfour hours (Article 27.I.8).\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION\n\n32.  The applicant complained that he had been subjected to an act of police brutality which had caused him serious physical and mental suffering and that the domestic authorities had failed to carry out an effective investigation capable of identifying and punishing the police officer responsible. Article 3 of the Convention reads as follows:\n\n“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”\n\nA.  Admissibility\n\n33.  The Government argued that the applicant had failed to exhaust domestic remedies. In particular, the Government noted that the applicant had failed to lodge a proper cassation appeal in the civil proceedings concerning his claim for compensation for alleged non-pecuniary damage caused to him.\n\n34.  The applicant disagreed with the Government’s submissions.\n\n35.  The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but not that recourse should be had to remedies which are inadequate or ineffective (see Akdivar and Others v. Turkey, 16 September 1996, §§ 65-67, Reports of Judgments and Decisions 1996IV).\n\n36.  The Court observes that, in the present case, the applicant lodged a criminal complaint with the prosecution authorities and lodged a civil action with the domestic courts.\n\n37.  As to the Government’s objection in respect of the civil proceedings concerning the applicant’s claim for compensation, the Court notes that this remedy cannot be regarded as sufficient in terms of a Contracting State’s obligations under Article 3 of the Convention in a case like the present concerning alleged ill-treatment by the police, as it is aimed at awarding damages rather than identifying and punishing those responsible (see Gladyshev v. , no. 2807/04, § 49, 30 July 2009, and Yaşa v. Turkey, 2 September 1998, § 74, Reports of Judgments and Decisions 1998VI). The Court, therefore, dismisses the Government’s objection.\n\n38.  In so far as the Government’s submissions can also be understood as an objection concerning non-exhaustion of domestic criminal remedies, the Court notes that the issue of the effectiveness of the criminal investigation carried out in the present case is closely linked to the merits of the complaint. Thus, the Court decides to join this issue to the merits and will examine it below under the procedural limb of Article 3.\n\n39.  The Court notes that otherwise this complaint is not manifestly illfounded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n1.  Alleged ill-treatment of the applicant by the police officer\n\n(a)  The parties’ submissions\n\n40.  The Government submitted that the applicant had not been ill-treated by the police officer. They relied on the forensic report of 1 December 2005, according to which no injuries dating from 9 November 2005 were discovered on the applicant’s body. The Government also stated that the medical certificate of 10 November 2005 was not reliable as medical evidence, because it did not properly identify the type of injuries and did not attempt to establish their cause.\n\n41.  The Government further submitted that even assuming that the police had used force against the applicant, this force should not be characterised as excessive. In particular, the applicant had failed to comply with the police officer’s lawful request to climb down from the metal construction, where he posed a danger to himself and others. In this respect, the Government argued that the police could use truncheons if there was a risk that as a result of his dangerous activities a person could cause damage to himself and others.\n\n42.  The applicant submitted that he had been ill-treated and that the police officer had used excessive force against him without any justification. In this respect, he relied on the witness testimonies, photos, the tape recording and the medical certificate of 10 November 2005.\n\n(b)  The Court’s assessment\n\n43.  The Court reiterates that Article 3 enshrines one of the most fundamental values of democratic societies. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation (see Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999V, and Assenov and Others v. Bulgaria, 28 October 1998, § 93, Reports 1998VIII).\n\n44.  Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25; Kudła v. Poland [GC], no. 30210/96, § 91, ECHR 2000-XI; and Peers v. Greece, no. 28524/95, § 67, ECHR 2001-III). The Court has considered treatment to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering. It has deemed treatment to be “degrading” because it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them (see Kudła, cited above, § 92).\n\n45.  In assessing evidence, the Court adopts the standard of proof “beyond reasonable doubt”. Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see, among many other authorities, Avşar v. Turkey, no. 25657/94, § 282, ECHR 2001VII (extracts)). The Court is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see, for example, McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000). Nevertheless, where allegations are made under Article 3 of the Convention, the Court must apply a particularly thorough scrutiny even if certain domestic proceedings and investigations have already taken place (see Muradova v. , no. 22684/05, § 99, 2 April 2009, and Avşar, cited above, §§ 283-84).\n\n46.  Turning to the circumstances of the present case, the Court observes at the outset that the parties are in dispute not only about the question of whether the force used against the applicant was excessive, but also whether the applicant was subjected to the use of force by the police at all (compare with Muradova, cited above, § 107).\n\n47.  The Court considers that the applicant has been able to produce sufficiently strong evidence supporting the fact that he was subjected to the use of force by the police. In particular, the applicant produced a medical certificate delivered on 10 November 2005, a day after the incident. Admittedly, this certificate was not issued by a forensic expert and did not provide a detailed forensic description of the injuries or attempt to determine their cause using forensic methods. Nevertheless, it certified that the applicant had contusions of the left leg and left upper arm. Moreover, the day after, the applicant promptly lodged a criminal complaint which required the authorities to seek a proper forensic examination which would confirm the fact of the injuries. However, the official forensic examination was ordered and carried out in a very belated manner, twenty-one days after the alleged incident. Prompt forensic examination is crucial as signs of injury may often disappear rather quickly and certain injuries may heal within weeks or even a few days. It is for this reason that the Court cannot accept the Government’s arguments based on the belated forensic report of 1 December 2005, which concluded that it was impossible to determine whether the applicant had been injured on 9 November 2005 (see also paragraphs 58-59 below). In view of the above, the Court considers that the certificate of 10 November 2005, despite certain shortcomings, constitutes more reliable medical evidence than the forensic report of 1 December 2005 and that, for the purposes of the present complaint, its content is sufficient to conclude that the applicant suffered injuries to the left leg and left upper arm.\n\n48.  Moreover, the applicant produced witness testimonies which supported his allegation that he had been hit by C.M. The applicant’s version of events was also supported by the photos and the tape recording submitted by him. In particular, on the tape recording C.M. himself admitted to other journalists that he had hit the applicant. The submitted photos also confirmed C.M.’s presence at the place of the incident with a truncheon in his hand. In these circumstances, the Court does not see any contradiction or inconsistency in the applicant’s submission that the injuries described in the medical certificate of 10 November 2005 were inflicted by the police on 9 November 2005. The concordant evidence produced before the Court is sufficient to establish at least a presumption of the fact that a policeman hit the applicant with a truncheon during the demonstration. In the Court’s opinion, neither the Government in their submissions, nor the domestic authorities in their respective decisions, provided a convincing rebuttal of this presumption.\n\n49.  The Court will consequently examine whether the use of force against the applicant was excessive. In this respect, the Court attaches particular importance to the circumstances of the use of force (see Güzel Şahin and Others v. , no. 68263/01, § 50, 21 December 2006, and Timtik v. Turkey, no. 12503/06, § 49, 9 November 2010). When a person is confronted by the police or other agent of the State, recourse to physical force which has not been made strictly necessary by the person’s own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 of the Convention (see Kop v. , no. 12728/05, § 27, 20 October 2009, and Timtik, cited above, § 47).\n\n50.  The Court cannot accept the Government’s submission according to which, even assuming that the police had used force against the applicant, this force was justified and not excessive because the applicant failed to comply with the police officer’s lawful request. The Court cannot overlook the fact that the applicant was subjected to the use of force by the police during an authorised demonstration which he was covering as a journalist, wearing a special blue vest which marked him out as such. It is undisputed that the applicant did not use violence against the police or pose a threat to them. Moreover, despite the Government’s arguments to the contrary, it has not been convincingly established at the outcome of the criminal inquiry and other domestic proceedings that, by using the metal construction as a viewpoint, the applicant was actually creating serious danger for the people in the square and that the police had actually given him a warning in this respect and a reasonable opportunity to comply with it, prior to resorting to the use of force. In this connection, the Court also takes into account the applicant’s submissions that the same metal construction had been used by journalists in the same manner and for the same purpose before. In such circumstances, the Court considers that the Government have not shown convincingly that the recourse to physical force against the applicant had been made strictly necessary by his own conduct. Therefore, it cannot but conclude that the use of force was excessive and unnecessary.\n\n51.  The Court considers that the relatively minor character of injuries sustained by the applicant that did not require any serious medical interventions suggests that he did not experience any serious or prolonged physical pain or suffering. Nevertheless, the ill-treatment complained of was such as to arouse in the applicant feelings of fear, anguish or inferiority and capable of humiliating and debasing him and, therefore, was sufficiently serious to attain a minimum level of severity to be considered as inhuman and degrading treatment under Article 3.\n\n52.  Accordingly, there has been a violation of Article 3 of the Convention under its substantive limb.\n\n2.  Alleged failure to carry out an effective investigation\n\n(a)  The parties’ submissions\n\n53.  The Government submitted that the domestic authorities conducted an effective investigation into the applicant’s allegations of ill-treatment. They noted that there was some delay in the criminal inquiry owing to the time necessary for the transfer of the applicant’s criminal complaint to the Yasamal District Prosecutor’s Office (see paragraph 13 above). Nevertheless, the forensic medical examination of the applicant was carried out within a “short term” (three days) after the receipt of the complaint by the Yasamal District Prosecutor’s Office and the investigation was effective. The Government further submitted that the domestic authorities had examined the relevant evidence, while some of the evidence (photos, tape recordings, and so on) presented by the applicant had been obtained in a “doubtful manner” not stipulated by law.\n\n54.  The applicant submitted that the domestic authorities failed to carry out an effective investigation into his allegations of ill-treatment. He noted that the domestic courts had ignored all the evidence proving the police brutality against him. He also submitted that the forensic report of 1 December 2005 had been drawn up nineteen days after his complaint to the prosecution authorities and, therefore, it could not be considered reliable.\n\n(b)  The Court’s assessment\n\n55.  Where an individual raises an arguable claim that he or she has been ill-treated by the police in breach of Article 3, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. This investigation should be capable of leading to the identification and punishment of those responsible. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see Assenov and Others, cited above, § 102, and Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000IV).\n\n56.  An investigation into allegations of ill-treatment must be thorough. That means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or illfounded conclusions to close their investigation or as the basis of their decisions (see Assenov and Others, cited above, § 103 et seq.). They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence (see, Tanrıkulu v. Turkey [GC], no. 23763/94, ECHR 1999-IV, § 104 et seq., and Gül v. , no. 22676/93, § 89, 14 December 2000). Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard (see Batı and Others v. Turkey, nos. 33097/96 and 57834/00, § 134, ECHR 2004IV (extracts)).\n\n57.  The Court observes that a criminal inquiry was carried out in the present case. It remains to be assessed whether it was effective, as required by Article 3.\n\n58.  The Court notes that the investigation authorities refused to give any importance to the medical certificate of 10 November 2005. On the other hand, even though the applicant brought his claim of ill-treatment to the Prosecutor General’s Office in a prompt manner, only two days after the incident, the authorities failed to order a forensic examination until twentyone days after the incident. The Court cannot accept the Government’s explanation of the delay by the fact that the applicant’s complaint had to be transferred to the Yasamal District Prosecutor’s Office, which had taken some time. The Court notes that this delay by the prosecution authorities cannot in any event be attributable to the applicant, but to the domestic authorities. The applicant’s complaint was not handled with sufficient diligence, as no relevant procedural steps were taken in this regard until 1 December 2005.\n\n59.  In this connection, the Court reiterates that a failure to secure the forensic evidence in a timely manner is one of the most important factors in assessing the overall effectiveness of an investigation into allegations of illtreatment (see Mammadov v. , no. 34445/04, § 74, 11 January 2007). As stated above, in the present case, prompt forensic examination was crucial as signs of injury might have disappeared rather quickly, resulting in the complete or partial loss of evidence before the forensic examination was carried out. A timely medical examination could have enabled the medical expert to reach a definitive conclusion as to the existence and time of infliction of the injuries. However, in the present case, on the one hand the investigation authorities refused to attach any importance to the medical certificate of 10 November 2005 owing to its “incomplete” nature, while on the other hand they failed to procure a “proper” forensic report in a timely manner. In the Court’s opinion, this deficiency alone undermined the overall effectiveness of the investigation.\n\n60.  There were also other deficiencies. In particular, the prosecutor heard two witnesses who testified in support of the applicant’s claim and two police officers who testified against his claim. However, the reasoning provided for the decision to discontinue the investigation did not contain any assessment of the witness testimonies in favour of the applicant. The prosecutor did not provide any explanation as to why these testimonies were considered less credible than the police officers’ statements against him. Furthermore, the investigation authorities ignored other evidence presented by the applicant, such as the tape recording and the photos, which prima facie appeared to be relevant. No credible explanation was given either by the domestic authorities or the Government as to why these submissions were not admitted and assessed.\n\n61.  The foregoing considerations are sufficient to enable the Court to conclude that the investigation into the applicant’s claim of ill-treatment fell short of the requirements of Article 3 of the Convention. In these circumstances, the Court dismisses the Government’s objection as to the exhaustion of domestic remedies and finds that there has been a violation of Article 3 of the Convention under its procedural limb.\n\nII. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION\n\n62.  The applicant complained that the domestic criminal investigation had been ineffective.\n\n63.  Article 13 of the Convention provides:\n\n“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”\n\n64.  The parties’ submissions were either the same as, or substantively similar to, their submissions in respect of the procedural limb of Article 3 of the Convention.\n\n65.  The Court notes that this complaint is linked to the complaint examined above and must therefore likewise be declared admissible.\n\n66.  However, in the light of its finding of a violation of the procedural limb of Article 3, the Court considers that no separate issues arise under Article 13 of the Convention and finds that it is not necessary to examine this complaint separately.\n\nIII. ALLEGED VIOLATIONS OF ARTICLES 6 AND 10 OF THE CONVENTION\n\n67.  The applicant complained that the domestic civil proceedings had been unfair. He also complained that he had been ill-treated by the police with the aim of preventing him from carrying out his journalistic work.\n\n68.  The relevant part of Article 6 of the Convention reads as follows:\n\n“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”\n\n69.  Article 10 of the Convention provides:\n\n“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises.\n\n2.  The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”\n\n70.  The Government submitted that the applicant had failed to exhaust domestic remedies. In particular, his appeal on points of law against the Court of Appeal’s judgment of 3 October 2007 was rejected by the Supreme Court owing to non-compliance with the procedural requirements for lodging such an appeal. The Government also noted that the applicant has never raised a complaint alleging a violation of his freedom of expression before the domestic courts.\n\n71.  The applicant maintained his complaints.\n\n72.  In respect of the complaint under Article 6, the Court observes that the applicant failed to exhaust domestic remedies in respect of the civil proceedings, as he had failed to lodge a cassation appeal in compliance with the procedural requirements. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies\n\n73.  In respect of the complaint under Article 10, even assuming that the applicant has exhausted domestic remedies, the Court in any event considers, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, that this complaint does not disclose any appearance of a violation of this provision. It follows that it is inadmissible under Article 35 § 3 (a) as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.\n\nIV. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLES 3 AND 10\n\n74.  The applicant further complained that he had been discriminated against by the police based on his participation, as a journalist, in the opposition demonstration.\n\n75.  However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court considers that this part of the application does not disclose any appearance of discrimination as alleged by the applicant. It follows that it is inadmissible under Article 35 § 3 (a) as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.\n\nV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n76.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n1.  Pecuniary damage\n\n77.  The applicant claimed 2,000 euros (EUR) in respect of pecuniary damage for expenses for his medical treatment.\n\n78.  The Government contested the claim, noting that the applicant had failed to substantiate his allegation.\n\n79.  The Court points out that under Rule 60 of the Rules of Court, any claim for just satisfaction must be itemised and submitted in writing together with the relevant supporting documents or vouchers, failing which the Court may reject the claim in whole or in part.\n\n80.  In the present case, even assuming that there is a causal link between the damage claimed and the violations found, the Court observes that the applicant did not submit any documentary evidence supporting this claim. In particular, he has not submitted any receipts, prescriptions or any other documents certifying his expenses for medical treatment.\n\n81.  For the above reasons, the Court rejects the applicant’s claims in respect of pecuniary damage.\n\n2.  Non-pecuniary damage\n\n82.  The applicant claimed EUR 10,000 in respect of nonpecuniary damage.\n\n83.  The Government contested the amount claimed as unsubstantiated and excessive.\n\n84.  The Court considers that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the finding of violations and that compensation should thus be awarded. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant the sum of EUR 4,500 under this head, plus any tax that may be chargeable on this amount.\n\nB.  Costs and expenses\n\n85.  The applicant claimed EUR 750 for the costs and expenses incurred before the domestic courts in the criminal proceedings, EUR 2,000 in the civil proceedings and EUR 2,000 in the disciplinary proceedings that he instituted against a judge of the domestic court. He also claimed EUR 2,700 for the costs and expenses incurred before the Court. The applicant also claimed EUR 2,550 for translation expenses and EUR 500 for postal expenses. In support of his claims, he submitted several contracts for legal services rendered in the proceedings before the domestic courts and the Court. According to these contracts, the amounts due were to be paid in the event that the Court found a violation of the applicant’s rights.\n\n86.  The Government considered that the claim was unsubstantiated and excessive. In particular, the Government submitted that the applicant had failed to produce all the necessary documents in support of his claims and that the costs and expenses had not actually been incurred, because the amount claimed had not been paid by the applicant.\n\n87.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum.\n\n88.  The Court rejects the applicant’s claims in respect of the costs and expenses incurred in the domestic civil proceedings and the disciplinary proceedings against a judge, as those claims are not relevant to the complaints declared admissible in the present case.\n\n89.  As to the remainder of the claims, the Court notes at the outset that, although the applicant has not yet actually paid the legal fees, he is bound to pay them pursuant to a contractual obligation. Accordingly, in so far as the lawyer is entitled to seek payment of his fees under the contract, the applicant may claim reimbursement of those fees (see Namat Aliyev v. Azerbaijan, no. 18705/06, § 109, 8 April 2010). However, having regard to the legal services stipulated in the contracts for legal services submitted by the applicant and the amount of legal work necessary in the present case, the Court considers that the amounts claimed in respect of legal fees are excessive and should be satisfied only partially. Likewise, as to the claim relating to translation and postal expenses, the Court observes that not all the documents submitted by the applicant were relevant and clear in their substance and it was not shown that the entire amount claimed in respect of these expenses was reasonably and necessarily incurred. In these circumstances, having regard to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 3,000, covering costs under all heads.\n\nC.  Default interest\n\n90.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Joins to the merits the Government’s objection as to non-exhaustion of domestic criminal remedies and rejects it;\n\n2.  Declares the complaints under Articles 3 and 13 admissible and the remainder of the application inadmissible;\n\n3.  Holds that there has been a violation of Article 3 of the Convention as regards the ill-treatment by the police;\n\n4.  Holds that there has been a violation of Article 3 of the Convention as regards the lack of effective investigation into the applicant’s allegations of ill-treatment;\n\n5.  Holds that there is no need to examine the complaint under Article 13 of the Convention;\n\n6.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Azerbaijani manats at the rate applicable at the date of settlement:\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n7.  Dismisses the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 17 April 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_977","text":"PROCEDURE\n\n1.  The case originated in an application (no. 28730/03) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mrs Lyudmila Gennadyevna Lenskaya (“the applicant”), on 19 May 2003.\n\n2.  The applicant was represented by Mrs T. Vyalova, a lawyer practising in . The Russian Government (“the Government”) were represented by Mr P. Laptev and Ms V. Milinchuk, former Representatives of the  at the European Court of Human Rights.\n\n3.  The applicant alleged, in particular, a violation of her “right to a court” and her right to peaceful enjoyment of possessions as a result of the quashing, by way of a supervisory review, of a final judgment issued in her favour.\n\n4.  By a decision of 8 March 2007, the Court declared the application partly admissible.\n\n5.  The applicant and the Government each submitted observations on the merits (Rule 59 § 1). The Court decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine).\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n6.  The applicant was born in 1955 and lives in the town of . She works as a deputy head of the .\n\n7.  On 25 November 2000 the applicant asked the Kirovskiy District police department to institute criminal proceedings against her former husband, Mr Ch., complaining that he had assaulted her. She provided a police investigator with a certificate from the  no. 1. According to that certificate, on 25 November 2000 the applicant presented herself at the hospital, where she was examined and diagnosed with injuries to the soft tissues of the head. The certificate also stated that the applicant did not have concussion.\n\n8.  Two days later a forensic medical expert examined the applicant and issued a report which, in the relevant part, read as follows:\n\n“1. On the day of the examination, on 27 November 2000, [the applicant] has: two bruises on the face, [and] an injury to the soft tissues on the left side of the parietal tuber. As it follows from medical documents, from 29 November to 16 December 2000 [the applicant] underwent treatment in the neurological department of the ; following her dismissal from the hospital she underwent outpatient treatment, consulting a therapist until 23 December 2000 in respect of her diagnosis: “concussion”.\n\n2. The concussion, bruises on the face, the injury to the soft tissues of the head sustained by [the applicant] were caused by blunt firm objects and are considered to have caused “minor health damage” requiring treatment for no more than twenty-one days....\n\nIt cannot be excluded that those injuries could have been caused in the period indicated by [the applicant]”.\n\n9.  On 15 December 2000 the Kirovskiy District Prosecutor instituted criminal proceedings, finding as follows:\n\n“On 25 November 2000 [the applicant] applied to the Kirovskiy District police department seeking institution of criminal proceedings against her husband, Mr Ch., on the ground that he had injured her on 24 November 2000, at 8.30 p.m., in their place of residence...\n\nI see particular social importance in the fact that the injuries were caused by a man to a woman who cannot offer adequate resistance”.\n\n10.  On an unspecified date Mr Ch. was committed to stand trial before the Kirovskiy District Court of Tomsk.\n\n11.  The District Court held several hearings at which it heard the applicant, Mr Ch. and a number of witnesses and examined documentary evidence, including two reports by forensic medical experts. The applicant insisted on her description of events as given to the police and prosecution authorities. Mr Ch. disputed the accusations, denying that he had even visited the applicant on the day of the alleged assault. He claimed that he had visited his female friend, Ms P., on that day and spent the night at her house. Ms P. confirmed Mr Ch.’s statement in open court. The defendant’s alibi was also corroborated by his son, who claimed that he had spent the whole day with his father before the latter had gone to see Ms P. One witness testified to having heard the applicant and Mr Ch. arguing in the applicant’s flat on the day of the alleged assault. Two witnesses stated that they had seen the applicant in the evening of the day of the alleged assault or on the following day. The applicant had complained to them that Mr Ch. had beaten her up. One witness, the applicant’s neighbour, stated that the applicant had unsuccessfully asked two persons to lie in court about Mr Ch. assaulting her. The District Court also heard a doctor who had examined the applicant immediately after the alleged assault. The doctor insisted that the applicant had not had concussion.\n\n12.  On 15 July 2002 the Kirovskiy District Court found Mr Ch. guilty of assault and sentenced him to six months of correctional labour. The sentence was suspended on probation. The District Court also partly accepted the applicant’s tort action against Mr Ch. and awarded her 4,782.68 Russian roubles (RUB) in compensation for pecuniary damage and RUB 10,000 in compensation for non-pecuniary damage.\n\n13.  Mr  and his lawyer appealed, arguing that there was no evidence that the defendant had beaten the applicant. He had an alibi which had been confirmed by two witnesses. However, no witnesses testified to seeing the defendant hitting the applicant. The witnesses also did not state that they had seen the defendant in the vicinity of the applicant’s flat at the alleged time of the assault. Furthermore, the lawyer argued that the presiding judge had unlawfully dismissed his request to step down from the case as the applicant’s lawyer had supervised the presiding judge’s Ph.D. work.\n\n14.  On 12 September 2002 the  reduced the amount of compensation for non-pecuniary damage to RUB 3,000 and upheld the remainder of the judgment, endorsing reasons given by the District Court.\n\n15.  On 30 September 2002 Mr  and his lawyer applied to the President of the , seeking institution of supervisory review proceedings. They once again insisted on the partiality of the presiding judge and the unavailability of evidence proving Mr Ch.’s guilt.\n\n16.  In October 2002 the President of the  lodged an application for a supervisory review of the judgment of 15 July 2002, as amended on 12 September 2002.\n\n17.  On 1 November 2002 the Registry of the Presidium of the  notified the applicant by letter that a hearing was scheduled for 13 November 2002 at 10.00 a.m. The applicant was also invited to study the case file materials and to submit her observations in response to Mr Ch.’s and his lawyer’s applications for a supervisory review. On 10 November 2002 the applicant lodged her written arguments with the Presidium.\n\n18.  On 11 December 2002 the Presidium of the , relying on Article 378 of the RSFSR Code of Criminal Procedure (the CCP), quashed the judgments of 15 July and 12 September 2002 and acquitted Mr  The compensation claims were accordingly dismissed. The Presidium held, inter alia, that the district and regional courts had not established what constituted the criminal conduct under the particular head of the criminal charge, whether it had in fact taken place and whether it had been committed by the former husband. The District and Regional courts, without proper assessment of evidence, presumed that the applicant’s injuries had been caused by her former husband. Thus, Mr Ch.’s guilt was not proven and the principle of presumption of innocence was violated.\n\n19.  The applicant and her representative attended the supervisory review hearing and submitted their arguments. On 10 January 2003 the applicant was served with a copy of the judgment of 11 December 2002.\n\nII.  RELEVANT DOMESTIC LAW\n\n20.  Section VI, Chapter 30, of the RSFSR Code of Criminal Procedure (in force at the material time) allowed certain officials to challenge a judgment which had entered into force and have the case reviewed on points of law and procedure. The supervisory review procedure was to be distinguished from proceedings which review a case because of newly discovered facts.\n\n21.  Pursuant to Article 356 of the CCP, a judgment entered into force and was subject to execution as of the day when the appeal (cassation) instance pronounced its judgment.\n\n22.  Article 371 of the CCP provided that the power to lodge an application for supervisory review could be exercised by the Prosecutor General, the President and the Vice-President of the Supreme Court of the Russian Federation, in respect of any judgment other than those of the Presidium of the Supreme Court, and by the president of the regional courts in respect of any judgment of a regional or subordinate court. A party to criminal or civil proceedings could solicit the intervention of such officials for a review.\n\n23.  Article 373 of the CCP laid down a limitation period of one year during which an application for supervisory review of an acquittal judgment could be brought. This period also applied to an application for supervisory review of a conviction, if such application sought a harsher punishment to be imposed. The period ran from the date when the judgment entered into force. In all other cases, there was no time-limit prescribed for lodging such applications.\n\n24.  According to Articles 374, 378 and 380 of the CCP, the application for supervisory review was to be considered by the judicial board of the competent court which examined the case on the merits, not being bound by the scope and grounds of the application. The board could either dismiss the application and thus uphold the earlier judgment, or grant the application. In the latter case it had to decide whether to quash the judgment and terminate the criminal proceedings, to remit the case for a new investigation, or for a fresh court examination at any instance, to uphold a first-instance judgment reversed on appeal, or to modify and uphold any of the earlier judgments.\n\n25.  According to Article 377 of the CCP, the relevant prosecutor was to participate in the supervisory review hearing. If necessary, the convicted person and his counsel could be summoned to the hearing to make submissions. If summoned to the hearing, the convicted person, the victim and their counsel were to have the opportunity to familiarise themselves with the application for supervisory review and written submissions in reply. At the hearing, the case was to be presented by a judge rapporteur, following which the parties, if present, were to be entitled to make oral submissions.\n\n26.  Articles 342 and 379 of the CCP identify grounds for quashing or amending earlier judgments. In particular, such judgments were to be quashed or modified if a court performing the supervisory review had found that the judgments were unlawful or groundless; or if the pre-trial and judicial investigation had been one-sided and inadequate; or if the lower-instance courts had come to conclusions which did not correspond to the facts of the case; or if the courts had violated criminal procedural law or had incorrectly applied criminal law; or if the sentence did not correspond to the gravity of the crime and the character of the convicted person.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLES 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1\n\n27.  The applicant complained under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 that the act of quashing of the final judgment of 15 July 2002, as amended on 12 September 2002, had violated her “right to a court” and her right to peaceful enjoyment of possessions. The relevant parts of these provisions read as follows:\n\nArticle 6 § 1\n\n“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”\n\nArticle 1 of Protocol No. 1\n\n“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law...”\n\nA.  Submissions by the parties\n\n28.  The Government argued that the Presidium of the  had quashed the judgments of 15 July and 12 September 2002 in order to correct the judicial error committed by the District and Regional courts. The guilt of the applicant’s former husband in having assaulted the applicant had not been proven. The supervisory review proceedings had been instituted by the President of the Regional Court upon Mr Ch.’s and his counsel’s applications in compliance with the relevant provisions of the RSFSR Code of Criminal Procedure. The Government insisted that the quashing of the final judgments had pursued the legitimate aim of correcting the fundamental judicial defect.\n\n29.  The applicant averred that the quashing of the final judgment in her case had irremediably impaired the principle of legal certainty and had deprived her of the right to receive compensation for damage caused by her former husband.\n\nB.  The Court’s assessment\n\n1.  Article 6 § 1 of the Convention\n\n(a)  General principles\n\n31.  This principle insists that no party is entitled to seek reopening of proceedings merely for the purpose of a rehearing and a fresh decision on the case. The mere possibility of there being two views on the subject is not a ground for re-examination.\n\n32.  Departures from that principle are justified only when made necessary by circumstances of a substantial and compelling character (see, mutatis mutandis, Ryabykh v. Russia, no. 52854/99, § 52, ECHR 2003-X, and Pravednaya v. Russia, no. 69529/01, § 25, 18 November 2004). Higher courts’ powers to quash or alter binding and enforceable judicial decisions should be exercised for correction of fundamental defects. That power must be exercised so as to strike, to the maximum extent possible, a fair balance between the interests of an individual and the need to ensure the effectiveness of the system of justice (see, mutatis mutandis, Nikitin v. , no. 50178/99, §§ 54-61, ECHR 2004VIII).\n\n33.  The relevant considerations to be taken into account in this connection include, in particular, the effect of the reopening and any subsequent proceedings on the applicant’s individual situation and whether the reopening resulted from the applicant’s own request; the grounds on which the domestic authorities revoked the finality of the judgment in the applicant’s case; the compliance of the procedure at issue with the requirements of domestic law; the existence and operation of procedural safeguards in the domestic legal system capable of preventing abuses of this procedure by the domestic authorities; and other pertinent circumstances of the case (see Nikitin, cited above, § 60; Bratyakin v. Russia (dec.), no. 72776/01, 9 March 2006; Fadin v. Russia, no. 58079/00, § 34, 27 July 2006; and Savinskiy v. , no. 6965/02, §§ 24-26, 28 February 2006). In addition, the review must afford all the procedural safeguards of Article 6 § 1 and must ensure the overall fairness of the proceedings (see Vanyan v. , no. 53203/99, §§ 63-68, 15 December 2005).\n\n34.  In a number of cases the Court, while addressing the notion of “a fundamental defect”, stressed that the mere consideration that the investigation in the applicant’s case was “incomplete and one-sided” or led to an “erroneous” acquittal cannot in itself, in the absence of jurisdictional errors or serious breaches of court procedure, abuses of power, manifest errors in the application of substantive law or any other weighty reasons stemming from the interests of justice, indicate the presence of a fundamental defect in the previous proceedings (see Radchikov v. , no. 65582/01, § 48, 24 May 2007).\n\n35.  The Court further reiterates its findings in the case of Protsenko v. Russia (no. 13151/04, 31 July 2008). In that case the final judgment in the applicant’s favour was quashed by way of a supervisory review, on the ground that the first-instance court “had failed to establish all the circumstances of the case, to identify all the parties to the proceedings and to invite the owner of the land to participate in the proceedings, with the result that the rights of the latter [had been] adversely affected”. While concluding that there had been no breach of Article 6 § 1 of the Convention in that case, the Court held (§§ 31 et seq.) as follows:\n\n“The Court observes that the third person knew about the judgment of 7 April 2003 only after it had become final and that, in any event, being no party to the proceedings the owner of the land could not lodge an ordinary appeal against it. Therefore, through no fault of the third person who was not a party to the proceedings the domestic court rendered a judgment which directly affected his rights. The Court considers that the circumstances referred to were in their nature and significance such as to justify the quashing of the final judgment and that this was not inconsistent with the principle of legal certainty. The Court finds, therefore, that in the circumstances of this particular case the quashing of the final judgment of 7 April 2003 by the Presidium of the Rostov Regional Court by way of supervisory review did not deprive the applicant of the “right to a court” under Article 6 § 1 of the Convention.”\n\n(b)  Application to the present case\n\n36.  Having regard to the above-mentioned principles, the Court has to ascertain whether on 11 December 2002 the Presidium of the Tomsk Regional Court reopened the proceedings and quashed the enforceable judgment of 15 July 2002, as amended on 12 September 2002, with a view to correcting a fundamental judicial error, and, if so, whether the actual manner in which the Presidium exercised that power undermined the overall fairness of the proceedings at issue.\n\n37.  As regards the purpose of the quashing performed by the Presidium of the  on 11 December 2002, the Court observes that the Presidium found that the district and regional courts had failed to indicate the constituent element of a criminal offence, in that they had not established that the assault had in fact taken place. The courts had also violated the former husband’s right to be presumed innocent because in the absence of sufficient evidence they had concluded that he had assaulted the applicant. The Presidium considered that the former husband’s guilt had not been proven, and acquitted him. Having regard to that finding, the Presidium held that there was no ground for accepting the applicant’s tort action against her former husband and dismissed the compensation claims in full.\n\n38.  The Court considers that in such circumstances the Presidium’s decision to quash the judgments, flawed as they were with such defects, does not appear unreasonable or arbitrary (see Bratyakin v. Russia (dec.), no. 72776/01, 9 March 2006). After examination of the entire case, including the evidence, the Presidium declared that the lower courts had committed a miscarriage of justice by having subjected the applicant’s former husband to an unmerited conviction and by issuing decisions which were prejudicial to and inconsistent with the substantial rights of the convicted person. The Presidium concluded that the District and Regional courts had taken the mistaken judgments as to the existence and effect of matters of fact and the application of the law which had led to the conviction of an innocent person and the imposition on him of the obligation to pay compensation for damage, although it was not proven that he had caused that damage. The Presidium noted the lower courts’ ignorance of the important substantive evidence, such as witnesses’ statements corroborating the defendant’s alibi, their selective and grossly inconsistent approach to the assessment of the circumstantial evidence, the overestimation of the evidential value of the victim’s testimony and the defective understanding of the medical reports. The judicial errors committed by the district and regional courts went to the merits of the criminal case and the applicant’s cause of action. Those errors vitiated the proceedings and were so grave that, if not rectified, would have resulted in a denial of a fair trial to the applicant’s former husband.\n\n39.  In this connection, the Court once again reiterates that the Convention in principle permits the reopening of a final judgment to enable the State to correct miscarriages of criminal justice. A verdict ignoring key evidence may well constitute such a miscarriage (see Vedernikova v. , no. 25580/02, § 25, 12 July 2007).\n\n40.  The Court observes that the errors committed by the District and Regional courts were sufficient in nature and effect to warrant the reopening of the proceedings. Leaving such errors uncorrected would seriously affect the fairness, integrity and public reputation of the judicial proceedings. The Court also attributes particular weight to the fact that those judicial errors could not be neutralised or corrected by any other means, save by the quashing of the judgments of 15 July and 12 September 2002. In such circumstances, the Presidium could not utterly disregard the plight of the innocent victim of the unjust conviction. The quashing of the final judgment was a means of indemnifying the convicted person for mistakes in the administration of the criminal law.\n\n41.  The Court is satisfied that the Presidium reopened the proceedings for the purpose of correcting a fundamental judicial error. The considerations of “legal certainty” should not discourage the State from correcting particularly egregious errors committed in the administration of justice and thus, in the circumstances of the present case, should not prevent the Presidium of the  from reviewing the final judgment which was grossly prejudicial to the convicted person, that is the applicant’s former husband.\n\n42.  Having established that the interests of justice required the reopening of the proceedings and the quashing of the judgment of 15 July 2002, as amended on 12 September 2002, the Court has now to consider whether the procedural guarantees of Article 6 of the Convention were available in those supervisory review proceedings.\n\n43.  The Court finds that there is nothing to indicate that the Presidium’s evaluation of the facts and evidence presented in the case was contrary to Article 6 of the Convention. The Court observes that the applicant was provided with ample opportunities to present her arguments and to challenge the submissions of the adversary in the proceedings. She submitted detailed written arguments in reply to the supervisory review application. Furthermore, she and her representative attended the supervisory review hearing and made oral submissions. The Court considers that the Presidium gave the applicant’s arguments due consideration. In the light of the foregoing consideration, the Court finds that the reasons on which the Presidium based its conclusions are sufficient to exclude any doubt that the way in which it established and assessed the evidence in the applicant’s case was unfair or arbitrary. Therefore the Court considers that the proceedings before the Presidium of the  afforded the applicant all the procedural safeguards of Article 6 § 1 of the Convention.\n\n44.  Having regard to the foregoing, the Court is of the opinion that in the circumstances of this particular case the Presidium rightfully balanced the competing interests of finality and justice. The Court finds that the quashing of the judgment of 15 July 2002, as amended on 12 September 2002, by the Presidium of the Tomsk Regional Court did not deprive the applicant of the “right to a court” under Article 6 § 1 of the Convention. There has been accordingly no violation of that Article.\n\n2.  Article 1 of Protocol No. 1\n\n(a)  General principles\n\n45.  The Court reiterates that the existence of a debt confirmed by a binding and enforceable judgment furnishes the judgment beneficiary with a “legitimate expectation” that the debt would be paid, and constitutes the beneficiary’s “possessions” within the meaning of Article 1 of Protocol No. 1. Quashing such a judgment amounts to an interference with his or her right to peaceful enjoyment of possessions (see, among other authorities, Brumărescu v. Romania, cited above, § 74, ECHR, and Androsov v. Russia, no. 63973/00, § 69, 6 October 2005). An interference with the peaceful enjoyment of possessions must strike a fair balance between the demands of the general interests of the community and the requirements of the protection of the individual’s fundamental rights (see, among other authorities, Sporrong and Lönnroth v. Sweden, judgment of 23 September 1982, Series A no. 52, p. 26, § 69). In particular, there must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised by any measure depriving a person of his possessions (see Pressos Compania Naviera S.A. and Others, cited above, p. 23, § 38).\n\n(b)  Application to the present case\n\n46.  Turning to the facts of the present case, the Court observes that by virtue of the judgment of 15 July 2002, as amended on 12 September 2002, the applicant’s former husband was to pay her a certain sum of money in compensation for damage caused as the result of the assault. By operation of law and as pronounced by the judgments of 15 July and 12 September 2002 the payment of the compensation was conditional on the former husband’s conviction of the assault. Following the quashing of the judgments and the acquittal of the former husband, the applicant’s claim in respect of the money awarded under those judgments ceased to exist.\n\n47.  Having regard to the Court’s findings under Article 6 of the Convention, the Court concludes that the special circumstances of the present case can be regarded as exceptional grounds justifying the quashing of the judgments of 5 July and 12 September 2002 and the dismissal of the applicant’s claim for compensation.\n\n48.  The Court therefore considers that the quashing in the present case did not amount to an unjustified interference with her property rights as guaranteed by Article 1 of Protocol No. 1. There has, therefore, been no violation of that Convention provision.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Holds that there has been no violation of Article 6 § 1 of the Convention;\n\n2.  Holds that there has been no violation of Article 1 of Protocol No.1.\n\nDone in English, and notified in writing on 29 January 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_973","text":"PROCEDURE\n\n1.  The case originated in an application (no. 53080/13) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian national, Ms Béláné Nagy (“the applicant”), on 12 August 2013.\n\n2.  The applicant, who had been granted legal aid, was represented by Mr A. Cech, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr Z. Tallódi, Agent, Ministry of Justice.\n\n3.  The applicant alleged that she had lost her means of support, guaranteed only by a disability allowance, as a result of legislative changes applied by the authorities without equity, in spite of the fact that there had been no improvement in her health.\n\n4.  The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). The Government were given notice of the application on 21 January 2014. On 10 February 2015 a Chamber composed of Işıl Karakaş, President, András Sajó, Nebojša Vučinić, Helen Keller, Egidijus Kūris, Robert Spano, Jon Fridrik Kjølbro, judges, and also of Stanley Naismith, Section Registrar, delivered its judgment. It declared the application admissible and held, by four votes to three, that there had been a violation of Article 1 of Protocol No. 1 to the Convention. The joint dissenting opinion of Judges Keller, Spano and Kjølbro was annexed to the judgment.\n\n5.  On 24 April 2015 the Government requested that the case be referred to the Grand Chamber in accordance with Article 43 of the Convention. The panel of the Grand Chamber accepted the request on 1 June 2015.\n\n6.  The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24 of the Rules of Court.\n\n7.  The applicant and the Government each filed a memorial (Rule 59 § 1) on the merits. In addition, third-party comments were received from the European Trade Union Confederation, which had been granted leave by the President of the Grand Chamber to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3).\n\n8.  A hearing took place in public in the Human Rights Building, Strasbourg, on 16 December 2015 (Rule 59 § 3).\n\nThere appeared before the Court:\n\nThe Court heard addresses by Mr Cech and Mr Tallódi, and replies by them and by Ms Lévai to questions put by the judges.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n9.  The applicant was born in 1959 and lives in Baktalórántháza.\n\n10.  Between 1 May 1975 and 14 July 1997 the applicant was employed and made the statutory contributions to the social-security scheme. Subsequently, she was in receipt of unemployment benefit from 15 September 1997 until 9 September 1998.\n\n11.  In response to a request lodged on 16 October 2001, the applicant was granted a disability pension (rokkantsági nyugdíj) later that same year on the basis of a retrospective finding that she had lost, as of 1 April 2001, 67% of her capacity to work on account of various ailments. This assessment was maintained in 2003, 2006 and 2007.\n\n12.  As of 2008 the legislation on the methodology used to assess health impairment in occupational contexts changed. In application of the new methodology, the applicant’s disability was assessed by an expert at 40% on 1 December 2009. Without envisaging any procedure for rehabilitation, the assessment panel scheduled the next check-up of her medical status for 2012.\n\n13.  The Government submitted that, under the new methodology, the applicant’s previous condition of 67% loss of working capacity would have corresponded to 54% overall health impairment. Since, however, she was found to have only 40% health impairment, her condition had to be deemed to have improved in the intervening period.\n\nThe applicant submitted that the connection suggested by the Government between the scores of 67% in the old system and 54% in the new system was not based on any legal text. In her submission, her condition had not improved at all; the difference in scores was solely a consequence of changing the methodology used.\n\n14.  As a consequence of the applicant’s newly assessed 40% level of disability, on 1 February 2010 the relevant pension insurance directorate withdrew her entitlement to the disability pension. The applicant appealed against that decision. On an unspecified date, the decision was upheld by the second-instance pension insurance authority.\n\nAt the relevant time the monthly amount of the applicant’s disability pension was 60,975 Hungarian forints (HUF), approximately 200 euros (EUR).\n\nOn 25 March 2010 the applicant brought an action before the Nyíregyháza Labour Court, challenging the administrative decision.\n\n15.  The Nyíregyháza Labour Court heard the case, and appointed an expert with a view to obtaining an opinion as to the reasons for the difference in the scores. In an opinion of 16 February 2011, the expert submitted that the old score of 67%, as well as the new one of 40%, were correct under the respective methodologies; at any rate, the applicant’s condition had not significantly improved since 2007.\n\n16.  Observing that the applicant had accumulated 23 years and 71 days of service time, the court retained the disability score of 40% and dismissed her action on 1 April 2011. The applicant was ordered to reimburse the amounts received after 1 February 2010. The court noted that the applicant’s next medical assessment was due in 2012. It drew her attention to the possibility of making a renewed application for disability pension should her health deteriorate.\n\n17.  In 2011 the applicant requested another assessment of her disability. On 5 September 2011 the first-instance authority assessed it at 45%, scheduling the next assessment for September 2014. The second-instance authority changed this score to 50% on 13 December 2011, with a reassessment due in March 2015. Such a level would have entitled her to disability pension had rehabilitation not been possible. However, this time the assessment panel envisaged the applicant’s complex rehabilitation within a 36-month time-frame, and recommended that she be entitled to rehabilitation allowance (rehabilitációs járadék). Nevertheless, no such rehabilitation took place, and the applicant did not receive rehabilitation allowance.\n\n18.  As of 1 January 2012, a new law on disability and related benefits (Act no. CXCI of 2011) entered into force. It introduced additional eligibility criteria. In particular, instead of fulfilling a service period as required by the former legislation, the persons concerned had to have at least 1,095 days covered by social security in the five years preceding the submission of their requests. Individuals who did not meet this requirement could nevertheless qualify if they had no interruption of social cover exceeding 30 days throughout their careers, or if they were in receipt of a disability pension or rehabilitation allowance on 31 December 2011.\n\n19.  On 20 February 2012 the applicant submitted another request for disability allowance (rokkantsági ellátás). Her condition was assessed in April 2012, leading to the finding of 50% disability. On 5 June 2012 her request was dismissed because she did not have the requisite period of social cover. Rehabilitation was not envisaged. The next assessment was scheduled for April 2014.\n\n20.  Between 1 July and 7 August 2012 the applicant was employed by the Mayor’s Office in Baktalórántháza.\n\n21.  On 15 August 2012 the applicant submitted a fresh request for disability pension under the new law. She underwent another assessment, during which her degree of disability was again established at 50%. Rehabilitation was not envisaged.\n\n22.  In principle, such a level of disability would have entitled the applicant to a disability allowance under the new system. However, since her disability pension had been terminated in February 2010 (that is, she was not in receipt of a disability pension or a rehabilitation allowance on 31 December 2011) and, moreover, she had not accumulated the requisite number of days of social-security cover or demonstrated uninterrupted social cover, she was not eligible, under any title, for a disability allowance under the new system. Instead of the requisite 1,095 days covered by social security in the five preceding years, the applicant had been covered for 947 days. According to the Government, had the law not been so amended, the applicant would again have become eligible for a disability pension, since her health impairment was again assessed as exceeding the relevant threshold in 2012.\n\n23.  The applicant’s request was refused by the relevant authority of Szabolcs-Szatmár-Bereg County on 23 November 2012 and, on appeal, by the National Rehabilitation and Social Welfare Authority on 27 February 2013. On 27 March 2013 the applicant filed an action with the Nyíregyháza Administrative and Labour Court, challenging these administrative decisions. On 20 June 2013 the court dismissed her case. This judgment was not subject to appeal.\n\n24.  From 1 January 2014 the impugned legislative criteria were amended with a view to extending eligibility to those who have accumulated either 2,555 days of social-security cover over ten years or 3,650 days over fifteen years. However, the applicant does not meet these criteria either.\n\n25.  In 2011 and 2012 the applicant received a monthly housing allowance from the local municipality, in the amount of HUF 4,100 (EUR 14) in 2011 and HUF 5,400 (EUR 18) in 2012. The applicant also applied for the basic welfare allowance (rendszeres szociális segély), but her request was denied because she did not meet the statutory requirements.\n\nII.  RELEVANT DOMESTIC LAW AND PRACTICE\n\n26.  Act no. XX of 1949 on the Constitution, as in force at the relevant time and until 31 December 2011, contained the following provisions:\n\n“The Republic of Hungary shall provide support for those in need through a wide range of social measures.”\n\n“In the Republic of Hungary everyone has the inherent right to life and to human dignity. No one shall be arbitrarily stripped of these rights.”\n\n“(1)  Citizens of the Republic of Hungary have the right to social security; they are entitled to the support required to live in old age, and in cases of sickness, disability, or being widowed or orphaned, and in the case of unemployment through no fault of their own.\n\n(2)  The Republic of Hungary shall implement the right to social support through the social-security system and the system of social institutions.\n\n(3) The right to social support in respect of pension benefits applies to persons who have reached the statutory retirement age for old-age pension. Pension benefits may also be granted to persons below the aforementioned age by way of an act. Pension benefits provided before the statutory retirement age for an old-age pension may be reduced on the basis of statute, and may subsequently be provided in the form of social-welfare benefits, or may be terminated if the beneficiary is able to work.”\n\n27.  Article XIX of the Fundamental Law, as in force since 1 January 2012, provides:\n\n“(1)  Hungary shall strive to provide social security to all of its citizens. Every Hungarian citizen shall be entitled to assistance in case of maternity, illness, disability, handicap, widowhood, orphanage and unemployment for reasons outside of his or her control, as provided for by statute.\n\n(2)  Hungary shall implement social security for the persons referred to in paragraph (1) and for other persons in need through a system of social institutions and measures.\n\n(3)  The nature and extent of social measures may as well be determined, in statute, in accordance with the usefulness to the community of the beneficiary’s activity.\n\n(4)  Hungary shall facilitate the ensuring of the livelihood of the elderly by maintaining a general state pension system based on social solidarity and by allowing for the operation of voluntarily established social institutions. The conditions of entitlement to state pension may as well be laid down in statute with regard to the requirement of stronger protection for women.”\n\n28.  The relevant provisions of Act no. LXXXI of 1997 on Social-Security Pensions, as in force until 31 December 2011, stated:\n\n“[Under the terms of this law], disability pension [means]: pension to be disbursed in the event of disability, on condition that the requisite length of service has been accumulated.”\n\n“(1)  The pensions that may be granted within the framework of the social-security pension system to the insured person in his or her own right are as follows:\n\n“Disability pension shall be due to a person who:\n\n“The length of service necessary for the disability pension is as follows: ...\n\nat the age of 35 to 44 years: 10 years ...”\n\n“(1)  The right to disability pension shall be effective as of the date on which the disability was found to be present, based on the opinion of the medical commission. If the medical commission did not take a stance about the point at which the disability began, the date to be taken in account shall be the date on which the disability pension was requested.\n\n(2)  If the claimant had not accumulated the necessary service period by the time set out in paragraph (1) above, eligibility for a disability pension shall be effective as of the day following the accumulation of the necessary length of service.”\n\n“(1)  The amount of disability pension is dependent on the person’s age when he or she becomes disabled, the length of service accumulated prior to the granting of the disability pension and the degree of disability.”\n\n29.  Concerning disability pensions to be granted after 31 December 2007, the same Act, as in force between 12 March and 31 December 2011, provided as follows:\n\n“(1)  Disability pension shall be due to a person who:\n\n30.  Act no. LXXXIV of 2007 on the Rehabilitation Allowance, as in force until 31 December 2011, provided as follows:\n\n“(1)  The rehabilitation allowance shall be due to a ... person:\n\n31.  Act no. CXCI of 2011 on the Benefits Granted to Persons with Reduced Work Capacity, in so far as relevant and as in force between 26 July 2012 and 31 December 2013, provided as follows:\n\n“A person whose health status has been found to be 60% or less following a complex assessment by the rehabilitation authority (henceforth: persons with reduced work capacity) and who:\n\n(2)  By derogation from subsection (1) (a), persons\n\n...\n\n(3)  The 1,095-day insurance period shall include:\n\n...\n\n“(1)  Subject to any rehabilitation proposal made by the rehabilitation authority in the framework of the complex reassessment, the allowance to be granted for a person with reduced work capacity shall be either:\n\n“Persons with reduced work capacity who can be rehabilitated shall be entitled to rehabilitation benefit.”\n\n“(1) Persons with reduced work capacity shall be entitled to disability benefit if rehabilitation is not recommended.”\n\n32.  The Constitutional Court’s decision no. 1228/B/2010.AB of 7 June 2011 contains a sentence stating that “section 36/D (1) b) of the Social Security Pension Act had not created a [legitimate] expectation for those entitled to disability pension under the previous regulations” (compare and contrast with the wording of point 34 of the Constitutional Court decision quoted in the next paragraph).\n\n33.  The Constitutional Court examined Act no. CXCI of 2011 in decision no. 40/2012. (XII.6.) AB, of 4 December 2012. The decision contains, inter alia, the following passages:\n\n“27.   ... From Articles 54 § 1 and 70/E of the Constitution, the Constitutional Court deduced only one individual social entitlement, specifically the right to a benefit that would ensure subsistence, that is, the provision by the State of basic subsistence to the extent that it is indispensable to secure the right to human dignity... [A subsequent decision of the Constitutional Court] amended the above principle with the proviso that ‘specific constitutional rights, such as a right to a dwelling, cannot be inferred from the obligation to provide basic subsistence’]...\n\n30.  ...The Constitutional Court has already examined the amendments to the rules governing disability pension in several decisions. Decision no. 321/B/1996.AB characterised the disability pension partly as an allowance under protection of property and partly as a social service provision. As stated in the decision, the law ‘provides for a benefit under the constitutional principle of social security for individuals who, before reaching the old-age pension age, have lost their ability to work by reason of disability or as the result of an accident... Prior to the retirement age, the disability pension is an exceptional benefit granted to individuals on the ground of their disability. Upon reaching pensionable age, individuals who are ... incapable of work ... are no longer entitled to this exceptional benefit, because once their employment [period has] terminated they are eligible to receive old-age pension on the basis of their age.’...\n\n31.  Decision no. 1129/B/2008.AB states that disability pension is one type of personal retirement benefit; however its ‘purchased right’ element is only represented inasmuch as ‘its sum is greater after a longer length of service, or is equal or close to the old-age pension. Otherwise, the principle of solidarity is predominant, since the disabled individual, who would not be eligible for an old-age pension on the basis of either his age or the length of service, receives a pension once his disability is determined.’ ...\n\n32.  In the Constitutional Court’s interpretation, the entitlement to disability pension is not guaranteed constitutionally in an as-of-right manner; rather, it is a mixed social-security and social-service benefit, available under certain conditions to individuals below retirement age suffering from ill health, who, due to their disability, have a reduced capacity to work and are in need of financial assistance because of the loss of income.”\n\n...\n\n34.   ... [In decision no. 1228/B/2010.AB] ... the Constitutional Court held that the earlier rules on disability pension had not created a [legitimate] expectation, therefore the amendment to the conditions of entitlement had not violated any acquired right.\n\n35.  Subsequent to the adoption of the above-mentioned decisions of the Constitutional Court, the text of the Constitution changed significantly.\n\n...\n\n37.  ... The fact that Article XIX of the Fundamental Law on social security concerns essentially State obligations and State objectives, rather than conferring rights [on individuals], represents an important change...\n\n38.  The intention to change social policies became even more explicit by virtue of [an amendment to] Article 70/E ... of the Constitution, enacted on 6 June 2011, which expressly entitled the legislature to reduce, transform into a social allowance or terminate (where there is an ability to work) such pensions as disbursed [to persons in an age] under the age-limit for the old-age pension...\n\n40.   ... From 1 January 2012 onwards, [the law] provides those with altered working capacity with a health-insurance benefit, rather than with a pension...”\n\nIII.  RELEVANT INTERNATIONAL LAW AND OTHER MATERIAL\n\n34.  The European Social Charter provides, as relevant:\n\n“With a view to ensuring the effective exercise of the right to social security, the Contracting Parties undertake:\n\n“With a view to ensuring the effective exercise of the right of the physically or mentally disabled to vocational training, rehabilitation and resettlement, the Contracting Parties undertake:\n\n35.  The European Social Charter (revised) provides, as relevant:\n\n“With a view to ensuring the effective exercise of the right to social security, the Parties undertake:\n\n“With a view to ensuring to persons with disabilities, irrespective of age and the nature and origin of their disabilities, the effective exercise of the right to independence, social integration and participation in the life of the community, the Parties undertake, in particular:\n\n36.  Hungary has ratified both the European Social Charter and the Revised European Social Charter, on 7 August 1999 and 20 April 2009 respectively. At the time of depositing the instrument of ratification, Hungary made a declaration enumerating the provisions of the European Social Charter by which it considered itself bound. That list contained neither Article 12 nor Article 15. Subsequently, in 2004, Hungary declared itself bound by paragraph 1 of Article 12 and by Article 15. According to the declaration deposited with the instrument of ratification of the Revised European Social Charter, Hungary continues to consider itself bound, among other provisions, by paragraph 1 of Article 12 and by Article 15.\n\n37.  The European Committee of Social Rights has “explicitly accepted alterations to social security systems in as far as such changes are necessary in order to ensure the maintenance of the social security system ... and where any restrictions do not deprive individuals of effective protection against social and [economic] risks without a tendency to gradually reduce the social security system to one of minimum assistance” (see Conclusions XIV-1, concerning Finland and Article 12 § 3 of the European Social Charter, p. 232, 30 March 1998).\n\n38.  The European Code of Social Security, which entered into force on 17 March 1968 and is referred to in paragraph 2 of Article 12 of the Revised European Social Charter, has been ratified by 21 Member States of the Council of Europe, not including Hungary. Sixteen of them accepted the obligations contained in Part IX thereof, which provides as follows:\n\n“Each Contracting Party for which this part of the Code is in force shall secure to the persons protected the provision of invalidity benefit in accordance with the following articles of this part.”\n\n“The contingency covered shall include inability to engage in any gainful activity, to an extent prescribed, which inability is likely to be permanent or persists after the exhaustion of sickness benefit.”\n\n“The persons protected shall comprise:\n\n“The benefit shall be a periodical payment calculated as follows:\n\n“1.  The benefit specified in Article 56 shall, in a contingency covered, be secured at least:\n\n2.  Where the benefit referred to in paragraph 1 of this article is conditional upon a minimum period of contribution or employment, a reduced benefit shall be secured at least:\n\n3.  The requirements of paragraph 1 of this article shall be deemed to be satisfied where a benefit calculated in conformity with the requirements of Part XI but at a percentage of ten points lower than shown in the Schedule appended to that part for the standard beneficiary concerned is secured at least to a person protected who has completed, in accordance with prescribed rules, five years of contribution, employment or residence.\n\n4.  A proportional reduction of the percentage indicated in the Schedule appended to Part XI may be effected where the qualifying period for the pension corresponding to the reduced percentage exceeds five years of contribution or employment but is less than 15 years of contribution or employment; a reduced benefit shall be payable in conformity with paragraph 2 of this article.”\n\n“The benefit specified in Articles 56 and 57 shall be granted throughout the contingency or until an old-age benefit becomes payable.”\n\n39.  The United Nations Convention on the Rights of Persons with Disabilities (promulgated in Hungary by Act no. XCII of 2007) contains the following provisions:\n\n“1.  States Parties recognize the right of persons with disabilities to an adequate standard of living for themselves and their families, including adequate food, clothing and housing, and to the continuous improvement of living conditions, and shall take appropriate steps to safeguard and promote the realization of this right without discrimination on the basis of disability.\n\n2.  States Parties recognize the right of persons with disabilities to social protection and to the enjoyment of that right without discrimination on the basis of disability, and shall take appropriate steps to safeguard and promote the realization of this right, including measures:\n\n...\n\n40.  Convention no. 102 of the International Labour Organisation (ILO) on Social Security (Minimum Standards), referred to in paragraph 2 of Article 12 of the European Social Charter, entered into force on 27 April 1955 and has so far been ratified by fifty-four countries, not including Hungary. Fifteen member States of the Council of Europe have ratified Part IX of this instrument, which reads as follows:\n\n“Each Member for which this Part of this Convention is in force shall secure to the persons protected the provision of invalidity benefit in accordance with the following Articles of this Part.”\n\n“The contingency covered shall include inability to engage in any gainful activity, to an extent prescribed, which inability is likely to be permanent or persists after the exhaustion of sickness benefit.”\n\n“The persons protected shall comprise--\n\n“The benefit shall be a periodical payment calculated as follows:\n\n“1.  The benefit specified in Article 56 shall, in a contingency covered, be secured at least--\n\n2.  Where the benefit referred to in paragraph 1 is conditional upon a minimum period of contribution or employment, a reduced benefit shall be secured at least--\n\n3.  The requirements of paragraph 1 of this Article shall be deemed to be satisfied where a benefit calculated in conformity with the requirements of Part XI but at a percentage of ten points lower than shown in the Schedule appended to that Part for the standard beneficiary concerned is secured at least to a person protected who has completed, in accordance with prescribed rules, five years of contribution, employment or residence.\n\n4.  A proportional reduction of the percentage indicated in the Schedule appended to Part XI may be effected where the qualifying period for the pension corresponding to the reduced percentage exceeds five years of contribution or employment but is less than 15 years of contribution or employment; a reduced pension shall be payable in conformity with paragraph 2 of this Article.”\n\n“The benefit specified in Articles 56 and 57 shall be granted throughout the contingency or until an old-age benefit becomes payable.”\n\n41.  Convention no. 128 of the ILO on Invalidity, Old-Age and Survivors’ Benefits entered into force on 1 November 1969 and has so far been ratified by sixteen countries, not including Hungary, of which ten are member States of the Council of Europe. Of the latter, six have accepted the obligations contained in Part II of the Convention, which provides as follows:\n\n“Each Member for which this Part of this Convention is in force shall secure to the persons protected the provision of invalidity benefit in accordance with the following Articles of this Part.”\n\n“The contingency covered shall include incapacity to engage in any gainful activity, to an extent prescribed, which incapacity is likely to be permanent or persists after the termination of a prescribed period of temporary or initial incapacity.”\n\n“1.  The persons protected shall comprise--\n\n2.  Where a declaration made in virtue of Article 4 is in force, the persons protected shall comprise--\n\n“The invalidity benefit shall be a periodical payment calculated as follows:\n\n“1.  The benefit specified in Article 10 shall, in a contingency covered, be secured at least--\n\n2.  Where the invalidity benefit is conditional upon a minimum period of contribution, employment or residence, a reduced benefit shall be secured at least--\n\n3.  The requirements of paragraph 1 of this Article shall be deemed to be satisfied where a benefit calculated in conformity with the requirements of Part V but at a percentage of ten points lower than shown in the Schedule appended to that Part for the standard beneficiary concerned is secured at least to a person protected who has completed, in accordance with prescribed rules, five years of contribution, employment or residence.\n\n4.  A proportional reduction of the percentage indicated in the Schedule appended to Part V may be effected where the qualifying period for the benefit corresponding to the reduced percentage exceeds five years of contribution, employment or residence but is less than 15 years of contribution or employment or ten years of residence; a reduced benefit shall be payable in conformity with paragraph 2 of this Article.\n\n5.  The requirements of paragraphs 1 and 2 of this Article shall be deemed to be satisfied where a benefit calculated in conformity with the requirements of Part V is secured at least to a person protected who has completed, in accordance with prescribed rules, a qualifying period of contribution or employment which shall not be more than five years at a prescribed minimum age and may rise with advancing age to not more than a prescribed maximum number of years.”\n\n“The benefit specified in Articles 10 and 11 shall be granted throughout the contingency or until an old-age benefit becomes payable.”\n\n“1.  Each Member for which this Part of this Convention is in force shall, under prescribed conditions--\n\n2.  Where a declaration made in virtue of Article 4 is in force, the Member may derogate from the provisions of paragraph 1 of this Article.”\n\n42.  The European Code of Social Security, ILO Convention no. 102 and ILO Convention no. 128 contain virtually identical provisions whereby, in situations where eligibility for invalidity benefit is conditional upon a minimum period of contribution or employment, a reduced invalidity benefit should at least be secured to persons who have completed a period of five years of contributions prior to the contingency (see Article 57 § 2 (a) of the European Code of Social Security and ILO Convention no. 102, as well as Article 11 § 2 (a) of ILO Convention no. 128). Twenty member States of the Council of Europe have accepted that undertaking in one or more of these instruments, but Hungary has not.\n\n43.  The World Health Organization’s International classification of functioning, disability and health (ICF), Annex 6 - Ethical guidelines for the use of ICF, states:\n\n“Social use of ICF information\n\n(8) ICF information should be used, to the greatest extent feasible, with the collaboration of individuals to enhance their choices and their control over their lives.\n\n(9) ICF information should be used towards the development of social policy and political change that seeks to enhance and support the participation of individuals.\n\n(10) ICF, and all information derived from its use, should not be employed to deny established rights or otherwise restrict legitimate entitlements to benefits for individuals or groups.\n\n(11) Individuals classed together under ICF may still differ in many ways. Laws and regulations that refer to ICF classifications should not assume more homogeneity than intended and should ensure that those whose levels of functioning are being classified are considered as individuals.”\n\n44.  The European system of integrated social protection statistics (ESSPROS) classifies pensions, as a first-level breakdown, according to four different functions: disability, old age, survivors and unemployment. In 2012, of these, pensions relating to old age were the largest category, accounting for 77.3% of total expenditure and received by the same proportion of pension beneficiaries. Survivors’ pensions were the second largest category, accounting for just less than 11.3% of expenditure and received by 20.3% of beneficiaries, followed by disability pensions, accounting for 8.4% of expenditure and received by 12.3% of beneficiaries. Unemployment pensions were the smallest category (accounting for less than 0.3% of expenditure and of beneficiaries).\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1\n\n45.  The applicant complained that she had lost her source of income, previously secured by the disability pension, because under the new system, in place as of 2012, she was no longer entitled to that, or a similar, benefit, although her health had not improved; and she submitted that this was a consequence of the amended legislation, which contained conditions she could not possibly fulfil. She relied on Article 6 of the Convention.\n\n46.  The Chamber found it appropriate to examine the applicant’s complaint under Article 1 of Protocol No. 1, which reads as follows:\n\n“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.\n\nThe preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”\n\nThe Grand Chamber agrees with this approach. It will therefore proceed in the same manner.\n\n47.  The Government contested the applicant’s argument.\n\nA.  The Chamber judgment\n\n48.  Interpreting the Constitutional Court’s approach to the question, the Chamber was satisfied that the disability benefit, in the form of a pension or an allowance, flowed from an assertable right under the domestic law, in the sense that once the individual concerned had made the requisite contributions to the scheme, she would become entitled to it whenever her health situation so required. The Chamber observed that, during her employment, the applicant had contributed to the social-security system as required by the law. For the Chamber, those contributions resulted in a legitimate expectation that she would receive disability benefit, which expectation was formally recognised and honoured by the authorities when the applicant was granted a disability pension in 2001. The Chamber thus found Article 1 of Protocol No. 1 applicable to the case.\n\n49.  The Chamber further held that the recognised legitimate expectation, continuous in its legal nature, could not be considered extinguished by the fact that, under a new assessment methodology, the applicant’s disability was evaluated at a lower level in 2009. Her previously obtained possession of a disability pension had been replaced at that time with the recognised legitimate expectation of continued payment of a benefit, should the circumstances again so require.\n\n50.  In the Chamber’s view, the denial of the applicant’s eligibility for disability pension under the 2012 rules constituted an interference with her property rights as guaranteed by Article 1 of Protocol No. 1. As to the proportionality of that interference, the Chamber held that the applicant had sustained a drastic change, namely the total removal of her possibility to access disability benefits, which represented an excessive individual burden, with no possibility of remedying her situation once the new rules were enacted. For these reasons, the Chamber found that there had been a violation of Article 1 of Protocol No. 1.\n\nB.  The parties’ submissions to the Grand Chamber\n\n1.  The applicant\n\n51.  The applicant was of the opinion that Article 1 of Protocol No. 1 was applicable to her case. She contended that between 2001 and 1 February 2010 she had had a possession, in the form of an existing pecuniary asset, specifically the disability pension. She had subsequently retained an assertable right to disability benefit for as long as she satisfied the criteria that were applicable in 2001; in other words, she had a legitimate expectation stemming from various sources.\n\n52.  In her view, the former Constitution had conferred on disabled persons an entitlement to social-welfare benefits as of right. According to the Constitutional Court’s interpretation, she, as a disabled individual, had an assertable right to some form of welfare benefit. At the hearing, she referred to decisions no. 37/2011 of the Hungarian Constitutional Court and no. 1 BvL 1/09 of the German Federal Constitutional Court, both confirming, in her view, the existence of a right to a social allowance for those in need, to the extent that this is required for basic subsistence.\n\n53.  Moreover, she relied on Article 12 § 2 of the European Social Charter, which contains a reference to ILO Convention no. 102, setting forth minimum standards in the field of social security, as well as on the United Nations Convention on the Rights of Persons with Disabilities. In her view, these texts, forming part of Hungary’s obligations under international law, also provided for an assertable right to disability benefit.\n\n54.  The applicant further argued that her right to disability pension was likewise assertable under the domestic law, in particular Act no. LXXXI of 1997 on Social-Security Pensions. Under the terms of that statute, she had obtained an assertable right to a disability benefit on the strength of having become disabled; in subsequently granting her the disability pension, the authorities had merely endorsed that right, already existing.\n\n55.  At the hearing, the applicant noted that the Government had accepted, if only for the period until her actual pension entitlement was terminated, the existence of a legitimate expectation flowing from the domestic law as in force when her eligibility was first established in 2001.\n\n56.  The applicant stressed that her health condition had not improved, as was stated in the expert opinion of 16 February 2011. Accordingly, she had not ceased to satisfy the relevant conditions; instead, it was the legal conditions which had changed. She noted that the Government had not produced any medical report or expert opinion clearly pointing to any improvement in her health.\n\n57.  The interference with her rights under Article 1 of Protocol No. 1 consisted not only in the dismissal of her request in 2012 but in a “continuing situation” of interference since the withdrawal of her disability pension in 2010, enshrined in the persistent denial of disability benefits, notwithstanding the periodic reviews undergone by her. As this rendered the six-month rule inapplicable, the applicant invited the Grand Chamber to examine the lawfulness of the termination of her disability pension in 2010.\n\n58.  Furthermore, the applicant argued that the disability pension had been withdrawn by way of quasi-retroactive legislation, without regard to acquired rights and on the ground of an assessment methodology of dubious legal value. The Government had failed to provide any truly legitimate aim pursued by the interference. Nor was it proportionate. Despite her continuous illness, her disability benefit had been unduly withdrawn and her subsequent requests had also been unduly denied. Rather than having to endure a reasonable and commensurate reduction in the level of benefits, she had been totally divested of her means of subsistence and had thus to bear an excessive individual burden.\n\n59.  Lastly, the applicant insisted, for the first time in her memorial to the Grand Chamber, on the need for a separate scrutiny of the facts of the case under Article 8 of the Convention should the Court be unable to find Article 1 of Protocol No. 1 applicable to her claim.\n\n2.  The Government\n\n60.  The Government argued that the application was inadmissible as being incompatible ratione materiae with the provisions of the Convention or its Protocols. The legitimate expectation to receive a disability benefit  which admittedly had been generated by the domestic law in 2001 when the applicant’s eligibility had first been established – had been extinguished with the withdrawal of her entitlement in 2010. The Government added that, had the law not been amended, she would once again have become eligible when her health impairment was again assessed as exceeding the relevant threshold in 2012. The Constitution could not serve as a basis in national law for the legitimate expectation as argued by the applicant, since it merely laid down principles, whereas the actual eligibility rules for disability benefits were outlined in other legal provisions.\n\n61.  In the Government’s opinion, the broadening of the notion of legitimate expectation – as suggested by the Chamber judgment – would be wholly inconsistent with the Court’s case-law, place an excessive financial burden on the Contracting States and exert a “chilling effect” on national legislatures intent on reforming their social-security systems. The Convention did not guarantee any property rights independently from the domestic law of sovereign States. At the hearing, they cautioned against the stealthy creation of an independent European social law on an undefined basis, without the checks and balances that only a State legislature could guarantee.\n\n62.  According to the Government, some improvement in the applicant’s health had been substantiated by the expert opinion and the national court’s judgment (see paragraphs 15 and 16 above). This was also indicated by the fact that her 67% loss of working capacity under the pre-2008 system would have been equivalent to 54% health impairment under the new methodology; however, it had been assessed at 40% in 2009, which thus indicated a certain improvement in her health. The regular statutory reviews foreseen by the expert opinions prior to the withdrawal of the disability pension suggested only that the applicant’s ailments were susceptible to evolution, whereas the periodic reviews subsequent to that withdrawal had been requested by the applicant, rather than ordered by the authorities, and could therefore not be interpreted as proof of any subsisting legitimate expectation.\n\n63.  The Government further asserted that ex post facto legislation was typical of any social-security system, because of the lengthy and continuing nature of the social-security relationship between an insured person and the State. Applications for such benefits were normally not adjudicated on the basis of the law as in force at the beginning of the insurance relationship but rather under the law as it stood when the request was decided upon. Amendments enacted in the meanwhile to social-security laws might thus inevitably impose an individual burden on the insured. Any ex post facto legislation could only be validly disputed if the new law concerned those already in receipt of a benefit at the time of the entry into force of the retroactive law; however, this was not the case here.\n\n64.  The Government also argued that the State could not be held liable for the applicant’s failure to acquire the requisite insurance cover. Had she contributed to the scheme without interruption through social-security contributions while she was capable of doing so, she could most probably have attained the requisite number of days. To dispense the applicant from making the necessary contributions would be unfair and discriminatory towards those in a comparable situation who had diligently contributed to the social-security scheme. With regard to the actual aggregate of contributions made by the applicant, the Government submitted that this was a necessary but not a sufficient precondition, which was not capable of substituting for a valid national legal basis.\n\n65.  Given that social-welfare cover was continuously secured for those who were entitled to it on the date that the social-security scheme in question was amended, the Government submitted that the cover did not cease to exist, nor was it reduced as a result of that change. It would be unreasonable to expect the scheme to cover everyone who had once been granted such an allowance, irrespective of the loss of such status. This would place a heavy and excessive burden on the social-security schemes of the member States, and was not required by the principle of proportionality.\n\n66.  The Government lastly challenged the relevance of ILO Convention no. 102 on Social Security (Minimum Standards) and the International Classification of Functioning, Disability and Health (ICF) endorsed by the Member States of the World Health Organisation. With respect to the ILO Convention, the Government referred to the lack of a minimum level of adherence by European States; with regard to the ICF, they pointed to the absence of an “international-law” character.\n\nC.  The third-party intervener’s arguments\n\n67.  The European Trade Union Confederation (ETUC) set out the international standards and case-law, as well as the practice in European States, pertaining to the right to social security in general and the right to invalidity benefits in particular.\n\n68.  It provided the Court with an analysis of Articles 22 and 25 (1) of the Universal Declaration of Human Rights; Article 9 of the International Covenant on Economic, Social and Cultural Rights together with the relevant general comments adopted by the Committee of Economic, Social and Cultural Rights; Article 28 of the UN Convention on the Rights of Persons with Disabilities; Conventions nos. 102 and 128 of the International Labour Organization; Article 12 of the European Social Charter; the European Code of Social Security; and Article 34 of the Charter of Fundamental Rights of the European Union. It also described the relevant practice of the European Union and Council of Europe Member States, based on the comparison of data available from the MISSOC and MISSCEO databases.\n\n69.  Against that background, it argued that it was demonstrated that the overwhelming majority, if not the totality, of Council of Europe Member States had agreed to provide protection against the risk of invalidity, by means either of international ratifications and/or national legislation within their social-security system; and that thus a European consensus had emerged in that field. This fact should warrant, as a consequence, an interpretation of Article 1 of Protocol No. 1 to the effect that its material scope should include the right to social security in general and the right to invalidity benefits in particular.\n\nD.  The Grand Chamber’s assessment\n\n1.  The Government’s plea of inadmissibility\n\n70.  The Court observes that the Government’s plea of inadmissibility, arguing the complaint’s incompatibility ratione materiae with the Convention and the Protocols thereto, was raised for the first time before the Grand Chamber.\n\n71.  The Court sees no need to examine whether the Government are estopped under Rule 55 of the Rules of Court from making the said objection, since it finds in any event that it concerns a matter which goes to the Court’s jurisdiction and which it is not prevented from examining of its own motion (see, for instance, R.P. and Others v. the United Kingdom, no. 38245/08, § 47, 9 October 2012). It considers that, in the particular circumstances of the present case, the objection is so closely linked to the substance of the applicant’s complaint that it should be joined to the merits.\n\n2.  Applicability of Article 1 of Protocol No. 1\n\n72.  The Court reiterates that Article 1 of Protocol No. 1, which guarantees in substance the right of property, comprises three distinct rules. The first rule, which is set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of peaceful enjoyment of property. The second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions. The third rule, stated in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest, by enforcing such laws as they deem necessary for the purpose. However, the rules are not “distinct” in the sense of being unconnected. The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule (see, among many other authorities, James and Others v. the United Kingdom, 21 February 1986, § 37, Series A no. 98; and Sargsyan v. Azerbaijan [GC], no. 40167/06, § 217, ECHR 2015).\n\n73.  The concept of “possession” within the meaning of Article 1 of Protocol No. 1 has an autonomous meaning which is not limited to ownership of material goods and is independent from the formal classification in domestic law: certain other rights and interests constituting assets can also be regarded as “property rights”, and thus as “possessions” for the purposes of this provision (see Iatridis v. Greece [GC], no. 31107/96, § 54, ECHR 1999-II; Beyeler v. Italy [GC], no. 33202/96, § 100, ECHR 2000-I; and Parrillo v. Italy [GC], no. 46470/11, § 211, ECHR 2015).\n\n74.  Although Article 1 of Protocol No. 1 applies only to a person’s existing possessions and does not create a right to acquire property (see Stummer v. Austria [GC], no. 37452/02, § 82, ECHR 2011), in certain circumstances a “legitimate expectation” of obtaining an asset may also enjoy the protection of Article 1 of Protocol No. 1 (see, among many authorities, Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 65, ECHR 2007-I).\n\n75.  A legitimate expectation must be of a nature more concrete than a mere hope and be based on a legal provision or a legal act such as a judicial decision. The hope that a long-extinguished property right may be revived cannot be regarded as a “possession”; nor can a conditional claim which has lapsed as a result of a failure to fulfil the condition (see Gratzinger and Gratzingerova v. the Czech Republic (dec.) [GC], no. 39794/98, §§ 69 and 73, ECHR 2002-VII). Further, no “legitimate expectation” can be said to arise where there is a dispute as to the correct interpretation and application of domestic law and the applicant’s submissions are subsequently rejected by the national courts (see Kopecký v. Slovakia [GC], no. 44912/98, § 50, ECHR 2004-IX). At the same time, a proprietary interest recognised under domestic law – even if revocable in certain circumstances – may constitute a “possession” for the purposes of Article 1 of Protocol No. 1 (see Beyeler, cited above, § 105).\n\n76.  In cases concerning Article 1 of Protocol No. 1, the issue that needs to be examined is normally whether the circumstances of the case, considered as a whole, conferred on the applicant title to a substantive interest protected by that provision (see Iatridis, cited above, § 54; Beyeler, cited above, § 100; and Parrillo, cited above, § 211). In applications concerning claims other than those relating to existing possessions, the idea behind this requirement has also been formulated in various other ways throughout the Court’s case-law. By way of example, in a number of cases the Court examined, respectively, whether the applicants had “a claim which was sufficiently established to be enforceable” (see Gratzinger and Gratzingerova, cited above, § 74); whether they demonstrated the existence of “an assertable right under domestic law to a welfare benefit” (see Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 51, ECHR 2005-X); or whether the persons concerned satisfied the “legal conditions laid down in domestic law for the grant of any particular form of benefits” (see Richardson v. the United Kingdom (dec.), no. 26252/08, § 17, 10 April 2012).\n\n77.  In Kopecký, the Grand Chamber recapitulated the Court’s case-law on the notion of “legitimate expectation”. Following an analysis of different lines of cases concerning legitimate expectations, the Court concluded that its case-law did not contemplate the existence of a “genuine dispute” or an “arguable claim” as a criterion for determining whether there was a “legitimate expectation” protected by Article 1 of Protocol No. 1. It took the view that “where the proprietary interest is in the nature of a claim it may be regarded as an “asset” only where it has a sufficient basis in national law, for example where there is settled case-law of the domestic courts confirming it” (see Kopecký, cited above, § 52).\n\n78.  One of the lines of case-law on “legitimate expectation” referred to above involved situations where the persons concerned were entitled to rely on the fact that a legal act, on the basis of which they had incurred financial obligations, would not be retrospectively invalidated to their detriment (see Pine Valley Developments Ltd and Others v. Ireland, 29 November 1991, § 51, Series A no. 222; and Stretch v. the United Kingdom, no. 44277/98, § 35, 24 June 2003). In this line of cases, the “legitimate expectation” was thus based on a reasonably justified reliance on a legal act which had a sound legal basis and which bore on property rights (see Kopecký, cited above, § 47). Respect for such reliance follows from one aspect of the rule of law, which is inherent in all the Articles of the Convention and which implies, inter alia, that there must be a measure of legal protection in domestic law against arbitrary interferences by public authorities with the rights safeguarded by the Convention (see, as a recent authority, Karácsony and Others v. Hungary [GC], no. 42461/13, § 156, 17 May 2016, with further references).\n\n79.  Notwithstanding the diversity of the expressions in the case-law referring to the requirement of a domestic legal basis generating a proprietary interest, their general tenor can be summarised as follows: for the recognition of a possession consisting in a legitimate expectation, the applicant must have an assertable right which, applying the principle enounced in paragraph 52 of Kopecký (rendered in paragraph 77 above) may not fall short of a sufficiently established, substantive proprietary interest under the national law.\n\n80.  In the modern, democratic State, many individuals are, for all or part of their lives, completely dependent for survival on social-security and welfare benefits. Many national legal systems recognise that such individuals require a degree of certainty and security, and provide for benefits to be paid – subject to the fulfilment of the conditions of eligibility – as of right (see Stec and Others (dec.), cited above, § 51). The principles which apply generally in cases under Article 1 of Protocol No. 1 are equally relevant when it comes to social and welfare benefits (see Stec and Others (dec.), cited above, § 54). The Court has previously addressed the issue of legitimate expectation in the context of social benefits on a number of occasions (see, for example, Kjartan Ásmundsson v. Iceland, no. 60669/00, § 44, ECHR 2004IX, and Klein v. Austria, no. 57028/00, § 45, 3 March 2011.\n\n81.  In those legal systems where the national legislation requires mandatory contributions of employees to the social-security system, the legislation normally provides that those who have made adequate contributions and satisfied the statutory requirements of disability will receive some form of long-term disability benefit, on grounds of the principles of social solidarity and equivalency, for the period of the disability persisting or until the age of retirement. Such insurance schemes, which are typically mandatory, provide such protection, that is, the availability of benefits, for the entire period of insurance and on every occasion when the conditions of the insurance are satisfied. The relevant legal conditions are however subject to evolution. In this connection, it may be reiterated that in Gaygusuz v. Austria (16 September 1996, § 41, Reports of Judgments and Decisions 1996IV) the Court found that the right to emergency assistance – a social benefit linked to the payment of contributions to the unemployment insurance fund – was, in so far as provided for in the applicable legislation, a pecuniary right for the purposes of Article 1 of Protocol No. 1. In Klein (cited above, § 43) it was noted that entitlement to a social benefit – in that instance, a pension payable from a lawyers’ pension scheme – was linked to the payment of contributions, and, when such contributions had been made, an award could not be denied to the person concerned. Contributions to a pension fund may thus, in certain circumstances and according to the domestic law, create a property right (see Kjartan Ásmundsson, cited above, § 39; Apostolakis v. Greece, no. 39574/07, §§ 28 and 35, 22 October 2009; Bellet, Huertas and Vialatte v. France (dec.), nos. 40832/98, 40833/98 and 40906/98, 27 April 1999; Skórkiewicz v. Poland (dec.), no. 39860/98, 1 June 1999; and Moskal v. Poland, no. 10373/05, § 41, 15 September 2009).\n\n82.  The Court has also held that Article 1 of Protocol No. 1 imposes no restriction on the Contracting States’ freedom to decide whether or not to have in place any form of social-security scheme, or to choose the type or amount of benefits to provide under any such scheme (see Sukhanov and Ilchenko v. Ukraine, nos. 68385/10 and 71378/10, §§ 35-39, 26 June 2014; Kolesnyk v. Ukraine (dec.), no. 57116/10, §§ 83, 89 and 91, 3 June 2014; and Fakas v. Ukraine (dec.), no. 4519/11, §§ 34, 37-43, 48, 3 June 2014). If, however, a Contracting State has in force legislation providing for the payment as of right of a welfare benefit – whether conditional or not on the prior payment of contributions – that legislation must be regarded as generating a proprietary interest falling within the ambit of Article 1 of Protocol No. 1 for persons satisfying its requirements (see Stec and Others (dec.), cited above, § 54).\n\n83.  In certain circumstances the making of compulsory contributions, for example to a pension fund or a social insurance scheme, may create a property right protected by Article 1 of Protocol No. 1 even before the contributor fulfils all the conditions to actually receive the pension or other benefit. This is the case when there is a direct link between the level of contributions and the benefits awarded (see Stec and Others (dec.), cited above, § 43). The payment of contributions to a pension fund may in certain circumstances create a property right in a portion of such a fund and a modification of the pension rights under such a system could therefore in principle raise an issue under Article 1 of Protocol No. 1; even if it is assumed that Article 1 of Protocol No. 1 guarantees to persons who have paid contributions to a special insurance system the right to derive benefit from the system, it cannot be interpreted as entitling that person to a pension of a particular amount (see Müller v. Austria, no. 5849/72, Commission’s report of 1 October 1975, DR 3, p. 25, § 30, quoted in T. v. Sweden, no. 10671/83, Commission decision of 4 March 1985, DR 42, p. 229, at p. 232).\n\n84.  In this connection, it ought to be reiterated that Article 1 of Protocol No. 1 to the Convention does not guarantee, as such, any right to a pension of a particular amount (see Kjartan Ásmundsson, cited above, § 39), although where the amount of a benefit is reduced or discontinued, this may constitute interference with possessions which requires to be justified (see Valkov and Others v. Bulgaria, nos. 2033/04, 19125/04, 19475/04, 19490/04, 19495/04, 19497/04, 24729/04, 171/05 and 2041/05, § 84, 25 October 2011; and Grudić v. Serbia, no. 31925/08, § 72, 17 April 2012).\n\n85.  In determining whether there has been an interference, the Court’s enquiry will focus on the domestic law in force at the time of the alleged interference (see, as an example from the law on compensation, Maurice v. France [GC], no. 11810/03, § 67, ECHR 2005IX).\n\n86.  Where the person concerned did not satisfy (see Bellet, Huertas and Vialatte, cited above), or ceases to satisfy, the legal conditions laid down in domestic law for the grant of any particular form of benefits or pension, there is no interference with the rights under Article 1 of Protocol No. 1 (see Rasmussen v. Poland, no. 38886/05, § 71, 28 April 2009) where the conditions had changed before the applicant became eligible for a specific benefit (see Richardson, cited above, § 17). Where the suspension or diminution of a pension was not due to any changes in the applicant’s own circumstances, but to changes in the law or its implementation, this may result in an interference with the rights under Article 1 of Protocol No. 1 (see Grudić, cited above, § 77).\n\n87.  In a number of cases the Court has been prepared to accept that the grant of a pension benefit, of which the applicant was subsequently divested on the grounds that the legal conditions for such a grant had not been fulfilled to begin with, could give rise to a possession for the purposes of the Protocol (see Moskal, cited above, § 45; and Antoni Lewandowski v. Poland, no. 38459/03, §§ 78 and 82, 2 October 2012). In another case it considered that the failure to fulfil a condition (namely the requirement of affiliation to a professional association), which under national law was a sufficient reason for forfeiture of a pension claim, did not lead to the conclusion that the applicant had no possession within the meaning of Article 1 of Protocol No. 1 (see Klein, cited above, § 46). Nor was the Court prevented from finding that an applicant, whose application for disabled adults allowance had been rejected on the grounds of his non-fulfilment of a statutory nationality condition, had a pecuniary right for the purposes of Article 1 of Protocol No. 1 (see Koua Poirrez v. France, no. 40892/98, §§ 37-42, ECHR 2003-X). By contrast, in yet a further case, the mere fact that the public authorities had tolerated the cumulating of two pensions and, where it was permitted, reimbursement of the contributions for one of them, did not give rise to a right protected by the Protocol (see Bellet, Huertas and Vialatte, cited above).\n\n87.  In a number of cases the Court has been prepared to accept that the grant of a pension benefit, of which the applicant was subsequently divested on the grounds that the legal conditions for such a grant had not been fulfilled to begin with, could give rise to a possession for the purposes of the Protocol (see Moskal, cited above, § 45; and Antoni Lewandowski v. Poland, no. 38459/03, §§ 78 and 82, 2 October 2012). In another case it considered that the failure to fulfil a condition (namely the requirement of affiliation to a professional association), which under national law was a sufficient reason for forfeiture of a pension claim, did not lead to the conclusion that the applicant had no possession within the meaning of Article 1 of Protocol No. 1 (see Klein, cited above, § 46). Nor was the Court prevented from finding that an applicant, whose application for disabled adults allowance had been rejected on the grounds of his non-fulfilment of a statutory nationality condition, had a pecuniary right for the purposes of Article 1 of Protocol No. 1 (see Koua Poirrez v. France, no. 40892/98, §§ 37-42, ECHR 2003-X). By contrast, in yet a further case, the mere fact that the public authorities had tolerated the cumulating of two pensions and, where it was permitted, reimbursement of the contributions for one of them, did not give rise to a right protected by the Protocol (see Bellet, Huertas and Vialatte, cited above).\n\n87.  In a number of cases the Court has been prepared to accept that the grant of a pension benefit, of which the applicant was subsequently divested on the grounds that the legal conditions for such a grant had not been fulfilled to begin with, could give rise to a possession for the purposes of the Protocol (see Moskal, cited above, § 45; and Antoni Lewandowski v. Poland, no. 38459/03, §§ 78 and 82, 2 October 2012). In another case it considered that the failure to fulfil a condition (namely the requirement of affiliation to a professional association), which under national law was a sufficient reason for forfeiture of a pension claim, did not lead to the conclusion that the applicant had no possession within the meaning of Article 1 of Protocol No. 1 (see Klein, cited above, § 46). Nor was the Court prevented from finding that an applicant, whose application for disabled adults allowance had been rejected on the grounds of his non-fulfilment of a statutory nationality condition, had a pecuniary right for the purposes of Article 1 of Protocol No. 1 (see Koua Poirrez v. France, no. 40892/98, §§ 37-42, ECHR 2003-X). By contrast, in yet a further case, the mere fact that the public authorities had tolerated the cumulating of two pensions and, where it was permitted, reimbursement of the contributions for one of them, did not give rise to a right protected by the Protocol (see Bellet, Huertas and Vialatte, cited above).\n\n88.  The fact that a person has entered into and forms part of a State social-security system (even if a compulsory one, as in the instant case) does not necessarily mean that that system cannot be changed, either as to the conditions of eligibility of payment or as to the quantum of the benefit or pension (see, mutatis mutandis, Carson and Others v. the United Kingdom [GC], no. 42184/05, §§ 85-89, ECHR 2010; and Richardson, cited above, § 17). Indeed, the Court has accepted the possibility of amendments to social-security legislation which may be adopted in response to societal changes and evolving views on the categories of persons who need social assistance, and also to the evolution of individual situations (see Wieczorek v. Poland, no. 18176/05, § 67, 8 December 2009).\n\n89.  Thus, as can be seen from the above case-law, where the domestic legal conditions for the grant of any particular form of benefits or pension have changed and where the person concerned no longer fully satisfies them due to the change in these conditions, a careful consideration of the individual circumstances of the case – in particular, the nature of the change in the requirement – may be warranted in order to verify the existence of a sufficiently established, substantive proprietary interest under the national law. Such are the demands of legal certainty and the rule of law, which belong to the core values imbuing the Convention.\n\n90.  At the outset, the Grand Chamber notes that in the proceedings before it the applicant reverted to her argument made before the Chamber concerning the allegedly “continuing situation” of the interference originating in the discontinuation of her disability pension in 2010 (see paragraph 57 above). However, the Grand Chamber also notes that the Chamber considered that the Nyíregyháza Labour Court’s judgment of 1 April 2011 dismissing the applicant’s appeal was final, and that the application to the Strasbourg Court had been filed more than six months later. For that reason, the Chamber considered that it was prevented, pursuant to Article 35 § 1 of the Convention, from examining the procedure having led to the judgment of 1 April 2011 (see § 31 of the Chamber judgment). The Grand Chamber therefore has no jurisdiction to examine the proceedings that ended with the judgment of 1 April 2011.\n\n91.  The Grand Chamber will accordingly limit its examination to the case as it was declared admissible by the Chamber (see K. and T. v. Finland [GC], no. 25702/94, § 141, ECHR 2001-VII), namely the applicant’s grievance resulting from the proceedings which began with the applicant’s request for a disability pension submitted on 20 February 2012 and which ended with the Nyíregyháza Administrative and Labour Court’s judgment of 20 June 2013, in which she was found ineligible for a disability pension under the 2012 rules on account of an insufficient period of social cover (see the description of the relevant proceedings in paragraphs 19 to 23 above).\n\n92.  However, in examining whether the outcome of the proceedings ending with the judgment of 20 June 2013 (see paragraph 23 above) was compatible with Article 1 of Protocol No. 1, the Court is not prevented from taking into account facts that occurred before and after the decision of 1 February 2010.\n\n93.  The Court notes that the system of disability allowances in question, both in its pre-2012 and its current form, essentially operated on the basis of two cumulative eligibility criteria: (i) a “health condition”, under which the benefit was due only to persons whose health and employment status so required, and (ii) a “contribution condition”, which required the fulfilment of a certain service period (as under the pre-2012 legislation) or, in essence, a period covered by social-security contributions (see paragraphs 28 and 29 above).\n\n94.  Thus, when the applicant completed the requisite service period (on a date not specified but by 2001 at the latest) she fulfilled the “contribution condition” as contained in the law in force at the time; and, when in 2001 her disability was established as exceeding the requisite level, the second criterion (the “health condition”) was also met. Accordingly, from 2001 until 2009/10, that is, for almost ten years, the applicant fulfilled all the conditions of eligibility for receiving a disability pension as of right (see Stec and Others (dec.), cited above, § 51, quoted in paragraph 80 above). The decision granting her a disability pension in accordance with the provisions of the 1997 Act and which formed the basis of her original entitlement could thus be regarded as representing an “existing possession” (see Kopecký, § 35(c)). Further, it seems undeniable that throughout the said period, she could, on the basis of the said “legal act”, entertain a “legitimate expectation” (ibid., § 47) of continuing to receive disability benefits should her disability persist to the requisite degree, there being no dispute as to the correct interpretation and application of domestic law (ibid., § 50).\n\n95.  However, the question arises whether the applicant’s legitimate expectation still existed on 1 January 2012, when the legislature changed the contribution criteria for the disability benefit, effectively invalidating the legal effect of the fact that she had already once fulfilled the “contribution condition”. Due to that legislative change, she was denied disability allowance on the ground that she was not eligible under the newly introduced contribution rules. This state of affairs was then reaffirmed in the applicant’s individual case, with authoritative force, by the final judgment of the Nyíregyháza Administrative and Labour Court, adopted on 20 June 2013 (see paragraph 23 above). It is only if her legitimate expectation continued to exist until 1 January 2012 that this legislative amendment could be considered to constitute an interference with the applicant’s possessions within the meaning of Article 1 of Protocol No. 1.\n\n96.  The parties’ positions diverged as to whether the applicant’s legitimate expectation to receive disability benefits whenever eligible (see paragraphs 51, 55 and 60 above) was extinguished after the discontinuation of her entitlement to the pension in 2010. Thus, the question to be determined by the Court is whether in 2012, when the applicant applied for disability allowance on the basis of the new finding that her health was sufficiently impaired, she still had a legitimate expectation, satisfying the criteria in its case-law, of receiving disability benefits.\n\n97.  In examining this question, the Court does not find it necessary to resolve the disagreement between the parties as to whether or not the applicant’s health had actually improved in the period at issue. It notes that, according to the expert opinion of 16 February 2011 submitted to the Labour Court (see paragraph 15 above), her condition had not significantly improved since 2007. Moreover, it was not in dispute between the parties that her medical situation would have made her eligible for the disability benefit in 2012 had the new law not entered into force earlier that year. Indeed the Government even confirmed that this would have been the case (see paragraphs 22 and 60 above).\n\n98.  The question whether the applicant still had a legitimate expectation, satisfying the criteria in the Court’s case-law, at the time of the entry into force of the new legislation in 2012 cannot be answered solely on the basis of that legislation. The underlying reason for such an assertion is that the principles which exclude the finding of an interference where the person concerned ceases to satisfy the legal conditions laid down in domestic law cannot be mechanically applied to situations where the complaint specifically concerns the very change in the legal conditions that is at issue.\n\n99.  Therefore, to limit the Court’s scrutiny to the question as to whether Article 1 of Protocol No. 1 is inapplicable on the sole ground of the absence of a domestic legal basis in 2012 would be tantamount to deliberately circumventing the crux of the applicant’s grievance, that crux being precisely the change in the law (see Lakićević and Others, cited above, § 70) annihilating the previously existing legal basis for her disability allowance. The change in the law effectively imposed on a certain category of insured persons, including the applicant, a condition whose advent had not been foreseeable during the relevant potential contributory period and which they could not possibly satisfy once the new legislation entered into force – a combination of elements which is ultimately difficult to reconcile with the rule of law. The Court points out at this juncture that the Convention is intended to guarantee rights that are “practical and effective” rather than theoretical and illusory (see Perdigão v. Portugal [GC], no. 24768/06, § 68, 16 November 2010). To hold that although a person has contributed to an insurance scheme and has satisfied its contributory requirement, he or she could be totally deprived of the legitimate expectation of eventual benefits would sit uncomfortably with this principle.\n\n100.  As mentioned above, a proprietary interest recognised under domestic law – even if revocable in certain circumstances – may constitute a “possession” for the purposes of Article 1 of Protocol No. 1 (see Beyeler, cited above, § 105). In following such an approach, the Court has declared Article 1 of Protocol No. 1 applicable in a number of cases where the applicants, by the time they lodged their application with the Court, no longer satisfied the conditions of entitlement laid down in national law for the benefit in question (see, for example, Kjartan Ásmundsson, cited above, § 40).\n\n101.  A closer examination is therefore warranted as to whether, at least until the alleged legislative interference in 2012, the applicant had a sufficiently established, substantive proprietary interest that qualified as a “possession” for the purposes of Article 1 of Protocol No. 1 (see paragraph 79 above).\n\n102.  In this connection, the Court observes in particular that during the intervening period between the discontinuation of the applicant’s disability pension in 2010 and the legislature’s introduction of the new contribution requirement in 2012, the applicant not only continued to be part of the social-security system but also continued to fulfil the relevant length-of-service requirement for disability benefits. Co-operating with the authorities at all times, and actively and continuously pursuing her disability claim, she underwent several periodic reassessments of her condition in the years 2011 and 2012; further such assessments were scheduled for November 2012, April and September 2014 and March 2015.\n\n103.  In its ruling of 1 April 2011, the Nyíregyháza Labour Court noted that the applicant had accrued 23 years and 71 days of service time (see paragraph 16 above), which, the Court observes, far exceeds the five-year minimum period (prior to contingency) warranting at least a reduced invalidity benefit under the European Code of Social Security and ILO Conventions nos. 102 and 128 (see paragraph 42 above). Furthermore, whilst approving the withdrawal of the applicant’s disability pension as of 1 February 2010, the Labour Court expressly confirmed that a new medical assessment could take place in 2012 and drew her attention to the possibility of making a renewed application should her health deteriorate (see paragraph 16 above).\n\n104.  Moreover, although for a while her degree of disability was considered somewhat below the minimum level required (40% in December 2009 and April 2011, then 45% in September 2011, see paragraphs 12 to 17 above), in December 2011, that is, before the end of the said period, it reached 50%, as it did again in February 2012. It was undisputed that this disability level would have qualified the applicant for a disability benefit in February 2012 had it not been for the new retroactive contribution requirement, which was not met by her. In the meantime, on 13 December 2011, she had been recommended for rehabilitation and for the accompanying allowance – a type of benefit closely related to disability pension (see paragraph 17 above) and introduced to take the place of the disability pension for individuals capable of being rehabilitated. However, the authorities did not implement this recommendation. Had they done so, the applicant might have been in receipt of a benefit on 31 December 2011, which would have altered her situation under the new law.\n\n105.  The Court reiterates that the applicant contributed to the insurance scheme on a mandatory basis and satisfied the statutory requirements of eligibility for disability benefits. The Court has already noted that contributions to a pension fund may, in certain circumstances and according to the domestic law, create a property right for the purposes of Article 1 of Protocol No. 1 (see paragraphs 81 and 83 above) and finds that such circumstances exist in the present case, in view of the fact that her contribution was recognised as sufficient at the latest on 1 April 2001 (see paragraph 11 above). She could therefore reasonably rely on the promise of the law that she would be entitled to disability benefits whenever she satisfied the applicable health-related conditions.\n\n106.  In these circumstances, the Court does not consider that the reduction in the applicant’s disability degree in 2009, the resultant discontinuation of her disability pension in 2010 or any other factors pertaining to her pension status during the intervening period until 31 December 2011 were sufficient to extinguish her legitimate expectation that she would receive disability benefits should her disability again attain the requisite degree. On the contrary, the measures taken by the authorities and the judgment of 1 April 2011 in particular indicate that the authorities acted in full recognition of the applicant’s insured status, and therefore the applicant could have relied in a reasonably justified manner on the applicable legislation and had a legitimate expectation of receiving a disability benefit should the statutory conditions be satisfied. As the Government admit, but for the new conditions of the 2012 Act she would have qualified for disability allowance in 2013.\n\n107.  In short, between 2010 and 31 December 2011 the applicant, while not in receipt of a pension, continued to entertain a “legitimate expectation”, covered by the notion of “possession” in Article 1 of Protocol No. 1.\n\n108.  When, following the entry into force of the new law and relying on her newly re-assessed and sufficiently impaired health, the applicant applied for disability allowance in 2012, she did no more, in the Court’s view, than seek to avail herself once again of an existing legitimate expectation to be provided with a social-security benefit, rather than pursuing the “acquisition” of a “possession”. It was not in dispute between the parties that the applicant would have been eligible for the disability allowance from the date on which her health impairment was found in 2012 to have exceeded the relevant threshold, had the new law not entered into force earlier that year (see paragraphs 22 and 60 above).\n\n109.  The interference in question, which resulted from the entry into force of the new law as from 2012, consisted in a complete refusal of the applicant’s request for the disability allowance; in other words, her right to derive benefits from the social-insurance scheme in question was infringed in a manner that resulted in the impairment of her pension rights.\n\n110.  These elements are sufficient for the Court to find that Article 1 of Protocol No. 1 is applicable in the present case. The Government’s preliminary objection concerning incompatibility ratione materiae with the provisions of the Convention must thus be dismissed.\n\n111.  In view of this conclusion, the Court finds that it is not warranted to address the parties’ further arguments intended to elucidate the nature of the disputed entitlement as it is described by various international texts.\n\n3.  Compliance with Article 1 of Protocol No. 1\n\n112.  An essential condition for an interference with a right protected by Article 1 of Protocol No. 1 to be deemed compatible with this provision is that it should be lawful. The rule of law, one of the fundamental principles of a democratic society, is inherent in all the Articles of the Convention (see Iatridis, cited above, § 58; Wieczorek, cited above, § 58; and Vistiņš and Perepjolkins v. Latvia [GC], no. 71243/01, § 96, 25 October 2012).\n\n113.  Moreover, any interference by a public authority with the peaceful enjoyment of possessions can only be justified if it serves a legitimate public (or general) interest. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to decide what is “in the public interest”. Under the system of protection established by the Convention, it is thus for the national authorities to make the initial assessment as to the existence of a problem of public concern warranting measures interfering with the peaceful enjoyment of possessions. The notion of “public interest” is necessarily extensive. In particular, the decision to enact laws concerning social-insurance benefits will commonly involve consideration of economic and social issues. The Court finds it natural that the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one and will respect the legislature’s judgment as to what is “in the public interest” unless that judgment is manifestly without reasonable foundation (see, mutatis mutandis, The former King of Greece and Others v. Greece [GC], no. 25701/94, § 87, ECHR 2000-XII; Wieczorek, cited above, § 59; Frimu and Others v. Romania (dec.), nos. 45312/11, 45581/11, 45583/11, 45587/1 and 45588/11, § 40, 7 February 2012; Panfile v. Roumania (dec.), no. 13902/11, 20 March 2012, and Gogitidze and Others v. Georgia, no. 36862/05, § 96, 12 May 2015).\n\n114.  This is particularly so, for instance, when passing laws in the context of a change of political and economic regime (see Valkov and Others, cited above, § 91; the adoption of policies to protect the public purse (see N.K.M. v. Hungary, no. 66529/11, §§ 49 and 61, 14 May 2013); or to reallocate funds (see Savickas v. Lithuania and Others (dec.), no. 66365/09, 15 October 2013); or of austerity measures prompted by a major economic crisis (see Koufaki and ADEDY v. Greece (dec.), nos. 57665/12 and 57657/12, §§ 37 and 39, 7 May 2013; see also da Conceição Mateus and Santos Januário v. Portugal (dec.) nos. 62235/12 and 57725/12, § 22, 8 October 2013; da Silva Carvalho Rico v. Portugal (dec.), § 37, no. 13341/14, 1 September 2015).\n\n115.  In addition, Article 1 of Protocol No. 1 requires that any interference be reasonably proportionate to the aim sought to be realised (see Jahn and Others v. Germany [GC], nos. 46720/99, 72203/01 and 72552/01, §§ 81‑94, ECHR 2005‑VI). The requisite fair balance will not be struck where the person concerned bears an individual and excessive burden (see Sporrong and Lönnroth v. Sweden, 23 September 1982, §§ 69-74, Series A no. 52; Kjartan Ásmundsson, cited above, § 45; Sargsyan, cited above, § 241; Maggio and Others, cited above, § 63; and Stefanetti and Others, cited above, § 66).\n\n116.  In considering whether the interference imposed an excessive individual burden the Court will have regard to the particular context in which the issue arises, namely that of a social-security scheme. Such schemes are an expression of a society’s solidarity with its vulnerable members (see Maggio and Others, § 61, and Stefanetti and Others, § 55, both cited above, and also, mutatis mutandis, Goudswaard-Van der Lans v. the Netherlands (dec.), no. 75255/01, ECHR 2005-XI).\n\n117.  The Court reiterates that the deprivation of the entirety of a pension is likely to breach the provisions of Article 1 of Protocol No. 1 and that, conversely, reasonable reductions to a pension or related benefits are likely not to do so. However, the fair balance test cannot be based solely on the amount or percentage of the reduction suffered, in the abstract. In a number of cases the Court has endeavoured to assess all the relevant elements against the specific background (see Stefanetti and Others, cited above, § 59, with examples and further references; see also Domalewski, v. Poland (dec.), no. 34610/97, ECHR 1999V). In so doing, the Court has attached importance to such factors as the discriminatory nature of the loss of entitlement (see Kjartan Ásmundsson, cited above, § 43); the absence of transitional measures (see Moskal, cited above, § 74, where the applicant was faced, practically from one day to the next, with the total loss of her early-retirement pension, which constituted her sole source of income, and with poor prospects of being able to adapt to the change); the arbitrariness of the condition (see Klein, cited above, § 46), as well as the applicant’s good faith (see Moskal, cited above, § 44).\n\n118.  An important consideration is whether the applicant’s right to derive benefits from the social-insurance scheme in question has been infringed in a manner resulting in the impairment of the essence of his or her pension rights (see Domalewski, cited above; Kjartan Ásmundsson, cited above, § 39; Wieczorek, cited above, § 57; Rasmussen, cited above, § 75; Valkov and Others, cited above, §§ 91 and 97; Maggio and Others, cited above, § 63; and Stefanetti and Others, cited above, § 55).\n\n119.  In the present case the parties differed as to whether the interference with the applicant’s property right was “subject to the conditions provided for by law” within the meaning of the second sentence of the first paragraph of Article 1 of Protocol No. 1 and whether it was possible to identify a legitimate aim pursued by it.\n\n120.  The Court notes that the interference consisted in the specific legislation introduced as of 2012 and in its application in the instant case. It is therefore satisfied that the interference complied with the requirement of lawfulness contained in the above provision.\n\n121.  The Court further considers that the interference complained of pursued the communal interest in protecting the public purse, by means of rationalising the system of disability-related social-security benefits.\n\n122.  As to the proportionality of the interference, the respondent Government offered little comment.\n\n123.  The Court notes that the applicant was subjected to a complete deprivation of any entitlements, rather than to a commensurate reduction in her benefits, such as by, for example, calculating an allowance pro rata on the basis of the existing and missing days of social cover (see Kjartan Ásmundsson, §§ 44-45; Lakićević, § 72; and, a contrario, Richardson, § 24; and Wieczorek, § 71, all cited above), in view of the fact that her social-security cover was only 148 days short of the required length. This element gains particular importance in view of the fact that the applicant did not have any other significant income on which to subsist (see paragraph 25 above; compare also Kjartan Ásmundsson, cited above, § 44) and that she evidently had difficulties in pursuing gainful employment and belonged to the vulnerable group of disabled persons (see Alajos Kiss v. Hungary, no. 38832/06, § 42, 20 May 2010). The Court is indeed mindful of the special characteristics of the type of pension at issue. Although, as mentioned above, the applicant was recommended for rehabilitation in December 2011, rehabilitation was not undertaken and she was not offered the related allowance (see paragraphs 17 and 104 above).\n\n124.  In the light of the above considerations, the Court is of the view that the disputed measure, albeit aimed at protecting the public purse by overhauling and rationalising the scheme of disability benefits, consisted in legislation which, in the circumstances, failed to strike a fair balance between the interests at stake. Such considerations cannot, in the Court’s view, justify legislating with retrospective effect and without transitional measures corresponding to the particular situation (see Moskal, cited above, §§ 74 and 76; see also the ruling of the Court of Justice of the European Union referred to in Baka v. Hungary [GC], no. 20261/12, § 69, 23 June 2016), entailing as it did the consequence of depriving the applicant of her legitimate expectation that she would receive disability benefits. Such a fundamental interference with the applicant’s rights is inconsistent with preserving a fair balance between the interests at stake (see, mutatis mutandis, Pressos Compania Naviera S.A. and Others, cited above, § 43).\n\n125.  It should also be noted that the applicant was deprived of entitlement to any allowance, despite the fact that there is no indication that she failed to act in good faith at all times, to co-operate with the authorities or to make any relevant claims or representations (compare Wieczorek, cited above, § 69 in fine).\n\n126.  The Court thus considers that there was no reasonable relation of proportionality between the aim pursued and the means applied. It therefore finds that, notwithstanding the State’s wide margin of appreciation in this field, the applicant had to bear an excessive individual burden (see Kjartan Ásmundsson, cited above, § 45), amounting to a violation of her rights under Article 1 of Protocol No. 1.\n\n127.  Having reached this conclusion, there is no cause for the Court to consider the applicant’s alternative argument based on Article 8 of the Convention (see paragraph 59 above).\n\nII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n128.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n129.  The applicant claimed 13,185 euros (EUR) in respect of pecuniary damage, which amount corresponds to 68 months’ outstanding disability benefit. Moreover, she claimed EUR 6,000 in non-pecuniary damage.\n\n130.  The Government contested these claims.\n\n131.  The Court cannot speculate on the amount of disability benefit which would have been disbursed to the applicant had the violation not occurred. It therefore awards her a lump sum of EUR 10,000 in respect of the pecuniary damage sustained. Moreover, it considers that she must have suffered some non-pecuniary damage on account of the distress suffered and awards her, on the basis of equity, EUR 5,000 under this head.\n\nB.  Costs and expenses\n\n132.  The applicant also claimed EUR 19,220, inclusive of value-added tax (VAT), for the costs and expenses incurred before the Court. This sum corresponds to 121.5 hours of legal work and 19.9 hours of paralegal work, billed by her lawyers and their staff at hourly fees of EUR 150 (inclusive of VAT) for lawyers’ fees and EUR 50 (inclusive of VAT) for the paralegals.\n\n133.  The Government contested this claim.\n\n134.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 15,000 covering costs under all heads, less EUR 2,204.95, corresponding to the total amounts paid to the applicant’s lawyers under the Council of Europe’s legal-aid scheme with regard to the procedures before the Chamber and the Grand Chamber; the sum to be awarded is thus EUR 12,795.05.\n\nC.  Default interest\n\n135.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT,\n\n1.  Joins to the merits, unanimously, the Government’s preliminary objection;\n\n2.  Holds, by nine votes to eight, that Article 1 of Protocol No. 1 to the Convention is applicable and therefore dismisses the Government’s preliminary objection;\n\n3.  Holds, by nine votes to eight, that there has been a violation of Article 1 of Protocol No. 1 to the Convention;\n\n4.  Holds, by nine votes to eight,\n\n(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n5.  Dismisses, unanimously, the remainder of the applicant’s claim for just satisfaction.\n\nDone in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 13 December 2016.\n\nIn accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:\n\n(a)  concurring opinion of Judge Wojtyczek;\n\n(b)  joint dissenting opinion of Judges Nußberger, Hirvelä, Bianku, Yudkivska, Møse, Lemmens and O’Leary.\n\n1.  I have voted for finding a violation of the Convention in the instant case; however, I respectfully disagree with the reasoning of the judgment. Equally, I subscribe to the way in which the minority opinion of eight judges has presented the existing case-law establishing the general principles pertaining to the protection of possessions under Article 1 of Protocol No. 1. Nonetheless, in the instant case I apply these general principles in a different manner to my colleagues in the minority. Moreover, the eight colleagues of the minority consider that those principles should be applied as they stand. In my view the established principles require certain additions and clarifications, which I shall attempt to expose below. In any event, the reasoning is founded upon principles firmly rejected by nine judges, which diminishes the authority of the judgment and its practical import.\n\n2.  The Court’s existing case-law on legitimate expectations is difficult to understand, due to lack of precision and inconsistencies (compare, for instance, the critical assessment made by M. Sigron, Legitimate Expectations under Article 1 of Protocol No. 1 to the European Convention on Human Rights, Cambridge-Antwerp-Portland: Intersentia 2014, pp. 9697). I regret to say that the general principles as developed in the present judgment’s reasoning serve only to petrify the current state of confusion. In particular, the notion of legitimate expectations on which the reasoning is based appears vague and obscure, and its relationship with the notions of right, claim and legally protected interest is not clear.\n\n3.  Without entering into details, I should like to outline very briefly how I perceive the relationship between two fundamental concepts: subjective rights and legitimate expectations.\n\nA subjective right, by definition, entitles the right-holder to certain behaviour on the part of the right-obligor in his favour. Generally speaking, subjective rights are enforceable claims. Not only can the right-holder expect certain (future) conduct from the right-obligor, but he can also demand it and, if necessary, resort to remedies triggering an enforcement procedure. It should be noted in this context that private-law claims stemming from contracts or torts are typically subjective rights, even if the date that they are due is still in the future.\n\nA legitimate expectation is a legal position of a legal subject who can expect, in the specific factual and legal circumstances, certain conduct on the part of a State organ or another legal subject. The notion of legitimate expectation is useful in describing legal positions which do not have the status of subjective rights in that they enjoy weaker protection. If one can claim something against a legal subject, there is no need to say that one can expect that thing from the given legal subject. Using the term “legitimate expectation” in respect of enforceable claims creates confusion.\n\nThe notion of legitimate expectations is particularly useful in social-security law. In this branch of law the acquisition of subjective rights is a long process, which begins with entry into the system in respect of certain benefits and ends with the fulfilment of all the criteria established by law. A person fulfilling only certain criteria may have an expectation of acquiring the subjective right as soon as all the criteria are fulfilled. The closer to the fulfilment of all the criteria, the stronger his expectation.\n\nA subjective right presupposes a precise definition of: (i) the right-holder; (ii) the right-obligor and (iii) his obligations, as well as (iv) the precise conditions in which those obligations must be fulfilled. A legitimate expectation corresponds to a situation in which the future obligations correlated with the expectation are defined with less precision or are subject to some uncertainties concerning their precise scope or nature. Drawing a clear demarcation line between subjective rights and legitimate expectations may be problematic in certain cases. In particular, deciding whether a legal obligation imposed on one legal subject in favour of another legal subject is precise enough to qualify as a subjective right of the latter, or whether it should be considered as not fulfilling this criterion and therefore justifying qualification as a legitimate expectation, may be open to dispute between reasonable lawyers. In any event, the protection of legitimate expectations extends the protection of the individual beyond the scope of the protection of his subjective rights.\n\nAt the same time, it is important to note that subjective rights may differ as to the strength of their protection. Similarly, the level of the right  holders’ subjective conviction – based on legislation and official declarations – that their rights should and will be upheld may vary. Both elements – subjective convictions and objective protection – interact. On the one hand, the strength of the assurances given to the right-holders should not be ignored when assessing the required level of protection of a right. On the other hand, the strength of the actual protection also determines the level of right-holders’ subjective convictions and expectations.\n\n4.  The judgment (in paragraph 79) explains the gist of the approach underlying its conclusions in the following way:\n\nIt is difficult to understand this statement. Firstly, it is not clear whether the expectation and the assertable right referred to protect against the same or different State organs (see § 6 below). Secondly, if a legal subject has an assertable right protecting him against a State organ, then what is the added value of qualifying his legal position as a legitimate expectation vis-à-vis this same organ? Thirdly, if a legal subject has an assertable right vis-à-vis a State organ, how could this legal position fall short of a sufficiently established, substantive proprietary interest under the national law? An assertable right exists only if there is a sufficiently established, substantive interest under the national law. On the other hand, not every legal interest is protected by a subjective right.\n\nMoreover, the subsequent reasoning pertaining to the specific legal position of the applicant in the instant case (see paragraphs 95 to 111) does not refer to the concepts set out in paragraph 79. It gives the impression that her position is considered not as an assertable right but as a legitimate expectation enjoying weaker protection than a subjective right.\n\nIn my view, the scope of the notion of possession in Article 1 of Protocol No. 1 is limited to subjective rights (with pecuniary value) and does not encompass legitimate expectations which are not based on subjective rights (see § 4 of the dissenting opinion by the eight minority judges).\n\n5.  The category of possession within the meaning of Article 1 of Protocol No. 1 is extremely diverse and encompasses subjective rights of very different natures. It includes, inter alia, ownership of movable and immovable goods, other real rights protected erga omnes, pecuniary intellectual property rights and other pecuniary rights in immaterial goods, private-law assets (créances) stemming from tort or contract with other persons as well as acquired rights to social-security benefits. Their strength and the degree of protection should necessarily vary, depending on their nature and the weight of the values on which they are founded.\n\n6.  One of the main difficulties in applying Article 1 of Protocol No. 1 is related to the articulation between domestic law and the Convention. In order to establish whether there is a possession one must analyse the domestic law (see paragraph 89 of the judgment, and § 10 of the dissenting opinion). A possession is a subjective right, defined by domestic law. It exists only if it exists in domestic law and it exists only to the extent that it is recognised in domestic law. The domestic law defines, in particular, the right-holder, the right-obligors, the content of the right and the scope of the obligors’ obligations correlated with this right, as well as the tools for and degree of the protection. The importance of this last element should not be underestimated, as it co-defines, together with other elements, the content of the right itself. A right exists as a right with a certain strength. Some rights are unconditional and enjoy strong protection, including protection vis-à-vis the legislator, whereas some rights are precarious and enjoy weak protection, especially vis-à-vis the legislator.\n\nIt is undisputed that, according to the Court’s established case-law, the Convention does not confer rights to specific social-security benefits (see paragraph 82 of the judgment and § 13 of the dissenting opinion). More generally, the Convention does not create specific possessions. In principle, the legislator is free to decide whether or not a specific interest will be protected by subjective rights (possessions in the meaning of Article 1 of Protocol No. 1). If the legislator is free to create possessions, then it is logical to recognise that it is also free to determine the strength of a right’s protection. If the legislator was free not to grant a specific right at all, then is there any reason that say that it could not grant a precarious and conditional right? If the Convention does not require that a specific right be granted, does it prohibit granting this right as a weak right? Moreover, there are often serious grounds in a State governed by the rule by law to grant only weak rights enjoying limited protection, for the sake of protecting other fundamental values.\n\nIn principle, the Convention protects possessions as defined in domestic law. A possession is protected if it exists and to the extent that it exists. In other words, the Convention does not convert no-rights into rights. Similarly, it would be logical to conclude that it should not convert week rights into strong rights, non-enforceable claims into enforceable claims and toxic assets into healthy ones.\n\nOn the other hand, if possessions are protected under the Convention only to extent to which they exist and enjoy protection under domestic law, then the practical effect of Article 1 of Protocol No. 1 would be extremely reduced. The role of the Court would be to check only whether the existing domestic law has been correctly applied. There may be special circumstances when a weak possession under domestic law may require stronger protection under the Convention. Such a transformation of a weak right into a stronger one by virtue of the Convention should always be explicitly addressed and justified by the Court.\n\nThe transformation of a weak right into a stronger one may be justified, in particular if the right recognised in domestic law can be limited or withdrawn, provided that the principle of proportionality is observed. The application of this principle requires a balancing of values. The weight of different values under the national Constitution and the Convention may differ, and therefore the result of the balancing act may be different. The role of the Court is to ensure that in balancing values the High Contracting Parties did not exceed their margin of appreciation, for instance by excessively diminishing the weight of the values protected by the Convention.\n\nThe matter is even more complicated in that domestic law has a hierarchical structure. One and the same right may enjoy strong protection against the administrative authorities and weak protection against the legislator. Moreover, the legal position of a legal subject may combine a subjective right vis-à-vis the administrative authorities with a legitimate expectation vis-à-vis the legislator. The most complicated legal problems stem from the disparity of protection vis-à-vis the administration and the legislator.\n\nIf the interference with a subjective right is of a legislative nature, then the question arises whether the right is protected against the legislator. If there is clearly no protection of a legal subject’s right vis-à-vis the legislator in the domestic legal system, then the Court should not convert such a right, protected only vis-à-vis the administrative authorities and the judicial power, into a right offering protection also vis-à-vis the legislative power, unless there are special reasons for doing so and especially if the weight of the conflicting values under the Convention differs from the weight of the values under the national Constitution.\n\n7.  Subjective rights to social-security benefits are possessions within the meaning of Article 1 of Protocol No. 1. A complete revocation or a limitation of such a subjective right amounts to interference with possessions, and must fulfil the criteria set forth in the Convention. Such an interference should have a legal basis in domestic law and observe the principle of proportionality.\n\nIt is important to stress that the point of departure for the identification of the possession and of the interference is the legislation in force prior to the interference. What matters is whether a legal subject had a subjective right (or an enforceable claim) before the date of the interference.\n\nThe degree of protection of social-security rights under Article 1 of Protocol No. 1 should depend on several factors. As rightly stated in the separate opinion by eight judges, benefits directly linked to the level of contributions require stronger protection than other rights. This, however, is not the only parameter to be taken into account.\n\nThe judgment’s reasoning attaches importance to the contributory nature of the benefit in question, implicitly conveying the idea that contributory benefits require stronger protection than non-contributory ones (see paragraphs 99 and 105). I subscribe to this approach, which clearly departs from the view expressed in Stec and Others v. the United Kingdom ([GC], nos. 65731/01 and 65900/01, ECHR 2006VI). Financial participation in the form of the contributions paid by insured persons for the purpose of financing social-security benefits is indeed an important argument pleading in favour of protection of the benefits financed from these contributions. It creates a strong moral basis for a reciprocal (but not necessarily strictly synallagmatic) obligation. However, the required level of protection of contributive rights that are not directly linked to the level of contributions will be lower than in the case of benefits directly linked to the level of contributions.\n\nIn my view, moreover, benefits which replace salaries, such as retirement pensions and invalidity pensions, require much stronger protection than benefits which complement other sources of revenue.\n\nIt is also important to take into account whether the benefits are granted for a specific period, for a period defined by the fulfilment of certain criteria or for an indefinite period. If legislation provides for a more precise time  frame for the payment of benefits, this factor is an argument in favour of stronger protection.\n\n8.  In the instant case, there is no need to resort to the concept of legitimate expectation in order to conceptualise the applicant’s legal position. The applicant held a subjective right to an invalidity pension prior to 1 February 2010. This right was confirmed by an administrative act and the applicant in fact received the pension in question until the end of January 2010. She also fulfilled the criteria to receive either a disability pension or a rehabilitation allowance at some point in the second semester of 2011 and this fact was subsequently confirmed by the decision of 13 December 2011 (see paragraph 17 of the judgment). She had a subjective right (an enforceable claim) to receive one of these two benefits, even if this right was not confirmed by an administrative act. This right also constituted a possession within the meaning of Article 1 of Protocol No. 1. This is where the essential difference lies between me and my colleagues in the minority.\n\nHad her right to one of these two benefits been respected on 31 December 2011, she would also have been entitled to these two benefits after 1 January 2012 under the legislation which entered into force at that moment. In her specific circumstances, the actual implementation of her subjective right before 1 January 2012 would have given her the status of a subjective right-holder after that date.\n\n9.  An analysis of the Hungarian legal system leads to the conclusion that there are reasons pleading in favour of strong protection of the applicant’s right, but there are also serious reasons pleading against such protection.\n\nOn one hand, the benefits in question were contributive and were in principle designed to replace other sources of revenue. Furthermore, the legislation in force before 1 February 2010 and the legislation in force at the end of 2011 provided for a specific time-frame for the implementation of those rights. They were to be granted and implemented as long as the health of the right-holder did not improve. All those reasons plead in favour of strong protection of the benefits in question against State interference, be that legislative, administrative or judicial in form.\n\nMoreover, the Constitution of Hungary in force until 31 December 2011 guaranteed the right to social security. It is true that a new paragraph 3 was introduced to Article 70E of the Constitution by the Act of 6 June 2011 which weakened the protection of pensions granted to persons below the retirement age. It is important to stress, however, that under that paragraph disability pensions could be reduced or terminated if the persons concerned were able to work. The Constitution did not allow the complete withdrawal of disability pensions granted to persons unable to work. Therefore, it cannot be said that – under the letter of the Hungarian Constitution – the subjective right acquired by the applicant was devoid of constitutional protection vis-à-vis parliament. Furthermore, the actual degree of protection of disability pensions under the Hungarian Constitution depends on the balancing of conflicting constitutional values.\n\nAt the same time, the scope of the constitutional protection as determined by the case-law of the Constitutional Court was very narrow (see paragraphs 32 and 33 of the reasoning of the judgment). The 2011 Fundamental Law (the new Constitution) which entered into force on 1 January 2012 further reduced the degree of protection for social rights. These factors are a strong argument against stronger protection of the possession in question vis-à-vis legislative interference.\n\nIn my view, the decisive factor in the instant case is the nature of the benefit. It is designed to replace employment income for persons who are unable to work. This fact justifies scrutiny of the strength of the right-holder’s protection against legislative change.\n\n10.  The actual interference with the applicant’s subjective rights took place in several stages and had several dimensions. Firstly, the applicant was deprived of her disability pension as of 1 February 2010, due to a new method for establishing the level of disability set out in infra-legislative (infra-statutory) provisions. Secondly, she could receive neither the disability pension nor the rehabilitation allowance to which she was entitled in the second half of 2011, apparently due to the inaction of the administrative authorities. Thirdly, she was definitely deprived of the right to either of these two allowances as of 1 January 2012, due to a change in legislation decided by the national parliament.\n\nThe Chamber judgment stated that the Court is prevented from examining the procedure having led to the judgment of 1 April 2011 because the application was filed more than 6 months later (see paragraph 31 of the Chamber judgment). This is somewhat ambiguous, but does not necessarily mean that the Court is prevented from examining the legal situation of the applicant after 31 January 2010.\n\nThe Grand Chamber declared that it will examine whether the outcome of the proceedings ending with the judgment of 20 June 2013 is compatible with the Convention (see paragraphs 91 and 92). What matters is not so much the outcome as such of those proceedings but the legal position of the applicant as determined by domestic law and confirmed by that domestic judgment.\n\n11.  The question arises whether the first interference referred to above (in § 8) is a one-off interference or amounts to a continuous situation. The answer to this question may be disputed. For my colleagues of the minority, it was a one-off violation. Given that the legislation in force on 1 February 2010 did set out a time-frame for the implementation of the right in question (until the individual’s health improves), I would be inclined to see the applicant’s legal position after 1 February 2010 as a continuous interference with her subjective right, acquired prior to that date. But even if we consider this first interference as a one-off interference for the purpose of the calculation of the six-month period, there is certainly a new subjective right at stake in the second semester of 2011 and a new – twofold – interference (described above) with this subjective right. This interference came first from the administrative authorities, and only later from the legislator.\n\nIn the instant case the interference with the applicant’s right was initially administrative in nature. Nonetheless, it is not possible to avoid an assessment of the legislative interference with effect from 1 January 2012. However, as stated above, such an assessment is not illegitimate, given the nature of the benefit in question. Therefore, it is justified to scrutinise the proportionality of the interference (both administrative and legislative) with the applicant’s possession. In my view, this interference was not proportionate and in this respect I agree with the reasoning of the judgment.\n\nAdmittedly, we end up with the transformation of a right with limited protection against the legislator under domestic law into a right with somewhat stronger protection against the legislator. However, the specific nature of the right at stake justifies such an approach.\n\n12.  The first and foremost condition for the legitimacy of a court is the precision, clarity and methodological correctness of its reasoning. Only well-argued judgments can win the respect of citizens. The European Court of Human Rights should consolidate the rule of law by setting the highest possible standards in this respect. It is true that the Convention sets out the minimum European standard for substantive human-rights protection, but this ought not to prevent the Court from seeking and promoting excellence in the art of legal argument.\n\nIn this respect, I should like to raise two questions. Firstly, I note that the judgment does not try to consider and discuss possible counter-arguments; in particular, it ignores the arguments put forward by the minority. Such a choice of argumentative strategy is problematic. I think that the argumentation of the minority deserves thorough consideration and serious discussion.\n\nSecondly, in many European States the domestic courts follow extremely high standards in the reasoning of judicial decisions. In particular, they pay the utmost attention to the precision of the conceptual apparatus and clearly state the applicable rules of interpretation. The quality of reasoning in the instant case does not reach the level of diligence attained in the most advanced States. Seen from this perspective, for many European lawyers, the way in which the judgment is reasoned may appear as a step back in the development of the standards of a democratic State ruled by law. Such a situation not only makes it difficult for the respondent States to implement the Convention and affects the authority of the Court, but also has a detrimental impact on European legal culture.\n\n1.  We regret that we cannot share the view of the majority that there has been a violation of Article 1 of Protocol No. 1 to the Convention. In our opinion, that provision is not applicable in the circumstances of the present case. Moreover, since we are unable to find a violation of Article 1 of Protocol No. 1, we consider, unlike the majority, that it is necessary to express ourselves separately on the issue of the alleged violation of Article 8 of the Convention.\n\n2.  It should be stressed at the outset that this part of our opinion has been drafted together with Judge Wojtyczek. Given that our interpretation of the general principles deriving from the Court’s established case-law on Article 1 of Protocol No. 1 is significantly different to that set out in the plurality opinion forming the judgment of the Court, it is necessary to develop our analysis of the jurisprudence in a comprehensive way, and not merely to limit ourselves to criticising those parts of the judgment, specific to the present case, with which we disagree.\n\n3.  The concept of “possessions” within the meaning of Article 1 of Protocol No. 1 has an autonomous meaning which is not limited to ownership of physical goods and is independent from the formal classification in domestic law. Certain other rights and interests constituting assets can also be regarded as “property rights”, and thus as “possessions” for the purposes of this provision (see Beyeler v. Italy [GC], no. 33202/96, § 100, ECHR 2000I; Broniowski v. Poland (dec.) [GC], no. 31443/96, § 98, ECHR 2002X; Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 63, ECHR 2007I; Depalle v. France [GC], no. 34044/02, § 62, ECHR 2010; Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 171, ECHR 2012; Fabris v. France [GC], no. 16574/08, § 49, ECHR 2013 (extracts); and Parrillo v. Italy [GC], no. 46470/11, § 211, ECHR 2015).\n\n4.  The Court has acknowledged in its case-law the relevance of the notion of “legitimate expectations” with respect to the concept of “possessions” (see the case-law starting with Pine Valley Developments Ltd and Others v. Ireland, 29 November 1991, § 51, Series A no. 222, and Pressos Compania Naviera S.A. and Others v. Belgium, 20 November 1995, § 31, Series A no. 332). Pursuant to the Court’s established case-law, a “legitimate expectation” does not constitute an interest that in itself is protected under Article 1 of Protocol No. 1. According to this case-law, “no such expectation could come into play in the absence of an ‘asset’ falling within the ambit of Article 1 of Protocol No. 1” (see Kopecký v. Slovakia [GC], no. 44912/98, § 48, ECHR 2004IX; and Maurice v. France [GC], no. 11810/03, § 65, ECHR 2005IX).\n\n5.  In a series of cases, the Court has found that the applicants did not have a “legitimate expectation” in circumstances where it could not be said that they had a currently enforceable claim that was reasonably established (see Kopecký, cited above, § 49, and the cases referred to in paragraphs 4951 of the judgment). The Court’s case-law thus does not contemplate the existence of a “genuine dispute” or an “arguable claim” as a criterion for determining whether there is a “legitimate expectation” protected by Article 1 of Protocol No. 1 (see Kopecký, cited above, § 52, and Maurice, cited above, § 66). On the contrary, where the proprietary interest is in the nature of a claim, the Court takes the view that it may be regarded as an “asset” only where it has a sufficient basis in domestic law, for example, where there is settled case-law of the domestic courts confirming its existence (see Kopecký, cited above, §§ 49 and 52; Maurice, cited above, § 66; Anheuser-Busch Inc., cited above, § 65; Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 94, ECHR 2007II; Centro Europa 7 S.r.l. and Di Stefano, cited above, § 173; and Parrillo, cited above, § 213).\n\n6.  This principle has also been formulated in various other ways throughout the Court’s case-law. By way of example, in a number of cases the Court examined, respectively, whether the applicants had “a claim which was sufficiently established to be enforceable” (see Gratzinger and Gratzingerova v. the Czech Republic (dec.), no. 39794/98, § 74, ECHR 2002VII); whether they demonstrated the existence of “an assertable right under domestic law to a welfare benefit” (see Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 51, ECHR 2005X); or whether the persons concerned satisfied the “legal conditions laid down in domestic law for the grant of any particular form of benefits” (see Richardson v. the United Kingdom (dec.), no. 26252/08, § 17, 10 April 2012).\n\n7.  In some cases the “legitimate expectation” may involve situations where the persons concerned are entitled to rely on the fact that a specific legal act will not be retrospectively invalidated to their detriment (see Kopecký, cited above, § 47, and Noreikienė and Noreika v. Lithuania, no. 17285/08, § 36, 24 November 2015). Such legal acts can consist, for example, of a contract (see Stretch v. the United Kingdom, no. 44277/98, § 35, 24 June 2003), an administrative decision granting an advantage or recognising a right (see Pine Valley Developments Ltd and Others, cited above, § 51; Moskal v. Poland, no. 10373/05, § 45, 15 September 2009; and Hasani v. Croatia (dec.), no. 20844/09, 30 September 2010), or a judicial decision (see Gratzinger and Gratzingerova, cited above, § 73, and Velikoda v. Ukraine (dec.), no. 43331/12, § 20, 3 June 2014). In such cases the “legitimate expectation” is based on a reasonably justified reliance on a legal act which has a sound legal basis and which bears on property rights (see Kopecký, cited above, § 47).\n\n8.  In other cases the “legitimate expectations” may simply relate to claims arising out of certain situations which are governed by a provision of domestic law. Where the applicant can argue, for example on the basis of established case-law, that his or her claim is currently enforceable and will be determined in his or her favour (see Gratzinger and Gratzingerova, cited above, § 72, and Maurice, cited above, § 66), in accordance with domestic law, this claim qualifies as an “asset” for the purposes of Article 1 of Protocol No. 1 (see Kopecký, cited above, § 48, referring to Pressos Compania Naviera S.A. and Others, cited above, § 31).\n\n9.  A legitimate expectation must be of a nature more concrete than a mere hope (see Gratzinger and Gratzingerova, cited above, § 73, and Kopecký, cited above, § 49). The hope that a long-extinguished property right may be revived or that the survival of an old property right which it had been impossible to exercise effectively can be recognised cannot be considered a “possession” within the meaning of Article 1 of Protocol No. 1, nor can a conditional claim which lapses as a result of the non-fulfilment of the condition (see Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000XII, and the cases referred to; see also Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 83, ECHR 2001VIII; Gratzinger and Gratzingerova, cited above, § 69; Kopecký, cited above, § 35 (c); and Fabris, cited above, § 50).\n\n10.  In short, where the proprietary interest is in the nature of a claim, it may be regarded as an “asset” attracting the guarantees of Article 1 of Protocol No. 1 where it is based on a specific legal act or where it has a sufficient basis in domestic law, for example where there is settled case-law of the domestic courts confirming it. By way of contrast, no legitimate expectation can be said to arise where there is a dispute as to the correct interpretation and application of domestic law and the applicant’s submissions are subsequently rejected by the national courts (see Kopecký, cited above, § 50; Anheuser-Busch Inc., cited above, § 65; and Centro Europa 7 S.r.l. and Di Stefano, cited above, § 173).\n\n11.  In the modern, democratic State, many individuals are, for all or part of their lives, completely dependent for survival on social security and welfare benefits. Many domestic legal systems recognise that such individuals require a degree of certainty and security, and provide for benefits to be paid – subject to the fulfilment of the conditions of eligibility – as of right (see Stec and Others (dec.), cited above, § 51; Moskal, cited above, § 39; and Wieczorek v. Poland, no. 18176/05, § 65, 8 December 2009).\n\n12.  The general principles relating to the scope of application of Article 1 of Protocol No. 1 are equally relevant when it comes to cases concerning social security and welfare benefits (see Stec and Others (dec.), cited above, § 54; Moskal, cited above, § 38; and Stummer v. Austria [GC], no. 37452/02, § 82, ECHR 2011). In particular, the Court has repeatedly held that Article 1 of Protocol No. 1 does not guarantee, as such, any right to a pension or social benefit of a particular amount (see, for example, Kjartan Ásmundsson v. Iceland, no. 60669/00, § 39, ECHR 2004IX, and Wieczorek, cited above, § 57). The right to an old-age pension or any social benefit in a particular amount is not included among the rights and freedoms guaranteed by the Convention (see, for example, Aunola v. Finland (dec.), no. 30517/96, 15 March 2001; Pravednaya v. Russia, no. 69529/01, § 37, 18 November 2004; and Da Silva Carvalho Rico v. Portugal (dec.), no. 13341/14, § 30, 1 September 2015).\n\n13.  Article 1 of Protocol No. 1 places no restriction on the Contracting States’ freedom to decide whether or not to have in place any form of social-security or pension scheme, or to choose the type or amount of benefits to provide under any such scheme. However, where a Contracting State has in force legislation providing for the payment as of right of a welfare benefit or pension – whether conditional or not on the prior payment of contributions – that legislation must be regarded as generating a proprietary interest falling within the ambit of Article 1 of Protocol No. 1 but it does so only for persons satisfying its requirements (see Stec and Others (dec.), cited above, § 54; Andrejeva v. Latvia [GC], no. 55707/00, § 77, ECHR 2009; Carson and Others v. the United Kingdom [GC], no. 42184/05, § 64, ECHR 2010; and Stummer, cited above, § 82).\n\n14.  Within the member States of the Council of Europe, there exists a wide range of social-security benefits which are guaranteed in the form of subjective rights. Benefits are funded in a large variety of ways: some are paid for by contributions to a specific fund; some depend on a claimant’s contribution record; many are paid for out of general taxation on the basis of a statutorily defined status (see Stec and Others (dec.), cited above, § 50).\n\n15.  In certain circumstances, the making of compulsory contributions, for example to a pension fund or a social insurance scheme, may create a property right protected by Article 1 of Protocol No. 1 even before the contributor fulfils all the conditions to actually receive the pension or other benefit. This is the case when there is a direct link between the level of contributions and the benefits awarded (see Stec and Others (dec.), cited above, § 43) or in other words, when the making of a contribution creates a property right in a portion of the pension fund (see T. v. Sweden, no. 10671/83, Commission decision of 4 March 1985, Decisions and Reports 42, at p. 229). In such a situation, the contributor has an enforceable claim to a share in the fund.\n\n16.  This situation is different from the situation where a person makes contributions without there being a direct link between the level of contributions and any benefits awarded. It is true that the Court has held that the right to a pension or other benefit which is based on employment can be assimilated to a property right when special contributions have been paid (see T. v. Sweden, cited above, and Klein v. Austria, no. 57028/00, §§ 42-45, 3 March 2011). It is to be noted that in such a system the payment of contributions is a pre-condition for receiving the benefit. In other words, there is no entitlement to the benefit where such contributions have not been made. However, the benefit will only be granted to persons who have not only made contributions, but who also satisfy the other conditions laid down in domestic law (see, with respect to contributions made to an unemployment insurance fund, generating a right to emergency assistance when the entitlement to unemployment benefit is exhausted, Gaygusuz v. Austria, 16 September 1996, § 39, Reports of Judgments and Decisions 1996IV; see also Bellet, Huertas and Vialatte v. France (dec.), nos. 40832/98, 40833/98 and 40906/98, 27 April 1999). In such a situation, the contributor has an enforceable claim only once he or she fulfils all the conditions required to obtain the benefit.\n\n17.  In this respect, the fact that a person has entered into and forms part of a State social-security system (even a compulsory one) does not necessarily mean that that system cannot be changed either as to the conditions of eligibility of payment or as to the quantum of the benefit or pension (see Richardson, cited above, § 17, and Damjanac v. Croatia, no. 52943/10, § 86, 24 October 2013; see also Müller v. Austria, no. 5849/72, Commission’s report of 1 October 1975, DR 3, p. 25, §§ 3031; Skorkiewicz v. Poland (dec.), no. 39860/98, 1 June 1999; and Kjartan Ásmundsson, cited above, § 39). Indeed, the Court has accepted the possibility of amendments to social-security legislation which may be adopted in response to societal changes and evolving views on the categories of persons who need social assistance (see Wieczorek, cited above, § 67).\n\n18.  Where a person fulfils the requirements to receive a social-security or welfare benefit – whether conditional or not on the prior payment of contributions –, he or she has a claim that constitutes an “asset” protected under Article 1 of Protocol No. 1 (see, a contrario, Bladh v. Sweden (dec.), no. 46125/06, 10 November 2009). It should be noted that such a claim is enforceable only as long as the entitlement exists, that is, as long as the person fulfils the requirements laid down in domestic law as it stands (see Velikoda, cited above, § 23).\n\n19.  With respect to the loss of an entitlement to a social-security or welfare benefit, two situations have to be distinguished.\n\n20.  Where, on the one hand, the amount of the benefit is reduced or discontinued because of a change in the applicable rules, this constitutes an interference with possessions, which then requires to be justified under the general rule of Article 1, first paragraph, first sentence, of Protocol No. 1 (see Kjartan Ásmundsson, cited above, § 40; Rasmussen v. Poland, no. 38886/05, § 71, 28 April 2009; Wieczorek, cited above, § 57; Valkov and Others v. Bulgaria, nos. 2033/04, 19125/04, 19475/04, 19490/04, 19495/04, 19497/04, 24729/04, 171/05 and 2041/05, § 84, 25 October 2011; Richardson, cited above, § 17; Grudić v. Serbia, no. 31925/08, § 72, 17 April 2012; Khoniakina v. Georgia, no. 17767/08, § 72, 19 June 2012; Damjanac, cited above, §§ 85 and 89; and Velikoda, cited above, § 25).\n\n21.  An important consideration in the assessment under the latter provision will be whether the applicant’s right to derive benefits from the social-security or welfare scheme in question has been interfered with in a manner resulting in the impairment of the essence of his or her social security or welfare rights (see Kjartan Ásmundsson, cited above, § 39; Wieczorek, cited above, § 57; Valkov and Others, cited above, § 91; and Khoniakina, cited above, § 71). However, the fair-balance test cannot be based solely on the amount or percentage of the reduction suffered, in the abstract. All the relevant elements of the case will have to be taken in account (see Stefanetti and Others v. Italy, nos. 21838/10, 21849/10, 21852/10, 21822/10, 21860/10, 21863/10, 21869/10, and 21870/10, § 59, 15 April 2014). This includes the nature of the benefit taken away, in particular whether it has originated in a special advantageous pension scheme available only to certain groups of persons (see Cichopek and Others v. Poland (dec.), nos. 15189/10 and others, § 137, 14 May 2013; da Conceição Mateus and Santos Januário v. Portugal (dec.), nos. 62235/12 and 57725/12, § 24, 8 October 2013; and Da Silva Carvalho Rico, cited above, § 42).\n\n22.  Where, on the other hand, the person concerned ceases to satisfy the legal conditions laid down in the existing, unchanged domestic law for the grant of any particular form of benefits or pension, there is no interference with the rights under Article 1 of Protocol No. 1 (see Rasmussen, cited above, § 71; Richardson, cited above, § 17; and Damjanac, cited above, §§ 86 and 88). Indeed, the entitlement to a given benefit or pension can change with the evolution of the individual situation of the beneficiary. The Court has stated in this respect, with regard to disability pensions, that it is permissible for States to take measures to reassess the medical condition of persons receiving such pensions with a view to establishing whether they continue to be unfit to work, provided that such reassessment is in conformity with the law and attended by sufficient procedural guarantees (see Wieczorek, cited above, § 67, and Iwaszkiewicz v. Poland, no. 30614/06, §§ 50-51, 26 July 2011).\n\n23.  Turning to the application of the general principles to the facts of the present case, we agree with the majority on the starting point: the applicant cannot complain about an allegedly “continuing situation” originating in the discontinuation of her disability pension on 1 February 2010. Like the majority, we believe that the discontinuation of the disability pension was an instantaneous act, and that the final decision in this respect was taken by the Nyíregyháza Labour Court on 1 April 2011. As a result of the six-month rule contained in Article 35 § 1 of the Convention, the Court is precluded from examining the decision of 1 February 2010 and the subsequent proceedings up to the judgment of 1 April 2011, and is obliged to limit its examination to the decisions relating to the applicant’s later requests for a disability pension, submitted on 20 February 2012 and 15 August 2012 (see paragraphs 90-91 of the judgment).\n\n24.  We note that between 1 May 1975 and 14 July 1997 the applicant made contributions to the social-security scheme (see paragraph 10 of the judgment). However, it is not alleged that she thus had acquired any claim to an identifiable share in a social-security fund. We therefore proceed on the basis that the payment of contributions was merely one of the pre-conditions for receiving a disability pension which became relevant once she satisfied the other conditions laid down in domestic law (see § 16 above). Unlike the majority (see paragraph 105 of the judgment), we thus do not consider that the applicant’s contributions created a property right protected under Article 1 of Protocol No. 1.\n\n25.  We further note, like the majority, that the system of disability allowances in question, both in its pre-2012 and its current form, essentially operated on the basis of two cumulative eligibility criteria: (i) a “health condition”, under which the benefit was payable only to persons whose health and employment status so required, and (ii) a “contribution condition”, which required the fulfilment of a certain service period or a period covered by social-security contributions (see paragraph 93 of the judgment).\n\n26.  When in 2001 the applicant was granted a disability benefit (see paragraph 11 of the judgment), the relevant authorities considered that she met both the health condition and the contribution condition applicable pursuant to Act no. LXXXI of 1997 on Social-Security Pensions. That decision generated a legitimate expectation that she would receive the benefit on a monthly basis, so long as she continued to meet the two conditions and in particular the health condition.\n\n27.  The period during which the applicant received the disability benefit lasted until 1 February 2010. On that date, the relevant pension insurance authority found, on the basis of a new methodology for assessing the degree of health impairment, that the applicant had a disability of only 40%. It concluded that the applicant no longer fulfilled the health condition established by law, which had remained unchanged, and therefore withdrew her entitlement to a disability pension (see paragraphs 12-14 of the judgment). As indicated previously, the applicant’s challenges to this decision were ultimately dismissed by the Nyíregyháza Labour Court on 1 April 2011 (see paragraphs 15-16 of the judgment). In consequence, in accordance with the provisions of domestic law then in force, the applicant was not entitled to and did not receive any disability pension as of 1 February 2010.\n\n28.  From the moment that her entitlement to a disability pension was withdrawn, the applicant could no longer rely on a specific legal act to support the legitimate expectation that she would receive a disability pension. She could of course rely on the legislation in force at that point, but since she did not fulfil all of the conditions to receive a disability benefit she had no enforceable claim in that regard. It cannot be argued either, in our opinion, that the applicant, who had previously had a right to a disability pension because she fulfilled the eligibility requirements under the domestic law applicable at the relevant time, had a continuous legitimate expectation to receipt of that allowance or benefit for as long as one of those requirements continued to be met, regardless of how the relevant statutory requirements were amended or developed over time. In fact, the applicant had lost her proprietary interest, protected under Article 1 of Protocol No. 1, through the decision of 1 February 2010 withdrawing her entitlement to a disability pension.\n\n29.  Following that withdrawal of her disability pension and the rejection of her appeals, the applicant first requested a new assessment of her disability. This resulted in a disability score of 50%, as determined on 13 December 2011 by the second-instance administrative authority. This, however, was insufficient, in the given circumstances, to allow the conclusion that the applicant fulfilled the conditions laid down by domestic law for entitlement to a disability allowance (see paragraph 17 of the judgment). Thus, nothing changed in respect of her situation under Article 1 of Protocol No. 1: she still had no “enforceable claim” to a disability pension. The fact that rehabilitation was envisaged, but regrettably not taken forward (ibid.), does not, in our opinion, alter this conclusion as regards the applicant’s legal situation.\n\n30.  On 1 January 2012 a new law on disability allowances (Act no. CXCI of 2011 on the Benefits Granted to Persons with Reduced Work Capacity) entered into force. It changed the conditions of eligibility for disability benefits, now called disability allowances. In particular, a new contribution condition was introduced, which was stricter than the one applicable under the old law (see paragraph 18 of the judgment). According to the majority, this law was of a retroactive nature (see paragraph 104 of the judgment). We cannot agree with that characterisation. The new law produced its effects only for the future, thus being of immediate but not retroactive application.\n\n31.  We reiterate that according to the Court’s case-law the protection afforded by Article 1 of Protocol No. 1 does not go so far as to prevent the competent authorities from amending the relevant rules and reforming the social-security system (see § 17 above). While the new law on disability allowances could constitute an interference in the “possessions” of those persons who received a disability pension at the moment when the law entered into force (see §§ 20-21 above), this was not the case in respect of the applicant, who at that moment was not entitled to such a pension under the old law (see § 22 above).\n\n32.  The question whether any proprietary interest, within the meaning of Article 1 of Protocol No. 1, existed as from 1 January 2012 would thus have to be answered on the basis of the new law. The old law had been repealed, and could therefore no longer be the basis for any legitimate expectations to arise. In other words, although the applicant had fulfilled the contribution criterion as it applied in the past, this fact was no longer relevant once the new law entered into force, changing the relevant criteria. In order to answer the question whether, for the purposes of the applicability of Article 1 of Protocol No. 1, the applicant’s claim had a sufficient basis in domestic law, it is the domestic law as it stood when the decisions were taken on her requests for a disability allowance, submitted on 20 February 2012 and 15 August 2012, that is relevant.\n\n33.  We would like to add that the fact that the applicant had made contributions under the old law does not change that finding. Indeed, as explained above, these contributions did not generate any claim to an identifiable share in a social-security fund, and therefore did not as such generate a proprietary interest protected under Article 1 of Protocol No. 1 (see § 24 above).\n\n34.  Accordingly, the question is whether there was a sufficient basis in domestic law, as interpreted by the domestic courts, for the applicant’s claim to a disability allowance to qualify as an “asset” for the purposes of the applicability of Article 1 of Protocol No. 1. In this respect, the decisive issue in our opinion is whether the applicant could be said to have satisfied the requirements for the disability allowance, as laid down in domestic law (see, mutatis mutandis, Koivusaari and Others v. Finland (dec.), no. 20690/06, 23 February 2010).\n\n35.  The applicant brought two requests based on the law on disability allowances (Act no. CXCI of 2011). As indicated above, that law made the entitlement to a disability allowance dependent on two conditions: a health condition and a – now stricter – contribution condition (see § 30 above). The first request was rejected on 5 June 2012 on the ground that she did not fulfil the new contribution condition (see paragraph 19 of the judgment). The second request was also rejected, by a decision taken on 23 November 2012 and confirmed by an appellate body on 27 February 2013, and the applicant’s challenge to that decision was rejected by the Nyíregyháza Administrative and Labour Court on 20 June 2013, again on the ground that the applicant did not fulfil the new contribution condition (see paragraphs 21-23 of the judgment). The applicant does not argue that the interpretation or the application of the new law by the domestic authorities was arbitrary or manifestly unreasonable, and we see no reason to conclude that they were. As indicated above, the Court has consistently held that no legitimate expectation for the purpose of Article 1 of Protocol No. 1 can be said to arise where there is a dispute as to the correct interpretation and application of domestic law and where, as here, the applicant’s submissions are subsequently rejected by the national courts (see § 10 above). Thus, the conclusion to be drawn from the fact that the applicant’s requests were rejected on the ground that she did not fulfil one of the conditions laid down by the applicable law on disability allowances is that her claims had no basis in the new law or, in other words, that she had no “enforceable claim” under that law.\n\n36.  The applicant argues, however, that she was entitled to a disability allowance on the basis of the former Hungarian Constitution, as interpreted by the Constitutional Court, as well as on the basis of Article 12 § 2 of the European Social Charter, referring to ILO Convention No. 102, and the United Nations Convention on the Rights of Persons with Disabilities.\n\n37.  We are not convinced by the applicant’s argument that the provisions of the former Constitution had been interpreted by the Constitutional Court as obliging the State to provide for payment of a social allowance to the extent that is required for basic subsistence. In this regard, we would like to point to the reasoning in the Constitutional Court’s decision no. 40/2012 (XII.6.) AB (see paragraph 33 of the judgment), where it held that the Fundamental Law which replaced the former Constitution as of 1 January 2012 provides for general State objectives, rather than for rights conferred on individuals, as far as its Article XIX on social security is concerned. Moreover, the legislature was already expressly entitled to reduce, transform into a social allowance or terminate disability pensions under the former Constitution, as from 6 June 2011. The Constitutional Court also referred to its well-established case-law, which does not interpret the State’s obligation to guarantee basic subsistence as a source of specific, directly enforceable constitutional rights. We are therefore not persuaded that the constitutional principles relied on by the applicant created an enforceable right, to be implemented by the legislature.\n\n38.  Furthermore, we are unable to accept that the international-law norms referred to by the applicant constitute a basis for an enforceable right to the impugned Hungarian disability allowance. Hungary has not accepted to be bound by the parts of the European Social Charter or the Revised European Social Charter relied on (see paragraph 36 of the judgment). Neither has it ratified the European Code of Social Security or ILO Conventions Nos. 102 and 128 (see paragraphs 38, 40 and 41 of the judgment): it has thus not accepted the undertaking to secure at least a reduced invalidity benefit for those persons who have completed a period of five years of contribution prior to the contingency (see paragraph 42 of the judgment). In addition, the relevant provisions of the United Nations Convention on the Rights of Persons with Disabilities (see paragraph 39 of the judgment), although ratified by Hungary, do not contain any specific obligation that would entitle the applicant to a disability benefit.\n\n39.  The conclusion we draw from the foregoing is that the applicant’s claim had no basis in domestic law as it stood on the dates when her requests for a disability allowance were rejected. There was thus no claim under domestic law that could be considered an asset protected by Article 1 of Protocol No. 1. In our opinion, therefore, the applicant did not have a “possession” within the meaning of Article 1 of Protocol No. 1, and the guarantees of that provision do not apply in the present case.\n\n40.  Accordingly, we would allow the Government’s objection based on the incompatibility ratione materiae of the complaint with the Convention and the Protocols thereto. Accordingly, there can be no violation of Article 1 of Protocol No. 1.\n\n41.  In the event that the Court were to find Article 1 of Protocol No. 1 inapplicable, the applicant, for the first time in her memorial of 30 September 2015 to the Grand Chamber, requested the Court to examine separately whether her right to respect for private life as guaranteed by Article 8 of the Convention had been infringed on account of the loss of her only source of income, resulting from the amendment of the eligibility criteria for the disability pension.\n\n42.  Since we find that Article 1 of Protocol No. 1 is indeed inapplicable, we consider that we should give our views on the complaint based on Article 8 of the Convention.\n\n43.  According to the Court’s case-law, the “case” referred to the Grand Chamber, within the meaning of Article 43 of the Convention, is the application as it has been declared admissible (see, among many other authorities, K. and T. v. Finland [GC], no. 25702/94, § 141, ECHR 2001VII, and Blokhin v. Russia [GC], no. 47152/06, § 91, ECHR 2016). In the present case, the question whether the impugned decision could be regarded as a failure to comply with the applicant’s right to respect for private life for the purposes of Article 8 of the Convention is a matter that was not covered by the decision declaring the application admissible, and ought to be viewed as a separate complaint.\n\n44.  In our opinion, therefore, the Grand Chamber should have concluded that it lacks jurisdiction to examine the complaint under Article 8 (see, mutatis mutandis, Herrmann v. Germany [GC], no. 9300/07, § 39, 26 June 2012, and Pentikäinen v. Finland [GC], no. 11882/10, § 81, ECHR 2015).\n\n45.  We would like to end with a final remark. We are very well aware of the applicant’s difficult situation. She fell through the holes of the social-security net when it was reformed. But nevertheless we consider that hard cases do not make good law. Such cases cannot be a reason to change the Court’s long-standing and well-entrenched approach to the interpretation of “possessions” and “legitimate expectations” within the meaning of Article 1 Protocol No. 1 to the Convention.","title":""}
{"_id":"passage_604","text":"PROCEDURE\n\n1.  The case originated in an application (no. 23377/08) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Greek national, Mr Athanasios Alexakis (“the applicant”), on 6 May 2008.\n\n2.  The applicant was represented by Ms A. Giannopoulou, a lawyer practising in . The Greek Government (“the Government”) were represented by their Agent’s delegates, Mr M. Apessos, Senior Adviser at the State Legal Council, and Ms M. Germani, Legal Assistant at the State Legal Council.\n\n3.  On 6 November 2009 the President of the First Section decided to give notice of the application to the Government. In accordance with Protocol 14, the application is assigned to a committee of three Judges.\n\nTHE FACTS\n\nTHE CIRCUMSTANCES OF THE CASE\n\n4.  The applicant was born in 1940 and lives in .\n\n5.  On 15 June 1999 he brought an action for declaratory judgment (αναγνωριστική αγωγή) before the First Instance Administrative Court of Athens. In particular, he asked the court to declare that the Welfare fund of the Staff of the Greek Railways Organisation (Ταμείο Πρόνοιας Προσωπικού ΟΣΕ), which is a legal person governed by public law, owed him € 3,901.10. This sum corresponded to an allowance the applicant alleged he was entitled to when he retired.\n\n6.  On 30 May 2001 the action was dismissed (judgment no. 3648/2001).\n\n7.  On 10 April 2002 the applicant filed an appeal before the Athens Administrative Court of Appeal challenging the court’s findings and its evaluation of the evidence.\n\n8.  By judgment dated 11 March 2004 the court dismissed the applicant’s appeal and upheld the findings of the First Instance Court (judgment no. 898/2004).\n\n9.  On 8 December 2004 the applicant lodged an appeal on cassation with the . On 6 November 2007 he withdrew his appeal and a relevant report, to that effect, was delivered by the  on 19 November 2007.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION\n\n10.  The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:\n\n“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”\n\n11.  The period to be taken into consideration began on 15 June 1999 when the applicant lodged his action with the First Instance Administrative Court of Athens and ended on 19 November 2007 when a report was delivered by the  stating that the applicant had withdrawn his appeal on cassation on 6 November 2007. It thus lasted more than eight years and five months for three levels of jurisdiction.\n\nA.  Admissibility\n\n12.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n13.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).\n\n14.  The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above).\n\n15.  Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.\n\nThere has accordingly been a breach of Article 6 § 1.\n\nII.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION\n\n16.  Lastly the applicant complained of the lack of an effective domestic judicial remedy for excessive length of proceedings. He relied on Article 13 of the Convention which provides as follows:\n\n“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”\n\n17.  The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.\n\n18.  The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI). It notes that objections and arguments put forward by the Government have been presented and rejected in earlier cases (see Konti-Arvaniti v. Greece, no. 53401/99, §§ 29-30, 10 April 2003) and sees no reason to reach a different conclusion in the present case.\n\n19.  Accordingly, the Court considers that in the present case there has been a violation of Article 13 of the Convention on account of the lack of a remedy under domestic law whereby the applicant could have obtained a ruling upholding his right to have his case heard within a reasonable time, as set forth in Article 6 § 1 of the Convention.\n\nIII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n20.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n21.  The applicant claimed 6,000 euros (EUR) in respect of non-pecuniary damage.\n\n22.  The Government considered the amount claimed exorbitant and submitteds that the finding of a violation would constitute sufficient just satisfaction. They submitted, however, that if the Court heldholds that an amount should be awarded to the applicant, an amount of EUR 2,000 would be adequate and reasonable.\n\n23.  The Court considers that the applicant must have sustained nonpecuniary damage. Ruling on an equitable basis, it awards him EUR 4,000 under that head, plus any tax that may be chargeable on this amounts.\n\nB.  Costs and expenses\n\n24.  The applicant also claimed EUR 6,000 for the costs and expenses incurred before the domestic courts and for those incurred before the Court. He produced an invoice for EUR 1,000 regarding the costs and expenses incurred in the proceedings before the Court.\n\n25.  The Government did not express an opinion on the matter.\n\n26.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000XI). In the present case, regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the sum of EUR 500 for the proceedings before the Court, plus any tax that may be chargeable to the applicant.\n\nC.  Default interest\n\n27.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Declares the application admissible;\n\n2.  Holds that there has been a violation of Article 6 § 1 of the Convention;\n\n3.  Holds that there has been a violation of Article 13 of the Convention;\n\n4.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months EUR 4,000 (four thousand euros) in respect of non-pecuniary damage and EUR 500 (five hundred euros) in respect of costs and expenses, plus any tax that may be chargeable on these amounts;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n5.  Dismisses the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 21 October 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_929","text":"PROCEDURE\n\n1.  The case originated in an application (no. 17735/06) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Valeriy Grigoryevich Chopenko (“the applicant”), on 14 April 2006.\n\n2.  The applicant, who had been granted legal aid, was represented by Mr A.N. Dyatlov, a lawyer practising in Nikopol, Ukraine. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Ms Nataly Sevostianova, of the Ministry of Justice of Ukraine.\n\n3.  The applicant alleged, in particular, that the criminal proceedings against him had been unfair on account of a breach of his rights to defence and to personal participation in the appeal hearing.\n\n4.  On 17 October 2011 the application was communicated to the Government.\n\n5.  On 10 December 2013 the Chamber decided, under Rule 54 § 2 (c) of the Rules of Court, that the parties should be invited to submit further written observations on the admissibility and merits of the application.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n6.  The applicant was born in 1970. He is currently serving a life sentence in Dnipropetrovsk.\n\n7.  On 23 June 2005 O.K., a young woman, was found hanged on a tree in a forested area near a bus station. It was also discovered that her mobile phone, earrings and ring were missing and that she had had sexual intercourse shortly before her death.\n\n8.  At about 2 p.m. on 27 June 2005, officers of the Apostolovskiy District Police took the applicant to the police station for questioning in connection with the investigation into O.K.’s death.\n\n9.  On the same day, the applicant signed a confession statement according to which on the afternoon of 22 June 2005 he had met O.K. at a bus station and asked her to have sex with him in the nearby forest. O.K. had agreed to his proposal and volunteered her ring and earrings after intercourse. As the applicant was leaving, she had threatened to complain that she had been raped and robbed. In order to get away, the applicant had grabbed her by the neck; O.K., still alive, had lost consciousness and he had taken her mobile phone and left the scene.\n\n10.  According to the applicant, between 27 and 28 June 2005 he remained in police custody without any record being drawn up or his relatives being notified.\n\n11.  On 28 June 2005 the applicant was questioned by an investigating officer of the Apostolovskiy District Prosecutor’s Office and gave further details of his encounter with O.K. He stated that after she had lost consciousness he had taken the cord from her umbrella, tied it round her neck and hung her on the tree. The applicant’s statements were recorded on a form headed “Explanation”, which did not refer to any criminal proceedings against him, but stated that the applicant had been informed of his right under Article 63 of the Constitution not to incriminate himself.\n\n12.  At an unspecified time on the same date an investigating officer of the District Prosecutor’s Office instituted criminal proceedings against the applicant on suspicion that he had committed a non-aggravated murder within the meaning of Article 115 § 1 of the Criminal Code of Ukraine and notified the applicant of his right to legal assistance. He further drafted an arrest report according to which the applicant had been arrested as a suspect at 6.15 p.m. on that date at the premises of the prosecutor’s office.\n\n13.  After the applicant’s arrest he was assigned a legal-aid lawyer, M., and was officially questioned as a suspect in her presence from 6.35 p.m. until 8.50 p.m. During the questioning, the applicant largely reiterated his previous statements.\n\n14.  On the same date the applicant surrendered a gold ring to the police, which, as subsequently confirmed by her relatives, had belonged to O.K. O.K.’s former phone was also either seized from the applicant’s home or surrendered by him.\n\n15.  On 1 July 2005 the Dnipropetrovsk Apostolovskiy District Court ordered the applicant’s remand in custody as a preventive measure. It appears from the case-file materials that that decision was not appealed against.\n\n16.  On 2 July 2005 the applicant, questioned in M.’s presence, provided further details concerning his sexual encounter with O.K. He also stated that all his confessions had been voluntary and no pressure had been applied by the authorities to make him confess. Feeling remorse for his crimes, he wounded himself with a pen top in an attempt to cut his veins and commit suicide, but his cellmate intervened.\n\n17.  On 5 July 2005 M. was replaced by Sh., another legal-aid lawyer.\n\n18.  On the same date the applicant was taken to the site of the crime and participated in a reconstruction of the crime scene in Sh.’s presence.\n\n19.  On 6 July 2005 the applicant was examined by a medical expert, who found that he had a wound on the inner side of his left elbow, inflicted on or about 1 July 2005. The expert further recorded that, according to the applicant, the wound was self-inflicted and he had not been ill-treated by the authorities either during his arrest or in detention.\n\n20.  On 7 July 2005 the applicant was indicted of non-aggravated murder. On the same date he was questioned as an accused in the presence of Sh. and confirmed his previous statements.\n\n21.  On 12 August 2005 the applicant was placed in a psychiatric hospital for an assessment of his mental state, where he stayed until 9 September 2005. According to him, during that period of time he was administered psychotropic drugs.\n\n22.  On 23 September 2005 the charges against the applicant were reclassified as aggravated murder, within the meaning of Article 115 paragraph 2, rape, and robbery.\n\n23.  On 26 September 2005 a new lawyer, N., hired by the applicant’s family, was admitted to the proceedings to replace the legal-aid lawyer Sh. On the same date the applicant, when questioned in presence of N., claimed he was innocent and refused to provide any further explanations.\n\n24.  In the autumn of 2005 the applicant was committed for trial at the Dnipropetrovsk Regional Court of Appeal (“the Regional Court”), acting as a first-instance court.\n\n25.  During the trial the applicant pleaded not guilty. He maintained that on 27 June 2005 he had confessed to murdering O.K. as a result of psychological and physical ill-treatment by police officers; in fact, he had never met O.K. On 22 June 2005 he had purchased a mobile phone, a ring and earrings from a stranger on the street.\n\n26.  On 16 December 2005 the Regional Court found the applicant guilty of rape, theft, robbery and aggravated murder. It referred to various sources of evidence, including the applicant’s confession statements given on 27 June 2005 and during the further course of the investigation, witness statements, forensic assessments, and DNA evidence. The court dismissed the applicant’s allegations of ill-treatment as unsubstantiated and sentenced him to life imprisonment.\n\n27.  On 21 December 2005 the applicant received a copy of the Regional Court’s judgment of 16 December 2005.\n\n28.  On 10 January 2006 the applicant submitted a cassation appeal against that judgment. He maintained his innocence and alleged that on 27 June 2005 he had been beaten and given electric shocks by the police officers to break his moral resistance and make him confess to the murder, and that they had also threatened to plant narcotics on his wife if he refused to cooperate.\n\n29.  Subsequently (on 8 February, 2, 6 and 9 March 2006), the applicant submitted supplementary pleadings in which he challenged the validity of the various sources of evidence relied on for his conviction. He also complained that he had not been provided with an opportunity to contact his relatives or with access to a lawyer before his first questioning, and that he had been administered psychotropic drugs during his psychiatric assessment. He also maintained that N., the lawyer hired by his family, had performed his duties in bad faith. In particular, he had hardly visited the applicant and had completely failed to participate in the cassation proceedings.\n\n30.  On 20 January 2006 the applicant received a rectified copy of the judgment of 16 December 2005, as the previous copy had been found to contain some technical errors.\n\n31.  On 17 February 2006 the applicant filed an application with the Supreme Court requesting it to ensure his personal presence at the cassation hearing.\n\n32.  On 6, 14 and 28 March 2006 the applicant lodged further requests to be present at the hearing. He also requested the Supreme Court to summon his first lawyer, M., for the hearing and noted that he had never refused her services and did not know why she had been excluded from the proceedings.\n\n33.  On 27 March 2006 the Supreme Court rejected the applicant’s request to be present at the hearing, finding that it had been lodged outside the one-month statutory time-limit.\n\n34.  On 14 April 2006 the applicant re-lodged the request to be present at the hearing, stating that he had obtained the final copy of the judgment only on 20 January 2006 and had lodged his request within one month of that date.\n\n35.  On 18 April 2006 the Supreme Court held a hearing in the applicant’s case. The hearing was not attended by either the applicant or a lawyer on his behalf.\n\n36.  On the same date the Supreme Court dismissed the applicant’s cassation appeal and upheld the previous judgment. It noted, in particular, that there was no evidence that the applicant had been subjected to illtreatment or that his right to defence had been breached in a way incompatible with his right to a fair trial. It further noted that the case file contained sufficient evidence of the applicant’s guilt, including his own confession statements given in the presence of his lawyers. According to the text of the judgment, the prosecutor, who had been present at the hearing, had requested that the applicant’s appeal be dismissed and the first-instance court’s judgment be upheld.\n\n37.  On various dates after his conviction, the applicant unsuccessfully complained to various authorities, including the prosecutor’s office and the Advocate Qualification Commission, about his alleged ill-treatment, the poor performance of his lawyer N., and other alleged breaches of his procedural rights.\n\nII.  RELEVANT DOMESTIC LAW\n\nA.  Constitution of Ukraine of 1996\n\n38.  The relevant provisions of the Constitution read as follows:\n\n“Everyone has the right to legal assistance. Such assistance is provided free of charge in the cases provided for by law. Everyone is free to choose the defender of his or her rights.\n\nIn , advocacy acts to ensure the right to mount a defence against an accusation, and to provide legal assistance during the determination of cases by courts and other State bodies.”\n\n“A person shall not bear responsibility for refusing to testify or to explain anything about himself or herself, members of his or her family or close relatives in the degree determined by law.\n\nA suspect, an accused, or a defendant shall have the right to mount a defence.\n\nA convicted person shall enjoy all human and citizens’ rights, except for the restrictions determined by law and established in court judgments.”\n\nB.  Criminal Code of 2001\n\n39.  Under paragraph 1 of Article 115, premeditated murder is punishable by imprisonment for a term of seven to fifteen years. Under paragraph 2 of Article 115, premeditated murder in the aggravating circumstances listed in that paragraph is punishable by imprisonment for a term of ten to fifteen years, or life imprisonment.\n\nC.  Code of Criminal Procedure of 1960 (repealed with effect from 19 November 2012)\n\n40.  Article 45 of the Code of Criminal Procedure of 1960, in force at the material time, provided that legal representation during the inquiry, pre-trial investigation and trial before the first-instance court was mandatory if, inter alia, the possible penalty was a life sentence. It further specified that in such a case legal representation should be provided from the moment of the arrest or the bringing of charges against the person.\n\n41.  The provisions governing the cassation review of criminal cases, as in force before 7 February 2006 and in so far as relevant, read as follows:\n\n“Cassation proceedings may be instituted in respect of:\n\n1)  judgments, decisions and rulings taken by an appeal court acting as a first-instance court;\n\n...”\n\n“Cassation appeals and pleadings with respect to the court decisions listed in paragraph 1 of Article 383 of the present Code may be lodged within one month of the date of delivery of the judgment or pronouncement of the decision or ruling which is being appealed against; a convicted defendant who is held in custody [may lodge an appeal] ... within the same time-limit from the date of receipt of a copy of the judgment or decision.”\n\n“...A request by a convicted defendant who is held in custody to be summoned to submit observations in the course of the cassation review of a court decision listed in paragraph 1 of Article 383 of the present Code shall be binding on the cassation court.\n\nParticipants in the court proceedings who appear at the court hearing shall have the right to make oral submissions.”\n\n“The cassation court shall review the lawfulness and reasonableness of the court judgment in the light of the materials on file and additionally submitted materials, within the limits of the appeal. ...”\n\n“Following cassation review of the case the court shall take one of the following decisions:\n\n1)  to uphold the judgment, ... and dismiss the cassation appeal or pleadings;\n\n2)  to quash the judgment ... and remit the case for a new investigation or trial or an appellate review;\n\n3)  to quash the judgment ... and discontinue the proceedings;\n\n4)  to amend the judgment...”\n\n“Grounds for quashing or amending the judgment, decision or ruling shall be as follows:\n\n1)  a substantial breach of the law of criminal procedure;\n\n2)  incorrect application of the criminal law;\n\n3)  incompatibility of the punishment imposed with the gravity of the offence or the character of the convicted defendant.\n\nA judgment given by an appeal court acting as a first-instance court may be quashed or amended on account of bias, an incomplete inquiry, pre-trial or judicial investigation, or where the conclusions of the court stated in the judgment are incompatible with the factual circumstances of the case.\n\n...”\n\n42.  On 12 January 2006 the Law “On Introduction of Changes to the Criminal Procedure Code” which came into force on 7 February 2006, amended Article 391 by adding the following line to the first paragraph: “if it is submitted within the time-limit for lodging a cassation appeal”.\n\nTHE LAW\n\nI.   ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (c) OF THE CONVENTION ON ACCOUNT OF LACK OF ACCESS TO A LAWYER AT THE BEGINNING OF THE INVESTIGATION AND THE APPLICANT’S INABILITY TO TAKE PART IN THE CASSATION HEARING\n\n43.  The applicant complained that he had not been provided with legal assistance during the initial questioning sessions and that he had been unfairly deprived of an opportunity to take part in the cassation hearing. He referred to Article 6 §§ 1 and 3 (c) of the Convention, which, in so far as relevant, reads as follows:\n\n“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...\n\n...\n\n3.  Everyone charged with a criminal offence has the following minimum rights:\n\n...\n\n(c)  to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;\n\n...”\n\nA.  Admissibility\n\n44.  The Government have not submitted any comments concerning the admissibility of the above complaints.\n\n45.  The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.\n\nB.  Merits\n\n1.  Access to a lawyer\n\n46.  The applicant submitted that he had confessed to crimes of which he was innocent, in breach of the basic guarantees of a fair trial. He submitted that on 27 June 2005 the police had placed him in off-the-record detention and had extorted a confession statement by means of torture. On the following day he had been informally questioned by the investigator at the prosecutor’s office and his confession statements had been arbitrarily recorded on an “explanation” form. Only after obtaining the “explanation” had the investigative authorities regularised his status as a suspect and a detainee, notified him of his procedural rights and provided a legal-aid lawyer. However, when questioned as a suspect in that lawyer’s presence he had been afraid to protest his innocence since he had believed that a lawyer appointed by the police would not be willing to represent his interests in good faith and that unless he cooperated with the investigation he would be subjected to further ill-treatment once he returned to the police detention facility. Moreover, at the material time he was being questioned as a suspect of non-aggravated murder only. He could not foresee that the investigation, which already had substantial information on the details of the crime, would subsequently reclassify the charges as aggravated murder, rape and robbery. Once the charges had been so reclassified and he had obtained access to a privately hired lawyer, he had retracted his confessions and pleaded innocent. However, the confessions had been decisive for his conviction, as there was no other direct evidence of his involvement in the offence. As the initial confessions had been obtained in breach of basic procedural guarantees and had affected his further defence strategy, he considered that the domestic judicial authorities should have excluded them from the body of evidence.\n\n47.  The Government contested the applicant’s arguments. They noted that the applicant had initially been suspected and accused of non-aggravated murder. This charge did not require legal representation under domestic law. Nevertheless, the applicant had been provided with a lawyer, M., on the day of his arrest and had volunteered confession statements in her presence. Subsequently the applicant had volunteered statements on numerous other occasions in the presence of both lawyer M. and lawyer Sh., who had replaced her. The applicant had not complained about the performance of either of these lawyers at the material time. Moreover, he had requested the Supreme Court to summon his first lawyer, M., to take part in the cassation proceedings. This showed that he had full confidence in her. It could therefore not be said that the applicant’s confessions had been made in breach of his privilege against self-incrimination or right to defend himself. In these circumstances there was no basis for the domestic courts to exclude them from the body of evidence. Moreover, the domestic courts had based their judgments on numerous other sources, including witness testimony and forensic and material evidence.\n\n48.  The Court reiterates that, even if the primary purpose of Article 6 of the Convention, as far as criminal proceedings are concerned, is to ensure a fair trial by a “tribunal” competent to determine “any criminal charge”, it does not follow that the Article has no application to pre-trial proceedings. Thus, Article 6 – especially paragraph 3 thereof – may be relevant before a case is sent for trial if and so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions (see Imbrioscia v. Switzerland, 24 November 1993, § 36, Series A no. 275; Öcalan v. Turkey [GC], no. 46221/99, § 131, ECHR 2005IV; Salduz v. Turkey [GC], no. 36391/02, § 50, ECHR 2008). The Court further recalls that the guarantees in paragraph 3 (c) of Article 6 are specific aspects of the right to a fair hearing set forth in paragraph 1 of this provision which must be taken into account in any assessment of the fairness of proceedings (Martin v. Estonia, no. 35985/09, § 94, 30 May 2013). In addition, the Court’s primary concern under Article 6 § 1 is to evaluate the overall fairness of the criminal proceedings (see, as recent authorities, Taxquet v. Belgium [GC], no. 926/05, § 84, ECHR 2010, with further references therein; Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, ECHR 2011; Martin, ibid.).\n\n49.  The Court notes that, although not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trial (see Krombach v. France, no. 29731/96, § 89, ECHR 2001II). As a rule, access to a lawyer should be provided from the first questioning of a suspect by the police, unless it can be demonstrated in the light of the particular circumstances of each case that there were compelling reasons to restrict this right (see Salduz v. Turkey [GC], cited above, § 55). The right to defence will in principle be irretrievably prejudiced when incriminating statements made during police questioning without access to a lawyer are used for a conviction (ibid.).\n\n50.  Turning to the facts of the present case, the Court notes that the applicant’s first formal questioning as a suspect in the murder of O.K. took place in the evening of 28 June 2005, in the presence of the lawyer M. However, it is clear from the applicant’s submissions, and was not rebutted by the Government, that the day before that questioning he had already been placed in unrecorded police custody and questioned concerning his involvement in the murder in issue. As can be seen from the case file, on 27 June 2005 he signed a statement at the police station attesting to his involvement in the crime against O.K. In addition, on 28 June 2005 the applicant was questioned by the investigator at the prosecutor’s office, who recorded his detailed self-incriminating submissions as “explanations”. The timing of this questioning is unclear. However, absent any clarifications from the Government, the Court accepts the applicant’s version, according to which the questioning preceded his formal arrest on that date.\n\n51.  It follows that by virtue of the above-mentioned principles as enshrined in the Court’s case-law, the applicant was entitled to have access to a lawyer during his questioning on 27 and 28 June 2005. However, at that time he was questioned without a lawyer and there is no record indicating that before the questioning sessions in issue he was notified of his right to obtain legal assistance. On the facts of the case, the Court does not find any compelling reason justifying such a restriction of the applicant’s right of access to a lawyer. It follows that this right was not respected during the period in issue.\n\n52.  In so far as the applicant alleges that his confession statements should have been excluded from the body of evidence, the Court notes that the applicant repeatedly gave confession statements in presence of two lawyers and did not retract them until the third lawyer was admitted in the proceedings. There is also no proof that the initial confessions given by the applicant without a lawyer were extracted by ill-treatment or under the threat thereof. On the other hand, the Court notes that at the time when the applicant volunteered his original confessions, he might not have been fully aware of their significance, as the initial charges against him concerned non-aggravated murder only. Once they were reclassified as aggravated murder, rape and robbery he chose, possibly on the advice of his lawyer, to remain silent and subsequently retracted his confessions. What is even more important is that the original confessions which, as noted above, were obtained in breach of the applicant’s right to legal assistance, formed part of the case file. Thus, they affected the investigation strategy and set the framework within which the applicant’s further defence had to be mounted. It follows that regardless of whether the applicant chose to retract or maintain these confessions, the initial breach of his right to defence could not be remedied by the mere fact that he was subsequently provided with legal assistance. It necessitated further remedial action on behalf of the authorities involved.\n\n53.  Nevertheless, the domestic courts relied on the applicant’s confessions as the main basis for his conviction and failed to act upon his complaints about a breach of his right to defend himself. It is true that the confession statements were not the sole basis for the applicant’s conviction. However, absent any court ruling as to the role of the initial submissions obtained from the applicant in breach of his right to legal assistance and included in the case file, this breach was not remedied in the judicial proceedings.\n\n54.  The above considerations are sufficient for the Court to conclude that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention on account of the restriction of the applicant’s right of access to a lawyer during his initial questionings and the use of his self-incriminating statements as a basis for his conviction.\n\n2.  Inability to take part in the hearing before the Supreme Court\n\n55.  The applicant maintained that the refusal by the Supreme Court of his request to take part in the cassation hearing had breached his right to defence and violated the principle of equality of arms. He submitted, in particular, that by rejecting the said request as lodged belatedly, the Supreme Court had interpreted the applicable law with excessive formalism and had in any event acted unfairly. In particular, it had not taken account of the fact that the request had been lodged within the one-month time-limit from the date on which the applicant had received the final rectified version of the trial court’s judgment, or of the crucial importance of the hearing for him. Finally, the applicant pointed out that he had no longer been legally represented by the time of the cassation proceedings. However, the cassation hearing had been attended by the prosecutor, who had given oral submissions. Therefore, his own absence had seriously undermined the equality of arms between the parties.\n\n56.  The Government disagreed. They submitted that the applicant had had ample opportunity to present all his oral arguments in the first-instance proceedings. His personal presence at the cassation hearing had therefore not been crucial. In fact, at that hearing the Supreme Court had simply reviewed the arguments presented by the parties in their written pleadings in the light of the case-file materials. Although the prosecutor had been present at the hearing in question, he had submitted no new material and presented no new arguments. The principle of equality of arms had therefore not been violated. The Government also noted that the applicant had received a copy of the judgment on 21 December 2005. Under the applicable procedural law, he had therefore had until 21 January 2006 to lodge his request to attend the cassation hearing in person. However, although he had lodged his cassation appeal within the above-mentioned time-limit (on 10 January 2006), he had lodged the request to take part in the hearing only on 17 February 2006, that is, with a significant and unexplained delay. The Supreme Court had therefore acted lawfully and fairly in dismissing that request.\n\n57.  In their additional observations the Government reiterated their position that the applicant had submitted his request for participation in the Supreme Court’s hearing too late and that such a request was binding on the Supreme Court only if submitted within the time-limit for lodging a cassation appeal. Therefore, the applicant had to submit his request “before 23 January 2006”.\n\n58.  In reply the applicant insisted that the time limit for lodging his cassation appeal had to be counted starting on 20 January 2006.\n\n59.  The Court observes that the Supreme Court of Ukraine rejected the applicant’s request for participation in the cassation hearing on the basis of the procedural provision which made it mandatory to summon an imprisoned defendant to a hearing only where he had submitted a request within one month of receipt of his copy of the trial court’s judgment (see Articles 386 and 391 of the Code of Criminal Procedure, cited in paragraphs 41 and 42 above).\n\n60.  The Court notes, however, that the above time-limit for the request to participate in the hearing was introduced on 7 February 2006 while the appealed decision in the applicant’s case was adopted on 21 December 2005 when no such time-limit existed.\n\n61.  The Court further notes that the parties did not make any observations as for the impact of these changes on the applicant’s case. The Court, however, will proceed taking into account the relevant changes in the domestic law.\n\n62.  In this respect the Court reiterates that it is not its task to rule on whether the domestic judicial authorities correctly applied the domestic law in the applicant’s case. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. However, the Court is required to verify whether the way in which the domestic law is interpreted and applied produces consequences that are consistent with the principles of the Convention, as interpreted in the light of the Court’s case-law (see Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 190-191, ECHR 2006V).\n\n63.  The Court further reiterates that Article 6 of the Convention does not expressly provide for the right of a defendant in criminal proceedings to attend the hearing in person; rather, it is implicit in the more general notion of a fair trial (see, for example, Colozza v. Italy, 12 February 1985, § 27, Series A no. 89). The personal attendance of the defendant does not take on the same crucial significance for an appeal hearing as it does for a trial hearing (see, for example, Kamasinski v. Austria, 19 December 1989, § 106, Series A no. 168).\n\n64.  However, on several occasions the Court has stated that in the determination of criminal charges, the hearing of the defendant in person should be the general rule. Any derogation from this principle should be exceptional and subjected to restrictive interpretation (see, for example, Sándor Lajos Kiss v. Hungary, no. 26958/05, § 22, 29 September 2009, and Popa and Tănăsescu v. Romania, no. 19946/04, § 46, 10 April 2012). In order to decide whether the restriction was compatible with the Convention, regard must be had, among other considerations, to the specific features of the proceedings in question and to the manner in which the applicant’s interests were actually presented and protected before the appellate court, particularly in the light of the nature of the issues to be decided by it and of their importance to the appellant (see Hermi v. Italy [GC], no. , § 62, ECHR 2006XII). The personal participation of the defendant in the appeal hearing takes on particular importance where the appellate review concerns an assessment of their personality and character (see, for example, Kremzow v. Austria, 21 September 1993, § 67, Series A no. 268B), or where they claim that they did not commit the offences imputed to them and an appellate court is called upon to make a full assessment of the question of their guilt or innocence (see, among other authorities, Dondarini v. San Marino, no. , § 27, 6 July 2004). Further issues of importance are the extent to which the conviction bears social stigma and whether the defendant’s personal liberty is at stake (see, among other authorities, Belziuk v. Poland, 25 March 1998, § 38, Reports 1998II; Jussila v. Finland [GC], no. 73053/01, § 43, ECHR 2006XIV; Suuripää v. Finland, no. 43151/02, § 45, 12 January 2010; and Popa and Tănăsescu, cited above).\n\n65.  In any event, it follows from the guarantees secured in Article 6 § 3 (c), and is of crucial importance for the fairness of the criminal justice system in general, that the accused must be adequately defended, both at first instance and on appeal (see Lala v. the Netherlands, 22 September 1994, § 33, Series A no. 297-A). The appearance of a representative of the prosecution at an appeal hearing not attended by either the defendant or a legal representative on his behalf, has been found to breach the applicant’s right to defend himself and to violate the principle of equality of arms inherent in the right to a fair trial (see, for example, Belziuk, cited above, § 38; Sinichkin v. Russia, no. 20508/03, §§ 38-45, 8 April 2010; Pirali Orujov v. Azerbaijan, no. 8460/07, § 44, 3 February 2011; and Nefedov v. Russia, no. 40962/04, § 41-48, 13 March 2012).\n\n66.  Turning to the facts of the present case, the Court observes that under the rules of criminal procedure in force at the material time, in reviewing the applicant’s case the Supreme Court had jurisdiction to deal with questions of law and fact pertaining to both criminal liability and sentencing. It was empowered to examine the evidence on file and additional material submitted to it by the parties directly. Following such examination, the Supreme Court could dismiss the cassation appeal and uphold the judgment, quash the judgment and discontinue the criminal proceedings, quash the judgment and remit the case for a fresh investigation or trial, or amend the judgment (see Articles 396 and 398 of the Code of Criminal Procedure of 1960 cited in paragraph 41 above).\n\n67.  In his cassation appeal the applicant denied having committed the offence he was accused of and maintained that the first-instance court had attached undue weight to his confession statements, which he claimed had been extracted from him by way of ill-treatment and in breach of his right to defence. He asked the Supreme Court to quash the conviction and remit the case for fresh investigation. Consequently, the issues to be determined by the Supreme Court in deciding the applicant’s liability were both factual and legal. It was called on to make a full assessment of the applicant’s guilt or innocence of the offences imputed to him.\n\n68.  The Court further observes that the proceedings in question were of the utmost importance for the applicant, who had been sentenced to life imprisonment at first instance. It is also relevant to note that, while the applicant was not present at the hearing, nor represented by a lawyer, the prosecutor was present at the hearing. It can be seen from the text of the Supreme Court’s judgment of 18 April 2006 that the prosecutor made oral submissions during that hearing and urged the panel to uphold the judgment of the trial court.\n\n69.  Having regard to the criminal proceedings against the applicant in their entirety in the light of the above considerations, the Court considers that the applicant’s presence at the cassation hearing was of particular importance in order to enable the Supreme Court to determine the issues before it properly and ensure equality of arms between the parties.\n\n70.  The Court further notes that when rejecting the applicant’s request to be present at the hearing, the Supreme Court simply referred to the relevant provision of the Criminal Procedure Code, as in force at the date of its decision, without any further reasoning. However, the version of the provision upon which the Supreme Court relied had entered into force while the applicant’s appeal was already pending before the Supreme Court. If the newly introduced time-limit was to be calculated from the date of receipt of the first version of the appealed judgment on 21 December 2005, the new provision would have been applied retroactively in the applicant’s case, as the new rule which entered into force on 7 February 2006 required him to submit his request to participate in the proceedings by 21 January, that is, before the legislative amendment had come into force. Moreover, under the new law it seems that the Supreme Court, while not bound to allow the applicant to attend the hearing in the case of a request out of time, could still have used its discretion to accede to the applicant’s request. If the time-limit was to be calculated from the date of receipt of the final version of the appealed judgment, on 20 January 2006, it had not yet expired when the applicant lodged his request for attendance. Whichever of the two interpretations has been followed by the Supreme Court, it thus raises issues as to the justification of its decision in the light of the right to a fair trial. No alternative interpretation of the rules has been provided.\n\n71.  The Court also notes that the applicant’s request to be present at the hearing was submitted on 17 February 2006 and the hearing was held two months later, on 18 April 2006. The Court further notes that the Government did not indicate that acceding to the applicant’s request would have resulted in a need to postpone the hearing (compare Hermi v. Italy, cited above, § 20).\n\n72.  In the light of all the foregoing, the Court concludes that the Supreme Court’s rejection of the applicant’s request to take part in the cassation hearing resulted in a disproportionate restriction of his right to defence and, with a view to the presence of a representative of the prosecution, in breach of the principle of equality of arms. It was, thus, incompatible with the guarantees of a fair trial secured by Article 6 §§ 1 and 3 (c) of the Convention.\n\n73.  There has, accordingly, also been a breach of Article 6 § 1 of the Convention taken together with Article 6 § 3 (c) of the Convention on account of the refusal of the applicant’s request to participate in the cassation hearing.\n\nII.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION\n\n74.  The applicant also complained that he had been ill-treated by the investigative authorities and administered psychotropic drugs which interfered with his power of concentration; that all his lawyers had performed poorly; that the prosecution had coerced witnesses to provide false statements; that the judicial authorities had been neither independent nor impartial as they had convicted him of crimes he had not committed; that his arrest had been unlawful in that he had been belatedly notified of the reasons for it and brought before a judge; that he had had no opportunity to bring proceedings to have the lawfulness of his detention decided speedily; that his mother had suffered immensely on account of his unlawful prosecution and the poor performance of the lawyer N., and that the authorities had ignored various requests and applications lodged by him. The applicant referred to Articles 1, 3, 5, 6, 8, 13, 14, 17 and 34 of the Convention in relation to the above complaints.\n\n75.  Having considered these complaints in the light of all the material in its possession, the Court finds that, in so far as they are within its competence, the matters complained of do not disclose any appearance of a violation of the rights and freedoms set out in the Convention.\n\n76.  It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.\n\nIII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n77.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n78.  The applicant claimed 140,000 euros (EUR) in respect of non-pecuniary damage.\n\n79.  The Government submitted that the applicant’s claims were exorbitant and unsubstantiated.\n\n80.  The Court considers that the distress and frustration caused to the applicant cannot be compensated by the mere finding of a violation of Article 6 §§ 1 and 3 (c) of the Convention. At the same time, it finds that the amount claimed by the applicant is excessive. Having regard to the nature of the issues in the present case, and making its assessment on an equitable basis, the Court awards the applicant EUR 3,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.\n\nB.  Costs and expenses\n\n81.  The applicant did not submit any claims for costs and expenses within the time-limit fixed. Consequently, the Court does not make any award under this head.\n\nC.  Default interest\n\n.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY\n\n1.  Declares the complaints concerning lack of access to a lawyer at the beginning of the investigation and the applicant’s inability to take part in the cassation hearing (Article 6 §§ 1 and 3 (c) of the Convention) admissible and the remainder of the application inadmissible;\n\n2.  Holds that there has been a violation of Article 6 § 1 taken together with Article 6 § 3 (c) of the Convention on account of lack of access to a lawyer at the beginning of the investigation;\n\n3.  Holds that there has been a violation of Article 6 § 1 taken together with Article 6 § 3 (c) of the Convention on account of the applicant’s inability to take part in the cassation hearing;\n\n4.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n5.  Dismisses the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 15 January 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_620","text":"PROCEDURE\n\n1.  The case originated in an application (no. 9505/12) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Ms Marina Vladimirovna Barysheva (“the applicant”), on 7 February 2012.\n\n2.  The applicant, who had been granted legal aid, was represented by Ms Y.V. Zayikina, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agents, most recently Mr I. Lishchyna.\n\n3.  On 24 August 2015 the application was communicated to the Government.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n4.  The applicant was born in 1982 and lives in Kharkiv.\n\nA.  The first episode of alleged police ill-treatment, ensuing investigation and the first set of criminal proceedings against the applicant\n\n5.  According to the applicant, on 31 January 2009 she was arrested by a group of police officers in a café, K., and detained without record at a police station until 2 February 2009. She further alleged that during her detention, she was beaten and threatened by the police officers, notably A.A., who tried to obtain false confessions from her concerning her and other persons’ involvement in drug dealing. According to the applicant, she did not seek any medical assistance upon her release because she intended to file an illtreatment complaint and expected to be instructed by the prosecutor’s office on how to document the injuries properly.\n\n6.  According to the Government, on 31 January 2009 the police officers seized some heroin from the applicant, which was the basis for the institution of criminal proceedings against her and her eventual committal for trial. However, the applicant was neither arrested, nor detained by the police at that time.\n\n7.  On 10 February 2009 the applicant complained about the incident to the prosecutor’s office.\n\n8.  On 17 April 2009 this complaint was rejected as unsubstantiated.\n\n9.  On 31 March 2010 Kyivskyy District Court in Kharkiv, which examined the criminal case against the applicant, ordered the prosecutor’s office to inquire into her ill-treatment complaint lodged again during the trial.\n\n10.  On 23 April 2010 the Kyivskyy District Prosecutor’s Office in Kharkiv decided not to institute criminal proceedings in relation to the applicant’s ill-treatment allegations. As appears from that document, the applicant had stated to the prosecutorial authority that she and V.J. (her partner) had been arrested on 29 January 2009 and that she had been illtreated by police officers and detained without record until 31 January 2009. V.J., questioned by the prosecutor’s office in connection with the inquiry into the applicant’s complaints, had likewise alleged that both of them had been arrested on 29 January 2009 and that the applicant had been subsequently detained until 31 January 2009.\n\n11.  The applicant appealed against this decision to the General Prosecutor’s Office, which forwarded the case-file materials back to the local prosecutor’s office with a view for them to be joined to the criminal investigation of the applicant’s complaint concerning the second illtreatment episode (see below).\n\n12.  According to the applicant, on 18 June 2010 the Kyivskyy District Court in Kharkiv, to which the criminal case against her had been referred for examination, returned it for additional investigation.\n\n13.  There is no further information concerning the final outcome or present status of the aforementioned case against the applicant.\n\nB.  The second episode of alleged police ill-treatment, ensuing investigation, and the second set of criminal proceedings against the applicant\n\n14.  At 9.42 p.m. on 25 June 2009 the applicant sought medical aid at Kharkiv City Clinical Hospital no. 4.\n\n15.  At 10 p.m. on the same date she was examined by a medical professional in that hospital and diagnosed as suffering from concussion and chest, stomach, and knee-joint contusions. She refused to be admitted as an inpatient for treatment, which was recommended to her, and left the hospital.\n\n16.  On 26 June 2009 a new set of criminal proceedings was instituted against the applicant on suspicion of selling opium to three men on 24 June 2009 and of storing a jar of opium in her house (“the second set of criminal proceedings”).\n\n17.  On the same date the applicant complained to the Kharkiv Regional Department of the Interior that she had been ill-treated by the police. She submitted, in particular, that on 24 June 2009 four police officers had forced their way into her house without a court order, searching for drugs. Officer A.A. had hit the applicant on the head with the grip of his gun and had struck her several times in the face with his hand in the presence of the applicant’s two-year-old son, her partner, brother, and two guests. The police officers had then taken the applicant to the police station, where she had been held from about 2 p.m. on 24 June until 5.30 p.m. on 25 June 2009 without a formal arrest record being drawn up. During that period, officer A.A. had demanded that she confess to dealing drugs under the protection of another police officer, Y.B. As the applicant had protested, he had threatened and punched her on various parts of her body. She had been released at about 5.30 p.m. on 25 June 2009 after confessing to drug-related offences and signing various documents at the demand of A.A.\n\n18.  According to the applicant, during her visit to the Department of the Interior, she had felt so unwell that an ambulance had been called and she had been admitted as an urgent case to Hospital no. 4.\n\n19.  According to the Government, it could be seen from the hospital records that no ambulance had been called for the applicant and she had arrived at the hospital on her own. They submitted hospital records, according to which the applicant had come to the hospital on her own from her home and was registered by the reception desk at 9.27 p.m. It can also be seen from those records that between 26 June and 20 July 2009 the applicant received inpatient treatment for a moderately serious case of concussion, accompanied by a traumatic subarachnoid haemorrhage, epileptic syndrome and several other neurological conditions.\n\n20.  On 15 July 2009 a medical expert, having examined the applicant, reported that she had bruises on her right leg and left hip, which could be classified as minor injuries and which could have been sustained between seven and fifteen days prior to the assessment. He further concluded that he was not competent to decide on the cerebral trauma, in particular, as he had not been provided with a comprehensive medical record.\n\n21.  On 27 July 2009 another medical expert, after examining the applicant and various medical records, concluded that the applicant’s cerebral trauma could be classified as a moderately serious injury. He further reported that the trauma could have been sustained in the circumstances described by the applicant.\n\n22.  In July 2009 the Kharkiv Regional Department of the Interior carried out an internal investigation into the applicant’s ill-treatment complaints.\n\n23.  On 10 August 2009 a report summarising the results of the investigation was transferred to the Kharkiv city prosecutor’s office for review and follow-up. According to the findings contained in the report there were, in particular, irregularities in the visitors’ log and other police records, making it difficult to determine the exact time of the applicant’s presence in the police station on 24 and 25 June 2009.\n\n24.  On an unspecified date the prosecutor’s office began a preliminary investigation into the applicant’s complaints, in the course of which a number of people were questioned as potential witnesses, including the police officers implicated by the applicant in her ill-treatment, the lay witnesses, who had signed the police report concerning seizure of opium from the applicant on 24 June 2009, the three men implicated in buying opium from the applicant, the applicant’s partner, brother, guests, and the applicant herself.\n\n25.  During the questionings, the four police officers implicated by the applicant in the forced entry to her house and ill-treating her, denied this accusation. They maintained that the applicant had willingly allowed them to inspect her house after they had caught her selling opium to three men at the entrance. In the presence of two lay witnesses, syringes full of opium had been seized from the men on the spot and a jar filled with opium had been seized from the applicant’s garage following a search of her house. In connection with those seizures, the applicant had subsequently been taken in for questioning and had been at the police station on 24 and 25 June 2009, however, she had neither been arrested, nor held there overnight. The officers also submitted that it was known to them that the applicant sold drugs under the protection of police officer Y.B.\n\n26.  Two men identified as the lay witnesses gave statements largely consistent with the police officers’ submissions.\n\n27.  The three men identified by the police officers as the drug buyers denied buying any opium from the applicant and submitted that they had visited her that day to borrow some money. Later on, they had been arbitrarily caught by the police and made to write false confessions, admitting that they had bought opium from the applicant, on pain of criminal sanctions.\n\n28.  The applicant herself, V.J. (her partner), A.B. (her brother), and two persons identified by the applicant as the guests present during the purported forced entry, gave statements similar to the ones the applicant had provided to the Department of the Interior on 26 June 2009. The applicant also submitted that there had been no lay witnesses present during the forced entry and search and that the jar and syringes with opium had been brought by the police officers and planted on her.\n\n29.  On 18 September 2009 the Kharkiv city prosecutor’s office instituted criminal proceedings against “a group of unidentified police officers” suspected of abuse of authority accompanied by violence and the use of arms against the applicant on 24 June 2009.\n\n30.  On 22 September 2009 the applicant joined those proceedings as an aggrieved party.\n\n31.  On 1 March 2010, responding to a request from the applicant to be updated on the proceedings and to consult the case file, the Kharkiv city prosecutor’s office informed her that the investigation was in progress and that she would be able to consult the file after it had been completed.\n\n32.  On 9 March 2010 a further medical report on the applicant was obtained, which stated that it was not possible to determine the gravity of her cerebral trauma, in particular because of the unavailability of her previous complete medical history. It also concluded that it was unlikely that the applicant’s injuries had been self-inflicted.\n\n33.  On 8 December 2010 A.A. was indicted within the framework of the criminal proceedings concerning the applicant’s alleged ill-treatment. The three other police officers implicated by the applicant in assisting him on 24 June 2009 were referenced in the bill of indictment by name.\n\n34.  On 9 December 2010 the investigator S. discontinued the second set of criminal proceedings against the applicant for want of any evidence that she had stored opium in her house or had sold it to anyone on 24 June 2009. In his decision, the investigator referred to various procedural irregularities in the collection of evidence by the police officers and discrepancies in the statements of the various persons questioned as witnesses, which he deemed irreconcilable. He further decided to transfer the file of the case against the applicant to the Kharkiv prosecutor’s office in order for it to be joined to the case concerning the applicant’s alleged ill-treatment.\n\n35.  On 21 January 2011 a further medical report was obtained. It stated that it was not possible to determine the severity of the applicant’s cerebral injury because the medical history that had been provided to the expert writing the report had been incomplete, and because the applicant herself had not reported for an examination in person. It was also noted that, as regards the bruises which had been documented in July 2009, they could have been inflicted on the dates and in the manner reported by the applicant.\n\n36.  On 11 August 2011 a further medical report, this time by a panel of three experts, was obtained, wherein the applicant’s cerebral trauma was classified as a minor injury, which could possibly have been sustained on 24 June 2009 and was unlikely to have been self-inflicted. It was further reported that the data concerning the other injuries (bruises and contusions) were inconclusive, but that based on the available information it was not improbable that the injuries had been self-inflicted.\n\n37.  On 29 August 2011 the Kharkiv prosecutor withdrew the bill of indictment against officer A.A., noting that the three men earlier identified as the drug buyers and one of the two people identified as the applicant’s guests who had been present during the purported forced entry had retracted their testimony incriminating A.A. and his colleagues in the assault.\n\n38.  On an unspecified date officer M.O., one of the four officers implicated by the applicant in the forced entry, appealed to the Kyivskyy District Court in Kharkiv, seeking the annulment of the decision to institute criminal proceedings.\n\n39.  On 12 September 2011 the Kyivskyy District Court of Kharkiv allowed the appeal, referring the case for further preliminary inquiry. The court noted, in particular, that as the applicant’s complaint had been lodged against four named police officers, it had been wrong to institute proceedings into alleged abuse of office by a group of “unidentified officers”. Furthermore, while officer M.O. had de facto been implicated in the bill of indictment against officer A.A. as his accomplice, he had been given witness status only, which had restricted his procedural rights, including the right to defence.\n\n40.  On various dates in September 2011 formal confrontations were organised between the applicant, two of the three men identified by the police as the “drug buyers”, and a woman identified by the applicant as one of her guests on 24 June 2009. During those confrontations, the applicant confirmed her previous testimony, while the other people maintained that because they had been regular clients of the applicant’s for drugs in 2009, they had earlier given statements in her favour for fear of reprisals from her and officer Y.B., who had protected her. In fact, the two men confirmed that they had bought opium from the applicant on 24 June 2009, while the woman maintained that she had not visited the applicant on that date and had not witnessed any forced entry by the police.\n\n41.  V.J. (the applicant’s former partner) and A.B. (her brother), also questioned again in September 2011, confirmed their previous statements that they had witnessed a forced entry and assault on the applicant. Based on the case file, the second guest (the fourth person, who had earlier contended that he had witnessed the forced entry), was not questioned.\n\n42.  On 26 November 2011 the Kharkiv prosecutor’s office refused to reopen the criminal investigation into the applicant’s ill-treatment complaints for want of any evidence that the police officers had committed a crime. They referred, in particular, to the retraction of several witness statements and to the re-classification of the applicant’s injuries as minor in the latest medical report. They further pointed out that, according to the experts’ findings, all of the applicant’s external injuries could technically have been self-inflicted. Accordingly, she could have lied to the police about her illtreatment to avoid charges of drug dealing.\n\n43.  It appears that the applicant was not informed of the above decision in due time, as in 2012 the applicant’s lawyers unsuccessfully contacted the law-enforcement authorities to obtain information on whether there had been any progress in the proceedings.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION\n\n44.  The applicant complained that on two occasions in 2009 she had been subjected to police ill-treatment and that her complaints had not been properly investigated. She referred to Articles 3 and 13 of the Convention in respect of the above complaints.\n\n45.  The Court, which is master of the characterisation to be given in law to the facts of a case (see, among other authorities, Drozd v. Ukraine, no. 12174/03, § 49, 30 July 2009) finds that the complaints at issue fall to be examined under Article 3 of the Convention only, which reads as follows:\n\n“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”\n\nA.  First episode of alleged ill-treatment\n\n46.  The Government submitted that there had been no breach of Article 3, as there was no evidence that the applicant had been subjected to police illtreatment. They noted that, contrary to the applicant’s allegations, she had been neither ill-treated, nor detained on 31 January 2009. In their view, the applicant had ample opportunities to complain about the purported illtreatment and to document her injuries, if any, before 10 February 2009 (the date on which she had lodged her complaint with the prosecutor’s office). The applicant had failed to do so and to provide any evidence of illtreatment. Her relevant complaints had therefore been rightfully dismissed by the domestic authorities as unsubstantiated.\n\n47.  The applicant submitted that by lodging an ill-treatment complaint within a week of her release from unrecorded detention, she had acted promptly. She also submitted that her failure to document her injuries was due to a lack of appropriate instructions from the prosecutor’s office, which could not be held against her.\n\n48.  The Court notes that it has not been presented with any medical or other objective evidence that the applicant might have been ill-treated by the police in either January or February 2009. It further notes that her submissions before the Court concerning the timing of the ill-treatment are contradictory. While in her statement to the Court the applicant has indicated that she had been arrested on 31 January 2009 and detained until 2 February 2009, in her submissions to the Kyivskyy district prosecutor’s office she had indicated different dates (29-31 January 2009; see paragraph 10 above). The applicant has not explained this discrepancy to the Court. The Court considers that the applicant’s submissions are insufficiently consistent, detailed and corroborated by necessary evidence to raise an arguable claim that she might have been ill-treated by the police in January or February 2009.\n\n49.  The applicant’s complaints concerning the first episode of alleged illtreatment and lack of appropriate investigation of her relevant allegations must therefore be rejected as manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention.\n\nB.  Second episode of alleged ill-treatment\n\n1.  Admissibility\n\n50.  The Government have not filed any objections concerning the admissibility of the present complaint.\n\n51.  The Court considers that this complaint is not manifestly illfounded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\n2.  Merits\n\n52.  The applicant argued that on 24 June 2009 she had been assaulted by officer A.A. in her home, then detained without record until about 5.30 p.m. on 25 June 2009 and tortured with a view to extracting false confessions of drug dealing. She further noted that in order to give the appearance that she had not been detained, the police officers had on several occasions falsified her signature on the visitors’ log, as if she had been going in and out. Although the applicant had raised that argument before the investigative authorities, no graphologist had been asked to carry out an expert assessment. The applicant also submitted that in their decision of 26 November 2011 not to reinstitute criminal proceedings, the prosecutorial authorities had based their conclusion largely on testimony by the police officers implicated by her in the ill-treatment that had been taken at face value. In the applicant’s view, the domestic investigation of her ill-treatment complaint had been ineffective as it had not led to the punishment of A.A. and the other officers responsible for the offences of assault and torture.\n\n53.  The Government alleged that there had been no breach of Article 3. Notably, after an exhaustive investigation, including the questioning of numerous witnesses and the examination of medical and other evidence, the competent domestic authorities had concluded that there was no illtreatment case to answer. The Government maintained that the records showing that the applicant had not been detained on either 24 or 25 June 2009 and had simply visited the police station on those dates, were accurate. They also contested the applicant’s submissions that she had been taken to hospital by ambulance on 26 June 2009.\n\n.  The Court observes that on 25 June 2009, within several hours of the applicant’s encounter with the police, she was diagnosed with cerebral concussion and multiple contusions (see paragraph 15 above). Reviewing the facts of the present case in the light of its wellestablished jurisprudence (see, in particular, Kozinets v. Ukraine, no. 75520/01, §§ 51-54 and 59-60, 6 December 2007), the Court considers that the injuries she complained about raised an arguable ill-treatment claim, triggering an obligation on the part of the national authorities to investigate them.\n\n.  At the same time, regard being had to the evidential gaps and contradictions in the domestic case file and in the factual submissions by the parties (see, in particular, paragraphs 18-19, 40-41 and 52-53 above), the Court finds it impossible to establish beyond a reasonable doubt that the applicant’s injuries were caused as alleged. For the reasons set out below, the Court considers that the difficulty in determining the substance of the applicant’s allegation of ill-treatment stems from the authorities’ failure to investigate her complaint effectively (see, in particular, Timofejevi v. Latvia, no. 45393/04, § 81, 11 December 2012 with further references).\n\n.  The Court notes in this regard that while the applicant reported her injuries on 26 June 2009, that is, within two days of the purported illtreatment incident, the ensuing investigation, which lasted for nearly two and a half years, did not result in the identification of the persons responsible for the injuries or the circumstances in which they had been sustained.\n\n.  The initial reaction by the competent authorities to the applicant’s complaint, while not particularly urgent, was nevertheless not marked by any excessive delay. Notably, the first medical reports were organised within several weeks of the incident (see paragraphs 20-21 above); numerous further steps, including questioning the applicant and all the key witnesses and examining the documentary evidence, were taken within two months (see paragraphs 22-28 above). Formal criminal proceedings were instituted within two and a half months (see paragraph 29 above).\n\n.  However, it appears that once instituted, the criminal proceedings turned into a series of repeated questionings and assessments by medical experts, which were organised at rather important intervals and concerned largely the same set of questions (see paragraphs 20, 21, 32, 35, and 36 above). The Government did not present any documents which could justify the importance of ordering repeated assessments or the two-year delay in taking the proceedings forward.\n\n.  The Court further observes that proceedings were instituted against a group of “unidentified police officers”, in spite of the fact that the names of the four officers implicated by the applicant in the incident of 2425 June 2009 had been known from the outset of the proceedings. It appears that none of the aforementioned police officers was suspended from duty for the period of the investigation. In that connection, the Court would once again underline the importance of the suspension from duty of an agent under investigation or on trial on charges of ill-treatment, as well as his or her dismissal if convicted (Abdülsamet Yaman v. Turkey, no. 32446/96, § 55, 2 November 2004).\n\n60.  In conjunction with this, the Court notes that the final decision in the case – the decision of 26 November 2011 not to reinstitute the criminal proceedings – was taken on the basis of a possibility that the applicant’s bruises could technically have been self-inflicted, her cerebral injury had been “minor”, and that some of her witnesses had changed their testimony. The Court cannot overlook the fact that this decision does not provide any definite answer as to how the applicant’s injuries were inflicted. Likewise, it does not refute a probability (also mentioned by the medical experts) that the injuries in question could have resulted from police violence.\n\n61.  Lastly, the Court reiterates that the notion of an effective remedy in respect of an allegation of ill-treatment also entails effective access for the complainant to the investigation procedure (see Assenov and Others v. Bulgaria, 28 October 1998, § 117, Reports of Judgments and Decisions 1998VIII, and Savitskyy v. Ukraine, no. 38773/05, § 114, 26 July 2012). It appears that the applicant in the present case was not provided with satisfactory updates on the status of the investigation or given any access to documents (see paragraphs 31 and 43 above).\n\n. The Court notes that in the case of Kaverzin v. Ukraine, (no. 23893/03, §§ 173-180, 15 May 2012) it found that the reluctance of the authorities to ensure a prompt and thorough investigation of ill-treatment complaints by criminal suspects constituted a systemic problem within the meaning of Article 46 of the Convention. In view of the circumstances of the present case and its earlier case-law, the Court considers that the present case constitutes another regrettable example of that practice.\n\n63.  The Court’s findings in paragraphs 58-62 above are sufficient for it to conclude that there has been a breach of Article 3 of the Convention in respect of the second episode of the applicant’s purported ill-treatment.\n\nII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n64.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n65.  The applicant claimed 20,000 euros (EUR) in respect of nonpecuniary damage.\n\n66.  The Government maintained that the claim was exorbitant and unsubstantiated.\n\n67.  The Court, ruling on an equitable basis, awards the applicant EUR 7,500 in respect of non-pecuniary damage.\n\nB.  Costs and expenses\n\n68.  The applicant did not file any claim under this head. The Court therefore makes no award.\n\nC.  Default interest\n\n69.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\n1.  Declares the complaints concerning the second episode of purported police ill-treatment admissible and the remainder of the application inadmissible;\n\n2.  Holds that there has been a violation of Article 3 of the Convention;\n\n3.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of nonpecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n4.  Dismisses the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 14 March 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_827","text":"PROCEDURE\n\n1.  The case originated in an application (no. 3455/05) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by eleven non-United Kingdom nationals (“the applicants”), on 21 January 2005. The President acceded to the applicants’ request not to have their names disclosed (Rule 47 § 3 of the Rules of Court).\n\n2.  The applicants were represented by Birnberg Peirce and Partners, a firm of solicitors practising in London. The  Government (“the Government”) were represented by their Agent, Mr D. Walton, Foreign and Commonwealth Office.\n\n3.  The applicants alleged, in particular, that they had been unlawfully detained, in breach of Articles 3, 5 § 1 and 14 of the Convention and that they had not had adequate remedies at their disposal, in breach of Articles 5 § 4 and 13 of the Convention.\n\n4.  The application was allocated to the Fourth Section of the Court (Rule 52 § 1). On 11 September 2007 a Chamber of that Section, composed of Josep Casadevall, Nicolas Bratza, Giovanni Bonello, Kristaq Traja, Stanislav Pavlovschi, Lech Garlicki, Ljiljana Mijović, judges, and Lawrence Early, Section Registrar, relinquished jurisdiction in favour of the Grand Chamber, neither of the parties having objected to relinquishment (Article 30 of the Convention and Rule 72).\n\n5.  The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24.\n\n6.  The applicants and the Government each filed observations on the merits. In addition, third-party comments were received from two London-based non-governmental organisations, Liberty and Justice, which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2).\n\n7.  A hearing took place in public in the Human Rights Building, , on 21 May 2008 (Rule 59 § 3).\n\nThere appeared before the Court:\n\nThe Court heard addresses by Mr Emmerson and Mr Sales and their answers in reply to questions put by the Court.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n8.  The facts of the case, as submitted by the parties, may be summarised as follows.\n\nA.  The derogation\n\n9.  On 11 September 2001 four commercial aeroplanes were hijacked over the . Two of them were flown directly at the Twin Towers of the World Trade Centre and a third at the Pentagon, causing great loss of life and destruction to property. The Islamist extremist terrorist organisation al-Qaeda, led by Osama Bin Laden, claimed responsibility. The United Kingdom joined with the United States of America in military action in Afghanistan, which had been used as a base for al-Qaeda training camps.\n\n10.  The Government contended that the events of 11 September 2001 demonstrated that international terrorists, notably those associated with al-Qaeda, had the intention and capacity to mount attacks against civilian targets on an unprecedented scale. Further, given the loose-knit, global structure of al-Qaeda and its affiliates and their fanaticism, ruthlessness and determination, it would be difficult for the State to prevent future attacks. In the Government’s assessment, the United Kingdom, because of its close links with the United States of America, was a particular target. They considered that there was an emergency of a most serious kind threatening the life of the nation. Moreover, they considered that the threat came principally, but not exclusively, from a number of foreign nationals present in the United Kingdom, who were providing a support network for Islamist terrorist operations linked to al-Qaeda. A number of these foreign nationals could not be deported because of the risk that they would suffer treatment contrary to Article 3 of the Convention in their countries of origin.\n\n10.  The Government contended that the events of 11 September 2001 demonstrated that international terrorists, notably those associated with al-Qaeda, had the intention and capacity to mount attacks against civilian targets on an unprecedented scale. Further, given the loose-knit, global structure of al-Qaeda and its affiliates and their fanaticism, ruthlessness and determination, it would be difficult for the State to prevent future attacks. In the Government’s assessment, the United Kingdom, because of its close links with the United States of America, was a particular target. They considered that there was an emergency of a most serious kind threatening the life of the nation. Moreover, they considered that the threat came principally, but not exclusively, from a number of foreign nationals present in the United Kingdom, who were providing a support network for Islamist terrorist operations linked to al-Qaeda. A number of these foreign nationals could not be deported because of the risk that they would suffer treatment contrary to Article 3 of the Convention in their countries of origin.\n\n11.  On 11 November 2001 the Secretary of State made a derogation order under section 14 of the Human Rights Act 1998 (“the 1998 Act” – see paragraph 94 below) in which he set out the terms of a proposed notification to the Secretary General of the Council of Europe of a derogation pursuant to Article 15 of the Convention. On 18 December 2001 the Government lodged the derogation with the Secretary General of the Council of Europe. The derogation notice provided as follows:\n\n“Public emergency in the United Kingdom\n\nThe terrorist attacks in New York, Washington, D.C. and Pennsylvania on 11 September 2001 resulted in several thousand deaths, including many British victims and others from seventy different countries. In its Resolutions 1368 (2001) and 1373 (2001), the United Nations Security Council recognised the attacks as a threat to international peace and security.\n\nThe threat from international terrorism is a continuing one. In its Resolution 1373 (2001), the Security Council, acting under Chapter VII of the United Nations Charter, required all States to take measures to prevent the commission of terrorist attacks, including by denying safe haven to those who finance, plan, support or commit terrorist attacks.\n\nThere exists a terrorist threat to the  from persons suspected of involvement in international terrorism. In particular, there are foreign nationals present in the United Kingdom who are suspected of being concerned in the commission, preparation or instigation of acts of international terrorism, of being members of organisations or groups which are so concerned or of having links with members of such organisations or groups, and who are a threat to the national security of the United Kingdom.\n\nAs a result, a public emergency, within the meaning of Article 15 § 1 of the Convention, exists in the United Kingdom.\n\nThe Anti-terrorism, Crime and Security Act 2001\n\nAs a result of the public emergency, provision is made in the Anti-terrorism, Crime and Security Act 2001, inter alia, for an extended power to arrest and detain a foreign national which will apply where it is intended to remove or deport the person from the United Kingdom but where removal or deportation is not for the time being possible, with the consequence that the detention would be unlawful under existing domesticlaw powers. The extended power to arrest and detain will apply where the Secretary of State issues a certificate indicating his belief that the person’s presence in the United Kingdom is a risk to national security and that he suspects the person of being an international terrorist. That certificate will be subject to an appeal to the Special Immigration Appeals Commission (‘SIAC’), established under the Special Immigration Appeals Commission Act 1997, which will have power to cancel it if it considers that the certificate should not have been issued. There will be an appeal on a point of law from a ruling by SIAC. In addition, the certificate will be reviewed by SIAC at regular intervals. SIAC will also be able to grant bail, where appropriate, subject to conditions. It will be open to a detainee to end his detention at any time by agreeing to leave the .\n\nThe extended power of arrest and detention in the Anti-terrorism, Crime and Security Act 2001 is a measure which is strictly required by the exigencies of the situation. It is a temporary provision which comes into force for an initial period of fifteen months and then expires unless renewed by Parliament. Thereafter, it is subject to annual renewal by Parliament. If, at any time, in the Government’s assessment, the public emergency no longer exists or the extended power is no longer strictly required by the exigencies of the situation, then the Secretary of State will, by order, repeal the provision.\n\nDomestic-law powers of detention (other than under the Anti-terrorism, Crime and Security Act 2001)\n\nThe Government has powers under the Immigration Act 1971 (‘the 1971 Act’) to remove or deport persons on the ground that their presence in the United Kingdom is not conducive to the public good on national security grounds. Persons can also be arrested and detained under Schedules 2 and 3 to the 1971 Act pending their removal or deportation. The courts in the United Kingdom have ruled that this power of detention can only be exercised during the period necessary, in all the circumstances of the particular case, to effect removal and that, if it becomes clear that removal is not going to be possible within a reasonable time, detention will be unlawful (R. v. Governor of Durham Prison, ex parte Singh [1984] All ER 983).\n\nArticle 5 § 1 (f) of the Convention\n\nIt is well established that Article 5 § 1 (f) permits the detention of a person with a view to deportation only in circumstances where ‘action is being taken with a view to deportation’ (Chahal v. the United Kingdom (1996) 23 EHRR 413 at paragraph 112). In that case the European Court of Human Rights indicated that detention will cease to be permissible under Article 5 § 1 (f) if deportation proceedings are not prosecuted with due diligence and that it was necessary in such cases to determine whether the duration of the deportation proceedings was excessive (paragraph 113).\n\nIn some cases, where the intention remains to remove or deport a person on national security grounds, continued detention may not be consistent with Article 5 § 1 (f) as interpreted by the Court in the Chahal case. This may be the case, for example, if the person has established that removal to their own country might result in treatment contrary to Article 3 of the Convention. In such circumstances, irrespective of the gravity of the threat to national security posed by the person concerned, it is well established that Article 3 prevents removal or deportation to a place where there is a real risk that the person will suffer treatment contrary to that Article. If no alternative destination is immediately available then removal or deportation may not, for the time being, be possible even though the ultimate intention remains to remove or deport the person once satisfactory arrangements can be made. In addition, it may not be possible to prosecute the person for a criminal offence given the strict rules on the admissibility of evidence in the criminal justice system of the  and the high standard of proof required.\n\nDerogation under Article 15 of the Convention\n\nThe Government has considered whether the exercise of the extended power to detain contained in the Anti-terrorism, Crime and Security Act 2001 may be inconsistent with the obligations under Article 5 § 1 of the Convention. As indicated above, there may be cases where, notwithstanding a continuing intention to remove or deport a person who is being detained, it is not possible to say that ‘action is being taken with a view to deportation’ within the meaning of Article 5 § 1 (f) as interpreted by the Court in the Chahal case. To the extent, therefore, that the exercise of the extended power may be inconsistent with the United Kingdom’s obligations under Article 5 § 1, the Government has decided to avail itself of the right of derogation conferred by Article 15 § 1 of the Convention and will continue to do so until further notice.”\n\nThe derogation notice then set out the provisions of Part 4 of the Anti-terrorism, Crime and Security Bill 2001.\n\nThe derogation notice then set out the provisions of Part 4 of the Anti-terrorism, Crime and Security Bill 2001.\n\n12.  On 12 November 2001 the Anti-terrorism, Crime and Security Bill, containing the clauses which were to eventually become Part 4 of the Anti-terrorism, Crime and Security Act 2001 (“the 2001 Act” – see paragraph 90 below), was introduced into the House of Commons. The Bill was passed by Parliament in two weeks, with three days of debate on the floor of the House of Commons set aside for its 125 clauses in a restrictive programming motion, prompting both the Joint Committee of Human Rights and the Home Affairs Select Committee to complain of the speed with which they were being asked to consider the matter.\n\n13.  The 2001 Act came into force on 4 December 2001. During the lifetime of the legislation, sixteen individuals, including the present eleven applicants, were certified under section 21 and detained. The first six applicants were certified on 17 December 2001 and taken into detention shortly thereafter. The seventh applicant was certified and detained in early February 2002; the ninth applicant on 22 April 2002; the eighth applicant on 23 October 2002; the tenth applicant on 14 January 2003; and the eleventh applicant was certified on 2 October 2003 and kept in detention, having previously been held under other legislation.\n\nB.  The derogation proceedings\n\n14.  In proceedings before the Special Immigration Appeals Commission (SIAC – see paragraphs 91-93 below), the first seven applicants challenged the legality of the derogation, claiming that their detention under the 2001 Act was in breach of their rights under Articles 3, 5, 6 and 14 of the Convention. Each, in addition, challenged the Secretary of State’s decision to certify him as an international terrorist.\n\n15.  On 30 July 2002, having examined both open and closed material and heard submissions from special advocates in addition to counsel for the parties and for the third party, Liberty, SIAC delivered its ruling on the legality of the derogation. It held that, on the basis of the open material, it was satisfied that the threat from al-Qaeda had created a public emergency threatening the life of the nation, within the meaning of Article 15 of the Convention, and that the closed material confirmed this view.\n\nSIAC further held that the fact that the objective of protecting the public from international terrorists could possibly have been achieved by alternative methods did not demonstrate that the measures actually adopted were not strictly necessary. Moreover, since the purpose of the detention was the protection of the , the fact that the detainee was at liberty to leave demonstrated that the measures were properly tailored to the state of emergency.\n\nSIAC rejected the applicants’ complaints under Article 3 of the Convention. It held that, in so far as they related to conditions of detention, the applicants should bring proceedings in the ordinary civil courts, and that SIAC had no jurisdiction to determine such a complaint as it was not a “derogation issue”. It further saw no merit in the applicants’ argument that detention for an indefinite period was contrary to Article 3. On this point, SIAC held that the detention was not indefinite, since it was governed by the time-limits of the 2001 Act itself and since the 2001 Act provided that each applicant’s certification was subject to automatic review by SIAC every six months. In any event, the mere fact that no term had yet been fixed for preventive detention did not give rise to a breach of Article 3.\n\nSIAC did not accept that Article 6 of the Convention applied to the certification process. The certification of each applicant as a suspected international terrorist was not a “charge” but instead a statement of suspicion and the proceedings before SIAC were not for the determination of a criminal charge. Furthermore, there was no relevant civil right at issue and Article 6 did not apply in its civil limb either.\n\nSIAC did, however, rule that the derogation was unlawful because the relevant provisions of the 2001 Act unjustifiably discriminated against foreign nationals, in breach of Article 14 of the Convention. The powers of the 2001 Act could properly be confined to non-nationals only if the threat stemmed exclusively, or almost exclusively, from non-nationals and the evidence did not support that conclusion. In paragraphs 94-95 of its judgment, SIAC held:\n\n“94.  If there is to be an effective derogation from the right to liberty enshrined in Article 5 in respect of suspected international terrorists – and we can see powerful arguments in favour of such a derogation – the derogation ought rationally to extend to all irremovable suspected international terrorists. It would properly be confined to the alien section of the population only if, as [counsel for the appellants] contends, the threat stems exclusively or almost exclusively from that alien section.\n\n95.  But the evidence before us demonstrates beyond argument that the threat is not so confined. There are many British nationals already identified – mostly in detention abroad – who fall within the definition of ‘suspected international terrorists’, and it was clear from the submissions made to us that in the opinion of the [Secretary of State] there are others at liberty in the United Kingdom who could be similarly defined. In those circumstances we fail to see how the derogation can be regarded as other than discriminatory on the grounds of national origin.”\n\nSIAC thus quashed the derogation order of 11 November 2001 and issued a declaration of incompatibility in respect of section 23 of the 2001 Act under section 4 of the 1998 Act (see paragraph 94 below).\n\nIt adjourned the first seven applicants’ individual appeals against certification (see paragraphs 24-69 below) pending the outcome of the Secretary of State’s appeal and the applicants’ cross-appeal on points of law against the above ruling.\n\n16.  On 25 October 2002 the Court of Appeal delivered its judgment (A. and Others v. Secretary of State for the Home Department [2002] EWCA Civ 1502).\n\nIt held that SIAC had been entitled to find that there was a public emergency threatening the life of the nation. However, contrary to the view of SIAC, it held that the approach adopted by the Secretary of State could be objectively justified. There was a rational connection between the detention of non-nationals who could not be deported because of fears for their safety, and the purpose which the Secretary of State wished to achieve, which was to remove non-nationals who posed a threat to national security. Moreover, the applicants would be detained for no longer than was necessary before they could be deported or until the emergency was resolved or they ceased to be a threat to the country’s safety. There was no discrimination contrary to Article 14 of the Convention, because British nationals suspected of being terrorists were not in an analogous situation to similarly suspected foreign nationals who could not be deported because of fears for their safety. Such foreign nationals did not have a right to remain in the country but only a right, for the time being, not to be removed for their own safety. The Court of Appeal added that it was well established in international law that, in some situations, States could distinguish between nationals and non-nationals, especially in times of emergency. It further concluded that Parliament had been entitled to limit the measures proposed so as to affect only foreign nationals suspected of terrorist links because it was entitled to reach the conclusion that detention of only the limited class of foreign nationals with which the measures were concerned was, in the circumstances, “strictly required” within the meaning of Article 15 of the Convention.\n\nThe Court of Appeal agreed with SIAC that the proceedings to appeal against certification were not “criminal” within the meaning of Article 6 § 1 of the Convention. It found, however, that the civil limb of Article 6 applied but that the proceedings were as fair as could reasonably be achieved. It further held that the applicants had not demonstrated that their detention amounted to a breach of Article 3 of the Convention.\n\nThe Court of Appeal agreed with SIAC that the proceedings to appeal against certification were not “criminal” within the meaning of Article 6 § 1 of the Convention. It found, however, that the civil limb of Article 6 applied but that the proceedings were as fair as could reasonably be achieved. It further held that the applicants had not demonstrated that their detention amounted to a breach of Article 3 of the Convention.\n\n17.  The applicants were granted leave to appeal to the House of Lords, which delivered its judgment on 16 December 2004 ([2004] UKHL 56).\n\nA majority of the Law Lords, expressly or impliedly, found that the applicants’ detention under Part 4 of the 2001 Act did not fall within the exception to the general right of liberty set out in Article 5 § 1 (f) of the Convention (see Lord Bingham, at paragraphs 8-9; Lord Hoffman, at paragraph 97; Lord Hope, at paragraphs 103-05; Lord Scott, at paragraph 155; Lord Rodger, at paragraph 163; Baroness Hale, at paragraph 222). Lord Bingham summarised the position in this way:\n\n“9.  ... A person who commits a serious crime under the criminal law of this country may of course, whether a national or a non-national, be charged, tried and, if convicted, imprisoned. But a non-national who faces the prospect of torture or inhuman treatment if returned to his own country, and who cannot be deported to any third country, and is not charged with any crime, may not under Article 5 § 1 (f) of the Convention and Schedule 3 to the Immigration Act 1971 be detained here even if judged to be a threat to national security.”\n\n“9.  ... A person who commits a serious crime under the criminal law of this country may of course, whether a national or a non-national, be charged, tried and, if convicted, imprisoned. But a non-national who faces the prospect of torture or inhuman treatment if returned to his own country, and who cannot be deported to any third country, and is not charged with any crime, may not under Article 5 § 1 (f) of the Convention and Schedule 3 to the Immigration Act 1971 be detained here even if judged to be a threat to national security.”\n\n18.  The House of Lords further held, by eight to one (Lords Bingham and Scott with considerable hesitation), that SIAC’s conclusion that there was a public emergency threatening the life of the nation should not be displaced. Lord Hope assessed the evidence as follows:\n\n“118.  There is ample evidence within [the open] material to show that the government were fully justified in taking the view in November 2001 that there was an emergency threatening the life of the nation. ... [The] United Kingdom was at danger of attacks from the al-Qaeda network which had the capacity through its associates to inflict massive casualties and have a devastating effect on the functioning of the nation. This had been demonstrated by the events of 11 September 2001 in New York, Pennsylvania and . There was a significant body of foreign nationals in the United Kingdom who had the will and the capability of mounting coordinated attacks here which would be just as destructive to human life and to property. There was ample intelligence to show that international terrorist organisations involved in recent attacks and in preparation for other attacks of terrorism had links with the , and that they and others posed a continuing threat to this country. There was a growing body of evidence showing preparations made for the use of weapons of mass destruction in this campaign. ... [It] was considered [by the Home Office] that the serious threats to the nation emanated predominantly, albeit not exclusively, and more immediately from the category of foreign nationals.\n\n119.  The picture which emerges clearly from these statements is of a current state of emergency. It is an emergency which is constituted by the threat that these attacks will be carried out. It threatens the life of the nation because of the appalling consequences that would affect us all if they were to occur here. But it cannot yet be said that these attacks are imminent. On 15 October 2001 the Secretary of State said in the House of Commons that there was no immediate intelligence pointing to a specific threat to the United Kingdom: see Hansard (HC Debates, col 925). On 5 March 2002 this assessment of the position was repeated in the government’s response to the Second Report of the House of Commons Select Committee on Defence on the Threat from Terrorism (HC 348, para 13) where it was stated that it would be wrong to say that there was evidence of a particular threat. I would not conclude from the material which we have seen that there was no current emergency. But I would conclude that the emergency which the threats constitute is of a different kind, or on a different level, from that which would undoubtedly ensue if the threats were ever to materialise. The evidence indicates that the latter emergency cannot yet be said to be imminent. It has to be recognised that, as the attacks are likely to come without warning, it may not be possible to identify a stage when they can be said to be imminent. This is an important factor, and I do not leave it out of account. But the fact is that the stage when the nation has to face that kind of emergency, the emergency of imminent attack, has not been reached.”\n\nLord Hoffman, who dissented, accepted that there was credible evidence of a threat of serious terrorist attack within the United Kingdom, but considered that it would not destroy the life of the nation, since the threat was not so fundamental as to threaten “our institutions of government or our existence as a civil community”. He concluded that “the real threat to the life of the nation ... comes not from terrorism but from laws such as these”.\n\nLord Hoffman, who dissented, accepted that there was credible evidence of a threat of serious terrorist attack within the United Kingdom, but considered that it would not destroy the life of the nation, since the threat was not so fundamental as to threaten “our institutions of government or our existence as a civil community”. He concluded that “the real threat to the life of the nation ... comes not from terrorism but from laws such as these”.\n\n19.  The other Law Lords (Lords Bingham, Nicholls, Hope, Scott, Rodger, Carswell and Baroness Hale, with Lord Walker dissenting) rejected the Government’s submission that it was for Parliament and the executive, rather than the courts, to judge the response necessary to protect the security of the public. Lord Bingham expressed his view as follows:\n\n“42.  It follows from this analysis that the appellants are in my opinion entitled to invite the courts to review, on proportionality grounds, the derogation order and the compatibility with the Convention of section 23 [of the 2001 Act] and the courts are not effectively precluded by any doctrine of deference from scrutinising the issues raised. It also follows that I do not accept the full breadth of the Attorney-General’s submissions. I do not in particular accept the distinction which he drew between democratic institutions and the courts. It is of course true that the judges in this country are not elected and are not answerable to Parliament. It is also of course true ... that Parliament, the executive and the courts have different functions. But the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic State, a cornerstone of the rule of law itself. The Attorney-General is fully entitled to insist on the proper limits of judicial authority, but he is wrong to stigmatise judicial decision-making as in some way undemocratic. It is particularly inappropriate in a case such as the present in which Parliament has expressly legislated in section 6 of the 1998 Act to render unlawful any act of a public authority, including a court, incompatible with a Convention right; has required courts (in section 2) to take account of relevant Strasbourg jurisprudence; has (in section 3) required courts, so far as possible, to give effect to Convention rights and has conferred a right of appeal on derogation issues. The effect is not, of course, to override the sovereign legislative authority of the Queen in Parliament, since if primary legislation is declared to be incompatible the validity of the legislation is unaffected (section 4(6)) and the remedy lies with the appropriate minister (section 10), who is answerable to Parliament. The 1998 Act gives the courts a very specific, wholly democratic, mandate.”\n\n20.  The majority therefore examined whether the detention regime under Part 4 of the 2001 Act was a proportionate response to the emergency situation, and concluded that it did not rationally address the threat to security and was a disproportionate response to that threat. They relied on three principal grounds: firstly, that the detention scheme applied only to non-nationals suspected of international terrorism and did not address the threat which came from United Kingdom nationals who were also so suspected; secondly, that it left suspected international terrorists at liberty to leave the United Kingdom and continue their threatening activities abroad; thirdly, that the legislation was drafted too broadly, so that it could, in principle, apply to individuals suspected of involvement with international terrorist organisations which did not fall within the scope of the derogation.\n\nOn the first point, Lord Bingham emphasised that SIAC’s finding that the terrorist threat was not confined to non-nationals had not been challenged. Since SIAC was the responsible fact-finding tribunal, it was unnecessary to examine the basis for its finding, but there was evidence that “upwards of a thousand individuals from the UK are estimated on the basis of intelligence to have attended training camps in Afghanistan in the last five years”; that some British citizens were said to have planned to return from Afghanistan to the United Kingdom; and that the background material relating to the applicants showed the high level of involvement of British citizens and those otherwise connected with the United Kingdom in the terrorist networks. Lord Bingham continued:\n\n“33.  ... It is plain that sections 21 and 23 of the 2001 Act do not address the threat presented by UK nationals since they do not provide for the certification and detention of  nationals. It is beside the point that other sections of the 2001 Act and the 2000 Act do apply to  nationals, since they are not the subject of derogation, are not the subject of complaint and apply equally to foreign nationals. Yet the threat from  nationals, if quantitatively smaller, is not said to be qualitatively different from that from foreign nationals. It is also plain that sections 21 and 23 do permit a person certified and detained to leave the United Kingdom and go to any other country willing to receive him, as two of the appellants did when they left for Morocco and France respectively ... Such freedom to leave is wholly explicable in terms of immigration control: if the British authorities wish to deport a foreign national but cannot deport him to country ‘A’ because of Chahal their purpose is as well served by his voluntary departure for country ‘B’. But allowing a suspected international terrorist to leave our shores and depart to another country, perhaps a country as close as France, there to pursue his criminal designs, is hard to reconcile with a belief in his capacity to inflict serious injury to the people and interests of this country. ...\n\n...\n\n35.  The fifth step in the appellants’ argument permits of little elaboration. But it seems reasonable to assume that those suspected international terrorists who are  nationals are not simply ignored by the authorities. When [the fifth applicant] was released from prison by SIAC on bail ... it was on condition (among other things) that he wear an electronic monitoring tag at all times; that he remain at his premises at all times; that he telephone a named security company five times each day at specified times; that he permit the company to install monitoring equipment at his premises; that he limit entry to his premises to his family, his solicitor, his medical attendants and other approved persons; that he make no contact with any other person; that he have on his premises no computer equipment, mobile telephone or other electronic communications device; that he cancel the existing telephone link to his premises; and that he install a dedicated telephone link permitting contact only with the security company. The appellants suggested that conditions of this kind, strictly enforced, would effectively inhibit terrorist activity. It is hard to see why this would not be so.\n\n36.  In urging the fundamental importance of the right to personal freedom, as the sixth step in their proportionality argument, the appellants were able to draw on the long libertarian tradition of English law, dating back to Chapter 39 of Magna Carta 1215, given effect in the ancient remedy of habeas corpus, declared in the Petition of Right 1628, upheld in a series of landmark decisions down the centuries and embodied in the substance and procedure of the law to our own day. ... In its treatment of Article 5 of the European Convention, the European Court also has recognised the prime importance of personal freedom. ...\n\n...\n\n43.  The appellants’ proportionality challenge to the order and section 23 is, in my opinion, sound, for all the reasons they gave and also for those given by the European Commissioner for Human Rights and the Newton Committee. The Attorney-General could give no persuasive answer.”\n\n21.  In addition, the majority held that the 2001 Act was discriminatory and inconsistent with Article 14 of the Convention, from which there had been no derogation. The applicants were in a comparable situation to United Kingdom nationals suspected of being international terrorists, with whom they shared the characteristics of being irremovable from the  and being considered a threat to national security. Since the detention scheme was aimed primarily at the protection of the  from terrorist attack, rather than immigration control, there was no objective reason to treat the applicants differently on grounds of their nationality or immigration status.\n\n22.  Although the applicants’ appeal had included complaints under Articles 3 and 16 of the Convention, the House of Lords did not consider it necessary to determine these complaints since it had found the derogation to be unlawful on other grounds.\n\n23.  It granted a quashing order in respect of the derogation order, and a declaration under section 4 of the 1998 Act (see paragraph 94 below) that section 23 of the 2001 Act was incompatible with Articles 5 § 1 and 14 of the Convention in so far as it was disproportionate and permitted discriminatory detention of suspected international terrorists.\n\nC.  The certification proceedings: the “generic” judgment and appeals\n\nC.  The certification proceedings: the “generic” judgment and appeals\n\n24.  Meanwhile, SIAC’s hearing of the applicants’ individual appeals against certification commenced in May 2003, after the Court of Appeal had given judgment in the derogation proceedings but before the above judgment of the House of Lords.\n\n25.  For the purposes of each appeal to SIAC, the Secretary of State filed an “open statement” summarising the facts connected to the decision to certify each applicant and as much of the supporting evidence which the Secretary of State considered could be disclosed without giving rise to any risk to national security. A further, “closed” statement of facts and evidence was also placed before SIAC in each case.\n\n25.  For the purposes of each appeal to SIAC, the Secretary of State filed an “open statement” summarising the facts connected to the decision to certify each applicant and as much of the supporting evidence which the Secretary of State considered could be disclosed without giving rise to any risk to national security. A further, “closed” statement of facts and evidence was also placed before SIAC in each case.\n\n26.  On 29 October 2003 SIAC issued a “generic” judgment in which it made a number of findings of general application to all the appeals against certification.\n\nAs regards preliminary issues, it found, inter alia, that it had jurisdiction to hear an appeal against certification even where the person certified had left the  and the certificate had been revoked. It held that the tests whether reasonable grounds existed for suspicion that a person was a “terrorist” and for belief that his presence in the  was a risk to national security, within the meaning of section 21 of the 2001 Act, fell “some way short of proof even on the balance of probabilities”. It further held that “reasonable grounds could be based on material which would not be admissible in a normal trial in court, such as hearsay evidence of an unidentified informant”. The weight that was to be attached to any particular piece of evidence was a matter for consideration in the light of all the evidence viewed as a whole. Information which might have been obtained by torture should not automatically be excluded, but the court should have regard to any evidence about the manner in which it was obtained and judge its weight and reliability accordingly.\n\nSIAC held that the detention provisions in the 2001 Act should be interpreted in the light of the terms of the derogation. The threat to the life of the nation was not confined to activities within the United Kingdom, because the nation’s life included its diplomatic, cultural and tourism-related activities abroad. Moreover, attacks on the United Kingdom’s allies could also create a risk to the United Kingdom, given the interdependence of countries facing a global terrorist threat. The derogation identified the threat as emanating from al-Qaeda and its associates. It was therefore necessary, in respect of both the “national security” and the “international terrorist” limbs of section 21 of the 2001 Act, to show reasonable grounds for suspicion that the person certified was part of a group which was connected, directly or indirectly, to al-Qaeda. Even if the main focus of the group in question was a national struggle, if it backed al-Qaeda for a part of its agenda and the individual nonetheless supported the group, it was a legitimate inference that he was supporting and assisting al-Qaeda.\n\nSIAC also made a number of findings of fact of general application concerning organisations alleged by the Secretary of State to be linked to alQaeda. These findings were based on both “open” and “closed” material. Thus, it held, for example, that the Salafist Group for Call and Combat (GSPC), which was formed in Algeria in 1998, was an international terrorist organisation linked to al-Qaeda through training and funding, but that the earlier Algerian organisation, Armed Islamic Group (GIA), was not. The Egyptian Islamic Jihad (EIJ) was either part of al-Qaeda or very closely linked to it. The Chechen Arab Mujahaddin was an international terrorist group, pursuing an anti-West agenda beyond the struggle for Chechen independence, with close links to al-Qaeda. SIAC also identified as falling within the terms of the derogation a group of primarily Algerian extremists centred around Abu Doha, an Algerian who had lived in the  from about 1999. It was alleged that Abu Doha had held a senior role in training camps in Afghanistan and had many contacts in al-Qaeda, including a connection with the Frankfurt cell which had been accused of plotting to bomb the Strasbourg Christmas Market in December 2000. Abu Doha was arrested in February 2001, following an extradition request from the , but his group remained active.\n\n27.  The applicants appealed against SIAC’s ruling that evidence which might have been obtained by torture was admissible. For the purposes of the appeal, the parties agreed that the proceedings before SIAC to challenge certification fell within Article 5 § 4 of the Convention and as such had to satisfy the basic requirements of a fair trial. It was not, therefore, necessary to decide whether Article 6 also applied and the issue was left open.\n\nOn 11 August 2004 the Court of Appeal, by a majority, upheld SIAC’s decision ([2004] EWCA Civ 1123).\n\nOn 8 December 2005 the House of Lords held unanimously that the evidence of a suspect or witness which had been obtained by torture had long been regarded as inherently unreliable, unfair, offensive to ordinary standards of humanity and decency and incompatible with the principles on which courts should administer justice. It followed that such evidence might not lawfully be admitted against a party to proceedings in a  court, irrespective of where, by whom and on whose authority the torture had been inflicted. Since the person challenging certification had only limited access to the material advanced against him in the proceedings before SIAC, he could not be expected to do more than raise a plausible reason that material might have been so obtained and it was then for SIAC to initiate the relevant enquiries. The House of Lords therefore allowed the applicants’ appeals and remitted each case to SIAC for reconsideration ([2005] UKHL 71).\n\n28.  SIAC’s conclusions as regards each applicant’s case are set out in paragraphs 29-69 below. Of the sixteen individuals, including the eleven applicants, detained under Part 4 of the 2001 Act, one had his certificate cancelled by SIAC.\n\nD.  The certification proceedings: the individual determinations\n\n1.  The first applicant\n\n1.  The first applicant\n\n29.  The first applicant was born in a Palestinian refugee camp in Jordan, is stateless, and was granted indefinite leave to remain in the United Kingdom in 1997. On 17 December 2001 the first applicant was certified by the Secretary of State as a suspected international terrorist under section 21 of the 2001 Act. On 18 December 2001 a deportation order was made on the same grounds.\n\n30.  The first applicant was taken into detention on 19 December 2001. He subsequently appealed to SIAC against certification and the decision to make a deportation order. On 24 July 2002 he was transferred to Broadmoor Secure Mental Hospital.\n\n31.  The first applicant and his representatives were served with the Secretary of State’s “open” material, including a police report which showed that large sums of money had moved through the four bank accounts in his name. SIAC and the special advocate instructed on behalf of the first applicant were in addition presented with “closed” evidence. Assisted by an interpreter, the first applicant gave oral evidence to SIAC and called one witness to testify to his good character. He also filed four medical reports concerning his mental health. SIAC observed in its judgment of 29 October 2003:\n\n“We are acutely aware that the open material relied on against the Applicant is very general and that the case depends in the main upon assertions which are largely unsupported. The central allegation is that he has been involved in fund-raising and distribution of those funds for terrorist groups with links to al-Qaeda. It is also said that he has procured false documents and helped facilitate the movement of jihad volunteers to training camps in . He is said to be closely involved with senior extremists and associates of Osama Bin Laden both in the  and overseas. His case is and always has been that he is concerned and concerned only with welfare projects, in particular a school in Afghanistan for the children of Arab speakers there and projects such as construction of wells and provision of food to communities in . He has also raised money for refugees from . Any contact with so-called extremists has been in that context and he had no reason to believe they were terrorists or were interested in terrorism.\n\nWe recognise the real difficulties that the Appellant has in making this appeal. We have made appropriate allowance for those difficulties and his mental problems. We note [his counsel’s] concerns that there has been gross oversimplification by the Security Service of the situation which is, he submits, highly complex and a tendency to assume that any devout Muslim who believed that the way of life practised by the Taliban in Afghanistan was the true way to follow must be suspect. We note, too, that initially the Respondent asserted that all the Appellant’s fund-raising activities were for the purpose of assisting terrorism and that it was only when evidence was produced by the Appellant to show that there were legitimate charitable objectives that he accepted that at least some money was raised for those purposes. In so far as connections with named individuals are relied on, we bear in mind that some of them, who are alleged to be involved in terrorism, have appeals pending ... and that allegations against others have not been tested nor have alleged links been able to be explained.\n\n...\n\n[The first applicant’s counsel] accepted, as he had to, the unreliability of the Applicant’s evidence about his movements in the 1990s, but asked us not to hold it against him because of his mental state. We do not accept that we can do that. The lies were a deliberate attempt to rebut the allegation that he had been a mujahid in , saying that he spent three years in a Jordanian prison. There was an overstatement by the police of the amount involved through the bank account. This we accept, but there was still a substantial sum of money going through them. And [the applicant’s counsel] submitted that the allegation was that he had provided false documents for others not for himself. Thus his false  passport was not material. It does however show an ability to obtain a false passport. [The applicant’s counsel] attacked the reliability of the intelligence relied on against the Appellant since it was only belatedly accepted that he had been involved in genuine charitable work and that some of the money going through his account and raised by him was for such a purpose. We recognise the danger that all activities by one who is under suspicion may be regarded as themselves suspicious and that there may not be a fair consideration of all material to see whether it truly does support the suspicion. We have considered all the material, in particular that which is closed, with that danger in mind.\n\nAs we have said, the open evidence taken in isolation cannot provide the reasons why we are dismissing this appeal and we sympathise with [the first applicant’s counsel’s] concerns that he had a most difficult task. We were not impressed with the Appellant as a witness, even making all allowances for his mental state and the difficulties under which he was labouring. He was often evasive and vague and has admittedly told lies in relation to his movements in the 1990s. His explanations about some of the transactions recorded in his bank accounts we have found difficult to follow or accept. We should say that we do not consider that the Respondent’s case is significantly advanced by what has been said about the Appellant’s involvement with Algeria or Chechnya; the case depends essentially on the evidence about the Appellant’s dealings with Afghanistan and with terrorists known to have links with al-Qaeda.\n\nIt is clear that the Appellant was a very successful fund-raiser and, more importantly, that he was able to get the money to Afghanistan. Whatever his problems, he was able to and was relied on to provide an efficient service. His explanations both of who were the well known terrorists whose children were at the school and of the various of the more substantial payments shown in the bank accounts are unsatisfactory. He was vague where, having regard to the allegations made against him, we would have expected some detail.\n\n...\n\nWe have considered all the evidence critically. The closed material confirms our view that the certification in this case was correct. There is both a reasonable belief that the Appellant’s presence in the United Kingdom is a risk to national security and a reasonable suspicion that he is a terrorist within the meaning of section 21 of the 2001 Act. This appeal is accordingly dismissed.”\n\n32.  In accordance with the terms of the 2001 Act, the first applicant’s case was reviewed by SIAC six months later. In its judgment of 2 July 2004, SIAC found that:\n\n“The updated open generic material ... continues to show that there is a direct terrorist threat to the United Kingdom from a group or groups of largely North African Islamic extremists, linked in various ways to al-Qaeda.\n\nAlthough some of his contacts have been detained, the range of extremists prominent in various groups was such that he would have no difficulty and retains the will and ability to add his considerable experience of logistic support to them in pursuit of the extremist Islamic agenda in the UK. The certificate is properly maintained.”\n\n33.  SIAC reviewed the case again on 15 December 2004 and again found that the certificate should be maintained.\n\n2.  The second applicant\n\n34.  The second applicant is a citizen of  born on 28 February 1963. He entered the  as a visitor in 1985 and was granted leave to remain as a student. On 21 June 1988 he was granted indefinite leave to remain on the basis of his marriage to a British citizen, which subsequently broke down. In 1990 and again in 1997 he applied for naturalisation, but no decision was made on those applications. In 2000 he remarried another British citizen, with whom he has a child.\n\n34.  The second applicant is a citizen of  born on 28 February 1963. He entered the  as a visitor in 1985 and was granted leave to remain as a student. On 21 June 1988 he was granted indefinite leave to remain on the basis of his marriage to a British citizen, which subsequently broke down. In 1990 and again in 1997 he applied for naturalisation, but no decision was made on those applications. In 2000 he remarried another British citizen, with whom he has a child.\n\n35.  On 17 December 2001 the second applicant was certified by the Secretary of State as a suspected international terrorist under section 21 of the 2001 Act. A deportation order was made on the same date. The second applicant was taken into detention on 19 December 2001. He appealed against the certification and deportation order but, nonetheless, elected to leave the United Kingdom for  on 22 December 2001. He pursued his appeals from .\n\n36.  In its judgment of 29 October 2003, SIAC summarised the “open” case against the second applicant as follows:\n\n“...\n\n(1)  he has links with both the GIA and the GSPC [Algerian terrorist groups: see paragraph 26 above] and is a close associate of a number of Islamic extremists with links to al-Qaeda and/or Bin Laden.\n\n(2)  he has been concerned in the preparation and/or instigation of acts of international terrorism by procuring high-tech equipment (including communications equipment) for the GSPC and/or Islamic extremists in Chechnya led by Ibn Khattab and has also procured clothing for the latter group.\n\n(3)  he has supported one or more of the GIA, the GSPC and the Ibn Khattab faction in Chechnya by his involvement in fraud perpetrated to facilitate the funding of extremists and storing and handling of propaganda videos promoting the jihad.\n\n9.  The Secretary of State’s open case expands on those allegations and further indicates the use of at least one alias and a pattern of association with individuals known or assessed to be involved in terrorism [five individuals were identified]. All these were described by [counsel for the Secretary of State] as ‘known Algerian Islamic extremists’.\n\n10.  Witness B [for the Secretary of State] confirmed that the allegation against [the second applicant] is that he is a member of a network, rather than a member of any particular organisation such as the GSPC or the GIA.”\n\nSIAC continued by explaining the findings it had made against the applicant:\n\n“Like the other Appellants, [the second applicant] is not charged in these proceedings with a series of individual offences. The issue is whether, taking the evidence as a whole, it is reasonable to suspect him of being an international terrorist (as defined). When we look at the material before us, as we do, we treat it cumulatively. It might be that the material relating to fraud alone, or to clothing alone, or to videos alone, or to associations, would not by itself show that a person was in any way involved in terrorism or its support. But we need to assess the situation when various factors are found combined in the same person. Those factors are as follows. First is his involvement in acts of fraud, of which he must be aware but of which he seeks to provide no explanation, excusing himself apparently on the ground that he is not aware which particular act or acts the Secretary of State has in mind. Secondly, he has been involved in raising consciousness (and hence in raising money) about the struggle in Chechnya, and has been doing so in a specifically Islamic (rather than a merely humanitarian) context, using and distributing films which, according to the evidence before us, tend to be found in extremist communities. In the generic evidence, we have dealt with the Chechen Arab Mujahaddin and the significance of support for it which we accepted is given in full knowledge of its wider jihadist agenda. ... [He] has done so as a close associate of Abu Doha. Given the information we have about Abu Doha which, as we have said, we have no reason to doubt, we regard [the second applicant’s] claim that Abu Doha was doing nothing illegal (save that he was hiding his activities from the Russians) as entirely implausible. ... [He] has had associations with a number of other individuals involved in terrorism. They are for the most part specified by name in the open case but are not mentioned in his own statement. ...\n\nThese are the five features which meet in [the second applicant]. No doubt the Secretary of State could have made his case by demonstrating various combinations of them in a single person. With all five, we regard the case as compelling. We are entirely satisfied that the Secretary of State is reasonable in his suspicion that [the second applicant] supports or assists the GIA, the GSPC, and the looser group based around Abu Doha, and in his belief that at any time [the second applicant] is in the United Kingdom his presence here is a risk to national security.”\n\n3.  The third applicant\n\n37.  The third applicant is of Tunisian nationality, born in 1963 and resident in the  from about 1994. He was certified by the Secretary of State on 18 December 2001 and detained the following day.\n\n38.  In its judgment of 29 October 2003, dismissing the third applicant’s appeal against certification, SIAC observed:\n\n“The case against the Appellant, as framed in the open material, is that he is a key member of an extreme Islamist group known as the Tunisia Fighting Group (TFG). It is said that this group was formed during 2000 and had its origins in the Tunisian Islamic Front (known as the FIT since the name is in French). Its ultimate aim is said to be to establish an Islamic State in . It is further asserted that the Appellant has been in regular contact with a number of known extremists including some who have been involved in terrorist activities or planning. Both the FIT and the TFG are said to have links with al-Qaeda.\n\nThe open material deployed against the Appellant is not at all substantial. The evidence which is relied on against him is largely to be found in the closed material. This has meant that he has been at a real disadvantage in dealing with the case because he is not aware of those with whom he is alleged to have been in contact.\n\n...\n\nIn his statement the Appellant says that he has never heard of the TFG and is certainly not a member of it. ... We have no doubts that the TFG exists ... [and] also that it has links to al-Qaeda. Our reasons for so concluding must be given in the closed judgment.\n\nIn May 1998 the Appellant and some ten others were arrested in a joint Special Branch and Security Service operation pursuant to warrants under the Prevention of Terrorism Act. The Appellant was released without charge and in due course received £18,500 compensation for wrongful arrest. The arrests were in connection with allegations of involvement in a plot to target the World Cup in . We of course give weight to the absence of any admissible evidence to support the Appellant’s involvement in the alleged conspiracy, but it is not and cannot be the answer to this appeal. We have to consider all the material to see whether there are reasonable grounds for a belief or suspicion of the kind referred to in section 21(a) or (b) of the 2001 Act.\n\n...\n\nWe are satisfied that the Appellant is a member of the TFG, itself an international terrorist organisation within the scope of the 2001 Act, and that he has links with an international terrorist group. We appreciate that our open reasons for being so satisfied are sparse. That is because the material which drives us to that conclusion is mainly closed. We have considered it carefully and in the context of knowing the Appellant denies any involvement in terrorism or any knowing support for or assistance to terrorists. We have therefore been careful only to rely on material which cannot in our judgment have an innocent explanation.”\n\n39.  SIAC reached similar conclusions in its periodic reviews of the case on 2 July and on 15 December 2004.\n\n4.  The fourth applicant\n\n40.  The fourth applicant was born in Algeria in 1971 and first entered the  in 1994. In May 1997 he was arrested and charged with a number of offences, including a conspiracy to export to  material which it was alleged was to be used for the purposes of terrorism. It was alleged that he was a member of GIA. The case against the applicant was abandoned in March 2000 when a key witness, a Security Service agent, who was to give evidence concerning the need for civilians to defend themselves against atrocities allegedly committed by the Algerian government, decided that it was too dangerous for him to give evidence.\n\n40.  The fourth applicant was born in Algeria in 1971 and first entered the  in 1994. In May 1997 he was arrested and charged with a number of offences, including a conspiracy to export to  material which it was alleged was to be used for the purposes of terrorism. It was alleged that he was a member of GIA. The case against the applicant was abandoned in March 2000 when a key witness, a Security Service agent, who was to give evidence concerning the need for civilians to defend themselves against atrocities allegedly committed by the Algerian government, decided that it was too dangerous for him to give evidence.\n\n41.  In 1998 the fourth applicant married a French national. He became a French citizen in May 2001, although he did not inform the  authorities of this. The Secretary of State certified him under section 21 of the 2001 Act on 17 December 2001 and he was detained on 19 December 2001. On 13 March 2002 he left for France, where he was interviewed on arrival by security officials and then set at liberty. Since he had left the United Kingdom, the certificate against him was revoked and the revocation was backdated to 22 March 2002.\n\n42.  In its judgment of 29 October 2003, SIAC held that the backdating of the revocation meant that the fourth applicant could not be regarded as having been certified at the time he lodged his appeal and that, therefore, he had no right of appeal. It nonetheless decided to consider the appeal on the basis that this conclusion might be wrong. Since the Secretary of State could not reasonably have known at the time the certificate was issued that the applicant was a French citizen and could safely be removed to , it could not be said on that ground that the certificate should not have been issued. SIAC therefore continued by assessing the evidence against him:\n\n“In reaching our decision, we will have to consider not only the open but also the closed material. The Appellant appears to have suspected that he was the subject of surveillance over much of the relevant period.\n\nWe are conscious of the need to be very careful not to assume guilt from association. There must be more than friendship or consorting with those who are believed to be involved in international terrorism to justify a reasonable suspicion that the Appellant is himself involved in those activities or is at least knowingly supporting or assisting them. We bear in mind [his solicitor’s] concerns that what has happened here is an attempt to resurrect the prosecution with nothing to add from his activities since. Detention must be regarded as a last resort and so cannot be justified on the basis of association alone and in any event the guilt of the associates has never been established. ...\n\nNonetheless, continued association with those who are suspected of being involved in international terrorism with links to al-Qaeda in the light of the reasonable suspicion that the Appellant was himself actively involved in terrorist activities for the GIA is a matter which can properly be taken into account. The GSPC, which broke away from the GIA, has links to al-Qaeda and the Appellant has continued to associate with those who took to the GSPC rather than the GIA. We are in fact satisfied that not only was the Appellant actively involved initially with the GIA and then with the GSPC but also that he provided false documentation for their members and for the Mujahaddin in Chechnya as is alleged in the open statement. But we accept that his activities in 2000 and 2001 justify the use of the expression that he had been maintaining a low profile, and we make that observation having regard to both open and closed material. Nonetheless, a low profile does not mean that he is not properly to be regarded as an international terrorist within the meaning of section 21. An assessment has to be made of what he may do in the light of what he has done and the fact that he has shown willingness and the ability to give assistance and support in the past and continues the associations and to provide some help (e.g. the use of his van) is highly relevant.\n\nWe have not found this aspect of the Appellant’s case at all easy. We have given full weight to all [his solicitor’s] submissions which were so persuasively put before us but in the end have reached the view that, looking at the evidence as a whole, the decision to issue a certificate was not wrong. Accordingly, we would not have allowed the appeal on the facts.”\n\n5.  The fifth applicant\n\n43.  The fifth applicant was born in  in 1969. In his statement to SIAC he claimed to have developed polio as a child which left him with a permanently weak and paralysed right leg. He was arrested and tortured by the Algerian government in 1991, whereupon he left Algeria for Saudi Arabia. In 1992 he moved to Pakistan and travelled to  on several occasions. In August 1995 he entered the United Kingdom and claimed asylum, alleging in the course of that claim that his leg had been injured by a shell in  in 1994. His asylum claim was refused and his appeal against the refusal was dismissed in December 1999. The applicant married a French citizen and had a child with her.\n\n44.  He was certified by the Secretary of State under section 21 of the 2001 Act on 17 December 2001 and detained on 19 December 2001. In its judgment of 29 October 2003, dismissing the fifth applicant’s appeal against certification, SIAC observed:\n\n“The open statements provided to justify the certification do not refer to a great deal of source material and so consist mainly of assertions. As with most of these appeals, the main part of the evidence lies in closed material and so, as we are well aware, the Appellants have been at a disadvantage in that they have not been able to deal with what might be taken to be incriminating evidence. The Special Advocates have been able to challenge certain matters and sometimes to good effect. That indeed was the case in relation to a camp in Dorset attended by a number of those, including the Appellant, of interest to the Security Service. ...\n\nThe case against the Appellant is that he was a member of the GIA and, since its split from the GIA, of the GSPC. He is associated with a number of leading extremists, some of whom are also members of or associated with the GSPC, and has provided active support in the form of the supply of false documents and facilitating young Muslims from the United Kingdom to travel to  to train for jihad. He is regarded as having undertaken an important role in the support activities undertaken on behalf of the GSPC and other Islamic extremists in the  and outside it. All this the Appellant denies and in his statement he gives innocent explanations for the associations alleged against him. He was indeed friendly with in particular other Algerians in the  and, so far as [the fourth applicant] was concerned, the families were close because, apart from anything else, their respective wives were French. He attended [the eighth applicant’s] mosque. He was an impressive preacher and the Appellant says he listened but was never involved. Indeed he did not know [the eighth applicant] except through Chechen relief, which the Appellant and many hundreds of other Muslims supported, and he had never spoken to him on the telephone. He had on occasions approached [the eighth applicant] at Friday prayers at the mosque if he wanted guidance on some social problem.”\n\nSIAC referred to “open” surveillance reports which showed the applicant to have been in contact with other alleged members of GIA and GSPC, including at a camp in Dorset in July 1999. Further “open” evidence concerned his “unhelpful” and “not altogether truthful” responses to questioning by officers of the Security Service in July and September 2001. SIAC continued:\n\n“Reliance is placed on various articles found in his house when he was arrested. These include a copy of the fatwa issued by Bin Laden. The Appellant says he had never seen it and could not explain its presence. A GSPC communiqué was, he says, probably one handed out at the mosque. Analysis of the hard drive of his computer showed it had visited an Internet site that specialised in United States military technology. This was not something which could be relevant to the Appellant’s studies. And a hand-drawn diagram of a missile rocket he has not seen before. It might, he thinks, have been in a book about Islam he had bought second hand from the mosque.\n\nWe note the denials, but we have to consider all the evidence. As will be clear from this judgment, we have reason to doubt some of the Appellant’s assertions. But the closed material confirms our view that there is indeed reasonable suspicion that the Appellant is an international terrorist within the meaning of section 21 and reasonable belief that his presence in the  is a risk to national security. We have no doubt that he has been involved in the production of false documentation, has facilitated young Muslims to travel to Afghanistan to train for jihad and has actively assisted terrorists who have links with al-Qaeda. We are satisfied too that he has actively assisted the GSPC. We have no hesitation in dismissing his appeal.”\n\n45.  On 22 April 2004, because of concerns about his health, the fifth applicant was released from prison on bail on strict conditions, which amounted to house arrest with further controls. In its review judgment of 2 July 2004, SIAC held:\n\n“... in granting bail, [SIAC] did not revise its view as to the strength of the grounds for believing he was an international terrorist and a threat to national security. The threat could be managed proportionately in his case in view of his severe mental illness. That however is no reason to cancel the certificate. There might be circumstances in which he breaches the terms of his bail or for other reasons it was necessary to revoke it. The need for the certificate to continue must depend on whether the terms of the statute and of the derogation continue to be met.\n\nA number of his contacts remain at large including some who are regarded as actively involved in terrorist planning. There is nothing to suggest that his mental illness has diminished his commitment to the extremist Islamic cause; he has the experience and capacity to involve himself once more in extremist activity. The bail restraints on him are essential; those are imposed pursuant to his certification and the SIAC dismissal of his appeal against it. The certificate is properly maintained.”\n\n46.  On 15 December 2004, SIAC again reviewed the case and decided that the certificate should be maintained.\n\n6.  The sixth applicant\n\n47.  The sixth applicant was born in Algeria in 1967 and was resident in the  from 1989. The Secretary of State issued a certificate against him on 17 December 2001 and he was taken into detention on 19 December 2001.\n\n48.  In its judgment of 29 October 2003, SIAC observed as follows:\n\n“Although we have to make our decision on the basis both of the open and of the closed material, it is important to indicate the case against [the sixth applicant] as it has been set out by the Secretary of State in open material, because that is the case that [the sixth applicant] knows that he has to meet. In assessing his statement and the other evidence and arguments submitted on his behalf, we remind ourselves always that he is not aware of the Secretary of State’s closed material, but nevertheless that he is not operating entirely in a vacuum because of the open allegations; and we may test the Appellant’s own case by the way he deals with those allegations.\n\nThe Secretary of State’s case against [the sixth applicant] is summarised as follows:\n\n(1)  he belongs to and/or is a member of the GSPC, and previously was involved with the GIA;\n\n(2)  he has supported and assisted the GSPC (and previously the GIA) through his involvement in credit card fraud which is a main source of income in the United Kingdom for the GSPC;\n\n(3)  from about August 2000, [the sixth applicant] took on an important role in procuring telecommunications equipment for the GSPC and the provision of logistical support for satellite phones by way of purchase and allocation of airtimes for those phones;\n\n(4)  he has also played an important part in procuring telecommunications equipment and other equipment for the Mujahaddin fighting in Chechnya – that is to say the faction which until 2002 was under the command of Ibn Khattab.”\n\nSIAC then reviewed the open evidence before it regarding the purchase by Abu Doha, assisted by the sixth and seventh applicants, of a number of satellite telephones and other telecommunications equipment to the value of 229,265 pounds sterling and the nature and extent of the connection between the sixth and seventh applicants. It concluded:\n\n“In the circumstances we have set out, it appears to us that the Secretary of State has ample ground for suspicion that [the sixth applicant’s] procurement activities were directed to the support of the extremist Arab Islamist faction fighting in Chechnya. That support arises from [the sixth applicant’s] connections with and support of the GSPC. We emphasise, as is the case with other appeals as well, that it is the accumulation of factors, each lending support to the others rather than undermining other points, providing colour and context for the activities seen as a whole which is persuasive; it would be wrong to take a piece in isolation, thereby to diminish its significance and to miss the larger picture. The generic judgment supports these conclusions. These are activities falling centrally within the derogation. [The sixth applicant] has provided only implausible denials and has failed to offer credible alternative explanations. That is sufficient to determine his appeal, without making any further reference to the Secretary of State’s other allegations which, as was acknowledged in the open statement and in open evidence before [SIAC], can be properly sustained only by examination of the closed material.”\n\n49.  SIAC reviewed the case on 2 July 2004 and on 28 February 2005 and, on each occasion, decided that there were still grounds for maintaining the certificate.\n\n7.  The seventh applicant\n\n50.  The seventh applicant was born in Algeria in 1971 and apparently entered the  using false French identity papers in or before 1994. On 7 December 2001 he was convicted of a number of driving offences and sentenced to four months’ imprisonment. He was certified by the Secretary of State on 5 February 2002 and taken into detention pursuant to the certificate as soon as his prison sentence ended on 9 February 2002.\n\n51.  In its judgment of 29 October 2003, SIAC noted that the allegations against the seventh applicant were that he had been a member of GSPC since 1997 or 1998, and before that a member of GIA; that his contacts with leading GSPC members in the United Kingdom showed that he was a trusted member of the organisation; and that he had been involved with Abu Doha and the sixth applicant in purchasing telecommunications equipment for use by extremists in Chechnya and Algeria. It further noted that:\n\n“[The seventh applicant] did not give evidence before [SIAC] and, indeed, chose not to attend the hearing of his appeal. His statement, which we have of course read, is in the most general terms, and, perhaps not surprisingly, [his counsel’s] submissions, both oral and written, were similarly general. [The seventh applicant’s] approach to the present proceedings of themselves and the fact that he did not give oral evidence or make any detailed written statement are not matters to be put in the scale against him. We well understand the difficulty that Appellants have in circumstances where the allegations against them are only summarised and where much of the evidence on which those allegations are based cannot, for reasons of national security, be communicated to the Appellants themselves. However, [the seventh applicant] is in the best position to know what his activities and motives have been in the relevant period. Nothing prevents him from giving a full description and account of those activities if he wishes to do so. The fact that he has chosen to provide no detailed account of his activities means that he has provided no material to counter the evidence and arguments of others.”\n\nSIAC concluded that the open and closed material supported the allegations against the seventh applicant and it dismissed his appeal.\n\n52.  In its review judgments of 2 July and 15 December 2004, SIAC decided that the certificate should be maintained.\n\n8.  The eighth applicant\n\n53.  The eighth applicant is a Jordanian national, born in  in 1960. He arrived in the  on 16 September 1993 and claimed asylum. He was recognised as a refugee and granted leave to remain until 30 June 1998. On 8 May 1998 he applied for indefinite leave to remain but the application had not been determined at the time of the coming into force of the 2001 Act.\n\n54.  The eighth applicant was convicted in absentia in  for his involvement in terrorist attacks there and in relation to a plot to plant bombs to coincide with the millennium. He was investigated in February 2001 by anti-terrorism police officers in connection with a plot to cause explosions at the Strasbourg Christmas Market in December 2000, but no charges were brought against him. When the 2001 Act was passed he went into hiding. He was arrested on 23 October 2002 and was immediately made the subject of a section 21 certificate and taken into detention. On the same date, a deportation order was made against him.\n\n55.  In its judgment of 8 March 2004, dismissing the eighth applicant’s appeal against certification, SIAC observed as follows:\n\n“[The eighth applicant’s counsel], on instructions from the Appellant, informed us that his client had chosen not to attend the hearing or to participate in any way. He had read the decisions relating to the Appellants who had been certified when the 2001 Act came into force and the generic judgment and so felt certain that the result of his appeal was a foregone conclusion. There had been many references to his role in the other appeals and some had been certified and detained, at least in part, on the basis that they associated with him. Since that association was regarded as sufficient to justify their continued detention, he considered that the decision on his appeal had, in effect, already been taken. He had chosen not to play any part precisely because he has no faith in the ability of the system to get at the truth. He considered that the SIAC procedure had deliberately been established to avoid open and public scrutiny of the respondent’s case, which deprived individuals of a fair opportunity to challenge the case against them.\n\nHaving said that, [the eighth applicant’s counsel] made it clear that the appeal was not being withdrawn. It was accordingly necessary for us to consider it and to take into account the statement made by the Appellant. [His counsel] emphasised a number of matters which, he suggested, should be regarded as favourable to the Appellant’s contention that he was not and never had been involved in terrorism within the meaning of the 2001 Act. Furthermore, the allegations showed that a distorted and over-simplified view was being taken by the security services of the Appellant’s activities and his role as a respected teacher and believer in the rights of Islamic communication throughout the world.\n\nWe should make it clear that we have considered the case against the Appellant on its merits. We have not been influenced by any findings made in other appeals or the generic judgments. One of the reasons why this judgment has taken a long time to be prepared was the need for us to read through and consider the evidence, both open and closed, that has been put before us. There is much more of it than in most of the other appeals. That is a reflection of the fact that the Appellant has been associated with and had dealings with many of the others who have been certified and with individuals and groups themselves linked to al-Qaeda. We see no reason to dissent from the views expressed in the generic judgment of the significance of the various individuals and groups referred to in it. But that does not mean we have therefore automatically accepted its views. We draw attention to the fact that the panel which produced the generic judgment was not the same constitution as this panel and that such input as there was by the chairman of this panel to the generic judgment was limited to issues of law. We have considered the case against the Appellant on the material put before us in this appeal. ...\n\nWhen it came to the closed session, the Special Advocates informed us that after careful consideration they had decided that it would not be in the Appellant’s interests for them to take any part in the proceedings. We were very concerned at this, taking the view that the decision was wrong. The appeal was still being pursued and the Appellant did not know what was relied on against him in the closed material. We were unable to understand how in the circumstances it could not be in his interests for the Special Advocates, at their discretion, to elicit or identify matters favourable to the Appellant and to make submissions to us to seek to persuade us that evidence was in fact unreliable or did not justify the assessment made. When we asked [one of the two Special Advocates appointed on behalf of the eighth applicant] to tell us why he had decided as he had he told us that he could not do so since to do so would not be in the Appellant’s interest. We adjourned to enable the Special Advocates to seek to discover from the Appellant through his representatives whether he did wish them to do what they could on his behalf and we also contacted the Solicitor-General who had appointed the Special Advocates to seek her help in trying to persuade them to assist us. The Appellant’s representatives indicated that they had nothing to say on the subject and the Solicitor-General took the view that it would be wrong for her to intervene in any way. Our further attempts to persuade the Special Advocates to change their minds were unsuccessful and since we could not compel them to act in any particular way we had to proceed without them. [Counsel for the Secretary of State], at our request, identified various matters which might be regarded as possibly exculpatory and we ourselves raised other matters in the course of the closed hearing.\n\nWe are conscious that the absence of a Special Advocate makes our task even more difficult than it normally is and that the potential unfairness to the Appellant is the more apparent. We do not doubt that the Special Advocates believed they had good reasons for adopting the stance that they did and we are equally sure that they thought long and hard about whether they were doing the right thing. But we are bound to record our clear view that they were wrong and that there could be no reason for not continuing to take part in an appeal that was still being pursued. ... As it happens, the evidence in this case against the Appellant is so strong that no Special Advocates, however brilliant, could have persuaded us that reasonable suspicion had not been established so that the certification was not justified. Thus the absence of Special Advocates has not prejudiced the Appellant. ...”\n\n56.  SIAC then summarised the open case against the applicant, which was that he had associated with and acted as spiritual adviser to a number of individuals and groups linked with al-Qaeda. He held extreme and fundamentalist views and had been reported as having, in his speeches at a  mosque, given his blessing to the killing of Jews and Americans, wherever they were. SIAC concluded:\n\n“We are satisfied that the Appellant’s activities went far beyond the mere giving of advice. He has certainly given the support of the Koran to those who wish to further the aims of al-Qaeda and to engage in suicide bombing and other murderous activities. The evidence is sufficient to show that he has been concerned in the instigation of acts of international terrorism. But spiritual advice given in the knowledge of the purposes for which and the uses to which it is to be put provides assistance within the meaning of section 21(4) of the 2001 Act.\n\n...\n\nThere are a large number of allegations made. We see no point in dealing with them seriatim. We have indicated why we have formed the view that the case made against the Appellant is established. Indeed, were the standard higher than reasonable suspicion, we would have had no doubt that it was established. The Appellant was heavily involved, indeed was at the centre in the United Kingdom of terrorist activities associated with al-Qaeda. He is a truly dangerous individual and these appeals are dismissed.”\n\n9.  The ninth applicant\n\n57.  The ninth applicant is Algerian, born in 1972. In 1991 he left Algeria for , where he taught Arabic in a refugee camp. He claimed asylum in the  in 1993. In 1994 he was granted leave to remain for four years and in 2000 he was granted indefinite leave to remain, on the basis that he was to be regarded as a refugee. On four occasions, the last in May 1998, the applicant was arrested and released without charge. The first three arrests related to credit card fraud. The arrest in May 1998 related to alleged terrorist activities and the applicant was subsequently paid compensation by the police for false arrest.\n\n58.  The ninth applicant was certified by the Secretary of State and made the subject of a deportation order on 22 April 2002. He was detained on the same day. According to the evidence of one of the witnesses for the Secretary of State, he was not certified, with the other applicants, in December 2001 because one of his files had been lost.\n\n59.  In its judgment of 29 October 2003, SIAC noted that the allegations against the ninth applicant were that he was an active supporter of GSPC and had raised considerable sums of money for it through fraud. There was evidence that the applicant had in the past been found, by customs officers, attempting to enter the  by ferry with large amounts of cash and that he had close links with others who had been convicted of credit card fraud. SIAC held that evidence of involvement in fraud did not establish involvement in terrorism. However, it noted that the applicant had been present at a camp in Dorset in the company of the fifth applicant and a number of others suspected of being GSPC supporters and that a telephone bill had been found at his house at the time of his arrest in the name of Yarkas, who had been arrested in Spain in November 2001 due to his alleged links with al-Qaeda. The applicant had given evidence but had not been a convincing witness and had not given a credible explanation for the foregoing. The closed evidence supported the Secretary of State’s allegations and SIAC therefore dismissed the applicant’s appeal against certification.\n\n60.  In its review judgments of 2 July 2004 and 15 December 2004, SIAC held that the certificate was properly maintained.\n\n10.\t  The tenth applicant\n\n61.  The tenth applicant is an Algerian national. Following a bomb explosion in , his left hand was amputated at the wrist and his right arm was amputated below the elbow. In 1999 he travelled to the United Kingdom, via Abu Dhabi and , and claimed asylum. His claim was refused on 27 February 2001. He was then in custody, having been arrested on 15 February 2001 and charged with possession of articles for suspected terrorist purposes, conspiracy to defraud and conspiracy to make false instruments. At the time of his arrest he was found to have in his possession approximately forty blank French driving licences, identity cards and passports, a credit card reader, laminators and an embossing machine. The charges were not, however, proceeded with and he was released on 17 May 2001.\n\n62.  On 14 January 2003 the Secretary of State issued a certificate against him under section 21 of the 2001 Act and he was taken into detention. A deportation order was made against him on the same day.\n\n63.  In its judgment of 27 January 2004, SIAC noted that the essence of the case against the tenth applicant was that since his arrival in the United Kingdom he had been closely associated with a network of extremists formerly led by Abu Doha (see paragraph 26 above). In particular, it was alleged that he had provided logistical support in the form of false documentation and money raised through credit card fraud. He had spent a lot of time at the Finsbury Park Mosque, a known centre of Islamist extremism, and was alleged to have attended a meeting there in June 2001 at which threats were made against the G8 summit in Genoa.\n\nThe applicant submitted a written statement on 28 June 2003 in which he denied the allegations against him. He did not, however, participate in the hearing of his appeal, as SIAC explained in its judgment:\n\n“He was, said [his counsel], a genuine refugee, a member of no organisation or group and not involved in terrorism or in advocating terrorism. He had no knowledge of any planned terrorist attacks and could not understand why the accusations had been made against him. He had seen none of the underlying material and had no means of challenging it. In effect, he could do no more than assert that it could not justify the conclusion that he was an international terrorist within the meaning of the Act since he was not. He had had read to him the decisions of [SIAC] in the previous appeals. Given the relevance which was placed on the closed material and the statutory test applicable, he felt that the result was a foregone conclusion. He did not wish in participating in the appeal to give an impression which was false that he could deal with the matters which were being relied on against him. He had no confidence in the proceedings. Accordingly he would take no active part in them beyond the statement which [his counsel] made on his behalf.\n\nHe did not withdraw his appeal. While we appreciate the handicap under which he and indeed all the Appellants labour, we wish to make it clear that no appeal is a foregone conclusion. We have to and we do consider the evidence put before us, whether open or closed, with care because we recognise that the result is detention for an unspecified period without trial. While we recognise that the Special Advocate has a difficult task when he has and can obtain no instructions on closed material, he is able to test evidence from the Security Service and to draw our attention to material which assists the Appellant’s case.”\n\nSIAC found that there was ample evidence to support the view that the applicant was involved in fraudulent activities. The evidence before it, most of it closed, was sufficient to establish that he was doing it to raise money for terrorist causes and to support those involved in terrorism. It therefore dismissed the appeal against certification.\n\n64.  SIAC reached similar decisions in its review judgments of 4 August 2004 and 16 February 2005. In the latter judgment, it noted that although the applicant had been transferred to  because of mental health problems, that made no difference to the assessment of the risk to national security which he would pose if released.\n\n11.\t  The eleventh applicant\n\n65.  The eleventh applicant is an Algerian national. He entered the  in February 1998, using a false Italian identity card, and claimed asylum the following week. While his claim was pending, in July 2001, he travelled to Georgia using a false French passport and was deported back to the United Kingdom, where he was informed that his travel outside the  had terminated his asylum claim. He made a second claim for asylum, which was refused on 21 August 2001. The applicant absconded. He was arrested on 10 October 2001 and held in an immigration detention centre, from which he absconded in February 2002. He was rearrested on 19 September 2002 and detained at Belmarsh Prison under immigration law provisions.\n\n66.  On 2 October 2003 the Secretary of State certified him as an international terrorist under section 21 of the 2001 Act and made a deportation order against him on grounds of national security.\n\n67.  In its judgment of 12 July 2004, dismissing the eleventh applicant’s appeal against certification, SIAC set out the open case against him. It was alleged that he was an established and senior member of the Abu Doha group (see paragraph 26 above). In July 2001 he had attempted to travel to Chechnya and, when arrested by the Georgian police, he had been found in possession of telephone numbers associated with a senior member of the Abu Doha group and a named member of GSPC, who was known to be involved in fund-raising for the Chechen Mujahaddin. He was alleged to have provided money and logistical support to a North African extremist Islamist network based in Pakistan and Afghanistan, with links to al-Qaeda, and to have assisted members of the Abu Doha group in travelling to Afghanistan, Pakistan and Chechnya. He had lived at the Finsbury Park Mosque for over a year in 1999/2000. He was very security-conscious and during a trip to St Albans in September 2001 he had taken measures to avoid being followed. When he was arrested in September 2002 he was found in possession of a false Belgian passport bearing the photograph of a senior member of the Abu Doha group. He was alleged to have been heavily involved in the supply of false documents and the fraudulent use of cheque books and credit cards.\n\n68.  The applicant filed a written statement in which he denied being an international terrorist. He admitted that he had travelled to Afghanistan in 1999 and that he had attempted to go to  in 2001, but claimed that his interest in these countries was no more than that shown by many devout Muslims. He refused to participate in the hearing of his appeal or to be represented by a lawyer, in protest at the fundamental unfairness of the procedure. In view of the applicant’s position, the special advocates decided that his interests would best be served if they refrained from making submissions on his behalf or asking questions of the witnesses in the closed session.\n\n68.  The applicant filed a written statement in which he denied being an international terrorist. He admitted that he had travelled to Afghanistan in 1999 and that he had attempted to go to  in 2001, but claimed that his interest in these countries was no more than that shown by many devout Muslims. He refused to participate in the hearing of his appeal or to be represented by a lawyer, in protest at the fundamental unfairness of the procedure. In view of the applicant’s position, the special advocates decided that his interests would best be served if they refrained from making submissions on his behalf or asking questions of the witnesses in the closed session.\n\n69.  In dismissing the applicant’s appeal, SIAC held as follows:\n\n“We recognise the difficulties faced by an Appellant who only sees only the open material and can understand [the eleventh applicant’s] perception that the procedures are unfair. However, each case will turn upon its own individual facts, and it would be wrong to give the impression, which [his solicitor] sought to do, that this particular Appellant had been placed in a position where he was prevented by reason of the procedures under the Act from mounting an effective defence in response to the case made against him.\n\nWe have summarised the information made available to [the eleventh applicant] at the various stages of the procedure ... and [his] response to this information in his written statement. While some of the assessments in the open material can fairly be described as general assertions unsupported by any documentary evidence, in response to which [the eleventh applicant] would not have been able to give any more than an equally general denial, it is clear that in respect of other assessments [he] was provided with a great deal of detailed information: names, dates, places and supporting documents.\n\n[The eleventh applicant] is in the best position to give an account of his whereabouts and activities since he first claimed asylum in 1998. His written statement is significant not so much for what it says, as for what it does not say. To take one example: the visit to St Albans and the photo-booth where [the eleventh applicant] says that the Respondent’s specific assertion is ‘completely wrong’ ... [The eleventh applicant] has not denied that he went to St Albans. He knows who accompanied him and why they went there. He has not explained why they went there, nor has he identified his companion, despite having been provided with the photographs taken during the surveillance operation. ...”\n\nSIAC continued by noting the inconsistencies in the applicant’s various accounts of his trips to Afghanistan, Georgia and Dubai and his failure to deal with the Secretary of State’s allegations that he had associated with various members of the Abu Doha group, identified by name. SIAC continued:\n\n“The matters referred to ... are not an exhaustive list, merely the most obvious examples of the way in which [the eleventh applicant’s] written statement fails to deal with the open case made against him. Given the unsatisfactory nature of the statement we do not feel able to give any significant weight to the general denials contained within it ... We have dealt with these matters in some detail because they are useful illustrations of the extent to which [the eleventh applicant] would have been able to answer the case against him, if he had chosen to do so. While we do not draw any adverse inference from [his] failure to give evidence, or otherwise participate in the hearing of his appeal, we do have to determine his appeal on the evidence and we are left with the position that there has been no effective challenge by way of evidence, cross-examination or submission to the open material produced by the Respondent.\n\n...\n\nThe standard of proof prescribed by section 25(2) of the 2001 Act is relatively low: are there reasonable grounds for belief or suspicion. As explained above, we are satisfied that this low threshold is easily crossed on the basis of the open material alone. If the totality of the material, both open and closed, is considered, we have no doubt that [the eleventh applicant] was a senior, and active, member of the Abu Doha group as described in the Respondent’s evidence.”\n\nE.  The conditions of detention and the effect of detention on the applicants’ health\n\nE.  The conditions of detention and the effect of detention on the applicants’ health\n\n70.  The detained applicants were all initially detained at Belmarsh Prison in . The sixth applicant was transferred to Woodhill Prison and the first, seventh and tenth applicants were transferred to .\n\n70.  The detained applicants were all initially detained at Belmarsh Prison in . The sixth applicant was transferred to Woodhill Prison and the first, seventh and tenth applicants were transferred to .\n\n71.  They were held in prison under the same regime as other standard-risk Category A prisoners, which was considered the appropriate security classification on the basis of the risk they posed. They were allowed visitors, once those visitors had been security-cleared, and could associate with other prisoners, make telephone calls and write and receive letters. They had access to an imam and to their legal representatives. They had the same level of access to health care, exercise, education and work as any other prisoner of their security ranking.\n\nFollowing a recommendation of the inspector appointed under the 2001 Act to review the detention regime, the Government created a Special Unit at Woodhill Prison to house the 2001 Act detainees. The Unit, which was refurbished in consultation with the detained applicants and their representatives and had a specially selected and trained staff, would have allowed for a more relaxed regime, including more out-of-cell time. The applicants, however, chose not to move to the Unit, a decision which the inspector found regrettable.\n\n72.  The first applicant, who alleged a history of ill-treatment in Israeli detention and who had first been treated for depression in May 1999, suffered a severe deterioration in his mental health while detained in Belmarsh Prison. He was transferred to  in July 2002.\n\n73.  The seventh applicant reported a family history of psychiatric disorder and had experienced depression as an adolescent. He claimed to suffer increasingly throughout his detention from depression, paranoia and auditory hallucinations. He attempted suicide in May 2004 and was transferred to  on 17 November 2004.\n\n74.  The tenth applicant, a double amputee, claimed to have been detained and tortured in . He suffered a deterioration in his physical and mental health in Belmarsh Prison. He went on hunger strike in May/June 2003 and refused to use the prostheses which had been issued to him or to cooperate with his nurses. Early in November 2003, the prison authorities withdrew his nursing care. His legal representatives applied for judicial review of this decision and in December 2003 nursing care was resumed following the order of the . On 1 November 2004 the tenth applicant was transferred to .\n\n75.  The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) visited the detained applicants in February 2002 and again in March 2004, and made a number of criticisms of the conditions in which the detained applicants were held. The Government rejected these criticisms (see paragraphs 101-02 below).\n\n75.  The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) visited the detained applicants in February 2002 and again in March 2004, and made a number of criticisms of the conditions in which the detained applicants were held. The Government rejected these criticisms (see paragraphs 101-02 below).\n\n76.  In October 2004, at the request of the applicants’ legal representatives, a group of eight consultant psychiatrists prepared a Joint Psychiatric Report on the detained applicants, which concluded:\n\n“The detainees originate from countries where mental illness is highly stigmatised. In addition, for devout Muslims there is a direct prohibition against suicide. This is particularly significant given the number who have attempted or are considering suicide. All of the detainees have serious mental health problems which are the direct result of, or are seriously exacerbated by, the indefinite nature of the detention. The mental health problems predominantly take the form of major depressive disorder and anxiety. A number of detainees have developed psychotic symptoms, as they have deteriorated. Some detainees are also experiencing PTSD [post-traumatic stress disorder] either as a result of their pre-migration trauma, the circumstances around their arrest and imprisonment or the interaction between the two.\n\nContinued deterioration in their mental health is affected also by the nature of, and their mistrust in, the prison regime and the appeals process as well as the underlying and central factor of the indefinite nature of detention. The prison health-care system is unable to meet their health needs adequately. There is a failure to perceive self-harm and distressed behaviour as part of the clinical condition rather than merely being seen as manipulation. There is inadequate provision for complex physical health problems.\n\nTheir mental health problems are unlikely to resolve while they are maintained in their current situation and given the evidence of repeated interviews it is highly likely that they will continue to deteriorate while in detention.\n\nThe problems described by the detainees are remarkably similar to the problems identified in the literature examining the impact of immigration detention. This literature describes very high levels of depression and anxiety and eloquently makes the point that the length of time in detention relates directly to the severity of symptoms and that it is detention per se which is causing these problems to deteriorate.”\n\nThe problems described by the detainees are remarkably similar to the problems identified in the literature examining the impact of immigration detention. This literature describes very high levels of depression and anxiety and eloquently makes the point that the length of time in detention relates directly to the severity of symptoms and that it is detention per se which is causing these problems to deteriorate.”\n\n77.  For the purposes of the present proceedings, the Government requested a Consultant Psychiatrist, Dr J., to comment on the above Joint Psychiatric Report. Dr J. was critical of the methodology and conclusions of the authors of the Joint Report. In particular, he wrote (references to other reports omitted):\n\n“I would comment that I find many of the assertions made do not bear close inspection. For example in the case of [the first applicant] it was my finding after a careful and detailed assessment that his mental state after imprisonment and then detention in Broadmoor Hospital was, overall, no worse and arguably no better than it had been before he was arrested. Nor do his records suggest initial improvement followed by deterioration in . I found he deteriorated in HMP Belmarsh [Prison] because he chose to go on hunger strike and that he had a fluctuating course in Broadmoor Hospital despite agreeing to eat, his histrionic behaviour in both places being essentially the same. In his case I found the diagnosis to be one of personality disorder, diagnoses of major depressive disorder, psychosis and PTSD not being sustainable. Moreover, it was my finding that his frequent self-harming was indeed manipulative.\n\n...\n\nI am not alone in finding the diagnoses claimed by the authors of this report to be mistaken and have drawn attention in my own report to the scepticism of some others who have reported on [the first and seventh applicants]. It is not the case therefore that there is the consensus of opinion claimed in the report and I note that in both the cases I assessed [the first and seventh applicants], their so-called psychotic symptoms claimed by some reporters and said not to be present before they were detained, were in fact present before they were arrested.\n\nAn issue I find to be of the greatest concern relates to the tacit acceptance of information gained by self-report. It appears to be accepted by the authors of the report, for example, that three of the detainees had been the victims of detention and torture and all felt themselves seriously threatened prior to migration. Nowhere have I seen any evidence to corroborate these claims or indeed any attempt to check them. As it is the case that immigrants and asylum-seekers need to justify their attempts to gain entry to another country, is it not possible or even probable that some may not always be entirely truthful in what they claim about their past experiences or their current symptoms? Where alleged terrorists are concerned it should be borne in mind that they have denied such allegations in spite of the open and closed evidence against them, which has been considered at the highest level. Surely this should raise doubts about their truthfulness?”\n\nF.  The release of the fifth applicant on bail\n\nF.  The release of the fifth applicant on bail\n\n78.  On 20 January 2004, SIAC decided that it should, in principle, grant bail to the fifth applicant. The Secretary of State attempted to appeal against this decision but was informed by the Court of Appeal in an interim decision dated 12 February 2004 that it had no jurisdiction to entertain an appeal.\n\n79.  SIAC explained its reasons for granting bail in greater detail in a judgment dated 22 April 2004. It held that under the 2001 Act it had a power to grant bail only in an exceptional case, where it was satisfied that if bail were not granted the detainee’s mental or physical condition would deteriorate to such an extent as to render his continued detention a breach of Article 3 of the Convention on grounds of inhumanity, or Article 8 on grounds of disproportionality.\n\n80.  SIAC noted that there had been concerns about the fifth applicant’s mental health among prison staff from May 2002, although these concerns had not been communicated to his legal representatives. In December 2003 he had suffered a serious relapse into severe depression with psychotic symptoms, including auditory hallucinations and suicide ideation. A number of psychologists and psychiatrists had examined him, at the request of his legal representatives and at the initiative of the Home Office, and had agreed that he was seriously ill and that his mental health would be likely to improve if he were allowed to go home. SIAC concluded:\n\n“We do not think that the threshold has been crossed so that there is a breach of [the fifth applicant’s] human rights. The jurisprudence of the [European Court of Human Rights] emphasises the high threshold which must be crossed and that detention is unlikely to be regarded as disproportionate unless it at least verges on treatment which would constitute a breach of Article 3. But we are satisfied that, if he were not released, there would be such a breach. To permit someone to reach a state whereby he requires treatment in a special hospital or continuous care and attention to ensure he does not harm himself can constitute a breach of Article 8, unless perhaps there is no possible alternative to detention, and probably of Article 3. As we have said, we do not have to wait until that situation exists. Provided that we are persuaded, as we are, that the conditions we impose are sufficient to minimise the risk to the security of the State if [the fifth applicant] is released, we can act as we have.\n\nWe must emphasise that the grant of bail is exceptional. We are only doing so because the medical evidence is all one way and the detention has caused the mental illness which will get worse. ...”\n\n81.  The fifth applicant was, therefore, released on bail on 22 April 2004 on conditions amounting to house arrest. He was not permitted to leave his home address and had to wear an electronic tag at all times. He had no Internet access and a telephone link to the Security Service only. He was required to report by telephone to the Security Service five times a day and allow its agents access to his home at any time. He was not permitted contact with any person other than his wife and child, legal representative and a Home Office-approved doctor or see any visitor except with prior Home Office approval.\n\nG.  Events following the House of Lords’ judgment of 16 December 2004\n\n82.  The declaration of incompatibility made by the House of Lords on 16 December 2004, in common with all such declarations, was not binding on the parties to the litigation (see paragraph 94 below). The applicants remained in detention, except for the second and fourth applicants who had elected to leave the  and the fifth applicant who had been released on bail on conditions amounting to house arrest. Moreover, none of the applicants was entitled, under domestic law, to compensation in respect of their detention. The applicants, therefore, lodged their application to the Court on 21 January 2005.\n\n83.  At the end of January 2005, the Government announced their intention to repeal Part 4 of the 2001 Act and replace it with a regime of control orders, which would impose various restrictions on individuals, regardless of nationality, reasonably suspected of being involved in terrorism.\n\n84.  Those applicants who remained in detention were released on 1011 March 2005 and immediately made subject to control orders under the Prevention of Terrorism Act 2005, which came into effect on 11 March 2005.\n\n85.  The Government withdrew the derogation notice on 16 March 2005.\n\n85.  The Government withdrew the derogation notice on 16 March 2005.\n\n86.  On 11 August 2005, following negotiations commenced towards the end of 2003 to seek from the Algerian and Jordanian governments assurances that the applicants would not be ill-treated if returned, the Government served notices of intention to deport on the fifth, sixth, seventh, eighth, ninth, tenth and eleventh applicants. These applicants were taken into immigration custody pending removal to  (the fifth, sixth, seventh, ninth, tenth and eleventh applicants) and Jordan (the eighth applicant). On 9 April 2008 the Court of Appeal ruled that the eighth applicant could not lawfully be extradited to , because it was likely that evidence which had been obtained by torture could be used against him there at trial, in flagrant violation of his right to a fair trial. At the date of adoption of the present judgment, the case was pending before the House of Lords.\n\nII.  RELEVANT DOMESTIC LAW AND PRACTICE\n\nA.  Detention pending deportation before the passing of the 2001 Act\n\nA.  Detention pending deportation before the passing of the 2001 Act\n\n87.  Under section 3(5) of the Immigration Act 1971 (“the 1971 Act”) the Secretary of State could make a deportation order against a non-national, on the ground that the deportation would be conducive to the public good, for reasons of national security, inter alia. A person who was the subject of a deportation order could be detained pending deportation (the 1971 Act, Schedule 3, paragraph 2). However, it was held in R. v. Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704 that the power to detain under the above provision was limited to such time as was reasonable to enable the process of deportation to be carried out. Detention was not, therefore, permissible under the 1971 Act where deportation was known to be impossible, whether because there was no country willing to take the person in question or because there would be a risk of torture or other serious ill-treatment to the proposed deportee in his or her country of origin.\n\nB.  The Terrorism Act 2000\n\nB.  The Terrorism Act 2000\n\n88.  In July 2000 Parliament enacted the Terrorism Act 2000. As Lord Bingham noted in his judgment in the present case, “this was a substantial measure, with 131 sections and 16 Schedules, intended to overhaul, modernise and strengthen the law relating to the growing problem of terrorism”. “Terrorism” was defined, in section 1 of the Act, as:\n\n“... the use or threat of action where –\n\n(a)  the action falls within subsection (2);\n\n(b)  the use or threat is designed to influence the government or to intimidate the public or a section of the public; and\n\n(c)  the use or threat is made for the purpose of advancing a political, religious or ideological cause.\n\n(2)  Action falls within this subsection if it –\n\n(a)  involves serious violence against a person;\n\n(b)  involves serious damage to property;\n\n(c)  endangers a person’s life, other than that of the person committing the action;\n\n(d)  creates a serious risk to the health or safety of the public or a section of the public; or\n\n(e)  is designed seriously to interfere with or seriously to disrupt an electronic system.\n\n(3)  The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.\n\n(4)  In this section –\n\n(a)  ’action’ includes action outside the United Kingdom;\n\n(b)  a reference to any person or to property is a reference to any person, or to property, wherever situated;\n\n(c)  a reference to the public includes a reference to the public of a country other than the United Kingdom; and\n\n(d)  ’the government’ means the government of the United Kingdom, of a part of the United Kingdom or of a country other than the United Kingdom.\n\n(5)  In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation.”\n\nFor the purposes of the Act, an organisation was “proscribed” if:\n\n“3.(1)  ...\n\n(a)  it is listed in Schedule 2; or\n\n(b)  it operates under the same name as an organisation listed in that Schedule.\n\n(2)  Subsection (1)(b) shall not apply in relation to an organisation listed in Schedule 2 if its entry is the subject of a note in that Schedule.\n\n(3)  The Secretary of State may by order –\n\n(a)  add an organisation to Schedule 2;\n\n(b)  remove an organisation from that Schedule;\n\n(c)  amend that Schedule in some other way.\n\n(4)  The Secretary of State may exercise his power under subsection (3)(a) in respect of an organisation only if he believes that it is concerned in terrorism.\n\n(5)  For the purposes of subsection (4) an organisation is concerned in terrorism if it –\n\n(a)  commits or participates in acts of terrorism;\n\n(b)  prepares for terrorism;\n\n(c)  promotes or encourages terrorism; or\n\n(d)  is otherwise concerned in terrorism.”\n\n89.  Part 2 of the Act created offences of membership and support of proscribed organisations; it created offences of fund-raising, use and possession of terrorist funds, entering into an arrangement for the transfer of terrorist funds, money-laundering and failing to disclose suspect money-laundering. There were a number of further substantive offences in Part 4, including offences of weapons training; directing terrorism; possession, without reasonable excuse, of items likely to be useful to a person committing or preparing an act of terrorism; and collection, without reasonable excuse, of information likely to be useful to a person committing or preparing an act of terrorism. By section 62, the Act had extraterritorial scope, in that a person within the jurisdiction of the United Kingdom might be prosecuted for any of the above offences regardless of where the acts in furtherance of those offences were committed.\n\nC.  The Anti-terrorism, Crime and Security Act 2001\n\nC.  The Anti-terrorism, Crime and Security Act 2001\n\n90.  Part 4 of the 2001 Act (see paragraph 12 above), which was headed “Immigration and Asylum”, set out powers which enabled the detention of non-nationals suspected of being international terrorists, even where their deportation was for the time being impossible. The 2001 Act provided, so far as material:\n\n“PART 4\n\nIMMIGRATION AND ASYLUM\n\nSuspected international terrorists\n\n21.  Suspected international terrorist: certification\n\n(1)  The Secretary of State may issue a certificate under this section in respect of a person if the Secretary of State reasonably –\n\n(a)  believes that the person’s presence in the United Kingdom is a risk to national security; and\n\n(b)  suspects that the person is a terrorist.\n\n(2)  In subsection (1)(b) ‘terrorist’ means a person who –\n\n(a)  is or has been concerned in the commission, preparation or instigation of acts of international terrorism;\n\n(b)  is a member of or belongs to an international terrorist group; or\n\n(c)  has links with an international terrorist group.\n\n(3)  A group is an international terrorist group for the purposes of subsection (2)(b) and (c) if –\n\n(a)  it is subject to the control or influence of persons outside the United Kingdom; and\n\n(b)  the Secretary of State suspects that it is concerned in the commission, preparation or instigation of acts of international terrorism.\n\n(4)  For the purposes of subsection (2)(c) a person has links with an international terrorist group only if he supports or assists it.\n\n(5)  In this Part –\n\n‘terrorism’ has the meaning given by section 1 of the Terrorism Act 2000 (c. 11); and\n\n‘suspected international terrorist’ means a person certified under subsection (1).\n\n(6)  Where the Secretary of State issues a certificate under subsection (1) he shall as soon as is reasonably practicable –\n\n(a)  take reasonable steps to notify the person certified; and\n\n(b)  send a copy of the certificate to the Special Immigration Appeals Commission.\n\n(7)  The Secretary of State may revoke a certificate issued under subsection (1).\n\n(8)  A decision of the Secretary of State in connection with certification under this section may be questioned in legal proceedings only under section 25 or 26.\n\n(9)  An action of the Secretary of State taken wholly or partly in reliance on a certificate under this section may be questioned in legal proceedings only by or in the course of proceedings under –\n\n(a)  section 25 or 26; or\n\n(b)  section 2 of the Special Immigration Appeals Commission Act 1997 (c. 68) (appeal).\n\n22.  Deportation, removal, etc.\n\n(1)  An action of a kind specified in subsection (2) may be taken in respect of a suspected international terrorist despite the fact that (whether temporarily or indefinitely) the action cannot result in his removal from the United Kingdom because of –\n\n(a)  a point of law which wholly or partly relates to an international agreement; or\n\n(b)  a practical consideration ...\n\n(2)  The actions mentioned in subsection (1) are –\n\n...\n\n(e)  making a deportation order ...\n\n(3)  Action of a kind specified in subsection (2) which has effect in respect of a suspected international terrorist at the time of his certification under section 21 shall be treated as taken again (in reliance on subsection (1) above) immediately after certification.\n\n23.  Detention\n\n(1)  A suspected international terrorist may be detained under a provision specified in subsection (2) despite the fact that his removal or departure from the United Kingdom is prevented (whether temporarily or indefinitely) by –\n\n(a)  a point of law which wholly or partly relates to an international agreement; or\n\n(b)  a practical consideration ...\n\n(2)  The provisions mentioned in subsection (1) are –\n\n(a)  paragraph 16 of Schedule 2 to the Immigration Act 1971 (c. 77) (detention of persons liable to examination or removal); and\n\n(b)  paragraph 2 of Schedule 3 to that Act (detention pending deportation).”\n\nPart 4 of the 2001 Act included a provision that the legislation would remain in force for five years only and was subject to an annual affirmative resolution by both Houses of Parliament.\n\nD.  The Special Immigration Appeals Commission (SIAC)\n\nD.  The Special Immigration Appeals Commission (SIAC)\n\nD.  The Special Immigration Appeals Commission (SIAC)\n\nD.  The Special Immigration Appeals Commission (SIAC)\n\n91.  SIAC was set up in response to the Court’s judgment in Chahal v. the United Kingdom ([GC], 15 November 1996, Reports of Judgments and Decisions 1996-V). It is a tribunal composed of independent judges, with a right of appeal against its decisions on a point of law to the Court of Appeal and the House of Lords.\n\nBy section 25 of the 2001 Act:\n\n“(1)  A suspected international terrorist may appeal to the Special Immigration Appeals Commission against his certification under section 21.\n\n(2)  On an appeal [SIAC] must cancel the certificate if –\n\n(a)  it considers that there are no reasonable grounds for a belief or suspicion of the kind referred to in section 21(1) (a) or (b); or\n\n(b)  if it considers that for some other reason the certificate should not have been issued.”\n\nSIAC was required to carry out a first review to ensure that the certificate was still justified six months after the issue of the certificate or six months after the final determination of an appeal against certification, and thereafter at three-monthly intervals.\n\nUnder section 30 of the 2001 Act, any legal challenge to the derogation under Article 15 of the Convention had also to be made to SIAC.\n\n92.  SIAC has a special procedure which enables it to consider not only material which can be made public (“open material”) but also material which, for reasons of national security, cannot (“closed material”). Neither the appellant nor his legal adviser can see the closed material. Accordingly, one or more security-cleared counsel, referred to as “special advocates”, are appointed by the solicitor-general to act on behalf of each appellant.\n\n92.  SIAC has a special procedure which enables it to consider not only material which can be made public (“open material”) but also material which, for reasons of national security, cannot (“closed material”). Neither the appellant nor his legal adviser can see the closed material. Accordingly, one or more security-cleared counsel, referred to as “special advocates”, are appointed by the solicitor-general to act on behalf of each appellant.\n\n93.  In the certification appeals before SIAC at issue in the present case, the open statements and evidence concerning each appellant were served first, and the special advocate could discuss this material with the appellant and his legal advisers and take instructions generally. Then the closed material would be disclosed to the judges and to the special advocate, from which point there could be no further contact between the latter and the appellant and/or his representatives, save with the permission of SIAC. It was the special advocate’s role during the closed sessions to make submissions on behalf of the appellant, both as regards procedural matters, such as the need for further disclosure, and as to the substance of the case. In respect of each appeal against certification, SIAC issued both an “open” and a “closed” judgment. The special advocate could see both but the detainee and his representatives could see only the open judgment.\n\nE.  Declarations of incompatibility under the Human Rights Act 1998\n\nE.  Declarations of incompatibility under the Human Rights Act 1998\n\n94.  Section 4 of the 1998 Act provides that where a court finds that primary legislation is in breach of the Convention, the court may make a declaration of incompatibility. Such a declaration does not affect the validity of the provision in respect of which it is made and is not binding on the parties to the proceedings in which it is made, but special arrangements may be made (section 10) to amend the provision in order to remove the incompatibility (see, further, Burden v. the United Kingdom [GC], no. 13378/05, §§ 21-24 and 40-44, ECHR 2008).\n\nF.  The Terrorism Act 2006\n\nF.  The Terrorism Act 2006\n\n95.  The Terrorism Act 2006 came into force on 30 March 2006, creating a number of offences to extend criminal liability to acts preparatory to the terrorist offences created by the Terrorism Act 2000. The new offences were encouragement, dissemination of publications, preparation and training. The offences were designed to intervene at an early stage in terrorist activity and thus prevent the development of more serious conduct. They were also designed to be easier to prove.\n\nG.  Consideration of the use of special advocates under the Prevention of Terrorism Act 2005\n\nG.  Consideration of the use of special advocates under the Prevention of Terrorism Act 2005\n\n96.  On 31 October 2007 the House of Lords gave judgment in Secretary of State for the Home Department (Respondent) v. MB (FC) (Appellant) [2007] UKHL 46, which concerned a challenge to a non-derogating control order made by the Secretary of State under sections 2 and 3(1)(a) of the Prevention of Terrorism Act 2005. The House of Lords had to decide, inter alia, whether procedures provided for by section 3 of the 2005 Act, involving closed hearings and special advocates, were compatible with Article 6 of the Convention, given that, in the case of one of the appellants, they had resulted in the case against him being in its essence entirely undisclosed, with no specific allegation of terrorism-related activity being contained in open material.\n\nThe House of Lords was unanimous in holding that the proceedings in question determined civil rights and obligations and thus attracted the protection of Article 6. On the question of compliance, the majority (Baroness Hale, Lord Carswell and Lord Brown) held that although in many cases the special-advocate procedure would provide a sufficient counterbalance where the Secretary of State wished to withhold material upon which she wished to rely in order to establish the existence of reasonable grounds for suspecting that the controlee was or had been involved in terrorism-related activity, each case had to be considered individually. Baroness Hale put it as follows:\n\n“65.  ... It would all depend upon the nature of the case; what steps had been taken to explain the detail of the allegations to the controlled person so that he could anticipate what the material in support might be; what steps had been taken to summarise the closed material in support without revealing names, dates or places; the nature and content of the material withheld; how effectively the special advocate had been able to challenge it on behalf of the controlled person; and what difference its disclosure might have made. All of these factors would be relevant to whether the controlled person had been ‘given a meaningful opportunity to contest the factual basis’ for the order.\n\n66.  I do not think that we can be confident that Strasbourg would hold that every control order hearing in which the special-advocate procedure had been used, as contemplated by the 2005 Act and Part 76 of the Civil Procedure Rules, would be sufficient to comply with Article 6. However, with strenuous efforts from all, difficult and time-consuming though it will be, it should usually be possible to accord the controlled person ‘a substantial measure of procedural justice’. Everyone involved will have to do their best to ensure that the ‘principles of judicial inquiry’ are complied with to the fullest extent possible. The Secretary of State must give as full as possible an explanation of why she considers that the grounds in section 2(1) are made out. The fuller the explanation given, the fuller the instructions that the special advocates will be able to take from the client before they see the closed material. Both judge and special advocates will have to probe the claim that the closed material should remain closed with great care and considerable scepticism. There is ample evidence from elsewhere of a tendency to over-claim the need for secrecy in terrorism cases: see Serrin Turner and Stephen J Schulhofer, The Secrecy Problem in Terrorism Trials, 2005, Brennan Centre for Justice at NYU School of Law. Both judge and special advocates will have stringently to test the material which remains closed. All must be alive to the possibility that material could be redacted or gisted in such a way as to enable the special advocates to seek the client’s instructions upon it. All must be alive to the possibility that the special advocates be given leave to ask specific and carefully tailored questions of the client. Although not expressly provided for in CPR r 76.24, the special advocate should be able to call or have called witnesses to rebut the closed material. The nature of the case may be such that the client does not need to know all the details of the evidence in order to make an effective challenge.\n\n67.  The best judge of whether the proceedings have afforded a sufficient and substantial measure of procedural protection is likely to be the judge who conducted the hearing. ...”\n\nLord Carswell observed:\n\n“There is a very wide spectrum of cases in which closed material is relied on by the Secretary of State. At one extreme there may be cases in which the sole evidence adverse to the controlee is closed material, he cannot be told what the evidence is or even given its gist and the special advocate is not in a position to take sufficient instructions to mount an effective challenge to the adverse allegations. At the other end there may be cases where the probative effect of the closed material is very slight or merely corroborative of strong open material and there is no obstacle to presenting a defence. There is an infinite variety of possible cases in between. The balance between the open material and the closed material and the probative nature of each will vary from case to case. The special advocate may be able to discern with sufficient clarity how to deal with the closed material without obtaining direct instructions from the controlee. These are matters for the judge to weigh up and assess in the process of determining whether the controlee has had a fair trial. The assessment is ... fact-specific. The judge who has seen both the open and the closed material and had the benefit of the contribution of the special advocate is in much the best position to make it. I do consider, however, that there is a fairly heavy burden on the controlee to establish that there has been a breach of Article 6, for the legitimate public interest in withholding material on valid security grounds should be given due weight. The courts should not be too ready to hold that a disadvantage suffered by the controlee through the withholding of material constitutes a breach of Article 6.”\n\nLord Brown held as follows:\n\n“There may perhaps be cases, wholly exceptional though they are likely to be, where, despite the best efforts of all concerned by way of redaction, anonymisation, and gisting, it will simply be impossible to indicate sufficient of the Secretary of State’s case to enable the suspect to advance any effective challenge to it. Unless in these cases the judge can nevertheless feel quite sure that in any event no possible challenge could conceivably have succeeded (a difficult but not, I think, impossible conclusion to arrive at ...), he would have to conclude that the making or, as the case may be, confirmation of an order would indeed involve significant injustice to the suspect. In short, the suspect in such a case would not have been accorded even ‘a substantial measure of procedural justice’ (Chahal, [cited above] § 131) notwithstanding the use of the special-advocate procedure; ‘the very essence of [his] right [to a fair hearing] [will have been] impaired’ (Tinnelly & Sons Ltd [and Others] and McElduff and Others v. [the] United Kingdom, [cited below] § 72).”\n\nLord Bingham did not dissent but employed different reasoning. He held that it was necessary to look at the process as a whole and consider whether a procedure had been used which involved significant injustice to the controlee; while the use of special advocates could help to enhance the measure of procedural justice available to a controlled person, it could not fully remedy the grave disadvantages of a person not being aware of the case against him and not being able, therefore, effectively to instruct the special advocate.\n\nLord Hoffmann, dissenting, held that once the trial judge had decided that disclosure would be contrary to the public interest, the use of special advocates provided sufficient safeguards for the controlee and there would never in these circumstances be a breach of Article 6.\n\n97.  In Secretary of State for the Home Department v. AF [2008] EWCA Civ 1148, the Court of Appeal (Sir Anthony Clark MR and Waller LJ; Sedley LJ dissenting), gave the following guidance, based on the majority opinions in the case of MB (see paragraph 96 above), regarding compliance with Article 6 in control order cases using special advocates (extract from the head-note):\n\n“(1)  In deciding whether the hearing under section 3(10) of the 2005 Act infringed the controlee’s rights under Article 6 the question was whether, taken as a whole, the hearing was fundamentally unfair to the controlee, or he was not accorded a substantial measure of procedural justice or the very essence of his right to a fair hearing was impaired. More broadly, the question was whether the effect of the process was that the controlee was exposed to significant injustice. (2) All proper steps ought to be taken to provide the controlee with as much information as possible, both in terms of allegation and evidence, if necessary by appropriate gisting. (3) Where the full allegations and evidence were not provided for reasons of national security at the outset, the controlee had to be provided with a special advocate. In such a case the following principles applied. (4) There was no principle that a hearing would be unfair in the absence of open disclosure to the controlee of an irreducible minimum of allegation or evidence. Alternatively, if there was, the irreducible minimum could, depending on the circumstances, be met by disclosure of as little information as was provided in AF’s case, which was very little indeed. (5) Whether a hearing would be unfair depended on all the circumstances, including the nature of the case, what steps had been taken to explain the detail of the allegations to the controlled person so that he could anticipate what the material in support might be, what steps had been taken to summarise the closed material in support without revealing names, dates or places, the nature and content of the material withheld, how effectively the special advocate was able to challenge it on behalf of the controlee and what difference its disclosure would or might make. (6) In considering whether open disclosure to the controlee would have made a difference to the answer to whether there were reasonable grounds for suspicion that the controlee was or had been involved in terrorist-related activity, the court had to have fully in mind the problems for the controlee and the special advocates and take account of all the circumstances of the case, including what, if any, information was openly disclosed and how effective the special advocates were able to be. The correct approach to and the weight to be given to any particular factor would depend upon the particular circumstances. (7) There were no rigid principles. What was fair was essentially a matter for the judge, with whose decision the Court of Appeal would very rarely interfere.”\n\nIII.  DOMESTIC AND INTERNATIONAL COMMENT ON PART 4 OF THE 2001 ACT\n\nA.  The  Committee\n\nA.  The  Committee\n\n98.  Part 4 of the 2001 Act provided for the creation of a Committee of Privy Counsellors to review its operation. The Committee, under the chairmanship of Lord Newton, reported in December 2003. Having recorded the Home Office’s argument that the threat from al-Qaeda terrorism was predominantly from foreigners, the Newton Committee’s report drew attention to:\n\n“... accumulating evidence that this is not now the case. The British suicide bombers who attacked Tel Aviv in May 2003, Richard Reid (‘the Shoe Bomber’), and recent arrests suggest that the threat from UK citizens is real. Almost 30% of Terrorism Act 2000 suspects in the past year have been British. We have been told that, of the people of interest to the authorities because of their suspected involvement in international terrorism, nearly half are British nationals.”\n\nGiven this evidence, the Newton Committee observed that not only were there arguments of principle against having discriminatory provisions, but there were also compelling arguments of limited efficacy in addressing the terrorist threat. The Newton Committee therefore called for new legislation to be introduced as a matter of urgency which would deal with the terrorist threat without discrimination on grounds of nationality and which would not require a derogation from Article 5 of the Convention.\n\nGiven this evidence, the Newton Committee observed that not only were there arguments of principle against having discriminatory provisions, but there were also compelling arguments of limited efficacy in addressing the terrorist threat. The Newton Committee therefore called for new legislation to be introduced as a matter of urgency which would deal with the terrorist threat without discrimination on grounds of nationality and which would not require a derogation from Article 5 of the Convention.\n\n99.  In February 2004 the Government published their response to the Newton Committee’s report. It continued to accept that the terrorist threat “came predominantly, but not exclusively, from foreign nationals” and made the following observation about the Newton Committee’s suggestion that counter-terrorist measures should apply to all persons within the jurisdiction regardless of nationality:\n\n“While it would be possible to seek other powers to detain British citizens who may be involved in international terrorism it would be a very grave step. The Government believes that such draconian powers would be difficult to justify. Experience has demonstrated the dangers of such an approach and the damage it can do to community cohesion and thus to support from all parts of the public that is so essential to countering the terrorist threat.”\n\nThe Government also indicated that work was under way to try to establish framework agreements with potential destination countries for the purposes of deportation of terrorist suspects.\n\nB.  The Joint Parliamentary Committee on Human Rights\n\nB.  The Joint Parliamentary Committee on Human Rights\n\n100.  The Joint Committee has constitutional responsibility in the  for scrutinising legislation to ensure that it is compatible with Convention rights. In its Second Report of the Session 2001-02, drawn up very shortly after publication of the Bill which became the 2001 Act, the Joint Committee expressed concern at the potentially discriminatory effect of the proposed measure, as follows:\n\n“38.  Second, by relying on immigration legislation to provide for the detention of suspected international terrorists, the Bill risks discriminating, in the authorisation of detention without charge, between those suspected international terrorists who are subject to immigration control and those who have an unconditional right to remain in the United Kingdom. We are concerned that this might lead to discrimination in the enjoyment of the right to liberty on the ground of nationality. If that could not be shown to have an objective, rational and proportionate justification, it might lead to actions which would be incompatible with Article 5 of the ECHR [the Convention] either taken alone or in combination with the right to be free of discrimination in the enjoyment of Convention rights under Article 14 of the ECHR[the Convention]. It could also lead to violations of the right to be free of discrimination under Article 26 and the right to liberty under Article 9 of the ICCPR [International Covenant on Civil and Political Rights].\n\n39.  We raised this matter with the Home Secretary in oral evidence. Having considered his response, we are not persuaded that the risk of discrimination on the ground of nationality in the provisions of Part 4 of the Bill has been sufficiently taken on board.”\n\nIn its Sixth Report of the Session 2003-04 (23 February 2004), the Joint Committee expressed deep concern “about the human rights implications of making the detention power an aspect of immigration law rather than anti-terrorism law” and warned of “a significant risk that Part 4 violates the right to be free of discrimination under ECHR [the Convention] Article 14”. Following the Report of the Newton Committee and the Secretary of State’s discussion paper published in response to it, the Joint Committee returned to this subject in its Eighteenth Report of the Session 2003-04 (21 July 2004), paragraphs 42-44:\n\n“42.  The discussion paper rejects the Newton Report’s recommendation that new legislation replacing Part 4 [of the 2001 Act] should apply equally to all nationalities including British citizens. It states the Government’s belief that it is defensible to distinguish between foreign nationals and UK nationals because of their different rights and responsibilities.\n\n43.  We have consistently expressed our concern that the provisions of Part 4 [of the 2001 Act] unjustifiably discriminate on grounds of nationality and are therefore in breach of Article 14 ECHR [of the Convention]. Along with Lord Newton, we find it extraordinary that the discussion paper asserts that seeking the same power to detain British citizens would be ‘a very grave step’ and that ‘such draconian powers would be difficult to justify’.\n\n44.  The interests at stake for a foreign national and a UK national are the same: their fundamental right to liberty under Article 5 ECHR [of the Convention] and related procedural rights. Article 1 of the ECHR [the Convention] requires States to secure the Convention rights to everyone within their jurisdiction. Article 14 requires the enjoyment of Convention rights to be secured without discrimination on the ground of nationality. The Government’s explanation in its discussion paper of its reluctance to seek the same powers in relation to UK nationals appears to suggest that it regards the liberty interests of foreign nationals as less worthy of protection than exactly the same interests of UK nationals, which is impermissible under the Convention.”\n\nC.  The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)\n\nC.  The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)\n\n101.  The CPT visited the detained applicants in February 2002 and again in March 2004. In its report published on 9 June 2005, the CPT was critical of the conditions in which the applicants were held in Belmarsh Prison and Broadmoor Secure Mental Hospital and reported allegations of ill-treatment by staff. It found the regime in Woodhill Prison to be more relaxed. The CPT found that the health of the majority of the detained applicants had declined as a result of their detention, in particular its indefinite character. The CPT stated in its report:\n\n“In fact, the information gathered during the 2004 visit reveals that the authorities are at a loss at how to manage this type of detained person, imprisoned with no real prospect of release and without the necessary support to counter the damaging effects of this unique form of detention. They also highlight the limited capacity of the prison system to respond to a task that is difficult to reconcile with its normal responsibilities. The stated objective, in the response to the CPT’s report on the February 2002 visit, of formulating a strategy to enable the Prison Service to manage most appropriately the care and detention of persons held under the 2001 Act, has not been achieved.\n\nTwo years after the CPT visited these detained persons, many of them were in a poor mental state as a result of their detention, and some were also in poor physical condition. Detention had caused mental disorders in the majority of persons detained under the [2001 Act] and for those who had been subjected to traumatic experiences or even torture in the past, it had clearly reawakened the experience and even led to the serious recurrence of former disorders. The trauma of detention had become even more detrimental to their health since it was combined with an absence of control resulting from the indefinite character of their detention, the uphill difficulty of challenging their detention and the fact of not knowing what evidence was being used against them to certify and/or uphold their certification as persons suspected of international terrorism. For some of them, their situation at the time of the visit could be considered as amounting to inhuman and degrading treatment.”\n\nTwo years after the CPT visited these detained persons, many of them were in a poor mental state as a result of their detention, and some were also in poor physical condition. Detention had caused mental disorders in the majority of persons detained under the [2001 Act] and for those who had been subjected to traumatic experiences or even torture in the past, it had clearly reawakened the experience and even led to the serious recurrence of former disorders. The trauma of detention had become even more detrimental to their health since it was combined with an absence of control resulting from the indefinite character of their detention, the uphill difficulty of challenging their detention and the fact of not knowing what evidence was being used against them to certify and/or uphold their certification as persons suspected of international terrorism. For some of them, their situation at the time of the visit could be considered as amounting to inhuman and degrading treatment.”\n\n102.  The Government published their response to the CPT’s 2004 report on 9 June 2005. The Government strongly disputed the allegations of ill-treatment by prison staff and pointed out that the detained applicants had at their disposal the remedies provided by administrative and civil law to all prisoners to complain of ill-treatment. The Government’s response continued:\n\n“Although the Government respects the conclusions reached by the delegates of the [CPT] based on the observations on the day of visit, it categorically rejects the suggestion that at any point during their detention the [2001 Act] detainees were treated in an ‘inhuman or degrading’ manner that may have amounted to a breach in the United Kingdom’s international human rights obligations. The Government firmly believes that at all times the detainees received appropriate care and treatment in Belmarsh and had access to all necessary medical support, both physical and psychological, from medical support staff and doctors. The Government accepts that the individuals had difficult backgrounds prior to detention, but does not accept that ‘detention had caused mental disorders’. Some of the detainees had mental health issues prior to detention, but that did not stop them engaging in the activities that led to their certification and detention. Mental health issues do not prevent an individual from posing a risk to national security.\n\n...\n\nThe Government does not accept that those certified under [the 2001 Act] were detained without any prospect of their release. ...\n\n...\n\nOn no occasion did SIAC, or any other court, find that the conditions of detention breached the absolute obligation imposed upon the Government by Article 3 of [the Convention]. It is the Government’s view that, given the extensive judicial safeguards available to the detainees, the Government would not have been able to maintain the detention of these individuals had the powers breached the detainees’ Article 3 rights in any way. To suggest otherwise would be to ignore the extensive contact the detainees had with the British judicial system and the absolute obligation upon the judiciary to protect against any such breach.”\n\nD.  The European Commissioner for Human Rights\n\nD.  The European Commissioner for Human Rights\n\n103.  In August 2002 the European Commissioner for Human Rights to the Council of Europe published his opinion on certain aspects of the United Kingdom’s derogation from Article 5 of the Convention and Part 4 of the 2001 Act. In that opinion he expressly criticised the lack of sufficient scrutiny by Parliament of the derogation provisions and questioned whether the nature of the al-Qaeda threat was a justifiable basis for recognising a public emergency threatening the life of the nation:\n\n“Whilst acknowledging the obligations of the governments to protect their citizens against the threat of terrorism, the Commissioner is of the opinion that general appeals to an increased risk of terrorist activity post September 11 2001 cannot, on their own be sufficient to justify derogating from the Convention. Several European States long faced with recurring terrorist activity have not considered it necessary to derogate from Convention rights. Nor have any found it necessary to do so under the present circumstances. Detailed information pointing to a real and imminent danger to public safety in the  will, therefore, have to be shown.”\n\nThe Commissioner continued, with reference to the detention scheme under Part 4 of the 2001 Act:\n\n“In so far as these measures are applicable only to non-deportable foreigners, they might appear, moreover, to be ushering in a two-track justice, whereby different human rights standards apply to foreigners and nationals.”\n\n104.  On 8 June 2005 the Commissioner published a report arising out of his visit to the  in November 2004. He specifically referred to the House of Lords’ decision in the applicants’ case and noted the fact that the Government had not sought to renew the relevant provisions of the 2001 Act in March 2005. He welcomed the decision of the House of Lords, which corresponded with his own previously published opinion, and also welcomed the release of the applicants, emphasising that as a result of his visit he was in a position personally to testify to “the extremely agitated psychological state of many of them”. As a result of interviews which he had conducted with, among others, the Home Secretary, the Lord Chancellor, the Attorney-General, the Lord Chief Justice and the Director of Public Prosecutions, the Commissioner also expressed a conclusion about the availability under the law of the United Kingdom of alternative measures to combat the threat of terrorism:\n\n“Terrorist activity not only must but can be combated within the existing framework of human rights guarantees, which provide precisely for a balancing, in questions concerning national security, of individual rights and the public interest and allow for the use of proportionate special powers. What is required is well-resourced policing, international cooperation and the forceful application of the law. It is to be noted, in this context, that in the Terrorist Act 2000, the United Kingdom already has amongst the toughest and most comprehensive anti-terror legislation in Europe.”\n\nE.  The United Nations Committee on the Elimination of All Forms of Racial Discrimination\n\nE.  The United Nations Committee on the Elimination of All Forms of Racial Discrimination\n\n105.  The Committee’s Concluding Observations on the United Kingdom, dated 10 December 2003, stated at paragraph 17:\n\n“17.  The Committee is deeply concerned about provisions of the Anti-terrorism, Crime and Security Act which provide for the indefinite detention without charge or trial, pending deportation, of non-nationals of the United Kingdom who are suspected of terrorism-related activities.\n\nWhile acknowledging the State Party’s national security concerns, the Committee recommends that the State Party seek to balance those concerns with the protection of human rights and its international legal obligations. In this regard, the Committee draws the State Party’s attention to its statement of 8 March 2002 in which it underlines the obligation of States to ‘ensure that measures taken in the struggle against terrorism do not discriminate in purpose or effect on grounds of race, colour, descent, or national or ethnic origin’.”\n\nIV.  OTHER RELEVANT COUNCIL OF EUROPE MATERIALS\n\nA.  Council of Europe Parliamentary Assembly Resolution 1271 (2002)\n\nA.  Council of Europe Parliamentary Assembly Resolution 1271 (2002)\n\n106.  On 24 January 2002 the Council of Europe’s Parliamentary Assembly adopted Resolution 1271 (2002) which resolved, in paragraph 9:\n\n“In their fight against terrorism, Council of Europe members should not provide for any derogations to the European Convention on Human Rights.”\n\nIn paragraph 12, it also called on all member States to:\n\n“... refrain from using Article 15 of the European Convention on Human Rights (derogation in time of emergency) to limit the rights and liberties guaranteed under its Article 5 (right to liberty and security).”\n\nApart from the United Kingdom, no other member State chose to derogate from Article 5 § 1 after 11 September 2001.\n\nB.  The Committee of Ministers of the Council of Europe\n\nB.  The Committee of Ministers of the Council of Europe\n\n107.  Following its meeting on 14 November 2001 to discuss “Democracies facing terrorism” (CM/AS(2001) Rec 1534), the Committee of Ministers adopted on 11 July 2002 “Guidelines on human rights and the fight against terrorism”, which provided, inter alia:\n\n“I.  States’ obligation to protect everyone against terrorism\n\nStates are under the obligation to take the measures needed to protect the fundamental rights of everyone within their jurisdiction against terrorist acts, especially the right to life. This positive obligation fully justifies States’ fight against terrorism in accordance with the present guidelines.\n\nII.  Prohibition of arbitrariness\n\nAll measures taken by States to fight terrorism must respect human rights and the principle of the rule of law, while excluding any form of arbitrariness, as well as any discriminatory or racist treatment, and must be subject to appropriate supervision.”\n\nC.  The European Commission against Racism and Intolerance (ECRI)\n\nC.  The European Commission against Racism and Intolerance (ECRI)\n\n108.  In its General Policy Recommendation No. 8 on combating racism while fighting terrorism, published on 8 June 2004, ECRI considered it the duty of the State to fight against terrorism; stressed that the response should not itself encroach on the values of freedom, democracy, justice, the rule of law, human rights and humanitarian law; stressed that the fight against terrorism should not become a pretext under which racial discrimination was allowed to flourish; noted that the fight against terrorism since 11 September 2001 had in some cases resulted in the adoption of discriminatory legislation, notably on grounds of nationality, national or ethnic origin and religion; stressed the responsibility of member States to ensure that the fight against terrorism did not have a negative impact on any minority group; and recommended States:\n\n“... to review legislation and regulations adopted in connection with the fight against terrorism to ensure that these do not discriminate directly or indirectly against persons or group of persons, notably on grounds of ‘race’, colour, language, religion, nationality or national or ethnic origin, and to abrogate any such discriminatory legislation.”\n\nV.  THE NOTION OF A “PUBLIC EMERGENCY” UNDER ARTICLE 4 OF THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (ICCPR)\n\nV.  THE NOTION OF A “PUBLIC EMERGENCY” UNDER ARTICLE 4 OF THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (ICCPR)\n\n109.  Article 4 § 1 of the ICCPR states as follows:\n\n“In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.”\n\nIn spring 1984, a group of thirty-one experts in international law, convened by the International Commission of Jurists, the International Association of Penal law, the American Association for the International Commission of Jurists, the Urban Morgan Institute for Human Rights and the International Institute of Higher Studies in Criminal Sciences, met in Siracusa (Italy) to consider the above provision, inter alia. Paragraphs 3940 of the resulting “Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights” declare, under the heading “Public emergency which threatens the life of the nation”:\n\n“39.  A State Party may take measures derogating from its obligations under the International Covenant on Civil and Political Rights pursuant to Article 4 (hereinafter called ‘derogation measures’) only when faced with a situation of exceptional and actual or imminent danger which threatens the life of the nation. A threat to the life of the nation is one that:\n\n(a)  affects the whole of the population and either the whole or part of the territory of the State; and\n\n(b)  threatens the physical integrity of the population, the political independence or the territorial integrity of the State or the existence or basic functioning of institutions indispensable to ensure and protect the rights recognised in the Covenant.\n\n40.  Internal conflict and unrest that do not constitute a grave and imminent threat to the life of the nation cannot justify derogations under Article 4.”\n\nParagraph 54 of the Siracusa Principles continues as follows:\n\n“54.  The principle of strict necessity shall be applied in an objective manner. Each measure shall be directed to an actual, clear, present, or imminent danger and may not be imposed merely because of an apprehension of potential danger.”\n\n110.  The United Nations Human Rights Committee, in General Comment No. 29 on Article 4 of the ICCPR (24 July 2001), observed in paragraph 2:\n\n“Measures derogating from the provisions of the Covenant must be of an exceptional and temporary nature.”\n\nVI.  OTHER MATERIALS CONCERNING NON-DISCLOSURE OF EVIDENCE IN NATIONAL SECURITY CASES\n\n111.  In Charkaoui v. Minister of Citizenship and Immigration [2007] 1 SCR 350, McLachlin CJ, for the Supreme Court of Canada, observed in paragraph 53:\n\n“Last but not least, a fair hearing requires that the affected person be informed of the case against him or her, and be permitted to respond to it.”\n\nThat right was not absolute and might be limited in the interests of national security (paragraphs 57-58); however, paragraph 64 provides:\n\n“... The judge is therefore not in a position to compensate for the lack of informed scrutiny, challenge and counter-evidence that a person familiar with the case could bring. Such scrutiny is the whole point of the principle that a person whose liberty is in jeopardy must know the case to meet. Here that principle has not merely been limited; it has been effectively gutted. How can one meet a case one does not know?”\n\n112.  In Hamdi v. Rumsfeld 542 US 507 (2004), O’Connor J, writing for the majority of the Supreme Court of the United States of America, said (p. 533):\n\n“We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decision-maker [authority cited]. ‘For more than a century the central meaning of procedural due process has been clear: Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified ...’ These essential constitutional promises may not be eroded.”\n\n113.  The Council of Europe’s Commissioner for Human Rights, in paragraph 21 of his report of 8 June 2005 (see paragraph 104 above), and the Joint Parliamentary Committee on Human Rights (see paragraph 100 above), in paragraph 76 of its Twelfth Report of the Session 2005-2006, (HL Paper 122, HC 915) had difficulty in accepting that a hearing could be fair if an adverse decision could be based on material that the controlled person has no effective opportunity to challenge or rebut.\n\nTHE LAW\n\nI.  ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION AND OF ARTICLE 13 TAKEN IN CONJUNCTION WITH ARTICLE 3\n\n114.  The applicants alleged that their detention under Part 4 of the 2001 Act breached their rights under Article 3 of the Convention, which provides:\n\n“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”\n\nThey further complained that they were denied an effective remedy for their Article 3 complaints, in breach of Article 13 of the Convention, which states:\n\n“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”\n\nA.  The parties’ submissions\n\n1.  The applicants\n\n115.  The applicants stressed that each was in the  because the opportunity of a safe haven in his own country or elsewhere was denied to him. The first applicant was a stateless Palestinian and had nowhere else to go. Several had experienced torture before coming to the . Under the 2001 Act they were put in the position of having to choose between conditions of detention which they found intolerable and the risk of whatever treatment they might have to suffer if they consented to deportation. Moreover, their previous experiences and pre-existing mental and physical problems made them particularly vulnerable to the ill effects of arbitrary detention. The discrimination they suffered, since only foreign nationals were subject to detention under the 2001 Act, compounded their anguish.\n\n116.  The high security conditions of detention, in Belmarsh Prison and Broadmoor Secure Mental Hospital, were inappropriate and damaging to their health. More fundamentally, however, the indeterminate nature of the detention, with no end in sight, and its actual long duration gave rise to abnormal suffering, in excess of that inherent in detention. This was compounded by other unusual aspects of the regime, such as the secret nature of the evidence against them. The fact that the indifference of the authorities to the applicants’ situation was sanctioned by parliamentary statute did not mitigate their suffering.\n\n117.  Taken cumulatively, these factors caused the applicants an intense degree of anguish. The medical evidence and reports of the CPT and group of consultant psychiatrists (see paragraphs 101 and 76 above) demonstrated that the detention regime also harmed or seriously risked harming all of them and, in the case of the first, fifth, seventh and tenth applicants, did so extensively.\n\n118.  The applicants claimed that SIAC’s power to grant bail did not effectively function during the period when they were detained: firstly, because the scope of the remedy was jurisdictionally unclear; secondly, because the procedure was subject to delay; thirdly, because the threshold for granting bail was too high. An applicant for bail was required to demonstrate an “overwhelming likelihood” that his continued detention would lead to a physical or mental deterioration, such as to constitute inhuman and degrading treatment contrary to Article 3 of the Convention. The jurisdiction was described as “exceptional”, requiring the “circumstances to be extreme”. Even then, the only available remedy was to substitute house arrest for detention (see paragraph 79 above).\n\n2.  The Government\n\n119.  The Government denied that the applicants’ rights under Article 3 had been infringed. They pointed out that SIAC and the Court of Appeal had rejected the applicants’ complaints under Article 3 and that the House of Lords had not found it necessary to determine them (see paragraphs 15, 16 and 22 above).\n\n120.  Detention without charge was not in itself contrary to Article 3 and in many instances it was permitted under Article 5 § 1. The detention was indeterminate but not indefinite. The legislation remained in force for only five years and was subject to annual renewal by both Houses of Parliament. Each applicant’s detention depended on his individual circumstances continuing to justify it, including the degree of threat to national security which he represented and the possibility to deport him to a safe country, and was subject to review every six months by SIAC. Each applicant was informed of the reason for the suspicion against him and given as much of the underlying evidence as possible and provided with as fair a procedure as possible to challenge the grounds for his detention. Moreover, SIAC was able to grant bail if necessary. The applicants were not, therefore, detained without hope of release: on the contrary there was the opportunity to apply for release together with mandatory review by the court to ensure that detention remained both lawful and proportionate in all the circumstances. It also remained open to the applicants to leave the , as the second and fourth applicants chose to do.\n\n121.  The applicants were judged to pose a serious threat to national security and were accordingly held in high security conditions, which were not inhuman or degrading. Each was provided with appropriate treatment for his physical and mental health problems and the individual circumstances of each applicant, including his mental health, were taken into account in determining where he should be held and whether he should be released on bail. A Special Unit was created at Woodhill Prison of which the applicants refused to make use (see paragraph 71 above).\n\n122.  To the extent that the applicants relied on their individual conditions of detention and their personal circumstances, they had not exhausted domestic remedies because they had not made any attempt to bring the necessary challenges. Any specific complaint about the conditions of detention could have been the subject of separate legal challenge. The prison authorities were subject to the requirements of the 1998 Act (see paragraph 94 above) and had an obligation under section 6(1) to act compatibly with the Article 3 rights of the applicants in their custody. In so far as the applicants’ complaints under Article 3 were based on the indeterminate nature of their detention, this was provided for by primary legislation (Part 4 of the 2001 Act), and Article 13 did not import the right to challenge in a domestic court a deliberate choice expressed by the legislature.\n\nB.  The Court’s assessment\n\n1.  Admissibility\n\n123.  The Court observes that the second applicant was placed in detention under Part 4 of the 2001 Act on 19 December 2001 and that he was released on 22 December 2001, following his decision voluntarily to return to  (see paragraph 35 above). Since he was, therefore, detained for only a few days and since there is no evidence that during that time he suffered any hardship beyond that inherent in detention, his complaint under Article 3 is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.\n\nSince Article 13 requires the provision of a domestic remedy in respect of “arguable complaints” under the Convention (see, for example, Ramirez Sanchez v. France [GC], no. 59450/00, § 157, ECHR 2006-IX), it follows that the second applicant’s complaint under Article 13 is also manifestly ill-founded.\n\nBoth these complaints by the second applicant must therefore be declared inadmissible.\n\n124.  The Court notes the Government’s assertion that there was a remedy available to the applicants under the 1998 Act, which they neglected to use. However, since the applicants complain under Article 13 that the remedies at their disposal in connection with their Article 3 complaints were ineffective, the Court considers that it is necessary to consider the Government’s objection concerning non-exhaustion together with the merits of the complaints under Articles 3 and 13.\n\n125.  The Court considers that, save those of the second applicant, the applicants’ complaints under Articles 3 and 13 of the Convention raise complex issues of law and fact, the determination of which should depend on an examination of the merits. It concludes, therefore, that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground of inadmissibility has been raised and it must be declared admissible.\n\n2.  The merits\n\n(a)  General principles\n\n126.  The Court is acutely conscious of the difficulties faced by States in protecting their populations from terrorist violence. This makes it all the more important to stress that Article 3 enshrines one of the most fundamental values of democratic societies. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 notwithstanding the existence of a public emergency threatening the life of the nation. Even in the most difficult of circumstances, such as the fight against terrorism, and irrespective of the conduct of the person concerned, the Convention prohibits in absolute terms torture and inhuman or degrading treatment and punishment (see Ramirez Sanchez, cited above, §§ 115-16).\n\n127.  Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see Kafkaris v. Cyprus [GC], no. 21906/04, § 95, ECHR 2008). The Court has considered treatment to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical or mental suffering. It has deemed treatment to be “degrading” because it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them (see, among other authorities, Kudła v. Poland [GC], no. 30210/96, § 92, ECHR 2000-XI). In considering whether a punishment or treatment was “degrading” within the meaning of Article 3, the Court will have regard to whether its object was to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3. However, the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3. In order for a punishment or treatment associated with it to be “inhuman” or “degrading”, the suffering or humiliation involved must go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment (see Ramirez Sanchez, cited above, §§ 118-19).\n\n128.  Where a person is deprived of his liberty, the State must ensure that he is detained under conditions which are compatible with respect for his human dignity and that the manner and method of the execution of the measure do not subject him to distress or hardship exceeding the unavoidable level of suffering inherent in detention (see Kudła, cited above, §§ 92-94). Although Article 3 cannot be construed as laying down a general obligation to release detainees on health grounds, it nonetheless imposes an obligation on the State to protect the physical and mental well-being of persons deprived of their liberty, for example by providing them with the requisite medical assistance (see Hurtado v. Switzerland, 28 January 1994, Series A no. 280-A, opinion of the Commission, § 79; Mouisel v. , no. 67263/01, § 40, ECHR 2002-IX; Aerts v. Belgium, 30 July 1998, § 66, Reports 1998-V; and Keenan v. the United Kingdom, no. 27229/95, § 111, ECHR 2001-III). When assessing conditions of detention, account has to be taken of the cumulative effects of those conditions, as well as the specific allegations made by the applicant (see Ramirez Sanchez, cited above, § 119). The imposition of an irreducible life sentence on an adult, without any prospect of release, may raise an issue under Article 3, but where national law affords the possibility of review of a life sentence with a view to its commutation, remission, termination or the conditional release of the prisoner, this will be sufficient (see Kafkaris, cited above, §§ 97-98).\n\n(b)  Application to the facts of the present case\n\n129.  The Court notes that three of the applicants were held for approximately three years and three months while the others were held for shorter periods. During a large part of that detention, the applicants could not have foreseen when, if ever, they would be released. They refer to the findings of the Joint Psychiatric Report and contend that the indefinite nature of their detention caused or exacerbated serious mental health problems in each of them. The Government dispute this conclusion and rely on Dr J.’s report, which criticised the methodology of the authors of the Joint Report (see paragraphs 76-77 above).\n\n130.  The Court considers that the uncertainty regarding their position and the fear of indefinite detention must, undoubtedly, have caused the applicants great anxiety and distress, as it would virtually any detainee in their position. Furthermore, it is probable that the stress was sufficiently serious and enduring to affect the mental health of certain of the applicants. This is one of the factors which the Court must take into account when assessing whether the threshold of Article 3 was attained.\n\n131.  It cannot, however, be said that the applicants were without any prospect or hope of release (see Kafkaris, cited above, § 98). In particular, they were able to bring proceedings to challenge the legality of the detention scheme under the 2001 Act and were successful before SIAC on 30 July 2002, and before the House of Lords on 16 December 2004. In addition, each applicant was able to bring an individual challenge to the decision to certify him and SIAC was required by statute to review the continuing case for detention every six months. The Court does not, therefore, consider that the applicants’ situation was comparable to an irreducible life sentence, of the type designated in the Kafkaris judgment as capable of giving rise to an issue under Article 3.\n\n132.  The applicants further contend that the conditions in which they were held contributed towards an intolerable level of suffering. The Court notes in this respect that the Joint Psychiatric Report also contained criticisms of the prison health-care system and concluded that there was inadequate provision for the applicants’ complex health problems. These concerns were echoed by the CPT, which made detailed allegations about the conditions of detention and concluded that for some of the applicants, “their situation at the time of the visit could be considered as amounting to inhuman and degrading treatment”. The Government strongly disputed these criticisms in their response to the CPT’s report (see paragraphs 101-02 above).\n\n133.  The Court observes that each detained applicant had at his disposal the remedies available to all prisoners under administrative and civil law to challenge conditions of detention, including any alleged inadequacy of medical treatment. The applicants did not attempt to make use of these remedies and did not therefore comply with the requirement under Article 35 of the Convention to exhaust domestic remedies. It follows that the Court cannot examine the applicants’ complaints about their conditions of detention; nor can it, in consequence, take the conditions of detention into account in forming a global assessment of the applicants’ treatment for the purposes of Article 3.\n\n134.  In all the above circumstances, the Court does not find that the detention of the applicants reached the high threshold of inhuman and degrading treatment.\n\n135.  The applicants also complained that they did not have effective domestic remedies for their Article 3 complaints, in breach of Article 13. In this connection, the Court repeats its above finding that civil and administrative law remedies were available to the applicants had they wished to complain about their conditions of detention. As for the more fundamental aspect of the complaints, that the very nature of the detention scheme in Part 4 of the 2001 Act gave rise to a breach of Article 3, the Court reiterates that Article 13 does not guarantee a remedy allowing a challenge to primary legislation before a national authority on the ground of being contrary to the Convention (see James and Others v. the United Kingdom, 21 February 1986, § 85, Series A no. 98, and Roche v. the United Kingdom [GC], no. 32555/96, § 137, ECHR 2005-X).\n\n136.  In conclusion, therefore, the Court does not find a violation of Article 3, taken alone or in conjunction with Article 13.\n\nII.  ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION\n\n137.  The applicants contended that their detention was unlawful and incompatible with Article 5 § 1 of the Convention.\n\n138.  In their first set of written observations, following the communication of the application by the Chamber, the Government indicated that they would not seek to raise the question of derogation under Article 15 of the Convention as a defence to the claim based on Article 5 § 1, but would leave that point as determined against them by the House of Lords. Instead, they intended to focus their argument on the defence that the applicants were lawfully detained with a view to deportation, within the meaning of Article 5 § 1 (f).\n\nHowever, in their written observations to the Grand Chamber, dated 11 February 2008, the Government indicated for the first time that they wished to argue that the applicants’ detention did not in any event give rise to a violation of Article 5 § 1 because the United Kingdom’s derogation under Article 15 was valid.\n\n139.  Article 5 § 1 of the Convention provides, in so far as relevant:\n\n“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:\n\n...\n\n(f)  the lawful arrest or detention of a person ... against whom action is being taken with a view to deportation or extradition.”\n\nArticle 15 of the Convention states:\n\n“1.  In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under [the] Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.\n\n2.  No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision.\n\n3.  Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefore. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.”\n\nA.  The parties’ submissions\n\n1.  The applicants\n\n140.  The applicants objected that before the domestic courts the Government had not sought to argue that they were detained as “person[s] against whom action is being taken with a view to deportation or extradition”, but had instead relied on the derogation under Article 15. In these circumstances, the applicants contended that it was abusive and contrary to the principle of subsidiarity for the Government to raise a novel argument before the Court and that they should be stopped from so doing.\n\n141.  In the event that the Court considered that it could entertain the Government’s submission, the applicants emphasised that the guarantee in Article 5 was of fundamental importance and exceptions had to be strictly construed. Where, as in their case, deportation was not possible because of the risk of treatment contrary to Article 3 in the receiving country, Article 5 § 1 (f) would not authorise detention, irrespective of whether the individual posed a risk to national security. Merely keeping the possibility of deportation under review was not “action ... being taken with a view to deportation”; it was action, unrelated to any extant deportation proceedings, that might make the deportation a possibility in the future. Detention pursuant to such vague and non-specific “action” would be arbitrary. Moreover, it was clear that during the periods when the applicants’ cases were being considered by SIAC on appeal (July 2002-October 2003), the Government’s position was that they could not be deported compatibly with Article 3 and that no negotiations to effect deportation should be attempted with the proposed receiving States. As a matter of fact, therefore, the Government were not keeping the possibility of deporting the applicants “under active review”.\n\n142.  The applicants further contended that it was abusive of the Government, so late in the proceedings before the Grand Chamber, to challenge the House of Lords’ decision quashing the derogation. In the applicants’ view, it would be inconsistent with Article 19 and the principle of subsidiarity for the Court to be asked by a Government to review alleged errors of fact or law committed by that Government’s own national courts. The Government’s approach in challenging the findings of its own Supreme Court about legislation which Parliament had chosen to repeal aimed to limit the human rights recognised under domestic law and was thus in conflict with Article 53 of the Convention. Since the legislation had been revoked and the derogation withdrawn, the Government were in effect seeking to obtain from the Court an advisory opinion to be relied on potentially at some later stage. To allow the Government to proceed would impact substantially on the right of individual petition under Article 34 by deterring applicants from making complaints for fear that governments would try to upset the decisions of their own Supreme Courts.\n\n143.  In the event that the Court decided to review the legality of the derogation, the applicants contended that the Government should not be permitted to rely on arguments which they had not advanced before the domestic courts. These included, firstly, the contention that it was justifiable to detain non-national terrorist suspects while excluding nationals from such measures, because of the interest in cultivating loyalty among Muslim citizens, rather than exposing them to the threat of detention and the risk that they would thereby become radicalised and, secondly, the argument that the use of detention powers against foreign nationals freed up law enforcement resources to concentrate on United Kingdom nationals (see paragraph 151 below). Since the Government were seeking to introduce these justifications for the derogation which were never advanced before the domestic courts, the Court was being asked to act as a first-instance tribunal on highly controversial matters.\n\n144.  Again, if the Court decided to examine the legality of the derogation, there was no reason to give special deference to the findings of the national courts on the question whether there was an emergency within the meaning of Article 15. In the applicants’ submission, there were no judicial precedents for recognising that an inchoate fear of a terrorist attack, which was not declared to be imminent, was sufficient. All the examples in the Convention jurisprudence related to derogations introduced to combat ongoing terrorism which quite clearly jeopardised the entire infrastructure of Northern Ireland or south-east Turkey. The domestic authorities were wrong in interpreting Article 15 as permitting a derogation where the threat was not necessarily directed at the  but instead at other nations to which it was allied.\n\n145.  In any event, the enactment of Part 4 of the 2001 Act and the power contained therein to detain foreign nationals indeterminately without charge was not “strictly required by the exigencies of the situation”, as the House of Lords found. The impugned measures were not rationally connected to the need to prevent a terrorist attack on the  and they involved unjustifiable discrimination on grounds of nationality. SIAC – which saw both the closed and open material on the point – concluded that there was ample evidence that British citizens posed a very significant threat. There could be no grounds for holding that the fundamental right of liberty was less important for a non-national than a national. Aliens enjoyed a right of equal treatment outside the context of immigration and political activity, as a matter of well-established domestic, Convention and public international law. There were other, less intrusive, measures which could have been used to address the threat: for example, the use of control orders as created by the Prevention of Terrorism Act 2005; the creation of additional criminal offences to permit for the prosecution of individuals engaged in preparatory terrorist activity; or the lifting of the ban on the use of material obtained by the interception of communications in criminal proceedings.\n\n2.  The Government\n\n146.  The Government contended that States have a fundamental right under international law to control the entry, residence and expulsion of aliens. Clear language would be required to justify the conclusion that the Contracting States intended through the Convention to give up their ability to protect themselves against a risk to national security created by a non-national. As a matter of ordinary language, “action being taken with a view to deportation” covered the situation where a  wished to deport an alien, actively kept that possibility under review and only refrained from doing so because of contingent, extraneous circumstances. In Chahal v. the United Kingdom (15 November 1996, Reports 1996V), a period of detention of over six years, including over three years where the applicant could not be removed because of an interim measure requested by the Commission, was held to be acceptable under Article 5 § 1 (f).\n\n147.  Each applicant was served a notice of intention to deport at the same time as he was certified under the 2001 Act. The second and fourth applicants elected to go to Morocco and France respectively, and were allowed to leave the United Kingdom as soon as could be arranged, so no issue could arise under Article 5 § 1 in their respect. The possibility of deporting the other applicants was kept under active review throughout the period of their detention. This involved monitoring the situation in their countries of origin. Further, from the end of 2003 onwards the Government were in negotiation with the governments of Algeria and Jordan, with a view to entering into memoranda of understanding that the applicants who were nationals of those countries would not be ill-treated if returned.\n\n148.  The Government relied on the principle of fair balance, which underlies the whole Convention, and reasoned that sub-paragraph (f) of Article 5 § 1 had to be interpreted so as to strike a balance between the interests of the individual and the interests of the State in protecting its population from malevolent aliens. Detention struck that balance by advancing the legitimate aim of the State to secure the protection of the population without sacrificing the predominant interest of the alien to avoid being returned to a place where he faced torture or death. The fair balance was further preserved by providing the alien with adequate safeguards against the arbitrary exercise of the detention powers in national security cases.\n\n149.  In the alternative, the detention of the applicants was not in breach of the Convention because of the derogation under Article 15. There was a public emergency threatening the life of the nation at the relevant time. That assessment was subjected to full scrutiny by the domestic courts. The evidence in support, both open and closed, was examined by SIAC in detail, with the benefit of oral hearings at which witnesses were cross-examined. SIAC unanimously upheld the Government’s assessment, as did the unanimous Court of Appeal and eight of the nine judges in the House of Lords. In the light of the margin of appreciation to be afforded to the national authorities on this question, there was no proper basis on which the Court could reach a different conclusion.\n\n150.  The Government explained that they accorded very great respect to the House of Lords’ decision and declaration of incompatibility and that they had repealed the offending legislation. Nonetheless, when the decision was made to refer the case to the Grand Chamber, they decided that it was necessary to challenge the House of Lords’ reasoning and conclusions, bearing in mind the wide constitutional importance of the issue and the ongoing need for Contracting States to have clear guidance from the Grand Chamber as to the measures they might legitimately take to try to prevent the terrorist threat from materialising. They submitted that the House of Lords had erred in affording the State too narrow a margin of appreciation in assessing what measures were strictly necessary; in this connection it was relevant to note that Part 4 of the 2001 Act was not only the product of the judgment of the Government but was also the subject of debate in Parliament. Furthermore, the domestic courts had examined the legislation in the abstract, rather than considering the applicants’ concrete cases, including the impossibility of removing them, the threat each posed to national security, the inadequacy of enhanced surveillance or other controls short of detention and the procedural safeguards afforded to each applicant.\n\n151.  Finally, the House of Lords’ conclusion had turned not on a rejection of the necessity to detain the applicants but instead on the absence of a legislative power to detain also a national who posed a risk to national security and was suspected of being an international terrorist. However, there were good reasons for detaining only non-nationals and the Convention expressly and impliedly recognised that distinction was permissible between nationals and non-nationals in the field of immigration. The primary measure which the Government wished to take against the applicants was deportation, a measure permitted against a non-national but not a national. The analogy drawn by the House of Lords between “foreigners [such as the applicants] who cannot be deported” and “British nationals who cannot be deported” was false, because the applicants at the time of their detention were not irremovable in the same way that a British citizen is irremovable. Furthermore, at the relevant time the Government’s assessment was that the greater risk emanated from non-nationals and it was legitimate for a State, when dealing with a national emergency, to proceed on a step-by-step basis and aim to neutralise what was perceived as the greatest threat first, thereby also freeing resources to deal with the lesser threat coming from British citizens. In addition, it was reasonable for the State to take into account the sensitivities of its Muslim population in order to reduce the chances of recruitment among them by extremists.\n\n3.  The third party,\n\n152.  Liberty (see paragraph 6 above) submitted that, by reserving before the domestic courts the issue whether the detention was compatible with Article 5 § 1, the Government had deprived the Court of the benefit of the views of the House of Lords and had pursued a course of action which would not be open to an applicant. In any event, the detention did not fall within the exception in Article 5 § 1 (f), since Part 4 of the 2001 Act permitted indefinite detention and since there was no tangible expectation of being able to deport the applicants during the relevant time. If the Government were unable to remove the applicants because of their Article 3 rights, they could not properly rely on national security concerns as a basis for diluting or modifying their Article 5 rights. Instead, the proper course was either to derogate from Article 5 to the extent strictly required by the situation or to prosecute the individuals concerned with one of the plethora of criminal terrorist offences on the United Kingdom’s statute books, which included professed membership of a proscribed organisation, failure to notify the authorities of suspected terrorist activity, possession of incriminating articles and indirect encouragement to commit, prepare or instigate acts of terrorism (see paragraphs 89 and 95 above).\n\nB.  The Court’s assessment\n\n1.  The scope of the case before the Court\n\n153.  The Court must start by determining the applicants’ first preliminary objection, according to which the Government should be precluded from raising a defence to the complaints under Article 5 § 1 based on the exception in sub-paragraph 5 § 1 (f), on the ground that they did not pursue it before the domestic courts.\n\n154.  The Court is intended to be subsidiary to the national systems safeguarding human rights. It is, therefore, appropriate that the national courts should initially have the opportunity to determine questions of the compatibility of domestic law with the Convention and that, if an application is nonetheless subsequently brought before the Court, it should have the benefit of the views of the national courts, as being in direct and continuous contact with the forces of their countries (see Burden v. the United Kingdom [GC], no. 13378/05, § 42, ECHR 2008). It is thus of importance that the arguments put by the Government before the national courts should be on the same lines as those put before this Court. In particular, it is not open to a Government to put to the Court arguments which are inconsistent with the position they adopted before the national courts (see, mutatis mutandis, Pine Valley Developments Ltd and Others v. Ireland, 29 November 1991, § 47, Series A no. 222, and Kolompar v. Belgium, 24 September 1992, §§ 31-32, Series A no. 235-C).\n\n155.  The Court does not, however, consider that the Government are estopped from seeking to rely on sub-paragraph (f) of Article 5 § 1 to justify the detention. It is clear that the Government expressly kept open, in the text of the derogation and during the derogation proceedings before the domestic courts, the question of the application of Article 5. Moreover, the majority of the House of Lords either explicitly or impliedly considered whether the detention was compatible with Article 5 § 1 before assessing the validity of the derogation (see paragraph 17 above).\n\n156.  The applicants further contended that the Government should not be permitted to dispute before the Court the House of Lords’ finding that the derogation was invalid.\n\n157.  The present situation is, undoubtedly, unusual in that Governments do not normally resort to challenging, nor see any need to contest, decisions of their own highest courts before this Court. There is not, however, any prohibition on a Government making such a challenge, particularly if they consider that the national Supreme Court’s ruling is problematic under the Convention and that further guidance is required from the Court.\n\n158.  In the present case, because a declaration of incompatibility under the Human Rights Act 1998 is not binding on the parties to the domestic litigation (see paragraph 94 above), the applicants’ success in the House of Lords led neither to their immediate release nor to the payment of compensation for unlawful detention and it was therefore necessary for them to lodge the present application. The Court does not consider that there is any reason of principle why, since the applicants have requested it to examine the lawfulness of their detention, the Government should not now have the chance to raise all the arguments open to them to defend the proceedings, even if this involves calling into question the conclusion of their own Supreme Court.\n\n159.  The Court therefore dismisses the applicants’ two preliminary objections.\n\n2.  Admissibility\n\n160.  The Court considers that the applicants’ complaints under Article 5 § 1 of the Convention raise complex issues of law and fact, the determination of which should depend on an examination of the merits. It concludes, therefore, that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground of inadmissibility has been raised and it must be declared admissible.\n\n3.  The merits\n\n161.  The Court must first ascertain whether the applicants’ detention was permissible under Article 5 § 1 (f), because if that sub-paragraph does provide a defence to the complaints under Article 5 § 1, it will not be necessary to determine whether or not the derogation was valid (see Ireland v. the United Kingdom, 18 January 1978, § 191, Series A no. 25).\n\n(a)  Whether the applicants were lawfully detained in accordance with Article 5 § 1 (f) of the Convention\n\n162.  Article 5 enshrines a fundamental human right, namely the protection of the individual against arbitrary interference by the State with his or her right to liberty (see Aksoy v. Turkey, 18 December 1996, § 76, Reports 1996-VI). The text of Article 5 makes it clear that the guarantees it contains apply to “everyone”.\n\n163.  Sub-paragraphs (a) to (f) of Article 5 § 1 contain an exhaustive list of permissible grounds on which persons may be deprived of their liberty and no deprivation of liberty will be lawful unless it falls within one of those grounds (see Saadi v. the United Kingdom [GC], no. 13229/03, § 43, ECHR 2008). One of the exceptions, contained in sub-paragraph (f), permits the State to control the liberty of aliens in an immigration context (ibid., § 64). The Government contend that the applicants’ detention was justified under the second limb of that sub-paragraph and that they were lawfully detained as persons “against whom action is being taken with a view to deportation or extradition”.\n\n164.  Article 5 § 1 (f) does not demand that detention be reasonably considered necessary, for example to prevent the individual from committing an offence or fleeing. Any deprivation of liberty under the second limb of Article 5 § 1 (f) will be justified, however, only for as long as deportation or extradition proceedings are in progress. If such proceedings are not prosecuted with due diligence, the detention will cease to be permissible under Article 5 § 1 (f) (see Chahal, cited above, § 113). The deprivation of liberty must also be “lawful”. Where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law. Compliance with national law is not, however, sufficient: Article 5 § 1 requires in addition that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness. It is a fundamental principle that no detention which is arbitrary can be compatible with Article 5 § 1 and the notion of “arbitrariness” in Article 5 § 1 extends beyond lack of conformity with national law, so that a deprivation of liberty may be lawful in terms of domestic law but still arbitrary and thus contrary to the Convention (see Saadi, cited above, § 67). To avoid being branded as arbitrary, detention under Article 5 § 1 (f) must be carried out in good faith; it must be closely connected to the ground of detention relied on by the Government; the place and conditions of detention should be appropriate; and the length of the detention should not exceed that reasonably required for the purpose pursued (see, mutatis mutandis, Saadi, cited above, § 74).\n\n165.  The first, third, and sixth applicants were taken into detention under the 2001 Act on 19 December 2001; the seventh applicant was detained on 9 February 2002; the eighth applicant on 23 October 2002; the ninth applicant on 22 April 2002; the tenth applicant on 14 January 2003; and the eleventh applicant on 2 October 2003. None of these applicants was released until 10-11 March 2005. The fifth applicant was detained between 19 December 2001 and 22 April 2004, when he was released on bail subject to stringent conditions. The second and fourth applicants were also detained on 19 December 2001 but the second applicant was released on 22 December 2001, following his decision to return to Morocco, and the fourth applicant was released on 13 March 2002, following his decision to go to France. The applicants were held throughout in high security conditions at either Belmarsh or Woodhill Prisons or Broadmoor Secure Mental Hospital. It cannot, therefore, be disputed that they were deprived of their liberty within the meaning of Article 5 § 1 (see Engel and Others v. the Netherlands, 8 June 1976, Series A no. 22).\n\n165.  The first, third, and sixth applicants were taken into detention under the 2001 Act on 19 December 2001; the seventh applicant was detained on 9 February 2002; the eighth applicant on 23 October 2002; the ninth applicant on 22 April 2002; the tenth applicant on 14 January 2003; and the eleventh applicant on 2 October 2003. None of these applicants was released until 10-11 March 2005. The fifth applicant was detained between 19 December 2001 and 22 April 2004, when he was released on bail subject to stringent conditions. The second and fourth applicants were also detained on 19 December 2001 but the second applicant was released on 22 December 2001, following his decision to return to Morocco, and the fourth applicant was released on 13 March 2002, following his decision to go to France. The applicants were held throughout in high security conditions at either Belmarsh or Woodhill Prisons or Broadmoor Secure Mental Hospital. It cannot, therefore, be disputed that they were deprived of their liberty within the meaning of Article 5 § 1 (see Engel and Others v. the Netherlands, 8 June 1976, Series A no. 22).\n\n165.  The first, third, and sixth applicants were taken into detention under the 2001 Act on 19 December 2001; the seventh applicant was detained on 9 February 2002; the eighth applicant on 23 October 2002; the ninth applicant on 22 April 2002; the tenth applicant on 14 January 2003; and the eleventh applicant on 2 October 2003. None of these applicants was released until 10-11 March 2005. The fifth applicant was detained between 19 December 2001 and 22 April 2004, when he was released on bail subject to stringent conditions. The second and fourth applicants were also detained on 19 December 2001 but the second applicant was released on 22 December 2001, following his decision to return to Morocco, and the fourth applicant was released on 13 March 2002, following his decision to go to France. The applicants were held throughout in high security conditions at either Belmarsh or Woodhill Prisons or Broadmoor Secure Mental Hospital. It cannot, therefore, be disputed that they were deprived of their liberty within the meaning of Article 5 § 1 (see Engel and Others v. the Netherlands, 8 June 1976, Series A no. 22).\n\n166.  The applicants were foreign nationals whom the Government would have deported from the United Kingdom had it been possible to find a State to receive them where they would not face a real risk of being subjected to treatment contrary to Article 3 of the Convention (see Saadi v. Italy [GC], no. 37201/06, §§ 125 and 127, ECHR 2008). Although the respondent State’s obligations under Article 3 prevented the removal of the applicants from the United Kingdom, the Secretary of State nonetheless considered it necessary to detain them for security reasons, because he believed that their presence in the country was a risk to national security and suspected that they were or had been concerned in the commission, preparation or instigation of acts of international terrorism and were members of, belonged to or had links with an international terrorist group. Such detention would have been unlawful under domestic law prior to the passing of Part 4 of the 2001 Act, since the 1984 judgment in Hardial Singh entailed that the power of detention could not be exercised unless the person subject to the deportation order could be deported within a reasonable time (see paragraph 87 above). Thus, it was stated in the derogation notice lodged under Article 15 of the Convention that extended powers were required to arrest and detain a foreign national “where removal or deportation is not for the time being possible, with the consequence that the detention would be unlawful under existing domestic-law powers” (see paragraph 11 above).\n\n167.  One of the principal assumptions underlying the derogation notice, the 2001 Act and the decision to detain the applicants was, therefore, that they could not be removed or deported “for the time being” (see paragraphs 11 and 90 above). There is no evidence that during the period of the applicants’ detention there was, except in respect of the second and fourth applicants, any realistic prospect of their being expelled without this giving rise to a real risk of ill-treatment contrary to Article 3. Indeed, the first applicant is stateless and the Government have not produced any evidence to suggest that there was another State willing to accept him. It does not appear that the Government entered into negotiations with Algeria or Jordan, with a view to seeking assurances that the applicants who were nationals of those States would not be ill-treated if returned, until the end of 2003 and no such assurance was received until August 2005 (see paragraph 86 above). In these circumstances, the Court does not consider that the respondent Government’s policy of keeping the possibility of deporting the applicants “under active review” was sufficiently certain or determinative to amount to “action ... being taken with a view to deportation”.\n\n168.  The exceptions to this conclusion were the second applicant, who was detained for only three days prior to his return to Morocco, and the fourth applicant, who left the United Kingdom for  on 13 March 2002, having been detained for just under three months (see paragraphs 35 and 41 above). The Court considers that during these periods of detention it could reasonably be said that action was being taken against these applicants with a view to deportation, in that it appears that the authorities were still at that stage in the course of establishing their nationalities and investigating whether their removal to their countries of origin or to other countries would be possible (see Gebremedhin [Gaberamadhien] v. , no. 25389/05, § 74, ECHR 2007-II). Accordingly, there has been no violation of Article 5 § 1 of the Convention in respect of the second and fourth applicants.\n\n169.  It is true that even the applicants who were detained the longest were not held for as long as the applicant in Chahal (cited above), where the Court found no violation of Article 5 § 1 despite his imprisonment for over six years. However, in the Chahal case, throughout the entire period of the detention, proceedings were being actively and diligently pursued, before the domestic authorities and the Court, in order to determine whether it would be lawful and compatible with Article 3 of the Convention to proceed with the applicant’s deportation to India. The same cannot be said in the present case, where the proceedings have, instead, been primarily concerned with the legality of the detention.\n\n170.  In the circumstances of the present case it cannot be said that the first, third, fifth, sixth, seventh, eighth, ninth, tenth and eleventh applicants were persons “against whom action [was] being taken with a view to deportation or extradition”. Their detention did not, therefore, fall within the exception to the right to liberty set out in Article 5 § 1 (f) of the Convention. This is a conclusion which was also, expressly or impliedly, reached by a majority of the members of the House of Lords (see paragraph 17 above).\n\n171.  It is, instead, clear from the terms of the derogation notice and Part 4 of the 2001 Act that the applicants were certified and detained because they were suspected of being international terrorists and because it was believed that their presence at liberty in the United Kingdom gave rise to a threat to national security. The Court does not accept the Government’s argument that Article 5 § 1 permits a balance to be struck between the individual’s right to liberty and the State’s interest in protecting its population from terrorist threat. This argument is inconsistent not only with the Court’s jurisprudence under sub-paragraph (f) but also with the principle that sub-paragraphs (a) to (f) amount to an exhaustive list of exceptions and that only a narrow interpretation of these exceptions is compatible with the aims of Article 5. If detention does not fit within the confines of the sub-paragraphs as interpreted by the Court, it cannot be made to fit by an appeal to the need to balance the interests of the State against those of the detainee.\n\n172.  The Court reiterates that it has, on a number of occasions, found internment and preventive detention without charge to be incompatible with the fundamental right to liberty under Article 5 § 1, in the absence of a valid derogation under Article 15 (see Lawless v. Ireland (no. 3), 1 July 1961, pp. 34-36, §§ 13-14, Series A no. 3, and Ireland v. the United Kingdom, cited above, §§ 194-96 and 212-13). It must now, therefore, consider whether the United Kingdom’s derogation was valid.\n\n(b)  Whether the United Kingdom validly derogated from its obligations under Article 5 § 1 of the Convention\n\n173.  The Court reiterates that it falls to each Contracting State, with its responsibility for “the life of [its] nation”, to determine whether that life is threatened by a “public emergency” and, if so, how far it is necessary to go in attempting to overcome the emergency. By reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle better placed than the international judge to decide both on the presence of such an emergency and on the nature and scope of the derogations necessary to avert it. Accordingly, in this matter a wide margin of appreciation should be left to the national authorities.\n\nNonetheless, Contracting Parties do not enjoy an unlimited discretion. It is for the Court to rule whether, inter alia, the States have gone beyond the “extent strictly required by the exigencies” of the crisis. The domestic margin of appreciation is thus accompanied by a European supervision. In exercising this supervision, the Court must give appropriate weight to such relevant factors as the nature of the rights affected by the derogation and the circumstances leading to, and the duration of, the emergency situation (see Ireland v. the United Kingdom, cited above, § 207; Brannigan and McBride v. the United Kingdom, 26 May 1993, § 43, Series A no. 258-B; and Aksoy, cited above, § 68).\n\n174.  The object and purpose underlying the Convention, as set out in Article 1, is that the rights and freedoms should be secured by the  within its jurisdiction. It is fundamental to the machinery of protection established by the Convention that the national systems themselves provide redress for breaches of its provisions, with the Court exercising a supervisory role subject to the principle of subsidiarity (see Z and Others v. the United Kingdom [GC], no. 29392/95, § 103, ECHR 2001V). Moreover, the domestic courts are part of the “national authorities” to which the Court affords a wide margin of appreciation under Article 15. In the unusual circumstances of the present case, where the highest domestic court has examined the issues relating to the State’s derogation and concluded that there was a public emergency threatening the life of the nation but that the measures taken in response were not strictly required by the exigencies of the situation, the Court considers that it would be justified in reaching a contrary conclusion only if satisfied that the national court had misinterpreted or misapplied Article 15 or the Court’s jurisprudence under that Article or reached a conclusion which was manifestly unreasonable.\n\n175.  The applicants argued that there had been no public emergency threatening the life of the British nation, for three main reasons: firstly, the emergency was neither actual nor imminent; secondly, it was not of a temporary nature; and, thirdly, the practice of other States, none of which had derogated from the Convention, together with the informed views of other national and international bodies, suggested that the existence of a public emergency had not been established.\n\n176.  The Court reiterates that in Lawless (cited above, § 28), it held that in the context of Article 15 the natural and customary meaning of the words “other public emergency threatening the life of the nation” was sufficiently clear and that they referred to “an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the State is composed”. In the Greek case (Denmark, Norway, Sweden and the Netherlands v. Greece, nos. 3321/67, 3322/67, 3323/67 and 3344/67, Commission’s report of 5 November 1969, Yearbook 12, p. 70, § 113), the Commission held that, in order to justify a derogation, the emergency should be actual or imminent; that it should affect the whole nation to the extent that the continuance of the organised life of the community was threatened; and that the crisis or danger should be exceptional, in that the normal measures or restrictions, permitted by the Convention for the maintenance of public safety, health and order, were plainly inadequate. In Ireland v. the United Kingdom (cited above, §§ 205 and 212), the parties were agreed, as were the Commission and the Court, that the Article 15 test was satisfied, since terrorism had for a number of years represented “a particularly far-reaching and acute danger for the territorial integrity of the United Kingdom, the institutions of the six counties and the lives of the province’s inhabitants”. The Court reached similar conclusions as regards the continuing security situation in Northern Ireland in Brannigan and McBride (cited above) and Marshall v. the United Kingdom ((dec.), no. 41571/98, 10 July 2001). In Aksoy (cited above), it accepted that Kurdish separatist violence had given rise to a “public emergency” in Turkey.\n\n177.  Before the domestic courts, the Secretary of State adduced evidence to show the existence of a threat of serious terrorist attacks planned against the . Additional closed evidence was adduced before SIAC. All the national judges accepted that the danger was credible (with the exception of Lord Hoffmann, who did not consider that it was of a nature to constitute “a threat to the life of the nation” – see paragraph 18 above). Although when the derogation was made no al-Qaeda attack had taken place within the territory of the United Kingdom, the Court does not consider that the national authorities can be criticised, in the light of the evidence available to them at the time, for fearing that such an attack was “imminent”, in that an atrocity might be committed without warning at any time. The requirement of imminence cannot be interpreted so narrowly as to require a State to wait for disaster to strike before taking measures to deal with it. Moreover, the danger of a terrorist attack was, tragically, shown by the bombings and attempted bombings in  in July 2005 to have been very real. Since the purpose of Article 15 is to permit States to take derogating measures to protect their populations from future risks, the existence of the threat to the life of the nation must be assessed primarily with reference to those facts which were known at the time of the derogation. The Court is not precluded, however, from having regard to information which comes to light subsequently (see, mutatis mutandis, Vilvarajah and Others v. the United Kingdom, 30 October 1991, § 107(2), Series A no. 215).\n\n178.  While the United Nations Human Rights Committee has observed that measures derogating from the provisions of the International Covenant on Civil and Political Rights must be of “an exceptional and temporary nature” (see paragraph 110 above), the Court’s case-law has never, to date, explicitly incorporated the requirement that the emergency be temporary, although the question of the proportionality of the response may be linked to the duration of the emergency. Indeed, the cases cited above, relating to the security situation in , demonstrate that it is possible for a “public emergency” within the meaning of Article 15 to continue for many years. The Court does not consider that derogating measures put in place in the immediate aftermath of the al-Qaeda attacks in the United States of America, and reviewed on an annual basis by Parliament, can be said to be invalid on the ground that they were not “temporary”.\n\n179.  The applicants’ argument that the life of the nation was not threatened is principally founded on the dissenting opinion of Lord Hoffman, who interpreted the words as requiring a threat to the organised life of the community which went beyond a threat of serious physical damage and loss of life. It had, in his view, to threaten “our institutions of government or our existence as a civil community” (see paragraph 18 above). However, the Court has in previous cases been prepared to take into account a much broader range of factors in determining the nature and degree of the actual or imminent threat to the “nation” and has in the past concluded that emergency situations have existed even though the institutions of the State did not appear to be imperilled to the extent envisaged by Lord Hoffman.\n\n180.  As previously stated, the national authorities enjoy a wide margin of appreciation under Article 15 in assessing whether the life of their nation is threatened by a public emergency. While it is striking that the United Kingdom was the only Convention State to have lodged a derogation in response to the danger from al-Qaeda, although other States were also the subject of threats, the Court accepts that it was for each Government, as the guardian of their own people’s safety, to make their own assessment on the basis of the facts known to them. Weight must, therefore, attach to the judgment of the United Kingdom’s executive and Parliament on this question. In addition, significant weight must be accorded to the views of the national courts, which were better placed to assess the evidence relating to the existence of an emergency.\n\n181.  On this first question, the Court accordingly shares the view of the majority of the House of Lords that there was a public emergency threatening the life of the nation.\n\n182.  Article 15 provides that the State may take measures derogating from its obligations under the Convention only “to the extent strictly required by the exigencies of the situation”. As previously stated, the Court considers that it should in principle follow the judgment of the House of Lords on the question of the proportionality of the applicants’ detention, unless it can be shown that the national court misinterpreted the Convention or the Court’s case-law or reached a conclusion which was manifestly unreasonable. It will consider the Government’s challenges to the House of Lords’ judgment against this background.\n\n183.  The Government contended, firstly, that the majority of the House of Lords should have afforded a much wider margin of appreciation to the executive and Parliament to decide whether the applicants’ detention was necessary. A similar argument was advanced before the House of Lords, where the Attorney-General submitted that the assessment of what was needed to protect the public was a matter of political rather than judicial judgment (see paragraph 19 above).\n\n184.  When the Court comes to consider a derogation under Article 15, it allows the national authorities a wide margin of appreciation to decide on the nature and scope of the derogating measures necessary to avert the emergency. Nonetheless, it is ultimately for the Court to rule whether the measures were “strictly required”. In particular, where a derogating measure encroaches upon a fundamental Convention right, such as the right to liberty, the Court must be satisfied that it was a genuine response to the emergency situation, that it was fully justified by the special circumstances of the emergency and that adequate safeguards were provided against abuse (see, for example, Brannigan and McBride, cited above, §§ 48-66; Aksoy, cited above, §§ 71-84; and the principles outlined in paragraph 173 above). The doctrine of the margin of appreciation has always been meant as a tool to define relations between the domestic authorities and the Court. It cannot have the same application to the relations between the organs of State at the domestic level. As the House of Lords held, the question of proportionality is ultimately a judicial decision, particularly in a case such as the present where the applicants were deprived of their fundamental right to liberty over a long period of time. In any event, having regard to the careful way in which the House of Lords approached the issues, it cannot be said that inadequate weight was given to the views of the executive or of Parliament.\n\n185.  The Government also submitted that the House of Lords erred in examining the legislation in the abstract rather than considering the applicants’ concrete cases. However, in the Court’s view, the approach under Article 15 is necessarily focused on the general situation pertaining in the country concerned, in the sense that the court – whether national or international – is required to examine the measures that have been adopted in derogation of the Convention rights in question and to weigh them against the nature of the threat to the nation posed by the emergency. Where, as here, the measures are found to be disproportionate to that threat and to be discriminatory in their effect, there is no need to go further and examine their application in the concrete case of each applicant.\n\n186.  The Government’s third ground of challenge to the House of Lords’ decision was directed principally at the approach taken towards the comparison between non-national and national suspected terrorists. The Court, however, considers that the House of Lords was correct in holding that the impugned powers were not to be seen as immigration measures, where a distinction between nationals and non-nationals would be legitimate, but instead as concerned with national security. Part 4 of the 2001 Act was designed to avert a real and imminent threat of terrorist attack which, on the evidence, was posed by both nationals and non-nationals. The choice by the Government and Parliament of an immigration measure to address what was essentially a security issue had the result of failing adequately to address the problem, while imposing a disproportionate and discriminatory burden of indefinite detention on one group of suspected terrorists. As the House of Lords found, there was no significant difference in the potential adverse impact of detention without charge on a national or on a non-national who in practice could not leave the country because of fear of torture abroad.\n\n187.  Finally, the Government advanced two arguments which the applicants claimed had not been relied on before the national courts. Certainly, there does not appear to be any reference to them in the national courts’ judgments or in the open material which has been put before the Court. In these circumstances, even assuming that the principle of subsidiarity does not prevent the Court from examining new grounds, it would require persuasive evidence in support of them.\n\n188.  The first of the allegedly new arguments was that it was legitimate for the State, in confining the measures to non-nationals, to take into account the sensitivities of the British Muslim population in order to reduce the chances of recruitment among them by extremists. However, the Government have not placed before the Court any evidence to suggest that British Muslims were significantly more likely to react negatively to the detention without charge of national rather than foreign Muslims reasonably suspected of links to al-Qaeda. In this respect the Court notes that the system of control orders, put in place by the Prevention of Terrorism Act 2005, does not discriminate between national and non-national suspects.\n\n189.  The second allegedly new ground relied on by the Government was that the State could better respond to the terrorist threat if it were able to detain its most serious source, namely non-nationals. In this connection, again the Court has not been provided with any evidence which could persuade it to overturn the conclusion of the House of Lords that the difference in treatment was unjustified. Indeed, the Court notes that the national courts, including SIAC, which saw both the open and the closed material, were not convinced that the threat from non-nationals was more serious than that from nationals.\n\n190.  In conclusion, therefore, the Court, like the House of Lords, and contrary to the Government’s contention, finds that the derogating measures were disproportionate in that they discriminated unjustifiably between nationals and non-nationals. It follows that there has been a violation of Article 5 § 1 in respect of the first, third, fifth, sixth, seventh, eighth, ninth, tenth and eleventh applicants.\n\nIII.  ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 14\n\n191.  The applicants complained that it was discriminatory, and in breach of Article 14 of the Convention, to detain them when United Kingdom nationals suspected of involvement with al-Qaeda were left at liberty.\n\nArticle 14 provides:\n\n“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”\n\n192.  In the light of its above reasoning and conclusion in relation to Article 5 § 1 taken alone, the Court does not consider it necessary to examine these complaints separately.\n\nIV.  ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION\n\n193.  The applicants contended that the procedure before the domestic courts to challenge their detention did not comply with the requirements of Article 5 § 4, which states:\n\n“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”\n\nThe Government denied that there had been a violation of Article 5 § 4.\n\nA.  The parties’ submissions\n\n1.  The applicants\n\n194.  The applicants advanced two main arguments under Article 5 § 4. Firstly, they emphasised that although it was open to them to argue before SIAC, the Court of Appeal and the House of Lords that their detention under Part 4 of the 2001 Act was unlawful under the Convention, the only remedy which they were able to obtain was a declaration of incompatibility under the 1998 Act. This had no binding effect on the Government and the detention remained lawful until legislative change was effected by Parliament. There was thus no court with power to order their release, in breach of Article 5 § 4.\n\n195.  Secondly, the applicants complained about the procedure before SIAC for appeals under section 25 of the 2001 Act (see paragraph 91 above) and in particular the lack of disclosure of material evidence except to special advocates with whom the detained person was not permitted to consult. In their submission, Article 5 § 4 imported the fair-trial guarantees of Article 6 § 1 commensurate with the gravity of the issue at stake. While in certain circumstances it might be permissible for a court to sanction non-disclosure of relevant evidence to an individual on grounds of national security, it could never be permissible for a court assessing the lawfulness of detention to rely on such material where it bore decisively on the case the detained person had to meet and where it had not been disclosed, even in gist or summary form, sufficiently to enable the individual to know the case against him and to respond. In all the applicants’ appeals, except that of the tenth applicant, SIAC relied on closed material and recognised that the applicants were thereby put at a disadvantage.\n\n2.  The Government\n\n196.  The Government contended that Article 5 § 4 should be read in the light of the Court’s established jurisprudence under Article 13, of which it was the lex specialis as regards detention, that there was no right to challenge binding primary legislation before a national court. This principle, together with the system of declarations of incompatibility under the Human Rights Act 1998, reflected the democratic value of the supremacy of the elected Parliament.\n\n197.  On the applicants’ second point, the Government submitted that there were valid public-interest grounds for withholding the closed material. The right to disclosure of evidence, under Article 6 and also under Article 5 § 4, was not absolute. The Court’s case-law from Chahal (cited above) onwards had indicated some support for a special-advocate procedure in particularly sensitive fields. Moreover, in each applicant’s case, the open material gave sufficient notice of the allegations against him to enable him to mount an effective defence.\n\n3.  The third party, Justice\n\n3.  The third party, Justice\n\n198.  Justice (see paragraph 6 above) informed the Court that at the time SIAC was created by the Special Immigration Appeals Commission Act 1997, the use of closed material and special advocates in the procedure before it was believed to be based on a similar procedure in Canada, applied in cases before the Security Intelligence Review Committee (SIRC), which considered whether a minister’s decision to remove a permanently resident foreign national on national security grounds was well-founded. However, although the SIRC procedure involved in-house counsel with access to the classified material taking part in ex parte and in camera hearings to represent the appellant’s interests, it differed substantially from the SIAC model, particularly in that it allowed the special advocate to maintain contact with the appellant and his lawyers throughout the process and even after the special advocate was fully apprised of the secret information against the appellant.\n\n199.  In contrast, the SIAC procedures involving closed material and special advocates had attracted considerable criticism, including from the Appellate Committee of the House of Lords, the House of Commons Constitutional Affairs Committee, the Parliamentary Joint Committee on Human Rights, the Canadian Senate Committee on the Anti-Terrorism Act, and the Council of Europe Commissioner for Human Rights. Following the judgment of the House of Lords in December 2004, declaring Part 4 of the 2001 Act incompatible with Articles 5 and 14 of the Convention, the House of Commons Constitutional Affairs Committee commenced an inquiry into the operation of SIAC and its use of special advocates. Among the evidence received by the Committee was a submission from nine of the thirteen serving special advocates. In the submission, the special advocates highlighted the serious difficulties they faced in representing appellants in closed proceedings due to the prohibition on communication concerning the closed material. In particular, the special advocates pointed to the very limited role they were able to play in closed hearings given the absence of effective instructions from those they represented.\n\nB.  The Court’s assessment\n\n1.  Admissibility\n\n200.  The Court notes that Article 5 § 4 guarantees a right to “everyone who is deprived of his liberty by arrest or detention” to bring proceedings to test the legality of the detention and to obtain release if the detention is found to be unlawful. Since the second and fourth applicants were already at liberty, having elected to travel to Morocco and France respectively, by the time the various proceedings to determine the lawfulness of the detention under the 2001 Act were commenced, it follows that these two applicants’ complaints under Article 5 § 4 are manifestly ill-founded within the meaning of Article 35 § 3 of the Convention (see Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, § 45, Series A no. 182) and must be declared inadmissible.\n\n201.  The Court considers that the other applicants’ complaints under this provision raise complex issues of law and fact, the determination of which should depend on an examination of the merits. It concludes, therefore, that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground of inadmissibility has been raised and it must be declared admissible.\n\n2.  The merits\n\n(a)  The principles arising from the case-law\n\n202.  Article 5 § 4 provides a lex specialis in relation to the more general requirements of Article 13 (see Chahal, cited above, § 126). It entitles an arrested or detained person to institute proceedings bearing on the procedural and substantive conditions which are essential for the “lawfulness” of his or her deprivation of liberty. The notion of “lawfulness” under Article 5 § 4 has the same meaning as in § 1, so that the arrested or detained person is entitled to a review of the “lawfulness” of his detention in the light not only of the requirements of domestic law but also of the Convention, the general principles embodied therein and the aim of the restrictions permitted by Article 5 § 1. Article 5 § 4 does not guarantee a right to judicial review of such a scope as to empower the court, on all aspects of the case including questions of pure expediency, to substitute its own discretion for that of the decision-making authority. The review should, however, be wide enough to bear on those conditions which are essential for the “lawful” detention of a person according to Article 5 § 1 (see E. v. Norway, 29 August 1990, § 50, Series A no. 181-A). The reviewing “court” must not have merely advisory functions but must have the competence to “decide” the “lawfulness” of the detention and to order release if the detention is unlawful (see Ireland v. the United Kingdom, cited above, § 200; Weeks v. the United Kingdom, 2 March 1987, § 61, Series A no. 114; and Chahal, cited above, § 130).\n\n203.  The requirement of procedural fairness under Article 5 § 4 does not impose a uniform, unvarying standard to be applied irrespective of the context, facts and circumstances. Although it is not always necessary that an Article 5 § 4 procedure be attended by the same guarantees as those required under Article 6 for criminal or civil litigation, it must have a judicial character and provide guarantees appropriate to the type of deprivation of liberty in question (see, for example, Winterwerp v. the Netherlands, 24 October 1979, § 57, Series A no. 33; Bouamar v. Belgium, 29 February 1988, §§ 57 and 60, Series A no. 129; Włoch v. Poland, no. 27785/95, § 125, ECHR 2000-XI; and Reinprecht v. Austria, no. 67175/01, § 31, ECHR 2005-XII).\n\n203.  The requirement of procedural fairness under Article 5 § 4 does not impose a uniform, unvarying standard to be applied irrespective of the context, facts and circumstances. Although it is not always necessary that an Article 5 § 4 procedure be attended by the same guarantees as those required under Article 6 for criminal or civil litigation, it must have a judicial character and provide guarantees appropriate to the type of deprivation of liberty in question (see, for example, Winterwerp v. the Netherlands, 24 October 1979, § 57, Series A no. 33; Bouamar v. Belgium, 29 February 1988, §§ 57 and 60, Series A no. 129; Włoch v. Poland, no. 27785/95, § 125, ECHR 2000-XI; and Reinprecht v. Austria, no. 67175/01, § 31, ECHR 2005-XII).\n\n204.  Thus, the proceedings must be adversarial and must always ensure “equality of arms” between the parties (see Reinprecht, cited above, § 31). An oral hearing may be necessary, for example in cases of detention on remand (see Nikolova v. Bulgaria [GC], no. 31195/96, § 58, ECHR 1999II). Moreover, in remand cases, since the persistence of a reasonable suspicion that the accused person has committed an offence is a condition sine qua non for the lawfulness of the continued detention, the detainee must be given an opportunity effectively to challenge the basis of the allegations against him (see Becciev v. Moldova, no. 9190/03, §§ 68-72, 4 October 2005). This may require the court to hear witnesses whose testimony appears prima facie to have a material bearing on the continuing lawfulness of the detention (ibid., §§ 72-76, and Ţurcan v. Moldova, no. 39835/05, §§ 67-70, 23 October 2007). It may also require that the detainee or his representative be given access to documents in the case file which form the basis of the prosecution case against him (see Włoch, cited above, § 127; Nikolova, cited above, § 58; Lamy v. Belgium, 30 March 1989, § 29, Series A no. 151; and Fodale v. Italy, no. 70148/01, ECHR 2006-VII).\n\n205.  The Court has held nonetheless that, even in proceedings under Article 6 for the determination of guilt on criminal charges, there may be restrictions on the right to a fully adversarial procedure where strictly necessary in the light of a strong countervailing public interest, such as national security, the need to keep secret certain police methods of investigation or the protection of the fundamental rights of another person. There will not be a fair trial, however, unless any difficulties caused to the defendant by a limitation on his rights are sufficiently counterbalanced by the procedures followed by the judicial authorities (see, for example, Doorson v. the Netherlands, 26 March 1996, § 70, Reports 1996II; Van Mechelen and Others v. the Netherlands, 23 April 1997, § 58, Reports 1997-III; Jasper v. the United Kingdom [GC], no. 27052/95, §§ 51-53, 16 February 2000; S.N. v. Sweden, no. 34209/96, § 47, ECHR 2002-V; and Botmeh and Alami v. the , no. 15187/03, § 37, 7 June 2007).\n\n206.  Thus, while the right to a fair criminal trial under Article 6 includes a right to disclosure of all material evidence in the possession of the prosecution, both for and against the accused, the Court has held that it might sometimes be necessary to withhold certain evidence from the defence on public-interest grounds. In Jasper (cited above, §§ 51-53), it found that the limitation on the rights of the defence had been sufficiently counterbalanced where evidence which was relevant to the issues at trial, but on which the prosecution did not intend to rely, was examined ex parte by the trial judge, who decided that it should not be disclosed because the public interest in keeping it secret outweighed the utility to the defence of disclosure. In finding that there had been no violation of Article 6, the Court considered it significant that it was the trial judge, with full knowledge of the issues in the trial, who carried out the balancing exercise and that steps had been taken to ensure that the defence were kept informed and permitted to make submissions and participate in the decision-making process as far as was possible without disclosing the material which the prosecution sought to keep secret (ibid., §§ 55-56). In contrast, in Edwards and Lewis v. the United Kingdom ([GC], nos. 39647/98 and 40461/98, §§ 46-48, ECHR 2004-X), the Court found that an ex parte procedure before the trial judge was not sufficient to secure a fair trial where the undisclosed material related, or may have related, to an issue of fact which formed part of the prosecution case, which the trial judge, rather than the jury, had to determine and which might have been of decisive importance to the outcome of the applicants’ trials.\n\n207.  In a number of other cases where the competing public interest entailed restrictions on the rights of the defendant in relation to adverse evidence, relied on by the prosecutor, the Court has assessed the extent to which counterbalancing measures can remedy the lack of a full adversarial procedure. For example, in Lucà v. Italy (no. 33354/96, § 40, ECHR 2001II), it held that it would not necessarily be incompatible with Article 6 § 1 for the prosecution to refer at trial to depositions made during the investigative stage, in particular where a witness refused to repeat his deposition in public owing to fears for his safety, if the defendant had been given an adequate and proper opportunity to challenge the depositions, either when made or at a later stage. It emphasised, however, that where a conviction was based solely or to a decisive degree on depositions that had been made by a person whom the accused had had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence would be restricted to an extent incompatible with the guarantees provided by Article 6.\n\n208.  Similarly, in Doorson (cited above, §§ 68-76), the Court found that there was no breach of Article 6 where the identity of certain witnesses was concealed from the defendant, on the ground that they feared reprisals. The fact that the defence counsel, in the absence of the defendant, was able to put questions to the anonymous witnesses at the appeal stage and to attempt to cast doubt on their reliability and that the Court of Appeal stated in its judgment that it had treated the evidence of the anonymous witnesses with caution was sufficient to counterbalance the disadvantage caused to the defence. The Court emphasised that a conviction should not be based either solely or to a decisive extent on anonymous statements (see also Van Mechelen and Others, cited above, § 55). In each case, the Court emphasised that its role was to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair (see Doorson, cited above, § 67).\n\n209.  The Court has referred on several occasions to the possibility of using special advocates to counterbalance procedural unfairness caused by lack of full disclosure in national security cases, but it has never been required to decide whether or not such a procedure would be compatible with either Article 5 § 4 or Article 6 of the Convention.\n\n210.  In Chahal (cited above), the applicant was detained under Article 5 § 1 (f) pending deportation on national security grounds and the Secretary of State opposed his applications for bail and habeas corpus, also for reasons of national security. The Court recognised (ibid., §§ 130-31) that the use of confidential material might be unavoidable where national security was at stake but held that this did not mean that the executive could be free from effective control by the domestic courts whenever they chose to assert that national security and terrorism were involved. The Court found a violation of Article 5 § 4 in the light of the fact that the High Court, which determined the habeas corpus application, did not have access to the full material on which the Secretary of State had based his decision. Although there was the safeguard of an advisory panel, chaired by a Court of Appeal judge, which had full sight of the national security evidence, the Court held that the panel could not be considered as a “court” within the meaning of Article 5 § 4 because the applicant was not entitled to legal representation before it and was given only an outline of the national security case against him and because the panel had no power of decision and its advice to the Home Secretary was not binding and was not disclosed. The Court made reference (ibid., §§ 131 and 144) to the submissions of the third parties (Amnesty International, Liberty, the Centre for Advice on Individual Rights in Europe and the Joint Council for the Welfare of Immigrants; and see the submissions of Justice in the present case, paragraph 198 above) in connection with a procedure applied in national security deportation cases in Canada, whereby the judge held an in camera hearing of all the evidence, at which the proposed deportee was provided with a statement summarising, as far as possible, the case against him and had the right to be represented and to call evidence. The confidentiality of the security material was maintained by requiring such evidence to be examined in the absence of both the deportee and his representative. However, in these circumstances, their place was taken by security-cleared counsel instructed by the court, who cross-examined the witnesses and generally assisted the court to test the strength of the State’s case. A summary of the evidence obtained by this procedure, with necessary deletions, was given to the deportee. The Court commented that it:\n\n“... attaches significance to the fact that, as the interveners pointed out in connection with Article 13, ... in  a more effective form of judicial control has been developed in cases of this type. This example illustrates that there are techniques which can be employed which both accommodate legitimate security concerns about the nature and sources of intelligence information and yet accord the individual a substantial measure of procedural justice.”\n\n211.  In Tinnelly & Sons Ltd and Others and McElduff and Others v. the United Kingdom (10 July 1998, § 78, Reports 1998-IV) and in Al-Nashif v. Bulgaria (no. 50963/99, §§ 93-97 and 137, 20 June 2002), the Court made reference to its comments in Chahal about the special-advocate procedure but without expressing any opinion as to whether such a procedure would be in conformity with the Convention rights at issue.\n\n(b)  Application to the facts of the present case\n\n212.  Before the domestic courts, there were two aspects to the applicants’ challenge to the lawfulness of their detention. Firstly, they brought proceedings under section 30 of the 2001 Act to contest the validity of the derogation under Article 15 of the Convention and thus the compatibility with the Convention of the entire detention scheme. Secondly, each applicant also brought an appeal under section 25 of the 2001 Act, contending that the detention was unlawful under domestic law because there were no reasonable grounds for a belief that his presence in the  was a risk to national security or for a suspicion that he was a terrorist.\n\n213.  The Court does not consider it necessary to reach a separate finding under Article 5 § 4 in connection with the applicants’ complaints that the House of Lords was unable to make a binding order for their release, since it has already found a violation of Article 5 § 1 arising from the provisions of domestic law.\n\n214.  The applicants’ second ground of complaint under Article 5 § 4 concerns the fairness of the procedure before SIAC under section 25 of the 2001 Act to determine whether the Secretary of State was reasonable in believing each applicant’s presence in the United Kingdom to be a risk to national security and in suspecting him of being a terrorist. This is a separate and distinct question, which cannot be said to be absorbed in the finding of a violation of Article 5 § 1, and which the Court must therefore examine.\n\n215.  The Court reiterates that although the judges sitting as SIAC were able to consider both the “open” and “closed” material, neither the applicants nor their legal advisers could see the closed material. Instead, the closed material was disclosed to one or more special advocates, appointed by the solicitor-general to act on behalf of each applicant. During the closed sessions before SIAC, the special advocate could make submissions on behalf of the applicant, both as regards procedural matters, such as the need for further disclosure, and as to the substance of the case. However, from the point at which the special advocate first had sight of the closed material, he was not permitted to have any further contact with the applicant and his representatives, save with the permission of SIAC. In respect of each appeal against certification, SIAC issued both an open and a closed judgment.\n\n216.  The Court takes as its starting point that, as the national courts found and it has accepted, during the period of the applicants’ detention the activities and aims of the al-Qaeda network had given rise to a “public emergency threatening the life of the nation”. It must therefore be borne in mind that at the relevant time there was considered to be an urgent need to protect the population of the United Kingdom from terrorist attack and, although the United Kingdom did not derogate from Article 5 § 4, a strong public interest in obtaining information about al-Qaeda and its associates and in maintaining the secrecy of the sources of such information (see also, in this connection, Fox, Campbell and Hartley, cited above, § 39).\n\n217.  Balanced against these important public interests, however, was the applicants’ right under Article 5 § 4 to procedural fairness. Although the Court has found that, with the exception of the second and fourth applicants, the applicants’ detention did not fall within any of the categories listed in sub-paragraphs (a) to (f) of Article 5 § 1, it considers that the case-law relating to judicial control over detention on remand is relevant, since in such cases also the reasonableness of the suspicion against the detained person is a sine qua non (see paragraph 204 above). Moreover, in the circumstances of the present case, and in view of the dramatic impact of the lengthy – and what appeared at that time to be indefinite – deprivation of liberty on the applicants’ fundamental rights, Article 5 § 4 must import substantially the same fair-trial guarantees as Article 6 § 1 in its criminal aspect (see Garcia Alva v. Germany, no. 23541/94, § 39, 13 February 2001, and Chahal, cited above, §§ 130-31).\n\n218.  Against this background, it was essential that as much information about the allegations and evidence against each applicant was disclosed as was possible without compromising national security or the safety of others. Where full disclosure was not possible, Article 5 § 4 required that the difficulties this caused were counterbalanced in such a way that each applicant still had the possibility effectively to challenge the allegations against him.\n\n219.  The Court considers that SIAC, which was a fully independent court (see paragraph 91 above) and which could examine all the relevant evidence, both closed and open, was best placed to ensure that no material was unnecessarily withheld from the detainee. In this connection, the special advocate could provide an important, additional safeguard through questioning the State’s witnesses on the need for secrecy and through making submissions to the judge regarding the case for additional disclosure. On the material before it, the Court has no basis to find that excessive and unjustified secrecy was employed in respect of any of the applicants’ appeals or that there were not compelling reasons for the lack of disclosure in each case.\n\n220.  The Court further considers that the special advocate could perform an important role in counterbalancing the lack of full disclosure and the lack of a full, open, adversarial hearing by testing the evidence and putting arguments on behalf of the detainee during the closed hearings. However, the special advocate could not perform this function in any useful way unless the detainee was provided with sufficient information about the allegations against him to enable him to give effective instructions to the special advocate. While this question must be decided on a case-by-case basis, the Court observes generally that, where the evidence was to a large extent disclosed and the open material played the predominant role in the determination, it could not be said that the applicant was denied an opportunity effectively to challenge the reasonableness of the Secretary of State’s belief and suspicions about him. In other cases, even where all or most of the underlying evidence remained undisclosed, if the allegations contained in the open material were sufficiently specific, it should have been possible for the applicant to provide his representatives and the special advocate with information with which to refute them, if such information existed, without his having to know the detail or sources of the evidence which formed the basis of the allegations. An example would be the allegation made against several of the applicants that they had attended a terrorist training camp at a stated location between stated dates; given the precise nature of the allegation, it would have been possible for the applicant to provide the special advocate with exonerating evidence, for example of an alibi or of an alternative explanation for his presence there, sufficient to permit the advocate effectively to challenge the allegation. Where, however, the open material consisted purely of general assertions and SIAC’s decision to uphold the certification and maintain the detention was based solely or to a decisive degree on closed material, the procedural requirements of Article 5 § 4 would not be satisfied.\n\n221.  The Court must, therefore, assess the certification proceedings in respect of each of the detained applicants in the light of these criteria.\n\n222.  It notes that the open material against the sixth, seventh, eighth, ninth and eleventh applicants included detailed allegations about, for example, the purchase of specific telecommunications equipment, possession of specific documents linked to named terrorist suspects and meetings with named terrorist suspects with specific dates and places. It considers that these allegations were sufficiently detailed to permit the applicants effectively to challenge them. It does not, therefore, find a violation of Article 5 § 4 in respect of the sixth, seventh, eighth, ninth and eleventh applicants.\n\n223.  The principal allegations against the first and tenth applicants were that they had been involved in fund-raising for terrorist groups linked to alQaeda. In the first applicant’s case there was open evidence of large sums of money moving through his bank account and in respect of the tenth applicant there was open evidence that he had been involved in raising money through fraud. However, in each case the evidence which allegedly provided the link between the money raised and terrorism was not disclosed to either applicant. In these circumstances, the Court does not consider that these applicants were in a position effectively to challenge the allegations against them. There has therefore been a violation of Article 5 § 4 in respect of the first and tenth applicants.\n\n224.  The open allegations in respect of the third and fifth applicants were of a general nature, principally that they were members of named extremist Islamist groups linked to al-Qaeda. SIAC observed in its judgments dismissing each of these applicants’ appeals that the open evidence was insubstantial and that the evidence on which it relied against them was largely to be found in the closed material. Again, the Court does not consider that these applicants were in a position effectively to challenge the allegations against them. There has therefore been a violation of Article 5 § 4 in respect of the third and fifth applicants.\n\nV.  ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 13\n\n225.  The applicants argued in the alternative that the matters complained of in relation to Article 5 § 4 also gave rise to a violation of Article 13. In the light of its findings above, the Court does not consider it necessary to examine these complaints separately.\n\nVI.  ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE CONVENTION\n\n226.  Finally, the applicants complained that, despite having been unlawfully detained in breach of Article 5 §§ 1 and 4, they had no enforceable right to compensation, in breach of Article 5 § 5, which provides:\n\n“Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”\n\n227.  The Government reasoned that there had been no breach of Article 5 in this case, so Article 5 § 5 did not apply. In the event that the Court did find a violation of Article 5, Article 5 § 5 required “an enforceable right to compensation”, but not that compensation be awarded in every case. Since the Secretary of State was found by the national courts reasonably to suspect that the applicants were “international terrorists”, as a matter of principle they were not entitled to compensation from the national courts.\n\nA.  Admissibility\n\n228.  The Court notes that it has found a violation of Article 5 § 1 in respect of all the applicants except the second and fourth applicants, and that it has found a violation of Article 5 § 4 in respect of the first, third, fifth and tenth applicants. It follows that the second and fourth applicants’ complaints under Article 5 § 5 are inadmissible, but that the other applicants’ complaints are admissible.\n\nB.  The merits\n\n229.  The Court notes that the above violations could not give rise to an enforceable claim for compensation by the applicants before the national courts. It follows that there has been a violation of Article 5 § 5 in respect of all the applicants, save the second and fourth applicants (see Brogan and Others v. the United Kingdom, 29 November 1988, § 67, Series A no. 145B, and Fox, Campbell and Hartley, cited above, § 46).\n\nVII.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION\n\n230.  The applicants argued in the alternative that the procedure before SIAC was not compatible with Article 6 §§ 1 and 2 of the Convention, which provide:\n\n“1.  In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.\n\n2.  Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”\n\n231.  The applicants contended that Article 6 was the lex specialis of the fair-trial guarantee. The regime under consideration represented the most serious form of executive measure against terrorist suspects adopted within the member States of the Council of Europe in the post-2001 period. It was adopted to enable the  to take proceedings against individuals on the basis of reasonable suspicion alone, deriving from evidence which could not be deployed in the ordinary courts. That alone warranted an analysis under Article 6. The proceedings were for the determination of a criminal charge, within the autonomous meaning adopted under Article 6 § 1, and also for the determination of civil rights and obligations. The use of closed material gave rise to a breach of Article 6.\n\n232.  In the Government’s submission, Article 5 § 4 was the lex specialis concerning detention and the issues should be considered under that provision. In any event, Article 6 did not apply, because SIAC’s decision on the question whether there should be detention related to “special measures of immigration control” and thus determined neither a criminal charge nor any civil right or obligation. Even if Article 6 § 1 did apply, there was no violation, for the reasons set out above in respect of Article 5 § 4.\n\n233.  Without coming to any conclusion as to whether the proceedings before SIAC fell within the scope of Article 6, the Court declares these complaints admissible. It observes, however, that it has examined the issues relating to the use of special advocates, closed hearings and lack of full disclosure in the proceedings before SIAC above, in connection with the applicants’ complaints under Article 5 § 4. In the light of this full examination, it does not consider it necessary to examine the complaints under Article 6 § 1.\n\nVIII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n234.  The applicants sought compensation for the pecuniary and non-pecuniary damage sustained as a result of the violations, together with costs and expenses, under Article 41 of the Convention, which provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nThe Government contended that an award of just satisfaction would be neither necessary nor appropriate in the present case.\n\nA.  Damage\n\n1.  The applicants’ claims\n\n1.  The applicants’ claims\n\n235.  The applicants submitted that monetary just satisfaction was necessary and appropriate. When assessing quantum, guidance could be obtained from domestic court awards in respect of unlawful detention and also from awards made by the Court in past cases (they referred, inter alia, to Perks and Others v. the United Kingdom, nos. 25277/94, 25279/94, 25280/94, 25282/94, 25285/94, 28048/95, 28192/95 and 28456/95, 12 October 1999, where 5,500 pounds sterling (GBP) was awarded in respect of six days’ unlawful imprisonment, and Tsirlis and Kouloumpas v. Greece, 29 May 1997, Reports 1997-III, where the applicants were awarded the equivalent of GBP 17,890 and GBP 16,330 respectively in relation to periods of thirteen and twelve months’ imprisonment for refusing to perform military service).\n\n236.  The first applicant claimed compensation for his loss of liberty between 19 December 2001 and 11 March 2005, a period of three years and eighty-three days, and the consequent mental suffering, including mental illness. He submitted that the award should in addition take account of the suffering experienced by his wife and family as a result of the separation and the negative publicity. He proposed an award of GBP 234,000 to cover non-pecuniary damage. In addition, he claimed approximately GBP 7,500 in pecuniary damage to cover the costs of his family’s visits to him in detention and other expenses.\n\n237.  The third applicant claimed compensation for his loss of liberty between 19 December 2001 and 11 March 2005 and the consequent mental suffering, including mental illness, together with the distress caused to his wife and children. He proposed a figure of GBP 230,000 for non-pecuniary damage, together with pecuniary damage of GBP 200 travel costs, incurred by his wife, and a sum to cover his lost opportunity to establish himself in business in the United Kingdom.\n\n238.  The fifth applicant claimed compensation for his detention between 19 December 2001 and 22 April 2004, his subsequent house arrest until 11 March 2005 and the consequent mental suffering, including mental illness, together with the distress caused to his wife and children. He proposed a figure of GBP 240,000 for non-pecuniary damage, together with pecuniary damage of GBP 5,500, including travel and child-minding costs incurred by his wife and money sent by her to the applicant in prison.\n\n239.  The sixth applicant claimed compensation for his detention between 19 December 2001 and 11 March 2005 and the consequent mental suffering, together with the distress caused to his wife and children. He proposed a figure of GBP 217,000 for non-pecuniary damage, together with pecuniary damage of GBP 51,410, including his loss of earnings as a self-employed courier and travel costs incurred by his wife.\n\n240.  The seventh applicant claimed compensation for his detention between 9 February 2002 and 11 March 2005 and the consequent mental suffering, including mental illness. He proposed a figure of GBP 197,000 for non-pecuniary damage. He did not make any claim in respect of pecuniary damage.\n\n241.  The eighth applicant claimed compensation for his loss of liberty between 23 October 2002 and 11 March 2005 and the consequent mental suffering, together with the distress caused to his wife and children. He proposed a figure of GBP 170,000 for non-pecuniary damage, together with pecuniary damage of GBP 4,570, including money sent to him in prison by his wife and her costs of moving house to avoid unwanted media attention.\n\n242.  The ninth applicant claimed compensation for his loss of liberty between 22 April 2002 and 11 March 2005, and the consequent mental suffering, including mental illness, together with the distress caused to his wife and children. He proposed a figure of GBP 215,000 for non-pecuniary damage, together with pecuniary damage of GBP 7,725, including money he had to borrow to assist his wife with household expenses, money sent to him in prison by his wife and her travel expenses to visit him. He also asked for a sum to cover his lost opportunity to establish himself in business in the .\n\n243.  The tenth applicant claimed compensation for his loss of liberty between 14 January 2003 and 11 March 2005 and the consequent mental suffering, including mental illness. He proposed a figure of GBP 144,000 for non-pecuniary damage, together with pecuniary damage of GBP 2,751, including the loss of a weekly payment of GBP 37 he was receiving from the National Asylum Support Service prior to his detention and the cost of telephone calls to his legal representatives.\n\n244.  The eleventh applicant claimed compensation for his loss of liberty between 2 October 2003 and 11 March 2005 and the consequent mental suffering. He proposed a figure of GBP 95,000 for non-pecuniary damage but did not claim any pecuniary damage.\n\n2.  The Government’s submissions\n\n245.  The Government, relying on the Court’s judgment in McCann and Others v. the United Kingdom (27 September 1995, § 219, Series A no. 324), contended that, as a matter of principle, the applicants were not entitled to receive any form of financial compensation because they were properly suspected, on objective and reasonable grounds, of involvement in terrorism and had failed to displace that suspicion.\n\n246.  The Government pointed out that Part 4 of the 2001 Act was passed and the derogation made in good faith, in an attempt to deal with what was perceived to be an extremely serious situation amounting to a public emergency threatening the life of the nation. The core problem with the detention scheme under the 2001 Act, as identified by SIAC and the House of Lords, was that it did not apply to  as well as foreign nationals. Following the House of Lords’ judgment, urgent consideration was given to the question what should be done with the applicants in the light of the public emergency and it was decided that a system of control orders should be put in place. Against this background, it could not be suggested that the Government had acted cynically or in flagrant disregard of the individuals’ rights.\n\n247.  In addition, the Government submitted that no just satisfaction should be awarded in respect of any procedural violation found by the Court (for example, under Article 5 §§ 4 or 5), since it was not possible to speculate what would have happened had the breach not occurred (see Kingsley v. the United Kingdom [GC], no. 35605/97, ECHR 2002-IV, and Hood v. the United Kingdom [GC], no. 27267/95, ECHR 1999-I).\n\n248.  In the event that the Court did decide to make a monetary award, it should examine carefully in respect of each head of claim whether there was sufficient supporting evidence, whether the claim was sufficiently closely connected to the violation and whether the claim was reasonable as to quantum.\n\n3.  The Court’s assessment\n\n249.  The Court reiterates, firstly, that it has not found a violation of Article 3 in the present case. It follows that it cannot make any award in respect of mental suffering, including mental illness, allegedly arising from the conditions of detention or the open-ended nature of the detention scheme in Part 4 of the 2001 Act.\n\n250.  It has, however, found violations of Article 5 §§ 1 and 5 in respect of the first, third, fifth, sixth, seventh, eighth, ninth, tenth and eleventh applicants and a violation of Article 5 § 4 in respect of the first, third, fifth and tenth applicants. In accordance with Article 41, it could, therefore, award these applicants monetary compensation, if it considered such an award to be “necessary”. The Court has a wide discretion to determine when an award of damages should be made, and frequently holds that the finding of a violation is sufficient satisfaction without any further monetary award (see, among many examples, Nikolova v. Bulgaria [GC], no. 31195/96, § 76, ECHR 1999II). In exercising its discretion the Court will have regard to all the circumstances of the case, including the nature of the violations found, as well as any special circumstances pertaining to the context of the case.\n\n251.  The Court reiterates that in the McCann and Others judgment (cited above, § 219), it declined to make any award in respect of pecuniary or non-pecuniary damage arising from the violation of Article 2 of the Convention, having regard to the fact that the three terrorist suspects who were killed had been intending to plant a bomb in Gibraltar. It considers that the present case is distinguishable, since it has not been established that any of the applicants has engaged, or attempted to engage, in any act of terrorist violence.\n\n252.  The decision whether to award monetary compensation in this case and, if so, the amount of any such award, must take into account a number of factors. The applicants were detained for long periods, in breach of Article 5 § 1, and the Court has, in the past, awarded large sums in just satisfaction in respect of unlawful detention (see, for example, Assanidze v. Georgia [GC], no. 71503/01, ECHR 2004-II, or the cases cited by the applicants in paragraph 235 above). The present case is, however, very different. In the aftermath of the al-Qaeda attacks on the United States of America of 11 September 2001, in a situation which the domestic courts and this Court have accepted was a public emergency threatening the life of the nation, the Government were under an obligation to protect the population of the United Kingdom from terrorist violence. The detention scheme in Part 4 of the 2001 Act was devised in good faith, as an attempt to reconcile the need to prevent the commission of acts of terrorism with the obligation under Article 3 of the Convention not to remove or deport any person to a country where he could face a real risk of ill-treatment (see paragraph 166 above). Although the Court, like the House of Lords, has found that the derogating measures were disproportionate, the core part of that finding was that the legislation was discriminatory in targeting non-nationals only. Moreover, following the House of Lords’ judgment, the detention scheme under the 2001 Act was replaced by a system of control orders under the Prevention of Terrorism Act 2005. All the applicants in respect of whom the Court has found a violation of Article 5 § 1 became, immediately upon release in March 2005, the subject of control orders. It cannot therefore be assumed that, even if the violations in the present case had not occurred, the applicants would not have been subjected to some restriction on their liberty.\n\n253.  Against this background, the Court finds that the circumstances justify the making of an award substantially lower than that which it has had occasion to make in other cases of unlawful detention. It awards 3,900 euros (EUR) to the first, third and sixth applicants; EUR 3,400 to the fifth and ninth applicants; EUR 3,800 to the seventh applicant; EUR 2,800 to the eighth applicant; EUR 2,500 to the tenth applicant; and EUR 1,700 to the eleventh applicant, together with any tax that may be chargeable.\n\nB.  Costs and expenses\n\n254.  The applicants made no claim for costs in respect of the domestic proceedings, since these had been recovered as a result of the order made by the House of Lords. Their total claim for the costs of the proceedings before the Court totalled GBP 144,752.64, inclusive of value-added tax (VAT). This included 599 hours worked by solicitors at GBP 70 per hour plus VAT, 342.5 hours worked by counsel at GBP 150 per hour plus VAT and 85 hours worked by senior counsel at GBP 200 per hour plus VAT in preparing the application, observations and just satisfaction claim before the Chamber and Grand Chamber, together with disbursements such as experts’ reports and the costs of the hearing before the Grand Chamber. They submitted that it had been necessary to instruct a number of different counsel, with different areas of specialism, given the range of issues to be addressed and the evidence involved, concerning events which took place over a ten-year period.\n\n255.  The Government submitted that the claim was excessive. In particular, the number of hours spent by solicitors and counsel in preparing the case could not be justified, especially since each of the applicants had been represented throughout the domestic proceedings during which detailed instructions must have been taken and consideration given to virtually all the issues arising in the application to the Court. The hourly rates charged by counsel were, in addition, excessive.\n\n256.  The Court reiterates that an applicant is entitled to be reimbursed those costs actually and necessarily incurred to prevent or redress a breach of the Convention, to the extent that such costs are reasonable as to quantum (see Kingsley, cited above, § 49). While it accepts that the number of applicants must, inevitably, have necessitated additional work on the part of their representatives, it notes that most of the individualised material filed with the Court dealt with the applicants’ complaints under Article 3 of the Convention and their claims for just satisfaction arising out of those complaints, which the Court has rejected. In addition, it accepts the Government’s argument that a number of the issues, particularly those relating to the derogation under Article 15 of the Convention, had already been aired before the national courts, which should have reduced the time needed for the preparation of this part of the case. Against this background, it considers that the applicants should be awarded a total of EUR 60,000 in respect of costs and expenses, together with any tax that may be chargeable to the applicants.\n\nC.  Default interest\n\n257.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Declares the second applicant’s complaints under Articles 3 and 13 of the Convention inadmissible and the first, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth and eleventh applicants’ complaints under Articles 3 and 13 admissible (see paragraphs 123-25 of the judgment);\n\n2.  Holds that there has been no violation of Article 3 of the Convention, taken alone or in conjunction with Article 13, in respect of the first, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth and eleventh applicants (see paragraphs 126-36);\n\n3.  Dismisses the applicants’ preliminary objections that the Government should be precluded from raising a defence under Article 5 § 1 (f) of the Convention or challenging the House of Lords’ finding that the derogation under Article 15 was invalid (see paragraphs 153-59);\n\n4.  Declares the applicants’ complaints under Article 5 § 1 of the Convention admissible (see paragraph 160);\n\n5.  Holds that there has been no violation of Article 5 § 1 of the Convention in respect of the second and fourth applicants (see paragraphs 162-68);\n\n6.   Holds that there has been a violation of Article 5 § 1 of the Convention in respect of the first, third, fifth, sixth, seventh, eighth, ninth, tenth and eleventh applicants (see paragraphs 162-90);\n\n7.  Holds that it is not necessary to examine the applicants’ complaints under Articles 5 § 1 and 14 taken together (see paragraph 192);\n\n8.  Declares the second and fourth applicants’ complaints under Article 5 § 4 of the Convention inadmissible and the first, third, fifth, sixth, seventh, eighth, ninth, tenth and eleventh applicants’ complaints under Article 5 § 4 admissible (see paragraphs 200-01);\n\n9.  Holds that it is not necessary to examine the first, third, fifth, sixth, seventh, eighth, ninth, tenth and eleventh applicants’ complaints under Articles 5 § 4 that the House of Lords could not make a binding order for their release (see paragraph 213);\n\n10.  Holds that there has been a violation of Article 5 § 4 of the Convention in respect of the first, third, fifth and tenth applicants but that there was no violation of Article 5 § 4 in respect of the sixth, seventh, eighth, ninth and eleventh applicants (see paragraphs 202-24);\n\n11.  Holds that it is not necessary to examine the applicants’ complaints under Articles 5 § 1 and 13 taken together (see paragraph 225);\n\n12.  Declares the second and fourth applicants’ complaints under Article 5 § 5 of the Convention inadmissible and the first, third, fifth, sixth, seventh, eighth, ninth, tenth and eleventh applicants’ complaints under Article 5 § 5 admissible (see paragraph 228);\n\n13.  Holds that there has been a violation of Article 5 § 5 of the Convention in respect of the first, third, fifth, sixth, seventh, eighth, ninth, tenth and eleventh applicants (see paragraph 229);\n\n14.  Declares the applicants’ complaints under Article 6 of the Convention admissible (see paragraph 233);\n\n15.  Holds that it is not necessary to examine the applicants’ complaints under Article 6 of the Convention (see paragraph 233);\n\n16.  Holds that the respondent State is to pay, within three months, the following amounts, to be converted into pounds sterling at the rate applicable at the date of settlement:\n\n(a)  in respect of pecuniary and non-pecuniary damage, EUR 3,900 (three thousand nine hundred euros) to the first, third and sixth applicants; EUR 3,400 (three thousand four hundred euros) to the fifth applicant; EUR 3,800 (three thousand eight hundred euros) to the seventh applicant; EUR 2,800 (two thousand eight hundred euros) to the eighth applicant; EUR 3,400 (three thousand four hundred euros) to the ninth applicant; EUR 2,500 (two thousand five hundred euros) to the tenth applicant; and EUR 1,700 (one thousand seven hundred euros) to the eleventh applicant, plus any tax that may be chargeable;\n\n(b)  to the applicants jointly, in respect of costs and expenses, EUR 60,000 (sixty thousand euros), plus any tax that may be chargeable to the applicants;\n\n(c)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points (see paragraphs 24957);\n\n17.  Dismisses the remainder of the applicants’ claim for just satisfaction.\n\nDone in English and in French, and delivered at a public hearing in the Human Rights Building, , on 19 February 2009.","title":""}
{"_id":"passage_105","text":"PROCEDURE\n\n1.  The case originated in an application (no. 65575/01) against the Slovak Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovakian national, Mr Štefan Hornáček (“the applicant”), on 25 January 2001.\n\n2.  The applicant was represented by Mr I. Siakeľ, a lawyer practising in Martin. The Government of the  (“the Government”) were represented by their Agent, Mrs A. Poláčková.\n\n3.  On 10 November 2004 the Court decided to communicate the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n4.  The applicant was born in 1950 and lives in Turany.\n\n5.  On 18 November 1997 the Martin District Court issued a payment order under which the applicant was obliged to pay the equivalent of approximately 250 euros to the plaintiff.\n\n6.  On 10 December 1997 the applicant, through his lawyer, filed an objection to the order. The lawyer sent the objection to the District Court by registered mail. He submitted a copy of a postal certificate according to which he had deposited the mail for despatch to the District Court in Martin at the post office on 10 December 1997. The mail had registration number R 690. The certificate, in which the addressee was indicated by the sender, did not mention the contents of the mail.\n\n7.  On 12 December 1997 the Martin District Court dismissed the applicant’s objection to the payment order. The decision stated that the order had been served on 25 November 1997 and that the time-limit for challenging it by means of an objection had expired on 10 December 1997. The court held that the applicant had filed the objection on 11 December 1997 – the date appearing on the stamp of the District Court – which was out of time.\n\n8.  On 29 December 1997 the applicant appealed. With reference to Article 57(3) of the Code of Civil Procedure he argued that by depositing the remedy as registered mail at the post office on 10 December 1997 he had respected the statutory time-limit. He submitted a copy of the postal certificate R 690.\n\n9.  On 26 October 1999 the District Court judge heard the applicant and his lawyer. The lawyer stated that the registered mail R 690 was the only mail which he had deposited in person at the post office in Turany on 10 December 1997.\n\n10.  On 29 October 1999 the judge heard an employee of the District Court in charge of incoming mail. The employee, after having consulted the file, confirmed that the document in question had been stamped and signed by her and that she had received it in person. She further stated that, in accordance with constant practice, the court’s registry would attach the envelope to the letter in case of its delivery by post and that this fact would be mentioned on the document. The employee also pointed out that the applicant’s lawyer used to bring most of his documents to the court in person but admitted that he sometimes also sent submissions by post. In reply to a question by the lawyer the employee stated that it was impossible to determine the contents of the registered mail R 690 addressed to the court and to whom it had been submitted.\n\n11.  On 30 November 1999 the Žilina  upheld the District Court’s decision of 12 December 1997. With reference to the District Court’s stamp of 11 December 1997 on the relevant document and to the above statement of the employee of the District Court, the  established that the remedy had been filed out of time. Since the postal certificate did not indicate the contents of registered mail R 690, the applicant had not reliably shown that he had deposited the relevant document at the post office on 10 December 1997.\n\n12.  On 11 February 2000 the applicant filed an appeal on points of law. He argued that the employee of the District Court could have committed an error when registering the document and that the mail register of the District Court did not indicate the contents of registered mail R 690 and to whom it had been transferred. He argued that it had not been reliably shown that the document had been deposited in person as the lower courts had found.\n\n13.  On 27 September 2000 the Supreme Court rejected the appeal on points of law. The Supreme Court held that the District Court’s stamp on the document challenging the payment order indicated that the document had arrived at the District Court on 11 December 1997. According to a handwritten remark which the employee of the District Court in charge of incoming mail had made on it, the document had been submitted to the court’s registry in person. These facts, taken together with the statement of the employee before the District Court judge, showed that the remedy had been filed belatedly. The applicant had not proved beyond any doubt that the registered mail R 690 deposited at the post on 10 December 1997 had actually contained his objection to the payment order.\n\nII.  RELEVANT DOMESTIC LAW AND PRACTICE\n\n14.  Under Article 57(3) of the Code of Civil Procedure, a time-limit fixed in the context of judicial proceedings is respected when the action to be taken is effected at a court or where a submission is transmitted, on the day on which the time-limit is to expire, to a body which is under an obligation to deliver it to the addressee.\n\n15.  In accordance with established practice, a timelimit is deemed to be respected where a document is deposited, before the end of the day on which the time-limit expires, at a post office for the purpose of its delivery to the addressee through postal services.\n\n16.  In a judgment given in 1977 the Supreme Court of the  held that the date indicated on the postal certificate issued to the sender of registered mail and not the date on the envelope of such mail was relevant when considering whether an appeal was filed in time. The Supreme Court expressed the view that a court could dismiss an appeal as having been filed belatedly only where it had reliable reasons for such a conclusion. In particular, it had to establish when, where and how an appeal was actually filed (Supreme Court’s Collection, 34/1978, p. 567).\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION\n\n17.  The applicant complained that the courts had violated his right of access to a court in that they found that his remedy against the payment order had been filed belatedly. He alleged a violation of Article 6 § 1 of the Convention, the relevant part of which reads as follows:\n\n“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing ... by [a] ... tribunal...”\n\n18.  The Government contested that argument.\n\nA.  Admissibility\n\n19.  The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n20.  The Government contended that the applicant had authorised a lawyer to challenge the payment order on his behalf. The lawyer should have been aware of the applicable procedural requirements. The postal certificate in which the addressee had been indicated by the lawyer did not mention which matter the mail concerned. The lawyer’s allegation that the registered mail deposited on 10 December 1997 contained an objection to the payment order issued against the applicant could not be verified. The respondent State could not be held liable for the lawyer’s failure to file the remedy in issue in a manner permitting it to be verified that the procedural requirements had been respected.\n\n21.  According to the applicant, it has not been the current practice to indicate on postal certificates, a part of which is filled in by senders, the contents of documents sent by registered mail. It was shown that registered mail posted by the lawyer on 10 December 1997 had been delivered to the District Court on 11 December 1997. The fact that the system of registering of incoming mail at the District Court did not permit one to determine the contents of the registered mail should not disadvantage him.\n\n22.  The Court reiterates that the “right to a tribunal”, of which the right of access is one aspect, is not absolute; it is subject to limitations permitted by implication, in particular where the conditions of admissibility of an appeal are concerned, since by its very nature it calls for regulation by the State, which enjoys a certain margin of appreciation in this regard. However, these limitations must not restrict or reduce a person’s access in such a way or to such an extent that the very essence of the right is impaired. Such limitations will not be compatible with Article 6 § 1 if they do not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (for the recapitulation of the relevant case-law see, for example, Levages Prestations Services v. France, judgment of 23 October 1996, Reports of Judgments and Decisions 1996V, § 40 and Zedník v. the Czech Republic, no. 74328/01, §§ 27-29, 28 June 2005).\n\n23.  In the present case domestic courts at three levels relied on the statement by the employee of the District Court in Martin that the applicant’s lawyer had submitted the document in issue at the court’s registry in person on 11 December 1999, that is one day after the relevant time-limit had expired. They did not accept the argument of the lawyer that he had sent the objection by registered mail on 10 December 1999 and the postal certificate submitted by him to that effect. In particular, the Supreme Court concluded that the applicant had not shown beyond any doubt that the registered mail contained the objection in question.\n\n24.  It is true that the postal certificate concerning registered mail R 690 in which the sender and the addressee were indicated by the lawyer did not state to which case the mail related. However, it has not been argued before the Court that the relevant law or practice required such an indication.\n\n25.  Thus the applicant showed that he had sent a registered mail to the District Court when the time-limit for filing a remedy against the payment order in issue had not yet expired. In accordance with the Supreme Court’s practice, such a postal certificate has been considered, in principle, to be a reliable indication that a remedy was filed on the day indicated on it.\n\n26.  In the Court’s view, it would have been appropriate in the circumstances of the case for the courts involved to establish when the registered mail R 690 had been delivered to the District Court and in which case file it had been included. There is no indication that such an attempt was made. The courts merely accepted the statement of the employee of the District Court that it was impossible to establish the contents of the registered mail R 690 addressed to the court and to whom it had been submitted.\n\n27.  The Court considers that, in the particular circumstances of the case, the domestic courts failed to ensure a reasonable relationship of proportionality between the legitimate aim of ensuring compliance with the formal requirements for filing the remedy in issue and the applicant’s right of access to a court with a view to having the contested decision reviewed.\n\nThere has accordingly been a violation of Article 6 § 1 of the Convention.\n\nII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n28.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n29.  The applicant claimed 2,000 euros (EUR) in respect of nonpecuniary damage.\n\n30.  The Government contested that claim.\n\n31.  The Court accepts that the applicant suffered non-pecuniary damage. Having regard to the circumstances of the case, it awards the applicant the sum claimed, namely EUR 2,000 under this head.\n\nB.  Costs and expenses\n\n32.  The applicant also claimed the equivalent of approximately EUR 360 for the costs and expenses incurred before both the domestic authorities and the Court.\n\n33.  The Government invited the Court to grant compensation for the applicant’s costs and expenses only to the extent that they had been reasonably incurred and with due regard to the value of the subject-matter of the proceedings in issue.\n\n34.  According to the Court’s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the fact that the applicant was represented by a lawyer both in domestic and Convention proceedings, the Court considers it appropriate to award the sum claimed, namely EUR 360, covering costs under all heads.\n\nC.  Default interest\n\n35.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Declares the application admissible;\n\n2.  Holds that there has been a violation of Article 6 § 1 of the Convention;\n\n3.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,000 (two thousand euros) in respect of non-pecuniary damage and EUR 360 (three hundred and sixty euros) in respect of costs and expenses, the above amounts to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.\n\nDone in English, and notified in writing on 6 December 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_450","text":"PROCEDURE\n\n1.  The case originated in an application (no. 5334/11) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Bulgarian nationals, Ms Donka Ivanova Krasteva (“the first applicant”), Ms Maria Maksimova Piskova (“the second applicant”), Ms Angelina Delova PiskovaIndzhova (“the third applicant”) and Ms Iskra Delcheva Piskova (“the fourth applicant”) (together “the applicants”), on 17 December 2010.\n\n2.  The applicants were represented by Ms M. Hristova and Ms A. Gavrilova-Ancheva, lawyers practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Dimova, of the Ministry of Justice.\n\n3.  The applicants alleged that they had been unfairly deprived of their title to a plot of land.\n\n4.  On 26 May 2015 the complaint above was communicated to the Government and the remainder of the application was declared inadmissible, pursuant to Rule 54 § 3 of the Rules of Court.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n5.  The applicants were born in 1932, 1929, 1965 and 1956 respectively and live in Sofia.\n\n6.  On 15 January 1968 the second applicant, together with the antecedents of the other applicants, bought from the then existing local agricultural co-operative a plot of land situated on the outskirts of Sofia measuring 953 square metres. Until 2002 the applicants or their antecedents enjoyed undisturbed possession of that land.\n\n7.  On 10 May 2002 a group of persons, the heirs of Mr T.S., Mr G.S. and Ms K.S., brought against the applicants a rei vindicatio action, stating that the plot of land was theirs. They stated that the plot, once the property of their antecedents, had been collectivised in the years after 1945, but had been returned to them within the context of the process of the restitution of agricultural land by a decision of the relevant body, the local land commission, dated 27 December 1999. They claimed that under section 10(13) of the Agricultural Land Act (see paragraph 13 below), the fact that the second applicant and the remaining applicants’ antecedents had purchased the land in 1968 could not be held against them.\n\n8.  Initially, the Sofia District Court (its judgement is undated) dismissed the action against the applicants. After an appeal by the heirs of Mr T.S., Mr G.S. and Ms K.S., on 5 November 2009 the Sofia City Court overturned that ruling, allowed the rei vindicatio claim and ordered the applicants to surrender possession of the plot. It found in particular that the land commission’s decision of 27 December 1999 was sufficient to render the claimants the owners of the disputed land. It pointed out that of the two rival claims to the same plot the law – namely section 10(13) of the Agricultural Land Act – gave priority to the one based on restitution, and thus had the effect of rendering devoid of any legal force the contract under which the second applicant and the remaining applicants’ predecessors had bought the plot.\n\n9.  In a final decision of 18 June 2010 the Supreme Court of Cassation declined to entertain a cassation appeal by the applicants.\n\n10.  On an unspecified date soon after that the applicants surrendered possession of the plot.\n\nII.  RELEVANT DOMESTIC LAW AND PRACTICE\n\n11.  The Agricultural Land Act (Закон за собствеността и ползването на земеделските земи) was enacted in 1991. It entitled individuals whose land had been collectivised (or their heirs) to request ‒ in certain circumstances ‒ the restoration of their ownership.\n\n.  At the time of its enactment the Agricultural Land Act did not expressly address situations where restitution was sought in respect of plots which had been acquired by third parties after the collectivisation process. In an interpretative decision of 25 June 1996 (Тълкувателно решение № 2 от 25.VI.1996 г. по гр. д. № 2/96 г., ОСГК) the former Supreme Court found that in situations where post-collectivisation buyers had acted in good faith and their title was not otherwise defective, their rights would prevail over the rights of parties subsequently claiming restitution. It held that:\n\n“[t]he legal effect of valid sale contracts, in accordance with the legislation in force at the time, excludes the right of former owners to obtain restitution of agricultural land ...”\n\n.  The situation changed in 1997, when Parliament added subsection 13 to section 10 to the Agricultural Land Act. The new provision stipulated that former owners’ rights to plots which had not been built on were to be restored even in cases where the land in question had been sold or transferred to third parties. It also provided that those third parties could not rely on acquisitive prescription.\n\n.  In a judgment of 14 November 2000 (Решение № 13 от 14 ноември 2000 г. по к. д. № 11/2000 г.) the Constitutional Court dealt with the compatibility of section 10(13) with the constitutional provisions guaranteeing the right to property. It found that it was compatible with these provisions, pointing out that the owners of land occupied by agricultural cooperatives “had never lost their property rights” but during a certain period of time “had merely been unable to exercise them”; that is why any contracts transferring their land could not be held against them, regardless of whether or not the third parties acquiring the land had acted in good faith. As to the provision that third parties who had acquired land could not rely on acquisitive prescription, the Constitutional Court held:\n\n“Through that provision, the legislature has given precedence to the rights of owners of agricultural land included in [agricultural co-operatives] who by virtue of that [act of inclusion] were deprived of the possibility of exercising their property rights and preventing the possible acquisition of their land by third parties through adverse possession over [the rights of] those who have acquired it through such adverse possession.\n\nThe [Constitutional] Court finds that a fair balance between the conflicting fundamental constitutional rights has thus been achieved.”\n\n.  Even before the judgment mentioned above, in several earlier judgments the Constitutional Court took the view that the collectivisation of agricultural land had not extinguished the owners’ property rights, but had merely created obstacles to their exercise (Решение № 6 от 5 юли 1992 г. по к. д. № 9/92 г.; Решение № 8 от 19 юни 1995 г. по к. д. № 12/95 г.).\n\n.  However, before 1989 it was considered that agricultural cooperatives could validly sell land to private individuals (Тълкувателно решение № 16 от 11.III.1977 г. по гр. д. № 86/76 г., ОСГК). Moreover, the former Supreme Court found during that period that upon collectivisation co-operatives had become the owners of collectivised land and that former owners’ rights had become extinguished (Решение № 314 от 25.II.1966 г. по гр. д. № 2484/66 г., I гр. о.; Решение № 2119 от 31.X.1966 г. по гр. д. № 1502/66 г., I гр. о.).\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1\n\n17.  The applicants complained, relying on Articles 6 § 1 and 14 of the Convention and Article 1 of Protocol No. 1, that they had been unfairly deprived of their property.\n\n.  The Court is of the view that it suffices to examine the complaints under Article 1 of Protocol No. 1 alone, which reads as follows:\n\n“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.\n\nThe preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”\n\nA.  Submissions by the parties\n\n19.  The Government did not comment on the admissibility and merits of the application.\n\n20.  Upon the request of the Court, the Government submitted statistical information regarding the number of rei vindicatio claims based on section 10(13) of the Agricultural Land Act that had been examined by the national courts. The data, which did not cover all courts and concerned only the period between 2010 and 2014, showed that between approximately thirty and fifty such cases had been examined by a first-instance court each year. In that regard the Government stated that a “precise analysis at the legislative level” was necessary as regards the possibility of providing for the compensation of persons who had lost their property on the basis of section 10(13).\n\n21.  The applicants reiterated their complaint. They relied on the Court’s judgment in the case of Velikovi and Others v. Bulgaria (nos. 43278/98, 45437/99, 48014/99, 48380/99, 51362/99, 53367/99, 60036/00, 73465/01 and 194/02, 15 March 2007), which concerned a similar situation. They argued that their being deprived of their property had not been “lawful”, as required by Article 1 of Protocol No. 1, because the addition of section 10(13) to the Agricultural Act in 1997 had been unforeseeable and in breach of the rule of legal certainty and had interfered with fundamental legal principles such as the protection of good-faith buyers and the application of acquisitive prescription. Moreover, the applicants pointed out that the taking of their property to satisfy other parties’ restitution claims could not be associated with the social and economic transition of Bulgaria following totalitarian rule and that their title to the disputed land had not been found to be in any way defective. Lastly, the applicants noted that they were not entitled to any compensation for the land taken from them, and that they could not claim back the price paid for it at the time of its purchase, because the seller (the local agricultural co-operative) no longer existed and because in any event the figure paid in 1968 had lost its real value over the years since.\n\nB.  The Court’s assessment\n\n22.  The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\n23.  On the merits, the Court starts by observing that the present case is similar to Tomov and Nikolova v. Bulgaria (no. 50506/09, 21 July 2016), which it recently examined, and which also concerned the application of section 10(13) of the Agricultural Land Act.\n\n24.  As in that case, in the case at hand the Court finds that there was State interference with the applicants’ rights which amounted to deprivation of property within the meaning of the second sentence of Article 1 of Protocol No. 1 (see Tomov and Nikolova, cited above, §§ 42-44). In order to comply with the requirements of that provision, any such deprivation must be lawful and in the public interest and must strike a fair balance between the demands of the general interest and the requirement to protect the fundamental rights of the individual in question.\n\n25.  In analysing these issues in Tomov and Nikolova the Court applied the principles developed by it in a series of cases against Bulgaria concerning the effect of restitution on third parties, albeit in respect of the application of different legislation, starting with the leading case of Velikovi and Others (cited above; some of the follow-up cases are cited in §§ 38-39 of the Tomov and Nikolova judgment).\n\n26.  It thus found that the interference with the applicants’ rights could not be seen as an exceptional transitional measure related to the period of social and economic transformation, as it had been based on a legislative provision, namely section 10(13) of the Agricultural Land Act, which had been enacted in 1997 – long after the beginning of the transformation process (see Tomov and Nikolova, cited above, §§ 46-8). In the Velikovi group of cases (see for example the case of Tsonkovi v. Bulgaria, no. 27213/04, §§ 24-27, 2 July 2009) it has already held that challenging property titles, sometimes decades-old, could in principle be seen as justified only when associated with the unique transitional period which started in Bulgaria in 1989. Moreover, under the provisions of the Agricultural Land Act, the possibility for former owners benefitting from positive restitution decisions to challenge the titles of persons who had bought the land after the collectivisation was definitely not subject to a time-limit, and the post-collectivisation owners could not rely on acquisitive prescription (see Tomov and Nikolova, cited above, § 48). Lastly, it was significant that, unlike in the cases of the Velikovi group, in the case at hand it was not necessary for the persons claiming the restitution of the applicants’ land to show that the latter’s title was in any way defective; rather, it had been sufficient for them to rely on section 10(13) of the Agricultural Land Act, which quite simply wiped out the legal force of contracts of sale concluded many years earlier (ibid., § 49). On that basis the Court concluded in Tomov and Nikolova that the taking of the applicants’ property had breached the principle of legal certainty and did not fall within the scope of legitimate aims such as restoring justice and the rule of law, which the restitution provisions of the Agricultural Land Act could have pursued in principle (ibid., § 51).\n\n27.  The Court sees no reason to reach a different conclusion in the case at hand, which, as already noted, concerns the application of the same legislation as that relied on in Tomov and Nikolova. Accordingly, it concludes that the taking of the applicants’ property in the case violated the principle of legal certainty and did not fall within the scope of the legitimate aims pursued by the restitution.\n\n28.  As in Tomov and Nikolova (see § 52 of the judgment) and in those cases in the Velikovi group where it reached a similar conclusion (for example, the cases of Todorova and Eneva and Dobrev which were examined in Velikovi and Others – see §§ 236-49 of the judgment), the Court finds that in the circumstances of the instant case nothing short of compensation “reasonably related to the market value” of the property lost could maintain the requisite fair balance under Article 1 of Protocol No. 1. However, the applicable legislation did not provide for compensation for persons in a situation such as that of the applicants. In addition, as pointed out by the applicants (see paragraph 21 above in fine), they could not seek the repayment of the price paid for the land in 1968, because the seller at the time, the agricultural co-operative, apparently no longer existed, and in any event they could have only obtained a token amount, given the domestic courts’ practice of refusing to re-evaluate monetary claims (see, on the latter point, Tomov and Nikolova, cited above, § 24, with further references).\n\n.  Accordingly, as in Tomov and Nikolova (see § 54 of the judgment), the Court concludes that depriving the applicants of their property, in breach of the principle of legal certainty and without any possibility of compensation, was a clearly disproportionate measure.\n\n30.  Consequently, there has been a breach of Article 1 of Protocol No. 1.\n\nII.  APPLICATION OF ARTICLE 46 OF THE CONVENTION\n\n31.  Article 46 of the Convention, in so far as relevant, reads:\n\n“1.  The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.\n\n2.  The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.”\n\n.  Within the context of the execution of judgments in accordance with Article 46 of the Convention, a judgment in which the Court finds a violation of the Convention or its Protocols imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general measures to be adopted in its domestic legal order. Furthermore, in ratifying the Convention (Article 1 in particular) the Contracting States undertook to ensure that their domestic legislation is compatible with it (see Maestri v. Italy [GC], no. 39748/98, § 47, ECHR 2004I, and Viaşu v. Romania, no. 75951/01, § 80, 9 December 2008).\n\n.  In the case at hand, the Government submitted statistical information which showed that many years after the beginning of the restitution process a significant number of pre-restitution titles to agricultural land continued to be challenged under section 10(13) of the Agricultural Land Act (see paragraph 20 above). Moreover, there is still no limitation in time of the possibility for restitution owners to claim land relying on that provision.\n\n.  In order to assist the respondent Government in the fulfilment of their obligations under Article 46 § 1 of the Convention, the Court expresses the view that the general measures taken in the execution of its judgment in this case should include the introduction into domestic law of a remedy capable of ensuring that persons who have lost their property on the basis of section 10(13) can secure compensation reasonably related to the market value of the respective property; the Government also acknowledged that it could be necessary to take such measures (see paragraph 20 above).\n\nIII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n35.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n36.  In respect of pecuniary damage, the applicants claimed, firstly, 121,030 euros (EUR) in respect of the value of the land taken from them. The claim was based on a valuation undertaken in April 2016 by an expert appointed by the applicants. The plot at issue is situated in a residential area at the foot of Vitosha Mountain, on the outskirts of Sofia. The report described it as being eligible for construction despite its being located on a steep slope, and as being close to a bus station and a main road, albeit accessible only via a dirt road. On the basis of information in respect of other similar plots being offered for sale in the area, the expert assessed the “most likely selling price” of the plot at issue at EUR 127 per square metre, or the above-mentioned sum of EUR 121,030 for the whole plot of 953 square metres.\n\n37.  The applicants claimed, in addition, compensation for lost opportunity as they had been unable to use their land after surrendering it to the heirs of Mr T.S., Mr G.S. and Ms K.S. They explained that they had used the land for spending time outdoors, as well as to grow fruit and vegetables. They invited the Court to make an award in equity under this head, noting nevertheless that they considered the amount of EUR 700 per year (EUR 3,850 for five and a half years at the time of the submission of their claims) just.\n\n38.  The applicants requested the Court to make an award to each of them according to their respective shares in the plot of land, namely one-half for the first applicant, one-third for the second applicant and one-twelfth each for the third and fourth applicants.\n\n39.  Lastly, the applicants claimed EUR 3,500 for each of them in respect of non-pecuniary damage.\n\n40.  The Government contested the claims, considering in particular that the market value of the land was much lower than that which was claimed by the applicants. In support of this argument, they submitted three sale offers published on the Internet for plots of land in the neighbourhood. Two of those plots, offered respectively for EUR 68 and EUR 72 per square metre, were eligible for construction. The third plot, offered for EUR 22 per square metre, was forestry land. In addition, the Government contended that the claim related to lost opportunity was not linked to any violation of the Convention that might be found and that the claims concerning nonpecuniary damage were exaggerated.\n\n41.  As regards the applicants’ claim related to the value of the plot which they had lost, the Court has held that illegal or arbitrary dispossessions of property in principle justify restitutio in integrum or the payment of a sum reflecting the current value of the property taken (see, inter alia, Papamichalopoulos and Others v. Greece (Article 50), 31 October 1995, §§ 36-39, Series A no. 330B, and Brumărescu v. Romania (just satisfaction) [GC], no. 28342/95, §§ 21-24, ECHR 2001I). This should also be the approach in the present case, in view of the Court’s finding above that the taking of the applicants’ property was in breach of the principle of legal certainty and in view of its approach in earlier similar cases (see Tomov and Nikolova, cited above, § 60, and the just satisfaction judgment in the cases examined in Velikovi and Others, in which the Court found a violation of Article 1 of Protocol No. 1 – Todorova and Others v. Bulgaria (just satisfaction), nos. 48380/99, 51362/99, 60036/00 and 73465/01, § 11, 24 April 2008). As it is impossible to order the return of the land to the applicants because it has passed to private parties, the Court is to make a monetary award reasonably related to its current market value. The Court notes in this respect the lack of clarity as to the potential use of the property and the rather general character of the information, particularly that provided by the Government, on the basis of which it has to establish its market value. Taking into account the information provided, the Court awards the applicants EUR 80,000 under the present head.\n\n.  The Court finds, in the next place, that it is justified to make an award with regard to the losses suffered by the applicants after they surrendered possession of their plot in 2010 (see paragraph 10 above). In view of the manner in which the applicants claim to have used their plot, namely to spend time outdoors and to grow fruit and vegetables (see paragraph 37 above), the Court considers it justified to award them EUR 2,000 under this head.\n\n.  As requested by the applicants, the amounts awarded in respect of pecuniary damage are to be distributed among them in accordance with their shares in the lost plot (see paragraph 38 above).\n\n.  Lastly, in respect of non-pecuniary damage, the Court finds it appropriate to award each of the applicants EUR 1,000.\n\nB.  Costs and expenses\n\n45.  The applicants also claimed EUR 2,034 for the costs and expenses incurred before the domestic courts in the proceedings described in paragraphs 7-9 above. They claimed another EUR 945 for the proceedings before the Court, an amount which covered postage as well as the fees charged by their lawyers and the expert who had drawn up the valuation report presented in support of their claim for pecuniary damage (see paragraph 36 above). In order to substantiate these claims, the applicants presented invoices and receipts showing that they had paid the equivalent of those amounts in Bulgarian levs.\n\n46.  The applicants requested that any amount awarded under the head of costs and expenses be distributed among the first three of them in the following manner: one half for the first applicant and one fourth each for the second and third applicants.\n\n47.  The Government contested the claims.\n\n48.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court awards the amounts claimed, totalling EUR 2,979, in full. It notes in particular that the expenses in the domestic proceedings were incurred while the applicants were seeking to prevent the violation of their rights, as found in the case. Lastly, the Court holds that the amount awarded is to be distributed among the first, second and third applicants in the manner indicated by them and as described in paragraph 46 above.\n\nC.  Default interest\n\n49.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\n1.  Declares the application admissible;\n\n2.  Holds that there has been a violation of Article 1 of Protocol No. 1;\n\n3.  Holds\n\n(a)  that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement:\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;\n\n4.  Dismisses the remainder of the applicants’ claim for just satisfaction.\n\nDone in English, and notified in writing on 1 June 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_178","text":"PROCEDURE\n\n1.  The case originated in an application (no. 42119/04) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Sergey Gennadyevich Firstov (“the applicant”), on 12 October 2004.\n\n2.  The Russian Government (“the Government”) were represented by Mr G. Matyshkin, Representative of the Russian Federation at the European Court of Human Rights.\n\n3.  The applicant alleged, in particular, that the conditions of his detention in police custody had been extremely poor.\n\n4.  On 5 March 2010 the application was communicated to the Government.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n5.  The applicant was born in 1972 and lives in the town of Tolyatti, Samara Region.\n\nA.  Criminal proceedings against the applicant\n\n6.  On 26 October 2003 police officers from the Inza District Police Department arrested the applicant. He was accused of having broken into a flat and having stolen personal belongings the estimated cost of which was 20,000 Russian roubles (RUB), (approximately 550 euros (EUR). He was remanded in custody at the Inza Town police station (“the police ward”).\n\n7.  Three days later, a prosecutor authorised the applicant’s pre-trial detention and charged him with theft. He was transferred to Inza temporary detention facility IZ-73/3.\n\n8.  On 24 December 2003 a deputy prosecutor of the Inza District served the applicant with a bill of indictment. The applicant was committed to stand trial before the Inza District Court.\n\n9.  On 13 January 2004 the District Court held the first trial hearing, and on 19 January 2004 it found the applicant guilty of aggravated theft and sentenced him to five years’ imprisonment. On 24 March 2004 the Ulyanovsk Regional Court upheld the judgment on appeal.\n\nB.  Detention in the police ward\n\n10.  In addition to his first period of detention in the police ward following his arrest, the applicant was taken to the ward on twenty-two occasions during the pre-trial investigation and court proceedings.\n\n11.  The applicant provided the following description of the conditions of his detention in the ward. He was usually detained in a cell containing two wooden bunk beds and accommodating up to ten detainees. Inmates had had to take turns to rest owing to the shortage of sleeping places. No bedding was provided. The cell did not have a window in the proper sense of that word – a small window was covered with a metal sheet, blocking access to natural light and air. In the absence of any artificial ventilation in the cell, it was hard to breathe owing to the thick smoke and the humidity. The cell was lit by a small bulb inserted in a recess in the concrete wall above the door. Thick metal bars separated the bulb from the cell. According to the applicant, there was no furniture, wash-bowl or lavatory pan in the cell. Once a day, in the morning, inmates were taken to a public lavatory outside the police station. For the rest of the day, they had to use a bucket as a lavatory pan. They were allowed to clean the bucket once a day, in the morning. The foul smell permeated the cell, as the bucket had no cover. The police station did not have a recreation yard and inmates were therefore confined to their cells day and night. Food was provided once a day. The daily food ration consisted of half a bowl of cabbage soup and a piece of bread. In addition, inmates were given tea, which they drank from containers cut from plastic bottles. Medical assistance was unavailable.\n\n11.  The applicant provided the following description of the conditions of his detention in the ward. He was usually detained in a cell containing two wooden bunk beds and accommodating up to ten detainees. Inmates had had to take turns to rest owing to the shortage of sleeping places. No bedding was provided. The cell did not have a window in the proper sense of that word – a small window was covered with a metal sheet, blocking access to natural light and air. In the absence of any artificial ventilation in the cell, it was hard to breathe owing to the thick smoke and the humidity. The cell was lit by a small bulb inserted in a recess in the concrete wall above the door. Thick metal bars separated the bulb from the cell. According to the applicant, there was no furniture, wash-bowl or lavatory pan in the cell. Once a day, in the morning, inmates were taken to a public lavatory outside the police station. For the rest of the day, they had to use a bucket as a lavatory pan. They were allowed to clean the bucket once a day, in the morning. The foul smell permeated the cell, as the bucket had no cover. The police station did not have a recreation yard and inmates were therefore confined to their cells day and night. Food was provided once a day. The daily food ration consisted of half a bowl of cabbage soup and a piece of bread. In addition, inmates were given tea, which they drank from containers cut from plastic bottles. Medical assistance was unavailable.\n\n12.  The Government submitted that in the period after his arrest and until 4 February 2004, the applicant had been taken back to the police ward twenty-two times. He had usually been taken from the detention facility IZ-73/3 to the ward early in the morning and had been returned to facility IZ-73/3 in the evening, only to be sent back to the police ward in the following morning or several days later. The Government observed that he had spent ten days in the police ward during the pre-trial investigation: five days while attending the court hearings, four days while he was re-acquainting himself with the case-file materials, and an additional three days while he was studying the court records. The Government acknowledged that the material and sanitary conditions in the ward had not “entirely satisfied the established legal requirements”. They stressed that the cells had had no furniture, save for bunk beds, or radios, the lighting had been “insufficient”, the cells had not been equipped with lavatory pans as the police ward was not connected to the water mains or the sewerage system. They further conceded that there had been no artificial ventilation system, the cells had not been disinfected and detainees had not been provided with bedding. Following a number of warnings from the prosecutor, in April 2004 the director of the police station sent a request for additional funding and took the necessary steps to comply with the legal norms governing conditions of detention. The Government provided the Court with a copy of a prosecutor’s order issued on 15 February 2004. Having seen for himself the conditions of detention in the police station and talked to inmates, the prosecutor noted the following problems requiring immediate improvement: occasional overcrowding, failure to provide inmates with bedding, scarce food and lack of sanitary facilities. The Government described the detention authorities’ response to the prosecutor’s orders, and submitted that after the applicant’s detention in the ward the metal shutters had been removed from the cell windows and inmates had been guaranteed an individual sleeping place and personal space of no less than four square metres. Furniture had been installed in the cells and inmates had started receiving food three times a day. The police station administration was now organising daily walks for detainees, had introduced disinfection of the facilities and was providing inmates with the opportunity to take a shower and wash their clothes and bedding.\n\n13.  Nonetheless, the Government disputed the applicant’s allegations concerning the availability of medical assistance and the provision of warm clothes. In particular, they stated that urgent medical assistance had been ensured by emergency doctors, although the applicant had never requested any medical attention. It had also been open to him to ask the administration of the detention facility IZ-73/3 for warm clothes. He had not used that opportunity. The Government insisted that the applicant had had warm clothes when he had been taken to the police station between 13 and 19 January 2004, because his female partner had sent warm clothes to him at the temporary detention facility in December 2003.\n\nC.  Proceedings seeking compensation for damage\n\n14.  On 9 March 2004 the applicant brought an action in tort against the police station administration and the Ministry of Finance of the Russian Federation. He claimed that the conditions of his detention in the police ward had been inhuman and had led to a serious deterioration in his health.\n\n14.  On 9 March 2004 the applicant brought an action in tort against the police station administration and the Ministry of Finance of the Russian Federation. He claimed that the conditions of his detention in the police ward had been inhuman and had led to a serious deterioration in his health.\n\n15.  On 26 May 2004 the Inza District Court partly allowed the applicant’s action and awarded him RUB 500 (approximately EUR 15) in compensation for non-pecuniary damage. The District Court held, in so far as relevant, as follows:\n\n“It was established in a court hearing that the facilities provided to detainees in [the Inza police station] were not adequately furnished, in violation of the legal norms; the representatives of [the police station] explained that the underlying cause was a lack of funds.\n\nThe materials of the prosecutor’s inquiry confirm that bedding is not provided in the [detention ward]. The cells are not furnished in compliance with the law. There are no lavatory pans, water, tables, radio, etc. The lighting in the cells is insufficient; the cells are in semi-darkness. There are windows in the cells; however, they are covered by metal bars in such a fashion that they block access to natural light. There is no ventilation in the cells. The air is stuffy with a peculiar odour. The police ward is not disinfected ...\n\n... suspects and defendants have the right to one hour’s outdoor recreation per day ...\n\nThe director of [the police station] Mr T. explained in a court hearing that he does not draw up a record of detainees’ daily outdoor recreation; whenever possible [detainees] are taken for a walk once a day.\n\nFollowing a prosecutor’s decision addressed to the director of [the police station] about the elimination of violations of the Detention of Suspects Act, certain measures were taken: persons detained in [the police station] are now taken for outdoor walks in compliance with the above-mentioned law; light bulbs with a higher wattage are now used in the cells, thus producing more light; and an estimate of expenditure has been drawn up in respect of the shortcomings that have to be eliminated in order to comply with [the prosecutor’s] decision. It appears from the reply of the police station director to [the prosecutor’s decision], that once funds have been received, all the necessary measures will be taken to eliminate the shortcomings.\n\n...\n\n[The applicant’s] complaints pertaining to the lack of medical assistance are worth consideration.\n\nIn the court hearing the representatives of [the police station] did not dispute the fact that the requirements of the Instruction on the Provision of Medical and Sanitary Assistance to Detainees ... are not complied with in [the police ward].\n\nHowever, the court does not disregard the fact that ... urgent medical assistance was provided to suspects by emergency medical teams in [the police ward]. That fact is corroborated by the records of medical examinations of detainees. [The applicant] did not request the provision of medical assistance.\n\n...\n\nBy virtue of norm no. 3 for daily food rations of persons detained in police detention facilities, detainees ... should have been given the following food ration per twenty-four hours: 550 grams of bread ..., 100 grams of porridge, 20 grams of pasta, 100 grams of meat, 100 grams of fish, 30 grams of margarine, 15 grams of vegetable oil, 30 grams of sugar, 1 gram of tea, 20 grams of salt, 500 grams of potatoes, 250 grams of vegetables, 0.1 gram of bay leaf and 3 grams of tomato sauce.\n\nIn the court hearing [the applicant] explained that [on the days when he was transferred between the police station and detention facility IZ-73/3] he received food in [that facility] in the morning and evening, [and that he was] not given food in [the police station]. [During longer stays] he received food once a day [in the ward]. The food ration included a plate of soup, half a loaf of bread and a glass of tea. The representatives of the [police station] did not dispute that fact.\n\n...\n\nIt was established in a court hearing that when [the applicant] was transferred [to the ward] in winter, he did not have winter clothes. He was not provided with winter clothes in detention facility IZ-73/3... [The ward] also did not provide [the applicant] with warm clothes as it did not have them.\n\nThe above-mentioned facts confirm that [the applicant’s] right to conditions of detention in compliance with domestic requirements was violated in [the police ward], which caused [him] psychological distress.\n\n...\n\nHaving regard to the requirements of reasonableness and justice, the nature of the psychological distress caused to [the applicant], the temporary character of [the applicant’s] detention in [the police ward]: the limited period of less than twenty-four hours; the fact that [he] was transferred to [the police station] to take part in investigative measures and court hearings, and the number of days during which [he] was detained in [the ward], the court finds that [the applicant’s] claims should be awarded but in a reduced amount.”\n\n16.  The applicant attended the hearings before the District Court.\n\n17.  On 10 August 2004 the Ulyanovsk Regional Court upheld the judgment of 26 May 2004, endorsing the reasons given by the District Court.\n\nD.  Proceedings in respect of compensation for health damage\n\n18.  In November 2004 the applicant lodged an action against the head of the medical unit of the temporary detention facility IZ-73/3 in Inza, the police station administration and an investigator from the Inza Town Police Department, seeking compensation for damage to his health and loss of earnings. In particular, he argued that he had had no chronic illnesses prior to his detention and that he had fallen ill during his pre-trial detention because of the appalling conditions of his detention in the Inza police ward. He also alleged that the serious deterioration in his health had become apparent in July and August 2004, after his first tort action against the police ward had already been examined by the Inza District Court.\n\n19.  On 24 May 2005 the Inza District Court dismissed the applicant’s action, finding it to be manifestly ill-founded. The District Court concluded that there was no evidence supporting the applicant’s allegations that he had sustained damage to his health as a result of his detention. The applicant was represented by a lawyer during the hearings. On 30 August 2005 the Ulyanovsk Regional Court upheld the judgment.\n\nII.  RELEVANT DOMESTIC LAW\n\nA.  Conditions of detention\n\n20.  Section 22 of the Detention of Suspects Act (Federal Law no. 103-FZ of 15 July 1995) provides that detainees should be given sufficient food to maintain them in good health, in accordance with standards established by the Government of the Russian Federation. Section 23 provides that detainees should be kept in conditions which satisfy the prescribed sanitary and hygiene requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell.\n\nB.  Civil-law remedies against illegal acts by public officials\n\n21.  Article 1064 § 1 of the Civil Code of the Russian Federation provides that damage caused to the person or property of a citizen will be compensated in full by the tortfeasor. Pursuant to Article 1069, State agencies and State officials are liable for damage caused to an individual by their unlawful actions or failure to act. Such damage is to be compensated at the expense of the federal or regional treasury. Articles 151 and 1099 to 1101 of the Civil Code provide for compensation for non-pecuniary damage. Article 1099 states, in particular, that non-pecuniary damage will be compensated irrespective of any award for pecuniary damage.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION\n\n22.  The applicant complained that the conditions of his detention in the ward of the Inza Town police station had breached Article 3 of the Convention, which reads as follows:\n\n“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”\n\nA.  Submissions by the parties\n\nA.  Submissions by the parties\n\n23.  The Government commented on the conditions of the applicant’s detention. In particular, they submitted that, in violation of the domestic requirements, the applicant had usually been detained in poorly lit cells with no ventilation, lavatory pan or furniture, apart from bunk beds. The cells had not been disinfected. Detainees had received small quantities of food once a day and had not been provided with bedding. Nonetheless, the Government argued that those conditions of detention did not amount to inhuman and degrading treatment in violation of Article 3 of the Convention. In their subsequent submissions to the Court, having commented on the applicant’s claims for just satisfaction, they again asserted that the applicant’s rights under Article 3 of the Convention had not been violated. They noted that the applicant had used domestic remedies: he had applied to the Russian courts and had received RUB 500 in compensation for non-pecuniary damage. Lastly, the Government stressed that the applicant could therefore no longer claim to be a victim of the violation of his rights under Article 3 of the Convention.\n\n24.  The applicant insisted that the conditions of his detention had been inhuman and degrading. He further argued that, despite the fact that the domestic courts had acknowledged that the conditions of his detention in the ward had not met the requirements of Russian law, he had not lost his “victim” status, as his detention for an aggregate period of a month in appalling conditions could hardly be considered to have been adequately compensated with RUB 500. He also pointed out that the Government had not acknowledged that his rights had been violated under Article 3 of the Convention.\n\nB.  The Court’s assessment\n\n1.  Admissibility\n\n25.  The applicant complained about the conditions of his detention in the police ward on twenty-three occasions between 26 October 2003 and 4 February 2004. The Government submitted that the applicant had rarely stayed in the ward overnight, having been taken there in the morning and sent back to the detention facility in the evening. He had, however, returned to the cell either in the morning of the following day or several days later. Given the nature and frequency of the applicant’s stays in the police ward, the Court finds that the entire period of the applicant’s detention should be regarded as a “continuing situation”. Short periods of absence during which the applicant was taken back to facility IZ-73/3 had no incidence on the continuous nature of the detention (see, among others, Shilbergs v. Russia, no. 20075/03, § 19 and §§ 81-84, 17 December 2009; Fetisov and Others v. Russia, nos. 43710/07, 6023/08, 11248/08, 27668/08, 31242/08 and 52133/08, §§ 72-78, 17 January 2012; and Samartsev v. Russia, no. 44283/06, § 38 and §§ 106-14, 2 May 2013).\n\n26.  The Court notes the Government’s argument that in the light of the domestic courts’ ruling awarding the applicant compensation for non-pecuniary damage caused as a result of his detention in the Inza police ward, he could no longer claim to be a victim of a violation of Article 3 of the Convention within the meaning of Article 34 of the Convention. In this respect, the Court reiterates that Article 34, in its relevant part, provides:\n\n“The Court may receive applications from any person ... claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. ”\n\n27.  The Court summarised the principles governing the assessment of an applicant’s victim status in paragraphs 178-92 of its judgment in the case of Scordino v. Italy ((no. 1) [GC], no. 36813/97, ECHR 2006-V). In so far as relevant to the case under consideration, they are as follows:\n\n(a)  in accordance with the subsidiarity principle, it falls first to the national authorities to redress any alleged violation of the Convention. In this regard, the question whether an applicant can claim to be a victim of the violation alleged is relevant at all stages of the proceedings under the Convention;\n\n(b)  a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim”, unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention;\n\n(c)  the issue whether the applicant may still claim to be a victim of a violation of the Convention depends on the redress which the domestic remedy has given him or her;\n\n(d)  the principle of subsidiarity does not mean renouncing all supervision of the result obtained from using domestic remedies, otherwise the rights guaranteed by the Convention would be devoid of any substance. In that connection, it should be reiterated that the Convention is intended to guarantee not theoretical or illusory rights, but rights that are practical and effective.\n\n28.  It follows from the foregoing principles that the Court must verify whether the authorities acknowledged, at least in substance, that there had been a violation of a right protected by the Convention, and whether the redress can be considered appropriate and sufficient (see Scordino (no. 1), cited above, § 193).\n\n29.  The Court is mindful of the fact that the domestic courts did not expressly acknowledge that the treatment to which the applicant had been subjected as a result of his detention in the police ward had breached Article 3 of the Convention. They found that various aspects of the applicant’s detention, having been in breach of the domestic legal requirements, had caused the applicant psychological distress (see paragraph 15 above). Moreover, the Court cannot overlook the Government’s refusal to acknowledge that the guarantees of Article 3 of the Convention were not respected in the applicant’s case. In these circumstances, the Court is prepared to conclude that, in the absence of direct acknowledgment by the Russian authorities that the applicant had been subjected to ill-treatment contrary to the guarantees of Article 3 of the Convention, he has not lost his “victim status”. Although that finding is sufficient for the Court to dismiss the Government’s related objection, it would nevertheless like to determine whether the compensation awarded to the applicant could have been considered sufficient redress.\n\n30.  The Court notes that the applicant’s claims against the police ward administration and the Ministry of Finance were allowed in part. The domestic courts awarded him RUB 500. In assessing the amount of compensation to award, they took into account various aspects, including the requirements of reasonableness and justice, the nature of the applicant’s suffering, the length and temporary character of his detention in the ward, the responsibility of the police station administration for the suffering caused to the applicant, given that he had stayed in the ward on the initiative of the investigating and judicial authorities when they had needed his presence, and the insufficiency of funds which had prevented the administration from providing the applicant with appropriate conditions of detention. It may thus be concluded that the applicant received at least partial compensation for the treatment he had suffered.\n\n30.  The Court notes that the applicant’s claims against the police ward administration and the Ministry of Finance were allowed in part. The domestic courts awarded him RUB 500. In assessing the amount of compensation to award, they took into account various aspects, including the requirements of reasonableness and justice, the nature of the applicant’s suffering, the length and temporary character of his detention in the ward, the responsibility of the police station administration for the suffering caused to the applicant, given that he had stayed in the ward on the initiative of the investigating and judicial authorities when they had needed his presence, and the insufficiency of funds which had prevented the administration from providing the applicant with appropriate conditions of detention. It may thus be concluded that the applicant received at least partial compensation for the treatment he had suffered.\n\n31.  In this connection, the Court reiterates that the question whether the applicant received reparation for the damage caused – comparable to just satisfaction as provided for under Article 41 of the Convention – is important. The Court has already had occasion to indicate that an applicant’s victim status may depend on the level of compensation awarded at domestic level on the basis of the facts about which he or she has complained before the Court (see Cocchiarella v. Italy [GC], no. 64886/01, § 93, ECHR 2006V, with further references). Whether the amount awarded may be regarded as reasonable, however, falls to be assessed in the light of all the circumstances of the case. These include also the value of the award judged in the light of the standard of living and the general level of incomes in the State concerned, and the fact that a remedy in the national system is closer and more accessible than an application to the Court (see Scordino, cited above, §§ 206 and 268, and Dubjaková v. Slovakia (dec.), no. 67299/01, 19 October 2004, with further references).\n\n32.  Turning to the facts of the present case, the Court is unable to conclude whether the amount of compensation awarded to the applicant could have been considered sufficient in domestic terms, as the parties did not produce any relevant information in this regard. However, the Court’s task in the present case is not to review the general practice of the domestic courts in awarding compensation for inhuman conditions of detention or to set a level of compensation which would satisfy the requirements of “adequate and sufficient redress”, but rather to determine, in the circumstances of the case, whether the amount of compensation awarded to the applicant constituted sufficient redress in view of his complaint under Article 3 of the Convention pertaining to his detention in the police ward.\n\n33.  In this connection, the Court considers that the duration of the applicant’s detention in police custody and the reasons given by the domestic courts in making an award in respect of that detention are among the factors to be taken into account in assessing whether the domestic award could be considered as adequate and sufficient redress (see, mutatis mutandis, Staykov v. Bulgaria, no. 49438/99, §§ 91-93, 12 October 2006).\n\n33.  In this connection, the Court considers that the duration of the applicant’s detention in police custody and the reasons given by the domestic courts in making an award in respect of that detention are among the factors to be taken into account in assessing whether the domestic award could be considered as adequate and sufficient redress (see, mutatis mutandis, Staykov v. Bulgaria, no. 49438/99, §§ 91-93, 12 October 2006).\n\n34.  The aggregate length of the applicant’s detention in the Inza police ward amounted to approximately one month between 26 October 2003 and 4 February 2004. On 26 May 2004 the Inza District Court awarded the applicant RUB 500 in pecuniary damages in response to his tort action related to his detention in the police ward.\n\n35.  The Court is mindful that the task of estimating the amount of damages to be awarded is a difficult one, especially in a case where personal suffering, whether physical or psychological, is the subject of the claim. There is no standard by which pain and suffering, physical discomfort and psychological distress and anguish can be measured in terms of money. The Court has no doubt that the domestic courts in the present case, with every desire to be just and eminently reasonable, attempted to assess the cumulative effect which the conditions of detention had had on the applicant’s well-being (see, mutatis mutandis, Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001-II) and to determine the level of physical suffering, emotional distress, anxiety or other harmful effects sustained by the applicant by reason of his detention in those conditions (see Nardone v. Italy (dec.), no. 34368/02, 25 November 2004). However, the Court cannot overlook the fact that the amount of RUB 500 awarded for an aggregate period of a month on twenty-three occasions of detention, that is, a rate of approximately RUB 16 per day, was disproportionately lower than the damages that it generally awards in comparable Russian cases (see, for example, Labzov v. Russia, no. 62208/00, 16 June 2005, and Kantyrev v. Russia, no. 37213/02, 21 June 2007).\n\n36.  While emphasising the importance of a reasonable amount of just satisfaction being offered by the domestic system for the remedy in question to be considered effective under the Convention, the Court has held on a number of occasions that a wider margin of appreciation should be left to the domestic courts in assessing the amount of compensation to be paid. Such an assessment should be carried out in a manner consistent with its own legal system and traditions and take into account the standard of living in the country concerned, even if that results in awards of amounts that are lower than those fixed by the Court in similar cases (see Cocchiarella, cited above, § 80, and the finding in paragraph 31 above). However, the Court has also stressed that when awarding compensation for non-pecuniary damage, the domestic courts have to justify their decision by giving sufficient reasons (see Scordino (no. 1), cited above, § 204).\n\n37.  In this regard, the district and regional courts merely cited the duration and temporary character of the applicant’s detention in the police cell as a reason for the “reduced amount” of compensation. While the Court agrees that the length of time the applicant spent in the cell is an acutely relevant factor for the determination of the appropriate amount of compensation, it is not convinced that that factor alone should have been adopted by the Russian courts as the underlying reason for such a disproportionately small award. It appears that the degree of responsibility of the police station administration and their lack of financial resources were taken into account by the Russian courts as additional reasons justifying the amount of compensation. In this respect, the Court reiterates its findings in the case of Shilbergs v. Russia (cited above), in which it was confronted with an identical issue of assessing the national court’s reasoning for awarding compensation in a case of poor conditions of detention. In that case, the Court held as follows:\n\n“The Court accepts that, applying the compensatory principle, national courts might make an award taking into account the motives and conduct of the defendant and making due allowance for the circumstances in which the wrong was committed. However, it reiterates its finding made in a number of cases that financial or logistical difficulties, as well as the lack of a positive intention to humiliate or debase the applicant, may not be cited by the domestic authorities as circumstances relieving them of their obligation to organise the State’s penitentiary system in such a way as to ensure respect for the dignity of detainees (see, among other authorities, Mamedova v. Russia, no. 7064/05, § 63, 1 June 2006). The same logic applies to domestic courts’ reasoning in awarding damages when entertaining actions against a State in respect of its tortious conduct. The Court finds it anomalous for the domestic courts to decrease the amount of compensation to be paid to the applicant for a wrong committed by the State by referring to the latter’s lack of funds. It considers that in circumstances such as those under consideration the means available to the State should not be accepted as mitigating its conduct, and are thus irrelevant in assessing damages under the compensatory criterion. Furthermore, the Court is of the opinion that the domestic courts, as the custodians of individual rights and freedoms, should have felt it their duty to mark their disapproval of the State’s wrongful conduct to the extent of awarding an adequate and sufficient quantum of damages to the applicant, taking into account the fundamental importance of the right of which they had found a breach in the present case, even if they considered that breach to have been an inadvertent rather than an intended consequence of the State’s conduct. As a corollary this would have conveyed the message that the State may not set individual rights and freedoms at nought or circumvent them with impunity.” (ibid, § 78).\n\n38.  The Court believes that its findings in the Shilbergs case are fully applicable to the circumstances of the present case. In view of the absence of a reasonable relationship of proportionality between the amount of compensation awarded to the applicant, the circumstances of the case and the domestic courts’ reasoning in making the award, the Court concludes that, having regard to its case-law (see paragraph 34 above), the redress was insufficient and manifestly unreasonable.\n\n39.  Given that both the first condition, acknowledgement of a violation, and the second condition, appropriate and sufficient redress, have not been fulfilled, the Court is entirely convinced that the applicant in the instant case may still claim to be a “victim” of a breach of his rights under Article 3 of the Convention on account of his detention in the Inza police ward. Accordingly, this objection by the Government must be dismissed.\n\n40.  The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\n2.  Merits\n\n41.  The applicant was detained at the Inza police station twenty-three times over a period of slightly over three months between 26 October 2003 and 4 February 2004; the aggregate period of his detention amounted to a month.\n\n42.  In the proceedings in which the applicant sought compensation for damage, the domestic courts found that his right to conditions of detention in compliance with domestic requirements had been violated and that he had sustained psychological distress as result of his detention in the Inza police ward. In particular, they found that he had been held in poor sanitary conditions in insufficiently lit, inadequately furnished and stuffy cells, that he had been given a small quantity of food only once or twice a day, and that when he was transferred to the ward in the winter he had not been given warm clothes (see paragraph 15 above). The Court notes the observations of a prosecutor who saw for himself the conditions in which the applicant had been held. In particular, the prosecutor noted occasional overcrowding, the authorities’ failure to provide inmates with bedding, the lack of recreational walks, the limited access to a toilet and no access to any facilities in order to maintain even basic hygiene, given that the police ward was not connected to the main sewerage or water-supply systems. The lack of sanitary facilities meant that inmates had to relieve themselves in a bucket installed in a corner of the cell (see paragraph 12 above). The Government did not dispute the prosecutor’s findings.\n\n43.  In these circumstances, the Court considers that the distress and hardship endured by the applicant exceeded the unavoidable level of suffering inherent in detention and went beyond the threshold of severity under Article 3 (see, for similar reasoning, Kantyrev, cited above, §§ 52-53, Guliyev v. Russia, no. 24650/02, § 43, 19 June 2008; Shilbergs, cited above, §§ 81-84; Andreyevskiy v. Russia, no. 1750/03, §§ 73-78, 29 January 2009; and Samartsev, cited above, § 112-14).\n\n44.  Accordingly, there has been a violation of Article 3 of the Convention on account of the applicant’s detention in the ward of the Inza Town police station, which the Court considers to be inhuman and degrading within the meaning of this provision.\n\nII.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION\n\n45.  The Court has examined the other complaints submitted by the applicant. However, having regard to all the material in its possession, and in so far as those complaints fall within the its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.\n\nIII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n46.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n47.  The applicant claimed 100,000 euros (EUR) in respect of non-pecuniary damage.\n\n48.  The Government, reiterating their assertion that the applicant’s Convention right had not been violated, stressed that the amount of compensation requested was excessive and unreasonable.\n\n49.  The Court reiterates, firstly, that the applicant cannot be required to furnish any proof of the non-pecuniary damage he has sustained (see Gridin v. Russia, no. 4171/04, § 20, 1 June 2006). It considers that the applicant’s suffering and frustration caused by his detention in conditions that did not meet the requirements of Article 3 of the Convention cannot be compensated for by a mere finding of a violation. However, the actual amount claimed does appear excessive. Making its assessment on an equitable basis, it awards the applicant EUR 1,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.\n\nB.  Costs and expenses\n\n50.  The applicant also claimed RUB 296 (approximately EUR 7) for postal expenses incurred in the proceedings before the Court. He submitted a receipt for that amount.\n\n51.  The Government reiterated that the applicant should have confirmed that expenses were necessary and were in fact incurred.\n\n52.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum claimed in full, together with any tax that may be chargeable to the applicant.\n\nC.  Default interest\n\n53.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\n1.  Declares the complaint concerning the conditions of the applicant’s detention in the ward of the Inza Town police station admissible and the remainder of the application inadmissible;\n\n2.  Holds that there has been a violation of Article 3 of the Convention;\n\n3.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Russian roubles at the rate applicable at the date of settlement:\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n4.  Dismisses the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 20 February 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_184","text":"PROCEDURE\n\n1.  The case originated in an application (no 37193/07) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“The Convention”) by a Bulgarian national, Ms Paraskeva Dimitrova Todorova (“the applicant”), on 9 August 2007.\n\n2.  The applicant, who has been admitted legal aid, was represented by Ms S. Stefanova and Mr Ekimdzhiev, lawyers practising in Plovdiv. The Bulgarian Government (“the Government”) were represented by their Agent, Ms Svetla Atanasova, of the Ministry of Justice.\n\n3.  The applicant alleges, in particular, that the Bulgarian criminal courts which convicted her of fraud, put forward discriminatory grounds for refusing to stay the execution of her prison sentence and that her criminal case was not examined by an impartial tribunal.\n\n4.  On 5 September 2007, the President of the Chamber in charge of examining the case accepted the applicant’s request to treat her case as a matter of priority (Rule 41). On 28 January 2008, the President decided to communicate the request to the Government. As permitted by Article 29 § 3 of the Convention, it was further decided that the Chamber would decide on admissibility and merits at the same time.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n5. The applicant was born in 1952 and lives in Trud, in the Plovdiv region. She is a Bulgarian citizen and belongs to the Roma ethnocultural minority.\n\n6.  In 2005, on an undisclosed date, the Plovdiv District Prosecutor’s Office opened criminal proceedings against the applicant for fraud; she was reproached in particular for the fraudulent appropriation of the sum of 2,600 Bulgarian levs (approximately 1,300 euros) and the jewels of a certain G.S. On 23 December 2005, she was sentenced to trial in the District Court of Plovdiv.\n\n7.  During the proceedings, the District Court heard the prosecution and defence witnesses, gathering documentary evidence and the conclusions of experts. The concerned party claimed that on the day of the events in question, 12 July 2005, she was in Zlatitsa, a town about 100 kilometres from the victim’s village, and that she had consulted a doctor because she had felt ill. She submitted a doctor’s medical certificate and had her son’s companion interviewed. In her defence speech, her lawyer emphasised that the police had not found significant amounts of money or jewellery at the applicant’s home. She challenged the reliability of the identity parade carried out at the preliminary stages of investigation and drew the court’s attention to the contradictions in the evidence of the prosecution’s witnesses as to the age and the physical appearance of the applicant who had defrauded the victim. The lawyer insisted that the first of three prosecution witnesses, a neighbour, had seen a woman of Roma origin approaching and speaking with the victim, but that she was not in a position to recognize the individual. In addition, during the identity parades and in the courtroom, the second witness, another neighbour, had stated that she was not sure whether the applicant was the woman who had defrauded the victim. As for the third of these witnesses, the counsel for the applicant noted that she was the granddaughter of the victim and invited the court not to grant credit to her statements. The lawyer admitted that the applicant had previously been sentenced for theft. However, her last conviction was more than twenty years old.\n\n8.  In her defence speech, the district prosecutor invited the court to recognize the applicant guilty of the alleged facts: she had been recognized by the victim and two witnesses against her. The testimony of a third witness corroborated the conclusion that the concerned party had fraudulently taken the money and jewels of the victim. She invited the court not to grant credit to the evidence of the defence’s witness, who was among those close to the applicant. In view of the preponderance of mitigating circumstances in the present case and of the applicant’s state of health, the prosecutor argued in favour of a suspended conviction and a sentence close to the minimum provided for by the Criminal Code.\n\n9.  On 29 May 2006, the Plovdiv District Court, consisting of a professional judge and of two lay assessors (съдебни заседатели), pronounced its judgment in which it found the applicant guilty of defrauding G.S. and sentenced her to three years of imprisonment. The reasons for the judgment were issued to the applicant in June 2006 and bore the signature of the professional judge who had presided over the District Court’s trial. At the beginning of these reasons, among other personal information used to identify the applicant, such as her place and date of birth, her home address and her unique identification number, her Roma origin was also listed. In the fact-finding portion of the reasoning, the court found that the accused had entered the victim’s home fraudulently, suggesting to her that her family had been struck by black magic which she could dispel. Taking advantage of G.S.’s credulity, she took the money and jewellery that she then kept in her home. The court based these findings on the statements of the prosecution witnesses which it found to be consistent with the other evidence gathered. It did not retain the statements of the defence witness who had explained that the applicant had visited relatives in Zlatitsa in July 2005 and that she had consulted a doctor there. The court refused to take into account the medical certificate presented by the applicant: even if it was dated 12 July 2005, there was no date after its reference number, as is normally the case. Similarly, the doctor had affixed his stamp on the document, but it lacked the stamp of the hospital. The court found that the sentence should be three years’ imprisonment because of the balance between the aggravating and mitigating circumstances in this case. Among the aggravating circumstances, it mentioned the negative data on the applicant’s personality, previous convictions, the absence of a stable job, the gravity of the alleged acts, the high amount of money taken by the applicant, and the operating mode thereof. The court held as a mitigating circumstance the advanced age of the applicant.\n\n10.  The District Court refused to suspend the execution of the three-year sentence for the following reasons:\n\n“The decision to impose an effective sentence of imprisonment in this case arises from the legal obligation for the court (Article 66 of the Penal Code) to determine whether suspension of the sentence’s execution is compatible with the objectives of the penal sanction. The court considers that this is not the case in this case, especially as there is a feeling of impunity, especially among members of minority groups, for whom a conditional sentence is not a conviction (this concerns general prevention). Moreover, this conclusion is equally valid with regard to special prevention – the execution of the sentence imposed will prevent [the applicant] from committing other criminal offenses and [will enable her] to correct her behaviour and to rehabilitate herself.”\n\n11.  The applicant appealed against this judgment. She considered that the court based its findings on the statements of the prosecution’s witnesses, who did not prove her implication in the acts alleged against her, and that the lower court refused to obtain evidence corroborating the defence’s case. At her request, the Plovdiv Regional Court questioned the doctor who issued the medical certificate, as well as the nurse who worked with him. Both confirmed that the applicant had come to the doctor’s office on the morning of 12 July 2005 for a matter of high blood pressure. The examination was finished after twenty minutes. In her plea, the applicant’s lawyer reiterated her arguments before the first-instance court concerning the credibility of the prosecution’s witnesses’ statements and the accountant’s alibi (see paragraph 7 above) and argued that the lower court had taken into account the applicant’s ethnicity to justify its decision. She invited the regional court to acquit her client or to give her no more than a suspended sentence.\n\n12.  On 16 October 2006, the Plovdiv Regional Court upheld the judgment of the first-instance court. It upheld again the statements of the prosecution’s witnesses, which it considered consistent with the other evidence. It did not uphold the statements of the applicant’s son’s companion, believing that they were not sufficiently specific. It found that the applicant’s allegation that she had, on 12 July 2005, consulted a doctor in Zlatitsa was well established. However, in the absence of any indication as to the exact time of the medical visit, the court found that, given the length of the consultation and the distance between the town of Zlatitsa and the victim’s village, in theory as well as in practice, the interested party would have had the opportunity to go to G.S.’s home at the time indicated by the witnesses, namely around noon on the same day. In its part on the appropriateness of suspending the execution of the sentence, the judgment of the Regional Court reads as follows:\n\n“The appeal court shares the reasons for the inapplicability of a suspended sentence with respect to Paraskeva Todorova. It agrees wholeheartedly with the opinion of the initial court that a possible suspension of execution could not contribute to the accomplishment of the objectives of general and specific prevention because, on one hand, it would have created a feeling of impunity, and on the other, it would not have prevented [the applicant] from resuming her wrongful behaviour, and the sentence would not have had a deterring effect on other members of society.”\n\nThis judgment was not subject to appeal in ordinary cassation.\n\n13.  On 6 November 2006, the applicant lodged an appeal with the Supreme Court of Cassation provided for by Article 422, paragraph 1, point 5 of the Code of Criminal Procedure. She claimed that her conviction was unfair, discriminatory, and contrary to domestic law and to international conventions ratified by Bulgaria, including Article 6 § 1 of the Convention. The applicant requested the High Court to order the re-examination of the case or to potentially modify the judgment of the Regional Court.\n\n14. In her defence brief submitted to the High Court, the applicant’s counsel challenged in particular the courts’ reasoning concerning sentencing and the refusal to suspend the execution of the sentence. It argued that the file contained no information which could lead to the conclusion that there was negative information on the applicant’s personality. The applicant had received a pardon after her prior convictions, which obligated the courts to no longer consider her criminal record as an aggravating circumstance. Given the unemployment rate in the country and the age of the applicant, the lack of a stable job could not be considered as such a circumstance. As for the gravity of the events, this was part of the very characteristics of the penal infraction for which the conviction had been made, which prevented the courts from taking up the same argument for also arguing it as an aggravating circumstance. Moreover, according to the consistent legal precedents of the domestic courts, the amount of the money appropriated was not significant. The decision of the courts not to suspend the execution of the applicant’s sentence was motivated by her membership with a minority ethnic group. The applicant’s counsel argued that this same motivation demonstrated the bias of the court that had sentenced her client.\n\n15.  In a judgment on 5 June 2007, the Supreme Court of Cassation dismissed the applicant’s appeal. The High Court found that the lower courts had correctly established the facts on the bases of the relevant evidence gathered during the criminal investigation and in court. They had correctly characterized the established events as fraud and determined the length of the sentence imposed by taking into account the seriousness of the events and the personality of the applicant in light of previous criminal infractions. The Supreme Court of Cassation admitted that the formal conditions for a sentence suspension had been met, particularly in view of the fact that the applicant had been rehabilitated. However, it found that the conviction of an effective sentence was justified for the following reasons:\n\n“It has been rightly admitted [by the lower courts] that the execution of the sentence was indispensable and justified from society’s point of view. Thus, the accused will be deprived of the opportunity to resume her wrongful behaviour and [the penal sanction] will have a deterring effect on other members of society.”\n\nII.  RELEVANT DOMESTIC LAW AND PRACTISE\n\nA.  The principle of equality before the law\n\n16.  Article 6, paragraph 2 of the Constitution proclaims the principle of equality of citizens before the law and prohibits any restriction of their rights or privileges based on, among others, race or ethnicity. Article 11, paragraph 2 of the Code of Criminal Procedure of 2006 (hereinafter the CCP), obligates the courts, the public prosecutor’s department, and the bodies responsible for the criminal investigation to apply the law uniformly to all citizens.\n\nB.  The Penal Code\n\n17.  According to Article 66 of the Penal Code, the court may suspend enforcement of the sentence of imprisonment imposed if the term of imprisonment does not exceed three years, if the concerned party has not already been convicted to a term of imprisonment for a criminal offense prosecuted ex officio and if the court finds that the objectives of the penal sanction can be attained without the imposition of an effective penalty. The existence of a previous conviction does not preclude, in principle, the application of Article 66 of the Penal Code, if the party in question has benefited from rehabilitation (see, for example, Решение № 13 от 25.01.2001г. на ВКС по н.д. № 700/2000г., ІІ н.о.).\n\n18.  According to Article 36 of the Penal Code, the imposition of a criminal penalty has the following objectives: to correct the behaviour of the convicted person and encourage him or her to respect the laws and virtue; to prevent the possibility for him or her to commit other criminal offenses; to prevent criminal offenses by other members of society and encourage in them respect for the law and good virtues.\n\nC.  Appeal against final judgements rendered in the appeal court\n\n19.  According to Article 346 of the CCP, the judgments of regional courts rendered in the appeal court, when they confirm the judgments of initial courts, are not susceptible to ordinary appeal.\n\n20.  Nevertheless, these judgments can be criticised for the same deficiencies which justify appeal in cassation (non-observance of substantive or procedural legislation or imposition of an unfair penalty) before the Supreme Court of Cassation by the appeal provided by Article 422, paragraph 1, point 5 of the CCP. This plea, which the legislature regulated in the chapter of the CCP dedicated to the reopening of criminal proceedings, can be introduced by the sentenced person, through the court of first instance (Article 422, paragraph 2) within a period of six months from the date of the judgment of the appeal court (Article 421, paragraph 3 of the CCP).\n\n21.  If the Supreme Court of Cassation finds any of the aforementioned breaches of substantive or procedural rules, it is bound to overturn the judgment of the lower court and may remit the case for reconsideration, terminate the criminal proceedings, acquit the person concerned or amend the judgment under appeal (Article 425, paragraph 1 of the CCP).\n\nD.  The reopening of proceedings in criminal courts following a judgment of the European Court of Human Rights\n\n22.  In view of Articles 420, paragraph 1, Article 421, paragraph 2 and Article 422, paragraph 1, point 4 of the CCP, the public prosecutor is obligated to request the reopening of the criminal proceedings of a convicted person within one month of the judgement of the European Court of Human Rights finding a violation of the Convention, if the violation found is of particular importance for the outcome of the criminal proceedings. The body competent to decide in this case is the Supreme Court of Cassation.\n\nIN LAW\n\nI.  ON THE ALLEGED VIOLATIONS OF ARTICLE 14 IN CONJUNCTION WITH ARTICLE 6 § 1 OF THE CONVENTION\n\n23. The applicant alleges that the refusal of the domestic courts to suspend her execution of her sentence was based on her Roma ethnicity. She considers that this approach of the courts, which she describes as openly discriminatory, undermined her right to a fair trial and that the reasoning of the District Court’s decision clearly demonstrates the judge’s bias. The complaint also denounces the domestic law’s inability to remedy this situation. She invokes articles Article 6 § 1, 13 et 14 of the Convention. The Court considers it appropriate to examine the applicant’s allegations under Article 14 in conjunction with Article 6 § 1. The relevant parts of those articles of the Convention read as follows:\n\nArticle 14\n\n“The enjoyment of the rights and freedoms recognized in the (...) Convention shall be secured without discrimination on any ground such as sex, race, colour, language, origin, political opinions or any other opinions, national or social origin, association with a national minority, property, birth, or any other status.”\n\nArticle 6 § 1\n\n“Everyone is entitled to a fair and public hearing (...), by an independent and impartial tribunal established by law (...) which will determine (...) any criminal charge against him or her (...)”.\n\nA.  On admissibility\n\n24.  The Court observes that the applicant introduced her request on 9 August 2007, less than six months after the judgment on 5 June 2007 of the Supreme Court of Cassation, but more than six months after the judgment of 16 October 2006 of the Regional Court of Plovdiv. It further observes that, according to domestic legislation, the judgment of the Regional Court was final (see paragraph 19 above) and that the decision of 5 June 2007 of the Supreme Court of Cassation was not delivered in the context of an ordinary cassation procedure. In these circumstances, the Court considers the main question which arises as to the admissibility of the present application to be whether the applicant complied with the six-month time-limit set forth by Article 35 § 1 of the Convention.\n\n25.  The Court recalls that the rules of the six-month period and the exhaustion of domestic options, provided for in Article 35 § 1 of the Convention, are closely linked. In effect, the six-month period runs from the final decision in the context of the exhaustion of domestic options (see, inter alia, Paul and Audrey Edwards v. the United Kingdom (dec.), no. 46477/99, 7 June 2001). This last rule obligates the applicants to gather only the pleas normally available and sufficient in the domestic legal order to allow reparations for the alleged violations to be obtained (Kiiskinen v. Finland (dec.), no. 26323/95, ECHR 1999V (extracts)). Thus, Article 35 § 1 does not require the exhaustion of extraordinary or discretionary remedies and the decision taken as the result of such an appeal is not normally regarded as the ‘final domestic decision’ for the calculation of the six-month period (see, inter alia, Berdzenichvili v. Russia (dec.), no. 31697/03, ECHR 2004II (extracts)). It follows that the Court can examine the merits of the present application only if it finds that the appeal lodged by the applicant, namely that provided for by Article 422, paragraph 1, point 5 of the CCP, is a normally available and effective remedy for the alleged violations of the Convention.\n\n26.  The Court observes in the first place that domestic law allows convicted person to appeal directly to the Supreme Court of Cassation of the appeal in question within a period which does not appear excessively long (see paragraph 20 above).\n\nThe introduction of such an application is not subject to any authorisation or approval by the administrative or judicial authorities. In this case, the applicant availed herself of this opportunity to expressly contest the partiality of the first-instance court and its reasons for imposing an effective sentence (see paragraphs 13 and 14 above). Accordingly, the Court considers that the remedy provided for by Article 422, paragraph 1, point 5 of the CCP was sufficiently accessible to the applicant, both in theory and in practise.\n\n27.  With regard to the efficacy of the proceedings initiated, the Court notes that the appeal in question allows the concerned party to invoke the same deficiencies which open the path to ordinary cassation (see paragraph 20 above). The Supreme Court of Cassation, for its part, has a wide range of powers in the context of this procedure: it can overturn the judgment and refer the case to the lower course for reconsideration, it may also amend the judgment under appeal, terminate criminal proceedings, or acquit the concerned party (see paragraph 21 above).\n\n28.  The Court further observes that the competent court examined all aspects of the substance of the criminal charge against the applicant – the establishment of the facts, their legal qualification, the appropriateness of the sentence and the possibility of suspending its execution (see paragraph 15 above). Moreover, the proceedings in question took place within a brief period of time: the applicant applied to the competent court less than one month after the contested judgment was delivered (see paragraphs 12 and 13 above) and the Supreme Court of Cassation delivered its judgment without significant delay (see paragraph 15 above). It is true that, in the end, the applicant’s request was rejected. However, in light of domestic legal provisions and other circumstances relevant to the case, the Court cannot blame the applicant for lodging the appeal provided for by Article 422, paragraph 1, point 5 of the CCP, which was directly available to her and which could address the alleged unfairness of the proceedings brought against her.\n\n29.  Consequently, the Court considers that the judgment of 5 June 2007 of the Supreme Court of Cassation represents the “final domestic decision” for the purposes of Article 35 § 1. It follows that the present application was introduced in the six-month period provided for by this provision of the Convention.\n\n30.  The Court notes, moreover, that the complaints in question are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that they face no other ground of inadmissibility. They should therefore be declared admissible.\n\nB.  On the merits\n\n31.  The Court observes at the outset that the applicant denounces, on one hand, the discriminatory motive behind her conviction to an effective sentence and, on the other hand, the lack of impartiality by the domestic courts which adopted and ratified this decision on the grounds that her ethnicity had been taken into account in determining her sentence. The Court considers it appropriate to first examine the grievance concerning the domestic courts’ motives in the context of the prohibition of discrimination in the enjoyment of a guaranteed fair trial.\n\n1. On the allegedly discriminatory nature of the courts’ reasoning\n\na)  The parties’ submissions\n\n32.  The applicant states that the refusal of the first-instance court to suspend the execution of her sentence was motivated by her Roma ethnicity. She maintains that all the other conditions required by criminal law for the application of the suspended sentence procedure were met in her case – the court had set the prison sentence at three years and she had received a pardon for her previous convictions, which were more than twenty years old. However, the first-instance court imposed an effective sentence on the sole basis that a suspended sentence could not be seriously considered, especially among minorities. The applicant considers that this argument directly referred to her belonging to the Roma minority, which she considers proof that in the same circumstances, someone representing the ethnic majority of the country would not have been sentenced to an actual prison sentence. For that matter, the higher courts have joined the arguments put forth by the first-instance court.\n\n33.  The Government categorically rejects this view and considers that the applicant was not subjected to discriminatory treatment based on her ethnicity. It recalls that, according to domestic law, the imposition of a criminal sanction must serve two purposes: general prevention, aimed at deterring other members of society from committing criminal offenses, and specific prevention, which serves to prevent the convicted person from recidivism. In order to properly enforce the legislation concerning suspended sentencing, the domestic courts must take into account these two aspects of the deterrent effect of the sentence, as well as the relevant circumstances of each concrete case.\n\n34.  The Government considers the courts to have correctly applied domestic law in considering that only the imposition of an effective penalty could deter both the applicant and other members of society from committing this type of fraud. The Government considers that, in the reasoning for its judgment, the first-instance court simply highlighted that a possible suspended sentence would have created a feeling of impunity among all members of society, regardless of their ethnicity. It maintains that in the process of adopting the contentious decision, the fact that the applicant was of Roma origin played only a significant role.\n\nb)  The Court’s assessment\n\n35.  The Court reiterates that, while it is not up to them to replace the domestic courts in assessing the facts and in interpreting domestic law, it is required to ensure that the procedure followed in this case, taken as a whole, is of an equitable nature, as required by Article 6 of the Convention (see among many others Tejedor García v. Spain, 16 December 1997, § 31, Reports of Judgments and Decisions 1997-VIII; Van Kück v. Germany, no. 35968/97, §§ 46 and 47, ECHR 2003-VII).\n\n36.  Article 14 prohibits any unjustified difference in the enjoyment of rights and freedoms guaranteed by the Convention based on any of the criteria enumerated in a non-exhaustive manner by this Article, including the ethnicity or race of the concerned party. The Court has already had the opportunity to rule on the question of under what conditions the motivation behind a court’s decision infringes upon the combined provisions of Articles 14 and 6 § 1 of the Convention. In particular, it considered that when the argument of a domestic court’s judgement introduces a difference in treatment exclusively based on one of the criteria enumerated in Article 14, the State is under an obligation to justify that difference in treatment. In the absence of such a justification, Articles 14 and 6 § 1 of the Convention are considered to be violated (Schuler-Zgraggen v. Switzerland, 24 June 1993, § 67, Series A No. 263; Moldovan v. Roumania (No. 2), nos. 41138/98 and 64320/01, §§ 139 and 140, ECHR 2005VII (extracts)).\n\n37. Turning to the present case, in light of the aforementioned principles, established in its case law and in light of each party’s arguments (see paragraphs 32 and 34 above), The Court considers it appropriate to consider first whether the argument of the domestic courts resulted in the introduction of a difference in treatment disadvantaging the applicant on the basis of her ethnicity. If so, it must consider whether the difference in treatment in question was objectively and reasonably justified by the defendant State.\n\n38.  The Court observes that in the part of the reasoning of the judgment of 29 May 2006 pertaining to the appropriateness of suspending the execution of the imposed sentence, the first-instance court had to seek, as required by domestic law, whether the objectives of general and specific prevention could be achieved without the execution of the prison sentence (see paragraphs 17 and 18 above). In motivating its conclusion on general prevention, the first-instance court referred to the existence of a widespread sentiment of impunity in society, highlighting in particular the extent of this phenomenon in the case of minority groups, “for whom a suspended sentence is not a conviction” (see paragraph 10 above).\n\n39.  The Court accepts that in assessing the deterring effect of a sentence vis-à-vis other members of society, a court may have to take into consideration phenomena of a more or less general nature, such as, for example, the situation of crime in the country, the perception by the general public of this or that type of crime, or the possible existence of a social climate of insecurity. Nonetheless, such observations by the court must, in the opinion of the Court, rest on a certain factual basis; however, the Court observes that the domestic court has not put forth a single argument or fact capable of supporting its findings.\n\n40.  The Court is not convinced by the Government’s arguments that the contested motivation of the court was directed at the entire society and that the applicant’s ethnicity played only a minor role in the court’s assessment (see paragraph 34 above). It observes that the court expressly mentioned the applicant’s Roma origin among the personal data used to identify her from the outset of the reasoning for their judgment (see paragraph 9 above). The remark about the existence of a feeling of impunity in society, which was very general in nature, was focused on minority groups and hence on the applicant herself: she was sentenced to an effective punishment. The Court is of the view that this assertion, taken together with the applicant’s ethnic affiliation, was likely to inspire the public, as well as the applicant, with the sentiment that the court was seeking to impose, in this case, an exemplary sentence for the Roma community, by condemning to an effective sentence a person belonging to the same minority group.\n\n41. The Court considers that other circumstances corroborate the impression that there was a difference in treatment to the disadvantage of the applicant in her criminal proceedings. It observes that in her plea before the District Court, the prosecutor spoke in favour of a suspended sentence, given the preponderance of mitigating circumstances in this specific case and the state of the applicant’s health (see paragraph 8 above). Although it is true that the District Court was not obligated to accept the prosecution’s proposal pertaining to the possible suspension of the sentence, the fact remains that the argument concerning the applicant’s health was ignored in the District Court’s reasons for its judgment, even though this issue may have had some bearing on the decision to impose an effective sentence or not. Moreover, the rejection for purely formal reasons of the medical certificate submitted by the applicant (see paragraph 9 above), even while it was essential proof in support of her alibi, contributed to reinforcing, to some extent, the impression of the applicant.\n\n42.  The Court proceeds to point out that the supervision of superior courts is of particular importance in the event of alleged failure to respect the guarantee of a fair trial, in so far as they can correct the defects of the original proceedings by setting aside the judgment under appeal (see mutatis mutandis Kyprianou v. Cyprus [GC], no. 73797/01, § 134, ECHR 2005 XIII, Chmelíř v. Czech Republic, n. 64935/01, § 68, ECHR 2005-IV). It observes that the applicant has raised in essence and expressly her grievance concerning the discriminatory reasoning of the first-instance court before the superior courts (see paragraphs 11, 13, and 14 above). It must be noted that her appeals were neither accepted by the Regional Court nor the Supreme Court of Cassation.\n\n43.  Moreover, these courts simply supported the reasoning of the District Court with respect to the refusal to suspend the sentence (see paragraphs 12 and 15 above) and the argument relating to the discriminatory nature of her conviction to an effective sentence was not expressly addressed by either of them. Admittedly Article 6 § 1 does not require the domestic courts to reply in detail to all the arguments of the parties in dispute (see mutatis mutandis Hiro Balani v. Spain, 9 December 1994, § 27, series A no. 303-B). However, in the Court’s opinion, this was a relevant objection, to which the answer was of particular importance in view of the circumstances of the case. Thus, the domestic courts have not remedied the failure of the first-instance court and have not dispelled the present and serious doubt about its discriminatory nature.\n\n44. These elements are sufficient for the Court to find that the applicant was indeed subjected to a difference in treatment based on her ethnicity, on account of the ambiguous reason for the courts’ decision to impose on her an effective prison sentencing.\n\n45.  The Court then observes that in its observations the defending Government merely contested the existence of discriminatory treatment vis-à-vis the applicant and that it did not provide any evidence to justify the difference in treatment found in this specific case (see paragraphs 33 and 34 above). The Court, for its part, does not perceive any circumstances of an objective nature capable of justifying this situation. It wishes to stress in this respect the seriousness of the situation contested by the applicant, since, in contemporary European multicultural society, the eradication of racism has become a priority objective for all contracting States (see Sander v. United Kingdom, no. 34129/96, § 23, ECHR 2000 V). It further observes that the principle of equality of all citizens before the law is enshrined in the Bulgarian Constitution and that the Code of Criminal Procedure requires the courts to apply the criminal law uniformly vis-à-vis all citizens (see paragraph 16 above). It must be stated that the contested motivation of the courts in the present case seems to depart from these principles.\n\n46.  The Court cannot speculate as to the outcome of the criminal proceedings against the applicant if the domestic courts had not taken the applicant’s ethnicity into account in refusing to impose upon her a suspended sentence. However, it considers that in the present case, the contested approach of the courts resulted in an unjustified difference of treatment in the enjoyment of fair trial guarantees based on the applicant’s ethnicity. There has therefore been a violation of Article 14 in conjunction with Article 6 § 1 of the Convention on this account.\n\n2.  On the impartiality of domestic courts\n\n47.  The applicant also denounces the lack of impartiality of the domestic courts on account of the arguments they put forth in support of the decision to impose an effective sentence. With regard to the finding of a violation of Article 14 in conjunction with Article 6 § 1 concerning the statement of reasons for the applicant’s conviction, and given the particular circumstances of this case, the Court considers that no separate issue arises with regard to the domestic courts’ impartiality. Therefore, there is no need to examine this grievance by the applicant separately.\n\nII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n48.  According to Article 41 of the Convention,\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n49.  The applicant claims 50,000 euros (EUR) by virtue of the non-penitentiary damage to which she was subjected. She considers the most appropriate remedy to this violation of her guaranteed rights by Articles 14 and 6 § 1 to be the reopening of the criminal proceedings against her.\n\n50.  The Government considers the sum claimed by the applicant by virtue of the non-penitentiary damage to be exorbitant.\n\n51.  The Court considers that the applicant has suffered some non-penitentiary damage as a result of the violation of her right guaranteed by Article 14 in conjunction with Article 6 § 1 of the Convention. It considers that the finding of a violation of the aforementioned articles cannot suffice for the purposes of Article 41 of the Convention. Pronouncing its ruling in fairness, as required by that provision, it considers it appropriate to award the applicant the sum of EUR 5,000 for the non-penitentiary damage to which she has been subjected.\n\n52.  The Court also recalls that, according to its well-establish case-law, it is necessary, in the event of a violation of Article 6 of the Convention, as much as possible, to place the applicant in a situation equivalent to that in which she would be found if there had been no breach of that provision’s requirements (Piersack v. Belgium (Article 50), 26 October 1984, § 12, Series A no. 85). A judgment declaring a violation imposes upon the defending State the legal obligation not only to pay the concerned party the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers of the Council of Europe, general measures and/or, if appropriate, individual measures, to adopt in its domestic legal order in order to put an end to the breach and to make all feasible reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach (Ilaşcu and others v. Moldova and Russia [GC], No. 48787/99, § 487, ECHR 2004 VIII). In particular, in cases of non-compliance with one of the guarantees of Article 6 § 1 of the Convention, the most appropriate remedy is, in principle, to re-try the case or to reopen the proceedings in due course and in compliance with Article 6 (see Lungoci v. Romania, no. 62710/00, § 56, 26 January 2006, and Yanakiev v. Bulgaria, no. 40476/98, § 90, 10 August 2006, for the right of access to a court; Somogyi v. Italy, no. 67972/01, § 86, ECHR 2004 IV, for the right to participate in the proceedings; and Gencel v. Turkey, no. 53431/99, § 27, 23 October 2003, and Tahir Duran v. Turkey, No. 40997/98, § 23, 29 January 2004, for the lack of independence and impartiality of the trial court.\n\n53.  In this case, the Court observes that when it found a violation of one of the Convention’s provisions, the provisions of the Code of Criminal Procedure require the Attorney General to request the reopening of the proceedings before the criminal courts. This provision therefore appears to allow the applicant to have her case reconsidered. In any event, in view of the nature of the violation found in the present case (see paragraph 46 above), and taking into account the particular circumstances of the case, the Court considers the most appropriate remedy to be to reopen the criminal procedure.\n\nB.  Costs and expenses\n\n54.  The applicant also demands EUR 3,068 for the costs and expenses incurred before the Court, equivalent to 42 hours of legal work at an hourly rate of EUR 70, plus postage and translation fees. She presented the contract with her lawyers, together with a note of charges and excess fees. She asks the Court to order the payment of the sum in question directly to the account of her representatives.\n\n55.  The Government considers the amount claimed to be exaggerated and unjustified. It emphasizes that the reasonableness of lawyers’ remunerations for the proceedings before the Court must be determined in relation to the minimum rates applicable in proceedings before the domestic courts.\n\n56.  According to the case-law of the Court, an applicant can obtain reimbursement of her costs and expenses insofar as their reality, their necessity and the reasonableness of their rate are established. In regard to the hourly rate of EUR 70, the Court observes that it has not been claimed that this rate would be higher than the hourly rate charged, for example, by the large Bulgarian law firms (see mutatis mutandis Anguelova v. Bulgaria, no. 38361/97, § 176, ECHR 2002 IV).\n\n57.  The Court then notes that the applicant has provided sufficient evidence for the totality of the amount claimed. In view of the documents in her possession and the aforementioned criteria, the Court considers the sum requested to be neither exorbitant nor unjustified. After deducting the amount awarded to the applicant by the Council of Europe for legal aid, EUR 850, the Court awards her the sum of EUR 2, 218 by way of costs and expenses, to be deposited into the accounts of her representatives.\n\nC.  Default interest\n\n58.  The Court considers it appropriate to model the default interest rate on the interest rate of the European Central Bank’s marginal lending facility of three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Declares the request admissible;\n\n2.  Holds that there has been a violation of Article 14 in conjunction with Article 6 § 1 of the Convention on account of the reasons given by the domestic courts;\n\n3.  Holds that it is not necessary to separately examine the applicant’s grievance concerning the impartiality of the domestic courts;\n\n4.  Holds\n\na)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts, to be converted to Bulgarian levs at the rate applicable at the date of payment:\n\nb)  from the expiry of the aforementioned period until payment, such amounts shall be increased by simple interest at a rate equal to that of the marginal lending facility of the European Central Bank applicable during that period, increased by three percentage points;\n\n5.  Dismisses the claim for just satisfaction for the remainder.\n\nDone in French, and delivered in writing on 25 March 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_391","text":"SUBJECT-MATTER OF THE CASE\n\n1.  The case concerns the justification for and reasonableness of the applicant’s detention under Article 5 § 3 of the Convention, and the absence of an enforceable right to compensation in that regard under Article 5 § 5 of the Convention.\n\n1.  The case concerns the justification for and reasonableness of the applicant’s detention under Article 5 § 3 of the Convention, and the absence of an enforceable right to compensation in that regard under Article 5 § 5 of the Convention.\n\n2.  On 16 September 2017 the Leninskyi District Court of Dnipropetrovsk ordered the applicant’s pre-trial detention for a period of sixty days in the context of criminal proceedings on suspicion of robbery. The relevant decision stated, without providing specific details, that he was accused of a serious crime and might otherwise escape and hinder the investigation or continue his criminal activity, and that the application of less intrusive preventive measures would not ensure the proper conduct of the proceedings.\n\n2.  On 16 September 2017 the Leninskyi District Court of Dnipropetrovsk ordered the applicant’s pre-trial detention for a period of sixty days in the context of criminal proceedings on suspicion of robbery. The relevant decision stated, without providing specific details, that he was accused of a serious crime and might otherwise escape and hinder the investigation or continue his criminal activity, and that the application of less intrusive preventive measures would not ensure the proper conduct of the proceedings.\n\n2.  On 16 September 2017 the Leninskyi District Court of Dnipropetrovsk ordered the applicant’s pre-trial detention for a period of sixty days in the context of criminal proceedings on suspicion of robbery. The relevant decision stated, without providing specific details, that he was accused of a serious crime and might otherwise escape and hinder the investigation or continue his criminal activity, and that the application of less intrusive preventive measures would not ensure the proper conduct of the proceedings.\n\n3.  On 19 October 2017 the trial court examined the bill of indictment and case file and adjourned the hearing until 31 October 2017. On that day it extended the applicant’s detention for another two months, holding that the circumstances that had led to the initial decision to place him in detention pending trial had not changed. The court’s decision was not amenable to appeal.\n\n3.  On 19 October 2017 the trial court examined the bill of indictment and case file and adjourned the hearing until 31 October 2017. On that day it extended the applicant’s detention for another two months, holding that the circumstances that had led to the initial decision to place him in detention pending trial had not changed. The court’s decision was not amenable to appeal.\n\n4.  On 18 December 2017, 9 February, 4 April, 25 May, 13 July, 3 September, 22 October and 5 December 2018, and 23 January, 14 March, 10 May and 25 June 2019 the trial court extended the applicant’s detention for reasons identical to those in its decision of 31 October 2017. None of the above-mentioned decisions were amenable to appeal, with the exception of that of 25 June 2019, which indicated, without referring to the relevant procedure, that it could be appealed against.\n\n5.  On 13 June 2019 the Constitutional Court (“the CCU”), by decision no. 4-р/2019, declared unconstitutional the provisions of Article 392 § 2 of the Code of Criminal Procedure (“the CCP”), under which there was no possibility of appealing against court decisions extending detention during trial. It held that Parliament should amend the CCP in accordance with its decision, by introducing a mechanism that would guarantee detained persons the right to liberty pending trial.\n\n6.  On 24 July 2019 the trial court found the applicant guilty of robbery and sentenced him to nine years’ imprisonment with confiscation of all his property.\n\n7.  On 27 May 2020 the Dnipropetrovsk Regional Court of Appeal quashed the conviction and ordered a retrial. By the same decision it extended the applicant’s detention until 15 July 2020, on the grounds that he was accused of a serious crime and that the risks established when ordering and extending his detention (see paragraphs 2 and 3 above) – namely that he might evade investigation or continue his criminal activity – still persisted. No factual basis for this assessment was cited.\n\n8.  On 18 August 2020 the Dnipro Court of Appeal dismissed as unsubstantiated an appeal by the applicant against a further extension of his detention by the trial court on 3 July 2020 concerning the period from 3 July to 30 August 2020. The appellate court’s decision did not refer to the procedure used in the course of the appellate review.\n\n9.  At the time the parties exchanged their observations (March 2021) the applicant was still in detention pending trial. The Court was not provided with copies of relevant courts’ decisions regarding the applicant’s detention after 30 August 2020.\n\n10.  On 2 December 2020 Parliament enacted Law no. 1027-IX, which introduced amendments to the CCP with a view to establishing a procedure for appealing against trial court decisions ordering, modifying or extending the accused’s detention during trial. In particular, Article 4221 of the CCP established the procedure for reviewing such trial court decisions. The amendments entered into force on 14 January 2021.\n\nTHE COURT’S ASSESSMENT\n\nSCOPE OF THE CASE\n\n11.  After the communication of the present case, the applicant complained under Article 5 § 4 of the Convention about lengthy examination of his application for release submitted on 27 April 2019. Since this new complaint is not an elaboration of the original complaints on which the parties have commented, it is inappropriate to take this matter up in the context of the present case (see, mutatis mutandis, Piryanik v. Ukraine, no. 75788/01, § 20, 19 April 2005).\n\nALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION\n\n12.  The applicant complained under Article 5 § 3 of the Convention that his detention from 19 October 2017 onwards had been unjustified and lengthy.\n\n13.  The Government referred to the provisions of Article 392 of the CCP and the Constitutional Court’s judgment of 13 June 2019 (see paragraph 5 above), arguing that the applicant had had a right to appeal against the trial court’s decisions delivered after the adoption of that judgment but had failed to do so and had therefore not complied with the requirements of Article 35 of the Convention. The applicant disagreed.\n\n14.  The Court notes that the Government’s non-exhaustion objection may only be relevant with regard to the applicant’s alleged failure to appeal against the trial court’s decision of 25 June 2019, since from 24 July 2019 to 27 May 2020 he was detained after conviction for the purposes of Article 5 § 1 (a) of the Convention, and the last available trial court’s decision of 3 July 2020 was appealed against by the applicant.\n\n15.  The relevant principles of the Court’s case-law concerning the rule of exhaustion of domestic remedies are set out in Mocanu and Others v. Romania ([GC], nos. 10865/09 and 2 others, §§ 220-26, ECHR 2014 (extracts)).\n\n16.  In this connection the Court notes that the CCU’s decision relied upon by the Government obliged the authorities to amend the CCP by introducing a mechanism that would guarantee detained persons the right to liberty pending trial. Although the provision of the CCP limiting the right to appeal was declared unconstitutional on 13 June 2019, the relevant appeal procedure did not exist in law until 14 January 2021 when the Parliament made relevant legislative amendments.\n\n17.  Despite the fact that the Government did not provide any further substantiation and evidence in support of their non-exhaustion plea, the Court cannot lose sight of the relevant domestic case-law. It notes the Supreme Court’s judgment of 7 October 2020, in case no. 404/1248/19, in which it allowed the accused person’s appeal on points of law against the lower courts’ refusal to hear an appeal against extension of detention pending trial. The Supreme Court held that the legislature’s failure to amend the CCP in accordance with the CCU’s decision of 13 June 2019 could not deprive the defendant of the right to appeal.\n\n18.  The Court observes that neither the above-mentioned Supreme Court’s decision nor the Government’s observations indicate which procedure of examination of the accused person’s appeal was to be followed at the appellate review. In this connection it is impossible to assess the effectiveness of the above appellate review and its compatibility with the Convention requirements regarding the exhaustion of domestic remedies.\n\n19.  The Court therefore finds that for the purposes of examination of the applicant’s case, the decision of the Supreme Court of 7 October 2020 is not sufficient to find it established that there existed with certainty, between June 2019 and January 2021, a remedy that was available and effective to satisfy the requirements of Article 35 of the Convention.\n\n20.  In view of the foregoing, the Court dismisses the Government’s nonexhaustion objection.\n\n21.  In examination of the merits of the applicant’s complaint, the Court, referring to its applicable general principles concerning the justification for and reasonableness of a person’s detention (see Grubnyk v. Ukraine, no. 58444/15, §§ 110-15, 17 September 2020), notes that the period of deprivation of liberty to be taken into consideration in the present case, as indicated by the applicant and not contested by the Government, started on 19 October 2017, the date the trial began (see paragraph 3 above), and apparently is still ongoing. His detention shall therefore be regarded as a continuing situation (see Svipsta v. Latvia, no. 66820/01, § 116, ECHR 2006III (extracts); and Popovych v. Ukraine, no. 44704/11, § 33, 22 April 2021). It further notes that it has only been provided with the relevant courts decisions authorising the applicant’s detention until 30 August 2020. Deducting the period from 24 July 2019 to 27 May 2020, when he was detained after conviction for the purposes of Article 5 § 1 (a) of the Convention, the overall period of detention to be assessed for compliance with Article 5 § 3 is therefore approximately two years.\n\n22.  The Court observes that in extending the applicant’s detention the domestic courts mainly referred to the reasoning for his initial placement in detention, without any updated details. The decisions on detention were couched in general terms and contained repetitive phrases and did not suggest that the courts made an appropriate assessment of the facts relevant to the question of whether such a preventive measure was necessary in the circumstances.\n\n23.  The Court next observes that the reasoning given in justification of the applicant’s pre-trial detention did not evolve with the passage of time and that no consideration to apply any alternative preventive measures was made. By referring essentially to the seriousness of the charge and the hypothetical risk that the applicant might abscond, the authorities maintained his detention on grounds which cannot be regarded as sufficient.\n\n24.  The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 5 § 3 of the Convention in the light of its findings in Ignatov v. Ukraine (no. 40583/15, §§ 41-42, 15 December 2016).\n\nOTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW\n\n25.  The applicant also raised a complaint under Article 5 § 5 of the Convention that he had had no enforceable right to compensation under domestic law, an issue covered by the wellestablished case-law of the Court. This complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other grounds. Accordingly, it must be declared admissible. Having examined all the material before it, the Court concludes that it discloses a violation of Article 5 § 5 of the Convention in the light of its findings in Korban judgment (cited above, § 201, with further references).\n\nAPPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n26.  The applicant claimed 5,900 euros (EUR) in respect of non-pecuniary damage. He also claimed EUR 1,425 for the costs and expenses incurred before the Court and EUR 10 for postage expenses. The legal fees were supported by a legal services agreement stipulating that the applicant was to pay his lawyer’s fees after completion of the proceedings, in an amount not exceeding the Court’s award under this head, and a certificate of services rendered. The postage expenses were supported by a receipt. The applicant requested that the amounts be paid directly into his representative’s bank account.\n\n27.  The Government contested the applicant’s claims.\n\n28.  The Court awards the applicant EUR 1,200 in respect of nonpecuniary damage, plus any tax that may be chargeable to the applicant.\n\n29.  As regards the applicant’s claims for costs and expenses, following the Court’s findings in the case of Belousov v. Ukraine (no. 4494/07, § 115, 7 November 2013), the legal fees due to be paid by the applicant appear to have been “actually incurred”. However, the Court considers the claim excessive and, having regard to the documents in its possession, considers it reasonable to award the sum of EUR 500 covering costs under all heads, plus any tax that may be chargeable to the applicant, to be paid directly into Mr Sosyedko’s bank account, as requested by the applicant (see Belousov, cited above, §§ 11617).\n\n30.  The Court further considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\nDeclares the application admissible;\n\nHolds that there has been a violation of Article 5 § 3 of the Convention;\n\nHolds that there has been a violation of Article 5 § 5 of the Convention;\n\nHolds\n\nthat the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:\n\nthat from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\nDismisses the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 15 December 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_124","text":"PROCEDURE\n\n1.   The case was referred to the Court by the European Commission of Human Rights (\"the Commission\") on 9 September 1994, within the three-month period laid down by Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the Convention.  It originated in an application (no. 20190/92) against the United Kingdom of Great Britain and  lodged with the Commission under Article 25 (art. 25) by Mr C.R., a British citizen, on 31 March 1992.\n\nThe Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby the  recognised the compulsory jurisdiction of the Court (Article 46) (art. 46).  The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 7 (art. 7) of the Convention.\n\n2.   In response to the enquiry made in accordance with Rule 33 para. 3 (d) of Rules of Court A, the applicant stated that he wished to take part in the proceedings and designated the lawyer who would represent him (Rule 30).\n\n3.   On 24 September 1994 the President of the Court decided, under Rule 21 para. 6 and in the interests of the proper administration of justice, that a single Chamber should be constituted to consider both the instant case and the case of S.W. v. the  .\n\n4.   The Chamber to be constituted for this purpose included ex officio Sir John Freeland, the elected judge of British nationality (Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21 para. 3 (b)).  On 24 September 1994, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mr F. Gölcüklü, Mr R. Macdonald, Mr C. Russo, Mr J. De Meyer, Mr S.K. Martens, Mr F. Bigi and Mr U. Lohmus (Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).  Subsequently, Mr P. Jambrek, substitute judge, replaced Mr Macdonald, who was unable to take part in the further consideration of the case (Rules 22 para. 1 and 24 para. 1).\n\n5.   As President of the Chamber (Rule 21 para. 5), Mr Ryssdal, acting through the Registrar, consulted the Agent of the United Kingdom Government (\"the Government\"), the applicant’s lawyer and the Delegate of the Commission on the organisation of the proceedings (Rules 37 para. 1 and 38).  Pursuant to the order made in consequence, the Registrar received the applicant’s memorial on 5 April 1995 and the Government’s memorial on 6 April.  On 17 May 1995 the Secretary to the Commission informed the Registrar that the Delegate did not wish to reply in writing.\n\n6.   In accordance with the President’s decision, the hearing took place in public in the Human Rights Building, , on 20 June 1995.  The Court had held a preparatory meeting beforehand.\n\nThere appeared before the Court:\n\n(a) for the Government\n\n(b) for the Commission\n\n(c) for the applicant\n\nThe Court heard addresses by Mr Mucha, Mr Hill and Mr Moses and also replies to questions put by some of its members individually.\n\nAS TO THE FACTS\n\nI.   PARTICULAR CIRCUMSTANCES OF THE CASE\n\n7.   The applicant is a British citizen, born in 1952, and lives in Leicester.\n\n8.   The applicant married his wife on 11 August 1984.  They had one son, who was born in 1985.  On 11 November 1987 the couple were separated for a period of about two weeks before becoming reconciled.\n\n9.   On 21 October 1989, as a result of further matrimonial difficulties, his wife left the matrimonial home with their son and returned to live with her parents.  She had by this time already consulted solicitors regarding her matrimonial affairs and had left a letter for the applicant in which she informed him that she intended to petition for divorce.  However no legal proceedings had been taken by her before the occurrence of the incident which gave rise to criminal proceedings.  The applicant had on 23 October 1989 spoken to his wife by telephone indicating that it was his intention also to \"see about a divorce\".\n\n10.   Shortly before 9 p.m. on 12 November 1989, twenty-two days after his wife had returned to live with her parents, and while the parents were out, the applicant forced his way into the parents’ house and attempted to have sexual intercourse with the wife against her will. In the course of that attempt he assaulted her, in particular by squeezing her neck with both hands.\n\n11.   The applicant was charged with attempted rape and assault occasioning actual bodily harm.  At his trial before the Leicester Crown Court on 30 July 1990 it was submitted that the charge of rape was one which was not known to the law by reason of the fact that the applicant was the husband of the alleged victim.  He relied on a statement by Sir Matthew Hale CJ in his History of the Pleas of the Crown published in 1736:\n\n\"But the husband cannot be guilty of rape committed by himself upon his lawful wife, for by their matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.\"\n\n12.   In his judgment ([1991] 1 All England Law Reports 747) Mr Justice Owen noted that it was a statement made in general terms at a time when marriage was indissoluble.  Hale CJ had been expounding the common law as it seemed to him at that particular time and was doing it in a book and not with reference to a particular set of circumstances presented to him in a prosecution.  The bald statement had been reproduced in the first edition of Archbold on Criminal Pleadings, Evidence and Practice (1822, p. 259) in the following terms: \"A husband also cannot be guilty of rape upon his wife.\"\n\nMr Justice Owen further examined a series of court decisions (R. v. Clarence [1888] 22 Queen’s Bench Division 23, [1886-90] All England Law Reports 113; R. v. Clarke [1949] 2 All  Law Reports 448; R. v. Miller [1954] 2 All  Law Reports 529; R. v. Reid [1972] 2 All  Law Reports 1350; R. v. O’Brien [1974] 3 All  Law Reports 663; R. v. Steele [1976] 65 Criminal Appeal Reports 22; R. v. Roberts [1986] Criminal Law Reports 188; see paragraphs 19-22 below), recognising that a wife’s consent to marital intercourse was impliedly given by her at the time of marriage and that the consent could be revoked on certain conditions.  He added:\n\n\"I am asked to accept that there is a presumption or an implied consent by the wife to sexual intercourse with her husband; with that, I do not find it difficult to agree.  However, I find it hard to ... believe that it ever was the common law that a husband was in effect entitled to beat his wife into submission to sexual intercourse ...  If it was, it is a very sad commentary on the law and a very sad commentary upon the judges in whose breasts the law is said to reside.  However, I will nevertheless accept that there is such an implicit consent as to sexual intercourse which requires my consideration as to whether this accused may be convicted for rape.\"\n\nOn the question of what circumstances would suffice in law to revoke the consent, Mr Justice Owen noted that it may be brought to an end, firstly, by a court order or equivalent.  Secondly, he observed, it was apparent from the Court of Appeal’s judgment in the case of R. v. Steele ([1976] 65 Criminal Appeal Reports 22) that the implied consent could be withdrawn by agreement between the parties.  Such an agreement could clearly be implicit; there was nothing in the case-law to suggest the contrary.  Thirdly, he was of the view that the common law recognised that a withdrawal of either party from cohabitation, accompanied by a clear indication that consent to sexual intercourse has been terminated, would amount to a revocation of the implicit consent.  He concluded that both the second and third exceptions to the matrimonial immunity against prosecution for rape applied in the case.\n\nFollowing the judge’s ruling, the applicant pleaded guilty to attempted rape and assault occasioning actual bodily harm, and was sentenced to three years’ imprisonment.\n\n13.   The applicant appealed to the Court of Appeal, Criminal Division, on the ground that Mr Justice Owen had made a wrong decision in law in ruling that a man may rape his wife when the consent to intercourse which his wife gave on entering marriage had been revoked neither by a court order nor by agreement between the parties.\n\n14.   On 14 March 1991 the Court of Appeal, Criminal Division (Lord Lane CJ, Sir Stephen Brown P, Watkins, Neill and Russell LJJ), unanimously dismissed the appeal ([1991] 2 All England Law Reports 257).   noted that the general proposition of Sir Matthew Hale in his History of the Pleas of the Crown (1736) (see paragraph 11 above) that a man could not commit rape upon his wife was generally accepted as a correct statement of the common law at that epoch.  Further,  made an analysis of previous court decisions, from which it appears that in R. v. Clarence (1888), the first reported case of this nature, some judges of the Court for Crown Cases Reserved had objected to the principle.  In the next reported case, R. v. Clarke (1949), the trial court had departed from the principle by holding that the husband’s immunity was lost in the event of a court order directing that the wife was no longer bound to cohabit with him.  Almost every court decision thereafter had made increasingly important exceptions to the marital immunity (see paragraph 22 below). The Court of Appeal had accepted in R. v. Steele (1976) that the implied consent to intercourse could be terminated by agreement.  This was confirmed by the Court of Appeal in R. v. Roberts (1986), where it held that the lack of a non-molestation clause in a deed of separation, concluded on expiry of a non-molestation order, did not revive the consent to intercourse.\n\nadded the following observations:\n\n\"Ever since the decision of Byrne J in R. v. Clarke in 1949, courts have been paying lip-service to Hale CJ’s proposition, whilst at the same time increasing the number of exceptions, the number of situations to which it does not apply.  This is a legitimate use of the flexibility of the common law which can and should adapt itself to changing social attitudes.\n\nThere comes a time when the changes are so great that it is no longer enough to create further exceptions restricting the effect of the proposition, a time when the proposition itself requires examination to see whether its terms are in accord with what is generally regarded today as acceptable behaviour.\n\n...\n\nIt seems to us that where the common law rule no longer even remotely represents what is the true position of a wife in present-day society, the duty of the court is to take steps to alter the rule if it can legitimately do so in the light of any relevant parliamentary enactment.  That in the end comes down to a consideration of the word ‘unlawful’ in the 1976 Act.\"\n\nthen critically examined the different strands of interpretation of section 1 (1) (a) of the 1976 Act in the case-law, including the argument that the term \"unlawful\" (see paragraph 17 below) excluded intercourse within marriage from the definition of rape.  He concluded:\n\n\"...  [W]e do not consider that we are inhibited by the 1976 Act from declaring that the husband’s immunity as expounded by Hale CJ no longer exists.  We take the view that the time has now arrived when the law should declare that a rapist remains a rapist subject to the criminal law, irrespective of his relationship with his victim.\"\n\n15.   The Court of Appeal granted the applicant leave to appeal to the House of Lords, which unanimously upheld the Court of Appeal’s judgment on 23 October 1991 ([1991] 4 All  Law Reports 481). Lord Keith of Kinkel, joined by Lord Brandon of Oakbrook, Lord Griffiths, Lord Ackner and Lord Lowry, gave, inter alia, the following reasons:\n\n\"For over 150 years after the publication of Hale’s work there appeared to have been no reported case in which judicial consideration was given to his proposition.  The first such case was R. v. Clarence [1888] 22 Queen’s Bench Division 23, [1886-90] All England Law Reports 133 ...  It may be taken that the proposition was generally regarded as an accurate statement of the common law of .  The common law is, however, capable of evolving in the light of changing social, economic and cultural developments.  Hale’s proposition reflected the state of affairs in these respects at the time it was enunciated. Since then the status of women, and particularly of married women, has changed out of all recognition in various ways which are very familiar and upon which it is unnecessary to go into detail.  Apart from property matters and the availability of matrimonial remedies, one of the most important changes is that marriage is in modern times regarded as a partnership of equals, and no longer one in which the wife was the subservient chattel of the husband.  Hale’s proposition involves that by marriage a wife gives her irrevocable consent to sexual intercourse with her husband under all circumstances and irrespective of the state of her health or how she happens to be feeling at the time.  In modern times any reasonable person must regard that conception as quite unacceptable.\n\n...\n\nThe position then is that that part of Hale’s proposition which asserts that a wife cannot retract the consent to sexual intercourse which she gives on marriage has been departed from in a series of decided cases.  On grounds of principle there is no good reason why the whole proposition should not be held inapplicable in modern times.  The only question is whether section 1 (1) of the 1976 Act presents an insuperable obstacle to that sensible course.  The argument is that ‘unlawful’ in that subsection means outside the bond of marriage.\n\n...  The fact is that it is clearly unlawful to have sexual intercourse with any woman without her consent, and that the use of the word in the subsection adds nothing.  In my opinion there are no rational grounds for putting the suggested gloss on the word, and it should be treated as being mere surplusage in this enactment ...\n\nI am therefore of the opinion that section 1 (1) of the 1976 Act presents no obstacle to this House declaring that in modern times the supposed marital exception in rape forms no part of the law of .  The Court of Appeal, Criminal Division, took a similar view [in the present case].  Towards the end of the judgment of that court Lord Lane CJ said ...:\n\nI respectfully agree.\"\n\nII.   RELEVANT DOMESTIC LAW AND PRACTICE\n\nA. The offence of rape\n\n16.   The offence of rape, at common law, was traditionally defined as unlawful sexual intercourse with a woman without her consent by force, fear or fraud.  By section 1 of the Sexual Offences Act 1956, \"it is a felony for a man to rape a woman\".\n\n17.   Section 1 (1) of the Sexual Offences (Amendment) Act 1976 provides, in so far as it is material, as follows:\n\n\"For the purposes of section 1 of the Sexual Offences Act 1956 (which relates to rape) a man commits rape if  -\n\n(a) he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it ...\"\n\n18.   On 3 November 1994 the Criminal Justice and Public Order Act 1994 replaced the above provisions by inserting new subsections to section 1 of the Sexual Offences Act 1956, one of the effects of which was to remove the word \"unlawful\":\n\nB. Marital immunity\n\n19.   Until the proceedings in the applicant’s case the English courts, on the few occasions when they were confronted with the issue whether directly or indirectly, had always recognised at least some form of immunity attaching to a husband from any charge of rape or attempted rape by reason of a notional or fictional consent to intercourse deemed to have been given by the wife on marriage.  The proposition of Sir Matthew Hale quoted above (see paragraph 11) has been upheld until recently, for example in the case of R. v. Kowalski ([1987] 86 Criminal Appeal Reports 339), which concerned the question whether or not a wife had impliedly consented to acts which if performed against her consent would amount to an indecent assault.  Mr Justice Ian Kennedy, giving the judgment of the court, stated, obiter:\n\n\"It is clear, well-settled and ancient law that a man cannot, as actor, be guilty of rape upon his wife.\"\n\nAnd he went on to say that that principle was\n\n\"dependent upon the implied consent to sexual intercourse which arises from the married state and which continues until that consent is put aside by decree nisi, by a separation order or, in certain circumstances, by a separation agreement\".\n\nIn another example, Lord Justice O’Connor in the R. v. Roberts case ([1986] Criminal Law Reports 188) held:\n\n\"The status of marriage involves that the woman has given her consent to her husband having intercourse with her during the subsistence of the marriage ... she cannot unilaterally withdraw it.\"\n\n20.   However, on 5 November 1990, Mr Justice Simon Brown held in R. v. C. ([1991] 1 All England Law Reports 755) that the whole concept of marital exemption in rape was misconceived:\n\n\"Were it not for the deeply unsatisfactory consequence of reaching any other conclusion on the point, I would shrink, if sadly, from adopting this radical view of the true position in law.  But adopt it I do.  Logically, I regard it as the only defensible stance, certainly now as the law has developed and arrived in the late twentieth century.  In my judgment, the position in law today is, as already declared in , that there is no marital exemption to the law of rape.  That is the ruling I give.\"\n\nOn the other hand, on 20 November 1990, in R. v. J. ([1991] 1 All England Law Reports 759) Mr Justice Rougier upheld the general common law rule, considering that the effect of section 1 (1) (a) of the 1976 Act was that the marital exemption embodied in Hale’s proposition was preserved, subject to those exceptions established by cases decided before the Act was passed.  He further stated:\n\n\"... there is an important general principle to be considered here, and that is that the law, especially the criminal law, should be clear so that a man may know where he stands in relation to it.  I am not being so fanciful as to suppose that this defendant carefully considered the authorities and took Counsel’s advice before behaving as alleged, but the basic principle extends a long way beyond the bounds of this case and should operate to prevent a man being convicted by means of decisions of the law ex post facto.\"\n\nOn 15 January 1991, Mr Justice Swinton Thomas in R. v. S. followed Rougier J, though he considered that it was open to judges to define further exceptions.\n\nBoth Rougier and Swinton Thomas JJ stated that they regretted that section 1 (1) (a) of the 1976 Act precluded them from taking the same line as Simon Brown J in R. v. C.\n\n21.   In its Working Paper 116 \"Rape within Marriage\" completed on 17 September 1990, the Law Commission stated:\n\n\"2.8 It is generally accepted that, subject to exceptions (considered ... below), a husband cannot be convicted of raping his wife ...  Indeed there seems to be no recorded prosecution before 1949 of a husband for raping his wife ...\n\n...\n\n2.11 The immunity has given rise to a substantial body of law about the particular cases in which the exemption does not apply. The limits of this law are difficult to state with certainty. Much of it rests on first instance decisions which have never been comprehensively reviewed at appellate level ...\"\n\n22.   The Law Commission identified the following exceptions to a husband’s immunity:\n\n- where a court order has been made, in particular:\n\n(a)  where an order of the court has been made which provides that a wife should no longer be bound to cohabit with her husband (R. v. Clarke [1949] 33 Criminal Appeal Reports 216);\n\n(b)  where there has been a decree of judicial separation or a decree nisi of divorce on the ground that \"between the pronouncement of decree nisi and the obtaining of a decree absolute a marriage subsists as a mere technicality\" (R. v. O’Brien [1974] 3 All England Law Reports 663);\n\n(c)  where a court has issued an injunction restraining the husband from molesting the wife or the husband has given an undertaking to the court that he will not molest her (R. v. Steele [1976] 65 Criminal Appeal Reports 22);\n\n(d)  in the case of R. v. Roberts ([1986] Criminal Law Reports 188), the Court of Appeal found that where a non-molestation order of two months had been made in favour of the wife her deemed consent to intercourse did not revive on expiry of the order;\n\n- where no court order has been made:\n\n(e)  Mr Justice Lynskey observed, obiter, in R. v. Miller ([1954] 2 Queen’s Bench Division 282) that a wife’s consent would be revoked by an agreement to separate, particularly if it contained a non-molestation clause;\n\n(f)   stated, obiter, in R. v. Steele that a separation agreement with a non-cohabitation clause would have that effect.\n\n23.   The Law Commission noted that it was stated in R. v. Miller and endorsed by the Court of Appeal in R. v. Steele that lodging a petition for divorce would not be sufficient.\n\nIt referred also to the ruling by Mr Justice Owen in the present case where an implied agreement to separate was considered sufficient to revoke the immunity and that, even in the absence of agreement, the withdrawal from cohabitation by either party, accompanied by a clear indication that consent to sexual intercourse had been terminated, would operate to exclude the immunity.  It found this view difficult to reconcile with the approach in Steele that filing a divorce petition was \"clearly\" not sufficient.  The ruling in the present case appeared substantially to extend what had previously been thought to be the law, although it emphasised that factual separation, and not mere revocation of consent to intercourse, was necessary to remove the immunity.\n\n24.   The Law Commission pointed out that its inquiry was unusual in one important respect.  It was usual practice, when considering the reform of common law rules, to consider the grounds expressed in the cases or other authorities for the current state of the law, in order to analyse whether those grounds were well-founded.  However, that step was of little assistance here, partly because there was little case-law on the subject but principally because there was little dispute that the reason set out in the authorities for the state of the law could not be supported (paragraph 4.1 of the Working Paper).  The basis of the law was that intercourse against the wife’s actual will was excluded from the law of rape by the fictional deemed consent to intercourse perceived by Sir Matthew Hale in his dictum.  This notion was not only quite artificial but, certainly in the modern context, was also quite anomalous.  Indeed, it was difficult to find any current authority or commentator who thought that it was even remotely supportable.  The artificial and anomalous nature of the marital immunity could be seen if it was reviewed against the current law on the legal effects of marriage (paragraph 4.2).\n\nThe concept of deemed consent was artificial because the legal consequences of marriage were not the result of the parties’ mutual agreement.  Although the parties should have legal capacity to enter into the marriage contract and should observe the necessary formalities, they were not free to decide the terms of the contract; marriage was rather a status from which flow certain rights or obligations, the contents of which were determined by the law from time to time.  This point had been emphasised by Mr Justice Hawkins in R. v. Clarence (1888) when he said: \"The intercourse which takes place between husband and wife after marriage is not by virtue of any special consent on her part, but is mere submission to an obligation imposed on her by law\" (paragraph 4.3).\n\nIn this connection, the Law Commission stressed that \"[t]he rights and duties arising from marriage have, however, changed over the years as the law has adapted to changing social conditions and values. The more modern view of marriage is that it is a partnership of equals\" (paragraph 4.4).  It then gave examples of such changes in the law and added:\n\n\"4.11 This gradual recognition of mutual rights and obligations within marriage, described in paragraphs 4.3-4.10 above, in our view demonstrates clearly that, whatever other arguments there may be in favour of the immunity, it cannot be claimed to be in any way justified by the nature of, or by the law governing, modern marriage.\"\n\n25.   The Law Commission made, inter alia, the provisional proposal that \"the present marital immunity be abolished in all cases\" (paragraph 5.2 of the Working Paper).\n\nPROCEEDINGS BEFORE THE COMMISSION\n\n26.   In his application of 31 March 1992 (no. 20190/92) to the Commission, the applicant complained that, in breach of Article 7 (art. 7) of the Convention, he was convicted in respect of conduct, namely the attempted rape upon his wife, which at the relevant time did not, so he submitted, constitute a criminal offence.\n\n27.   The Commission declared the application admissible on 14 January 1994.  In its report of 27 June 1994 (Article 31) (art. 31), the Commission expressed the opinion that there had been no violation of Article 7 para. 1 (art. 7-1) of the Convention (fourteen votes to three).  The full text of the Commission’s opinion and of the three separate opinions contained in the report is reproduced as an annex to this judgment .\n\nFINAL SUBMISSIONS MADE TO THE COURT\n\n28.   At the hearing on 20 June 1995 the Government, as they had done in their memorial, invited the Court to hold that there had been no violation of Article 7 (art. 7) of the Convention.\n\n29.   On the same occasion the applicant reiterated the request to the Court stated in his memorial to find that there had been a breach of Article 7 (art. 7) and to award him just satisfaction under Article 50 (art. 50) of the Convention.\n\nAS TO THE LAW\n\nI.   ALLEGED VIOLATION OF ARTICLE 7 (art. 7) OF THE CONVENTION\n\n30.   The applicant complained that his conviction and sentence for attempted rape of his wife constituted retrospective punishment in breach of Article 7 (art. 7) of the Convention, which reads:\n\n\"1.  No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed.  Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.\n\n2.   This Article (art. 7) shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.\"\n\n31.   The Government and the Commission disagreed with the above contention.\n\nA. General principles\n\n32.   The guarantee enshrined in Article 7 (art. 7), which is an essential element of the rule of law, occupies a prominent place in the Convention system of protection, as is underlined by the fact that no derogation from it is permissible under Article 15 (art. 15) in time of war or other public emergency.  It should be construed and applied, as follows from its object and purpose, in such a way as to provide effective safeguards against arbitrary prosecution, conviction and punishment.\n\n33.   Accordingly, as the Court held in its Kokkinakis v. Greece judgment of 25 May 1993 (Series A no. 260-A, p. 22, para. 52), Article 7 (art. 7) is not confined to prohibiting the retrospective application of the criminal law to an accused’s disadvantage: it also embodies, more generally, the principle that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege) and the principle that the criminal law must not be extensively construed to an accused’s detriment, for instance by analogy.  From these principles it follows that an offence must be clearly defined in the law.  In its aforementioned judgment the Court added that this requirement is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him criminally liable.  The Court thus indicated that when speaking of \"law\" Article 7 (art. 7) alludes to the very same concept as that to which the Convention refers elsewhere when using that term, a concept which comprises written as well as unwritten law and implies qualitative requirements, notably those of accessibility and foreseeability (see, as a recent authority, the Tolstoy Miloslavsky v. the  judgment of 13 July 1995, Series A no. 316-B, pp. 71-72, para. 37).\n\n34.   However clearly drafted a legal provision may be, in any system of law, including criminal law, there is an inevitable element of judicial interpretation.  There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. Indeed, in the , as in the other Convention States, the progressive development of the criminal law through judicial law-making is a well entrenched and necessary part of legal tradition. Article 7 (art. 7) of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen.\n\nB. Application of the foregoing principles\n\n35.   The applicant maintained that the general common law principle that a husband could not be found guilty of rape upon his wife, albeit subject to certain limitations, was still effective on 12 November 1989, when he committed the acts which gave rise to the charge of attempted rape paragraph 10 above).  A succession of court decisions before and also after that date, for instance on 20 November 1990 in R. v. J. (see paragraph 20 above), had affirmed the general principle of immunity.  It was clearly beyond doubt that as at 12 November 1989 no change in the law had been effected, although one was being mooted.  The removal of the immunity by the Court of Appeal on 14 March 1991 and the House of Lords on 23 October 1991 occurred by way of direct reversal, not clarification, of the law.\n\nWhen the House of Commons debated the Bill for the Sexual Offences (Amendment) Act 1976 (see paragraph 17 above), different views on the marital immunity were expressed.  On the advice of the Minister of State to await a report of the Criminal Law Revision Committee, an amendment that would have abolished the immunity was withdrawn and never voted upon.  In its report, which was not presented until 1984, the Criminal Law Revision Committee recommended that the immunity should be maintained and that a new exception should be created.\n\nIn 1988, when considering certain amendments to the 1976 Act, Parliament had the opportunity to take out the word \"unlawful\" in section 1 (1) (a) (see paragraph 17 above) or to introduce a new provision on marital intercourse, but took no action in this respect.\n\nOn 17 September 1990 the Law Commission provisionally recommended that the immunity rule be abolished (see paragraphs 24 and 25 above). However, the debate was pre-empted by the Court of Appeal’s and the House of Lords’ rulings in the applicant’s case (see paragraphs 14 and 15 above).  In the applicant’s submission, these rulings altered the law retrospectively, which would not have been the case had the Law Commission’s proposal been implemented by Parliament.  Consequently, he concluded, when Parliament in 1994 removed the word \"unlawful\" from section 1 of the 1976 Act (see paragraph 18 above), it did not merely restate the law as it had been in 1976.\n\n36.   The applicant further argued that in examining his complaint under Article 7 para. 1 (art. 7-1) of the Convention, the Court should not consider his conduct in relation to any of the exceptions to the immunity rule.  The issue was never resolved by the national courts, as the sole ground on which the applicant’s conviction rested was in fact the removal of the common law fiction by the Court of Appeal and the House of Lords.\n\n37.   Should a foreseeability test akin to that under Article 10 para. 2 (art. 10-2) apply in the instant case, the applicant was of the opinion that it had not been satisfied.  Although the Court of Appeal and the House of Lords did not create a new offence or change the basic ingredients of the offence of rape, they were extending an existing offence to include conduct which until then was excluded by the common law.  They could not be said to have adapted the law to a new kind of conduct but rather to a change of social attitudes.  To extend the criminal law, solely on such a basis, to conduct which was previously lawful was precisely what Article 7 (art. 7) of the Convention was designed to prevent.  Moreover, the applicant stressed, it was impossible to specify with precision when the change in question had occurred.  In November 1989, change by judicial interpretation was not foreseen by the Law Commission, which considered that a parliamentary enactment would be necessary.\n\n38.   The Government and the Commission were of the view that by November 1989 there was significant doubt as to the validity of the alleged marital immunity for rape.  This was an area where the law had been subject to progressive development and there were strong indications that still wider interpretation by the courts of the inroads on the immunity was probable.  In particular, given the recognition of women’s equality of status with men in marriage and outside it and of their autonomy over their own bodies, the adaptation of the ingredients of the offence of rape was reasonably foreseeable, with appropriate legal advice, to the applicant.  He was not convicted of conduct which did not constitute a criminal offence at the time when it was committed.\n\nIn addition, the Government pointed out, on the basis of agreed facts Mr Justice Owen had found that there was an implied agreement between the applicant and his wife to separation and to withdrawal of the consent to intercourse.  The circumstances in his case were thus covered by the exceptions to the immunity rule already stated by the English courts.\n\n39.   The Court notes that the applicant’s conviction for attempted rape was based on the statutory offence of rape in section 1 of the 1956 Act, as further defined in section 1 (1) of the 1976 Act (see paragraphs 16 and 17 above).  The applicant does not dispute that the conduct for which he was convicted would have constituted attempted rape within the meaning of the statutory definition of rape as applicable at the time, had the victim not been his wife.  His complaint under Article 7 (art. 7) of the Convention relates solely to the fact that he could not avail himself of the marital immunity under common law because, so he submitted, it had been retrospectively abolished.\n\n40.   It is to be observed that a crucial issue in the judgment of the Court of Appeal (summarised at paragraph 14 above) related to the definition of rape in section 1 (1) (a) of the 1976 Act: \"unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it\".  The question was whether \"removal\" of the marital immunity would conflict with the statutory definition of rape, in particular whether it would be prevented by the word \"unlawful\".  The Court of Appeal carefully examined various strands of interpretation of the provision in the case-law, including the argument that the term \"unlawful\" excluded intercourse within marriage from the definition of rape.  In this connection, the Court recalls that it is in the first place for the national authorities, notably the courts, to interpret and apply national law (see, for instance, the Kemmache v.  (no. 3) judgment of 24 November 1994, Series A no. 296-C, pp. 86-87, para. 37).  It sees no reason to disagree with the Court of Appeal’s conclusion, which was subsequently upheld by the House of Lords (see paragraph 15 above), that the word \"unlawful\" in the definition of rape was merely surplusage and did not inhibit them from \"removing a common law fiction which had become anachronistic and offensive\" and from declaring that \"a rapist remains a rapist subject to the criminal law, irrespective of his relationship with his victim\" (see paragraph 14 above).\n\n41.   The decisions of the Court of Appeal and then the House of Lords did no more than continue a perceptible line of case-law development dismantling the immunity of a husband from prosecution for rape upon his wife (for a description of this development, see paragraphs 14 and 20-25 above).  There was no doubt under the law as it stood on 12 November 1989 that a husband who forcibly had sexual intercourse with his wife could, in various circumstances, be found guilty of rape. Moreover, there was an evident evolution, which was consistent with the very essence of the offence, of the criminal law through judicial interpretation towards treating such conduct generally as within the scope of the offence of rape.  This evolution had reached a stage where judicial recognition of the absence of immunity had become a reasonably foreseeable development of the law (see paragraph 34 above).\n\n42.   The essentially debasing character of rape is so manifest that the result of the decisions of the Court of Appeal and the House of Lords - that the applicant could be convicted of attempted rape, irrespective of his relationship with the victim - cannot be said to be at variance with the object and purpose of Article 7 (art. 7) of the Convention, namely to ensure that no one should be subjected to arbitrary prosecution, conviction or punishment (see paragraph 32 above).  What is more, the abandonment of the unacceptable idea of a husband being immune against prosecution for rape of his wife was in conformity not only with a civilised concept of marriage but also, and above all, with the fundamental objectives of the Convention, the very essence of which is respect for human dignity and human freedom.\n\n43.   Having reached this conclusion, the Court does not find it necessary to enquire into whether the facts in the applicant’s case were covered by the exceptions to the immunity rule already made by the English courts before 12 November 1989.\n\n44.   In short, the Court, like the Government and the Commission, finds that the national courts’ decisions that the applicant could not invoke immunity to escape conviction and sentence for attempted rape upon his wife did not give rise to a violation of his rights under Article 7 para. 1 (art. 7-1) of the Convention.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\nHolds that there has been no violation of Article 7 para. 1 (art. 7-1) of the Convention.\n\nDone in English and in French, and delivered at a public hearing in the Human Rights Building, , on 22 November 1995.","title":""}
{"_id":"passage_826","text":"PROCEDURE\n\n1.  The case originated in applications against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table.\n\n2.  The applications were communicated to the Ukrainian Government (“the Government”).\n\nTHE FACTS\n\n3.  The list of applicants and the relevant details of the applications are set out in the appended table.\n\n4.  The applicants complained of the excessive length of civil proceedings and of the lack of any effective remedy in domestic law.\n\nTHE LAW\n\nI.  JOINDER OF THE APPLICATIONS\n\n5.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.\n\nII.  ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 13 OF THE CONVENTION\n\n6.  The applicants complained that the length of the civil proceedings in question had been incompatible with the “reasonable time” requirement and that they had no effective remedy in this connection. They relied on Article 6 § 1 and Article 13 of the Convention, which read as follows:\n\n“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”\n\n“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”\n\n7.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities and what was at stake for the applicants in the dispute (see Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).\n\n8.  In the leading case of Krasnoshapka v. Ukraine, (no. 23786/02, 30 November 2006), the Court already found a violation in respect of issues similar to those in the present case.\n\n9.  Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.\n\n10.  The Court further notes that the applicants did not have at their disposal an effective remedy in respect of these complaints.\n\n11.  These complaints are therefore admissible and disclose a breach of Article 6 § 1 and of Article 13 of the Convention.\n\nIII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n12.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\n13.  Regard being had to the documents in its possession and to its caselaw (see, in particular, Krasnoshapka v. Ukraine, no. 23786/02, §§ 61 and 66, 30 November 2006), the Court considers it reasonable to award the sums indicated in the appended table.\n\n14.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\n1.  Decides to join the applications;\n\n2.  Declares the applications admissible;\n\n3.  Holds that these applications disclose a breach of Article 6 § 1 and Article 13 of the Convention concerning the excessive length of civil proceedings;\n\n4.  Holds\n\n(a)  that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.\n\nDone in English, and notified in writing on 29 March 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_914","text":"PROCEDURE\n\n1.  The case originated in an application (no. 8088/05) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Armenian national, Mr Artak Gabrielyan (“the applicant”), on 3 February 2005.\n\n2.  The applicant was represented by Mr M. Muller, Mr T. Otty, Mr K. Yildiz and Ms L. Claridge, lawyers of the Kurdish Human Rights Project (KHRP) based in London, and Mr T. Ter-Yesayan and Mr E. Babayan, lawyers practising in Yerevan. The Armenian Government (“the Government”) were represented by their Agent, Mr G. Kostanyan, Representative of the  at the European Court of Human Rights.\n\n3.  On 10 September 2008 the President of the Third Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n4.  The applicant was born in 1938 and lives in .\n\n1.  Background to the case\n\n5.  In February and March 2003 a presidential election was held in Armenia, during which the applicant was involved as an authorised election assistant (վստահված անձ) for the candidate representing the People’s Party of  (PPA), who was the main opposition candidate in the election. Following his defeat by the incumbent President, the PPA candidate challenged the election results in the Constitutional Court, which on 16 April 2003 recommended that a referendum of confidence in the re-elected President be held in  within a year.\n\n6.  As the April 2004 one-year deadline approached, the opposition stepped up its campaign to challenge the legitimacy of the re-elected President. At the end of March 2004 two main opposition groups – the Justice Alliance, consisting of nine parties, including the PPA and the National Unity Party – announced their intention to start a series of demonstrations demanding the resignation of the re-elected President.\n\n7.  The applicant alleges that from February 2003 until his arrest in April 2004 he was repeatedly harassed because of his political activity. In particular, the police frequently called him to the police station without any reasons and demanded that he stop his political activities and support for the opposition.\n\n8.  On 30 March 2004 criminal proceedings no. 62201704 were instituted under Article 301 and 318 § 2 of the Criminal Code (CC) against representatives of the Justice Alliance on account of making calls for a violent overthrow of the government and change of the Armenian constitutional order and of publicly insulting government representatives.\n\n2.  The applicant’s arrest and prosecution\n\n9.  On 8 April 2004 the applicant was handing out leaflets to people at a marketplace in , inciting them to attend a demonstration to be held in the capital on 9 April 2004. The leaflets had the following content:\n\n“Fellow countrymen\n\nIt is not possible any more to continue this way.\n\nOn 9 April at 4 p.m. in  we will start our struggle which aims to establish a lawful government in . The future of our homeland depends on the participation of each of us.\n\nNational Unity Party\t\t\t\t\tJustice Alliance”\n\n10.  The applicant was stopped by two police officers, G.D. and G.A., who demanded that he accompany them to a police station. It appears that this happened at around 1 p.m.\n\n11.  According to the applicant, they arrived at the police station at around 1.30 p.m. At the police station he was placed in a waiting room with a glass wall next to the corridor, where he spent about ten hours. During this period he noticed several people behind the glass wall pointing at him as if to identify him. He had no access to a lawyer during this period.\n\n12.  It appears that at some point the applicant was transferred to a prosecutor’s office where from 8.55 to 9.05 p.m. and from 9.30 to 10.05 p.m. two confrontations were held between him and two witnesses, M.M. and N.S., respectively, who worked at the marketplace. The relevant records stated at the outset that there had been substantial contradictions between the statements of these witnesses and the applicant, who at this stage was also involved as a witness.\n\n13.  Witness M.M. stated during the confrontation that earlier that day, at around 2 p.m., he had noticed the applicant handing out leaflets and saying something to people at the marketplace. Then the applicant had approached him and given him a leaflet, saying that “the day after it would be the end of the government and the government would be changed and that they would put an end to the government and sort them out”.\n\n14.   stated that the applicant had approached him at around 1 p.m. and given him a leaflet, saying that he should “come to the demonstration where they would crush and overcome”, after which the applicant left.\n\n15.  The applicant denied having handed out any leaflets or made any such statements.\n\n16.  At 10.30 p.m. an arrest record was drawn up which noted that eye-witnesses had stated that the applicant had handed out leaflets and made calls for a violent overthrow of the government. The applicant again denied these allegations.\n\n17.  On the same date the Kentron and Nork-Marash District Court of Yerevan granted the investigator’s motion to have the applicant’s flat searched. This decision stated that there were sufficient grounds to believe that written calls, leaflets, plans and projects to overthrow the government and change the constitutional order violently and to insult representatives of the government publicly, as well as firearms, ammunition and other objects and documents relevant to the case, could be found in the applicant’s flat.\n\n18.  On 9 April 2004 the investigator invited a legal aid lawyer, H.I., to represent the applicant’s interests. According to the relevant record, the applicant agreed that his interests be represented by lawyer H.I.\n\n19.  On the same date from 10.30 to 11.10 a.m. the applicant’s flat was searched in the presence of two attesting witnesses but no items were found.\n\n20.  From 1.05 to 2.25 p.m. the applicant was questioned as a suspect in the presence of lawyer H.I. The applicant again denied all the allegations.\n\n21.  On 10 April 2004 the applicant was formally charged within the scope of criminal proceedings no. 62201704 under Article 301 of the CC. This decision stated:\n\n“...[the applicant], having received from [the district office] of the National Unity Party leaflets concerning the demonstration to be held on 9 April 2004 at 4 p.m. on Freedom Square with the aim of “establishing a lawful government in Armenia”, distributed these leaflets to citizens and made calls to overthrow the government and change the constitutional order violently.\n\nOn 8 April 2004 at around 1 p.m. [the applicant] was caught by police officers while he was handing out the leaflets and a total of 24 leaflets were confiscated from him.\n\nThus, [the applicant] has made calls to overthrow the government and change the constitutional order violently, namely he has committed an offence envisaged under Article 301 of the [CC].”\n\n22.  The applicant and his lawyer signed this decision which, inter alia, stated that the nature of the charge had been explained to the applicant. The applicant once again gave his consent to be represented by lawyer H.I. He was then questioned as an accused in the presence of his lawyer. The applicant submitted that the nature of the charge was clear to him but denied having distributed leaflets or made any calls at the marketplace.\n\n23.  On the same date the Kentron and Nork-Marash District Court of Yerevan granted the investigator’s motion, dated 6 April 2004, to have the applicant detained.\n\n24.  On 21 April 2004 a confrontation was held between the applicant and another witness, V.Z., who apparently also worked at the marketplace. He identified the applicant as the person who had approached him on 8 April 2004, handed him a leaflet and told him to attend a demonstration on the following day during which a struggle to change the government would begin and that the authorities were unlawful and had to be changed. The applicant again denied having distributed leaflets or made any calls and submitted that witness V.Z. had been forced by the police to make false submissions. This confrontation was held in the presence of lawyer H.I.\n\n25.  On 6 May 2004 another confrontation was held between the applicant and arresting police officer G.D. who submitted that on 8 April 2004 at around 12 noon, having noticed that the applicant was distributing leaflets at the marketplace, they had approached him and asked to have a look at the leaflets. Having read what the leaflets said, they asked the applicant to come with them to the police station for clarification. The applicant denied these allegations. This confrontation was held in the presence of lawyer H.I.\n\n26.  On 7 May 2004 another confrontation was held between the applicant and the second arresting police officer, G.A., who made submissions similar to those made by police officer G.D. The applicant submitted in reply that police officer G.A.’s statement was true and that he had not told the entire truth in his previous submissions. The applicant admitted that he had distributed the leaflets at the marketplace but denied having said anything or made any calls for a violent overthrow of the government. He submitted that he regretted his actions and requested to be released from detention. This confrontation was held in the presence of lawyer H.I.\n\n27.  On the same day the applicant was again questioned as an accused in the presence of lawyer H.I., during which he made similar submissions and pleaded partly guilty.\n\n28.  Later that day lawyer H.I. filed a motion with the General Prosecutor’s Office, seeking to have the applicant released from detention. He submitted that the applicant was known to be of good character, had a permanent place of residence, was a pensioner and would not abscond or obstruct the proceedings if freed. Furthermore, he had no criminal record, had pleaded guilty and regretted his actions.\n\n29.  It appears that on unspecified dates two other witnesses, O.V. and S.K., were also questioned in connection with the applicant’s case. Witness O.V. stated that a tall person had been distributing leaflets at the marketplace on 8 April 2004. When handing him a leaflet, he said that a struggle aimed at establishing a lawful government in  would begin at the demonstration of 9 April 2004. He further incited everybody to participate in the struggle, topple the government and make a coup. Witness S.K. stated that a tall elderly person had handed him a leaflet at the marketplace on 8 April 2004 and incited him to join the struggle, eliminate the current government, topple them by force and establish a new order.\n\n30.  The applicant alleged, which the Government did not dispute, that throughout the entire investigation his lawyer had never met or spoken with him in private, while in detention, to provide legal advice. Furthermore, the lawyer even failed to satisfy his request to be provided with a copy of the Code of Criminal Procedure.\n\n3.  The court proceedings\n\n31.  On an unspecified date the applicant’s case was brought before the Avan and Nor Nork District Court of Yerevan which started its examination on 31 May 2004. The applicant submitted before the District Court that he wished to be represented by lawyer H.I.\n\n32.  The examining judge noted at the outset that the witnesses had been duly notified but had failed to appear and inquired about the opinion of the parties. The prosecutor submitted that they had to be compelled to appear. The lawyer made a similar submission on the ground that it was impossible to examine the case without the witnesses. The judge agreed and adjourned the hearing until 2 June 2004.\n\n33.  At the hearing of 2 June 2004 four witnesses appeared, witnesses N.S. and M.M. and police officers G.D. and G.A..\n\n34.   admitted that he was seeing the applicant for the second time, the first time being on 8 April 2004 at the prosecutor’s office. He further submitted that about a month before he was at work at the marketplace when somebody had approached and given him a leaflet, adding that “tomorrow at 1 p.m. there would be a demonstration on ”. The person handing out the leaflets was tall and had grey hair. He gave the leaflet and said “come at this hour, we will crush, shatter and conquer”.  submitted that he had understood from these statements that the demonstrators wanted to change the government. In reply to the applicant’s lawyer’s questions, witness N.S. submitted that he was not familiar with that person and he could not say for sure if it was the applicant who had given the leaflet and made the statements. He was sure though that he had seen the applicant at the prosecutor’s office.  explained that he had stated at the prosecutor’s office that he had not seen who was distributing the leaflets, to which they replied that it had been the applicant. In reply to the judge’s question as to why he had stated unequivocally during the investigation that it was the applicant who had distributed the leaflets and made the above statements, witness N.S. submitted that he had said so because he had been told at the prosecutor’s office that it was the applicant who was distributing leaflets in the area of the marketplace. He further submitted that he could not remember who it was, but people around him said that it was the applicant, so he said the same.\n\n35.  Witness M.M. submitted that at some point in May he was at the marketplace when the applicant, who was distributing leaflets, approached him and invited him to a demonstration in order to “turn over” the government. The applicant then left. Witness M.M. further confirmed his pre-trial statement and asked to rely on it. He also confirmed that the person distributing the leaflets, like the applicant, had grey hair and a white shirt and was tall.\n\n36.  Police officer G.D. submitted that he was on duty at the marketplace with police officer G.A. where they noticed a person who was handing out leaflets. They approached him and brought to the police station, where he was identified as the applicant. They could not hear what he was saying to the vendors. In reply to the applicant’s lawyer’s questions, police officer G.D. said that he personally did not hear any calls from the applicant. Nor did any of the vendors tell him that the applicant had made calls.\n\n37.  Police officer G.A. made similar submissions.\n\n38.  The examining judge then announced that he had received an official letter from the police stating that witness S.K. had not been found at his place of residence, that witness O.V. was absent from his place of residence and lived elsewhere, and that the court’s decision ordering the appearance of these witnesses, in its part concerning witness V.Z., had not been executed for reasons not communicated to the court. The prosecutor requested that the pre-trial statements of these witnesses be read out. The applicant and his lawyer consented, after which the statements were read out.\n\n39.  The applicant was then examined, during which he admitted that he had distributed leaflets but denied having made any calls for a violent overthrow of the government.\n\n40.  Thereafter the trial entered its final stage of pleadings. The prosecutor made a speech, followed by the applicant’s lawyer and the applicant himself. The lawyer, in particular, made the following speech: “I find that the defendant must be acquitted”.\n\n41.  On the same date the District Court found the applicant guilty as charged and imposed a one year suspended sentence, ordering at the same time the applicant’s release from detention under a written undertaking not to leave his place of residence. The District Court found, in particular, that:\n\n“On 8 April 2004 [the applicant] received leaflets from the Avan and Nor Nork district office of National Unity Party concerning a rally to be held on 9 April 2004 at 4 p.m. on Freedom Square, distributed them to persons working and involved in trade in the area of the seventh market situated in [Nork] and made public calls inciting to a violent overthrow of the government and the constitutional order. In particular, when handing out leaflets to [N.S., M.M., V.Z., O.V. and S.K.], he incited them to participate in the rally telling them ‘You must come by all means, we will crush, overcome, put an end to the government and sort them out, we will make a coup, we will violently overthrow the current government and establish a new order’”\n\n42.  In support of its findings the District Court relied on the statements of witnesses N.S., M.M., V.Z., O.V. and S.K. As regards, in particular, the statements made by witness N.S. in court, the District Court dismissed them as unreliable and admitted his statements made during the confrontation of 8 April 2004. The District Court justified this decision by the fact that the statements made by witness N.S. during the confrontation had been unequivocal. Thus, according to the entirety of the witness statements relied on by the District Court, the applicant had made the following calls while handing out the leaflets and inciting people to attend the demonstration: “we will crush and overcome” (witness N.S.), “the government will be changed and we will put an end to the government and sort them out” (witness M.M.), “a struggle will start at the demonstration aimed at changing the government and establishing a lawful one”, “the current government will be overthrown and a new one will be established”, “the current government is unlawful and has to be changed” (witness V.Z.), “the government has to be overthrown and a coup has to be made” (witness O.V.) and “the current government has to be eliminated and violently overthrown and a new order has to be established” (witness S.K.).\n\n43.  On 14 June 2004 the applicant lodged an appeal, which he apparently drafted himself. In his appeal the applicant submitted that during the investigation he had pleaded guilty only to distributing leaflets, which in any event was not an offence, but he had never made any calls for a violent overthrow of the government. He was not a member of any political party, had never participated in demonstrations or had links with the parties organising them. The applicant further complained about the fact that the statements made by witnesses N.S. and M.M. in court, which were favourable for him, had been considered unreliable, while other witnesses, being ashamed of their false statements, had failed to appear in court. He argued that the statements of those witnesses who had not been examined in court should not have served as a basis for his conviction. The applicant lastly stated that the arresting police officers had not heard him make any calls. Thus, he had been convicted on the basis of statements of two or three witnesses who had seen him for the first time at the prosecutor’s office.\n\n44.  On 29 June 2004 the proceedings commenced before the Criminal and Military Court of Appeal. The applicant submitted before the Court of Appeal that he wished to be represented by lawyer H.I. and pleaded not guilty. Lawyer H.I. also claimed that the applicant was not guilty and asked the court to acquit him.\n\n45.  At the hearing of 30 June 2004, following the applicant’s examination, the presiding judge announced that it was necessary to summon and examine witnesses O.V., V.Z. and S.K. He further stated that he had telephoned all three witnesses on the previous day. O.V.’s wife replied that about a month before he had gone to  for work and his whereabouts were unknown. V.Z.’s wife replied that he had gone to another region for work and that she had no further information about him. S.K.’s relatives replied that he had left  for work. The Court of Appeal decided, taking into account that the attendance of the above witnesses was indispensable, that they be compelled to appear. This task was assigned to the local police department. The hearing was adjourned until 6 July 2004.\n\n46.  At the hearing of 6 July 2004 the presiding judge announced that, according to the police, the witnesses were absent from their places of residence. The police had promised to provide further information in writing. In reply to the presiding judge’s question, the parties did not object to proceeding with the hearing and requested that measures be taken to ensure the attendance of the witnesses at the next hearing.\n\n47.  At the hearing of 7 July 2004 the presiding judge informed the parties that an official letter had been received from the police informing that witnesses O.V., V.Z. and S.K. were absent from their places of residence. While reading out that letter, the presiding judge noticed that the police had visited the wrong address as far as witness V.Z. was concerned. The prosecutor then requested that their statements be read out. Lawyer H.I. submitted that the witnesses in question had made defamatory statements against the applicant during the investigation which lacked credibility and it was therefore necessary to bring them to court with the help of the police. The applicant joined his lawyer’s request and asked that the witnesses in question appear in court and also present their identity documents. The Court of Appeal decided that, since a wrong address had been indicated in the decision ordering V.Z.’s appearance in court, it was necessary to inform the police of the correct address. As regards witnesses O.V. and S.K., the former was in , while the latter was out of town. This was also confirmed by the telephone calls made by the presiding judge. The Court of Appeal found that, in such circumstances, there were no reasons to doubt the veracity of the police information and announced that it would read out and examine the pre-trial statements of those witnesses. The statements would then be analysed in the deliberation room and an assessment would be made as to their credibility, since the evidence examined in court was sufficient to allow such an assessment. The Court of Appeal then proceeded to read out the statements in question. The applicant submitted that their statements did not concern him since there had been many tall, grey-haired men at the marketplace. The investigating authority had never arranged his identification by those witnesses and their statements were therefore false.\n\n48.  At the hearing of 12 July 2004 the presiding judge announced that an official letter had been received from the police, according to which witness V.Z. indeed resided at the correct address but nobody answered the door during their visit. The presiding judge announced that, not being satisfied by the information contained in the police letter, he personally called V.Z.’s home and became convinced that nobody was there because nobody answered the telephone. The prosecutor requested that the statement of witness V.Z. be read out in court, while both the applicant and his lawyer submitted that the statement of witness V.Z. lacked credibility and requested that it be disregarded. The court then proceeded to read out the statement.\n\n49.  At the same hearing the applicant filed a motion with the Court of Appeal dispensing with the services of lawyer H.I. He submitted that the lawyer had not taken any steps to defend his interests and to prove his innocence. The lawyer had never come to visit him in detention despite the requests he had made to the administration of the detention facility. Furthermore the lawyer, without his knowledge, had filed a motion on 7 May 2004 seeking his release, in which the lawyer stated that he had pleaded guilty despite the fact that he had never pleaded fully guilty, thereby acting to his detriment and assisting the prosecution in substantiating the charge against him. The applicant claimed that he had found out about this motion only during the appeal proceedings. He further claimed in his motion that he had pleaded guilty to distributing leaflets because he was not aware that such act did not constitute an offence. He realised this only following his release from detention because no copy of the Criminal Code had been provided to him by either the investigator or his lawyer while in detention, despite his numerous requests. The applicant lastly claimed that the case against him had been fabricated. He submitted that, while sitting behind a glass wall at the police station, he was shown to some people who later became witnesses and made false statements against him. Some of them he was not able to examine and only two of them appeared in court. One of those two retracted his pre-trial statement, while the second one, because of giving a false statement, was even ashamed to look him in the eyes and was only able to mumble a confirmation of his pretrial statement.\n\n50.  The applicant stated at the same time that it was his personal choice to dispense with the services of his lawyer. The Court of Appeal decided to grant the applicant’s motion and to allow him to defend himself in person. The lawyer was then asked to leave the courtroom.\n\n51.  On the same date the Criminal and Military Court of Appeal adopted its judgment upholding the applicant’s conviction. In doing so, the Court of Appeal referred to the statements of witnesses N.S., M.M., O.V. and S.K. and of police officers G.D. and G.A. As regards the statement of witness V.Z., the Court of Appeal found that it should not have formed a basis for the applicant’s conviction because that witness had failed to appear in court despite a court order. The Court of Appeal further rejected the applicant’s claim that he had only distributed leaflets but not made any calls for a violent overthrow of the government. In doing so, the Court of Appeal stated that five witnesses had testified that the applicant had made such calls. Furthermore, the police officers had arrested him while he was handing out the leaflets. In the light of the overall sufficiency of evidence, the fact that witnesses O.V. and S.K. had failed to appear in court could not put into doubt the applicant’s involvement in the act and his guilt. The criminal element in his actions lay in the making of calls inciting violent seizure of power and change of the constitutional order. Those calls were public and aimed at a big group of people. Since he made such calls at a marketplace during the daytime, they were audible to the public. The fact that they were perceived as calls inciting to a violent overthrow of the government was confirmed by the witness statements.\n\n52.  The Court of Appeal further dismissed the applicant’s complaint about lawyer H.I., stating that the applicant’s right to defence had been ensured by the investigating authority, he had chosen his position regarding the charge against him without any outside pressure and he had not previously made any complaints about the lawyer. Furthermore, the fact that the nature of the charge was clear to the applicant was evident from the records of investigative measures. He had certified this with his signature in the presence of his lawyer.\n\n53.  On 14 July 2004 the applicant lodged an appeal on points of law in which he raised arguments concerning the witnesses against him and the alleged failure of lawyer H.I. to provide effective legal assistance, similar to those raised in his complaint of 12 July 2004. He also added that the witness statements against him had been fabricated under police pressure. The witnesses in question were people trying to make a living by working at the market, so if they had refused to follow police orders they would have been immediately expelled from the market.\n\n54.  On 6 August 2004 the Court of Cassation dismissed the applicant’s appeal. In doing so, the Court of Cassation found that both witnesses M.M. and N.S. had made statements implicating the applicant. As regards the legal representation, the applicant had agreed that lawyer H.I. defend his interests and the lawyer had properly done so.\n\n55.  By a letter of 11 November 2004 the head of staff of the Armenian Bar Association informed the applicant, in reply to his complaint, that lawyer H.I. had lawfully carried out the applicant’s defence and had not done anything illegal. The motion of 7 May 2004 had been filed upon the applicant’s and his relatives’ request.\n\nII.  RELEVANT DOMESTIC LAW\n\nA.  The Criminal Code (in force from 1 August 2003)\n\n56.  The relevant provisions of the CC provide:\n\nArticle 301: Public calls inciting to a violent change of the constitutional order of\n\n“Public calls inciting to a violent seizure of State power and violent change of the constitutional order of Armenia shall be punishable by a fine of between 300 and 500 times the minimum wage or by detention of between two and three months or by imprisonment for a period not exceeding three years.”\n\nB.  The Code of Criminal Procedure (in force from 12 January 1999)\n\n57.  The relevant provisions of the Code of Criminal Procedure provide:\n\nArticle 62: A suspect\n\n“1.  A suspect is the person ... who has been arrested on suspicion of having committed an offence...”\n\nArticle 63: Rights and obligations of a suspect\n\n“1.  The suspect has the right to defence. The investigating authority shall allow the suspect to implement his right to defence by all lawful means.\n\n2.  The suspect, in accordance with a procedure prescribed by this Code, has the right ... to have a defence counsel or to dispense with a defence counsel and defend himself in person from the moment when he is presented with the investigating authority’s decision on arrest, the record of arrest or the decision on choosing a preventive measure...”\n\nArticle 86: A witness\n\n“3.  A witness is obliged ... to appear upon the summons of the authority dealing with the case in order to give testimonies or to participate in investigative and other procedural measures...\n\n4.  The failure of a witness to comply with his obligations shall lead to sanctions prescribed by law.”\n\nArticle 153: Compulsion to appear\n\n“1.  [A] witness ... may be compelled to appear by a reasoned decision of ... the court if he fails to appear upon summons without valid reasons. [A] witness ... is obliged to inform the summoning authority if there are valid reasons preventing his appearance within the time-limit fixed in the summons.”\n\nArticle 216: Confrontation\n\n“1.  The investigator is entitled to carry out a confrontation of two persons who have been questioned previously and whose statements contain substantial contradictions. The investigator is obliged to carry out a confrontation if there are substantial contradictions between the statements of the accused and some other person.\n\n...\n\n5.  In cases envisaged by this Code, a defence counsel, an interpreter and the lawful representative of the person being questioned can participate in the confrontation and shall also sign the record.”\n\nArticle 332: Deciding on the possibility of examining the case in the absence of a witness, expert or specialist who has failed to appear\n\n“1.  If any of the witnesses ... summoned to court has failed to appear, the court, having heard the opinions of the parties, shall decide on continuing or adjourning the proceedings. The proceedings may be continued if the failure to appear of any of such persons shall not obstruct the thorough, complete and objective examination of the circumstances of the case.”\n\nArticle 342:  out of witness statements\n\n“1.  Reading out at the trial of witness statements made during the inquiry, the investigation or a previous court hearing ... is permissible if the witness is absent from the court hearing for reasons which rule out the possibility of his appearance in court, if there is substantial contradiction between those statements and the statements made by that witness in court, and in other cases prescribed by this Code.”\n\nArticle 426.1: The court reviewing judicial acts on the ground of newly discovered or new circumstances\n\n“1.  Only final acts are subject to review on the ground of newly discovered or new circumstances.\n\n2.  On the ground of newly discovered or new circumstances a judicial act of the court of first instance shall be review by the appeal court, while the judicial acts of the appeal court and the Court of Cassation shall be reviewed by the Court of Cassation.”\n\nArticle 426.4: Grounds and time-limits for review on the ground of new circumstances\n\n“1.  Judicial acts may be reviewed on the ground of new circumstances [if] ... a violation of a right guaranteed by an international convention to which  is a party has been found by a final judgment or decision of an international court...”\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION\n\n58.  The applicant complained that his State-appointed lawyer had failed to provide effective legal assistance, including by failing ever to meet with him in private. He further complained that he had been unable to crossexamine witnesses. He relied on Article 6 § 3 (b), (c) and (d) of the Convention.\n\n59.  The Court considers that the applicant’s complaints fall to be examined under sub-paragraphs (c) and (d) of Article 6 § 3. It further reiterates that the requirements of Article 6 § 3 are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 § 1. The Court will therefore examine the relevant complaints under both provisions taken together (see, among other authorities, F.C.B. v. , 28 August 1991, § 29, Series A no. 208B, and Poitrimol v. France, 23 November 1993, § 29, Series A no. 277A) which, in so far as relevant, provide:\n\n“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”\n\n3.  Everyone charged with a criminal offence has the following minimum rights:\n\n...\n\n(c)  to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;\n\n(d)  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him[.]”\n\nA.  Admissibility\n\n60.  The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.\n\nB.  Merits\n\n1.  Article 6 § 3 (c) taken together with Article 6 § 1\n\n(a)  The parties’ submissions\n\n61.  The applicant submitted that the legal aid lawyer, H.I., had failed to provide effective legal assistance. He never met or spoke with his lawyer in private and never received any legal advice, which resulted in his pleading partially guilty. The lawyer even failed to provide a copy of the Code of Criminal Procedure, despite his request. Furthermore, the lawyer filed a motion with a court, namely that of 7 May 2004, in which he admitted the applicant’s guilt. The applicant submitted that he had dispensed with the services of the lawyer after he found out about this motion. He lastly submitted that the lawyer had failed to examine the witnesses who gave oral evidence.\n\n62.  The Government submitted that the applicant had been granted free legal assistance from the day of his initial interview on 9 April 2004 and all the investigative measures, including interviews, confrontations with witnesses, etc., were carried out in the lawyer’s presence. The applicant had given his consent to be represented by the lawyer in question, which he once again confirmed on 10 April 2004. There was no evidence that, during either the investigation or the proceedings at two judicial instances, he was unsatisfied with his lawyer. He had never made any statements or complaints about the lawyer’s behaviour. If the applicant was unsatisfied with his lawyer, he could have dispensed with his services at any time.\n\n63.  The Government further submitted that the motion of 7 May 2004 did not concern the determination of the charge against the applicant but only the annulment of his detention, which was moreover rejected by the investigator. It could not therefore affect the determination of the charge or the effectiveness of the defence of the applicant’s rights. Nor did it play any role at any stage of the proceedings. Moreover, the lawyer pleaded not guilty on behalf of the applicant before the Court of Appeal.\n\n(b)  The Court’s assessment\n\n64.  The Court reiterates that, although not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trial (see Krombach v. France, no. 29731/96, § 89, ECHR 2001-II). While Article 6 § 3 (c) confers on everyone charged with a criminal offence the right to “defend himself in person or through legal assistance ...”, it does not specify the manner of exercising this right. It thus leaves to the Contracting States the choice of the means of ensuring that it is secured in their judicial systems, the Court’s task being only to ascertain whether the method they have chosen is consistent with the requirements of a fair trial (see Sakhnovskiy v.  [GC], no. 21272/03, § 95, 2 November 2010).\n\n65.  In that connection it must be borne in mind that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective; this is particularly so of the rights of the defence in view of the prominent place held in a democratic society by the right to a fair trial, from which they derive (see Airey v. Ireland, 9 October 1979, § 24, Series A no. 32). The Court observes that Article 6 § 3 (c) of the Convention speaks of “assistance” and not of “nomination”. The mere nomination of a lawyer does not ensure effective assistance since the lawyer appointed for legal aid purposes may die, fall seriously ill, be prevented for a protracted period from acting or shirk his duties. If they are notified of the situation, the authorities must either replace him or cause him to fulfil his obligations (see Artico v. Italy, judgment of 13 May 1980, Series A no. 37, § 33).\n\n66.  In the present case, the Court notes that on the next day following the applicant’s arrest a legal aid lawyer, H.I., was invited to represent his interests (see paragraph 18 above). It appears that the lawyer was present during all the subsequent investigative measures involving the applicant, such as interviews (see paragraphs 20 and 27 above), presentation of the charge (see paragraphs 21-22 above) and confrontations (see paragraphs 2426 above). However, the mere presence of a lawyer is not sufficient to satisfy the requirements of Article 6 § 3 (c). The Court notes with concern that, while being present at the above investigative measures, the lawyer, nevertheless, appears to have shown absolute passivity. He does not appear to have had any involvement whatsoever in the applicant’s interviews other than signing the relevant records and failed to pose any questions to the witnesses against the applicant during the confrontations. Furthermore, nothing suggests that the lawyer ever met with the applicant to discuss his case and to provide legal advice. The Court lastly cannot ignore the lawyer’s final speech made before the District Court which was devoid of any factual or legal arguments (see paragraph 40 above), as well as the fact that the lawyer appears not to have had any involvement in the drafting of the applicant’s appeal against the judgment of the District Court (see paragraph 43 above).\n\n67.  However, despite the foregoing, the Court cannot overlook the fact that the applicant never raised any complaints or tried to bring any of the above-mentioned to the attention of the authorities in any other possible way throughout the entire investigation and proceedings before the District Court, as well as almost the entire proceedings before the Court of Appeal. Not only did the applicant explicitly give his consent to be represented by lawyer H.I. in all the above-mentioned instances (see paragraphs 18, 22, 31 and 44 above), but he never showed any signs of dissatisfaction with his lawyer until the final hearing before the Court of Appeal (see paragraph 49 above). The applicant’s appeal against his conviction by the District Court was also absolutely silent on this point (see paragraph 43 above). He did finally raise this issue, as mentioned above, at the last hearing before the Court of Appeal and in his appeal to the Court of Cassation (see paragraphs 49 and 53 above). However, as admitted by the applicant himself, this was mostly motivated by his allegedly belated discovery of the lawyer’s motion of 7 May 2004, which, according to the applicant, contained submissions detrimental to his case (see paragraph 26 above), and not by any other failures or omissions committed by the lawyer. Thus, such protracted silence on the applicant’s part and the main reason for his belated complaint may cast doubt on the credibility of some of his allegations. In any event, even assuming that the entirety of the applicant’s allegations are true, it was still incumbent on him to bring the lawyer’s failures to the attention of the authorities, who cannot be blamed for such failures if they were not informed of them in a timely and proper manner.\n\n68.  Furthermore, despite the lawyer’s apparently passive behaviour throughout the investigation he did, nevertheless, file a motion on 7 May 2004 on the applicant’s behalf seeking his release (see paragraph 26 above). The Court does not share the applicant’s view that the lawyer deliberately acted to his detriment by stating in that motion that the applicant had pleaded guilty, since it is clear that the lawyer’s intention was to secure the applicant’s release from detention. Moreover, the lawyer did pose questions to some of the witnesses during the proceedings before the District Court and it can be construed from the answers received that the questions were pertinent, competent and of help to the applicant’s case (see paragraphs 34 and 36 above). He also insisted on several occasions before the Court of Appeal that measures be taken to ensure the attendance of the witnesses who had failed to appear, alleging that their statements were defamatory and lacked credibility (see paragraphs and 46-48 above).\n\n69.  In view of the above, there are not sufficient elements in the present case to conclude that the State-appointed lawyer manifestly failed to provide effective legal assistance or, even assuming that he did, that the authorities can be held liable for that failure in the particular circumstances of the case.\n\n70.  Accordingly, there has been no violation of Article 6 § 3 (c) taken together with Article 6 § 1 of the Convention.\n\n2.  Article 6 § 3 (d) taken together with Article 6 § 1\n\n(a)  The parties’ submissions\n\n71.  The applicant submitted that he was unable to examine properly any of the witnesses, while witnesses V.Z., O.V. and S.K. were not examined at all. It was important for him to examine those witnesses because the first instance court relied on that evidence when convicting him, while the statements of the remaining witnesses were contradictory and unclear and not determinative of the charge against him.\n\n72.  In particular, since the distribution of leaflets was not considered an offence, the real issue of fact was whether the applicant had made calls inciting to a violent overthrow of the government. The only evidence before the courts which alleged that the applicant had made such calls was that provided by witnesses V.Z., O.V. and S.K. who had failed to appear in court and witness N.S. who had made contradictory statements. The latter witness had failed to identify properly the applicant and, even though he admitted in court that he had identified the applicant only because he had been told so by the prosecutor’s office, the first instance court nevertheless preferred witness N.S.’s pre-trial statement. As to the remaining witnesses, witness M.M. identified the applicant as the person distributing leaflets, while the arresting police officers, G.A. and G.D., did not hear what the applicant had said while distributing the leaflets.\n\n73.  The applicant objected to the Government’s allegation that it had been impossible to find and secure the attendance of witnesses V.Z., O.V. and S.K. and denied having consented to the reading out of their statements. Furthermore, the Court of Appeal must have been influenced by the statements of witnesses V.Z., O.V. and S.K. because theirs was the only evidence which suggested that he had called for a violent overthrow of the government. Moreover, the Court of Appeal, relying on those statements, reached a finding of consistency of evidence as a ground for dismissing his appeal.\n\n74.  The Government claimed that the applicant had had the opportunity to examine witnesses both during the investigation and the court proceedings. He was not able to challenge the statements of witnesses V.Z., O.V. and S.K. because, despite the efforts of the authorities, it was impossible to find and bring them to court. For this reason the District Court decided to read out their statements and both the applicant and his lawyer consented to this. Furthermore, these were not the only witnesses in the applicant’s case and their statements were identical to the statements of other witnesses whom the applicant had the opportunity to examine. Thus, their statements did not play a decisive role in securing the applicant’s guilt. Moreover, the Court of Appeal did not rely on the statements of witnesses V.Z., O.V. and S.K., finding that they should not form a basis for the applicant’s conviction because these witnesses had failed to appear in court despite a court order. The Government lastly submitted that the domestic courts were better placed to judge whether there were any contradictions in the witness evidence.\n\n(b)  The Court’s assessment\n\n75.  The Court reiterates that the admissibility of evidence is primarily a matter for regulation by national law and, as a general rule, it is for the national courts to assess the evidence before them. The Court’s task under the Convention is not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair (see, among other authorities, Doorson v. the Netherlands, 26 March 1996, § 67, Reports of Judgments and Decisions 1996II).\n\n76.  Article 6 § 3 (d) of the Convention enshrines the principle that, before an accused can be convicted, all evidence against him must normally be produced in his presence at a public hearing with a view to adversarial argument. Exceptions to this principle are possible but must not infringe the rights of the defence, which, as a rule, require that the accused should be given an adequate and proper opportunity to challenge and question a witness against him, either when that witness makes his statement or at a later stage of proceedings (see Delta v. France, 19 December 1990, § 36, Series A no. 191A; Van Mechelen and Others v. the Netherlands, 23 April 1997, § 51, Reports of Judgments and Decisions 1997III; and Lucà v. , no. 33354/96, § 39, ECHR 2001II).\n\n77.  There are two requirements which follow from the above general principle. First, there must be a good reason for the non-attendance of a witness. Second, when a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence may be restricted to an extent that is incompatible with the guarantees provided by Article 6 (see Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 119, 15 December 2011).\n\n78.  The requirement that there be a good reason for admitting the evidence of an absent witness is a preliminary question which must be examined before any consideration is given as to whether that evidence was sole or decisive. Even where the evidence of an absent witness has not been sole or decisive, the Court has still found a violation of Article 6 §§ 1 and 3 (d) when no good reason has been shown for the failure to have the witness examined. This is because as a general rule witnesses should give evidence during the trial and that all reasonable efforts will be made to secure their attendance. Thus, when witnesses do not attend to give live evidence, there is a duty to enquire whether that absence is justified (ibid., § 120).\n\n79.  In the present case, the Court notes that the applicant was found guilty of making calls inciting to a violent overthrow of the government. These calls amounted to various statements he allegedly addressed to a number of individuals at a marketplace while handing out leaflets inviting them to attend a demonstration. These individuals, namely N.S., M.M., V.Z., O.V. and S.K., acted as witnesses in the applicant’s criminal case. Even though the two arresting police officers, G.A. and G.D., also made statements which were taken into account by the domestic courts, their statements appear to have served solely as circumstantial evidence, since neither of the police officers claimed to have heard the statements made by the applicant at the marketplace. Thus, the entire criminal case against the applicant was based on the statements of the above-mentioned five witnesses.\n\n80.  The Government alleged that only two of those witness statements, namely those made by N.S. and M.M., were actually relied on when convicting the applicant, since the Criminal and Military Court of Appeal refused to admit statements of witnesses V.Z., O.V. and S.K. as evidence. This allegation, however, contradicts the materials of the case. While the statement of witness V.Z. indeed appears to have been excluded as evidence by the Court of Appeal, the same cannot be said of the statements of witnesses O.V. and S.K. On the contrary, the Court of Appeal explicitly referred to that evidence when substantiating the applicant’s guilt (see paragraph 51 above). Thus, the applicant’s conviction was based, inter alia, on the statements of witnesses O.V. and S.K. The applicant, however, was not given the opportunity to examine the witnesses or have them examined either during the pre-trial proceedings or in court. No judicial authority ever heard those witnesses either.\n\n81.  The Court observes that the reason for non-attendance of witnesses O.V. and S.K. was their alleged absence from . However, it is not convinced that, in the particular circumstances of the case, this could be considered a good reason justifying the failure to have these witnesses examined and for admitting their evidence. Notably, the fact that a witness is absent from the country where the proceedings are conducted is in itself not sufficient to satisfy the requirements of Article 6 § 3 (d), which requires the Contracting States to take positive steps to enable the accused to examine or have examined witnesses against him (see Sadak and Others v. Turkey, nos. 29900/96, 29901/96, 29902/96 and 29903/96, § 67, ECHR 2001VIII). Such measures form part of the diligence which the Contracting States must exercise in order to ensure that the rights guaranteed by Article 6 are enjoyed in an effective manner (see Colozza v. Italy, 12 February 1985, § 28, Series A no. 89).\n\n82.  The Court is ready to accept that the domestic courts made certain efforts to inquire about the reasons for the absence of witnesses O.V. and S.K. and to secure their attendance. The District Court appears to have resorted to the help of the police following their failure to appear (see paragraphs 32 and 38 above), while the Court of Appeal decided to compel them to appear, adjourning the hearings of 30 June and 6 July 2004 and ordering the police to ensure their attendance at the next hearing (see paragraphs 45 and 46 above). However, it is not clear what efforts were made by the police to locate those witnesses other than finding out that they were absent from their permanent places of residence. There is no evidence suggesting that the police ever attempted to find out their new addresses or to inquire about the details of their absence, including whether it was permanent or temporary and whether O.V. and S.K. intended to return or to visit home in the foreseeable future. In spite of such lack of any inquiries, the District Court proceeded to read out their statements (see paragraph 38 above).\n\n83.  It is true that the presiding judge of the Court of Appeal appears to have personally tried to contact O.V. and S.K., as a result of which it was disclosed that the former had left for Russia and the latter had left  (see paragraph 45 above). However, similarly to the police, he made no further efforts to establish their whereabouts. The reply of O.V.’s wife that she was unaware of O.V.’s whereabouts was accepted without any further inquiries and no attempts were made to establish his location by resorting to international legal assistance mechanisms if that was indeed the case. As regards witness S.K., the presiding judge does not appear to have even inquired about his new whereabouts. No time was allowed or instructions made to carry out any further inquiries and the Court of Appeal proceeded hastily to read out the witness statements at the next hearing of 7 July 2004 (see paragraph 47 above). Moreover, the Court of Appeal did so despite the fact that it had earlier found the attendance of the witnesses in question “indispensable” (see paragraph 45 above).\n\n84.  The Court therefore concludes that the efforts made by the authorities cannot be said to have been sufficient in the circumstances of the case (see, in this respect, Artner v. Austria, 28 August 1992, § 21, Series A no. 242A, where the Austrian police were instructed by the trial court to make every effort to find a missing witness; Berisha v. the Netherlands (dec.), no. 42965/98, 4 May 2000, where the Dutch authorities tried to call a witness residing in the Slovak Republic through the Slovak authorities; and Haas v. Germany (dec.), no. 73047/01, 17 November 2005, where the German authorities made considerable efforts to secure the attendance of a witness serving a prison sentence in Lebanon). Thus, it cannot be said that there were good reasons for the failure to have witnesses O.V. and S.K. examined or that the domestic authorities complied with their duty to inquire whether their absence was justified.\n\n85.  It is true that the applicant appears to have consented before the District Court to the pre-trial statements of witnesses O.V. and S.K. being read out (see paragraph 38 above). This, however, is not sufficient for the Court to conclude that he thereby waived his right to examine the witnesses. The Court reiterates that waiver of the exercise of a right guaranteed by the Convention – in so far as such waiver is permitted in domestic law – must be established in an unequivocal manner (see Colozza, cited above, § 28). The Court notes that the applicant complained both before the Criminal and Military Court of Appeal and before the Court of Cassation that he had been unable to examine witnesses O.V. and S.K. (see paragraph 43 and 53 above). He further explicitly requested before the Court of Appeal that these witnesses appear in court, alleging that their statements lacked credibility (see paragraph 47 above). The fact that the Court of Appeal made attempts, albeit unsuccessful, to ensure their appearance similarly suggests that the applicant was not considered to have waived his right to examine them (see paragraphs 45-48 above).\n\n86.  The foregoing considerations are sufficient to enable the Court to conclude that the applicant was unreasonably restricted in his right to examine witnesses whose testimony played a decisive role in securing his conviction. He was unable to subject their credibility to scrutiny or cast any doubt on their depositions. This is particularly worrying taking into account that the witnesses in question were not personally acquainted with the applicant and were never even asked to identify him at any stage of the proceedings.\n\n87.  Accordingly, there has been a violation of Article 6 § 3 (d) taken together with Article 6 § 1 of the Convention.\n\nII.  ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION\n\n88.  The applicant complained about a violation of his right to freedom of expression. He relied on Article 10 of the Convention which, in so far as relevant, provides:\n\n“1.  Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers...\n\n2.  The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”\n\nA.  Admissibility\n\n1.  The parties’ submissions\n\n(a)  The Government\n\n89.  The Government submitted that the applicant had failed to exhaust the domestic remedies since he did not raise the question of an alleged violation of his Article 10 rights at the domestic level. He simply denied the facts on which the charge against him was based, namely that he had made public calls inciting to a violent overthrow of the government, and this was not sufficient for exhaustion purposes. Furthermore, no issue of a violation of freedom of expression could arise if, as the applicant claimed, no expression as such was made.\n\n(b)  The applicant\n\n90.  The applicant submitted that his denial of the facts on which the charge was based was sufficient for exhaustion purposes. Firstly, the court proceedings were just one activity of many by the State aimed at violating his freedom of expression, others being systematic harassment by the police and the search conducted at his house. The criminal charge against him was designed to prevent him from continuing his political activity. Secondly, he indeed denied making any public calls inciting to a violent overthrow of the government but this denial was immaterial since he was in any event convicted. He was thus deprived of an adequate remedy.\n\n91.  The applicant argued, in the alternative, that his conviction was based on facts to which he admitted, namely the distribution of leaflets. He appealed against this conviction and thereby exhausted the domestic remedies.\n\n2.  The Court’s assessment\n\n92.  The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges those seeking to bring a case against the State before an international judicial body to use first the remedies provided by the national legal system, thus dispensing States from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal systems. In order to comply with the rule, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged (see, among other authorities, Assenov and Others v. Bulgaria no. 24760/94, § 85, ECHR 1999-VIII).\n\n93.  While in the context of machinery for the protection of human rights the rule of exhaustion of domestic remedies must be applied with some degree of flexibility and without excessive formalism, it does not require merely that applications should be made to the appropriate domestic courts and that use should be made of remedies designed to challenge impugned decisions which allegedly violate a Convention right. It normally requires also that the complaints intended to be made subsequently at the international level should have been aired before those same courts, at least in substance and in compliance with the formal requirements and timelimits laid down in domestic law (see, among other authorities, Azinas v. Cyprus [GC], no. 56679/00, § 38, ECHR 2004III).\n\n94.  The object of the rule on exhaustion of domestic remedies is to allow the national authorities (primarily the judicial authorities) to address the allegation made of violation of a Convention right and, where appropriate, to afford redress before that allegation is submitted to the Court. In so far as there exists at national level a remedy enabling the national courts to address, at least in substance, the argument of violation of the Convention right, it is that remedy which should be used. If the complaint presented before the Court has not been put, either explicitly or in substance, to the national courts when it could have been raised in the exercise of a remedy available to the applicant, the national legal order has been denied the opportunity to address the Convention issue which the rule on exhaustion of domestic remedies is intended to give it. It is not sufficient that the applicant may have, unsuccessfully, exercised another remedy which could have overturned the impugned measure on other grounds not connected with the complaint of violation of a Convention right. It is the Convention complaint which must have been aired at national level for there to have been exhaustion of “effective remedies”. It would be contrary to the subsidiary character of the Convention machinery if an applicant, ignoring a possible Convention argument, could rely on some other ground before the national authorities for challenging an impugned measure, but then lodge an application before the Court on the basis of the Convention argument (ibid.).\n\n95.  Turning to the circumstances of the present case, the Court notes once again that the applicant was charged and convicted of making public calls inciting a violent overthrow of the government. The applicant never claimed before any domestic judicial authority that his charge and conviction on that ground violated his right to freedom of expression (see paragraphs 39, 43 and 53 above). Moreover, he did not even make such claims in the alternative but solely alleged before all the instances that he had never made the calls in question. As regards the distribution of leaflets, the Court does not agree with the applicant that this act in itself formed a basis for his conviction. Moreover, by making this assertion the applicant contradicted his own submissions under Article 6 § 3 (d) (see paragraph 72 above). In any event, even assuming that distribution of leaflets formed a basis for the applicant’s conviction, the applicant still did not allege before the domestic courts a violation of his right to freedom of expression on that ground either. Thus, the applicant failed to raise in substance before the domestic courts his Convention complaint which he submitted to the Court.\n\n96.  It follows that the applicant has failed to exhaust domestic remedies, and that this part of the application must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.\n\nIII.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION\n\n97.  The applicant lastly raised a number of other complaints under Article 3, Article 5 §§ 1, 2, 3 and 4, and Articles 8, 11, 13 and 14 of the Convention, as well as Article 3 of Protocol No. 1.\n\n98.  Having regard to all the material in its possession, and in so far as these complaints fall within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.\n\nIV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n99.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n100.  The applicant claimed a total of 303,800 Armenian drams in respect of pecuniary damage, which included lost profit and the costs of medical treatment and food parcels incurred as a result of his pre-trial detention. The applicant also claimed EUR 15,000 in respect of nonpecuniary damage.\n\n101.  The Government submitted that the applicant’s claim for pecuniary damage was not duly substantiated and had no causal link with the alleged violations. They further asked the Court to reject the applicant’s claim for non-pecuniary damage.\n\n102.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 2,500 in respect of nonpecuniary damage.\n\n103.  On the other hand, the Court considers it necessary to point out that a judgment in which it finds a violation of the Convention or its Protocols imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, if any, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the violation found by the Court and make all feasible reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII; Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 487, ECHR 2004VII; and Lungoci v. Romania, no. 62710/00, § 55, 26 January 2006). In the case of a violation of Article 6 of the Convention, the applicant should as far as possible be put in the position he would have been in had the requirements of this provision not been disregarded (see, mutatis mutandis, Sejdovic v. Italy [GC], no. 56581/00, § 127, ECHR 2006-...; and Yanakiev v. Bulgaria, no. 40476/98, § 89, 10 August 2006).\n\n104.  The Court notes in this connection that Articles 426.1 and 426.4 of the Code of Criminal Procedure allow the reopening of the domestic proceedings if the Court has found a violation of the Convention or its Protocols (see paragraph 57 above). The Court is in any event of the view that the most appropriate form of redress in cases where it finds that a trial was held in breach of the fair trial guarantees of Article 6 of the Convention would, as a rule, is to reopen the proceedings in due course and re-examine the case in keeping with all the requirements of a fair trial (see, mutatis mutandis, Lungoci, cited above, § 56).\n\nB.  Costs and expenses\n\n105.  The applicant also claimed 2,700  dollars (USD) and 5,932.45 pounds sterling (GBP) for the costs and expenses incurred before the Court. The applicant submitted detailed time sheets stating hourly rates in support of his claims.\n\n106.  The Government submitted that the claims in respect of the domestic and foreign lawyers were not duly substantiated with documentary proof, since the applicant had failed to produce any invoices, contracts or any other legal document. Furthermore, the applicant had used the services of an excessive number of lawyers, despite the fact that the case was not so complex as to justify such a need.\n\n107.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, the Court notes at the outset that no power of attorney has ever been submitted in respect of one of the KHRP lawyers and therefore rejects the relevant claims. The Court further reiterates that legal costs are only recoverable in so far as they relate to the violation found (see Beyeler v. Italy [GC], no. 33202/96, § 27, ECHR 2000I). The Court notes that in the present case only a violation of Article 6 was found on one count while the entirety of the written pleadings, including the initial application and the subsequent observations, concerned numerous Articles of the Convention and Protocol No. 1. Therefore the claim cannot be allowed in full and a considerable reduction must be applied. Making its own assessment, the Court awards the applicant a total sum of EUR 1,600 for costs and expenses, to be paid in pounds sterling into his representatives’ bank account in the .\n\nC.  Default interest\n\n108.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Declares the complaint concerning an alleged violation of the applicant’s right to effective legal assistance and his right to examine witnesses against him admissible under Article 6 § 1 taken together with Article 6 § 3 (c) and (d) of the Convention and the remainder of the application inadmissible;\n\n2.  Holds that there has been no violation of Article 6 § 1, taken together with Article 6 § 3 (c) of the Convention, on account of the alleged failure by the applicant’s legal aid lawyer to provide effective legal assistance;\n\n3.  Holds that there has been a violation of Article 6 § 1, taken together with Article 6 § 3 (d) of the Convention, on account of the applicant’s inability to examine witnesses against him;\n\n4.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Armenian drams at the rate applicable at the date of settlement:\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n5.  Dismisses the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 10 April 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_911","text":"PROCEDURE\n\n1.  The case originated in an application (no. 41107/10) against the Republic of Slovenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovenian national, Ms Y. (“the applicant”), on 17 July 2010. The President of the Section acceded to the applicant’s request not to have her name disclosed (Rule 47 § 4 of the Rules of Court).\n\n2.  The applicant was represented by Mr J. Ahlin, a lawyer practising in Ljubljana. The Slovenian Government (“the Government”) were represented by their Agent, Mrs B. Jovin Hrastnik, State Attorney.\n\n3.  The applicant alleged that the criminal proceedings concerning the sexual assaults against her had been unreasonably delayed, lacked impartiality, and exposed her to several traumatic experiences violating her personal integrity.\n\n4.  On 20 February 2012 the application was communicated to the Government.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\nA.  The background\n\n5.  The applicant was born in Ukraine in 1987 and arrived in Slovenia in 2000 with her sister and mother, who had married a Slovenian.\n\n6.  Between July and December 2001, at the age of 14, she was allegedly repeatedly sexually assaulted by a family friend, X, 55 years old at the time, who together with his wife often took care of her and helped her in preparations for beauty contests.\n\n7.  In July 2002 the applicant told her mother about the alleged sexual assaults by X, but was unwilling to talk about them with anyone else.\n\n8.  On 15 July 2002 a priest gave a statement to the Maribor police, in which he said that the applicant’s mother had told him about her concern that the applicant had been raped by X.\n\nB.  The police investigation\n\n9.  On 16 July 2002 the applicant’s mother lodged a criminal complaint against X, in which she alleged that X had forced the applicant to engage in sexual intercourse with him on several occasions.\n\n10.  On 17 July 2002 the applicant was questioned by Maribor police officers and described how X had forced her to engage in various sexual activities. As regards the time frame of the assaults, the applicant stated that X had first attempted to kiss her before July 2001, when she had started modelling for fashion shows. She proceeded to give an account of a number of occasions when X had sexually assaulted her. On one occasion X had lain on top of her while she was sleeping at his house and had attempted to have sexual intercourse with her, spreading her legs with one hand and putting his other hand over her mouth to prevent her from screaming, but he was interrupted by his younger son coming up the stairs. On another occasion, when they were at a swimming pool, he had groped her in the water. On yet another occasion X had allegedly taken the applicant to an abandoned workshop owned by his family and performed oral sex on her. Moreover, according to the applicant, X had forced her to perform oral sex on him at least three times, once at his home, once at his company’s garage, and the third time in his van, which he had parked in woods near the town. On that last occasion the applicant had allegedly tried to escape; however, being unfamiliar with the surroundings, she had come back to the van. The applicant stated that X had on several occasions attempted to have intercourse with her, but that she had not been certain whether he had managed to achieve penetration. She further stated that she had tried to defend herself by crying and pushing X away, but without success.\n\n11.  The applicant was also examined by an expert in gynaecology, who found that her hymen was intact. Moreover, in the course of July and August 2002 the police questioned X, who denied any sexual relations with the applicant, and three other people.\n\n12.  Following a series of unsuccessful attempts to obtain specific information from the police as regards the progress of the investigation, the applicant’s mother complained to the Maribor District State Prosecutor’s Office (hereinafter “the State Prosecutor’s Office”).\n\n13.  On 27 June 2003 the State Prosecutor’s Office sent a letter to the Maribor police, urgently requesting a copy of the criminal complaint lodged against X.\n\n14.  On 18 August 2003 the police sent a report to the State Prosecutor’s Office stating that the applicant had failed to provide a detailed account of her allegations or to indicate the locations where the alleged rapes had taken place. The police noted that the applicant had given the impression of being under severe psychological stress and in fear of her mother’s reaction. They concluded that it was impossible to confirm her allegation of rape, and equally impossible to establish the reasons for her serious emotional distress.\n\nC.  The judicial investigation\n\n15.  On 28 August 2003 the State Prosecutor’s Office lodged a request for a judicial investigation in respect of X based on charges of sexual assault on a minor below the age of fifteen. The request alleged that X had forced the applicant to engage in oral sex and had had sexual intercourse with her on at least three occasions, despite her refusal and attempted resistance.\n\n16.  On 7 January 2005 X was summoned to appear before the investigating judge of the Maribor District Court. He refused to give an oral statement. On 10 March 2005 X, represented by a lawyer, submitted a written statement in which he denied the charges. He also submitted a medical report which indicated that his left arm had been disabled since birth.\n\n17.  On 26 May 2005 the investigating judge issued a decision to open a criminal investigation in respect of X. An appeal by X against this decision was rejected by the pre-trial panel of the Maribor District Court.\n\n18.  On 17 October 2005 the applicant was examined as a witness before the Ljubljana District Court, which had been asked to carry out the witness examination because the applicant lived in the area. The examination resumed on 8 November 2005. Neither X nor his counsel was informed of this examination. The applicant testified in detail as to when, where and how the alleged offences had taken place. She first described the assault which had occurred in X’s house, while she had been sleeping there, reiterating that X had been disturbed by his son. According to the applicant’s statement, the second assault had occurred when, instead of driving the applicant home, X had parked in the woods and started to kiss her forcefully. X had then undressed the applicant, parted her legs with one hand and held her wrists with the other and again attempted to have intercourse with her, but there had been no penetration. The applicant further recounted that X had on another occasion taken her to the family’s abandoned workshop and had performed oral sex on her. She stated that she had attempted to free herself of his grip, but that X had again pinned her wrists down and also slapped her across the face. Again, vaginal intercourse had been attempted but had not actually occurred. X had ordered her not to talk to anyone about this, or he would have her and her family deported from Slovenia. The applicant added that she remembered these three occasions well and the events had occurred just as she described them, and that there had been a number of other similar incidents between July and December 2001.\n\n19.  On 13 and 20 December 2005 X’s wife and another witness were examined by the investigating judge of the Maribor District Court.\n\n20.  On 13 January 2006 the Koper District Court, at the request of the Maribor District Court, examined witness D., who testified that the applicant had told her of the alleged rape.\n\n21.  On 14 April 2006 the investigating judge examined witness H., who was an employee of the company owned by X and his wife. H. testified that she had not seen X behaving improperly towards the applicant on the company’s premises.\n\n22.  On 16 May 2006 the investigating judge appointed an expert in gynaecology, B., in order to establish the probability that the applicant had engaged in sexual intercourse in the period between July and December 2001. The latter carried out a consultation with the applicant, who refused a clinical examination. She told B., among other things, that despite the attempts made by X there had been no actual sexual penetration. During the consultation, B. confronted the applicant with an orthopaedics report stating that X could not have used his left arm in the ways described by her, to which the applicant answered that she had seen X use it to lift heavy items. B. also presented the applicant with the police report stating that she had not been able to give a detailed account of the sexual assaults and specific locations, and asked her why she had not defended herself against X, for instance by scratching or biting. The applicant replied that she had not defended herself and had been unable to do so. On 19 June 2006 the expert prepared his report, which was based on the evidence in the file, including a gynaecological report from 2002 which showed that the applicant’s hymen was intact at that time, and the conversation with the applicant. He found that there was nothing to indicate with certainty that the applicant had had sexual intercourse with X at the material time. In addition to his medical opinion, the expert commented that there were certain inconsistencies in the applicant’s account of the events in issue. It can be seen from the report that neither of the alleged inconsistencies was related to any medical issue.\n\n23.  On 20 June 2006 the investigating judge appointed an expert in clinical psychology, R. The latter, after holding a consultation with the applicant, submitted her report on 4 July 2006, and concluded as follows:\n\n“Since 2001 Y. has shown all the symptoms of a victim of sexual and other kinds of abuse (emotional, behavioural and physical symptoms) ...\n\nIn addition to the emotional consequences, the girl shows very typical behavioural patterns relating to the abuse experienced by her, and also some physical symptoms (disturbed sleep, nightmares, collapsing). The symptoms are indicated in the report ...\n\nThe gravity of the consequences – physical and sexual in particular – is difficult to assess at the present time. But, like the short-term ones, the long-term consequences can be predicted. Their real extent will become apparent at key stages of the girl’s life and in stressful situations ...\n\nBecause of these effects, which are most serious in her psychological sphere ... it is of very marginal importance whether during the perpetrator’s violent behaviour the child victim experienced hymen defloration or not ...\n\nSexual behavioural patterns can only be assessed properly by an expert in clinical psychology ...”\n\n.  On 15 September 2006 the Maribor district prosecutor’s office indicted X for sexual assault of a child below the age of fifteen under Article 183 §§ 1 and 2 of the Criminal Code. An objection by X to the indictment was rejected by the pre-trial panel of the Maribor District Court on 20 October 2006.\n\nD.  The trial\n\n25.  The Maribor District Court scheduled a hearing for 27 June 2007. However, the hearing was adjourned at X’s request on the basis of a document which showed that he was now on sick leave for several weeks.\n\n26.  A hearing was then scheduled for 3 October 2007, but adjourned at X’s counsel’s request. The next hearing was to be held on 12 November 2007. However, owing to the absence of a jury member, the hearing was adjourned. Subsequently, X informed the court that he was about to go on a business trip, for which reason the next hearing was postponed until 16 January 2008.\n\n27.  On 16 January 2008 X failed to appear before the court. On 17 January 2008 he submitted a sick-leave certificate.\n\n28.  On 25 January 2008 X’s counsel informed the court that X had revoked his power of attorney and that he would be represented by another lawyer, M., from then on. However, the court received no new power of attorney authorising M. to act as X’s counsel. Since X was accused of a criminal offence requiring mandatory representation, on 28 January 2008 the court appointed M. as counsel for X .\n\n29.  On 14 March 2008 the court held a hearing, from which the public was excluded on the grounds of protection of privacy and public morals. The court heard evidence from X. At the hearing the applicant’s counsel sought to have M., X’s counsel, disqualified on the ground that in 2001 the applicant and her mother had sought advice from him on the matters in issue. Furthermore, the applicant’s mother had been intimately involved with him. M. denied that he had ever seen the applicant or her mother and said that he only knew that the lawyer at whose firm he had been working at that time had represented the applicant’s mother’s estranged husband in divorce proceedings. The panel dismissed the application, ruling that no statutory grounds existed for disqualifying M. as counsel.\n\n30.  On 14 March 2008 X submitted written pleadings, claiming that he would have been unable to use physical force on the applicant, as his left arm had been seriously disabled since birth and was 15 cm shorter than his right arm. X alleged that he had practically no use of his disabled arm. Moreover, he asserted that he and his family had been helping the applicant and her sister to integrate into their new community and learn Slovene, while their mother had been busying herself with her private activities. According to X, the charges of sexual assault were prompted by the applicant’s mother, who wished to extort money from him.\n\n31.  On 14 April 2008 the court held a second hearing in the case. X was questioned by the State prosecutor, mostly about the use of his left arm, and in this connection conceded that, although he usually drove automatic cars, he did occasionally drive a smaller manual transmission car. However, when asked whether he had ever driven a truck, X replied that this had no bearing on the case, acknowledging nevertheless that he had a licence to drive all categories of road vehicles. Then the applicant was summoned to testify, the court granting her request for X to be absent from the hearing room. While recounting the instances of sexual abuse by X, the applicant cried repeatedly and the hearing was adjourned for a few minutes on that account. X’s counsel M. then questioned the applicant, asking her how tall she had been and how much she had weighed at the material time. The applicant became very agitated and asked M. why, having been the first to hear her story, he was asking those questions and was now acting as X’s counsel. M. commented that this was part of the tactics. The hearing was then adjourned owing to the applicant’s distress.\n\n32.  On 9 May 2008 the court held a third hearing. The questioning of the applicant continued in the absence of X. When asked how she felt about the situation with hindsight, she cried and said that no one had helped her and that the proceedings had been dragging on for several years, during which she had had to keep reliving the trauma.\n\n33.  On 27 August 2008 the applicant lodged a supervisory appeal under the Protection of the Right to a Hearing without Undue Delay Act of 2006 (hereinafter “the 2006 Act”) with a view to accelerating the proceedings.\n\n34.  On 26 September 2008 the court held a fourth hearing, from which the public was excluded, at which X personally asked the applicant over a hundred questions, starting with a comment in the form of a question “Is it true that you have told and showed me that you could cry on cue and then everybody would believe you?” It does not appear from the record of the hearing that the applicant made any reply. X then asked the applicant a series of questions aimed at proving that they had seen each other mainly at gatherings of their families or when the applicant, in need of transport or other assistance, had actively sought his company. Among the questions asked by X were the following: “Is it true that I could not have abused you on the evening of the event as you stated on 14 April?”, “Is it true that if I had wished to satisfy my sexual needs, I would have called you at least once?”; “Why did you call me in September and ask me to take you out of town if I had already raped you five times before that date?”, “Why were you calling me, because I certainly never called you?”, or “Is it true that you specifically asked that we drive out of town alone, because you wished to talk to me and to celebrate your success at a beauty pageant?” The applicant insisted that she had not called X, nor had she initiated any outings with him, but that he had called her. X also asked the applicant whether she had told him that, once she had a boyfriend, she would always be on top, as she wanted to be the mistress.\n\n35.  Moreover, X claimed that the charges of rape were fabrications by the applicant’s mother. Hence, he asked the applicant numerous questions about her mother, including about her knowledge of Slovene, her work, and her personal relationships. Further, X confronted the applicant with the medical report which indicated that his left arm was seriously disabled. The applicant insisted that she had seen X using his left arm in his daily life, including driving cars, lifting and carrying his children and their school bags, and carrying boxes and bottles. Throughout the questioning, X disputed the accuracy and credibility of the applicant’s answers, extensively commenting on the circumstances described by her and rejecting her version of events. He continued to do so even after the presiding judge explained to him that he would have the opportunity to make his comments after the applicant’s questioning.\n\n36.  During the cross-examination, X repeated a number of questions and was eventually warned against doing this by the presiding judge. Moreover, the presiding judge ruled out of order seven questions that she perceived had no bearing on the case in issue.\n\n37.  On three occasions, when the applicant became agitated and started crying, the court ordered a short recess. After one of these recesses X asked the applicant whether she would feel better if they all went to dinner, just as they used to, and maybe then she would not cry so much.\n\n38.  At one point the applicant requested the court to adjourn the hearing as the questions were too stressful for her. However, after being told by X that the next hearing could not be held until after 19 November 2008 when he would be back from a business trip, the applicant said, while crying, that he should continue with his questioning as she wanted to get it over with. Eventually, after four hours of cross-examination of the applicant, the presiding judge adjourned the hearing until 13 October 2008.\n\n39.  X’s wife, mother-in-law and an employee of his company were examined at the next hearing, all three of them asserting that X had very little use of his left arm and certainly could not lift any burdens.\n\n40.  On 24 November 2008 a sixth hearing was held. The questioning of the applicant by X took an hour and a half. When questioned by X’s counsel M., the applicant again asserted that she had told him the whole story a long time ago. M. denied this, stating that if he had been informed he would have advised the applicant to go to hospital and to the police. Once the applicant’s questioning was over, her mother was questioned, mostly about her private relationships.\n\n41.  At the end of the hearing X’s counsel M. confirmed that he had encountered the applicant’s mother when he was working at a law firm with a lawyer who had represented her in certain court proceedings. He also stated that he would inform the court within three days as to whether he would request leave to withdraw from representing X in the proceedings in issue. On 25 November 2008 M. requested leave from the court to withdraw from the case, as he had been personally affected by certain statements made by the applicant’s mother.\n\n42.  At a hearing of 15 December 2008 the court dismissed the request by X’s counsel M., finding that there were no statutory grounds disqualifying him from representing M. The gynaecologist, B., was examined as a witness. He acknowledged that in order to clarify the circumstances he had also addressed certain issues in his report that had not been part of the investigating judge’s request. Moreover, he reiterated that the applicant’s hymen had been intact at the material time.\n\n43.  On 22 January 2009 the court held an eighth hearing in the case and examined the expert in clinical psychology, R., who again stated that sexual abuse which had happened long ago could not be proved by any material evidence, and that only the psychological consequences could be assessed. She further reiterated that the applicant displayed clear symptoms of sexual abuse.\n\n44.  On 20 February 2009 the court appointed T., another expert in gynaecology, to give an opinion on whether the applicant could have had sexual intercourse at the material time, given the results of her medical examination (see paragraph 11 above). On 10 March 2009 the expert submitted his report, which stated that those results were not inconsistent with the applicant’s account of the events in issue.\n\n45.  On 16 March 2009 the court held a hearing at which it appointed N., an expert in orthopaedics, to prepare an opinion as to whether, in view of his disabled left arm, X could have performed the acts described by the applicant.\n\n46.  On 5 May 2009 N. submitted his report, in which he found that X’s left arm was severely disabled, and that for those reasons some of the events could not have happened in the way described by the applicant.\n\n47.  On 8 June 2009 the court held a hearing at which N. was questioned. Further to questions put by the applicant’s counsel, N. explained that he had based his opinion on the documents in X’s medical file, the X-rays brought to him by X, and an examination of X.\n\n48.  A hearing was held on 9 July 2009. The applicant requested that N. be questioned further.\n\n49.  On 29 September 2009 the court held the twelfth and last hearing in the case. At the hearing the applicant and the State Prosecutor questioned N., who stated, inter alia, that X could only use his left arm to assist the right arm in carrying out specific tasks, and that he had practically no strength in his left arm. In the expert’s opinion, X would not have been able to spread the applicant’s legs with his left arm, and neither would he have been able to take off his trousers as alleged by her. After being asked by the prosecutor whether his assessment was based on the assumption that the applicant had used all her strength to resist X, N. stated: “I did not base my conclusion on that assumption, as I did not know whether she had resisted or whether she had willingly submitted.” After being asked whether the applicant, who was 14 years old at the time, could have resisted X, who had allegedly been lying on top of her, he said he believed so. N. also testified that although X had more than ordinary strength in his right arm, he could not have assaulted the applicant in the way she alleged.\n\n50.  After the examination of N., the applicant, who had sought and obtained an opinion from another orthopaedist outside the court proceedings which indicated that X might still have limited use of his left arm, asked for another orthopaedics expert to be appointed, on the grounds that there was doubt about N.’s conclusions. This request was rejected by the court as unnecessary, as was the applicant’s request for the court also to call as witnesses her sister and her mother’s former husband, who had allegedly seen X rowing with both arms. A request by the prosecutor for the applicant to be examined again was also rejected.\n\n51.  At the end of the hearing the court pronounced judgment, acquitting X of all charges. In view of this verdict, the court recommended that the applicant pursue her claim for damages, which she had submitted in the course of the proceedings, before the civil court.\n\n52.  On 15 December 2009 the applicant lodged a new supervisory appeal under the 2006 Act. On 22 December 2009 she received a reply from the court informing her that the reasoning of the judgment had been sent to her that day.\n\n53.  In the written grounds the court explained that the expert orthopaedics report contested X’s ability to carry out certain acts described by the applicant, for which he would have had to use both arms. As explained by the expert, X was not capable of even moving his left hand in a position which would have allowed him to take his trousers off or spread the applicant’s legs. According to the court, the fact that some of the applicant’s allegations were disproved by the expert raised some doubts as to her entire version of the events. On the basis of the principle that any reasonable doubt should benefit the accused (in dubio pro reo), the court had acquitted X. As regards the report by the expert in psychology R., which found that the applicant had suffered sexual abuse, the court noted that it could not ignore the judgment delivered in another set of proceedings concerning the applicant’s mother’s estranged husband, in which the competent court had accepted that he had engaged in sexual activity in front of the applicant and her sister and had also behaved inappropriately towards the applicant.\n\n54.  On 30 December 2009 the State Prosecutor lodged an appeal, in which she criticised the court for not considering the fact that owing to his age, gender and body mass X was much stronger than the applicant, and was also in a position of power on account of his economic and social status. Moreover, she pointed out that X had operated manual transmission vehicles, which required him to use both his arms. The prosecutor further argued that the criminal offence in question did not require the sexual act to have been committed by force; it was sufficient that the applicant opposed it. She also stressed that the proceedings had already been pending for eight years, which had aggravated the trauma suffered by the applicant.\n\n55.  The appeal was dismissed by the Maribor Higher Court on 26 May 2010, which found that the reasoning of the first-instance court’s judgment was clear and precise regarding the doubt that X had committed the alleged criminal acts.\n\n56.  The applicant subsequently asked the Supreme State Prosecutor to lodge a request for the protection of legality (an extraordinary remedy). On 28 July 2010 the Supreme State Prosecutor informed the applicant that the aforementioned request could only concern points of law and not the facts, which the applicant had called into question.\n\nE.  Compensation for delays in the criminal proceedings\n\n57.  On 11 February 2011 the applicant and the Government reached an out-of-court settlement under the 2006 Act in the amount of 1,080 euros (EUR), covering all pecuniary and non-pecuniary damage incurred by the applicant as a result of a violation of her right to a trial without undue delay in the criminal proceedings in issue. The applicant also received EUR 129.60 in respect of the costs incurred in the proceedings.\n\nII.  RELEVANT LAW AND PRACTICE\n\nA.  Relevant domestic criminal law\n\n58.  Article 183 §§ 1 and 2 of the Criminal Code regulating the criminal offence of sexual assault on a person younger than 15 years, as in force at the material time, reads as follows:\n\n“(1) A person who engages in sexual intercourse or any other sexual act with a person of the opposite or same sex who is not yet fifteen years old, and where the maturity of the perpetrator and that of the victim are obviously disproportionate, shall be punished with imprisonment of one to eight years.\n\n(2) A person who commits the above act against a person who is not yet ten years old, or against a vulnerable person who is not yet fifteen years old, or by using force or threat to life or limb, shall be punished with imprisonment of three years or more ...”\n\n.  Section 148 of the Criminal Procedure Act, as in force at the material time, provides that the police, having concluded the preliminary investigation of an alleged criminal offence, will draw up a criminal complaint based on the information collected and send it to the State Prosecutor’s Office. However, even if the information gathered does not appear to provide any grounds for such a criminal complaint to be made, the police must submit a report on their actions to the State Prosecutor.\n\n.  As regards the protection of under-age victims of criminal offences of a sexual nature during judicial investigations, the Criminal Procedure Act includes a number of provisions aimed at protecting under-age victims of or witnesses to criminal proceedings. In proceedings regarding criminal offences against sexual integrity, minors must, from the initiation of the criminal proceedings onwards, have counsel to protect their rights. Under-age victims who have no lawyer are assigned one by the trial court. Moreover, the defendant cannot be present during the examination of witnesses below the age of 15 years who claim to be victims of criminal offences against sexual integrity. In this regard, section 240 of the Act provides that minors, especially those who have been affected by the criminal offence, should be examined with consideration for their age, to avoid any harmful effects on their mental state.\n\n61.  In order to ensure the smooth running of a judicial investigation, the parties and the victim may, under section 191 of the Criminal Procedure Act 1994, complain to the president of the court charged with the investigation about any delays or other irregularities. Upon the examination of the complaint, the president is required to inform the complainant of any steps taken in this regard.\n\n62.  As to the time frame for scheduling a criminal trial, section 286(2) of the Criminal Procedure Act provides that the presiding judge shall schedule a first hearing within two months of receipt of an indictment. If he fails to do so, he must inform the president of the court accordingly, and the latter is required to take the necessary steps to schedule a hearing.\n\n63.  As regards the conduct of the hearing, section 295 of the Criminal Procedure Act provides that the public may be excluded from the hearing if so required, for example for the protection of the personal or family life of the defendant or the victim. In accordance with section 299 of the Act, the presiding judge conducts the hearing, grants the parties the right to address the court, and questions the defendant, witnesses and experts. Moreover, it is the presiding judge’s duty to ensure that the case is presented fully and clearly, that the truth is established, and that any obstacles protracting the proceedings are eliminated.\n\n64.  The defendant may be temporarily removed from the courtroom if a witness refuses to testify in his presence. The witness’s statement is then read to him and he is entitled to put questions to him or her. Nonetheless, pursuant to section 334(2) of the Criminal Procedure Act the presiding judge will prohibit any questions that have already been asked, that bear no relation to the case, or that in themselves suggest how they should be answered.\n\nB.  Relevant domestic civil law and practice\n\n1.  Civil action for compensation\n\n65.  Article 148 of the Code of Obligations regulating the liability of legal persons for damage inflicted by one of their subsidiary bodies, which also applies to the determination of the State’s liability for damages, provides that a legal person is liable for damage inflicted on a third party by one of its subsidiary bodies in the exercise of its functions or in connection therewith. In order for a claimant to be awarded compensation for damage inflicted by the State, he or she is required to prove all four elements of the State’s liability, that is, unlawfulness of the State’s action, existence of damage, causal link, and negligence or fault on the part of the State.\n\n66.  By virtue of Article 179 of the Code of Obligations, which constitutes the statutory basis for awarding compensation for non-pecuniary damage, such compensation may be awarded in the event of the infringement of a person’s personality rights, as well as for physical distress, mental distress suffered due to the reduction of life activities, disfigurement, defamation, death of a close relative, or fear, provided that the circumstances of the case, and in particular the level and duration of the distress and fear caused thereby, justify an award.\n\n67.  According to the decision of the Supreme Court no. II Ips 305/2009, an award of compensation for non-pecuniary damage is strictly limited to the categories of damage specified in the Code of Obligations, adhering to the principle of numerus clausus. The Supreme Court thus decided that non-pecuniary damage resulting from excessive length of proceedings could not be classified among the categories of damage recognised by the Code of Obligations, as the right to trial within a reasonable time could not be interpreted as a personality right.\n\n2.  Protection of the Right to a Hearing without Undue Delay Act of 2006 (“the 2006 Act”)\n\n68.  Under section 1 of the 2006 Act, any party to court proceedings – including a victim of a criminal offence – is guaranteed the right to have his or her rights decided upon by the court without undue delay.\n\nC.  Relevant international law\n\n69.  The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power adopted by the United Nations General Assembly resolution 40/34 of 29 November 1985 provides that victims of crime should be treated with compassion and respect for their dignity (Annex, Article 4). Moreover, the responsiveness of judicial and administrative processes to the needs of victims should be facilitated by, inter alia, taking measures to minimise inconvenience to victims, protecting their privacy when necessary, and ensuring that they and their families and witnesses on their behalf are protected from intimidation and retaliation (Annex, Article 6 (d)).\n\n70.  Victims of criminal offences further enjoy protection under the legislation of the European Union. In 2001, a Council Framework Decision on the standing of victims in criminal proceedings (2001/220/JHA) was adopted with a view to introducing minimum standards on the rights and protection of victims of crime. Article 2 of the Framework Decision requires the Member States to ensure that victims have a real and appropriate role in its criminal legal system and that they are treated with due respect for the dignity of the individual during proceedings. Moreover, Article 3 provides that victims must be afforded the possibility to be heard during proceedings and to supply evidence; however, appropriate measures must be taken to ensure that they are questioned by the authorities only in so far as necessary for the purpose of criminal proceedings. Article 8 requires the Member States to provide a number of measures aimed at protecting the victims’ safety and privacy in the criminal proceedings. Among others, measures must be taken to ensure that contact between victims and offenders within courts premises may be avoided, unless such is required in the interests of the criminal proceedings. Also, the Member States must ensure that, where there is a need to protect victims – particularly those most vulnerable – from the effects of giving evidence in open court, they may be entitled to testify in a manner which enables this objective to be achieved, by any appropriate means compatible with its basic legal principles.\n\n71.  Moreover, the EU Member States’ ambition to reinforce the rights of the victims of crime led to the adoption, on 25 October 2012, of the Directive of the European Parliament and of the Council (2012/29/EU) establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA. The relevant part of the Directive, which is to be implemented into the national laws of the EU Member States by 16 November 2015, provides as follows:\n\n“A person should be considered to be a victim regardless of whether an offender is identified, apprehended, prosecuted or convicted and regardless of the familial relationship between them ...”\n\n“Without prejudice to the rights of the defence and in accordance with rules of judicial discretion, Member States shall ensure that during criminal investigations:\n\n(a)  interviews of victims are conducted without unjustified delay after the complaint with regard to a criminal offence has been made to the competent authority;\n\n(b)  the number of interviews of victims is kept to a minimum and interviews are carried out only where strictly necessary for the purposes of the criminal investigation;\n\n...\n\n(d)  medical examinations are kept to a minimum and are carried out only where strictly necessary for the purposes of the criminal proceedings.”\n\n“1.  Member States shall ensure that victims receive a timely and individual assessment, in accordance with national procedures, to identify specific protection needs and to determine whether and to what extent they would benefit from special measures in the course of criminal proceedings, as provided for under Articles 23 and 24, due to their particular vulnerability to secondary and repeat victimisation, to intimidation and to retaliation.\n\n2.  The individual assessment shall, in particular, take into account:\n\n(a)  the personal characteristics of the victim;\n\n(b)  the type or nature of the crime; and\n\n(c)  the circumstances of the crime.\n\n3.  In the context of the individual assessment, particular attention shall be paid to victims who have suffered considerable harm due to the severity of the crime; victims who have suffered a crime committed with a bias or discriminatory motive which could, in particular, be related to their personal characteristics; victims whose relationship to and dependence on the offender make them particularly vulnerable. In this regard, victims of terrorism, organised crime, human trafficking, gender-based violence, violence in a close relationship, sexual violence, exploitation or hate crime, and victims with disabilities shall be duly considered.\n\n...”\n\n“1.  Without prejudice to the rights of the defence and in accordance with rules of judicial discretion, Member States shall ensure that victims with specific protection needs who benefit from special measures identified as a result of an individual assessment provided for in Article 22(1), may benefit from the measures provided for in paragraphs 2 and 3 of this Article. A special measure envisaged following the individual assessment shall not be made available if operational or practical constraints make this impossible, or where there is a an urgent need to interview the victim and failure to do so could harm the victim or another person or could prejudice the course of the proceedings.\n\n2.  The following measures shall be available during criminal investigations to victims with specific protection needs identified in accordance with Article 22(1):\n\n...\n\n(b)  interviews with the victim being carried out by or through professionals trained for that purpose;\n\n...\n\n3.  The following measures shall be available for victims with specific protection needs identified in accordance with Article 22(1) during court proceedings:\n\n(a)  measures to avoid visual contact between victims and offenders including during the giving of evidence, by appropriate means including the use of communication technology;\n\n(b)  measures to ensure that the victim may be heard in the courtroom without being present, in particular through the use of appropriate communication technology;\n\n(c)  measures to avoid unnecessary questioning concerning the victim’s private life not related to the criminal offence; and\n\n(d)  measures allowing a hearing to take place without the presence of the public.”\n\n72.  On 5 May 2011 the Council of Europe adopted the Convention on Preventing and Combating Violence against Women and Domestic Violence, which entered into force on 1 August 2014. The Convention was signed by Slovenia on 8 September 2011, but has not yet been ratified. The relevant part of the Convention provides as follows:\n\n“1.  Parties shall take the necessary legislative or other measures to ensure that investigations and judicial proceedings in relation to all forms of violence covered by the scope of this Convention are carried out without undue delay while taking into consideration the rights of the victim during all stages of the criminal proceedings.\n\n2.  Parties shall take the necessary legislative or other measures, in conformity with the fundamental principles of human rights and having regard to the gendered understanding of violence, to ensure the effective investigation and prosecution of offences established in accordance with this Convention.”\n\n“Parties shall take the necessary legislative or other measures to ensure that, in any civil or criminal proceedings, evidence relating to the sexual history and conduct of the victim shall be permitted only when it is relevant and necessary.”\n\n“1.  Parties shall take the necessary legislative or other measures to protect the rights and interests of victims, including their special needs as witnesses, at all stages of investigations and judicial proceedings, in particular by:\n\n(a)  providing for their protection, as well as that of their families and witnesses, from intimidation, retaliation and repeat victimisation;\n\n(b)  ensuring that victims are informed, at least in cases where the victims and the family might be in danger, when the perpetrator escapes or is released temporarily or definitively;\n\n(c)  informing them, under the conditions provided for by internal law, of their rights and the services at their disposal and the follow‐up given to their complaint, the charges, the general progress of the investigation or proceedings, and their role therein, as well as the outcome of their case;\n\n(d)  enabling victims, in a manner consistent with the procedural rules of internal law, to be heard, to supply evidence and have their views, needs and concerns presented, directly or through an intermediary, and considered;\n\n(e)  providing victims with appropriate support services so that their rights and interests are duly presented and taken into account;\n\n(f)  ensuring that measures may be adopted to protect the privacy and the image of the victim;\n\n(g)  ensuring that contact between victims and perpetrators within court and law enforcement agency premises is avoided where possible;\n\n(h)  providing victims with independent and competent interpreters when victims are parties to proceedings or when they are supplying evidence;\n\n(i)  enabling victims to testify, according to the rules provided by their internal law, in the courtroom without being present or at least without the presence of the alleged perpetrator, notably through the use of appropriate communication technologies, where available.\n\n2.  A child victim and child witness of violence against women and domestic violence shall be afforded, where appropriate, special protection measures taking into account the best interests of the child.”\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLES 3 AND 8 OF THE CONVENTION\n\n73.  The applicant complained under Articles 3 and 8 of the Convention that the criminal proceedings concerning the sexual assaults against her had been at variance with the respondent State’s positive obligation to provide effective legal protection against sexual abuse, as they had been unreasonably delayed, lacked impartiality, and had exposed her to several traumatic experiences by violating her personal integrity. Moreover, the applicant claimed not to have had an effective remedy in respect of her complaints, as required by Article 13 of the Convention.\n\n74.  Having regard to the nature and the substance of the above complaints, the Court considers that the alleged delays and bias of the domestic courts fall to be examined solely under Article 3 of the Convention (see P.M. v. Bulgaria, no. 49669/07, § 58, 24 January 2012), which reads as follows:\n\n“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”\n\n75.  The applicant’s remaining complaints regarding the lack of protective measures afforded to her in the criminal proceedings raise certain questions about the scope of the State’s obligation to protect victims of crime appearing as witnesses in criminal proceedings. In the specific circumstances of the present case, the Court takes the view that these issues should be considered under Article 8 of the Convention, which reads as follows:\n\n“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.\n\n2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”\n\nA.  Admissibility\n\n1.  Non-exhaustion of domestic remedies\n\n76.  The Government argued that the applicant had failed to exhaust domestic remedies because she had not brought an action against the State for compensation for non-pecuniary damage caused by the State authorities based on Articles 148 and 179 of the Code of Obligations. According to the Government, any unlawful conduct on the part of the authorities could potentially constitute a violation of an individual’s personality rights. In support of their submissions, they cited eight decisions of the Supreme Court adopted between 1999 and 2009, and three decisions of the Ljubljana Higher Court of 2010 and 2011, showing that the State had in some cases been found by the domestic courts to be liable for damages related to the work of its employees and the exercise of their powers. Moreover, the Government submitted several decisions of the Supreme Court, the Ljubljana Higher Court, and the Maribor Higher Court, adopted between 1992 and 2011, in which a wide range of rights, such as the rights to personal dignity, to physical and mental integrity, to family life, to a healthy living environment, to personal liberty, to respect for the deceased and to the inviolability of the home, had been considered personality rights by the courts, and their unlawful infringement had been found to cause mental distress warranting compensation.\n\n77.  The applicant challenged the Government’s arguments, observing that non-pecuniary damages could only be claimed under Article 179 of the Code of Obligations in cases falling under one of the categories listed therein, and that there was no indication that the domestic courts considered the positive obligations of the State as belonging to one of these categories or, specifically, as personality rights. The applicant pointed out that the case-law submitted by the Government was not relevant to her case, and concluded that the remedy proposed by the Government was not established in practice. Moreover, the applicant took the view that in cases such as hers the protection afforded by civil law was insufficient, since an award of compensation could not satisfy the procedural requirements of Articles 3 and 8 of the Convention.\n\n78.  The Court notes that the Government raised a similar objection of non-exhaustion of domestic remedies based on the alleged availability of a civil action for compensation already in W. v. Slovenia (no. 24125/06, §§ 75-77, 23 January 2014). In that case, the Court found that all of the domestic decisions advanced by the Government related to substantive rights and not to rights arising from the State’s positive obligation to conduct an effective investigation and criminal trial. Thus, it held that the action for compensation had not offered the applicant reasonable prospects of success, and rejected the Government’s objection. Having regard also to the strict interpretation of categories of legally recognised non-pecuniary damage in the jurisprudence of the domestic courts (see paragraph 67 above), the Court sees no reason to depart from the conclusion reached in W. v. Slovenia.\n\n79.  Neither is the Court convinced that an action for compensation against the State offered the applicant effective relief in respect of the full range of her complaints of psychological trauma incurred as a result of her personal cross-examination by the defendant, the participation in the proceedings of the defendant’s counsel who had allegedly previously been consulted by her on the same matter, and the allegedly inappropriate questioning by the expert in gynaecology. In this connection, the Court notes that in domestic compensation proceedings the applicant would have been required to prove, among other things, that the alleged deficiencies were unlawful in terms of domestic law in order to be entitled to compensation (see paragraph 66 above, and L.M. v. Slovenia, no. 32863/05, §§ 168-69, 12 June 2014). However, it appears that the involvement of the defendant’s counsel in the proceedings was not contrary to domestic law (see paragraphs 29 above and 91 below). Moreover, the case-law submitted by the Government does not indicate whether the scope of the State’s liability extends to the conduct of court-appointed expert witnesses.\n\n80.  Having regard to the foregoing considerations, the Court rejects the Government’s objection of non-exhaustion of domestic remedies.\n\n2.  Lack of victim status\n\n.  The Government argued that the applicant was precluded from raising the issue of promptness of the investigation and the ensuing trial, as an out-of-court settlement had been reached awarding her compensation under the 2006 Act (see paragraph 57 above).\n\n82.  The applicant pointed out that the settlement concerned only a violation of her rights under Article 6 of the Convention, and that the 2006 Act did not apply to complaints of violations of the rights protected under Articles 3 and 8 of the Convention.\n\n83.  Although the Court does not exclude the possibility that the compensation awarded pursuant to this Act – which is in principle aimed at remedying violations of the right to trial within a reasonable time – may provide effective redress for the breach of the State’s procedural requirements under other Convention provisions (see W. v. Slovenia, cited above, § 76), it does not appear that in the present case the breach of Article 3 was acknowledged at the domestic level (see, conversely, ibid., § 78). Moreover, it is not clear whether the compensation only applied to the trial stage of the proceedings or also covered the investigation stage. In this light, the Court considers that the award of compensation did not deprive the applicant of her victim status with regard to the delays in the criminal proceedings.\n\n3.  Conclusion\n\n84.  The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n1.  The parties’ submissions\n\n85.  The applicant alleged that the investigation of the sexual assaults on her and the ensuing judicial proceedings had been unreasonably delayed and ineffective, the authorities having been biased against her due to her Ukrainian origin. Firstly, she contended that the Maribor Police had left the investigation of her complaints dormant for a year, and had only sent a report to the Maribor District State Prosecutor’s Office when urged to do so by the Prosecutor’s Office. Moreover, the Maribor District Court had not conducted the trial in compliance with the time-limits set out in the domestic legislation. In this connection, the applicant also maintained that it had not been her responsibility to attempt to accelerate the course of judicial proceedings.\n\n86.  Secondly, the Maribor District Court had refused to call important witnesses or to appoint a new expert in orthopaedics in order to clarify whether X’s disability had in fact prevented him from performing the acts of force alleged by the applicant. Also, the court had lacked impartiality, relying predominantly on the orthopaedics report, which was based on the assumption that the applicant had been capable of actively defending herself. Moreover, that report was at variance with certain other evidence showing that X may not have been completely without the use of his left arm.\n\n87.  Further, the applicant complained that the State had failed to protect her personal integrity during the proceedings. In this connection, she asserted that the expert in gynaecology B. had exceeded the scope of his duty and, instead of answering the investigating judge’s question regarding the probability of sexual intercourse, had set out to discover whether a criminal offence had been committed, asking the applicant a number of questions which had put her in the position of having to defend herself against him (see paragraph 22 above).\n\n88.  Moreover, although the applicant had been questioned during the investigation, she had subsequently had to testify at four hearings before the Maribor District Court at which the defendant had been allowed personally to torment her with numerous provocative and repetitive questions, despite the fact that he was legally represented and those questions could have been asked by his counsel. This questioning had caused her intense psychological suffering; she had felt frustrated, humiliated and helpless. Moreover, the defendant had been represented by a lawyer to whom she had previously spoken about the events in issue and was therefore in a position to misuse or even abuse the information received. In this connection, the applicant, relying on the Court’s case-law, and in particular the judgments in the cases of Doorson v. the Netherlands (26 March 1996, Reports of Judgments and Decisions 1996II); Van Mechelen and Others v. the Netherlands (23 April 1997, Reports 1997III); and S.N. v. Sweden (no. 34209/96, ECHR 2002V), maintained that the domestic legislation did not provide for the accused’s rights of defence under Article 6 of the Convention to be weighed against the personal integrity and privacy of the victims protected by Articles 3 and 8. According to the applicant, her trauma had caused her severe and permanent psychological difficulties which had also led to her immune system being compromised. Lastly, the applicant complained that the domestic legislation had not afforded her an effective remedy in respect of her complaints.\n\n89.  The Government argued that the investigation of the alleged sexual assaults on the applicant and the ensuing trial had been effective. The police had questioned the applicant and X, as well as all the relevant witnesses, and, according to the Government, there was no proof that the criminal complaint would not have been forwarded to the Prosecutor’s Office had it not been for the latter’s intervention. The judicial investigation had been duly conducted and followed by an indictment against X.\n\n90.  The Government also maintained that the trial had been conducted without bias. With regard to the orthopaedics report allegedly contradicted by other evidence, they pointed out that the report had been based on medical documentation and a clinical examination of X, and had contained no contradictions or deficiencies capable of raising doubts as to its accuracy. Since the alleged acts of sexual abuse had not been seen by any witnesses, nor had they been supported by the results of gynaecological examinations, the Maribor District Court had acquitted X. While it was true that the applicant had shown symptoms of sexual abuse, the court could not disregard the fact that another set of criminal proceedings had been pending at the time against another person suspected of having sexually abused the applicant, which had not been taken into account in the preparation of the opinion by the expert in psychology. Secondly, the Government argued that the expert in gynaecology had not “questioned” the applicant, but had had a conversation with her outside the court hearing. In the Government’s opinion, the applicant could have asked for the expert to be sanctioned if she had believed that he was not performing his work in an appropriate manner.\n\n91.  Further, as regards X’s court-appointed counsel M., the Government argued that, X having been entitled to mandatory representation, the Maribor District Court had followed the statutory provisions regulating court-ordered appointments. Moreover, in her application to have M. disqualified from representing X the applicant had failed to adduce any grounds which, under the domestic law, would justify a decision in her favour; thus, the court had had no duty to hear the parties on the matter. The Government added that the fact that M. had once worked for a law firm representing the applicant’s mother’s husband in divorce proceedings did not give rise to the conclusion that M. should not have defended X.\n\n92.  Moreover, the Government asserted that a number of measures had been adopted, both during the investigation and at the trial, in order to prevent aggravation of the applicant’s trauma. During the investigation, the applicant had been questioned in the absence of X and his counsel. Thus, the trial hearing had been the first opportunity for the defendant to put questions to the applicant, and consideration had to be given to the fact that she had been the only witness to X’s alleged criminal acts. In this connection, the Government were of the view that the applicant’s case had not warranted a limitation of the defendant’s rights of defence to the extent that would prevent him from cross-examining her. They pointed out that the present case differed from Doorson, Van Mechelen and Others and S.N. v. Sweden, as the applicant’s safety had not been at stake, nor had she been a minor. However, the Government emphasised that the Maribor District Court had excluded the public from the hearing and removed X from the courtroom during the applicant’s testimony. After the applicant had given her testimony, the court had granted her request for the defendant to cross-examine her at the next hearing.\n\n93.  In this connection, the Government pointed out that X had not been allowed to ask the applicant certain questions that were not related to the case or were otherwise prohibited. Moreover, the court had on several occasions ordered breaks to be taken during the applicant’s cross-examination; the Government asserted that the applicant could have requested further breaks if she had considered that necessary. Also, the applicant had been represented by a lawyer throughout the proceedings.\n\n94.  Lastly, as regards the delays in the proceedings the Government pointed out that during the investigation stage of the proceedings the applicant could have complained about the delays to the president of the competent court (see paragraph 61 above), but had not done so. The Government did, however, acknowledge that the applicant had lodged two supervisory appeals under the 2006 Act (see paragraphs 33 and 52 above). The Maribor District Court had responded appropriately on both occasions: the first time a hearing had been scheduled within a month, while the second time the reasoning of the judgment had been prepared and sent to the applicant within a few days of the appeal. It was true that the trial hearing had been adjourned nine times for various reasons; however, only the first time had the hearing been adjourned for a longer period, and this had been on account of X’s illness. The Government further maintained that the large quantity of evidence that needed to be taken had also contributed to the overall duration of the trial.\n\n2.  The Court’s assessment\n\n95.  The relevant principles concerning the State’s obligation inherent in Article 3 of the Convention to investigate cases of ill-treatment, and in particular sexual abuse, committed by private individuals, are set out in M.C. v. Bulgaria (no. 39272/98, §§ 149, 151 and 153, ECHR 2003XII).\n\n96.  As regards the Convention requirements relating to the effectiveness of an investigation, the Court has held that it should in principle be capable of leading to the establishment of the facts of the case and to the identification and punishment of those responsible. This is not an obligation of result, but one of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, such as witness testimony and forensic evidence, and a requirement of promptness and reasonable expedition is implicit in this context (see Denis Vasilyev v. Russia, no. 32704/04, § 100, 17 December 2009, with further references). The promptness of the authorities’ reaction to the complaints is an important factor (see Labita v. Italy [GC], no. 26772/95, §§ 133 et seq., ECHR 2000-IV). Consideration has been given in the Court’s judgments to matters such as the opening of investigations, delays in identifying witnesses or taking statements (see Mătăsaru and Saviţchi v. Moldova, no. 38281/08, §§ 88 and 93, 2 November 2010), the length of time taken for the initial investigation (see Indelicato v. Italy, no. 31143/96, § 37, 18 October 2001), and unjustified protraction of the criminal proceedings resulting in the expiry of the statute of limitations (see Angelova and Iliev v. Bulgaria, no. 55523/00, §§ 101-103, 26 July 2007). Moreover, notwithstanding its subsidiary role in assessing evidence, the Court reiterates that where allegations are made under Article 3 of the Convention the Court must apply a particularly thorough scrutiny, even if certain domestic proceedings and investigations have already taken place (see Cobzaru v. Romania, no. 48254/99, § 65, 26 July 2007).\n\n97.  The applicant alleged that X’s acquittal was the result of the domestic courts’ bias against her, claiming that their findings were based on inaccurate assumptions and that they had neglected to call important witnesses. In this connection, the Court observes that the domestic courts were faced with the difficult task of having to decide on a sensitive issue of sexual abuse on the basis of irreconcilable statements and without any physical evidence supporting either the applicant’s or X’s version of the events. In the course of the investigation and the ensuing trial, the domestic authorities examined a number of witnesses and received three expert reports in attempts to elucidate the situation. While the two gynaecological reports neither confirmed nor disproved the applicant’s allegations (see paragraphs 22, 42 and 44 above), the other two expert reports resulted in contradictory conclusions. The expert in clinical psychology established that the applicant clearly showed symptoms of sexual abuse (see paragraphs 23 and 43 above). On the other hand, the expert in orthopaedics was of the view that, owing to his disability, X lacked sufficient strength to overpower the applicant. After weighing up that contradictory evidence, and having regard to the possibility that the applicant’s symptoms were caused by inappropriate conduct on the part of her mother’s former husband, the domestic courts were convinced by the opinion of the orthopaedics expert.\n\n98.  The Court notes that, contrary to the applicant’s argument, it does not appear that the expert’s conclusions relied on an assumption as to whether or not the applicant was able to resist actively (see paragraph 49 above), but rather on the limits of X’s physical abilities, the expert stating that X could not have used his left arm in some of the ways described by the applicant. Indeed, it appears that this opinion was decisive for the outcome of the trial; however, having regard to the considerable body of evidence considered by the first-instance court in addition to the statements made by the applicant and X (see paragraphs 39 and 43-49 above), and to the fact that it was essentially the latter’s word against the applicant’s, the Court does not consider it unreasonable that the Maribor District Court refused to admit additional evidence or that it considered objective medical evidence of X’s disability as a crucial factor in its assessment.\n\n99.  However, the Court notes with concern that the proceedings were marked by a number of longer periods of complete inactivity. Firstly, the police did not submit an incident report of the applicant’s complaint to the competent state prosecutor’s office until a full year after their investigation had been concluded, and only on being urged by the prosecutor to do so (see paragraphs 12-14 above). The State prosecutor then promptly requested that a judicial investigation be initiated against X (see paragraph 15 above); however, the investigating judge took twenty-one months to decide on the request (see paragraphs 16-17 above). Once the investigation was concluded, the trial hearing was scheduled eight months after the indictment against X had been confirmed (see paragraph 25 above), in contravention of the domestic procedural rules (see paragraph 62 above). However, owing to several adjournments the first hearing was actually held almost a year and a half after X had been indicted. In sum, more than seven years elapsed from the time the applicant lodged her complaint until the first-instance judgment was rendered. While it is not possible to speculate whether these delays, for which no justification has been put forward by the Government, prejudiced the outcome of the proceedings in any way, in the Court’s opinion they cannot be reconciled with the procedural requirement of promptness.\n\n100.  Accordingly, there has been a violation of the respondent State’s procedural obligations under Article 3 of the Convention.\n\n101.  The Court is called upon to examine whether in the criminal proceedings concerning alleged sexual assaults against the applicant the State afforded sufficient protection to her right to respect for private life, and especially for her personal integrity. Thus, what is in issue is not an act by the State, but the alleged lack or inadequacy of measures aimed at protecting the victim’s rights in the criminal proceedings. In this connection the Court reiterates that while the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this negative undertaking there may be positive obligations inherent in effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see X and Y v. the Netherlands, 26 March 1985, § 23, Series A no. 91).\n\n.  The boundary between the State’s positive and negative obligations under Article 8 does not lend itself to precise definition; the applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the relevant competing interests (see White v. Sweden, no. 42435/02, § 20, 19 September 2006).\n\n.  As regards the conflicts between the interests of the defence and those of witnesses in criminal proceedings, the Court has already held on several occasions that criminal proceedings should be organised in such a way as not to unjustifiably imperil the life, liberty or security of witnesses, and in particular those of victims called upon to testify, or their interests coming generally within the ambit of Article 8 of the Convention. Thus, the interests of the defence are to be balanced against those of witnesses or victims called upon to testify (see Doorson, cited above § 70). Notably, criminal proceedings concerning sexual offences are often conceived of as an ordeal by the victim, in particular when the latter is unwillingly confronted with the defendant. These features are even more prominent in a case involving a minor. Therefore, in such proceedings certain measures may be taken for the purpose of protecting the victim, provided that they can be reconciled with an adequate and effective exercise of the rights of the defence (see S.N. v. Sweden, cited above, § 47, and Aigner v. Austria, no. 28328/03, § 35, 10 May 2012).\n\n104.  In the cases hitherto before the Court, the question of whether the domestic authorities succeeded in striking a fair balance between the competing interests of the defence, especially the right of the accused set out in Article 6 § 3 (d) to call and cross-examine witnesses, and the rights of the victims under Article 8 was raised by the accused. Conversely, in the present case the Court is called upon to examine this issue from the perspective of the alleged victim. In addressing the question, the Court will take into account the criteria laid down in the relevant international instruments (see paragraphs 69-72 above). In this connection, the Court notes that the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence requires the Contracting Parties to take the necessary legislative and other measures to protect the rights and interests of victims. Such measures involve, inter alia, protection from intimidation and repeat victimisation, enabling victims to be heard and to have their views, needs and concerns presented and duly considered, and enabling them, if permitted by applicable domestic law, to testify in the absence of the alleged perpetrator. In addition, the EU Directive establishing minimum standards on the rights, support and protection of victims of crime provides, inter alia, that interviews with victims are to be conducted without unjustified delay and that medical examinations are to be kept to a minimum.\n\n105.  As regards the manner in which the applicant’s rights were protected in the criminal proceedings in issue, the Court observes, firstly, that her testimony at the trial provided the only direct evidence in the case. In addition, other evidence presented was conflicting, the psychologist’s report confirming sexual abuse being countervailed by the orthopaedics report. In this light, it must be reiterated that the interests of a fair trial required the defence to be given the opportunity to cross-examine the applicant, who by that time was no longer a minor. Nevertheless, it needs to be determined whether the manner in which the applicant was questioned struck a fair balance between her personal integrity and X’s defence rights.\n\n106.  In this connection the Court reiterates that, as a rule, the defendant’s rights under Article 6 §§ 1 and 3 (d) require that he be given an adequate and proper opportunity to challenge and question a witness against him either when he makes his statements or at a later stage of the proceedings (see Saïdi v. France, 20 September 1993, § 43, Series A no. 261C, and A.M. v. Italy, no. 37019/97, § 25, ECHR 1999-IX). Furthermore, the Court must be cautious in making its own assessment of a specific line of questioning, considering that it is primarily the role of the competent national authorities to decide upon the admissibility and relevance of evidence (see Schenk v. Switzerland, 12 July 1988, § 46, Series A no. 140, and Engel and Others v. the Netherlands, 8 June 1976, § 91, Series A no. 22). This being said, the Court has also already held that a person’s right to defend himself does not provide for an unlimited right to use any defence arguments (see, mutatis mutandis, Brandstetter v. Austria, 28 August 1991, § 52, Series A no. 211). Thus, since a direct confrontation between the defendants charged with criminal offences of sexual violence and their alleged victims involves a risk of further traumatisation on the latter’s part, in the Court’s opinion personal cross-examination by defendants should be subject to most careful assessment by the national courts, the more so the more intimate the questions are.\n\n107.  The applicant’s questioning stretched over four hearings (see paragraphs 31, 32, 34-38 and 40 above) held over seven months, a lengthy period, which, in the Court’s opinion, in itself raises concerns, especially given the absence of any apparent reason for the long intervals between the hearings. Moreover, at two of those hearings X, the defendant, who was otherwise represented by counsel throughout the proceedings, personally cross-examined the applicant. In addition to claiming that he was physically incapable of assaulting her, X based his cross-examination on the premise that the applicant had considered him a person of trust and had sought his company, rather than the other way round, and that her accusations against him were prompted by her mother’s wish to extort money from him. Accordingly, most of X’s questions were of a distinctly personal nature.\n\n108. The Court notes that some of the questions asked by X were phrased in such a manner as to suggest the answers, and a number of others were asked more than once (see paragraphs 34 and 36 above). X also continually contested the veracity of the applicant’s answers, advancing his own version of events. Of course, the defence had to be allowed a certain leeway to challenge the reliability and credibility of the applicant and to reveal possible inconsistencies in her statement. However, the Court considers that cross-examination should not be used as a means of intimidating or humiliating witnesses. In this connection, the Court is of the view that some of X’s questions and remarks suggesting, without any evidentiary basis, that the applicant could cry on cue in order to manipulate people, that her distress might be eased by having dinner with him, or that she had confided in him her desire to dominate men, were not aimed only at attacking the applicant’s credibility, but were also meant to denigrate her character.\n\n109.  The Court considers that it was first and foremost the responsibility of the presiding judge to ensure that respect for the applicant’s personal integrity was adequately protected at the trial. In its opinion, the sensitivity of the situation in which the applicant was questioned directly, in detail and at length by the man she accused of sexually assaulting her, required the presiding judge to oversee the form and content of X’s questions and comments and, if necessary, to intervene. Indeed, the record of the hearing indicates that the presiding judge prohibited X from asking certain questions which were of no relevance to the case. However, the Court takes the view that X’s offensive insinuations about the applicant also exceeded the limits of what could be tolerated for the purpose of enabling him to mount an effective defence, and called for a similar reaction. Considering the otherwise wide scope of cross-examination afforded to X, in the Court’s opinion curtailing his personal remarks would not have unduly restricted his defence rights. Yet such an intervention would have mitigated what was clearly a distressing experience for the applicant (see paragraphs 37 and 38 above).\n\n110.  Further, as regards the applicant’s assertion that X’s counsel M. should have been disqualified from representing X in the proceedings, having been consulted by her regarding the sexual assaults even before the police were informed about the matter, it is not the Court’s task to speculate on whether, and if so in what capacity, the applicant and M. might have known each other prior to the trial, that being the task of the domestic authorities. However, it appears that under domestic law the possibility of prior informal consultation between the applicant and M. did not raise an issue of conflict of interests which could lead to the latter’s disqualification (see paragraphs 29, 31 and 40-42 above). Hence, finding that no statutory ground had been adduced by the applicant in support of her application to have M. disqualified, the Maribor District Court dismissed it.\n\n111.  Nevertheless, assuming that the applicant’s allegation was true, the Court cannot but consider that the negative psychological effect of being cross-examined by M. considerably exceeded the apprehension that the applicant would have experienced if she had been questioned by another lawyer. Accordingly, this was a consideration which should not have been entirely disregarded in deciding whether M. should be disqualified as X’s counsel. Moreover, on a more general note, the Court would add that any information that M. might have received from the applicant in his capacity as a lawyer, even without a retainer agreement, should have been treated as confidential and should not have been used to benefit a person with adverse interests in the same matter. Thus, the Court finds that the domestic law on disqualification of counsel, or the manner in which it was applied in the present case, did not take sufficient account of the applicant’s interests.\n\n112.  Lastly, the applicant complained that B., the expert in gynaecology who was called upon to establish whether she had engaged in sexual intercourse at the material time, had made her answer a number of accusatory questions unrelated to his task. In this connection, the Court considers firstly that the personal integrity of the victims of crime in criminal proceedings must, by the very nature of the situation, be primarily protected by the public authorities conducting the proceedings. In this regard, the Court is of the view that the authorities are also required to ensure that other participants in the proceedings called upon to assist them in the investigation or the decision-making process treat victims and other witnesses with dignity, and do not cause them unnecessary inconvenience. As regards the present case, it is noted that, irrespective of B.’s status in the proceedings, the Government did not dispute that the State could be held responsible for his conduct. The Court sees no reason to hold otherwise, observing that the expert was appointed by, and the disputed examination ordered by, the investigating judge in the exercise of his judicial powers.\n\n113.  Further, regarding B.’s examination of the applicant, the Court notes that he confronted the applicant with the findings of the police and orthopaedics reports, and questioned her on why she had not defended herself more vigorously (see paragraph 22 above), thus addressing issues that were indeed not related to the question he was requested to examine. In the Court’s opinion, B.’s questions and remarks, as well as the legal findings he made in his expert opinion, exceeded the scope of his task, as well as of his medical expertise. Moreover, it does not appear that B. was trained in conducting interviews with victims of sexual abuse; hence, it is difficult to see what purpose was to be served by his intervention in matters within the jurisdiction of the prosecuting and judicial authorities. More importantly, as argued by the applicant, she was put in a defensive position which, in the Court’s opinion, unnecessarily added to the stress of the criminal proceedings.\n\n114.  The Court is mindful of the fact that the domestic authorities, and in particular the judge presiding over the trial in issue, had the delicate task of balancing the competing interests and of ensuring effective exercise of the defendant’s rights to legal assistance and to examine witnesses against him. It is also true that a number of measures were taken to prevent further traumatisation of the applicant. Her statement before the investigating judge was taken in the absence of the defendant and his counsel, the public was excluded from the trial, and the defendant was removed from the courtroom when she gave her testimony (see paragraphs 18, 29, 31 and 34 above). Owing to the applicant’s stress during her testimony and cross-examination, the trial hearings were on several occasions adjourned for a few minutes or rescheduled to another date (see paragraphs 31, 37 and 38 above). Furthermore, the presiding judge warned the defendant against repeating questions in cross-examination and prohibited a number of them (see paragraph 36 above). Nevertheless, in the Court’s opinion, the pre-existing relationship between the applicant and the defendant and the intimate nature of the subject matter, as well as the applicant’s young age – she was a minor when the alleged sexual assaults took place – were points of particular sensitivity which called for a correspondingly sensitive approach on the part of the authorities to the conduct of the criminal proceedings in issue. Taking into account the cumulative effect of the factors analysed above, which adversely affected the applicant’s personal integrity (see paragraphs 107-13 above), the Court considers that they substantially exceeded the level of discomfort inherent in giving evidence as a victim of alleged sexual assaults, and accordingly cannot be justified by the requirements of a fair trial.\n\n115.  Therefore, the Court is of the view that the manner in which the criminal proceedings were conducted in the present case failed to afford the applicant the necessary protection so as to strike an appropriate balance between her rights and interests protected by Article 8 and X’s defence rights protected by Article 6 of the Convention.\n\n116.  It follows that there has been a violation of Article 8 of the Convention.\n\nII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n117.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n118.  The applicant claimed 30,000 euros (EUR) in respect of non-pecuniary damage, arguing that the sexual assaults and the secondary victimisation she had endured in the criminal proceedings had severely affected her psychological health and caused her mental anguish and distress. The applicant submitted that during the proceedings she had suffered from depression, anxiety, and inability to concentrate, necessitating psychiatric help; she had even come to the hearings accompanied by her psychiatrist. Moreover, she had subsequently become afflicted with multiple sclerosis.\n\n119.  The Government took the view that the applicant had not shown causal links between her health problems and the alleged violations of the Convention. Moreover, they maintained that, were the Court to find a violation of the applicant’s Convention rights and award the applicant just satisfaction, it should be taken into account that the applicant had already received monetary compensation in the amount of EUR 1,080 from the State for the violation of her right to trial within a reasonable time.\n\n120.  Having regard to the medical certificate issued by the applicant’s psychiatrist in 2010, the psychological distress experienced by the applicant in that period could, at least in part, be attributed to the criminal proceedings in issue which, as found by the Court, lacked effectiveness and disproportionately interfered with the applicant’s personal integrity. Thus, the Court considers that some compensation should be awarded to the applicant for non-pecuniary damage in that respect. However, the Court notes that the domestic courts did not find the applicant’s allegations of sexual assaults to have been established. Neither can the Court speculate as to whether the outcome of the domestic proceedings would have been different had there been no breach of the Convention. Accordingly, it considers that no award can be made to the applicant in respect of that claim.\n\n121.  As regards the Government’s objection that compensation was awarded to the applicant at the domestic level, it is true that the applicant received EUR 1,080 from the State for the excessive length of the criminal proceedings in issue. However, as it does not appear that the out-of-court settlement also covered the State’s positive obligations under Article 3 (see paragraph 83 above) and, consequently, this award had no bearing on the applicant’s victim status under that provision (see, conversely, W. v. Slovenia, cited above, § 91), it cannot be taken into consideration in determining the amount of compensation to be awarded under Article 41 in respect of the violations found by the Court.\n\n122.  Making an assessment on an equitable basis, the Court awards the applicant EUR 9,500 in respect of non-pecuniary damage.\n\nB.  Costs and expenses\n\n123.  The applicant also claimed EUR 7,462.50, plus VAT at 20%, amounting to a total of EUR 8,955 for costs and expenses incurred before the Court.\n\n124.  The Government contended that the claim was disproportionately high in comparison to the amounts that could be charged with regard to the costs of proceedings before the Strasbourg Court in accordance with the national Lawyers’ Fees Act. The maximum fee stipulated in that Act for the proceedings in issue amounted to EUR 2,625 if a hearing was held before the Court and EUR 1,500 if there was no hearing.\n\n125.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 4,000, not including VAT, for the proceedings before the Court. As regards the claim that the amount should be increased by the rate of VAT, the Court reiterates that, although costs and expenses are frequently subject to value-added tax paid to the State by lawyers, translators and other professionals, the tax is nevertheless billed to the applicants and is ultimately payable by them. Applicants should be protected against this additional charge. For this reason alone, in the operative part of its judgments the Court directs that any tax that may be chargeable to the applicant is to be added to the sums awarded in respect of costs and expenses (see Kurić and Others v. Slovenia (just satisfaction) [GC], no. 26828/06, § 127, ECHR 2014, and Association Les Témoins de Jéhovah v. France (just satisfaction), no. 8916/05, § 37, 5 July 2012).\n\nC.  Default interest\n\n126.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT\n\n1.  Declares, unanimously, the application admissible;\n\n2.  Holds, unanimously, that there has been a violation of Article 3 of the Convention on account of the failure of the authorities of the respondent State to ensure a prompt investigation and prosecution of the applicant’s complaint of sexual abuse;\n\n3.  Holds, by six votes to one, that there has been a violation of Article 8 of the Convention in respect of the failure of the authorities of the respondent State to protect the applicant’s personal integrity in the criminal proceedings concerning sexual abuse against her;\n\n4.  Holds, unanimously,\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n5.  Dismisses, unanimously, the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 28 May 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.\n\nIn accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Yudkivska is annexed to this judgment.\n\nWhilst I fully share the position of the majority to the effect that the investigation into the applicant’s complaint of sexual abuse lasted too long, in breach of Article 3, I cannot agree that Article 8 was also violated in the present case.\n\nThe case concerns the fair balance which is to be struck between the interests of the defence in a criminal trial and those of a victim who is called upon to testify. Having carefully studied the available case materials, I find it difficult for the international court to suggest what additional steps could have been taken by the presiding judge to protect the applicant’s interests to an extent which would not have amounted to a violation of the fair-trial rights of the defendant.\n\nThis Court has examined under Article 8 a number of cases introduced by rape victims, in which the authorities failed to meet their positive obligations to conduct an effective investigation into the allegations of sexual abuse (see, among the most recent examples, the cases of C.A.S. and C.S. v. Romania and D.J. v. Croatia, with further references); however, it had not previously examined in such detail the issue of questioning during the trial proceedings.\n\nMoreover, in its innovatory judgment in the case of M.C. v Bulgaria the Court stated that in the circumstances of that case its task was limited “to examin[ing] whether or not the impugned legislation and practice and their application in the case at hand, combined with the alleged shortcomings in the investigation, had such significant flaws as to amount to a breach of the respondent State’s positive obligations under Articles 3 and 8 of the Convention...The Court [was] not concerned with allegations of errors or isolated omissions in the investigation...”\n\nNonetheless, in that case the Court criticised the authorities for the failure to “explore all the facts and decide on the basis of an assessment of all the surrounding circumstances...” (see paragraph 181 of the M.C. judgment). In the present case, in contrast, it appears that the domestic judicial authorities are being criticised for a failure to disallow questions which might potentially have shed additional light on the circumstances of the case.\n\nPractising lawyers know only too well how difficult it is to prosecute rape cases successfully, for a number of reasons – these crimes are rarely witnessed by others, corroborating physical evidence is lacking, there is an obvious difficulty in proving the accusation, and so on.\n\nThe prosecution thus tends to rely heavily on victim testimony, which quite often serves as the main ground for conviction. The only defence tactic for a defendant in such cases is to disprove the veracity of the victim’s statements and to challenge her credibility. It is therefore unsurprising that the questions put by a defendant can be too intimate and intrusive – precisely in order to allow the judge to observe the victim’s demeanour under cross-examination. This is the very core of a defendant’s right to examine witnesses against him.\n\nSome 120 years ago the US Supreme Court defined the “primary object” of the confrontation clause as being “to prevent depositions or ex parte affidavits ... being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanour upon the stand and the manner in which he gives his testimony whether he is worthy of belief.\n\nThe right to confrontation has a long and rich history dating back to Roman law and has become widely developed in common-law systems, where its crux lies in a belief that “[i]t is always more difficult to tell a lie about a person ‘to his face’ than ‘behind his back’, and “even if the lie is told it will often be told less convincingly”. This was explained by Justice Antonin Scalia in the US Supreme Court’s landmark judgment in this respect, Coy v. Iowa. In that judgment Justice Scalia traced the history of the right to confront as a “face-to-face encounter”, illustrated in Shakespeare’s Richard II:\n\nHe concluded that “there is something deep in human nature that regards face-to-face confrontation between accused and accuser as ‘essential to a fair trial in a criminal prosecution’”. In California v. Green the right to confrontation was described as the “greatest legal engine ever invented for the discovery of the truth”.\n\nContrary to the USA Constitution, the Convention does not guarantee as such a right to face-to-face confrontation between the accused and victim. Still, in many cases, also related to the sexual abuse of minors, the Court has found that the guarantees of a fair trial were not respected if at no stage of the proceedings the defendant was able to put questions to an alleged victim (see, as one of the recent examples, the case of Vronchenko v. Estonia). The aim of the guarantee in Article 6 § 3 (d) of the Convention is the same – to assist the court in observing the demeanour of a witness under direct examination. This provision not only operates to protect the interests of the defence; it also serves justice in a more general way – it assists in establishing the truth, since questions put by the defence not only allow the witness’s credibility to be tested, they also bring to light further elements of fact which may be important for the court’s conclusions. In my opinion, in this recent case the majority disregarded this essential element of the defendant’s right to examine the key witness against him.\n\nIn the case at hand, the applicant was an alleged victim of sexual assault, which is one of the gravest crimes against one’s physical integrity, and one which causes deep trauma to a victim. It has been argued that “[e]xcept for murder, the crime of rape is the ultimate invasion, the one with the most severe physical and psychological consequences for its victim”. It goes without saying that the court proceedings represent additional trauma for a rape victim, especially for one who is a minor. Thus, it is obvious that considerations of ensuring sufficient psychological comfort of the victim are important and may, in certain cases, outweigh the accused’s right to confrontation.\n\nThe Directive of 25 October 2012 of the European Parliament and of the Council (2012/29/EU) establishing minimum standards on the rights, support and protection of victims of crime, indicates that measures are to be available for the most vulnerable victims, including “measures to avoid unnecessary questioning concerning the victim’s private life not related to the criminal offence”, and “measures allowing a hearing to take place without the presence of the public” (Article 23 § 2 (c) and (d)).\n\nOther international documents on protection of victims, including those cited in the judgment, whilst concentrating on victims’ rights in the course of criminal proceedings, also stress the importance of the rights of the defence. It appears uncontested that completely sacrificing the right of the accused in order to ensure the victim’s psychological comfort is a step towards obtaining a wrong decision.\n\nIn the present case it worth mentioning that although the alleged events occurred when the applicant was between 14 and 15 years old, the court proceedings took place five or six years later, when, firstly, her trauma cannot be said to have still been rankling to the same extent as immediately after the event, and, secondly, she was already an adult. It is therefore difficult to argue that she was particularly vulnerable at the time of the court examination.\n\nFurthermore, it is of utmost importance that the applicant’s questioning took place in the absence of the public (see the above-mentioned Directive). Moreover, the court granted her requests to have X removed from the courtroom while she was questioned. Besides, as also noted by the majority, some of X’s questions were prohibited by the presiding judge where the latter considered them to be irrelevant to the case. What more could have been done by the judge in order to protect the applicant’s rights while still having an opportunity to assess the victim’s credibility?\n\nThe majority considers that “most of X’s questions were of a distinctly personal nature” (see paragraph 107 of the judgment). I absolutely agree with that finding, and I can hardly imagine any question of a non-personal nature that an accused who considers himself innocent could put to a victim defaming him, as he believes. Some of X’s remarks were in reality aimed at presenting the negative aspects of the applicant’s character, yet the majority defines them as “offensive insinuations” exceeding “the limits of what could be tolerated for the purpose of enabling him to mount an effective defence”. It is obvious that the aim of those remarks was to challenge the applicant’s credibility and to enable the judge to observe her demeanour under this provocative questioning – which is, again, the crux of any confrontation in the courtroom.\n\nCertainly, the manner in which X built his line of defence brought additional stress to the applicant, who had already been deeply traumatised. Still, the present situation is significantly different from the case of Brandstetter v. Austria referred to by the majority, since in that case the applicant, in the course of proceedings against him for adulterating wine (an offence for which he could only be fined, and which, in principle, is incomparable with a rape accusation), deliberately and falsely accused an official of an offence in order to manipulate evidence, thus exposing the latter to the risk of disciplinary sanctions. In the present case, “offensive insinuations” such as the comments that “the applicant could cry on cue in order to manipulate people, that her distress might be eased by having dinner with him or that she had confided in him her desire to dominate men” are mostly value judgments and cannot be compared to a false, as X believed, accusation of sexual abuse. The degree of interference in one’s private life represented by those quoted remarks and by the accusation of having committed a grave crime is incommensurable. Thus, I cannot agree that X’s questions overstepped the admissible limits of defence, given that what was at stake for him was his honour and liberty.\n\nIn addition to criticising the way in which the confrontation between the applicant and X was conducted, the majority reproaches the domestic judicial authorities for not disqualifying X’s counsel M., who allegedly had some prior informal consultations with the applicant. This was not proved; however, “assuming that the applicant’s allegation was true” the majority has decided that the applicant would have felt better psychologically being cross-examined by another lawyer. Once more, had that been the case, then the applicant’s greater comfort would have been at the expense of X’s right to defend himself through legal assistance of his own choosing. The majority also stated, quite in abstracto, “that any information that M. might have received from the applicant in his capacity as a lawyer ... should have been treated as confidential and should not have been used to benefit a person with adverse interests in the same matter”. There is no evidence in the case file to the contrary.\n\nLastly, the majority criticises the questioning of the applicant by the gynaecologist B., namely the fact that the latter “confronted the applicant with the findings of the police and orthopaedics reports and questioned her on why she had not defended herself more vigorously”, thus “addressing issues that were indeed not related to the question he was requested to examine” (see paragraph 113 of the judgment). It is to be noted, however, that B. was entrusted with the task of “establish[ing] the probability of the applicant having engaged in sexual intercourse” (see paragraph 22), and thus he had to assess whether her testimony was reliable from a medical standpoint. Given that the applicant’s hymen was intact and that X could not have used his left arm to crush the applicant’s resistance, it cannot be said that B.’s questions were completely irrelevant to the report he had to present.\n\nIn view of the above considerations, and bearing in mind that, in cases such as the present one, the absence of a complete picture of the trial calls for self-restraint on the part of the international judge, I have voted for the finding that there was no violation of Article 8.","title":""}
{"_id":"passage_513","text":"PROCEDURE\n\n1.  The case originated in an application (no. 36350/97) against the  lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a French national, Mr Auguste Siegel (“the applicant”), on 24 April 1997.\n\n2.  The applicant was represented by Mr S. Graff, of the Strasbourg Bar. The French Government (“the Government”) were represented by their Agent, Mr R. Abraham, Director of Legal Affairs at the Ministry of Foreign Affairs, and by their Deputy Agent, Mr P. Boussaroque, administrative court judge on secondment to the Department of Legal Affairs at the Ministry of Foreign Affairs.\n\n3.  The applicant alleged an infringement of his right to a hearing within a reasonable time as guaranteed by Article 6 § 1 of the Convention.\n\n4.  The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).\n\n5.  The application was allocated to the Third Section of the Court\n(Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.\n\n6.  In a decision of 28 September 1999 the Chamber declared the application admissible [Note by the Registry. The Court's decision is obtainable from the Registry.].\n\n7.  The applicant and the Government each filed written observations on the merits of the case (Rule 59 § 1).\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n8.  The applicant, who was born in 1938, is unemployed and lives in Albi.\n\n9.  The widow of Paul Siegel, Mrs Schmitt, died on 4 July 1990. She left her estate in equal shares to her two children, Auguste Siegel (the applicant in the present case), and his brother, Louis Siegel, the latter enjoying full possession of the property until division.\n\n10.  On 8 January 1993 the applicant lodged an application with the presiding judge of the Illkirch-Graffenstaden District Court (département of Bas-Rhin) for partition of the deceased's estate. He sought the appointment of a notary (notaire) to deal with the partition, specifying that it should not be Mr Kirschner, Louis Siegel's representative.\n\n11.  On 23 April 1993 Louis Siegel was notified of the application. In a letter of 27 April 1993 Louis Siegel applied to the same District Court for partition of the estate of Paul Siegel, who had died on 27 December 1984. He pointed out that all the documents concerning the disposal of his parents' estate were being held by Mr Kirschner and requested that, if\nMr Kirschner could not be appointed first notary for the purpose of dividing the estate, he be appointed second notary.\n\n12.  On 2 June 1993 the court forwarded Louis Siegel's application to the applicant's lawyer, inviting him to submit within one month his observations on commencing the procedure for partition of the father's estate. On 15 June 1993 the applicant's lawyer informed the court that he did not oppose commencing the procedure for partition or extending it; he also stated that he maintained his earlier submission regarding the choice of notary to deal with the partition of the estate.\n\n13.  In an order of 8 July 1993 the presiding judge of the Illkirch-Graffenstaden District Court granted the application and ordered partition by the court of Mrs Schmitt's and Paul Siegel's estate. He instructed the parties to address their claims to Mr Deck, a notary in Benfeld, who had been appointed first notary, and to Mr Kirschner, a notary in Erstein, who had been appointed second notary. That decision was served on Louis Siegel on 5 August 1993 and on the applicant on 7 October 1993. In the Government's submission, the delay in service of the decision on the applicant was due to his failure to inform the court registry of his change of address.\n\n14.  Mr Deck convened a first meeting of the parties on\n22 November 1993. All the parties were present or represented at the meeting, a record of which was sent to them on 27 December 1993.\n\n15.  On 24 August 1994 Mr Deck sent the parties a draft scheme of partition of the estate and requested their observations.\n\n16.  On 25 November 1994 the applicant's lawyer sent his observations to Mr Deck.\n\n17.  On 6 April and 18 July 1995 the applicant enquired of the notary as to progress in the proceedings. He never received a reply.\n\n18.  On 15 November 1995 a reminder was sent – in vain – to the presiding judge of the Illkirch-Graffenstaden District Court. A copy was sent to Mr Deck and Mr Kirschner on 27 November 1995.\n\n19.  On 13 November 1996 the applicant sent a further reminder to the presiding judge of the District Court, asking him to contact the two notaries with a view to concluding the proceedings.\n\n20.  The presiding judge of the court drew up an order forwarding the application to the court registry's temporary premises in Erstein. On\n18 November 1996 the same reminder was sent to the court registry's permanent premises in Erstein. That letter also remained unanswered.\n\n21.  On 29 November 1996 the District Court judge sent both notaries the applicant's letter of 18 November 1996 and requested them to inform him of any reason why partition of the estate should not proceed and to indicate how they intended to deal with the applicant's application.\n\n22.  In a letter of 19 February 1997 the applicant's lawyer lodged a complaint with the Chairman of the Chamber of Notaries. He asked the chairman to instruct the two notaries in question to dispose of the case before 31 March 1997. He stated that, should they fail to do so, he had been instructed to bring an action for damages in the appropriate court.\n\n23.  On 17 March 1997 Mr Deck informed the Chairman of the Chamber of Notaries and the District Court judge that on 24 August 1994 he had prepared a draft scheme of partition of the estate and had since been waiting for Mr Kirschner's counter-proposal.\n\n24.  Mr Deck convened a further meeting of the parties on 9 April 1997.\n\n25.  Following that meeting, the two notaries officially drew up the final scheme of division; in that document the parties undertook to discontinue the proceedings for partition by the court which had commenced with the order of 8 July 1993. Having regard to that undertaking, Mr Deck decided to discontinue the proceedings and, in an order of 4 December 1997, the District Court judge stayed the proceedings.\n\nII.  RELEVANT DOMESTIC LAW\n\n26.  Article 837 of the Civil Code provides:\n\n“If a dispute should arise in connection with proceedings referred to a notary, the notary shall draw up a record of matters causing difficulty and of the statements of the parties and forward them to the judge designated to deal with the partition ...”\n\n27.  The procedure for partition of an estate applicable in the law of succession in  and Moselle is a non-contentious procedure governed by the provisions of the Act of 1 June 1924. Section 220 of that Act provides: “Partition by the court shall be effected as prescribed in the present Act by means of a non-contentious procedure. The right shall be reserved to interested parties to institute contentious proceedings if they wish to obtain a decision on the merits and admissibility of the partition.” Article 25 of the new Code of Civil Procedure, relating to non-contentious proceedings, provides that a court can rule only where there is no dispute. Lastly, under section 232 of the above-mentioned Act, “if difficulties arise during proceedings before the notary and those difficulties are not resolved, the notary shall draw up a record of the matters in dispute and instruct the parties to bring contentious proceedings”.\n\nTHE LAW\n\nI.  THE GOVERNMENT'S PRELIMINARY OBJECTION\n\n28.  The Government reiterated their objection to admissibility on the ground of failure to exhaust domestic remedies which they had raised during examination of the admissibility of the application, namely that the applicant could have sued the notaries in the ordinary courts on account of their conduct and thus possibly have obtained compensation.\n\n29.  In its decision on the admissibility of the application the Court concluded that an award of damages to the applicant for negligent acts or omissions by the notaries would not have been a substitute for the measures which the domestic legal system should have afforded the applicant to deal with the delay in proceedings which were taking place at the request and under the supervision of a court. The Court does not see any reason to depart from that conclusion and, accordingly, dismisses the objection in question.\n\nII.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION\n\n30.  The Government contended, firstly, that the proceedings for partition of the Siegel estate, as they had been conducted, did not fall within the scope of application of Article 6 § 1.\n\n31.  In its decision on the admissibility of the application, the Court decided to join that objection to the merits of the case.\n\n32.  More specifically, the Government observed that the applicant had chosen not to bring proceedings in the tribunal de grande instance and had allowed the non-contentious proceedings to follow their course despite the fact that a dispute had arisen on the merits of the partition. The role of the Illkirch-Graffenstaden District Court had therefore been confined, in accordance with Article 969 of the (former) Code of Civil Procedure, to declaring the proceedings to have begun and appointing two notaries to deal with the partition. Moreover, the court in question had never formally approved the partition by notary provided for in section 235 of the Act of\n1 June 1924 because, as the terms of the notarial deed drawn up on\n24 November 1997 showed, the parties had undertaken to discontinue the proceedings for partition by the court commenced by an order of 8 July 1993. The only decision taken by the court had ultimately been to stay the proceedings by an order of 4 December 1997, which could not be regarded as a decision determining a civil dispute. In support of their submissions, the Government relied on the decision of the European Commission of Human Rights in the Gauthier v. France case (application no. 26488/95, Commission's report of 9 April 1997, unpublished), which was a somewhat similar case concerning the division of jointly owned property between spouses after their divorce; in that case the Commission had assessed the length of the proceedings from the date on which the notary had drawn up a record of matters causing difficulty. In the absence of such a record in the instant case, a court-appointed notary could not be likened to a tribunal within the meaning of Article 6 § 1 of the Convention, because his or her duties consisted not in determining a dispute, but in dealing with the partition of an estate in so far as that partition did not give rise to any dispute.\n\n33.  The Court accepts that the applicability of Article 6 § 1 may at first sight appear debatable. The partition proceedings – as conducted in the instant case – were neither wholly contentious nor wholly non-contentious. They were conducted exclusively before two notaries and were concluded on a friendly basis with the signing of an agreement on partition and an undertaking to discontinue the proceedings, without the District Court intervening.\n\n34.  The Court considers, however, that to accept the Government's reasoning would result in removing judicial proceedings ordered by a court – which was, moreover, responsible for approving the partition – from any scrutiny by that court.\n\n35.  The Court reiterates that since Mr Auguste Siegel and Mr Louis Siegel had been unable to reach an agreement as to how the estate should be divided, they applied to the Illkirch-Graffenstaden District Court for partition by the court. Although an estate is divided (at the court's request) by court-appointed notaries and any dispute between the parties in that connection must be submitted to the judge (juge-commissaire), also designated by the court (Article 837 of the Civil Code), the entire proceedings for judicial partition – which are, moreover, extremely formalistic – are conducted in the court for the place where the succession occurs and under its supervision. It is this court which gives judgment ordering partition, appoints a notary to distribute the estate and designates a judge to deal with the matter; above all, it is this court which must approve the scheme of division of the estate drawn up by the notary. In short, this court is required to determine a “contestation (dispute) over civil rights” submitted to it in the form of an application for partition, in the instant case the one dated 8 January 1993. The possibility left open to the parties of resuming partition on a non-contentious basis – a possibility of which the applicant and Mr Louis Siegel availed themselves in the instant case – does not in any way detract from the jurisdiction of the court, which remains seised of the case until such time as the parties decide to discontinue the proceedings.\n\n36.  The Government submitted further that, under French law, there were two types of procedure for the partition of an estate in Alsace and Moselle: a non-contentious procedure, which was the norm if no difficulty of partition arose, and a contentious procedure, and that it was for the interested parties to choose which procedure was suitable in the particular case. Accordingly, it was at any time open to an heir who was dissatisfied with the conduct of his notary to bring proceedings in the district court or the tribunal de grande instance under section 220 of the Act of 1 June 1924.\n\n37.  In that connection the Court notes, as the applicant did, that once the parties have embarked on the partition procedure provided for in local law, their only means of switching to a contentious procedure is by referring the case to a court and drawing up a record of matters causing difficulty as provided in section 232 of the Act of 1 June 1924. In the instant case the notaries did not draw up such a record and did not instruct the parties to apply to the tribunal de grande instance.\n\n38.  The Court notes that the proceedings before the notaries were so closely linked to the supervision of the District Court that they cannot be dissociated from that supervision for the purposes of determining the applicant's civil rights and obligations. Consequently, the Court concludes that Article 6 § 1 of the Convention is applicable to the present case.\n\n39.  Lastly, the Government pointed out that the case was not in any way complex and that no delay was attributable to the District Court, which had received no record of matters causing difficulty that would have enabled it to give a decision on the determination and partition of the estate. The length of the proceedings was explained by the lack of diligence of the parties and the notaries, the latter of whom were not in any way subordinate to the state authorities.\n\n40.  More specifically, with regard to the conduct of the notaries, the Government submitted that, although they were certainly ministerial officers (officiers ministériels), they could not be considered to be part of the “judicial services”; although the prosecution service could exercise supervisory and prosecuting powers over them, it could bring only disciplinary or criminal proceedings against them and could not in any circumstances intervene in the processing of cases in which they had been instructed. Nor could they be likened to the police or gendarmerie, whose officers engaged the State's liability if they committed any acts of gross negligence, because they were always subject to the authority and supervision of a judge or prosecutor.\n\n41.  With regard to the applicant and his brother, the former had moved without informing the court registry of his new address, so that the order of joinder of 8 July 1993 did not reach him until 7 October 1993; the latter, who had failed to send Mr Deck his observations on the draft scheme of division drawn up by the lawyer, had displayed a complete lack of interest in the outcome of the proceedings.\n\n42.  The Court notes that the proceedings in question began on\n8 January 1993 when the applicant lodged an application for partition of the estate by the court, and ended on 4 December 1997 when the District Court made an order staying the proceedings. They therefore lasted four years, eleven months and twenty-six days.\n\n43.  During that period the Court notes the following facts, which appear to it to be relevant to an assessment of the course of the proceedings in question. On 6 April and 18 July 1995 the applicant enquired of the notary as to progress in the proceedings. His enquiry remained unanswered. On\n15 November 1995 a reminder was sent – in vain – to the presiding judge of the Illkirch-Graffenstaden District Court. On 13 November 1996 the applicant sent a further reminder to the presiding judge of the District Court, asking him to contact the two notaries with a view to concluding the proceedings. The presiding judge of the court issued an order forwarding the application to the court registry's temporary premises in Erstein. On\n18 November 1996 the same letter was sent to the registry's permanent premises in Erstein. That letter also remained unanswered. On 29 November 1996 the District Court judge sent both notaries the applicant's letter of\n18 November 1996 and requested them to inform him of any reason why partition of the estate should not proceed and to indicate how they intended to deal with the applicant's application.\n\n44.  The Court also considers, in the light of the criteria established by its case-law relating to “reasonable time” (complexity of the case, conduct of the applicant and of the relevant authorities), and having regard to the foregoing observations, particularly as to the notaries' inertia and the Illkirch-Graffenstaden District Court's failure to act, that the applicant was deprived of his right to have his case heard within a “reasonable time”.\n\n45.  Accordingly, the Court concludes that there has been a violation of Article 6 § 1 of the Convention.\n\nIII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n46.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\n47.  In his application bringing the case before the Court, the applicant stated that he was seeking compensation for the loss he had sustained as a result of the infringement of his right to have his case heard within a reasonable time, given that he had been deprived for at least four years of the benefit of his share of the assets to be divided.\n\n48.  In a letter of 15 October 1999 informing him that his application had been declared admissible, the applicant was requested to indicate his claims for just satisfaction. However, the applicant, who had moreover been awarded legal aid, did not submit any claim. The Court does not consider that it must award him any compensation under this head of its own motion.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Dismisses the Government's preliminary objection;\n\n2.  Holds that Article 6 § 1 of the Convention is applicable to the instant case;\n\n3.  Holds that there has been a violation of that Article.\n\nDone in French, and notified in writing on 28 November 2000, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_541","text":"PROCEDURE\n\n1.  The case originated in four applications (nos. 41472/06, 39691/07, 54454/09 and 17977/12) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Russian nationals (“the applicants”). Their full names and dates of birth are listed in the appendix, as are the names of their representatives and the dates their applications were submitted.\n\n2.  The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.\n\n3.  The applicants’ complaints concerning the length of pre-trial detention were communicated to the Government, and the remaining parts of the applications were declared inadmissible.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\nA.  Common facts\n\n4.  The applicants were prosecuted in Russia for various crimes. They were arrested and detained while the crimes were investigated and pending trial. Their detention was ordered and extended by the courts. The detention orders were essentially based on the gravity of the charges, the primary grounds being the risk of the applicants’ absconding and interfering with the course of justice. The detention and extension orders used stereotyped formulae, without addressing specific facts or considering alternative preventive measures.\n\nB.  Facts specific to each application\n\n1.  The case of Mr Chernoyvan\n\n5.  The first applicant was born on 27 April 1961 and lived, prior to his arrest, in Poronaysk, Sakhalin Region. He was arrested on 27 February 2003 on suspicion of sexual assault and was placed in detention. He remained in custody while the crime was investigated and pending trial. On 9 February 2007 the Poronayskiy Town Court of the Sakhalin Region convicted him of sexual assault and sentenced him to six years and nine months’ imprisonment. On 6 June 2007 the Sakhalin Regional Court upheld his conviction on appeal.\n\n2.  The case of Mr Smirnov\n\n6.  The second applicant was born on 29 May 1971 and lived, prior to his conviction, in Samara. He was arrested on 13 March 2007 on suspicion of bribery. On 14 March 2007 he was released. On 29 March 2007 he was arrested again and placed in custody. He was released on 12 September 2007. On 20 May 2008 he was convicted of bribery and sentenced to one year and six months’ imprisonment.\n\n3.  The case of Mr Bobrov\n\n7.  The third applicant was born on 14 October 1979 and lived, prior to his arrest, in Ulybino, Novosibirsk Region. He was arrested on 15 August 2007 on suspicion of drug dealing. He remained in custody while the crime was investigated and pending trial. On 3 February 2011 the Novosibirsk Regional Court convicted him of drug dealing and abuse of power, and sentenced him to eight years and six months’ imprisonment. On 18 October 2011 the Supreme Court of Russia upheld his conviction on appeal.\n\n4.  The case of Mr Bogatyrev\n\n8.  The fourth applicant was born on 29 November 1986 and lived, prior to his conviction, in Turukhansk, Krasnoyarsk Region. On 23 April 2010 he was arrested on suspicion of murder. On 24 April 2010 a court remanded him in custody. His detention was subsequently extended. On 17 October 2012 he was convicted of aggravated murder and was sentenced to fifteen years’ imprisonment.\n\nII.  PROCEEDINGS BEFORE THE COURT\n\n9.  On various dates the applicants’ complaints about lengthy pre-trial detention were communicated to the Government. The Government were asked to inform the Court of their position regarding a friendly settlement of the cases and any proposals they wished to make. The Government did not reply.\n\n10.  On 27 August 2015 the Court invited the applicants to submit their claims for just satisfaction. The applicants did not reply.\n\nTHE LAW\n\nI.  JOINDER OF THE APPLICATIONS\n\n11.  Having regard to the similarity of the main issues under the Convention in the above cases, the Court decides to join the applications and examine them in a single judgment.\n\nII.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION\n\n12.  The applicants complained that the duration of their pre-trial detention had been excessive and in breach of Article 5 § 3 of the Convention, which reads:\n\n“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”\n\nA.  Admissibility\n\n13.  The Court notes that the applicants’ complaints about lengthy pretrial detention are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.\n\nB.  Period to be taken into consideration\n\n14.  The Court reiterates that, when determining the length of detention pending trial under Article 5 § 3 of the Convention, the period to be taken into consideration begins on the day an accused is taken into custody and ends on the day the charge is determined, even if only by a court of first instance, or, possibly, when the applicant is released from custody pending criminal proceedings against him (see Labita v. Italy [GC], no. 26772/95, §§ 145-47, ECHR 2000‑IV, and Idalov v. Russia [GC], no. 5826/03, § 112, 22 May 2012).\n\n15.  In the present case, the first applicant, Mr Chernoyvan, was arrested on 27 February 2003 and convicted on 9 February 2007. Thus, he spent three years, eleven months and fourteen days in pre-trial detention.\n\n16.  The second applicant, Mr Smirnov, was arrested on 13 March 2007 and released on 14 March 2007. On 29 March 2007 he was arrested again and placed in custody. He was released on 12 September 2007. Thus, he spent five months and seventeen days in pre-trial detention.\n\n17.  The third applicant, Mr Bobrov, was arrested on 15 August 2007 and convicted on 3 February 2011. Thus, he spent three years, five months and twenty days in pre-trial detention.\n\n18.  The fourth applicant, Mr Bogatyrev, was arrested on 23 April 2010 and convicted on 17 October 2012. Thus, he spent two years, five months and twenty-five days in pre-trial detention.\n\nC.  Merits\n\n19.  The Court has already, on numerous occasions, examined applications against Russia raising similar complaints under Article 5 § 3 of the Convention, and has found a violation of that Article on the grounds that the domestic courts extended an applicant’s detention whilst essentially relying on the gravity of the charges and using stereotypical formulae, without addressing his or her specific situation or considering alternative preventive measures (see, among many others, Mamedova v. Russia, no. 7064/05, 1 June 2006; Pshevecherskiy v. Russia, no. 28957/02, 24 May 2007; Shukhardin v. Russia, no. 65734/01, 28 June 2007; Belov v. Russia, no. 22053/02, 3 July 2008; Aleksandr Makarov v. Russia, no. 15217/07, 12 March 2009; Lamazhyk v. Russia, no. 20571/04, 30 July 2009; Makarenko v. Russia, no. 5962/03, 22 December 2009; Gultyayeva v. Russia, no. 67413/01, 1 April 2010; Logvinenko v. Russia, no. 44511/04, 17 June 2010; Sutyagin v. Russia, no. 30024/02, 3 May 2011; Romanova v. Russia, no. 23215/02, 11 October 2011; and Valeriy Samoylov v. Russia, no. 57541/09, 24 January 2012).\n\n20.  Turning to the circumstances of the present cases, the Court notes that there is no reason to arrive at a different finding. It considers that the authorities extended the applicants’ detention on grounds which, although “relevant”, cannot be regarded as “sufficient”. In these circumstances, it is not necessary to examine whether the proceedings were conducted with “special diligence”.\n\n21.  Accordingly, there has been a violation of Article 5 § 3 of the Convention.\n\nII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n22.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\n23.  The applicants did not submit claims for just satisfaction.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\n1.  Decides to join the applications;\n\n2.  Declares the complaints concerning the excessive duration of pre-trial detention admissible;\n\n3.  Holds that there has been a violation of Article 5 § 3 of the Convention.\n\nDone in English, and notified in writing on 20 September 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.\n\ntable-0","title":""}
{"_id":"passage_745","text":"PROCEDURE\n\n1.  The case originated in an application (no. 66166/13) against the Republic of Latvia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Syrian national, Mr Aladdin Nassr Allah (“the applicant”), on 17 October 2013.\n\n2.  The applicant was represented by Ms D. Andersone, a lawyer practising in Riga. The Latvian Government (“the Government”) were represented by their Agent, Mrs K. Līce.\n\n3.  The applicant alleged, in particular, violations of Article 5 §§ 1 and 4 of the Convention.\n\n4.  On 10 January 2014 the above-mentioned complaints were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n5.  The applicant was born in 1982. His current whereabouts are unknown.\n\nA.  Background to the case\n\n6.  On 29 December 2012 the applicant fled Syria and on an unspecified date entered the Russian Federation. It appears that he applied for asylum, but on 4 May 2013 he left the country before his application was examined.\n\n7.  On 4-5 May 2013 the applicant crossed the Latvian border on foot. On 5 May 2013 the State Border Guard Service (Valsts roberžsardze) stopped him near the border.\n\nB.  Application for asylum in Latvia\n\n8.  On 7 May 2013 the State Border Guard Service completed an asylum application form and the applicant signed it in the presence of an Arabic-speaking interpreter.\n\n9.  On 7 May 2013 an initial interview (sākotnējā aptauja) with the applicant was conducted with the assistance of an Arab-speaking interpreter. The applicant explained that he could speak, read and write in English and Arabic.\n\n10.  On 16 May 2013 a personal interview (pārrunas) with the applicant took place. The applicant was assisted by an Arab-speaking interpreter.\n\n11.  On 22 May 2013 the closed facility in which the applicant was being held (see paragraph 23 below) received a parcel addressed to him. The sender was unknown. The parcel contained the applicant’s identity card and military service certificate in Arabic. Their translation was requested and on 24 May 2013 it was received.\n\n12.  On 28 May 2013 those documents, together with their translations into Latvian, were sent to the Office of Citizenship and Migration Affairs (Pilsonības un migrācijas lietu pārvalde). The latter was also informed that it would receive certified translations as soon as possible. On 21 June 2013 the State Border Guard Service received the certified translations and, on the same date, sent them to the Office of Citizenship and Migration Affairs.\n\n13.  On 31 May 2013 authenticity of the applicant’s identity card was confirmed by two forensic experts. On 21 June 2013 the State Border Guard Service received their report and, on the same date, sent it to the Office of Citizenship and Migration Affairs.\n\n14.  On 28 June 2013 the applicant appointed a lawyer to assist him in the administrative proceedings. The same lawyer continued to represent him before the Court (see paragraph 2 above).\n\n15.  On 4 July 2013 the Asylum Affairs Division (Patvēruma lietu nodaļa) of the Office of Citizenship and Migration Affairs informed the applicant that they had received his application for asylum and would examine it within three months.\n\n16.  On 3 October 2013 the Asylum Affairs Division decided to refuse the applicant’s asylum application. However, they granted him subsidiary protection status (alternatīvais statuss) and issued a temporary residence permit for one year. It was noted that that decision would take effect from the time the applicant had been informed of it. A reference was made to section 70(1) of the Administrative Procedure Law and section 8(3) of the Notification Law (see paragraph 38 below).\n\n17.  On 4 October 2013, which was a Friday, a letter was sent to the State Border Guard Service in Daugavpils informing them of the decision and stating that the applicant was to be informed of it immediately. They also asked that one copy of the decision be handed over to the applicant and that the second copy be sent back to the Asylum Affairs Division with the applicant’s signature confirming that he had been informed of it. The letter, together with two copies of the decision, was received in Daugavpils on Monday 7 October 2013 (see paragraphs 29-30 below) and the applicant was informed of it. Accordingly, the decision took effect on 7 October 2013.\n\n18.  The applicant lodged an appeal against the decision with the administrative courts, as he wished to be granted asylum; he considered that the subsidiary protection status was not sufficient.\n\n19.  On 6 November 2013 administrative proceedings were instituted.\n\n20.  On 19 December 2013 the Administrative District Court issued summonses and scheduled a hearing for 27 January 2014. That hearing was postponed as the applicant did not appear. Another hearing was scheduled for 25 February 2014, but the applicant failed to appear again.\n\n21.  On 26 February 2014 the Administrative District Court left the applicant’s appeal without examination for repeated failure to appear without good reason.\n\nC.  The applicant’s detention\n\n22.  On 5 May 2013 the applicant was detained under section 51(2)(1) of the Immigration Law (see paragraph 35 below), but he refused to sign the detention record. At that time, he had no personal identification or valid travel document. He identified himself as “Adnan Haiiak”, born on 20 October 1983. He was informed (in English) of his rights to appeal against the detention order, receive legal aid, acquaint himself with the detention records and communicate in a language understood by him. The following day several documents were found in the place where he had been arrested: a document testifying that an application for short-term asylum had been made by a Syrian national, Mr Nassr Allah, born on 18 September 1982, and was being examined in Russia; a torn train ticket; and other documents in Arabic. The applicant explained that he had hidden those documents in order to avoid being sent back to Russia.\n\n22.  On 5 May 2013 the applicant was detained under section 51(2)(1) of the Immigration Law (see paragraph 35 below), but he refused to sign the detention record. At that time, he had no personal identification or valid travel document. He identified himself as “Adnan Haiiak”, born on 20 October 1983. He was informed (in English) of his rights to appeal against the detention order, receive legal aid, acquaint himself with the detention records and communicate in a language understood by him. The following day several documents were found in the place where he had been arrested: a document testifying that an application for short-term asylum had been made by a Syrian national, Mr Nassr Allah, born on 18 September 1982, and was being examined in Russia; a torn train ticket; and other documents in Arabic. The applicant explained that he had hidden those documents in order to avoid being sent back to Russia.\n\n23.  On 7 May 2013 the applicant was detained under section 9(1)(1) (undetermined identity) and 9(1)(2) (misuse of the asylum procedure) of the Asylum Law, but he refused to sign the detention record. He was informed (in Arabic) of his rights to appeal against the detention order, receive legal aid and communicate in a language understood by him. He was also informed about the reasons for his detention. He was placed in a closed facility in Daugavpils – an accommodation centre for foreign detainees and asylum seekers (Aizturēto ārzemnieku un patvēruma meklētāju izmitināšanas centrs – “the Daugavpils accommodation centre”).\n\n24.  On 10 May 2013, following a hearing in the applicant’s presence, a judge of the Daugavpils (City) Court (Dauvgavpils tiesa) ordered his detention for two months. The judge examined the material brought before him and, with the assistance of an Arab-speaking interpreter, heard evidence from the applicant. The applicant explained that he had applied for asylum in Russia, but had left as he realised that he would not receive it. He had crossed the border illegally and had identified himself by giving another name in order not to be deported back to Russia. The applicant was not assisted by a lawyer. The judge concluded that there were grounds to detain him as his identity had not been determined and there were reasons to consider that he had misused the asylum procedure. He had arrived in Latvia from a country, where his life had not been endangered and where he had applied for asylum; these facts evidenced that he misused the asylum procedure. On the same date, the applicant lodged an appeal (one page) against that decision in English, stating in simple terms that he had received the court’s decision and wished to appeal against it. He submitted that he had been in danger in Russia and had been ill; he expressed the wish to be granted refugee status in Latvia and undertook to provide all his documents as soon as possible. On 13 May 2013 his appeal was sent for translation; on 7 June 2013 a translation was received. On the same date, the appeal, its translation and the case file were forwarded to the Latgale Regional Court (Latgales apgabaltiesa) and the applicant was informed that a single judge would examine his appeal following a written procedure; the applicant could submit further observations within forty-eight hours. That information was handed to him by the State Border Guard Service and he signed to acknowledge receipt of it on 13 June 2013. On 25 June 2013 the applicant was informed that examination of his case had been rescheduled to 5 July 2013; it would be decided by a single judge following a written procedure. That information was handed to him by the State Border Guard Service and he signed to acknowledge receipt of its translation on 25 June 2013.\n\n25.  On 5 July 2013 a judge of the Latgale Regional Court examined and dismissed the applicant’s appeal. He relied on largely the same factual and legal grounds for detaining the applicant as the first-instance court judge. The judge concluded that there were grounds to consider that the applicant attempted to misuse the asylum procedure. It was evidenced by the facts surrounding his arrival and application for asylum in Latvia. He had crossed the border illegally. He had not arrived directly from the country where his life or liberty was endangered. He had spent several months in Russia, where he had applied for asylum, but had left illegally; without awaiting for a final decision. It was impossible to predict his further actions in case of release. The decision was drafted in Latvian, but its contents were explained to the applicant, for which he signed on the same date.\n\n26.  On 8 July 2013, following a hearing in the applicant’s presence, the judge of the Daugavpils (City) Court authorised the extension of his detention for a further two months; the applicant was assisted by an interpreter. The applicant’s lawyer was not present, but the judge examined her written request to release the applicant on account of the fact that he had provided his identity documents and had not misused the asylum procedure. She argued that the applicant could be placed in an open and specialised institution – an accommodation centre for asylum seekers in Mucenieki. The judge disagreed and concluded that there were grounds to detain the applicant under section 9(1)(2) of the Asylum Law. The fact that his application for asylum was accepted for examination did not indicate that he would comply with the requirements arising from the asylum procedure as he testified that he would again apply for an asylum in another European country in case he received a negative decision in Latvia, which was contrary to the applicable procedure. In such circumstances, it was impossible to predict his further actions if placed in an open accommodation centre; there was a possibility that he might leave Latvia and thereby obstruct the asylum procedure as he had already done in a safe third country (see paragraph 6 above). On the same date, the applicant lodged an appeal (one page) against that decision in Latvian, stating that there was no evidence that he had misused the asylum procedure, might leave the country or obstruct the asylum procedure. He disputed the relevance of the fact that he had applied for asylum in Russia as it was not a safe third country. His appeal was forwarded to the Latgale Regional Court together with the case file. On 15 July 2013 the applicant was informed that his case would be examined on 30 July 2013 by a single judge following a written procedure; it was explained that the applicant could submit further observations within forty-eight hours. That information was handed to him by the State Border Guard Service and he signed to acknowledge receipt of its translation on 18 July 2013.\n\n27.  On 30 July 2013 another judge of the Latgale Regional Court examined and dismissed the applicant’s appeal, upholding the decision to detain him under section 9(1)(2) of the Asylum Law. She referred to the findings of the city court to the effect that there were grounds to believe that the applicant might misuse the asylum procedure. There was evidence that he had left Russia after several months and without awaiting a final decision in response to his application for asylum. Upon arrival in Latvia, he had withheld his real identity. It was due to diligent work of border guards that his identity could be established. Moreover, the applicant admitted that he had left Russia because he believed that his application for asylum would be refused; he also admitted that he would attempt to obtain asylum in another European country if it was refused in Latvia. Therefore, the judge upheld the conclusion of the lower court that it was impossible to predict the applicant’s further actions upon release. The decision was drafted in Latvian, but its contents were explained to the applicant. On 6 August 2013 he signed the decision, confirming that it had been explained to him in English; he respected the decision and agreed with it.\n\n28.  On 6 September 2013 the judge of the Daugavpils (City) Court authorised the applicant’s detention for a further two months, again on the grounds of section 9(1)(2) of the Asylum Law. During the hearing, the applicant explained that he would continue to pursue the asylum proceedings; he was aware of the relevant procedures and duties, he would not leave Latvia until the end of the asylum procedure. The judge concluded that the applicant misused the asylum procedure on the same grounds as indicated in the previous decisions and that he should remain in detention. With reference to section 9 (3) of the Asylum Law, the judge noted that the time-limit for his detention had not yet expired. The applicant did not lodge an appeal against that decision, as the Asylum Affairs Division was due to make a decision in less than one month and his previous experience had shown that detention appeals took about one month to be examined.\n\n29.  On 4 October 2013 the State Border Guard Service informed the applicant that he had been granted subsidiary protection status but that they could not release him until they received the original version of that decision; the relevant authority had sent it by post (see paragraph 17 above).\n\n30.  The State Boarder Guard Service ordered the applicant’s release at around 4 p.m. on 7 October 2013. In the release order, a reference was made to the fact that the applicant had been granted subsidiary protection status and that grounds for his detention had ceased to exist.\n\nD.  Review by the Ombudsman\n\n31.  On 13 August 2013 the applicant complained to the Ombudsman about his prolonged detention.\n\n32.  On 21 August 2013 the Ombudsman replied [in English] as follows:\n\n“In your complaint you request Ombudsman’s assistance in obtaining order for your release as well as assistance with contacting your family in Syria.\n\nIn the process of examining your complaint I have contacted the centre for detained foreigners and asylum seekers ‘Daugavpils’ (hereinafter – the Centre). According to information provided by the Centre, your application for asylum is currently under examination in the Office of Citizenship and Migration Affairs. The expected date of decision is 4 October 2013.\n\nAccording to the decision of Daugavpils (City) Court from 8 July 2013, as well as Latgale Regional Court you are currently detained on the basis of [section 9(1)(2)] of the Asylum Law. The next periodical review of your detention is due before 6 September 2013. [Section 9(1)(2)] of the Asylum Law states that ‘the State Border Guard [Service] has the right to detain an asylum seeker for a period up to seven days and nights if there are reasons to believe that the asylum seeker is attempting to use the asylum procedure in bad faith.’\n\nThe decision of Daugavpils (City) Court is based on the fact that you have crossed the Latvian border under the name of Adnan Haiik having previously requested temporary asylum in the Russian Federation with your established identity as Aladdin Nassr Allah. In the court hearing you have also indicated that in case of a negative decision you will proceed to seek asylum in another European country, which would be contrary to the procedure and regulations of requesting asylum in the European Union. Thus the court has established reasons to believe that you are attempting to use asylum procedure contrary to its objective and purpose.\n\nHaving reviewed the decision of Daugavpils (City) Court and Latgale Regional Court, it is established that you have been detained according to the procedures prescribed by law. Your rights to periodical review of detention have also been observed according to Latvian law. Furthermore, the decisions ordering your detention contain sufficient motivation to establish legal and factual grounds for such detention. Therefore, there has been no violation of your right to liberty and security under the [Convention] and Article 94 of the Constitution of Latvia.\n\nWith regard to the possibility to contact your family from the detention facility, I would like to inform you that upon your request, you have the right to contact your family on your own expense. The Latvian law does not grant detained asylum seekers a possibility to contact their families free of charge.”\n\nII.  RELEVANT EUROPEN MATERIALS AND DOMESTIC LAW\n\nA.  European materials\n\n33.  The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (the “CPT”) visited the Daugavpils accommodation centre during its 2011 visit to Latvia and noted the following (see report CPT/Inf (2013) 20):\n\n“33. The delegation was informed at the outset of the visit that recent amendments to the Immigration Law (passed in June 2011) had brought it into full conformity with the EU Return Directive and defined more clearly the grounds for detention of irregular migrants. In particular, new time-limits for the detention of foreign nationals awaiting deportation had been introduced (i.e. the initial custody of a maximum of ten days upon the decision of the Border Guard, which can be prolonged by court decision for a maximum of three consecutive two-month periods, and – if the irregular migrant refuses to co-operate with the immigration authorities or when delays occur in obtaining the necessary documents from another country – for a further twelve months).\n\n34. [Daugavpils accommodation centre] was opened in May 2011, following the closure of the immigration detention facility at Olaine. The Centre is managed by the State Border Guard [Service] under the Ministry of Internal Affairs and is currently the only detention centre for foreign nationals in Latvia. It is located in a refurbished two-storey building (the premises of former military barracks) not far from the centre of Daugavpils and has an official capacity of 70 places. At the time of the visit, the Centre was accommodating 33 foreign nationals, including 32 asylum seekers and one irregular migrant who was awaiting deportation (there were no unaccompanied minors). The average length of detention in the establishment was said to be two months.\n\n35. The CPT’s delegation received no allegations of ill-treatment of foreign nationals by staff at the Centre. All the inmates interviewed by the delegation stated that they were treated correctly. Further, the vast majority of inmates seemed to have no communication problems with staff since all staff members spoke Russian, and some also English and French.\n\n36. The delegation noted that staff openly carried truncheons in the two male units; in the CPT’s opinion, this is clearly not conducive to the development of positive relations between staff and inmates. The CPT recommends that steps be taken to ensure that staff working in the Centre do not openly carry truncheons in detention areas; if it is deemed necessary for staff to possess such equipment, it should be hidden from view.\n\n37. The material conditions in the Centre were very good. The establishment had two male units and a unit for women and families. Each unit comprised several rooms for two to four inmates, a recreation room and a well-equipped kitchen. The rooms were spacious (e.g. some 25 m2 for four persons), had good access to natural light and artificial lighting, and were well ventilated and clean. They were also properly furnished (beds with full bedding, wardrobes and a fully partitioned internal sanitary annexe including toilet and shower). The female unit also contained a pleasant play-room for children.\n\n38. The foreign nationals benefited from an open-door regime – being able to move about freely inside their respective units – and could go to a spacious outdoor courtyard for at least two hours per day (and longer in good weather). Further, during the day they had ready access to a recreation room where they could watch television and play board games. As for sports, a fitness room was accessible several times per week and, weather permitting, outdoor sports activities were also offered.\n\nHowever, the CPT invites the Latvian authorities to expand the range of activities for any foreign nationals held for prolonged periods at the Centre. The longer the period for which persons are detained, the more developed should be the activities which are offered to them.\n\n39. Arrangements for health care at the Centre were generally adequate. A feldsher or nurse was present every day from 9 a.m. to 9 p.m. The delegation noted that every newly admitted foreign national was examined by a member of the health-care staff, usually within 24 hours, and had a medical file opened. The medical facilities and equipment at the Centre were of a very good standard, and supply of medication was satisfactory. Further, it appeared that emergency medical care and transfers to outside medical establishments were arranged whenever necessary.\n\n40. Upon arrival at the Centre, foreign nationals were provided with written information about their rights and duties during their stay in the establishment; this information was available in various languages.\n\nThat said, no written information (i.e. leaflets) was provided to them setting out their procedural rights and legal situation. A number of foreign nationals interviewed by the delegation did not appear to be aware of the legal proceedings to which they were subjected; in this connection, many complaints were also received about the quality of interpretation during court proceedings. Further, some inmates complained that court decisions authorising their detention in the Centre had not been translated into a language they understood and that they were de facto deprived of the possibility to lodge an appeal against their detention. Moreover, no arrangements had been made to establish a legal counselling service at the establishment.\n\nThe CPT would like to receive the observations of the Latvian authorities in relation to the above-mentioned issues.\n\n41. The existing arrangements at the Centre for contacts with the outside world were generally satisfactory. Foreign nationals were allowed to send and receive letters and to have short-term visits. Further, there were no restrictions on making or receiving telephone calls during the day.\n\n42. The CPT understands that the internal regulations of the Centre are currently under preparation. The Committee would like to receive a copy of these regulations once they have been adopted.”\n\nB.  Domestic law\n\n34.  The relevant domestic law provisions on the detention of asylum seekers and their rights have been described in Longa Yonkeu v. Latvia (no. 57229/09, §§ 81-82, 84-86, 89-90, 15 November 2011). In particular, the following provisions of the Asylum Law are of relevance in the present case:\n\n“1. The State Border Guard Service has the authority to detain an asylum seeker for an initial period of up to seven days, if at least one of the following conditions is met:\n\n1) the identity of the asylum seeker has not been determined;\n\n2) there is reason to believe that the asylum seeker is attempting to misuse the asylum procedure;\n\n3) the competent State authorities, including the State Border Guard Service, have reason to believe that the asylum seeker poses a threat to national security or public order and safety.\n\n2. The State Border Guard Service shall detain and the judge shall authorise [further] detention of an asylum seeker in accordance with the Immigration Law.\n\n3. The time-limit laid down in paragraph 1 may be extended; however, the overall period of detention may not exceed the length of time taken to complete the asylum procedure ...”\n\n“1. The State Border Guard Service has the authority to detain an asylum seeker for an initial period of up to seven days, if at least one of the following conditions is met:\n\n1) the identity of the asylum seeker has not been determined;\n\n2) there is reason to believe that the asylum seeker is attempting to misuse the asylum procedure and it is necessary to find out the facts on which the application is based and which can be ascertained only by detention, especially if there is risk of absconding;\n\n3) the competent State authorities, including the State Border Guard Service, have reason to believe that the asylum seeker poses a threat to national security or public order and safety.\n\n1.1 An asylum seeker shall be released, if the grounds on basis of which he or she has been detained have ceased to exist.\n\n2. The State Border Guard Service shall detain and the judge shall authorise [further] detention of an asylum seeker in accordance with the Immigration Law.\n\n3. The time-limit laid down in paragraph 1 may be extended; however, the overall period of detention may not exceed the length of time taken to complete the asylum procedure ...”\n\n35.  In addition, as from 16 June 2011 the Immigration Law empowers the State Border Guard Service to detain aliens if there are reasons to believe that they will avoid the deportation procedure or impede its preparation, that they might flee and if there are grounds to consider that they are concealing their identity, providing false information or otherwise refusing to co-operate (section 51(2)(1)).\n\n36.  Under section 54(1) of the Immigration Law the corresponding detention order can be issued for up to ten days. An appeal lies against such a detention order.\n\n37.  In accordance with section 55(7) of the Immigration Law, a district (city) court must immediately proceed with examination of a complaint concerning an alien’s detention. The regional court’s decision in this regard is final.\n\n38.  Section 70 of the Administrative Procedure Law determines the point in time when an administrative act takes effect. It reads as follows:\n\n“(1) Provided that it is not otherwise stipulated in an external legal instrument or the administrative act itself, an administrative act shall come into effect at the time the addressee is notified of it. The manner in which the addressee is notified of the administrative act – in writing, orally or otherwise – shall not affect its coming into effect.\n\n(2) The addressee is notified of an administrative act pursuant to the Notification Law. If an administrative act unfavourable to the addressee is sent by mail, it shall be sent in the form of registered mail.\n\n(3) An administrative act shall be in effect until it is revoked, is executed, or may no longer be performed because of a change in the actual or legal circumstances.”\n\nSection 8(3) of the Notification Law provides as follows:\n\n“A document which has been notified as a registered postal item shall be deemed notified on the seventh day after handing it over to the post office.”\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION\n\n39.  The applicant alleged that his detention in the Daugavpils accommodation centre had been unlawful from 5 May to 7 October 2013. His detention had not been necessary, since there had been no evidence that he would flee or obstruct the asylum proceedings. Moreover, his identity had been confirmed since 27 May 2013 and the subsequent court decisions authorising further detention had been unfounded. Lastly, he considered that his detention from 4 to 7 October 2013 had been arbitrary and unlawful; he had continued to be detained despite the positive decision as regards his subsidiary protection status.\n\n40.  Article 5 § 1 (f) of the Convention provides as follows:\n\n“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ...\n\n(f)  the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. ...”\n\n41.  The Government contested the applicant’s allegations.\n\nA.  Scope of the applicant’s complaint\n\n42.  The Government submitted that the applicant’s complaint under Article 5 § 1 (f) of the Convention concerned two distinct periods: first, between 5 and 7 May 2013 when he was detained pending deportation; and secondly, the period between 7 May and 7 October 2013 when his asylum application was pending.\n\n43.  The applicant did not provide any comments in this respect, but merely reiterated that his detention had been unlawful and that it had not been necessary, since there had been no evidence that he would flee or obstruct the asylum proceedings.\n\n44.  In the light of the applicant’s submissions, the Court holds that his complaint relates to his detention solely in connection with the asylum proceedings. The Government submitted, and the applicant did not contest, that the asylum proceedings and his detention in connection with them had not commenced until 7 May 2013, when the applicant applied for asylum (see paragraph 8 above). The Court considers, accordingly, that the scope of the applicant’s complaint under Article 5 § 1 of the Convention includes his detention from 7 May 2013 onwards. Conversely, the scope of the applicant’s complaint does not include his detention from 5 to 7 May 2013, since during that period he was detained with a view to deportation, and he did not complain about that procedure.\n\nB.  Admissibility\n\n.  The Government raised a preliminary objection of non-exhaustion in that the applicant had not lodged an appeal against the decision of 6 September 2013 to extend his detention for a further two months.\n\n.  The applicant did not offer to expand on the explanation in his application form, where he had indicated that he had not lodged an appeal against that decision because the Asylum Affairs Division had been due to decide in less than one month and his previous experience had shown that detention appeals took about one month to be examined.\n\n.  The Court has already found that detention of asylum seekers in Latvia under the old Asylum Law was a continuing situation (see Longa Yonkeu, cited above, § 108). The situation remained largely unchanged following the entry into force of the new Asylum Law on 14 July 2009, which empowered the State Border Guard Service to detain asylum seekers for up to seven days if certain criteria were met. After the initial seven-day period a court order was necessary. Each time a judge examined the case, he or she had to verify whether those criteria had been met, in which case he or she could extend the detention for no longer than two months at a time (ibid., §§ 81-82).\n\n.  In the present case, the necessity of the applicant’s detention was examined by a judge on three occasions (10 May, 8 July and 6 September 2013) and each time it was extended for a further two months. The applicant lodged appeals against the decisions of 10 May and 8 July 2013, but not against the decision of 6 September 2013. The applicant’s argument before the domestic courts was that there was no need to detain him as he had provided identity documents and there was no reason to consider that he had misused the asylum procedure. Those arguments were examined by the domestic courts at first and second instance. There is nothing in the case file indicating that the appellate court, if repeatedly confronted with the issue, would take a different stance on this issue. In view of the fact that the applicant’s status was due to be decided in less than one month and that the domestic courts had taken approximately one month to examine his previous appeals, the Court considers that it cannot be held against the applicant that he chose not to pursue appellate proceedings in so far as the 6 September 2013 decision was concerned.\n\n49.  Accordingly, the Court dismisses the Government’s preliminary objection concerning non-exhaustion of domestic remedies.\n\n50.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nC.  Merits\n\n51.  According to the Government, the asylum proceedings commenced on 7 May 2013 when the applicant lodged his asylum application, and were completed on 26 February 2014 when the Administrative District Court adopted a final decision in the asylum proceedings to leave the applicant’s appeal without examination for repeated failure to appear without good reason. As to the lawfulness of the applicant’s detention in the period under examination, which ran from 7 May to 7 October 2013, the Government asserted that once every two months the competent authorities had extended the detention in accordance with domestic law, which was sufficiently clear and precise. Detention of an asylum seeker was prohibited beyond the date of a final decision. Since the applicant was released on 7 October 2013, before completion of the asylum procedure, his detention was not in breach of domestic law.\n\n.  As to the protection from arbitrariness, the Government argued that the applicant’s detention throughout the period under examination had been connected with the purpose of preventing his unauthorised entry into Latvia and had been carried out in good faith. The conditions of detention in the Daugavpils accommodation centre were more than satisfactory. In this connection, the Government referred to the CPT’s conclusions following its 2011 visit, which described the material conditions there as “very good” (see paragraph 33 above). They admitted that the domestic authorities had taken almost five months to examine the applicant’s asylum application. However, that amount of time had been reasonably required for the purpose pursued, given that the proceedings had been in progress, and the proceedings had been pursued with diligence and in a timely manner. The State Border Guard Service had taken approximately one and a half months to complete the inquiry, carry out the interviews, establish the applicant’s identity and collect other data. Once all the information had been collected, it was forwarded to the Office of Citizenship and Migration Affairs, who examined it and granted the applicant subsidiary protection status. There were no periods of unjustified inactivity attributable to the authorities. In the Government’s view, the definitive period of the applicant’s detention, as well as the periodic judicial review, provided sufficient guarantees against arbitrariness.\n\n53.  The applicant, for his part, did not provide any further submissions.\n\n54.  The Court observes at the outset that the parties did not dispute the fact that the applicant had been deprived of his liberty in the Daugavpils accommodation centre. The Court finds it established that, given that it was a closed facility, the applicant was deprived of his liberty within the meaning of Article 5 § 1 while he was held there. Likewise, it is not disputed that the applicant’s detention from 7 May to 7 October 2013 falls within the first limb of Article 5 § 1 (f) of the Convention.\n\n55.  The Court refers to the applicable principles in relation to detention to prevent unauthorised entry to a country as spelled out in the Longa Yonkeu judgment (cited above, §§ 119-21).\n\n56.  In addition, the Court notes that in order to avoid being branded as arbitrary, such detention must be carried out in good faith; it must be closely connected to the purpose of preventing unauthorised entry of the person to the country; the place and conditions of detention should be appropriate, bearing in mind that the measure is applicable not to those who have committed criminal offences but to aliens who, often fearing for their lives, have fled from their own country; and the length of the detention should not exceed that reasonably required for the purpose pursued (see Saadi v. the United Kingdom [GC], no. 13229/03, § 74, ECHR 2008).\n\n57.  As to the lawfulness of the detention, the Court notes that throughout the asylum proceedings the applicant was detained in accordance with domestic law. Initially, on 7 May 2013, he was detained under sections 9(1)(1) and 9(1)(2) of the Asylum Law, as his identity had not been determined and he had misused the asylum procedure. Three days later a judge authorised his detention for a further two months on the same grounds, which decision was upheld on appeal. Subsequently, on 8 July and 6 September 2013 the judge reviewed the lawfulness of his detention and concluded that even though his identity documents had been obtained in the meantime, there were reasons to believe that the applicant might still misuse the asylum procedure. His further detention was authorised under section 9(1)(2) of the Asylum Law. The Court rejects the applicant’s argument that his detention from 4 to 7 October 2013 was unlawful, because he was detained under a valid detention order issued by the judge on 6 September 2013 (see paragraph 28 above). Furthermore, even though a favourable decision had been adopted on 4 October 2013, the asylum proceedings were not completed and the relevant domestic time-limit for detention had not yet elapsed (contrast with the above-cited case of Longa Yonkeu, §§ 82 and 128 in fine, where the applicant was detained beyond the date of a final decision in asylum proceedings). Accordingly, the Court finds that the applicant’s detention from 7 May to 7 October 2009 was carried out in accordance with the law.\n\n.  In examining whether the applicant’s detention was compatible with the criteria set out in paragraph 56 above, the Court notes the findings of the Daugavpils (City) Court and the Latgale Regional Court (see paragraphs 2428 above). The national courts found that, initially, the applicant’s identity had not been determined. Subsequently, during the second set of review proceedings, the argument was raised that the applicant’s identity had been established, but the judge of the Daugavpils (City) Court rejected it, since there was evidence that the applicant might leave the country and misuse the asylum procedure. That decision was upheld on appeal (see paragraphs 26 and 27 above). Accordingly, the Court finds that the national authorities acted in good faith in detaining the applicant during the period underlying the detention orders. The Court also considers that the national authorities acted in good faith in detaining the applicant from 4 to 7 October 2013. The Court is mindful of the practical implications arising from the need to inform and formally notify an asylum seeker of a decision regarding his application; it considers that a period of three days cannot be considered arbitrary in the circumstances of the present case, where this period fell over a weekend and where the relevant decision-making and enforcement authorities were located in different cities. Moreover, the Court notes that, according to domestic law, the decision to grant subsidiary protection status entered into effect only when the applicant was notified of it (see paragraphs 16, 17 and 38 above). As soon as that decision took effect, on 7 October 2013, the applicant was immediately released given that the grounds for his detention had ceased to exist (see paragraph 30 above).\n\n.  As regards the place and conditions of detention, the Government referred to the CPT report following its visit in 2011, which established that the material conditions in the Daugavpils accommodation centre were very good. The Court sees no reason to hold otherwise, since the accommodation centre appears to have been adapted to hold asylum seekers (see paragraph 33 above; contrast with Suso Musa v. Malta, no. 42337/12, §§ 33 and 101, 23 July 2013 and Kanagaratnam v. Belgium, no. 15297/09, § 95, 13 December 2011). While the CPT suggested that certain improvements could be made, in particular as concerns the range of activities offered, information on detainees’ procedural rights and legal situation, as well as access to legal counselling, the applicant in the present case did not raise any particular concerns before the Court in this regard. The Court observes that the applicant was able to appoint a lawyer, who continued to represent him before the Court (see paragraphs 2 and 28 above).\n\n.  Lastly, as regards the length of detention, the Court observes that the applicant was held in the Daugavpils accommodation centre from 7 May to 7 October 2013, that is for five months; he was released on the latter date after having been notified of the decision to grant him subsidiary protection status. The asylum proceedings were pending throughout the applicant’s detention, with the national authorities taking the necessary steps to establish his identity, confirm it and determine his application for asylum within the time-limits laid down in domestic law. While it is true that his identity was established on 31 May and on 21 June 2013 the relevant authority was informed of it, his further detention remained authorised under section 9(1)(2) of the Asylum Law for misuse of asylum procedure. In such circumstances, the overall period of the applicant’s detention cannot be said to have exceeded what was reasonably required for the purpose pursued, in particular because as the conditions in the Daugavpils accommodation centre appear to have been adapted to hold asylum seekers (contrast with Suso Musa, cited above, § 102).\n\n61.  The foregoing considerations are sufficient to enable the Court to conclude that the applicant’s detention from 7 May to 7 October 2013 to prevent his unauthorised entry into Latvia was effected in accordance with a procedure prescribed by law and was justified.\n\n62.  There has, accordingly, been no violation of Article 5 § 1 of the Convention.\n\nII.  ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION\n\n63.  The applicant complained that the appeal procedure to contest the lawfulness of his detention had not been effective. He was dissatisfied with the lack of speediness in the review by the appellate court and with the fact that those proceedings had been conducted in writing and in a language he did not understand. Article 5 § 4 of the Convention provides as follows:\n\n“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”\n\n64.  The Government contested that argument.\n\nA.  Admissibility\n\n65.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n1.  Speediness of review\n\n66.  The Government submitted that the domestic law provided for mandatory judicial review of the lawfulness of detention at regular intervals – once every two months. With reference to the cases of Longa Yonkeu (cited above, § 157) and Ermakov v. Russia (no. 43165/10, § 272, 7 November 2013) they argued that such review complied with Article 5 § 4 of the Convention. The domestic courts examined the reasons for further detention and set specific time-limits; they also took into account that the asylum proceedings were underway. The first-instance court had to proceed “immediately” to review the lawfulness of detention of an asylum seeker (see paragraph 37 above); in practice, that meant that it examined such applications on the same day as they were submitted or not later than the following day. With reference to the above-cited Ermakov case (§ 261), the Government argued that the supervision required by Article 5 § 4 of the Convention had been incorporated in the first-instance court decisions of 10 May, 8 July and 6 September 2013.\n\n67.  The Government pointed out that the applicant could lodge appeals against the first-instance court decisions within forty-eight hours, which he had done in respect of the decisions of 10 May and 8 July 2013. In relation to the first of his appeals, the Government noted that it had had to be translated; the translation had been received on 7 June 2013 and on the same date the applicant had been invited to submit further observations within forty-eight hours. The Government submitted that the Latgale Regional Court had examined his appeal within fifteen working days of its receipt in that court. As regards the second appeal, they noted that it had been examined within twelve working days of its receipt.\n\n68.  The applicant merely reiterated that he was dissatisfied with the lack of speediness in the review by the appellate court.\n\n69.  The Court reiterates that Article 5 § 4 of the Convention proclaims the right to a speedy judicial decision concerning the lawfulness of detention and ordering its termination if it proves unlawful (see Baranowski v. Poland, no. 28358/95, § 68, ECHR 2000‑III). Article 5 § 4 does not compel the Contracting States to set up a second level of jurisdiction for the examination of the lawfulness of detention. However, where domestic law provides for appeal, the appellate body must also comply with the requirements of Article 5 § 4, for instance as concerns the speediness of the review in appeal proceedings (see, among many other authorities, Navarra v. France, 23 November 1993, § 28, Series A no. 273B). At the same time, the standard of “speediness” is less stringent when it comes to proceedings before a court of appeal (see Lebedev v. Russia, no. 4493/04, § 96, 25 October 2007). In order to determine whether the requirement that a decision be given “speedily” has been complied with, it is necessary to effect an overall assessment where the proceedings were conducted at more than one level of jurisdiction. As is the case for the “reasonable time” stipulation in Articles 5 § 3 and 6 § 1 of the Convention, the question whether the right to a speedy decision has been respected must be determined in the light of the circumstances of each case, including the complexity of the proceedings, the conduct by the domestic authorities and by the applicant and what was at stake for the latter (see Mooren v. Germany [GC], no. 11364/03, § 106, 9 July 2009 and the cases cited therein). The Court must, in particular, examine whether any new relevant factors that had arisen in the interval between periodic reviews were assessed, without unreasonable delay, by a court with jurisdiction to decide whether or not the detention had become “unlawful” in the light of those new factors (see Abdulkhakov v. Russia, no. 14743/11, § 215, 2 October 2012).\n\n70.  Turning to the present case, the Court notes that the applicant’s first appeal against the detention order of 10 May 2013 was dismissed by the Latgale Regional Court on 5 July 2013, that is, within fifty-five days. That period, by itself, is not insignificant (see Lebedev, cited above, § 98). The applicant’s second appeal against the decision of the Daugavpils Court of 8 July 2013 to further extend his detention was dismissed by the Latgale Regional Court on 30 July 2013, that is, within twenty-two days.\n\n.  The Court considers that the mere fact that the applicant’s detention was ordered by a court and subsequently reviewed with two-monthly intervals does not automatically mean that Article 5 § 4 requirements have been observed. As noted in paragraph 69 above, while States are not required to set up courts of appeal to review the lawfulness of detention, should they choose to do so, the appeal court also has to comply with the requirement of “speediness”. It is incumbent on the judicial authorities to make the necessary administrative arrangements to ensure that urgent matters are dealt with speedily, and this is particularly necessary when the individual’s personal liberty is at stake (see S.T.S. v. the Netherlands, no. 277/05, § 48, ECHR 2011 and the case-law cited therein).\n\n72.  Although the number of days taken to conduct the relevant proceedings is obviously an important element, it is not necessarily in itself decisive for the question of whether a decision has been given with the requisite speed (see Savriddin Dzhurayev v. Russia, no. 71386/10, § 225, ECHR 2013 (extracts)). The question whether a person’s right under Article 5 § 4 has been respected has to be determined in the light of the circumstances of each case (see paragraph 69 above). The Court has found that the “speediness” requirement was breached in appellate proceedings that lasted for fifty-four days and twenty-nine days respectively (see Savriddin Dzhurayev, cited above, §§ 226 and 231).\n\n.  The Court notes that the applicant, who was an asylum seeker, was detained because his identity had not been determined and he had misused the asylum procedure. While in the first set of review proceedings his appeal was drafted in a rather general manner, it was clear that he was contesting the detention order issued by the judge (see paragraph 24 above). In the Court’s opinion, these were rather straightforward matters, and it has not been argued by the parties that the case itself disclosed any features of particular complexity, necessitating detailed investigation and warranting lengthy consideration. Nor was it argued that proper review of the applicant’s detention had required, for instance, the collection of additional observations and documents (contrast with Longa Yonkeu, cited above, §§ 41-43 and 157, where a hearing was held before the appellate court).\n\n.  The Government argued that additional time was needed to translate the applicant’s first appeal. However, the Court notes that it took twentyfive days for the domestic authorities to ensure translation of a one-page appeal drafted in simple terms. That period cannot be considered reasonable, bearing in mind the strict standards set down by the Court in its case-law (see the above-cited cases of Lebedev and Savriddin Dzhurayev, where the Court found that periods of forty-four days, fifty-four days and twenty-nine days, respectively, were excessive in the appellate proceedings concerning lawfulness of detention). Furthermore, the fact that the applicant’s identity had been confirmed while the first set of appeal proceedings were pending was not put forward before the appellate court and, thus, it did not need to examine this issue. It cannot, therefore, be said that the appellate court needed additional time to carry out a more detailed examination in this regard.\n\n75.  While no additional time was needed to translate the applicant’s second appeal as it was submitted in Latvian, the appellate court nevertheless took twenty-two days to adopt its final decision. Furthermore, also in these proceedings, the appellate court did not need to examine the issue of the applicant’s identity, as the first-instance court had already excluded it and authorised detention solely under section 9(1)(2) of the Asylum Law.\n\n76.  The Court finds nothing in the materials of the case to indicate that the applicant contributed to the length of the appeal proceedings. He lodged both appeals on the dates the decisions were taken by the first-instance court. It therefore follows that the entire length of the two sets of appeal proceedings (fifty-five and twenty-two days, respectively) was attributable to the domestic authorities.\n\n.  Having regard to the delays at issue, the overall duration of the proceedings and what was at stake for the applicant, the Court concludes that the proceedings were not conducted “speedily” within the meaning of Article 5 § 4 of the Convention. There has accordingly been a breach of this Article.\n\n2.  Alleged inability to obtain effective review of detention\n\n.  The Government emphasised that the applicant had fully benefitted from adversarial proceedings and enjoyed all necessary procedural guarantees to render the proceedings before the first-instance court effective and fair. Both appellate court decisions had been forwarded to the State Border Guard Service, which had to notify the applicant of them and provide a translation. His notes on the decisions themselves demonstrated that he was acquainted with their contents (see paragraph 27 above). The applicant had not argued or specified in more detail how the written proceedings before the appellate court had prevented him from exercising his procedural rights, for example, by lodging further submissions. The Government contended that Article 5 § 4 of the Convention could not be interpreted to compel Member States to ensure oral proceedings before the second level of jurisdiction for examination of the lawfulness of detention.\n\n.  The applicant merely reiterated that he was dissatisfied with the fact that the appellate proceedings had been conducted in writing and in a language he did not understand.\n\n.  As to the requirement of procedural fairness under Article 5 § 4, the Court reiterates that this Article does not impose a uniform, unvarying standard to be applied irrespective of the context, facts and circumstances. Although it is not always necessary that an Article 5 § 4 procedure be attended by the same guarantees as those required under Article 6 for criminal or civil litigation, it must have a judicial character and provide guarantees appropriate to the type of deprivation of liberty in question. Thus, the proceedings must be adversarial and must always ensure “equality of arms” between the parties (see A. and Others v. the United Kingdom [GC], no. 3455/05, §§ 203-04, ECHR 2009 and the cases cited therein).\n\n81.  The Court observes, first of all, that the applicant was duly notified of the procedure before the appellate court; it was explained to him by the State Border Guard Service on the basis of the information received from the court, and he certified it with his signature in both sets of review proceedings (see paragraphs 24 and 26 above). While he did not have a lawyer in the first set of review proceedings, it did not prevent him from lodging an appeal (see paragraph 24 above). In the second set of review proceedings he had the same lawyer, who continued to represent him before the Court (see paragraph 14 above). The applicant was afforded the possibility of lodging further observations with the appellate court (see paragraphs 24 and 26 above). There is no indication that he did not understand the procedure or could not exercise his rights. Lastly, the appellate court’s decisions were fully reasoned and explained to him (see paragraphs 25, 27 and 78 above).\n\n82.  Secondly, as regards the written procedure, the Court notes that the applicant did not request that an oral hearing be held by the appellate court. Indeed, under the written procedure before the Latgale Regional Court a case had to be decided on the basis of the evidence before it. The applicant did not suggest that he had been denied access to the case file or had been unable to comment on it.\n\n83.  In such circumstances the Court considers that in both sets of review proceedings before the Latgale Regional Court the applicant was given a reasonable opportunity to present his case.\n\n84.  The foregoing considerations are sufficient to enable the Court to conclude that there has been no violation of Article 5 § 4 in this respect.\n\nIII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n85.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\n86.  The applicant claimed 15,000 euros (EUR) in respect of non-pecuniary damage, that is, EUR 3,000 for every month spent in detention, on account of the distress and anxiety caused by his allegedly unlawful detention.\n\n87.  The Government considered the applicant’s claim exorbitant.\n\n88.  The Court considers that the finding of a violation of Article 5 § 4 of the Convention constitutes in itself sufficient just satisfaction in the circumstances of the present case.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\n1.  Declares the complaints under Article 5 §§ 1 and 4 of the Convention admissible;\n\n2.  Holds that there has been no violation of Article 5 § 1 of the Convention;\n\n3.  Holds that there has been a violation of Article 5 § 4 of the Convention as regards speediness of review;\n\n4.  Holds that there has been no violation of Article 5 § 4 of the Convention as regards effective review of detention;\n\n5.  Holds that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage the applicant might have sustained.\n\nDone in English, and notified in writing on 21 July 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_714","text":"PROCEDURE\n\n1.  The case originated in an application (no. 27912/02) against Bosnia and Herzegovina lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a citizen of , Mr Mustafa Suljagić (“the applicant”), on 2 July 2002.\n\n2.  The applicant alleged that the domestic legislation on “old” foreign-currency savings failed to strike a “fair balance” between the relevant interests in the light of Article 1 of Protocol No. 1 to the Convention.\n\n3.  By a decision of 20 June 2006 the Court joined to the merits the question of the applicant's victim status and declared the application admissible.\n\n3.  By a decision of 20 June 2006 the Court joined to the merits the question of the applicant's victim status and declared the application admissible.\n\n4.  The applicant and the Government each filed further written observations (Rule 59 § 1). In addition, third-party comments were received from two associations, the Association for the Protection of Foreign-Currency Savers in Bosnia and Herzegovina (Udruženje za zaštitu deviznih štediša u Bosni i Hercegovini) from the Federation of Bosnia and Herzegovina and the Association for the Return of Foreign-Currency Savings in Bosnia and Herzegovina and Diaspora (Udruženje građana za povrat stare devizne štednje u Bosni i Hercegovini i dijaspori) from the Republika Srpska, which had been invited to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2). The parties replied to each other's observations and the third parties' comments at the hearing (Rule 44 § 5).\n\n5.  A hearing took place in public in the Human Rights Building, , on 10 March 2009 (Rule 59 § 3).\n\nThere appeared before the Court:\n\nThe Court heard addresses by Mr Suljagić and Ms Mijić.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\nA.  Relevant background to the present case\n\nA.  Relevant background to the present case\n\n6.  The present case relates to the issue of “old” foreign-currency deposits (foreign currency deposited before the dissolution of the Socialist Federal Republic of Yugoslavia – “the SFRY”).\n\n6.  The present case relates to the issue of “old” foreign-currency deposits (foreign currency deposited before the dissolution of the Socialist Federal Republic of Yugoslavia – “the SFRY”).\n\n7.  Until the 1989/90 economic reforms (the so-called Marković reforms, named after the then Prime Minister Ante Marković), the commercial banking system of the SFRY consisted of self-managed basic and associated banks. Basic banks, founded and nominally controlled by socially owned enterprises, carried on day-to-day commercial banking activities. Two or more basic banks could form an associated bank through a self-management agreement, while preserving their legal personality. In the SFRY, there were more than 150 basic banks and nine associated banks (namely Jugobanka Beograd, Beogradska udružena banka Beograd, Vojvođanska banka Novi Sad, Kosovska banka Priština, Udružena banka Hrvatske Zagreb, Ljubljanska banka Ljubljana, Privredna banka Sarajevo, Stopanska banka Skopje and Investiciona banka ).\n\n7.  Until the 1989/90 economic reforms (the so-called Marković reforms, named after the then Prime Minister Ante Marković), the commercial banking system of the SFRY consisted of self-managed basic and associated banks. Basic banks, founded and nominally controlled by socially owned enterprises, carried on day-to-day commercial banking activities. Two or more basic banks could form an associated bank through a self-management agreement, while preserving their legal personality. In the SFRY, there were more than 150 basic banks and nine associated banks (namely Jugobanka Beograd, Beogradska udružena banka Beograd, Vojvođanska banka Novi Sad, Kosovska banka Priština, Udružena banka Hrvatske Zagreb, Ljubljanska banka Ljubljana, Privredna banka Sarajevo, Stopanska banka Skopje and Investiciona banka ).\n\n8.  Hard-pressed for hard currency as it was, the SFRY made it attractive for its expatriate workers and other citizens to deposit their foreign currency with commercial banks based in the SFRY: such deposits earned high interest (the annual interest rate often exceeded 10%) and were guaranteed by the State (see, for example, section 14(3) of the Foreign-Currency Transactions Act 1985 and section 76(1) of the Banks and Other Financial Institutions Act 1989).\n\n9.  The Foreign-Currency Transactions Act 1977 introduced a system for redepositing of foreign currency by commercial banks with the National Bank of . Although the system was optional, it allowed commercial banks to shift the currency risk to the State and practically all foreign currency was thus redeposited. In addition, the National Bank of  was required to grant national-currency loans (initially, interest-free) to commercial banks to the value of the redeposited foreign currency. It should be underlined, however, that such redepositing was as a rule only a paper transaction, because commercial banks had insufficient liquid funds: it would appear that commercial banks redeposited in total 12.2 billion United States dollars (USD), out of which only USD 1.7 billion (approximately 14%) was actually transferred to the National Bank of Yugoslavia (see Kovačić and Others v. Slovenia [GC], nos. 44574/98, 45133/98 and 48316/99, §§ 36 and 39, ECHR 2008-...; see also decision AP 164/04 of the Constitutional Court of Bosnia and Herzegovina of 1 April 2006, § 53). In 1988 the system of redeposits was brought to an end (see section 103 of the Foreign-Currency Transactions Act 1985, as amended on 15 October 1988).\n\n9.  The Foreign-Currency Transactions Act 1977 introduced a system for redepositing of foreign currency by commercial banks with the National Bank of . Although the system was optional, it allowed commercial banks to shift the currency risk to the State and practically all foreign currency was thus redeposited. In addition, the National Bank of  was required to grant national-currency loans (initially, interest-free) to commercial banks to the value of the redeposited foreign currency. It should be underlined, however, that such redepositing was as a rule only a paper transaction, because commercial banks had insufficient liquid funds: it would appear that commercial banks redeposited in total 12.2 billion United States dollars (USD), out of which only USD 1.7 billion (approximately 14%) was actually transferred to the National Bank of Yugoslavia (see Kovačić and Others v. Slovenia [GC], nos. 44574/98, 45133/98 and 48316/99, §§ 36 and 39, ECHR 2008-...; see also decision AP 164/04 of the Constitutional Court of Bosnia and Herzegovina of 1 April 2006, § 53). In 1988 the system of redeposits was brought to an end (see section 103 of the Foreign-Currency Transactions Act 1985, as amended on 15 October 1988).\n\n10.  Problems resulting from the foreign and domestic debt of the SFRY caused a monetary crisis in the 1980s. The national economy was on the verge of collapse and the SFRY resorted to emergency measures, such as statutory restrictions on the repayment of foreign-currency deposits (see section 71 of the Foreign-Currency Transactions Act 1985). As a result, foreign-currency deposits were practically frozen.\n\n10.  Problems resulting from the foreign and domestic debt of the SFRY caused a monetary crisis in the 1980s. The national economy was on the verge of collapse and the SFRY resorted to emergency measures, such as statutory restrictions on the repayment of foreign-currency deposits (see section 71 of the Foreign-Currency Transactions Act 1985). As a result, foreign-currency deposits were practically frozen.\n\n11.  Within the framework of the Marković reforms, the SFRY abolished the system of basic and associated banks described above. This shift in the banking regulations allowed some basic banks to opt for an independent status, while other basic banks became branches (without legal personality) of the associated banks to which they had beforehand belonged.\n\n11.  Within the framework of the Marković reforms, the SFRY abolished the system of basic and associated banks described above. This shift in the banking regulations allowed some basic banks to opt for an independent status, while other basic banks became branches (without legal personality) of the associated banks to which they had beforehand belonged.\n\n12.  Some important features of the banking system remained, however, unaffected by the reforms. First of all, commercial banks remained under the regime of “social ownership” – a concept which, while it does exist in other countries, was particularly highly developed in the SFRY. Secondly, both commercial banks and the State had financial obligations arising from foreign-currency savings: depositors were entitled to collect their deposits at any time, together with accumulated interest, from commercial banks (see sections 1035 and 1045 of the Civil Obligations Act 1978) or, in the event of a commercial bank's “manifest insolvency” or bankruptcy, from the State (see sections 1004(2) and 1007(2) of the Civil Obligations Act 1978, section 18 of the Banks and Other Financial Institutions Insolvency Act 1989 and a decision of the SFRY Government of 23 May 1990).\n\n13.  In 1991/92 the SFRY ceased to exist. It was replaced by five successor States: Bosnia and Herzegovina, Croatia, the Federal Republic of Yugoslavia (succeeded in 2006 by Serbia), “the former Yugoslav Republic of Macedonia” and .\n\n13.  In 1991/92 the SFRY ceased to exist. It was replaced by five successor States: Bosnia and Herzegovina, Croatia, the Federal Republic of Yugoslavia (succeeded in 2006 by Serbia), “the former Yugoslav Republic of Macedonia” and .\n\n14.  A brutal war started in  shortly after its declaration of independence. During the war,  took over the statutory guarantee for “old” foreign-currency savings from the SFRY (pursuant to section 6 of the SFRY Legislation Application Act 1992). Furthermore, the concept of “social ownership” was abandoned (see the Social Ownership Transformation Act 1993 and the Social Ownership Transformation Act 1994). As a result, all commercial banks based in  were effectively nationalised. While the use of “old” foreign-currency savings was allowed in some exceptional situations during the war, it would appear that this possibility remained only theoretical (see a decision of the Presidency of the  of 18 February 1993 and a decision of the National Bank of the Republika Srpska of 17 June 1993).\n\n15.  On 14 December 1995 the General Framework Agreement for Peace in  (“the Dayton Peace Agreement”) entered into force. It confirmed the continuation of the legal existence of Bosnia and Herzegovina as a State, while modifying its internal structure (Article 1 § 1 of Annex 4 to the Dayton Peace Agreement, named the “Constitution of ”). In accordance with Article 1 § 3 of Annex 4, Bosnia and Herzegovina consists of two Entities: the Federation of  and the Republika Srpska. The Dayton Peace Agreement failed to resolve the Inter-Entity Boundary Line in the Brčko area, but the parties agreed to a binding arbitration in this regard under UNCITRAL rules (Article V of Annex 2 to the Dayton Peace Agreement). Meanwhile, the rural parts of the pre-war Brčko municipality remained under the control of the Federation of Bosnia and Herzegovina and the town of  under the control of the Republika Srpska. An arbitral tribunal issued its final award on 5 March 1999. It suspended the legal authority of the Entities within the whole territory of the pre-war Brčko municipality and transferred all of the Entity powers to the newly-created Brčko District under the exclusive sovereignty of  and international supervision. The Brčko District was formally inaugurated on 8 March 2000. Nevertheless, Entity legislation continued to apply in the District until modified by the Supervisor of Brčko or the District Assembly. All Entity legislation ceased to have legal effect in the District on 4 August 2006.\n\n15.  On 14 December 1995 the General Framework Agreement for Peace in  (“the Dayton Peace Agreement”) entered into force. It confirmed the continuation of the legal existence of Bosnia and Herzegovina as a State, while modifying its internal structure (Article 1 § 1 of Annex 4 to the Dayton Peace Agreement, named the “Constitution of ”). In accordance with Article 1 § 3 of Annex 4, Bosnia and Herzegovina consists of two Entities: the Federation of  and the Republika Srpska. The Dayton Peace Agreement failed to resolve the Inter-Entity Boundary Line in the Brčko area, but the parties agreed to a binding arbitration in this regard under UNCITRAL rules (Article V of Annex 2 to the Dayton Peace Agreement). Meanwhile, the rural parts of the pre-war Brčko municipality remained under the control of the Federation of Bosnia and Herzegovina and the town of  under the control of the Republika Srpska. An arbitral tribunal issued its final award on 5 March 1999. It suspended the legal authority of the Entities within the whole territory of the pre-war Brčko municipality and transferred all of the Entity powers to the newly-created Brčko District under the exclusive sovereignty of  and international supervision. The Brčko District was formally inaugurated on 8 March 2000. Nevertheless, Entity legislation continued to apply in the District until modified by the Supervisor of Brčko or the District Assembly. All Entity legislation ceased to have legal effect in the District on 4 August 2006.\n\n16.  On 28 November 1997 the Federation of Bosnia and Herzegovina assumed full liability for “old” foreign-currency savings in locally based commercial banks in order to prepare them for privatisation (in accordance with section 3(1) of the Claims Settlement Act 1997 and the Non-Residents' Claims Settlement Decree 1999). While withdrawal remained impossible, residents of that Entity were given the possibility of using their “old” foreign-currency savings to purchase the State-owned flats in which they lived (where this was indeed the case) and certain State-owned companies (see section 18 of the Claims Settlement Act 1997, as amended on 21 August 2004 and on 7 November 2007).\n\n16.  On 28 November 1997 the Federation of Bosnia and Herzegovina assumed full liability for “old” foreign-currency savings in locally based commercial banks in order to prepare them for privatisation (in accordance with section 3(1) of the Claims Settlement Act 1997 and the Non-Residents' Claims Settlement Decree 1999). While withdrawal remained impossible, residents of that Entity were given the possibility of using their “old” foreign-currency savings to purchase the State-owned flats in which they lived (where this was indeed the case) and certain State-owned companies (see section 18 of the Claims Settlement Act 1997, as amended on 21 August 2004 and on 7 November 2007).\n\n17.  Similarly, the Republika Srpska assumed full liability for “old” foreign-currency savings in commercial banks based there (see section 20 of the Opening Balance Sheets (Banks) Act 1998, as amended on 8 January 2002). However, unlike in the Federation of Bosnia and , where the liability shifted simultaneously with respect to all commercial banks, in the Republika Srpska the liability shifted for each commercial bank upon its privatisation. The relevant dates for the two main commercial banks with “old” foreign-currency deposits, the Banjalučka banka and the Kristal banka, were 18 January and 17 April 2002 respectively. The privatisation process was completed in the Republika Srpska in respect of commercial banks on 31 December 2002. Residents of that Entity were also given the possibility of using their “old” foreign-currency savings to purchase the State-owned flats in which they lived and certain State-owned companies (see section 19 of the Privatisation of Companies Act 1998).\n\n17.  Similarly, the Republika Srpska assumed full liability for “old” foreign-currency savings in commercial banks based there (see section 20 of the Opening Balance Sheets (Banks) Act 1998, as amended on 8 January 2002). However, unlike in the Federation of Bosnia and , where the liability shifted simultaneously with respect to all commercial banks, in the Republika Srpska the liability shifted for each commercial bank upon its privatisation. The relevant dates for the two main commercial banks with “old” foreign-currency deposits, the Banjalučka banka and the Kristal banka, were 18 January and 17 April 2002 respectively. The privatisation process was completed in the Republika Srpska in respect of commercial banks on 31 December 2002. Residents of that Entity were also given the possibility of using their “old” foreign-currency savings to purchase the State-owned flats in which they lived and certain State-owned companies (see section 19 of the Privatisation of Companies Act 1998).\n\n18.  In the course of 2002 all commercial banks in the Brčko District were privatised by the Entities through an agreement with the District and with the approval of the Supervisor of Brčko.\n\n18.  In the course of 2002 all commercial banks in the Brčko District were privatised by the Entities through an agreement with the District and with the approval of the Supervisor of Brčko.\n\n19.  Legislation providing for the use of “old” foreign-currency savings in the privatisation process had limited appeal and, moreover, led to abuses: an unofficial market emerged on which such savings were sometimes sold for no more than 3% of their nominal value. In 2004, in an attempt to remedy the situation, the Entities and the District agreed to recompense “old” foreign-currency savers in cash and government bonds and set up repayment schemes to this effect. However, pursuant to decision U 14/05 of the Constitutional Court of Bosnia and Herzegovina of 2 December 2005, the three repayment schemes were replaced by one for the entire territory of Bosnia and Herzegovina (see “Relevant domestic law and practice” below).\n\nB.  The present case\n\n20.  The applicant was born in 1935 and lives in the vicinity of Srebrenik, in .\n\n21.  He worked across Europe as a mailman, construction worker and handyman in the 1970s and 1980s and deposited foreign currency earned abroad with a basic bank based in Tuzla, a member of the Privredna banka . During the Marković reforms the bank became a separate entity, named Tuzlanska banka. In 1994 it was nationalised (see paragraph 14 above) and in 1998 it was sold to a commercial bank based in  (Nova Ljubljanska banka).\n\n22.  After several failed attempts to withdraw his funds, the applicant complained to the Human Rights Chamber (a human-rights body set up under Annex 6 to the Dayton Peace Agreement). By a decision of 6 April 2005 (decision CH/98/375 et al.), the Human Rights Commission, the legal successor of the Human Rights Chamber, found the contemporary legislation to be contrary to Article 6 of the Convention (on account of the lack of procedural guarantees) and Article 1 of Protocol No. 1 to the Convention (on account of the lack of a fair balance between the relevant interests). Besides some general measures, it awarded the applicant 500 convertible marks (BAM) in respect of non-pecuniary damage and legal costs.\n\n22.  After several failed attempts to withdraw his funds, the applicant complained to the Human Rights Chamber (a human-rights body set up under Annex 6 to the Dayton Peace Agreement). By a decision of 6 April 2005 (decision CH/98/375 et al.), the Human Rights Commission, the legal successor of the Human Rights Chamber, found the contemporary legislation to be contrary to Article 6 of the Convention (on account of the lack of procedural guarantees) and Article 1 of Protocol No. 1 to the Convention (on account of the lack of a fair balance between the relevant interests). Besides some general measures, it awarded the applicant 500 convertible marks (BAM) in respect of non-pecuniary damage and legal costs.\n\n23.  On 29 December 2006 the competent verification agency assessed the amount of the applicant's “old” foreign-currency savings at BAM 269,275.21 (see paragraph 27 below).\n\n23.  On 29 December 2006 the competent verification agency assessed the amount of the applicant's “old” foreign-currency savings at BAM 269,275.21 (see paragraph 27 below).\n\n24.  On 11 June 2007 the applicant received BAM 1,000 (see paragraph 29 below). On 14 May 2009 he received the first instalments of the principal debt and of interest on the bonds, both due on 27 September 2008, in the total amount of BAM 4,237.44 (see paragraph 31 below).\n\n25.  It would appear that the government bonds due on 31 March 2008 have not yet been issued (see paragraph 30 below) and that the second instalment of interest on the bonds, due on 27 March 2009, has not yet been paid (see paragraph 31 below).\n\nII.  RELEVANT DOMESTIC LAW AND PRACTICE\n\n26.  For the relevant law and practice, see the admissibility decision in Jeličić v. Bosnia and Herzegovina (dec.), no. 41183/02, ECHR 2005XII; Suljagić v. Bosnia and Herzegovina (dec.), no. 27912/02, 20 June 2006; and the judgment in Jeličić v. Bosnia and Herzegovina, no. 41183/02, ECHR 2006-XII.\n\n26.  For the relevant law and practice, see the admissibility decision in Jeličić v. Bosnia and Herzegovina (dec.), no. 41183/02, ECHR 2005XII; Suljagić v. Bosnia and Herzegovina (dec.), no. 27912/02, 20 June 2006; and the judgment in Jeličić v. Bosnia and Herzegovina, no. 41183/02, ECHR 2006-XII.\n\n26.  For the relevant law and practice, see the admissibility decision in Jeličić v. Bosnia and Herzegovina (dec.), no. 41183/02, ECHR 2005XII; Suljagić v. Bosnia and Herzegovina (dec.), no. 27912/02, 20 June 2006; and the judgment in Jeličić v. Bosnia and Herzegovina, no. 41183/02, ECHR 2006-XII.\n\n27.  Furthermore, the Old Foreign-Currency Savings Act 2006 entered into force on 15 April 2006 (“the 2006 Act”).  undertook to recompense original deposits in locally based banks and interest accrued by 31 December 1991 at the original rate, less any funds already used (see paragraphs 14 and 16-17 above). Interest accrued from 1 January 1992 until 15 April 2006 is to be cancelled and calculated afresh at an annual rate of 0.5%. The assessment of the amounts due to each claimant is to be carried out under an administrative procedure by verification agencies. The deadline for submitting an application to this effect has been extended on several occasions.\n\n27.  Furthermore, the Old Foreign-Currency Savings Act 2006 entered into force on 15 April 2006 (“the 2006 Act”).  undertook to recompense original deposits in locally based banks and interest accrued by 31 December 1991 at the original rate, less any funds already used (see paragraphs 14 and 16-17 above). Interest accrued from 1 January 1992 until 15 April 2006 is to be cancelled and calculated afresh at an annual rate of 0.5%. The assessment of the amounts due to each claimant is to be carried out under an administrative procedure by verification agencies. The deadline for submitting an application to this effect has been extended on several occasions.\n\n28.  The Constitutional Court of Bosnia and Herzegovina has examined the constitutionality of the provision concerning the reduction of the interest rate to 0.5% for the period from 1 January 1992 until 15 April 2006 and considered it to be justified given the overall circumstances, notably the need to reconstruct the national economy following a devastating war (see decision U 13/06 of 28 March 2008, § 28).\n\n28.  The Constitutional Court of Bosnia and Herzegovina has examined the constitutionality of the provision concerning the reduction of the interest rate to 0.5% for the period from 1 January 1992 until 15 April 2006 and considered it to be justified given the overall circumstances, notably the need to reconstruct the national economy following a devastating war (see decision U 13/06 of 28 March 2008, § 28).\n\n29.  All claimants that have obtained verification certificates (see the penultimate sentence of paragraph 27 above) are entitled to a cash payment of up to BAM 1,000 in the Federation of Bosnia and  and the Brčko District and up to BAM 2,000 in the Republika Srpska. Any remaining amount will then be reimbursed in government bonds.\n\n29.  All claimants that have obtained verification certificates (see the penultimate sentence of paragraph 27 above) are entitled to a cash payment of up to BAM 1,000 in the Federation of Bosnia and  and the Brčko District and up to BAM 2,000 in the Republika Srpska. Any remaining amount will then be reimbursed in government bonds.\n\n30.  In accordance with the 2006 Act, government bonds were to be issued by 31 March 2008. They should be amortised by 31 December 2016 at the latest and earn interest at an annual rate of 2.5%. While it had initially been planned to issue State bonds through the Central Bank, on 12 January 2008 the Republika Srpska passed its own Old Foreign-Currency Savings Act 2008 (“the RS Act”), cutting the amortisation period for government bonds down to five years, and issued its own Entity bonds on 28 February 2008. On 4 October 2008 the Constitutional Court of Bosnia and Herzegovina declared the RS Act constitutional (decision U 3/08 of 4 October 2008). It decided that the constituent units (the Entities and the District) had jurisdiction to regulate the matter of “old” foreign-currency savings, provided that they remained within the framework of the 2006 Act. Following this decision, the Central Bank refused to issue government bonds only for some constituent units. As a result, the Federation of Bosnia and  and the Brčko District had to issue their own bonds. While the Brčko District did so on 30 June 2009, it would appear that bonds have not yet been issued in the Federation of Bosnia and .\n\n30.  In accordance with the 2006 Act, government bonds were to be issued by 31 March 2008. They should be amortised by 31 December 2016 at the latest and earn interest at an annual rate of 2.5%. While it had initially been planned to issue State bonds through the Central Bank, on 12 January 2008 the Republika Srpska passed its own Old Foreign-Currency Savings Act 2008 (“the RS Act”), cutting the amortisation period for government bonds down to five years, and issued its own Entity bonds on 28 February 2008. On 4 October 2008 the Constitutional Court of Bosnia and Herzegovina declared the RS Act constitutional (decision U 3/08 of 4 October 2008). It decided that the constituent units (the Entities and the District) had jurisdiction to regulate the matter of “old” foreign-currency savings, provided that they remained within the framework of the 2006 Act. Following this decision, the Central Bank refused to issue government bonds only for some constituent units. As a result, the Federation of Bosnia and  and the Brčko District had to issue their own bonds. While the Brčko District did so on 30 June 2009, it would appear that bonds have not yet been issued in the Federation of Bosnia and .\n\n31.  Meanwhile, amortisation plans were adopted on 21 February 2008 for the Republika Srpska and on 9 April 2008 for the Federation of Bosnia and  and the Brčko District. On 24 June 2009 a new amortisation plan was adopted for the Brčko District which is along the lines of that of 9 April 2008.\n\nIn the Republika Srpska, bonds are to be amortised by 28 February 2013 in ten instalments (on 28 February and 28 August every year from 28 August 2008 to 28 February 2013) together with interest on the bonds (at an annual rate of 2.5%). The first three instalments were paid, as planned, on 28 August 2008, 28 February and 28 August 2009. In the event of late payment, default interest is to be paid at the statutory rate.\n\nIn the Federation of Bosnia and Herzegovina, bonds are to be amortised by 27 March 2015 in eight instalments as follows: 7.5% of the entire debt is to be paid on 27 September 2008, 9% on 27 September 2009, 11% on 27 September 2010, 12% on 27 September 2011, 13% on 27 September 2012, 15% on 27 September 2013, 15.5% on 27 September 2014 and 17% on 27 March 2015. Interest on the bonds (at an annual rate of 2.5%) is to be paid on 27 March and 27 September every year from 27 September 2008 to 27 March 2015. The first instalments of the principal debt and of interest on the bonds (both due on 27 September 2008) were paid on 14 May 2009. It would appear that the instalments due on 27 March and 27 September 2009 have not yet been paid.\n\nLastly, under the old amortisation plan, the Brčko District paid the first instalments of the principal debt and of interest on the bonds (both due on 27 September 2008) on 24 December 2008 and the second instalment of interest on the bonds (due on 27 March 2009) on 11 June 2009. Pursuant to the new plan, bonds are now to be amortised by 31 March 2015 in seven instalments as follows: 9.5% of the entire debt is to be paid on 30 September 2009, 11.5% on 30 September 2010, 12.5% on 30 September 2011, 14% on 30 September 2012, 16.5% on 30 September 2013, 17.5% on 30 September 2014 and 18.5% on 31 March 2015. Interest on the bonds (at an annual rate of 2.5%) is to be paid on 31 March and 30 September every year from 30 September 2009 to 31 March 2015. The instalment due on 30 September 2009 has been paid in time. In case of the late payment of any forthcoming instalment, default interest is to be paid at the statutory rate.\n\nLastly, under the old amortisation plan, the Brčko District paid the first instalments of the principal debt and of interest on the bonds (both due on 27 September 2008) on 24 December 2008 and the second instalment of interest on the bonds (due on 27 March 2009) on 11 June 2009. Pursuant to the new plan, bonds are now to be amortised by 31 March 2015 in seven instalments as follows: 9.5% of the entire debt is to be paid on 30 September 2009, 11.5% on 30 September 2010, 12.5% on 30 September 2011, 14% on 30 September 2012, 16.5% on 30 September 2013, 17.5% on 30 September 2014 and 18.5% on 31 March 2015. Interest on the bonds (at an annual rate of 2.5%) is to be paid on 31 March and 30 September every year from 30 September 2009 to 31 March 2015. The instalment due on 30 September 2009 has been paid in time. In case of the late payment of any forthcoming instalment, default interest is to be paid at the statutory rate.\n\n32.  Since government bonds are redeemable before their maturity, once issued, they may be traded on the Stock Exchange. In the Republika Srpska, their current trade price on the Stock Exchange is around 90% of their nominal value. Given that government bonds have been issued in the Brčko District only recently, their trade price on the Stock Exchange has not yet consolidated. As mentioned above, it would appear that bonds have not yet been issued in the Federation of Bosnia and .\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION\n\n33.  The present case is fundamentally about the compliance of the domestic legislation on “old” foreign-currency savings with the conditions laid down by Article 1 of Protocol No. 1, which is worded as follows:\n\n“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.\n\nThe preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”\n\nA.  Applicability of Article 1 of Protocol No. 1\n\n34.  The concept of “possessions” has an autonomous meaning which is not limited to the ownership of material goods. In the same way as material goods, certain other rights and interests constituting assets can also be regarded as “possessions” for the purposes of Article 1 of Protocol No. 1 (see, among many authorities, Broniowski v. Poland [GC], no. 31443/96, § 129, ECHR 2004V). Claims, provided that they have a sufficient basis in domestic law, qualify as an “asset” and can thus be regarded as “possessions” within the meaning of this provision (see Kopecký v. Slovakia [GC], no. 44912/98, § 52, ECHR 2004IX).\n\n35.  The applicant in the present case, upon depositing foreign currency with a commercial bank, acquired an entitlement to collect at any time his deposit, together with accumulated interest, from the commercial bank or, in the event of its “manifest insolvency” or bankruptcy, from the State (see paragraph 12 above). While it is true that towards the end of its existence, the SFRY and its commercial banking sector had difficulties in honouring their financial obligations (see paragraph 10 above), the entitlement subsisted.\n\n36.  Despite varying approaches to this issue following the dissolution of the SFRY and the shifting of responsibilities from one level of government to another (see paragraphs 14, 16-17, 19 and 27-32 above), there has never been any doubt that Bosnia and Herzegovina and/or its constituent units had a legal duty to repay “old” foreign-currency savings in locally based commercial banks. In such circumstances, the Court concludes that the applicant had, and still has, a claim amounting to a “possession” within the meaning of Article 1 of Protocol No. 1. The guarantees of that provision therefore apply to the present case.\n\nB.  Compliance with Article 1 of Protocol No. 1\n\n1.  Applicable rule of Article 1 of Protocol No. 1\n\n37.  As the Court has stated on a number of occasions, Article 1 of Protocol No. 1 comprises three distinct rules: the first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions; the third rule, stated in the second paragraph, recognises that the Contracting Parties are entitled, among other things, to control the use of property in accordance with the general interest. The three rules are not, however, distinct in the sense of being unconnected. The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule (see, among many authorities, Beyeler v. Italy [GC], no. 33202/96, § 98, ECHR 2000I).\n\n38.  For many years, the applicant in the present case has been unable to freely dispose of his “old” foreign-currency savings. At the time of the introduction of his application (2 July 2002) and, more importantly, the date of the ratification of Protocol No. 1 by  (12 July 2002), he could use those funds only to purchase certain State-owned companies (see paragraph 16 above). As he was the owner of the house in which he lived, the possibility of buying a State-owned flat was not open to the applicant. The 2004 legislation then followed (see paragraph 19 above) and finally the current legislation (see paragraphs 27-32 above), each limiting the use of “old” foreign-currency savings. This has not been contested before the Court.\n\nIn such circumstances, the present case falls to be examined under the third rule of Article 1 of Protocol No. 1 (see also Trajkovski v. “the ” (dec.), no. 53320/99, ECHR 2002IV).\n\n2.  General principles\n\n39.  The general principles were recently restated in Broniowski, cited above, §§ 147-51 (references omitted).\n\n(a)  Principle of lawfulness\n\n40.  The first and most important requirement of Article 1 of Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of possessions should be lawful: the second sentence of the first paragraph authorises a deprivation of possessions only “subject to the conditions provided for by law” and the second paragraph recognises that States have the right to control the use of property by enforcing “laws”. Moreover, the rule of law, one of the fundamental principles of a democratic society, is inherent in all the Articles of the Convention.\n\nThe principle of lawfulness also presupposes that the applicable provisions of domestic law are sufficiently accessible, precise and foreseeable in their application.\n\n(b)  Principle of a legitimate aim in the public/general interest\n\n41.  Any interference with the enjoyment of a right or freedom recognised by the Convention must pursue a legitimate aim. By the same token, in cases involving a positive duty, there must be a legitimate justification for the State's inaction. The principle of a “fair balance” inherent in Article 1 of Protocol No. 1 itself presupposes the existence of a general interest of the community. Moreover, it should be reiterated that the various rules incorporated in Article 1 are not distinct, in the sense of being unconnected, and that the second and third rules are concerned only with particular instances of interference with the right to the peaceful enjoyment of property. One of the effects of this is that the existence of a “public interest” required under the second sentence, or the “general interest” referred to in the second paragraph, are in fact corollaries of the principle set forth in the first sentence, so that an interference with the exercise of the right to the peaceful enjoyment of possessions within the meaning of the first sentence of Article 1 must also pursue an aim in the public interest.\n\n41.  Any interference with the enjoyment of a right or freedom recognised by the Convention must pursue a legitimate aim. By the same token, in cases involving a positive duty, there must be a legitimate justification for the State's inaction. The principle of a “fair balance” inherent in Article 1 of Protocol No. 1 itself presupposes the existence of a general interest of the community. Moreover, it should be reiterated that the various rules incorporated in Article 1 are not distinct, in the sense of being unconnected, and that the second and third rules are concerned only with particular instances of interference with the right to the peaceful enjoyment of property. One of the effects of this is that the existence of a “public interest” required under the second sentence, or the “general interest” referred to in the second paragraph, are in fact corollaries of the principle set forth in the first sentence, so that an interference with the exercise of the right to the peaceful enjoyment of possessions within the meaning of the first sentence of Article 1 must also pursue an aim in the public interest.\n\n42.  Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is “in the public interest”. Under the system of protection established by the Convention, it is thus for the national authorities to make the initial assessment as to the existence of a problem of public concern warranting measures to be applied in the sphere of the exercise of the right of property, including deprivation or control of property. Accordingly, the national authorities enjoy a wide margin of appreciation in this field.\n\nFurthermore, the notion of “public interest” is necessarily extensive. In particular, the decision to enact laws expropriating or controlling property or affording publicly funded compensation for expropriated property will commonly involve consideration of political, economic and social issues. The Court has declared that, finding it natural that the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one, it will respect the legislature's judgment as to what is “in the public interest” unless that judgment is manifestly without reasonable foundation. This logic applies to such fundamental changes of a country's system as the transition from a totalitarian regime to a democratic form of government, the reform of the State's political, legal and economic structure and indeed the dissolution of the State followed by a brutal war, phenomena which inevitably involve the enactment of large-scale economic and social legislation.\n\n(c)  Principle of a “fair balance”\n\n43.  Both an interference with the peaceful enjoyment of possessions and an abstention from action must strike a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights.\n\nThe concern to achieve this balance is reflected in the structure of Article 1 of Protocol No. 1 as a whole. In particular, there must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised by any measures applied by the State, including measures depriving a person of his of her possessions. In each case involving the alleged violation of that Article the Court must, therefore, ascertain whether by reason of the State's action or inaction the person concerned had to bear a disproportionate and excessive burden.\n\n44.  In assessing compliance with Article 1 of Protocol No. 1, the Court must make an overall examination of the various interests in issue, bearing in mind that the Convention is intended to safeguard rights that are “practical and effective”. It must look behind appearances and investigate the realities of the situation complained of. That assessment may involve not only the relevant compensation terms – if the situation is akin to the taking of property – but also the conduct of the parties, including the means employed by the State and their implementation. In that context, it should be stressed that uncertainty – be it legislative, administrative or arising from practices applied by the authorities – is a factor to be taken into account in assessing the State's conduct. Indeed, where an issue in the general interest is at stake, it is incumbent on the public authorities to act in good time, in an appropriate and consistent manner.\n\n3.  Application of the above principles to the present case\n\n(a)  The applicant's submissions\n\n45.  While recognising improvements in the current legislation, the applicant maintained that it was still incompatible with Article 1 of Protocol No. 1. First of all, according to his understanding of the current legislation, he would receive no payment in cash other than the initial payment of BAM 1,000. He would receive government bonds only at the end of the amortisation period (in 2015), which he would then have to sell on an unofficial market, most likely for a fraction of their nominal value. The applicant considered this to be unacceptable given notably his age and poor health. Secondly, he complained about the interest rate for the period from 1 January 1992 until 15 April 2006 (0.5%). Lastly, the applicant maintained that the current legislation lacked guarantees that the necessary funds would indeed be allocated on time.\n\n(b)  The Government's submissions\n\n(b)  The Government's submissions\n\n46.  The Government acknowledged that the domestic authorities had assumed full liability for “old” foreign-currency savings in locally based commercial banks. According to preliminary data, the associated public debt exceeded 1 billion euros (EUR). In view of various other financial obligations of different levels of government and the overall circumstances, including the dissolution of the SFRY in 1991/92 and the subsequent war, the Government maintained that the current legislation was the best solution feasible. In support of their argument, they underlined that the legislation had been prepared with the assistance of the International Monetary Fund. As regards the interest rate for the period from 1 January 1992 until 15 April 2006, which the applicant particularly criticised, the Government claimed that it corresponded to the average interest rate applicable to overnight foreign-currency deposits for the same period. Lastly, they dismissed the applicant's concerns as regards the ability of the domestic authorities to implement the current legislation. Despite initial delays in the Federation of Bosnia and  and the Brčko District, the Government emphasised that measures had been taken, including loans from commercial banks, to ensure timely payment of the forthcoming instalments.\n\n(c)  The third parties' submissions\n\n(c)  The third parties' submissions\n\n47.  The third parties, in their written submissions to the Court, accused all levels of government of incompetence and corruption. They criticised above all the 1997 legislation of the Federation of Bosnia and  and the equivalent legislation in the Republika Srpska. Allegedly, the conditions had been such that “old” foreign-currency savers had no other option but to accept privatisation certificates in lieu of their savings and sell them on an unofficial market for a fraction of their nominal value. The scheme, it was said, had allowed some notorious tycoons and war profiteers with ties with the Government to obtain valuable assets for hardly anything.\n\n48.  The association from the Federation of Bosnia and  added that abuses also continued under the current legislation, but failed to substantiate this contention.\n\n(d)  The Court's assessment\n\n49.  Before embarking upon these issues, it should be underlined that the present case has a long history. The applicant lodged his complaints on 2 July 2002, before  had even ratified Protocol No. 1, and repeatedly reaffirmed them thereafter. Although the contested situation has evolved, the Court will limit its analysis to the current legislation. The Court further wishes to underline that it considers it irrelevant that the applicant's complaints were lodged before the ratification of Protocol No. 1, because of the continuing nature of the impugned situation and the fact that the initial complaints have been reaffirmed on numerous occasions after ratification (see Čeh v. Serbia, no. 9906/04, §§ 36-39, 1 July 2008).\n\n50.  Turning to the general principles set out above, there is no doubt that the first two were respected in the present case (see, by analogy, Trajkovski, cited above). The Court will therefore proceed to examine the core question, namely whether the contested measures struck a “fair balance” between the relevant interests in the light of Article 1 of Protocol No. 1.\n\n50.  Turning to the general principles set out above, there is no doubt that the first two were respected in the present case (see, by analogy, Trajkovski, cited above). The Court will therefore proceed to examine the core question, namely whether the contested measures struck a “fair balance” between the relevant interests in the light of Article 1 of Protocol No. 1.\n\n51.  To begin with, it is a well-known fact that the global economic crisis of the 1970s hit the SFRY particularly hard. The SFRY turned to international capital markets and soon became one of the most indebted countries in the world. When the international community backed away from the loose lending practices of the 1970s, the SFRY resorted to foreign-currency savings of its citizens to pay foreign debts and finance imports. The Parliamentary Assembly of the Council of Europe has established that, as a result, a major part of the original deposits ceased to exist before the dissolution of the SFRY (see its Resolution 1410 (2004) adopted on 23 November 2004 – reproduced in Kovačić and Others, cited above, § 188 – as well as the explanatory memorandum by Mr Erik Jurgens). While it is true that “old” foreign-currency claims as such survived the dissolution of the SFRY and that Bosnia and Herzegovina assumed full liability for such claims in locally based banks, the fact that the original deposits had been spent, in all probability, by the former regime explains why Bosnia and Herzegovina has not been able to allow the uncontrolled withdrawal of these deposits.\n\n51.  To begin with, it is a well-known fact that the global economic crisis of the 1970s hit the SFRY particularly hard. The SFRY turned to international capital markets and soon became one of the most indebted countries in the world. When the international community backed away from the loose lending practices of the 1970s, the SFRY resorted to foreign-currency savings of its citizens to pay foreign debts and finance imports. The Parliamentary Assembly of the Council of Europe has established that, as a result, a major part of the original deposits ceased to exist before the dissolution of the SFRY (see its Resolution 1410 (2004) adopted on 23 November 2004 – reproduced in Kovačić and Others, cited above, § 188 – as well as the explanatory memorandum by Mr Erik Jurgens). While it is true that “old” foreign-currency claims as such survived the dissolution of the SFRY and that Bosnia and Herzegovina assumed full liability for such claims in locally based banks, the fact that the original deposits had been spent, in all probability, by the former regime explains why Bosnia and Herzegovina has not been able to allow the uncontrolled withdrawal of these deposits.\n\n52.  The applicant maintained that he was entitled under the current legislation to no more than BAM 1,000 in cash until 27 March 2015. The Court observes, however, that the applicant is entitled to receive his entire “old” foreign-currency savings by 27 March 2015 in eight instalments and has already thus received BAM 5,237.44. Given the catastrophic effects of the 1992-95 war and the ongoing reforms of the State's political, legal and economic structure, the Court accepts that this solution remained within the respondent State's margin of appreciation.\n\n52.  The applicant maintained that he was entitled under the current legislation to no more than BAM 1,000 in cash until 27 March 2015. The Court observes, however, that the applicant is entitled to receive his entire “old” foreign-currency savings by 27 March 2015 in eight instalments and has already thus received BAM 5,237.44. Given the catastrophic effects of the 1992-95 war and the ongoing reforms of the State's political, legal and economic structure, the Court accepts that this solution remained within the respondent State's margin of appreciation.\n\n53.  The applicant also expressed concerns that he would not be able to sell government bonds for anything near their nominal value. While understandable in view of past abuses (see paragraphs 19 and 47 above), such concerns are unsubstantiated. Unlike privatisation certificates under the former legislation, government bonds under the current legislation may be traded on the Stock Exchange, which, together with the interest on the bonds (at an annual rate of 2.5%) and the relatively short amortisation period, should ensure a significantly higher price. Indeed, such bonds are at present sold in the Republika Srpska for around 90% of their nominal value. There is no reason why such bonds should be traded for anything less in the Brčko District or, once issued, in the Federation of Bosnia and . Anyhow, the applicant is not required to sell government bonds in order to obtain his “old” foreign-currency savings. He could instead opt for cash payments in eight instalments. As opposed to privatisation certificates under the former legislation, government bonds under the current legislation are not designed to replace cash payments. On the contrary, their function is to make early cash payments possible for those who are unable or unwilling to wait until the end of the amortisation period (27 March 2015 in the applicant's case).\n\n53.  The applicant also expressed concerns that he would not be able to sell government bonds for anything near their nominal value. While understandable in view of past abuses (see paragraphs 19 and 47 above), such concerns are unsubstantiated. Unlike privatisation certificates under the former legislation, government bonds under the current legislation may be traded on the Stock Exchange, which, together with the interest on the bonds (at an annual rate of 2.5%) and the relatively short amortisation period, should ensure a significantly higher price. Indeed, such bonds are at present sold in the Republika Srpska for around 90% of their nominal value. There is no reason why such bonds should be traded for anything less in the Brčko District or, once issued, in the Federation of Bosnia and . Anyhow, the applicant is not required to sell government bonds in order to obtain his “old” foreign-currency savings. He could instead opt for cash payments in eight instalments. As opposed to privatisation certificates under the former legislation, government bonds under the current legislation are not designed to replace cash payments. On the contrary, their function is to make early cash payments possible for those who are unable or unwilling to wait until the end of the amortisation period (27 March 2015 in the applicant's case).\n\n54.  As regards the interest rate for the period from 1 January 1992 until 15 April 2006, which the applicant and the third parties considered to be too low, the Government submitted that it corresponded to the average interest rate applicable to overnight foreign-currency deposits. However, according to an official report submitted by the Government, at the request of the Court, in another case (Kudić v. Bosnia and Herzegovina, no. 28971/05, 9 December 2008), the relevant interest rate appears to be much higher – 2.33% on average (4.06% in 1992, 2.82% in 1993, 2.43% in 1994, 2.70% in 1995, 2.49% in 1996, 3.16% in 1997, 3.01% in 1998, 2.78% in 1999, 2.4% in 2000, 2.2% in 2001, 1.64% in 2002, 1.22% in 2003, 0.9% in 2004, 0.82% in 2005).\n\nThe Court has also taken note of the fact that the neighbouring countries, in which similar repayment schemes were set up, agreed to pay considerably higher interest rates: 5% in Croatia and 2% in Montenegro and .\n\nNevertheless, given the respondent State's wide margin of appreciation (see paragraph 42 above) and, in particular, the need to reconstruct the national economy following a devastating war, the Court does not consider this factor sufficient in itself to render the current legislation contrary to Article 1 of Protocol No. 1. It agrees in this regard with the Constitutional Court of Bosnia and Herzegovina (see paragraph 28 above).\n\nNevertheless, given the respondent State's wide margin of appreciation (see paragraph 42 above) and, in particular, the need to reconstruct the national economy following a devastating war, the Court does not consider this factor sufficient in itself to render the current legislation contrary to Article 1 of Protocol No. 1. It agrees in this regard with the Constitutional Court of Bosnia and Herzegovina (see paragraph 28 above).\n\n55.  Whereas the Court finds the current legislation as such compatible with Article 1 of Protocol No. 1, it agrees with the applicant that its state of implementation is unsatisfactory. While in the Republika Srpska no delays were alleged, the same is not true for the Federation of Bosnia and  and the Brčko District. In the Brčko District, government bonds, although due on 31 March 2008, were issued only on 30 June 2009. In the Federation of , it appears that bonds, likewise due on 31 March 2008, have not yet been issued. As a result, the applicant is still unable to sell them on the Stock Exchange and thus obtain early cash payments (see paragraph 53 above). Moreover, the instalments due under the current legislation on 27 September 2008 were paid almost three months later (on 24 December 2008) in the Brčko District and almost eight months later (on 14 May 2009) in the Federation of Bosnia and . Similarly, the instalment due on 27 March 2009 was paid almost three months later (on 11 June 2009) in the Brčko District and has not yet been paid in the Federation of Bosnia and .\n\n56.  The Court is aware that “old” foreign-currency savings, inherited from the SFRY, constitute a considerable burden on all successor States. Nonetheless, having undertaken to repay “old” foreign-currency savings in locally based banks and having set up a repayment scheme in this regard, the respondent State must stand by its promises. The rule of law underlying the Convention and the principle of lawfulness in Article 1 of Protocol No. 1 require the Contracting Parties to respect and apply, in a foreseeable and consistent manner, the laws they have enacted (see Broniowski, cited above, § 184).\n\n56.  The Court is aware that “old” foreign-currency savings, inherited from the SFRY, constitute a considerable burden on all successor States. Nonetheless, having undertaken to repay “old” foreign-currency savings in locally based banks and having set up a repayment scheme in this regard, the respondent State must stand by its promises. The rule of law underlying the Convention and the principle of lawfulness in Article 1 of Protocol No. 1 require the Contracting Parties to respect and apply, in a foreseeable and consistent manner, the laws they have enacted (see Broniowski, cited above, § 184).\n\n57.  In view of the deficient implementation of the domestic legislation on “old” foreign-currency savings, the Court concludes that the applicant may still claim to be a victim for the purposes of Article 34 of the Convention. Accordingly, the Government's preliminary objection is dismissed. For the same reason, there has been a violation of Article 1 of Protocol No. 1 to the Convention in the present case.\n\nII.  APPLICATION OF ARTICLE 46 OF THE CONVENTION\n\n58.  Article 46 of the Convention reads as follows:\n\n“1.  The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.\n\n2.  The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.”\n\nA.  The parties' submissions\n\n59.  The Government, as opposed to the applicant, objected to the application of the pilot-judgment procedure in the present case and repeated that the contested legislation complied with the conditions laid down by Article 1 of Protocol No. 1.\n\nB.  The Court's assessment\n\n1.  General principles\n\n60.  The Court reiterates that Article 46 of the Convention, as interpreted in the light of Article 1, imposes on the respondent State a legal obligation to implement, under the supervision of the Committee of Ministers, appropriate general and/or individual measures to secure the right of the applicant which the Court found to be violated. Such measures must also be taken in respect of other persons in the applicant's position, notably by solving the problems that have led to the Court's findings (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII; Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 120, ECHR 2002-VI; Lukenda v. , no. 23032/02, § 94, ECHR 2005X; and S. and Marper v. the  [GC], nos. 30562/04 and 30566/04, § 134, ECHR 2008-...). This obligation has been consistently emphasised by the Committee of Ministers in the supervision of the execution of the Court's judgments (see, for example, ResDH(97)336, IntResDH(99)434, IntResDH(2001)65 and ResDH(2006)1).\n\n61.  In order to facilitate effective implementation of its judgments along these lines, the Court may adopt a pilot-judgment procedure allowing it to clearly identify in a judgment the existence of structural problems underlying the violations and to indicate specific measures or actions to be taken by the respondent state to remedy them (see Broniowski, cited above, §§ 189-94, and Hutten-Czapska v. Poland [GC], no. 35014/97, §§ 231-39, ECHR 2006-VIII). This adjudicative approach is, however, pursued with due respect for the Convention institutions' respective functions: it falls to the Committee of Ministers to evaluate the implementation of individual and general measures under Article 46 § 2 of the Convention (see, by analogy, Broniowski v.  (friendly settlement) [GC], no. 31443/96, § 42, ECHR 2005IX, and Hutten-Czapska v. Poland (friendly settlement) [GC], no. 35014/97, § 42, ECHR 2008-...).\n\n62.  Another important aim of the pilot-judgment procedure is to induce the respondent State to resolve large numbers of individual cases arising from the same structural problem at domestic level, thus implementing the principle of subsidiarity which underpins the Convention system. Indeed, the Court's task as defined by Article 19, that is, to “ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto”, is not necessarily best achieved by repeating the same findings in large series of cases (see, by analogy, E.G. v. Poland (dec.), no. 50425/99, § 27, ECHR 2008-...). The object of the pilot-judgment procedure is to facilitate the speediest and most effective resolution of a dysfunction affecting the protection of the Convention rights in question in the national legal order (see Wolkenberg and Others v. Poland (dec.), no. 50003/99, § 34, ECHR 2007XIV). While the respondent State's action should primarily aim at the resolution of such a dysfunction and at the introduction, where appropriate, of effective domestic remedies in respect of the violations in question, it may also include ad hoc solutions such as friendly settlements with the applicants or unilateral remedial offers in line with the Convention requirements. The Court may decide to adjourn the examination of all similar cases, thus giving the respondent State an opportunity to settle them in such various ways (see, by analogy, Broniowski, cited above, § 198, and Xenides-Arestis v. , no. 46347/99, § 50, 22 December 2005). If, however, the respondent State fails to adopt such measures following a pilot judgment and continues to violate the Convention, the Court will have no choice but to resume the examination of all similar applications pending before it and to take them to judgment so as to ensure effective observance of Convention (see, by analogy, E.G. v. Poland, cited above, § 28).\n\n2.  Application of the principles to the present case\n\n63.  The violation which the Court has found in the present case affects many people. According to the International Monetary Fund, more than a quarter of the population of  had “old” foreign-currency savings (see Bosnia and Herzegovina: Selected Economic Issues, IMF Country Report No. 04/54, March 2004, p. 26). Moreover, there are already more than 1,350 similar applications, submitted on behalf of more than 13,500 applicants, pending before the Court. This represents a serious threat to the future effectiveness of the Convention machinery. The Court therefore considers it appropriate to apply the pilot-judgment procedure in the present case, notwithstanding the Government's objection in this regard.\n\n63.  The violation which the Court has found in the present case affects many people. According to the International Monetary Fund, more than a quarter of the population of  had “old” foreign-currency savings (see Bosnia and Herzegovina: Selected Economic Issues, IMF Country Report No. 04/54, March 2004, p. 26). Moreover, there are already more than 1,350 similar applications, submitted on behalf of more than 13,500 applicants, pending before the Court. This represents a serious threat to the future effectiveness of the Convention machinery. The Court therefore considers it appropriate to apply the pilot-judgment procedure in the present case, notwithstanding the Government's objection in this regard.\n\n64.  Although it is in principle not for the Court to determine what remedial measures may be appropriate to satisfy the respondent State's obligations under Article 46 of the Convention, in view of the systemic situation which it has identified, the Court would observe that general measures at national level are undoubtedly called for in execution of the present judgment. Notably, the Court considers that government bonds must be issued and any outstanding instalments must be paid in the Federation of Bosnia and  within six months from the date on which the present judgment becomes final. Within the same time-limit, the Federation of Bosnia and Herzegovina must also undertake, as the Republika Srpska and the Brčko District did (see paragraph 31 above), to pay default interest at the statutory rate in the event of late payment of any forthcoming instalment. As regards the past delays, the Court does not find it necessary, at present, to order that adequate redress be awarded to all persons affected. If, however, the respondent State fails to adopt the general measures indicated above and continues to violate the Convention, the Court may reconsider the issue of redress in an appropriate future case.\n\n64.  Although it is in principle not for the Court to determine what remedial measures may be appropriate to satisfy the respondent State's obligations under Article 46 of the Convention, in view of the systemic situation which it has identified, the Court would observe that general measures at national level are undoubtedly called for in execution of the present judgment. Notably, the Court considers that government bonds must be issued and any outstanding instalments must be paid in the Federation of Bosnia and  within six months from the date on which the present judgment becomes final. Within the same time-limit, the Federation of Bosnia and Herzegovina must also undertake, as the Republika Srpska and the Brčko District did (see paragraph 31 above), to pay default interest at the statutory rate in the event of late payment of any forthcoming instalment. As regards the past delays, the Court does not find it necessary, at present, to order that adequate redress be awarded to all persons affected. If, however, the respondent State fails to adopt the general measures indicated above and continues to violate the Convention, the Court may reconsider the issue of redress in an appropriate future case.\n\n65.  Turning to the many similar applications pending before the Court:\n\nIII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n66.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n67.  Under the head of pecuniary damage, the applicant repeated his complaints concerning the content of the current legislation: he requested immediate payment of the total amount of his “old” foreign-currency savings and a higher interest rate. The Government disagreed. The Court observes that it has rejected these complaints (see paragraphs 51-54 above). It therefore also dismisses the applicant's claim for pecuniary damage.\n\n68.  The applicant further claimed BAM 20,000 in respect of non-pecuniary damage. The Government maintained that the claim was unjustified. The Court, however, considers it clear that the applicant sustained some non-pecuniary loss arising from the breach of the Convention found in this case. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant EUR 5,000 under this head plus any tax that may be chargeable.\n\nB.  Costs and expenses\n\n69.  The applicant has already received under the Court's legal-aid scheme EUR 850 for the written part of the proceedings, EUR 1,350 plus travelling costs in connection with appearance at the hearing and EUR 300 for translation costs. On 20 March 2009 he sought reimbursement of additional translation costs in the amount of EUR 729. The Government described this claim as belated.\n\n70.  While it is true that the applicant should have submitted his claim by 1 February 2009 (as requested in a letter of 15 December 2008 from the Court) or, at the latest, at the hearing on 10 March 2009, the Court considers that the applicant's additional translation costs should be met in full.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Holds that the applicant may still claim to be a victim for the purposes of Article 34 of the Convention and dismisses the Government's preliminary objection;\n\n2.  Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;\n\n3.  Holds that the above violation represents a systemic problem;\n\n4.  Holds that the respondent State must ensure, within six months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention:\n\n(a)  that government bonds are issued in the Federation of Bosnia and ;\n\n(b)  that any outstanding instalments are paid in the Federation of Bosnia and ;\n\n(c)  that the Federation of Bosnia and Herzegovina undertakes to pay default interest at the statutory rate in the event of late payment of any forthcoming instalment;\n\n5.  Decides to adjourn, for six months from the date on which the present judgment becomes final, the proceedings in all cases concerning “old” foreign-currency savings in the Federation of Bosnia and Herzegovina and the Brčko District in which the applicants have obtained verification certificates, without prejudice to the Court's power at any moment to declare inadmissible any such case or to strike it out of its list in accordance with the Convention;\n\n6.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 5,000 (five thousand euros) in respect of non-pecuniary damage and EUR 729 (seven hundred and twenty nine euros) in respect of costs and expenses, plus any tax that may be chargeable, to be converted into convertible marks at the rate applicable at the date of settlement;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n7.  Dismisses the remainder of the applicant's claim for just satisfaction.\n\nDone in English, and notified in writing on 3 November 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.\n\nIn accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the concurring opinion of Judge Mijović is annexed to this judgment.","title":""}
{"_id":"passage_422","text":"PROCEDURE\n\n1.  The case originated in an application against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 11 March 2019.\n\n2.  The applicant was represented by Mr S.M. Rybiy, a lawyer practising in Dnipro.\n\n3.  The Ukrainian Government (“the Government”) were given notice of the application.\n\nTHE FACTS\n\n4.  The applicant’s details and information relevant to the application are set out in the appended table.\n\n5.  The applicant complained of the inadequate conditions of his detention and of the lack of any effective remedy in domestic law.\n\nTHE LAW\n\nALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION\n\n6.  The applicant complained of the inadequate conditions of his detention and that he had no effective remedy in this connection. He relied on Articles 3 and 13 of the Convention, which read as follows:\n\nArticle 3\n\n“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”\n\nArticle 13\n\n“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority ...”\n\n7.  The Court notes that the applicant was kept in detention in poor conditions. The details of the applicant’s detention are indicated in the appended table. The Court refers to the principles established in its caselaw regarding inadequate conditions of detention (see, for instance, Muršić v. Croatia [GC], no. 7334/13, §§ 96101, ECHR 2016). It reiterates in particular that a serious lack of space in a prison cell weighs heavily as a factor to be taken into account for the purpose of establishing whether the detention conditions described are “degrading” from the point of view of Article 3 and may disclose a violation, both alone or taken together with other shortcomings (see Muršić, cited above, §§ 122 141, and Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 149159, 10 January 2012).\n\n8.  In the leading case of Melnik v. Ukraine (no. 72286/01, 28 March 2006; for more recent case-law see Beketov v. Ukraine, no. 44436/09, 19 February 2019), the Court already found a violation in respect of issues similar to those in the present case.\n\n9.  Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the applicant’s conditions of detention were inadequate.\n\n10.  The Court further notes that the applicant did not have at his disposal an effective remedy in respect of these complaints.\n\n11.  These complaints are therefore admissible and disclose a breach of Articles 3 and 13 of the Convention.\n\nAPPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n12.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\n13.  Regard being had to the documents in its possession and to its caselaw (see, in particular, Melnik v. Ukraine, cited above), the Court considers it reasonable to award the sum indicated in the appended table.\n\n14.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\nDeclares the application admissible;\n\nHolds that it discloses a breach of Articles 3 and 13 of the Convention concerning the inadequate conditions of detention;\n\nHolds\n\nthat the respondent State is to pay the applicant, within three months, the amount indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;\n\nthat from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.\n\nDone in English, and notified in writing on 5 December 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_990","text":"PROCEDURE\n\n1.  The case originated in an application (no. 58055/00) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Turkish nationals, Mr Abdurrahman Aslan and Mr Reşat Şancı (“the applicants”), on 9 May 2000.\n\n2.  The applicants were represented by Ms T. Aslan, a lawyer practising in . The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.\n\n3.  On 4 October 2005 the Court declared the application partly inadmissible and decided to communicate the complaint concerning the applicants’ right to a fair hearing by an independent and impartial tribunal to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n4.  The applicants were born in 1979 and 1973 respectively and were serving prison sentences at Nazilli Prison at the time of their applications to the Court.\n\n5.  On 23 February 1999 the applicants were arrested and taken into custody by police officers from the Anti-terror branch of the Kuşadası Security Directorate. They were interrogated on 24 and 25 February 1999 respectively.\n\n6.  On 26 February 1999 the applicants were brought before the public prosecutor in . They were informed of their rights and in particular their right to be assisted by a lawyer, which they waived. The applicants confessed to having committed the offence of which they were accused, namely throwing Molotov cocktails at buildings. They claimed they had acted alone, that they were not involved in any illegal organisation and that they regretted their actions.\n\n7.  On the same day, the applicants were brought before the Kuşadası Magistrates’ Court where they reiterated their statements given to the public prosecutor. Mr Sancı acknowledged in part the statements he had given to the police. He alleged in this connection that he had been subjected to illtreatment in police custody. Mr Aslan acknowledged the contents of his statements made to the police. However, he claimed that he had signed without reading them. The court remanded both applicants in custody.\n\n8.  On 15 March 1999 the public prosecutor at the  filed a bill of indictment with that court accusing the applicants of having thrown Molotov cocktails at the buildings of the Ülkü Ocakları Association, Ziraat Bank, Halk Bank and Yaşar Bank in Kuşadası on 22 February 1999. He requested that they be convicted and sentenced under Articles 169 and 264 of the Criminal Code and Article 5 of Law no. 3713.\n\n9.  The first hearing, held before the  on 10 March 1999 in the applicants’ absence, was taken up with procedural matters such as the measures to be taken for securing the presence of the accused.\n\n10.  Between 15 April 1999 and 15 July 1999 the court held three hearings during which it heard the applicants, who claimed that they had made their statements in police custody under duress. The court also took various procedural acts.\n\n11.  At a hearing held on 15 July 1999 the court noted that the testimony of the witness Mr I.E., taken by proxy, had been submitted to it. The applicants asked the court not to take the testimony into account. They further requested that a further on-site inspection be conducted in order to find out whether the offence had been committed at night time. Finally, they asked the court to hear the bank clerks as witnesses. On the same day, the court, finding that the evidence contained in the case file sufficiently elucidated the events, dismissed the applicants’ requests. The prosecutor read out his observations on the merits of the case against the applicants. The next hearing was held on 2 September 1999.\n\n12.  At the hearing held on 14 October 1999 the military judge sitting on the bench of the  was replaced by a civilian judge. The court heard the applicants’ final submissions on the merits of the case. On the same day, the  convicted the applicants as charged and sentenced them in respect of the offences to terms of imprisonment of three years, fifty-five months and twenty days. In its decision, the court took into account the fact that the incident reports drawn up after the events corresponded to the applicants’ submissions to the Magistrates’ Court. The court further stated that it had not been convinced by the applicants’ denials, having regard to the evidence contained in the case file (i.e.  Mr.I.E’s testimony, photographs of the events, expert reports, incident reports and the reports drawn up following a reconstruction of events) and the applicants’ submissions to the public prosecutor and the Magistrates’ Court.\n\n13.  On 24 February 2000 the Court of Cassation upheld the judgment of the .\n\nII.  RELEVANT DOMESTIC LAW AND PRACTICE\n\n14.  The relevant domestic law and practice in force at the material time are outlined in the following judgments: Özel v. Turkey (no. 42739/98, §§ 20-21, 7 November 2002), Öcalan v. Turkey ([GC], no. 46221/99, §§ 5254, ECHR 2005-...) and Göç v. Turkey ([GC], no. 36590/97, § 34, ECHR 2002V).\n\n15.  By Law no. 5190 of 16 June 2004, published in the Official Journal on 30 June 2004, State Security Courts were abolished.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION\n\n16.  The applicants complained that they had been denied a fair hearing by an independent and impartial tribunal on account of the presence of a military judge sitting on the bench of the Izmir State Security Court which tried them. They submitted that they had been convicted on the basis of their statements in police custody which had been taken under duress and that they had been denied the assistance of a lawyer at the initial stages of the proceedings. They complained that the domestic court had refused their request for a further investigation. Finally, they maintained that the written opinion of the principal public prosecutor at the Court of Cassation was never served on them, thus depriving them of the opportunity to put forward their counter-arguments. They relied on Article 6 §§ 1 and 3 (b) of the Convention, which in so far as relevant, reads as follows:\n\n“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law.\n\n...\n\n3.  Everyone charged with a criminal offence has the following minimum rights:\n\n(b) to have adequate time and facilities for the preparation of his defence;...”\n\nA.  Admissibility\n\n17.  The Government maintained under Article 35 § 1 of the Convention that the applicants had failed to comply with the six-month rule as regards their complaint concerning lack of access to a lawyer at the initial stages of the proceedings. In this regard, they submitted that the applicants should have lodged their application with the Court within six months from the end of the preliminary investigation.\n\n18.  The applicants denied the Government’s argument.\n\n19.  The Court reiterates that it has already examined and rejected a similar preliminary objection made by the Government (see, in particular, Yavuzaslan v. Turkey, no. 53586/99, § 16, 22 April 2004). The Court finds no particular circumstances in the instant case which would require it to depart from its findings in the above-mentioned case.\n\n20.  Consequently, the Court rejects the Government’s preliminary objection.\n\n21.  Moreover, it considers that the applicants’ complaints raise complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits. The Court therefore concludes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.\n\nB.  Merits\n\n1.   and impartiality of the\n\n22.  The Government maintained, in particular, that the applicants had been convicted by a  which was composed of three civilian judges since the military judge had been replaced before the end of the proceedings.\n\n23.  The applicants maintained their allegations.\n\n24.  The Court has consistently held that certain aspects of the status of military judges sitting as members of the State Security Courts rendered their independence from the executive questionable (see Incal v. Turkey, judgment of 9 June 1998, Reports of Judgments and Decisions 1998IV, § 68; and Çıraklar v. Turkey, judgment of 28 October 1998, Reports 1998VII, § 39). The Court also found in Öcalan v. Turkey (cited above, §§ 114-115) that when a military judge participated in one or more interlocutory decisions that continued to remain in effect in the criminal proceedings concerned, the military judge’s replacement by a civilian judge in the course of those proceedings before the verdict was delivered, failed to dissipate the applicant’s reasonably held concern about that trial court’s independence and impartiality, unless it was established that the procedure subsequently followed in the state security court sufficiently allayed that concern.\n\n25.  In the instant case, the Court observes that the military judge sitting on the bench of the  was replaced only at the last hearing on the merits of the case (see paragraph 13 above). Prior to this period the domestic court had already heard the applicants on several occasions as well as the prosecutor’s observations on the merits and, in particular, it had rejected on 15 July 1999 the applicants’ request for a further investigation to be carried out. The final hearing held on 10 October 1999 consisted only of the court listening to the final submissions of the applicants and the prosecutor before reading out its verdict.\n\n26.  In these circumstances, the Court considers that the replacement of the military judge before the end of the proceedings failed to dispose of the applicants’ reasonably held concern about the trial court’s independence and impartiality (see, a contrario, Ceylan v. Turkey (dec.), no. 68953/01, ECHR 2005-...; and Sevgi Yılmaz v. Turkey (dec.), no. 62230/00, 20 September 2005).\n\n27.  There has accordingly been a violation of Article 6 § 1 of the Convention.\n\n2.  Fairness of the proceedings\n\n28.  Having regard to its finding of a violation of the applicant’s right to a fair hearing by an independent and impartial tribunal, the Court considers that it is not necessary to examine the other complaints under Article 6 of the Convention relating to the fairness of the proceedings (see, among other authorities, Ükünç and Güneş v. Turkey, no. 42775/98, § 26, 18 December 2003).\n\nII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n29.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\n30.  The Court points out that under Rule 60 of the Rules of Court any claim for just satisfaction must be itemised and submitted in writing together with any relevant supporting documents within the time-limit fixed for the submission of the applicants’ observations on the merits and that failure to comply with these requirements may result in the Chamber’s rejection of the claim in whole or in part.\n\n31.  In the instant case, on 22 March 2006 the applicants were requested to submit their claims for just satisfaction. They did not submit any claims within the specified timelimit and did not request an extension of the timelimit. Their Article 41 claims were eventually filed on 18 July 2006. The Court also observes that its practice is not to award moral damages in cases where it has found a violation of Article 6 § 1 of the Convention on account of the lack of independence and impartiality of the State Security Courts.\n\n32.  In view of the above, the Court makes no award under Article 41 of the Convention.\n\n33.  Nevertheless, the Court considers that where an individual, as in the instant case, has been convicted by a court which did not meet the Convention requirements of independence and impartiality, a retrial or a reopening of the case, if requested, represents in principle an appropriate way of redressing the violation (see Öcalan, cited above, § 210, in fine).\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Declares the remainder of the application admissible;\n\n2.  Holds that there has been a violation of Article 6 § 1 of the Convention as regards the complaint relating to the independence and impartiality of the ;\n\n3.  Holds that it is not necessary to consider the applicants’ other complaints under Article 6 of the Convention.\n\nDone in English, and notified in writing on 5 December 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_980","text":"PROCEDURE\n\n1.  The case was referred to the Court, in accordance with the provisions applicable prior to the entry into force of Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”), by the European Commission of Human Rights (“the Commission”) on 30 October 1999 and by the United Kingdom of Great Britain and Northern Ireland (“the Government”), on 10 December 1999 (Article 5 § 4 of Protocol No. 11 and former Articles 47 and 48 of the Convention).\n\n2.  The case originated in an application (no. 25289/94) against the United Kingdom lodged with the Commission under former Article 25 of the Convention by a British citizen, Mr Thomas Lee (“the applicant”), on 4 May 1994.\n\n3.  The applicant alleged that planning and enforcement measures taken against him in respect of his occupation of his land in his caravan violated his right to respect for home, family and private life contrary to Article 8 of the Convention. He complained that these also disclosed an interference with the peaceful enjoyment of his possessions contrary to Article 1 of Protocol No. 1 to the Convention and disclosed a denial of education to his grandchildren contrary to Article 2 of Protocol No. 1. He further complained that he was subject to discrimination as a gypsy contrary to Article 14 of the Convention. While he invoked Article 10 of the Convention before the Commission, he did not pursue this complaint in the proceedings before the Court.\n\n4.  The Commission declared the application admissible on 4 March 1998. In its report of 25 October 1999 (former Article 31 of the Convention), it expressed the opinion that there had been no violation of Article 8 of the Convention (18 votes to 8), that there had been no violation of Article 1 of Protocol No. 1 (20 votes to 6), that there had been no violation of Article 2 of Protocol No. 1 (20 votes to 6), that there had been no violation of Article 10 of the Convention (unanimously) and that there had been no violation of Article 14 of the Convention (18 votes to 8).\n\n5.  Before the Court the applicant, who had been granted legal aid, was represented by Mr Mark Tilbury, a solicitor practising in King’s Lynn. The United Kingdom Government were represented by their Agent, Mr Llewellyn of the Foreign and Commonwealth Office.\n\n6.  On 13 December 1999, the panel of the Grand Chamber determined that the case should be decided by the Grand Chamber (Rule 100 § 1 of the Rules of Court). The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24 of the Rules of Court. Sir Nicolas Bratza, the judge elected in respect of the United Kingdom, who had taken part in the Commission’s examination of the case, withdrew from sitting in the Grand Chamber (Rule 28). The Government accordingly appointed Lord Justice Schiemann to sit as an ad hoc judge in his place (Article 27 § 2 of the Convention and Rule 29 § 1).\n\n7.  The applicant and the Government each filed a memorial. Third-party comments were also received from European Roma Rights Centre, which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 61 § 3).\n\n8.  A hearing took place in public in the Human Rights Building, Strasbourg, on 24 May 2000 (Rule 59 § 2).\n\nThere appeared before the Court:\n\nThe Court heard addresses by Mr Drabble and Mr Pannick.\n\n9.  On 29 November 2000, Mr Makarczyk, who was unable to take part in further consideration of the case, was replaced by Mr Bonello (Rules 24 § 5 (b) and 28).\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n10.  The applicant and his wife are gypsies by birth. They were born and bred in Kent. They have a nomadic lifestyle and have travelled extensively around the south of England in pursuit of work and to attend traditional gypsy social gatherings.\n\n11.  Throughout the years, the applicant was prosecuted frequently for illegal encampment. Over a four year period he claimed to have been evicted from more than 40 sites. To rectify this situation, in 1991 he bought a plot of land which measures approximately 0.4 hectares.\n\n12.  The applicant’s land was situated on a hillside of the Stour Valley to the east of the village of Chartham. The surrounding land was mostly open agricultural land but in the valley bottom there was mineral working and industrial development. The land contained three caravans, which were occupied by the applicant, his wife, two children and grandchildren. It also had an area for grazing horses and contained a stable. The site was in an area designated within the relevant development plan as a Special Landscape Area where special planning policies applied.\n\n13.  The applicant’s grandchildren attended school regularly receiving an education that in the past they frequently had not had the opportunity to receive.\n\n14.  The applicant and his family have mainly been employed in agricultural work all their lives. He bought the site with the intention that it would provide a settled home and also a living from market garden produce and horticulture.\n\n15.  On 20 November 1992, an enforcement notice was issued by Canterbury City Council (“the Council”), requiring the applicant to cease the use of the land for the stationing of residential caravans. He was given six months within which to remove the caravans.\n\n16.  In January 1993, the applicant lodged an appeal against the enforcement notice. An Inspector was appointed by the Secretary of State for the Environment to determine the appeal.\n\n17.  On 20 September 1993, the Inspector, in a decision letter, denied planning permission and dismissed the appeal. He stated inter alia:\n\n“6.  From my inspection of the site and the surrounding area and from the written representations I consider that the main issues are whether the impact of the residential caravans on the surrounding area is acceptable having regard to relevant planning policies, and also, if the impact is not acceptable whether the stationing of residential caravans is nevertheless justified by the agricultural needs of the proposed enterprise or by the needs of the three gypsy families involved.\n\n7.  There are three approved development plans for the area: the 1990 Kent Structure Plan; the 1983 Kent Countryside Local Plan; and the 1982 Stour Valley Countryside Plan. Policy S6 of the Structure Plan imposes a general presumption against development of fresh land in the countryside although policy RS6 recognises that the needs of agriculture may constitute an exception. However even so policy RS1 requires that all development shall be appropriate in location and appearance while policies in all the plans provide that in such Special Landscape Areas as this conserving the landscape will normally have priority over other planning considerations.\n\n8.  The site is in a corner of an open field on the southern hillside of the Stour Valley and surrounded by agricultural land. In this position it is highly visible at various points along the Cockering Road below and from the A28 in the valley bottom. It is also visible from footpaths in the vicinity and particularly from one that runs along the back of the site. The group of three caravans within the fenced site is a most conspicuous and alien form of development in this exposed rural location and is in conflict with the character and appearance of its surroundings. An attempt has been made to screen the caravans on the hillside by planting evergreens but many have died. However neither screening nor painting the caravans, as offered, is likely to make the development less obtrusive in such an isolated and open situation, and there is no doubt in my mind that it seriously conflicts with the policies designed to conserve and enhance the countryside. ...\n\n11.  ... In my opinion, and on the evidence submitted the proposed enterprise <market gardening and horticulture> even taking into account the further land available is not likely to support the three families who would be engaged in it so as to justify their living on the site.\n\n12.  As regards the agricultural need for living on the site, I am not satisfied that the type of horticulture outlined demands living on the site ... I do not doubt that the families wish to continue earning their living from agricultural pursuits but the offer to tie their occupation to agriculture ... does not overcome the lack of agricultural need to live on the site which might justify setting aside the strong amenity objection. ...\n\n13.  In support of allowing the development as a gypsy caravan site it is stated that <the applicant> has been evicted from 40 sites over a 4 year period and was exasperated by the Council’s inability to provide suitable sites. He took the opportunity to acquire the present site to provide a permanent home and an income. This <he claims> is in line with the guidance in DOE Circular 28/77 which recognises that even in sensitive locations it may be necessary to accept the establishment of caravan sites or to refrain from enforcement actions until sites are available.\n\n14.  The Council recognise that, despite being a ‘designated area’ under the 1968 Act, there is a shortfall of some 22 pitches and further provision needs to be made. A number of sites are being evaluated and in addition the draft local plan contains a policy for permitting gypsies to establish sites on their own land providing it is suitable. The Council do not consider that the Department’s guidance implies that private sites should be allowed without regard to the consequences.\n\n15.  Having considered the evidence, I accept that there is a shortfall of pitches in the Canterbury area but I recognise too <the applicant’s> willingness, if not a preference, for providing a small site for the family group and I do not consider it unlikely that a less inappropriate place can be found. While therefore I accept that the loss of the present site would create a need for an alternative, in the circumstances of this case I find that the complete unsuitability of the present site outweighs that need. I have considered whether a temporary permission might be granted for this small group until the Council’s provision of other sites comes to fruition and I have taken account of <the applicant’s> willingness to accept a planning condition restricting the number of caravans on the site so as not to create a precedent for the use of adjoining land. However I can see no way of preventing it from being a precedent if other gypsy families sought to acquire plots of land nearby. ... I am satisfied that even a temporary planning permission could be a signal for the establishment of other sites which would have a very harmful effect on the landscape of this attractive valley. ...”\n\n18.  The applicant then applied for permission to use the land for winter stationing of three caravans for residential purposes.\n\n19.  On 1 March 1994, after having requested the applicant to explain what change in material considerations had taken place, the Council declined to determine the above application in accordance with Section 70A of the Town and Country Planning Act 1990. The Council did not consider\nthat there were material differences between the planning application for winter stationing of caravans and the applicant’s earlier application.\n\n20.  The applicant now lives under the threat of criminal prosecution and forcible eviction.\n\n21.  While the applicant had been on a number of occasions offered places on official sites, he refused primarily because the sites in question were in a very poor state. One site, at Broomfield was next to a rubbish tip and the other, at Vauxhall Road, was built on an old sewage bed and adjacent to an operational sewage works and with a steel works adjoining the southern boundary of the site, which operated 24 hours per day. The applicant stated that they were unfit for human habitation (photographs were attached to his application in support of his contention) and that the noise of the steelworks deprived inhabitants of the site of sleep. While the Government disputed before the Commission that the Broomfield site was unfit for habitation, referring to repairs being carried out when required due to the vandalism of occupants, the Government confirmed at the hearing before the Court that this site had now closed. The Government also provided the information that planning permission had been granted for the upgrading and extension of the site at Vauxhall Road and that a grant was made by the Secretary of State for this purpose. The original 16 pitches had now been refurbished, and two further pitches added, at a cost of GBP 495,000. The Council had served a Noise Abatement Notice on the steelworks with a view to improving the residential environment for the gypsy site and discussions were ongoing regarding the creation of a boundary between the two sites.\n\n22.  The Government also stated that in 1998 in the Canterbury area there were two official sites comprising 30 pitches (with eight currently vacant) and in addition 28 caravans on authorised private sites and 14 caravans on unauthorised private sites. The July 1999 Department of the Environment figures showed however that the number of authorised private sites had dropped from 28 to 8, the number of public sites fell from 27 to 21, while the number of unauthorised encampments almost tripled from 14 to 38.\n\n23.  The applicant stated that planning permission had been given to a non-gypsy to station a caravan on the site adjacent to the applicant’s. Outline planning permission had also been given for a development of 600 residential units 600 yards from his site. The Government have provided information and documents concerning both developments.\n\nTemporary planning permission was granted for two years in August 1994 for a caravan on a site called Larkey Wood Farm. The purpose of this was to enable the owner to establish the viability of his pig unit and the permission limited to occupation by an agricultural worker. Permission was granted recently for a permanent dwelling of the site given the established agricultural need and the owner’s establishment of the viability of his pig farm. In the Inspector’s decision of 17 August 1994, he found that this site did not have as unfortunate effect on the landscape as the applicant’s, though it did detract from the openness of the countryside and the natural appearance of the landscape.\n\nThe Government have also explained that in the 1990’s a hospital (St. Augustine’s), which was a large complex of buildings, closed down and it has been considered by the Council as suitable for residential development. The outline planning permission was granted to accommodate 600 houses and took into account the need to landscape the site. The applicant provided photographs of his own site and the Larkey Wood Farm site and the Government provided an aerial photograph identifying the locations of these developments relative to the applicant’s land.\n\nII.  RELEVANT DOMESTIC LAW AND PRACTICE\n\nA.  General planning law\n\n24.  The Town and Country Planning Act 1990 (as amended by the Planning and Compensation Act 1991) (“the 1990 Act”) consolidated pre-existing planning law. It provides that planning permission is required for the carrying out of any development of land (section 57 of the 1990 Act). A change in the use of land for the stationing of caravans can constitute a development (Restormel Borough Council v. Secretary of State for the Environment and Rabey [1982] Journal of Planning Law 785; John Davies v. Secretary of State for the Environment and South Hertfordshire District Council [1989] Journal of Planning Law 601).\n\n25.  An application for planning permission must be made to the local planning authority, which has to determine the application in accordance with the local development plan, unless material considerations indicate otherwise (section 54A of the 1990 Act).\n\n26.  The 1990 Act provides for an appeal to the Secretary of State in the event of a refusal of permission (section 78). With immaterial exceptions, the Secretary of State must, if either the appellant or the authority so desire, give each of them the opportunity of making representations to an inspector appointed by the Secretary of State. It is established practice that each inspector must exercise independent judgment and must not be subject to any improper influence (see the Bryan v. the United Kingdom judgment of 22 November 1995, Series A no. 335-A, p. 11, § 21). There is a further appeal to the High Court on the ground that the Secretary of State’s decision was not within the powers conferred by the 1990 Act, or that the relevant requirements of the 1990 Act were not complied with (section 288).\n\n27.  If a development is carried out without the grant of the required planning permission, the local authority may issue an “enforcement notice” if it considers it expedient to do so having regard to the provisions of the development plan and to any other material considerations (section 172 (1) of the 1990 Act).\n\n28.  There is a right of appeal against an enforcement notice to the Secretary of State on the grounds, inter alia, that planning permission ought to be granted for the development in question (section 174). As with the appeal against refusal of permission, the Secretary of State must give each of the parties the opportunity of making representations to an inspector.\n\n29.  Again there is a further right of appeal “on a point of law” to the High Court against a decision of the Secretary of State under section 174 (section 289). Such an appeal may be brought on grounds identical to an application for judicial review. It therefore includes a review as to whether a decision or inference based on a finding of fact is perverse or irrational (R. v. Secretary of State for the Home Department, ex parte Brind [1991] Appeal Cases 696, 764 H-765 D). The High Court will also grant a remedy if the inspector’s decision was such that there was no evidence to support a particular finding of fact; or the decision was made by reference to irrelevant factors or without regard to relevant factors; or made for an improper purpose, in a procedurally unfair manner or in a manner which breached any governing legislation or statutory instrument. However, the court of review cannot substitute its own decision on the merits of the case for that of the decision-making authority.\n\n30.  Where any steps required by an enforcement notice to be taken are not taken within the period for compliance with the notice, the local authority may enter the land and take the steps and recover from the person who is then the owner of the land any expenses reasonably incurred by them in doing so (section 178 of the 1990 Act).\n\nB.  The Caravan Sites Act 1968\n\n31.  Part II of the Caravan Sites Act 1968 (“the 1968 Act”) was intended to combat the problems caused by the reduction in the number of lawful stopping places available to gypsies as a result of planning and other legislation and social changes in the post-war years, in particular the closure of commons carried out by local authorities pursuant to section 23 of the Caravan Sites and Control of Development Act 1960. Section 16 of the 1968 Act defined “gypsies” as:\n\n“persons of nomadic habit of life, whatever their race or origin, but does not include members of an organised group of travelling showmen, or of persons engaged in travelling circuses, travelling together as such”.\n\n32.  Section 6 of the 1968 Act provided that it should be the duty of local authorities:\n\n“to exercise their powers ... so far as may be necessary to provide adequate accommodation for gipsies residing in or resorting to their area”.\n\n33.  The Secretary of State could direct local authorities to provide caravan sites where it appeared to him to be necessary (section 9).\n\n34.  Where the Secretary of State was satisfied either that a local authority had made adequate provision for the accommodation of Gypsies, or that it was not necessary or expedient to make such provision, he could “designate” that district or county (section 12 of the 1968 Act).\n\n35.  The effect of designation was to make it an offence for any gypsy to station a caravan within the designated area with the intention of living in it for any period of time on the highway, on any other unoccupied land or on any occupied land without the consent of the occupier (section 10).\n\n36.  In addition, section 11 of the 1968 Act gave to local authorities within designated areas power to apply to a magistrates’ court for an order authorising them to remove caravans parked in contravention of section 10.\n\nC.  The Cripps Report\n\n37.  By the mid-1970s it had become apparent that the rate of site provision under section 6 of the 1968 Act was inadequate, and that unauthorised encampments were leading to a number of social problems. In February 1976, therefore, the Government asked Sir John Cripps to carry out a study into the operation of the 1968 Act. He reported in July 1976 (Accommodation for Gypsies: A report on the working of the Caravan Sites Act 1968, “the Cripps Report”).\n\n38.  Sir John estimated that there were approximately 40,000 Gypsies living in England and Wales. He found that:\n\n“Six-and-a-half years after the coming into operation of Part II of the 1968 Act, provision exists for only one-quarter of the estimated total number of gypsy families with no sites of their own. Three-quarters of them are still without the possibility of finding a legal abode ... Only when they are travelling on the road can they remain within the law: when they stop for the night they have no alternative but to break the law.”\n\n39.  The report made numerous recommendations for improving this situation.\n\nD.  Circular 28/77\n\n40.  Circular 28/77 was issued by the Department of the Environment on 25 March 1977. Its stated purpose was to provide local authorities with guidance on “statutory procedures, alternative forms of gypsy accommodation and practical points about site provision and management”. It was intended to apply until such time as more final action could be taken on the recommendations of the Cripps Report.\n\n41.  Among other advice, it encouraged local authorities to enable self-help by gypsies through the adoption of a “sympathetic and flexible approach to [Gypsies’] applications for planning permission and site licences”. Making express reference to cases where gypsies had bought a plot of land and stationed caravans on it only to find that planning permission was not forthcoming, it recommended that in such cases enforcement action not be taken until alternative sites were available in the area.\n\nE.  Circular 57/78\n\n42.  Circular 57/78, which was issued on 15 August 1978, stated, inter alia, that “it would be to everyone’s advantage if as many gypsies as possible were enabled to find their own accommodation”, and thus advised local authorities that “the special need to accommodate gypsies ... should be taken into account as a material consideration in reaching planning decisions”.\n\n43.  In addition, approximately GBP 100 million was spent under a scheme by which one hundred per cent grants were made available to local authorities to cover the costs of creating gypsy sites.\n\nF.  The Criminal Justice and Public Order Act 1994\n\n44.  Section 80 of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”), which came into force on 3 November 1994, repealed sections 6-12 of the 1968 Act and the grant scheme referred to above.\n\n45.  Section 77 of the 1994 Act gives to a local authority power to direct an unauthorised camper to move. An unauthorised camper is defined as\n\n“a person for the time being residing in a vehicle on any land forming part of the highway, any other unoccupied land or any occupied land without the owner’s consent”.\n\n46.  Failure to comply with such a direction as soon as practicable, or re-entry upon the land within three months, is a criminal offence. Local authorities are able to apply to a magistrates’ court for an order authorising them to remove caravans parked in contravention of such a direction (section 78 of the 1994 Act).\n\n47.  In the case of R. v. Lincolnshire County Council, ex parte Atkinson (22 September 1995), Sedley J. referred to the 1994 Act as “Draconic” legislation. He commented that:\n\n“For centuries the commons of England provided lawful stopping places for people whose way of life was or had become nomadic. Enough common land had survived the centuries of enclosure to make this way of life still sustainable, but by s.23 of the Caravan Sites and Control of Development Act 1960 local authorities were given the power to close the commons to travellers. This they proceeded to do with great energy, but made no use of the concomitant powers given them by s.24 of the same Act to open caravan sites to compensate for the closure of the commons. By the Caravans Act 1968, therefore Parliament legislated to make the s.24 power a duty, resting in rural areas upon county councils rather than district councils... For the next quarter of a century there followed a history of non-compliance with the duties imposed by the Act of 1968, marked by a series of decisions of this court holding local authorities to be in breach of their statutory duty, to apparently little practical effect. The default powers vested in central government to which the court was required to defer, were rarely, if ever used.\n\nThe culmination of the tensions underlying the history of non-compliance was the enactment of ...the Act of 1994...”\n\nG.  Circular 1/94\n\n48.  New guidance on gypsy sites and planning, in the light of the 1994 Act, was issued to local authorities by the Government in Circular 1/94 (5 January 1994), which cancelled Circular 57/78 (see above).\n\nCouncils were told that:\n\n“In order to encourage private site provision, local planning authorities should offer advice and practical help with planning procedures to gypsies who wish to acquire their own land for development. ... The aim should be as far as possible to help gypsies to help themselves, to allow them to secure the kind of sites they require and thus help avoid breaches of planning control.” (para. 20)\n\nHowever:\n\n“As with other planning applications, proposals for gypsy sites should continue to be determined solely in relation to land-use factors. Whilst gypsy sites might be acceptable in some rural locations, the granting of permission must be consistent with agricultural, archaeological, countryside, environmental, and Green Belt policies ...” (para. 22).\n\nIt was indicated that as a rule it would not be appropriate to make provision for gypsy sites in areas of open land where development was severely restricted, for example Areas of Outstanding Natural Beauty, Sites of Special Scientific Interest. Nor were gypsy sites regarded as being among those uses of land normally appropriate in a Green Belt (paragraph 13).\n\nH.  Circular 18/94\n\n49.  Further guidance issued by the Secretary of State dated 23 November 1994 concerned the unauthorised camping by gypsies and the power to give a direction to leave the land (CJPOA above). Paragraphs 6-9 required local authorities to adopt “a policy of toleration towards unauthorised gypsy encampments:\n\n“6.  ... Where gypsies are camped unlawfully on council land and are not causing a level of nuisance which cannot be effectively controlled, an immediate forced eviction might result in unauthorised camping on a site elsewhere in the area which could give rise to greater nuisance. Accordingly, authorities should consider tolerating gypsies’ presence on the land for short periods and could examine the ways of minimising the level of nuisance on such tolerated sites, for example by providing basic services for gypsies e.g. toilets, a skip for refuse and a supply of drinking water.\n\n8.  Where gypsies are unlawfully camped on Government-owned land, it is for the local authority, with the agreement of the land-owning Department, to take any necessary steps to ensure that the encampment does not constitute a hazard to public health. It will continue to be the policy of the Secretaries of State that Government Departments should act in conformity with the advice that gypsies should not be moved unnecessarily from unauthorised encampments when they are causing no nuisance.\n\n9.  The Secretaries of State continue to consider that local authorities should not use their powers to evict gypsies needlessly. They should use their powers in a humane and compassionate fashion and primarily to reduce nuisance and to afford a higher level of protection to private owners of land.”\n\n50.  Paragraphs 10-13 further require local authorities to consider their obligations under other legislation before taking any decisions under the 1994 Act. These obligations include their duties concerning pregnant women and newly-born children, the welfare and education of children and\nthe housing of homeless persons. In a judgment of 22 September 1995 (R. v. Lincolnshire County Council, ex parte Atkinson, R. v. Wealden District Council, ex parte Wales and R. v. Wealden District Council, ex parte Stratford, unreported), the High Court held that it would be an error of law for any local authority to ignore those duties which must be considered from the earliest stages.\n\nI.  Gypsy sites policies in development plans\n\n51.  In a letter dated 25 May 1998, the Department of the Environment drew to the attention of all local planning authorities in England that Circular 1/94 required local planning authorities to assess the need for gypsy accommodation in their areas and make suitable locational and/or criteria based policies against which to decide planning applications. The Government was concerned that this guidance had not been taken up. ACERT research (see below) had showed that 24% of local authorities (96) had no policy at all on gypsy sites and that many in the process of reviewing their plans at the time of the survey did not feel it necessary to include policies on gypsy provision. It was emphasised that it was important to include consideration of gypsy needs at an early stage in drawing up structure and development plans and that detailed policies should be provided. Compliance with this guidance was essential in fulfilling the Government’s objective that gypsies should seek to provide their own accommodation, applying for planning permission like everyone else. It was necessary, therefore, that adequate gypsy site provision be made in development plans to facilitate this process.\n\nJ.  1998 ACERT research into provision for private gypsy sites\n\n52.  The Advisory Council for the Education of Romany and Other Travellers (ACERT) which carried out research sponsored by the Department of the Environment, Transport and Regions, noted in its 1998 report that since 1994 private site provision had increased by 30 caravans per year while the pace of public site provision had declined by 100 caravans, disclosing that the pace of private site provision had not increased sufficiently to counterbalance decreases in public site provision. Noting the increase of gypsies in housing and the increased enforcement powers under\nthe 1994 Act, it questioned, if these trends continued, the extent to which the ethnic, cultural and linguistic identity of Gypsy and Traveller people would be protected.\n\n53.  The research looked, inter alia, at 114 refused private site applications, which showed that 97% related to land within the countryside and that 96% were refused on grounds relating to the amenity value (e.g. Green Belt, conservation area locations). Of the 50 gypsy site applicants interviewed, for most acquiring permission for their own land was an important factor in improving the quality of life, gaining independence and providing security. For many, the education of their children was another important reason for private site application. All save one had applied for permission retrospectively.\n\n54.  The report stated that the figures for success rates in 624 planning appeals showed that before 1992 the success rate had averaged 35% but had decreased since. Having regard however to the way in which data was recorded, the actual success rate was probably between 35% and 10% as given as the figures in 1992 and 1996 by the gypsy groups and Department of the Environment respectively. Notwithstanding the objectives of planning policy that local authorities make provision for gypsies, most local authorities did not identify any areas of land as suitable for potential development by gypsies and reached planning decisions on the basis of land-use criteria in the particular case. It was therefore not surprising that most gypsies made retrospective applications and that they had little success in identifying land on which local authority would permit development. Granting of permission for private sites remained haphazard and unpredictable.\n\nK.  Overall statistics concerning gypsy caravans\n\n55.  In January 2000, the Department of the Environment, Regions and Transport figures for caravans in England disclosed that of 13,134 caravans counted, 6,118 were accommodated on local authority pitches, 4,500 on privately owned sites and 2,516 on unauthorised sites. Of the latter, 684 gypsy caravans were being tolerated on land owned by non-gypsies (mainly local authority land) and 299 gypsy caravans tolerated on land owned by gypsies themselves. On these figures, about 1,500 caravans were therefore on unauthorised and untolerated sites while over 80% of caravans were stationed on authorised sites.\n\nL.  Local authority duties to the homeless\n\n56.  Local authority duties to the homeless were contained in Part VII of the Housing Act 1996, which came fully into force on 20 January 1997. Where the local housing authority was satisfied that an applicant was homeless, eligible for assistance, had a priority need (e.g. the applicant was a person with whom dependant children resided or was vulnerable due to old age, physical disability etc), and did not become homeless intentionally, the authority was required, if it did not refer the application to another housing authority, to secure that accommodation was available for occupation by the applicant for a minimum period of two years. Where an applicant was homeless, eligible for assistance and not homeless intentionally, but was not a priority case, the local housing authority was required to provide the applicant with advice and such assistance as it considered appropriate in the circumstances in any attempt he might make to secure that accommodation became available for his occupation.\n\nIII.  RELEVANT INTERNATIONAL TEXTS\n\nA.  The Framework Convention for the Protection of National Minorities\n\n57.  This Convention, opened for signature on 1 February 1995, provides inter alia:\n\n“Article 1\n\nThe protection of national minorities and of the rights and freedoms of persons belonging to those minorities forms an integral part of the international protection of human rights, and as such falls within the scope of international co-operation.\n\nArticle 4\n\n1.  The Parties undertake to guarantee to persons belonging to national minorities the right of equality before the law and of equal protection of the law. In this respect, any discrimination based on belonging to a national minority shall be prohibited.\n\n2.  The parties undertake to adopt, where necessary, adequate measures in order to promote, in all areas of economic, social, political and cultural life, full and effective equality between persons belonging to a national minority and those belonging to the majority; In this respect, they shall take due account of the specific conditions of the persons belonging to national minorities.\n\n3.  The measures adopted in accordance with paragraph 2 shall not be considered to be an act of discrimination.\n\nArticle 5\n\n1.  The Parties undertake to promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture, and to preserve the essential elements of their identity, namely their religion, language, traditions and cultural heritage.\n\n2.  Without prejudice to measures taken in pursuance of their general integration policy, the Parties shall refrain from policies or practices aimed at assimilation of persons belonging to national minorities against their will and shall protect these persons from any action aimed at such assimilation.”\n\n58.  The Convention entered into force on 1 February 1998. The United Kingdom signed the Convention on the date it opened for signature and ratified it on 15 January 1998. It entered into force for the United Kingdom on 1 May 1998. By 9 February 2000, it had been signed by 37 of the Council of Europe’s 41 member states and ratified by 28.\n\n59.  The Convention did not contain any definition of “national minority”. However the United Kingdom in its Report of July 1999 to the Advisory Committee concerned with the Convention accepted that gypsies are within the definition.\n\nB.  Other Council of Europe texts\n\n60.  Recommendation 1203(1993) of the Parliamentary Assembly on Gypsies in Europe included the recognition that gypsies, as one of the very few non-territorial minorities in Europe, “need special protection”. In its general observations, the Assembly stated inter alia:\n\n“6.  Respect for the rights of Gypsies, individual, fundamental and human rights and their rights as a minority, is essential to improve their situation.\n\n7.  Guarantees for equal rights, equal chances, equal treatment and measures to improve their situation will make a revival of Gypsy language and culture possible, thus enriching the European cultural diversity.”\n\nIts recommendations included:\n\n“xiv.  member states should alter national legislation and regulations which discriminate directly or indirectly against Gypsies; ...\n\nxviii.  further programmes should be set up in the member states to improve the housing situation, education... of those Gypsies who are living in less favourable circumstances. ...”\n\n61.  In 1998, the European Commission against Racism and Intolerance issued General Policy Recommendation No. 3: Combating Racism and Intolerance against Roma/Gypsies. Its recommendations included:\n\n“... to ensure that discrimination as such, as well as discriminatory practices, are combated through adequate legislation and to introduce into civil law specific provisions to this end, particularly in the fields of ... housing and education. ...\n\n... to ensure that the questions relating to ‘travelling’ within a country, in particular, regulations concerning residence and town planning, are solved in a way which does not hinder the life of the persons concerned; ...”\n\nC.  The European Union\n\n62.  On 21 April 1994, the European Parliament passed a Resolution on the situation of Gypsies in the Community, calling on the governments of member states “to introduce legal, administrative and social measures to improve the social situation of Gypsies and Travelling People in Europe”; and recommending that “the Commission, the Council and the governments of Member States should do everything in their power to assist in the economic, social and political integration of Gypsies, with the objective of eliminating the deprivation and poverty in which the great majority of Europe’s Gypsy population still lives at the present time.”\n\n63.  Protection of minorities has become one of the preconditions for accession to the European Union. In November 1999, the European Union adopted “Guiding Principles” for improving the situation of Roma in candidate countries, based expressly on the recommendations of the Council of Europe’s Specialist Group of Roma/Gypsies and the OSCE High Commissioner on National Minorities’ recommendations.\n\nD.  The Organisation for Security and Co-operation in Europe (OSCE)\n\n64.  The situation of Roma and Sinti has become a standard item on the Human Dimension section of the agenda of OSCE Review Conferences. Two structural developments - the Office of Democratic Institutions and Human Rights (ODIHR) and the appointment of a High Commissioner for National Minorities - also concern protection of Roma and Sinti as minorities.\n\n65.  On 7 April 2000, the High Commissioner’s Report on the Situation of Roma and Sinti in the OSCE Area was published. Part IV of the Report dealt with the living conditions of Roma, noting that while nomadism had been central to Romani history and culture a majority of Roma were now\nsedentary (one estimation gave 20% as nomadic, 20% as semi-nomadic, moving seasonally, while 60% were sedentary). This was particularly true of Central and Eastern Europe, where there had been in the past policies of forced sedentarization:\n\n“It must be emphasised that whether an individual is nomadic, semi-nomadic or sedentary should, like other aspects of his or her ethnic identity, be solely a matter of personal choice. The policies of some OSCE participating States have at times breached this principle, either by making a determination of a group’s fundamental lifestyle that is inconsistent with its members’ choices or by making it virtually impossible for individuals to pursue the lifestyle that expresses their group identity.” (pp. 98-99)\n\n66.  The Report stated that for those Roma who maintained a nomadic or semi-nomadic lifestyle the availability of legal and suitable parking was a paramount need and precondition to the maintenance of their group identity. It observed however that even in those countries that encouraged or advised local authorities to maintain parking sites, the number and size of available sites was insufficient in light of the need:\n\n“... The effect is to place nomadic Roma in the position of breaking the law - in some countries, committing a crime - if they park in an unauthorized location, even though authorized sites may not be available.” (pp. 108-109)\n\n67.  The Report dealt specifically with the situation of Gypsies in the United Kingdom (pp. 109-114). It found:\n\n“Under current law, Gypsies have three options for lawful camping: parking on public caravan sites - which the Government acknowledges to be insufficient; parking on occupied land with the consent of the occupier; and parking on property owned by the campers themselves. The British Government has issued guidance to local authorities aimed at encouraging the last approach. In practice, however, and notwithstanding official recognition of their special situation and needs, many Gypsies have encountered formidable obstacles to obtaining the requisite permission to park their caravans on their own property...” (pp. 112-113).\n\n68.  Concerning the planning regime which requires planning permission for the development of land disclosed by the stationing caravans, it stated:\n\n“... This scheme allows wide play for the exercise of discretion - and that discretion has repeatedly been exercised to the detriment of Gypsies. A 1986 report by the Department of the Environment described the prospects of applying for planning permission for a Gypsy site as ‘a daunting one laced with many opportunities for failure’. In 1991, the last years in which the success of application rates was evaluated, it was ascertained that 90 per cent of applications for planning permission by Gypsies were denied. In contrast, 80 per cent of all planning applications were granted during the same period. It is to be noted that, as a category, Gypsy planning applications are relatively unique insofar as they typically request permission to park caravans in areas or sites which are subject to restriction by local planning authorities. As such, virtually all Gypsy planning applications are highly contentious. Nonetheless, the fact remains\nthat there is inadequate provision or availability of authorized halting sites (private or public), which the high rate of denial of planning permission only exacerbates. Moreover, there are indications that the situation has deteriorated since 1994. ... In face of these difficulties, the itinerant lifestyle which has typified the Gypsies is under threat.” (pp. 113-114)\n\n69.  The report’s recommendations included the following:\n\n“...in view of the extreme insecurity many Roma now experience in respect of housing, governments should endeavour to regularize the legal status of Roma who now live in circumstances of unsettled legality.” (pp. 126 and 162)\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 8 of the CONVENTION\n\n70.  The applicant complained that the refusal of planning permission to station caravans on his land and the enforcement measures implemented in respect of his occupation of his land disclosed a violation of Article 8 of the Convention.\n\n“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.\n\n2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”\n\n71.  The Government disputed those allegations. The Commission by eighteen votes to eight found that there had been no violation of this provision.\n\n72.  The Court recalls that it has already examined complaints about the planning and enforcement measures imposed on a gypsy family who occupied their own land without planning permission in the case of Buckley v. the United Kingdom (judgment of 25 September 1996, Reports 1996-IV, p. 1271). Both parties have referred extensively to the findings of the Court in that case, as well as the differing approach of the Commission.\n\nThe Court considers that, while it is not formally bound to follow any of its previous judgments, it is in the interests of legal certainty, foreseeability and equality before the law that it should not depart, without good reason, from precedents laid down in previous cases. Since the Convention is first\nand foremost a system for the protection of human rights, the Court must however have regard to the changing conditions in Contracting States and respond, for example, to any emerging consensus as to the standards to be achieved (see, amongst other authorities, the Cossey v. the United Kingdom judgment of 27 September 1990, Series A no. 184, p. 14, § 35).\n\nA.  As to the rights in issue under Article 8 of the Convention\n\n73.  The applicant submitted that measures threatening his occupation in caravans on his land affected not only his home, but also his private and family life as a gypsy with a traditional lifestyle of living in mobile homes which allow travelling. He refers to the consistent approach of the Commission in his own and similar cases (see, for example, the Buckley case, cited above, Comm. Rep. 11.1.95, § 64).\n\n74.  The Government accepted that the applicant’s complaints concerned his right to respect for home and stated that it was unnecessary to consider whether the applicant’s right to respect for his private life and family life was also in issue (see the Buckley judgment, cited above, §§ 54-55).\n\n75.  The Court considers that the applicant’s occupation of his caravan is an integral part of his ethnic identity as a gypsy, reflecting the long tradition of that minority of following a travelling lifestyle. This is the case even though, under the pressure of development and diverse policies or from their own volition, many gypsies no longer live a wholly nomadic existence and increasingly settle for long periods in one place in order to facilitate, for example, the education of their children. Measures which affect the applicant’s occupation of his caravans have therefore a wider impact than on the right to respect for home. They also affect his ability to maintain his identity as a gypsy and to lead his private and family life in accordance with that tradition.\n\n76.  The Court finds therefore that the applicant’s rights to respect for his private life, family life and home are in issue in the present case.\n\nB.  Whether there was an “interference” with the applicant’s rights under Article 8 of the Convention?\n\n77.  The Government accepted that there had been “an interference by a public authority” with the applicant’s right to respect for his home disclosed by the refusal of planning permission to allow him to live in his caravans on his own land and the pursuit of enforcement measures against him.\n\n78.  The applicant contended that, in addition to these measures constituting an interference with his rights, the framework of legislation and planning policy and regulations disclosed a lack of respect for those rights as they effectively made it impossible for him to live securely as a gypsy – either he was forced off his land and would have to station his caravans unlawfully, at risk of being continually moved on or he would have to accept conventional housing or “forced assimilation”.\n\n79.  The Court considers that it cannot examine legislation and policy in the abstract, its task rather being to examine the application of specific measures or policies to the facts of each individual case. There is no direct measure of “criminalisation” of a particular lifestyle as was the case in Dudgeon v. the United Kingdom (judgment of 22 October 1981, Series A no. 45), which concerned legislation rendering adult consensual homosexual relations a criminal offence.\n\n80.  Having regard to the facts of the present case, the Court finds that the decisions of the planning authorities refusing to allow the applicant to remain on his land in his caravans and the measures of enforcement taken in respect of that occupation constituted an interference with his right to respect for his private life, family life and home. It therefore examines below whether this interference was justified under paragraph 2 of Article 8 as being “in accordance with the law”, pursuing a legitimate aim or aims and as being “necessary in a democratic society” in pursuit of that aim or aims.\n\nC.  Whether the interference was “in accordance with the law”?\n\n81.  It was not contested by the applicant that the measures to which he was subjected were “in accordance with the law”.\n\nThe Court finds no reason to reach a different conclusion.\n\nD.  Whether the interference pursued a legitimate aim?\n\n82.  The Government submitted that the measures in question pursued the enforcement of planning controls which were in the interests of the economic well-being of the country and the preservation of the environment and public health.\n\n83.  The applicant accepted that the measures pursued the legitimate aim of protecting the “rights of others” in the sense of environmental protection. He did not accept that any other legitimate aim was concerned.\n\n84.  The Court notes that the Government have not put forward any detail concerning the aims allegedly pursued in this case and that they rely on a general assertion. It is also apparent that the reasons given for the interferences in the planning procedures in this case were expressed primarily in terms of environmental policy. In these circumstances, the Court finds that the measures pursued the legitimate aim of protecting the “rights of others” through preservation of the environment. It does not find it necessary to determine whether any other aims were involved.\n\nE.  Whether the interference was “necessary in a democratic society”?\n\n1.  Arguments before the Court\n\n(a)  The applicant\n\n85.  The applicant submitted that, in assessing the necessity of the measures in this case, the importance of what was at stake for him weighed very heavily in the balance, as it not only concerned the security of his home but also his right to live, with his family, the traditional gypsy lifestyle. The growing international consensus about the importance of providing legal protection to the rights of minorities, as illustrated, inter alia, by the Framework Convention for the Protection of Minorities emphasised that this was also of significance to the community as a whole as a fundamental value of a civilised democracy. In these circumstances, any margin of appreciation accorded to the domestic decision-making bodies should be narrower, rather than wider.\n\n86.  The applicant argued that the procedural safeguards in the decision-making process only gave limited recognition to those considerations in his case. Planning inspectors approached their decisions constrained by the laws and policies applying to development of land, which placed, for example, particular weight on the protection of Special Landscape Areas. The interest of gypsies in residing on their land was not seen as a useful or indispensable land-use feature and therefore automatically carried much less weight in the domestic balancing exercise. Thus, the “personal circumstances” of the gypsies could seldom outweigh the more general planning considerations.\n\n87.  The applicant also submitted that there must exist particularly compelling reasons to justify the seriousness of the interference disclosed by measures of eviction from his land, where there had not been shown to be an alternative site to which he could be reasonably expected to move. He pointed out that in his case he and his family had moved onto his land after being harassed and moved on over 40 times. This enabled his grandchildren to attend school. During the planning procedures, it was acknowledged that there were no official sites available in the Canterbury area and that there was a shortfall of sites notwithstanding designation of the area. Now he and his family lived on their land under the threat of further enforcement action, including physical eviction with still no secure alternative site to go to. The site at Broomfield Road had been closed and the site at Vauxhall Road was unfit for human habitation, in particular as it was next to a sewage works and a steel works which operated 24 hours a day.\n\n(b)  The Government\n\n88.  The Government emphasised that, as recognised by the Court in the Buckley case (cited above, §§ 74-75), in the context of town and country planning, which involved the exercise of discretionary judgment in implementing policies in the interests of the community, national authorities were in a better position to evaluate local needs and conditions than an international court. It was not for the Court to substitute its view of what would be the best planning policy or the most appropriate measure in a particular case.\n\n89.  While the applicant was entitled to have his interests carefully considered by the national authorities and weighed in the balance as against the needs of planning control, an examination of the applicable system, and the facts of this case, showed that the procedural safeguards contained in national law as to the way in which planning judgments were made (an assessment by a qualified independent expert, an Inspector, followed by judicial review in the High Court) were such as to give due respect to his interests. The Government pointed out that local planning authorities were encouraged to adopt a sympathetic approach to any question of enforcement action under Circular 18/94 (see paragraphs 49-50 above) and that large numbers of caravans on unauthorised sites were tolerated (see the statistics cited at paragraph 55 above). However, gypsies could not claim the right to live wherever they liked in defiance of planning control, particularly when they were now seeking to live a settled existence indefinitely on their own land.\n\n90.  The Government further submitted that the Planning Inspector had found it likely that other sites would be available in the area and pointed out that it was open to the applicant to travel to other caravan sites outside that local authority area. They pointed out that the applicant took up residence on his land, which was in an Special Landscape Area, without obtaining, or even applying for the prior planning permission necessary to render that occupation lawful. When he did apply for planning permission, the applicant had the opportunity of presenting the arguments in his favour in proceedings conducted by an Inspector, who gave his personal circumstances careful consideration. However, the Inspector found that his occupation of his land was very harmful to the landscape of the attractive area. The applicant could not rely on Article 8 as giving his preference as to his place of residence to outweigh the general interest. Finally, it should be noted that the applicant has not been subject to any prosecutions.\n\n(c)  Intervention by the European Roma Rights Centre\n\n91.  The European Roma Rights Centre drew to the attention of the Court the recently published “Report on the Situation of Roma and Sinti in the OSCE Area” prepared by the OSCE High Commissioner on National Minorities and other international texts and materials concerning the position of Roma. They submitted that there had emerged a growing consensus amongst international organisations about the need to take specific measures to address the position of Roma, inter alia, concerning accommodation and general living conditions. Articles 8 and 14 should be interpreted therefore in the light of the clear international consensus about the plight of the Roma and the need for urgent action.\n\n2.  The Court’s assessment\n\n(a)  General principles\n\n92.  An interference will be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued. While it is for the national authorities to make the initial assessment of necessity, the final evaluation as to whether the reasons cited for the interference are relevant and sufficient remains subject to review by the Court for conformity with the requirements of the Convention (see, amongst other authorities, the Lustig-Prean and Beckett v. the United Kingdom judgment of 27 September 1999, to be reported in Reports 1999-..., §§ 80-81).\n\n93.  In this regard, a margin of appreciation must, inevitably, be left to the national authorities, who by reason of their direct and continuous contact with the vital forces of their countries are in principle better placed than an international court to evaluate local needs and conditions. This margin will vary according to the nature of the Convention right in issue, its importance for the individual and the nature of the activities restricted, as well as the nature of the aim pursued by the restrictions (see the Dudgeon v. the United Kingdom judgment 22 October 1982, Series A no. 45, p. 21, § 52; the Gillow v. the United Kingdom judgment of 24 November 1986, Series A no. 109, p. 22, § 55).\n\n94.  The judgment in any particular case by the national authorities that there are legitimate planning objections to a particular use of a site is one which the Court is not well equipped to challenge. It can not visit each site to assess the impact of a particular proposal on a particular area in terms of impact on beauty, traffic conditions, sewerage and water facilities, educational facilities, medical facilities, employment opportunities and so on. Because Planning Inspectors visit the site, hear the arguments on all sides and allow examination of witnesses, they are better situated than the Court to weigh the arguments. Hence, as the Court observed in Buckley (loc. cit. p. 1292, § 75 in fine), “in so far as the exercise of discretion involving a multitude of local factors is inherent in the choice and implementation of planning policies, the national authorities in principle enjoy a wide margin of appreciation”, although it remains open to the Court to conclude that there has been a manifest error of appreciation by the national authorities. In these circumstances, the procedural safeguards available to the individual applicant will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation. In particular, it must examine whether the decision-making process leading to measures of interference was fair and such as to afford due respect to the interests safeguarded to the individual by Article 8 (see the Buckley judgment, cited above, p. 1292-3, §§ 76-77).\n\n95.  The applicant urged the Court to take into account recent international developments, in particular the Framework Convention for the Protection of Minorities, in reducing the margin of appreciation accorded to States in light of the recognition of the problems of vulnerable groups, such as gypsies. The Court observes that there may be said to be an emerging international consensus amongst the Contracting States of the Council of Europe recognising the special needs of minorities and an obligation to protect their security, identity and lifestyle (see paragraphs 56-60 above, in\nparticular the Framework Convention for the Protection of Minorities), not only for the purpose of safeguarding the interests of the minorities themselves but to preserve a cultural diversity of value to the whole community.\n\n96.  However, the Court is not persuaded that the consensus is sufficiently concrete for it to derive any guidance as to the conduct or standards which Contracting States consider desirable in any particular situation. The Framework Convention, for example, sets out general principles and goals but signatory states were unable to agree on means or implementation. This reinforces the Court’s view that the complexity and sensitivity of the issues involved in policies balancing the interests of the general population, in particular with regard to environmental protection and the interests of a minority with possibly conflicting requirements, renders the Court’s role a strictly supervisory one.\n\n97.  Moreover, to accord to a gypsy who has unlawfully established a caravan site at a particular place different treatment from that accorded to non-gypsies who have established a caravan site at that place or from that accorded to any individual who has established a house in that particular place would raise substantial problems under Article 14 of the Convention.\n\n98.  Nonetheless, although the fact of being a member of a minority with a traditional lifestyle different from that of the majority of a society does not confer an immunity from general laws intended to safeguard assets common to the whole society such as the environment, it may have an incidence on the manner in which such laws are to be implemented. As intimated in the Buckley judgment, the vulnerable position of gypsies as a minority means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory planning framework and in arriving at the decisions in particular cases (loc. cit., pp. 1292-95, §§ 76, 80, 84). To this extent there is thus a positive obligation imposed on the Contracting States by virtue of Article 8 to facilitate the gypsy way of life (see, mutatis mutandis, the Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, p. 15, § 31, the Keegan v. Ireland judgment of 26 May 1994, Series A no. 290, p. 19, § 49 and the Kroon and Others v. the Netherlands judgment of 27 October 1994, Series A no. 297-C, p. 56, § 31).\n\n99.  It is important to appreciate that in principle gypsies are at liberty to camp on any caravan site which has planning permission; there has been no suggestion that permissions exclude gypsies as a group. They are not treated worse than any non-gypsy who wants to live in a caravan and finds it disagreeable to live in a house. However, it appears from the material placed before the Court, including judgments of the English courts, that the provision of an adequate number of sites which the gypsies find acceptable and on which they can lawfully place their caravans at a price which they can afford is something which has not been achieved.\n\n100.  The Court does not, however, accept the argument that, because statistically the number of gypsies is greater than the number of places available in authorised gypsy sites, the decision not to allow the applicant gypsy family to occupy land where they wished in order to install their caravan in itself, and without more, constituted a violation of Article 8. This would be tantamount to imposing on the United Kingdom, as on all the other Contracting States, an obligation by virtue of Article 8 to make available to the gypsy community an adequate number of suitably equipped sites. The Court is not convinced, despite the undoubted evolution that has taken place in both international law, as evidenced by the Framework Convention, and domestic legislations in regard to protection of minorities, that Article 8 can be interpreted to involve such a far-reaching positive obligation of general social policy being imposed on States (see paragraphs 95-96 above).\n\n101.  It is important to recall that Article 8 does not in terms give a right to be provided with a home. Nor does any of the jurisprudence of the Court acknowledge such a right. While it is clearly desirable that every human being has a place where he or she can live in dignity and which he or she can call home, there are unfortunately in the Contracting States many persons who have no home. Whether the State provides funds to enable everyone to have a home is a matter for political not judicial decision.\n\n102.  In sum, the issue for determination before the Court in the present case is not the acceptability or not of a general situation, however deplorable, in the United Kingdom in the light of the United Kingdom’s undertakings in international law, but the narrower one whether the particular circumstances of the case disclose a violation of the applicant’s, Mr Lee’s, right to respect for his home under Article 8 of the Convention.\n\n103.  In this connection, the legal and social context in which the impugned measure of expulsion was taken against the applicants is, however, a material factor.\n\n104.  Where a dwelling has been established without the planning permission which is needed under the national law, there is a conflict of interest between the right of the individual under Article 8 of the Convention to respect for his or her home and the right of others in the community to environmental protection (see paragraph 83). When considering whether a requirement that the individual leave his or her home is proportionate to the legitimate aim pursued, it is highly relevant whether or not the home was established unlawfully. If the home was lawfully established, this factor would self-evidently be something which would weigh against the legitimacy of requiring the individual to move. Conversely, if the establishment of a home in a particular place was unlawful, the position of the individual objecting to an order to move is less strong. The Court will be slow to grant protection to those who, in conscious defiance of the prohibitions of the law, establish a home on an environmentally protected site. For the Court to do otherwise would be to encourage illegal action to the detriment of the protection of the environmental rights of other people in the community.\n\n105.  A further relevant consideration, to be taken into account in the first place by the national authorities, is that if no alternative accommodation is available, the interference is more serious than where such accommodation is available. The more suitable the alternative accommodation is, the less serious is the interference constituted by moving the applicant from his or her existing accommodation.\n\n106.  The evaluation of the suitability of alternative accommodation will involve a consideration of, on the one hand, the particular needs of the person concerned – his or her family requirements and financial resources – and, on the other hand, the rights of the local community to environmental protection. This is a task in respect of which it is appropriate to give a wide margin of appreciation to national authorities, who are evidently better placed to make the requisite assessment.\n\n(b)  Application of the above principles\n\n107.  The seriousness of what is at stake for this applicant is demonstrated by the facts of this case. The applicant followed an itinerant lifestyle for many years, stopping on temporary or unofficial sites. He took up residence on his own land by way of finding a long term and secure place to station his caravans. Planning permission was however refused for this and he has been required to leave. He remains on his land under threat of enforcement measures. It would appear that the applicant does not in fact wish to pursue an itinerant lifestyle. He has been resident on the site from about 1993 to the present day. Thus the present case is not concerned as such with traditional itinerant gypsy life styles.\n\n108.  It is evident that individuals affected by an enforcement notice have in principle, and this applicant had in practice, a full and fair opportunity to put before the Planning Inspector any material which he regarded as relevant to his argument and in particular his personal, financial and other circumstances, his views as to the suitability of alternative sites and the length of time needed to find a suitable alternative site.\n\n109.  The Court recalls that the applicant moved onto his land in his caravans without obtaining the prior planning permission which he knew was necessary to render that occupation lawful. In accordance with the applicable procedures, the applicant’s appeal against the enforcement notice were conducted in a public enquiry by an Inspector, who was a qualified independent expert. The Inspector saw the site himself and considered the applicant’s representations.\n\n110.  The Inspector identified the main issue of the appeal as whether the impact of the caravans on the landscape was justified by the needs of the applicant’s family as gypsies. The site, located in an open situation, was obtrusive and seriously conflicted with the applicable policies of conserving and enhancing the countryside. He identified the risk that planning permission could lead to the establishment of other sites with a very harmful effect to an attractive valley in a Special Landscape Area. Conversely, it was not unlikely that a less inappropriate place could be found by the applicant for placing his caravans. Thus, he concluded that the complete unsuitability of the site outweighed the applicant’s needs.\n\n111.  Consideration was given to the applicant’s arguments, both concerning the work that he had done on the site by painting and screening and concerning the difficulties of finding other sites in the area. However, the Inspector weighed those factors against the general interest of preserving the rural character of the countryside found that the latter prevailed.\n\n112.  It is clear from the report cited at paragraph 17 above that there were strong, environmental reasons for the refusal of planning permission and that the applicant’s interests have also been taken into account in the decision-making process. The Court notes that appeal to the High Court would have been available to the applicant if he had felt that the Ispector, or Secretary of State, had not taken into account a relevant consideration or had based the contested decision on irrelevant considerations. In the event however, the applicant declined to make such appeal.\n\n113.  The Court observes that during the planning procedures it was acknowledged that there was a shortfall of sites in the district. The Government have pointed out that official sites in the district and elsewhere in the county did exist offering alternative possibilities for stationing the applicant’s caravans and also that the applicant was free to seek sites outside the county. Notwithstanding that the statistics show that there is a shortfall of local authority sites available for gypsies in the country as a whole, it may be noted that many gypsy families still live an itinerant life without recourse to official sites and it cannot be doubted that vacancies on official sites arise periodically.\n\n114.  Moreover, given that there are many caravan sites with planning permission, whether suitable sites were available to the applicant during the long period of grace given to him was dependent upon what was required of a site to make it suitable. In this context, the cost of a site compared with the applicant’s assets, and its location compared with the applicant’s desires are clearly relevant. Since how much the applicant has by way of assets, what outgoings need to be met by him, what locational requirements are essential\nfor him and why they are essential are factors exclusively within the knowledge of the applicant, it is for the applicant to adduce evidence on these matters. He has not placed before the Court any information as to his financial situation, or as to the qualities a site must have before it will be locationally suitable for him, nor does the Court have any information as to the efforts he has made to find alternative sites. The Court is therefore not persuaded that there were no alternatives available to the applicant besides remaining in occupation on land without planning permission in a Special Landscape Area. As stated in the Buckley case, Article 8 does not necessarily go so far as to allow individuals’ preferences as to their place of residence to override the general interest (judgment cited above, p. 1294, § 81). If the applicant’s problem arises through lack of money, then he is in the same unfortunate position as many others who are not able to afford to continue to reside on sites or in houses attractive to them.\n\n115.  In the circumstances, the Court considers that proper regard was had to the applicant’s predicament both under the terms of the regulatory framework, which contained adequate procedural safeguards protecting his interests under Article 8 and by the responsible planning authorities when exercising their discretion in relation to the particular circumstances of his case. The decisions were reached by those authorities after weighing in the balance the various competing interests. It is not for this Court to sit in appeal on the merits of those decisions, which were based on reasons which were relevant and sufficient, for the purposes of Article 8, to justify the interferences with the exercise of the applicant’s rights.\n\n116.  The humanitarian considerations which might have supported another outcome at national level cannot be used as the basis of a finding by the Court which would be tantamount to exempting the applicant from the implementation of the national planning laws and obliging governments to ensure that every gypsy family has available for its use accommodation appropriate to its needs. Furthermore, the effect of these decisions cannot on the facts of this case be regarded as disproportionate to the legitimate aim being pursued.\n\n(c)  Conclusion\n\n117.  In conclusion, there has been no violation of Article 8 of the Convention.\n\nII.  ALLEGED VIOLATION OF ARTICLE 1 of Protocol no. 1 to THE CONVENTION\n\n118.  The applicant claims that he has been denied the right to live peacefully on his land and has therefore suffered a breach of the right to peaceful enjoyment of his possessions contrary to Article 1 of Protocol No. 1 to the Convention which provides:\n\n“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.\n\nThe preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”\n\n119.  The applicant argues that notwithstanding the admittedly broad discretion left to national planning decision-makers a fair balance has not been struck between his interests and those of the general community. He submits that the fact that he took up residence on his land without prior permission is irrelevant and that the findings of the Planning Inspector concerning the impact on visual amenity of his caravans are not so significant if taken in context of the policy framework governing their decisions. If however the Court finds a violation of Article 8, he accepts that no separate issue arises under this provision.\n\n120.  The Government, adopting the views of the majority of the Commission, submitted that a fair balance had been struck between the individual and general interest, in particular having regard to the fact that the applicant occupied his land in contravention of planning law and to the findings of the Planning Inspector concerning the detrimental impact of his occupation.\n\n121.  For the same reasons given under Article 8 of the Convention, the Court finds that any interference with the applicant’s peaceful enjoyment of his property was proportionate and struck a fair balance in compliance with the requirements of Article 1 of Protocol No. 1 of the Convention. There has, accordingly been no breach of this provision.\n\nIII.  Alleged violation of Article 2 of protocol no. 1\n\n122.  The applicant complains that the measures taken against him violated Article 2 of Protocol No. 1 which provides as relevant:\n\n“No person shall be denied the right to education. ...”\n\n123.  The applicant referred, before the Commission, to the risk posed to his grandchildren, currently receiving a proper education, by the refusal of permission for him and his family to remain on his own land. This threatened him with the prospect of having again to move on from place to place. He placed great importance on the stability of his grandchildren’s education from his own experience of being illiterate.\n\n124.  The Government argued that there was no right under the above provision for children to be educated at any particular school and that in any case there was no evidence that the enforcement measures had had the effect of preventing the applicant’s grandchildren from going to school.\n\n125.  The Court notes that the applicant’s grandchildren have been attending school near their home on the applicant’s land. It finds that the applicant has failed to substantiate his complaints that his grandchildren have effectively been denied the right to education as a result of the planning measures complained of. There has, accordingly, been no violation of Article 2 of Protocol No. 1 to the Convention.\n\nIV.  ALLEGED VIOLATION OF ARTICLE 14 Of THE CONVENTION\n\n126.  The applicant complained that he had been discriminated against on the basis of his status as a gypsy, contrary to Article 14 which provides:\n\n“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”\n\n127.  The applicant submitted that the legal system’s failure to accommodate his traditional way of life, by treating gypsies as if they were the same as members of the majority population, or disadvantaging them relative to members of the general population, amounted to discrimination in the enjoyment of his rights under the Convention based on his status as a member of an ethnic minority. For example, gypsies alone were singled out for special treatment by the policy which declared that gypsies sites are inappropriate in certain areas, and unlike house dwellers, they did not benefit from a systematic assessment of and provision for their needs. In his own case, the grant of planning permission on nearby sites for a caravan used for agriculture and for a large residential development demonstrated that preservation of landscape as a priority concern, and the concern with visual amenity, was applied differentially between different types of applicants for planning permission, to the detriment of gypsy applicants. Further, the application to gypsies of general laws and policies failed to accommodate their particular needs arising from their tradition of living and\ntravelling in caravans. He referred, inter alia, to the Framework Convention on Minorities, as supporting an obligation on the United Kingdom to adopt measures to ensure the full and effective equality of gypsies.\n\n128.  The Government, referring to the Commission’s majority opinion, found that any difference in treatment pursued legitimate aims, was proportionate to those aims and had in the circumstances reasonable and objective justification. No discrimination was disclosed by the planning permissions granted to two sites nearby as these developments were different in character, scenic impact and purpose from the applicant’s.\n\n129.  Having regard to its findings above under Article 8 of the Convention that any interference with the applicant’s rights was proportionate to the legitimate aim of preservation of the environment, the Court concludes that there has been no discrimination contrary to Article 14 of the Convention. While discrimination may arise where States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different (Thlimmenos v. Greece judgment of 6 April 2000, to be reported in Reports 2000-..., § 44), the Court does not find, in the circumstances of this case, any lack of objective and reasonable justification for the measures taken against this applicant.\n\n130.  Accordingly there has been no violation of Article 14 of the Convention.\n\nFOR THESE REASONS, THE COURT\n\n1.  Holds by ten votes to seven that there has been no violation of Article 8 of the Convention;\n\n2.  Holds unanimously that there has been no violation of Article 1 of Protocol No. 1 to the Convention;\n\n3.  Holds unanimously that there has been no violation of Article 2 of Protocol No. 1 to the Convention;\n\n4.  Holds unanimously that there has been no violation of Article 14 of the Convention.\n\nDone in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 18 January 2001.\n\nIn accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following opinions are annexed to this judgment:\n\n(a)  the joint dissenting opinion of Mr Pastor Ridruejo, Mr Bonello, Mrs Tulkens, Mrs Strážnická, Mr Lorenzen, Mr Fischbach and Mr Casadevall;\n\n(b)  the separate opinion of Mr Bonello.\n\n1.  We regret that we are unable to share the opinion of the majority that there has been no violation of Article 8 in this case. We refer to our joint dissenting opinion in the case of Chapman v. the United Kingdom (no. 27238, judgment of 18 January 2001), the leading case of the five applications brought before our Court concerning the problems experienced by gypsies in the United Kingdom.\n\n2.  Identical considerations arise in this application. The applicant and his family followed an itinerant lifestyle for many years, stopping on temporary or unofficial sites and being frequently moved on by police and local authority officials. Due to considerations of security and the education of his grandchildren, the applicant took the step of buying land on which to station his caravans. Planning permission was however refused for this and they were required to leave. He and his family remain on their land subject to the threat of further enforcement measures. His situation is insecure and vulnerable.\n\nDuring the planning procedures it was acknowledged that there was a shortfall of official sites in the area. No available alternative site was identified where the applicant to go either in the district or in the county as a whole. The Government referred to the Inspector’s opinion that it was not unlikely that other sites might be available in the area. While the applicant was subsequently offered places on two official sites, he has submitted that these were unfit for habitation. It appears that the Broomfield site, next to a rubbish tip, has since been closed down. The Vauxhall site, next to a sewage works and a steelworks operating 24 hours a day, has only recently been refurbished. The applicant’s allegations that the level of noise was such as to interfere seriously with the sleep of site residents were substantiated by the fact that the Council has issued a Noise Abatement Notice against the steelworks.\n\nThe Government also said that the applicant was free to seek sites outside the county. It is apparent however that, notwithstanding the statistics relied on by the Government (see paragraph 55), there is still a significant shortfall of official, lawful sites available for gypsies in the country as a whole and that it cannot be taken for granted that vacancies exist or are available elsewhere.\n\n3.  Consequently, the measures taken to evict the applicant from his home on his own land, in circumstances where there has not been shown to be any other lawful, alternative site reasonably open to him, were, in our view, disproportionate and disclosed a violation of Article 8 of the Convention.\n\n4.  We voted for non-violation of Article 1 of Protocol No. 1 and Article 14 as, in light of our firm conviction that Article 8 had been violated in the circumstances of this case, no separate issues remained to be examined.\n\nI refer to the terms of my separate opinion in the Chapman v. the United Kingdom judgment of this date.\n\nI refer to the terms of my separate opinion in the Chapman v. the United Kingdom judgment of this date.","title":""}
{"_id":"passage_16","text":"PROCEDURE\n\n1.  The case originated in an application (no. 11704/03) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Finnish national, Mr Ari Lehtonen (“the applicant”), on 30 March 2003.\n\n2.  The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.\n\n3.  On 13 May 2005 the Court decided to communicate the application. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time.\n\nTHE FACTS\n\nTHE CIRCUMSTANCES OF THE CASE\n\n4.  The applicant was born in 1957 and lives in Muurla.\n\n5.  The applicant was employed by a bank, working in the relevant years 1989-90 in the bank’s new campaign to grant loans and to invest in property abroad.\n\n6.  The applicant’s suspected offending in respect of credit decisions made without adequate guarantee arrangements, which led to the bank’s winding-up in the beginning of the 1990s, was reported to the police on 23 June 1992. The criminal investigation was begun by the police on 7 July 1992. A total of fourteen reports of offences had been made. The corresponding investigations lasted from 7 July 1992 to 9 December 1994 and from 9 April 1996 ending on 9 May 1996. On 7 August 1992 the police carried out a search at the applicant’s home and seized his assets, at which point he became aware that he was suspected of serious fraud in connection with his activities at the bank.\n\n7.  The hearing of the case, which involved 33 defendants, began in the Salo District Court (käräjäoikeus, tingsrätten) on 7 March 1995. It included several adjournments and lasted approximately five years in total. The case was heard during a total of 68 days. The judgment was rendered on 24 March 2000 and it ran to almost 900 pages. The applicant was convicted of four counts of aggravated fraud and sentenced to a suspended term of one year and ten months’ imprisonment and a fine.\n\n8.  On 4 March 2002 the Turku Court of Appeal (hovioikeus, hovrätten) gave judgment. It added a fifth count of serious fraud and increased the applicant’s sentence to four years and six months of unconditional imprisonment and a loss of military rank. The court decided to examine the case directly including the part which had been declared inadmissible by the District Court (charge 12), i.e. without returning the case to the District Court, referring to Article 6 of the Convention and the right to a trial within a reasonable time guaranteed therein. Furthermore, it stated in its reasons (p. 138) that it was taking the length of the proceedings into account as a factor lessening the sentence for all defendants in the case.\n\n9.  On 30 October 2002 the Supreme Court (korkein oikeus, högsta domstolen) refused leave to appeal.\n\n10.  The applicant submitted an extraordinary appeal against the decisions of the Supreme Court and the Court of Appeal, but it was rejected by the Supreme Court on 17 February 2003.\n\nTHE LAW\n\nI.  ALLEGED VIOLATIONS OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION CONCERNING LENGTH OF PROCEEDINGS\n\n11.  The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, provided in Article 6 § 1 of the Convention, which reads as follows:\n\n“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”\n\n12.  He also claimed that he had had no effective remedy for this complaint in breach of Article 13 of the Convention which provides:\n\n“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”\n\nA.  Preliminary objection and admissibility\n\n13.  The Government submitted that the applicant could no longer claim to be a victim of any excessive length of proceedings as the Court of Appeal when sentencing the applicant took this into account. They argued that according to domestic law the maximum sentence imposable was seven years and that the Court of Appeal also took into account the systematic nature of the applicant’s criminal activities which was also a ground for increasing sentence. The normal sentence in the present case would have amounted to six years’ imprisonment. Thus, in their view, by sentencing the applicant to four and a half year’s imprisonment, the court had reduced the applicant’s sentence by one and a half years. The redress afforded had therefore been real and sufficiently clear.\n\n14.  The applicant stated that although the Court of Appeal mentioned the time aspect, it proceeded to double the sentence imposed in the District Court which showed that they did not understand the reasonable time requirement.\n\n15.  The Court recalls that an individual can no longer claim to be a victim of a violation of the Convention when the national authorities have acknowledged, either expressly or in substance, the breach of the Convention and afforded redress (Eckle v. Germany, judgment of 15 July 1982, Series A no. 51, § 66; for the application of this principle in the context of Article 6, see Lüdi v. Switzerland, judgment of 15 June 1992, Series A no. 238 at § 34 and Schlader v. Austria (dec.), no. 31093/96, 7 March 2000, unreported). In this regard the mitigation of a sentence on the ground of the excessive length of proceedings does not in principle deprive the individual concerned of his status as a victim within the meaning of Article 34 of the Convention. However, this general rule is subject to an exception when the national authorities have acknowledged in a sufficiently clear way the failure to observe the reasonable time requirement and have afforded redress by reducing the sentence in an express and measurable manner (see Eckle v. Germany, cited above, § 66, Beck v. Norway, no. 26390/95, § 27, 26 June 2001 and Cocchiarella v. Italy [GC], no. 64886/01, § 77, ECHR 2006...).\n\n16.  In the present case, while it is true that the Court of Appeal stated that it was taking into account the length of proceedings in reducing the sentence of the defendants, it is not apparent from its judgment what this reduction was in the applicant’s case. As the applicant pointed out, the court significantly increased the sentence from one year and ten months’ conditional imprisonment to four year and a half years’ unconditional punishment. Since the Court of Appeal also had regard to the systematic nature of the applicant’s offending as an aggravating factor, it is not evident from the text of its judgment what reduction was in fact made for length. The Government’s calculation that the likely sentence but for the length aspect would have been six years, indicating a reduction of one and a half years is speculative. It is not an automatic or necessary conclusion that can be drawn from the court’s judgment. It cannot, therefore, be said that the applicant has been afforded express and quantifiable redress for the alleged breach of the reasonable time requirement (see, mutatis mutandis, Beck v. Norway, cited above, §§ 27-29; also Jensen v. Denmark (dec.), no. 48470/99, ECHR 2001X).\n\n17.  The Court finds that the applicant may therefore still claim to be a victim. It follows that this application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Article 6 of the Convention\n\n18.  The period to be taken into consideration began on 7 August 1992 when the police searched the applicant’s home and seized his assets and ended on 30 October 2002 when the Supreme Court refused leave to appeal: over ten years and two months.\n\n19.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II).\n\n20.  The Court notes that the application concerned a case of some complexity involving economic crime. The Government have pointed out that this involved investigation measures and witnesses from abroad, some 5,000 pages of investigative materials, that the charges consisted of more than 50 indictments with 160 separate counts and that there were 33 defendants.\n\n21.  The Court observes that the investigative stage lasted some three years, the proceedings before the District Court five years, after the applicant had lodged his appeal the appeal procedure before the Court of Appeal about one year and eight months with about some six months before the Supreme Court. The bulk of the time was accordingly taken up in the early stages and at first instance. The Court sees no indication that the applicant contributed to the length at this stage, either through the submissions which he made to the court or through his apparent acceptance of the timetabling proposed by the District Court. While the Government pointed to 68 days of hearing at this instance, this does not show, over a period of five years, any level of continuous judicial activity. Therefore, while the case was undoubtedly complex, this does not, however, justify the overall period of time which elapsed.\n\n22.  Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.\n\n23.  There has accordingly been a breach of Article 6 § 1.\n\nC.  Article 13 of the Convention\n\n24.  The applicant submitted that he had had no effective remedy for his complaint about the excessive length of proceedings. The Government pointed out that he could raise, and had raised, this matter on appeal and the Court of Appeal had mitigated the applicant’s sentence as a result. They also pointed out that there had been recent amendments to the Criminal Code to take into account\n\n25.  The Court notes that it has found above that there was no clearly identifiable reduction of sentence by the Court of Appeal in connection with the length of proceedings. In the circumstances, this cannot be considered as disclosing effective redress for the purposes of Article 13, either. Consequently, since the Government have not shown that any other form of relief – either preventive or compensatory – was available, there has been a violation of Article 13 of the Convention in that the applicant had no domestic remedy whereby he could enforce his right to a hearing within a reasonable time as guaranteed by Article 6 § 1 of the Convention (see Kangasluoma v. Finland, no. 48339/99, §§48-49, 20 January 2004).\n\nII. REMAINDER OF THE APPLICATION\n\n26.  The applicant had also complained that the proceedings in the District Court were affected by bias because the judge had a negative predisposition against the applicant, that the contents of the charges were changed, that the judgment did not accurately reflect the charge, and that the District Court worked too closely with the prosecutor. He was also of the view that his sentence was six months longer than the lawful limit at the time, that the judgments contained statements on which he did not have the possibility to comment, thus making the proceedings not fully adversarial and, with regard to his extraordinary appeal, that one of the judges had previously been involved, in his capacity as parliamentary ombudsman, and should have withdrawn in the Supreme Court.\n\n27.  Having regard to the case-file, the Court does not find any substantiation of these complaints nor any indication of procedural impropriety or failure to comply with the applicable criminal laws contrary to Articles 6 or 7 of the Convention or that the applicant was deprived of an effective opportunity to put forward his defence as guaranteed by Article 6 of the Convention. Accordingly, this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.\n\nIII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n28.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n29.  The applicant claimed 635,755 euros (EUR) in respect of pecuniary damage in respect of his own time and work on his defence and in respect of translation costs during the criminal trial and appeals. He also claimed EUR 164,000 for his detention between 3 January 2003 and 3 April 2005 and, referring to the systematic destruction of his reputation, with corresponding suffering of his family, a further EUR 200,000.\n\n30.  The Government pointed out that the applicant received a cost free trial and saw no legal basis for compensating the alleged pecuniary damage. They considered that the claim of non-pecuniary damage for detention did not relate to any finding of a breach and for the rest the claim was manifestly excessive.\n\n31.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. While it agrees with the Government that his claims for the period of detention and loss of reputation are misconceived, it considers that the applicant must have sustained non-pecuniary damage as regards the breaches found above. Ruling on an equitable basis, it awards him EUR 5,000 under that head.\n\nB.  Costs and expenses\n\n32.  The applicant made no claim in this regard. No award is made.\n\nC.  Default interest\n\n33.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Declares the complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible;\n\n2.  Holds that there has been a violation of Article 6 § 1 of the Convention;\n\n3.  Holds that there has been a violation of Article 13 of the Convention;\n\n4.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 5,000 (five thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n5.  Dismisses the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 13 June 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_12","text":"PROCEDURE\n\n1.  The case originated in an application (no. 61198/08) against the French Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a French national, Mr Maurice Agnelet (“the applicant”), on 11 December 2008.\n\n2.  The applicant was represented by Mr F. Saint-Pierre, a lawyer practising in Lyons. The French Government (“the Government”) were represented by their Agent, Ms E. Belliard, Director of Legal Affairs, Ministry of Foreign Affairs.\n\n3.  The applicant alleged a violation of Article 6 § 1 of the Convention on account of the lack of reasoning in a judgment of the Assize Court of Appeal.\n\n4.  On 27 September 2011 the application was declared partly inadmissible, with the exception of the complaint concerning the lack of reasoning in the Assize Court of Appeal’s judgment; notice of that complaint was given to the Government.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n5.  The applicant was born in 1938 and is currently in prison.\n\n6.  In late October 1977 Agnès Le Roux (“A.R.”), a twenty-nine-year-old woman, went missing in unexplained circumstances and for unknown reasons; she has never been seen again. A.R. was a director and partner, together with others including her mother, R.R., in the company that ran the Palais de la Méditerranée, a casino in Nice.\n\n1.  First set of proceedings\n\n7.  On 13 February 1978 R.R. lodged a criminal complaint alleging false imprisonment. On 1 March 1978 a judicial investigation was opened in respect of that allegation. From 4 February 1980 this became a murder investigation and R.R. lodged a further criminal complaint.\n\n8.  On 13 August 1983 the applicant, who was A.R.’s lawyer and also her lover, was charged with her murder by the investigating judge at the Nice tribunal de grande instance. He was remanded in custody, before being released on 7 October 1983.\n\n9.  On 29 September 1985 the public prosecutor filed submissions recommending that the charges be dropped.\n\n10.  On 30 September 1985 the investigating judge made an order finding that there was no case to answer.\n\n11.  On 23 April 1986 the Indictment Division of the Aix-en-Provence Court of Appeal upheld the order.\n\n12.  In a judgment of 1 February 1988 the Court of Cassation dismissed an appeal on points of law by R.R.\n\n2.  Second set of proceedings\n\n13.  On 24 October 1994 and 4 November 1997 R.R. lodged criminal complaints against the applicant and his estranged wife F.L. respectively, accusing the former of concealment of a body and the latter of aiding and abetting concealment of a body; in both cases she applied to join the proceedings as a civil party.\n\n14.  On 11 June 1999 F.L. admitted that she had given false evidence at the applicant’s instigation in her statement to the police in 1979, having stated that she had gone to Switzerland with the applicant on 27 and 28 October 1977.\n\n15.  In a judgment of 7 December 2000 the Investigation Division of the Aix-en-Provence Court of Appeal ordered the reopening of the investigation into A.R.’s disappearance and murder. It held that the declaration by F.L. constituted fresh incriminating evidence within the meaning of the Code of Criminal Procedure, strengthening the existing evidence which had previously been judged insufficient.\n\n16.  On 20 December 2000 the investigating judge placed the applicant under formal investigation for murder and made a court supervision order.\n\n17.  On 14 June 2001 the investigating judge arranged a confrontation between F.L. and the applicant.\n\n18.  On 21 February 2002, 25 June 2003 and 18 March 2004 the Investigation Division of the Aix-en-Provence Court of Appeal dismissed applications by the applicant for the charges to be dropped.\n\n19.  In a judgment of 26 October 2005 the Investigation Division of the Aix-en-Provence Court of Appeal committed the applicant for trial in the Alpes-Maritimes Assize Court. In its judgment, which ran to ninety-three pages, it dismissed an objection that the investigations into the alleged offence of concealment of a body had been unlawful as they had resulted from an abuse of process by the civil party in the form of a spurious accusation. It further held that the fact that the victim’s body had never been discovered did not prove that no crime had been committed; on the contrary, the disappearance of the body might have been an aspect of the crime designed to thwart any useful inquiries. Furthermore, after noting that the applicant was the only person charged with murder in the case, it observed that it would be appropriate to examine his attitude towards the missing person’s family and the proceedings. The Investigation Division found that the applicant had indulged in a series of lies, omissions and changes of story that could not be explained by his anxiety at being held in police custody or the fear of making statements that could jeopardise his career as a lawyer. It concluded that sufficient evidence had been gathered in the proceedings to suggest that the applicant had intentionally killed A.R. in order to appropriate the sum of three million French francs.\n\n20.  The applicant appealed on points of law against that judgment. He argued, in particular, that the judgment had not specified the factual circumstances in which the alleged offence had been committed, thus making it impossible for him to mount an effective defence.\n\n21.  On 15 February 2006 the Court of Cassation dismissed the applicant’s appeal, pointing out that the judicial investigating bodies had the ultimate authority to assess whether the acts of which a person under investigation was accused amounted to a criminal offence.\n\n22.  In a judgment of 20 December 2006 the Alpes-Maritimes Assize Court acquitted the applicant. The public prosecutor appealed.\n\n23.  A second trial was held in the Bouches-du-Rhône Assize Court from 17 September to 11 October 2007.\n\n24.  The following questions were put to the court and the jury:\n\nPrincipal questions:\n\n“1 – Is the accused Maurice Agnelet guilty of having deliberately killed [A.R.] in Nice (département of Alpes-Maritimes) between 26 October and 2 November 1977, or in any event within national territory and outside the period to which the time-limit for prosecution applies?\n\n2 – Prior to committing the murder referred to above, had the accused Maurice Agnelet formed the intention to commit that offence?”\n\nSubsidiary questions:\n\n“3 – Is it established that [A.R.] was deliberately killed in Nice (département of Alpes-Maritimes) between 26 October and 2 November 1977, or in any event within national territory and outside the period to which the time-limit for prosecution applies?\n\n4 – Was the murder referred to in question no. 3 premeditated?\n\n5 – Is the accused Maurice Agnelet guilty of having given instructions for the commission of the murder referred to in question no. 3 and further defined in question no. 4 in Nice (département of Alpes-Maritimes) between 26 October and 2 November 2007 [sic], or in any event within national territory and outside the period to which the time-limit for prosecution applies?\n\n– Is the accused Maurice Agnelet guilty of having knowingly facilitated, through aid or assistance, the preparation or commission of the murder referred to in question no. 3 and further defined in question no. 4 in Nice (département of Alpes-Maritimes) between 26 October and 2 November 2007 [sic], or in any event within national territory and outside the period to which the time-limit for prosecution applies?”\n\n25.  The answer given to the two principal questions was “yes, by a majority of at least ten”, and the subsidiary questions were found to be “devoid of purpose”.\n\n26.  In a judgment of 11 October 2007 the Assize Court found the applicant guilty of murdering A.R. and sentenced him to twenty years’ imprisonment. The judges of the court ordered the applicant’s immediate detention and, in a separate judgment on the civil claim, ordered him to pay damages to the civil parties.\n\n27.  The applicant appealed on points of law. He submitted several grounds of appeal, including a complaint that no reasons had been given for the Assize Court’s verdict.\n\n28.  In a judgment of 15 October 2008 the Court of Cassation dismissed the appeal. Addressing the argument that the Assize Court’s judgment had not contained reasons, it held that the requirements of Article 6 of the Convention had been satisfied, concluding that “all the replies, as set out both in the first-instance Assize Court’s judgment acquitting [the applicant] and in the Assize Court of Appeal’s judgment convicting him, which the judges and jury at both levels of jurisdiction gave on the basis of their personal conviction to the questions put to them in accordance with the order committing him for trial, serve as reasons for the Assize Court’s judgments on the criminal charges”.\n\nII.  RELEVANT DOMESTIC LAW\n\nA.  Code of Criminal Procedure\n\n29.  The relevant provisions of the Code of Criminal Procedure, as applicable at the material time, read as follows:\n\nArticle 231\n\n“The assize court has full jurisdiction to try at first instance or on appeal those persons committed for trial before it as a result of the indictment.\n\nIt may not hear any other charge.”\n\nArticle 240\n\n“The assize court comprises the court proper and the jury.”\n\nArticle 243\n\n“The court proper comprises the presiding judge and the other judges.”\n\nArticle 254\n\n“The jury is made up of citizens appointed in accordance with the provisions of the following Articles.”\n\nArticle 317\n\n“The defendant must be represented by counsel at the trial.\n\nIf the lawyer chosen or appointed in accordance with Article 274 does not appear in court, the president shall officially assign one.”\n\nArticle 327\n\n“The president shall ask the defendant and the jury to listen attentively to the committal order and, where the assize court is sitting as a court of appeal, the questions put to the assize court that heard the case at first instance, the answers to the questions, the decision and the sentence imposed.\n\nHe shall ask the clerk to read out the appropriate information.”\n\nArticle 347\n\n“The president shall declare the oral proceedings closed.\n\nHe may not sum up the arguments submitted by the prosecution and the defence.\n\nHe shall give directions for the case file to be handed over to the clerk of the assize court; however, with a view to the deliberations provided for in Articles 355 et seq., he shall retain a copy of the Investigation Division’s judgment.\n\nIf during the deliberations the assize court considers it necessary to examine one or more documents in the case file, the president shall direct that the file be brought to the deliberation room, where it shall be opened for that purpose in the presence of the public prosecutor and counsel for the defendant and for the civil party.”\n\nArticle 348\n\n“The president shall read out the questions which the court and jury must answer. The questions do not need to be read out if they are set out in the indictment or if the defendant or his counsel waives this right.”\n\nArticle 350\n\n“If it emerges at the hearing that there were one or more aggravating circumstances which were not mentioned in the committal order, the president shall ask one or more special questions.”\n\nArticle 351\n\n“If it emerges at the hearing that the alleged offence warrants a different legal classification from that set out in the indictment, the president shall ask one or more subsidiary questions.”\n\nArticle 353\n\n“Before the assize court withdraws to deliberate, the president shall read out the following instruction, which shall also be displayed in large type in the most visible place in the deliberation room:\n\n‘The law does not ask jurors to account for how they reached their personal conviction; it does not lay down rules on which they are to place particular reliance as to the completeness and sufficiency of evidence; it requires them to ask themselves questions, in silence and contemplation, and to discern, in the sincerity of their conscience, what impression has been made on their rational faculties by the evidence against the defendant and the submissions of the defence. The law simply asks them this one question, which encompasses the full scope of their duties: ‘Are you inwardly convinced?’’”\n\nArticle 356\n\n“The court and the jury shall deliberate, and shall then vote, in writing and by separate and successive ballots, first on the principal offence and, where appropriate, on grounds for exemption from criminal responsibility, on each of the aggravating circumstances, on the subsidiary questions and on each of the aspects constituting a legal cause for exemption from or reduction of the penalty.”\n\nArticle 357\n\n“Each of the judges and members of the jury shall receive for this purpose an open ballot paper bearing the stamp of the assize court and the following words: ‘Upon my honour and my conscience, my finding is ...’.\n\nHe shall then write or cause to be written in secret the word ‘yes’ or ‘no’ on a table placed in such a way that no one can see the vote written on the ballot paper. After filling in and closing the ballot paper, he shall hand it to the president, who shall deposit it in a box designed for this purpose.”\n\nArticle 370\n\n“Where appropriate, after delivering the judgment the president shall, where applicable, inform the defendant of his right to lodge an ordinary appeal or an appeal on points of law as the case may be, and shall inform him of the time-limit for such an appeal.”\n\nB.  Case-law of the Court of Cassation\n\n30.  The Court of Cassation has held that “it is a fundamental principle that the assize court must try the charge resulting from the oral proceedings and not the one previously established in the written proceedings” (Court of Cassation, Criminal Division, 12 May 1970, Bull. crim. no. 158).\n\n31.  With regard to reasoning, it has inferred from Articles 353 and 357 of the Code of Criminal Procedure that judgments by assize courts involving a conviction cannot contain any statements as to guilt other than those resulting from the set of answers, serving as reasons, which the judges and jury gave to the questions put to them in accordance with the committal order; a judgment containing any other information, for example clarifying the factual circumstances and aspects of the defendant’s personality, is liable to be quashed (Court of Cassation, Criminal Division, 15 December 1999, Bull. crim. no. 308).\n\n32.  Provided that information has been given in advance as to the charges forming the basis of the indictment, the rights of the defence have been freely exercised and the proceedings have been public and adversarial, the Assize Court’s judgment satisfies the requirements of a fair trial (Court of Cassation, Criminal Division, 14 October 2009, Bull. crim. no. 170).\n\nC.  Decision no. 2011 – 113/115 (QPC) of the Constitutional Council\n\n33.  Following a request for a preliminary ruling on constitutionality, the Constitutional Council ruled that the lack of reasoning in judgments of assize courts did not infringe the right to a fair and just criminal process. In its view, the requirement to give reasons in criminal cases amounted to a legal guarantee of the constitutional requirement for legislation to prevent any arbitrary decisions by the courts in accordance with the principle that only the law can define a crime and prescribe a penalty. Not including reasons could be justified on condition that appropriate safeguards were provided by law to preclude any arbitrariness. The Constitutional Council considered that such safeguards were afforded in proceedings before the assize courts, for the following reasons: the principle that proceedings were conducted orally (only evidence adduced orally and examined by the parties in the defendant’s presence was taken into account in the deliberations) and were uninterrupted (the judges and jury deliberated immediately after the oral proceedings ended); the requirement for the assize court to determine the case on the basis of a reasoned judicial decision, namely the order by the investigating judge or the judgment of the Investigation Division committing the accused for trial; the detailed arrangements concerning deliberations within the assize court; the requirement for the assize court and its president to ensure that the questions put to the court were clear, precise and geared to the circumstances of each individual; and the principle that the verdict was the direct expression of the personal conviction of the members of the jury, seeing that all decisions that were unfavourable to the defendant had to be adopted by at least an absolute majority of the jury.\n\nD.  Law no. 2011-939 of 10 August 2011\n\n34.  This law amended Article 327 of the Code of Criminal Procedure and also introduced a new Article 365-1:\n\nArticle 327\n\n“The president of the assize court shall give a concise summary of the acts of which the defendant is accused, as resulting from the committal order.\n\nHe shall set out the evidence for and against the defendant as referred to, in accordance with Article 184, in the committal order.\n\nWhere the assize court hears an appeal, the president shall also indicate the general decision reached at first instance, the reasons behind it and, where applicable, the sentence imposed.\n\nIn his summary, the president must not manifest his own opinion as to the defendant’s guilt.\n\nAt the end of his summary, the president shall read out the legal classification of the acts forming the subject of the indictment.”\n\nArticle 365-1\n\n“The president or one of the other judges designated by him shall draw up the reasons for the judgment.\n\nIn the event of a conviction, the reasoning shall consist of a statement of the main items of evidence against the defendant which persuaded the assize court in respect of each of the charges against him. This relates to the evidence examined during the deliberations conducted by the court and the jury in accordance with Article 356, prior to the voting on the questions.\n\nThe reasons shall be set out in a document appended to the question sheet known as the ‘statement of reasons form’, which shall be signed in accordance with Article 364.\n\nWhere the particular complexity of the case, on account of the number of defendants or the offences with which they are charged, makes it impossible to draw up the statement of reasons form immediately, it shall be drafted, added to the case file and filed with the registry of the assize court no later than three days after the judgment is delivered.”\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION\n\n35.  The applicant complained that he had been denied the right to a fair trial on account of the lack of reasoning in the Assize Court of Appeal’s judgment. He relied on Article 6 § 1 of the Convention, the relevant parts of which provide:\n\n“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”\n\n36.  The Government contested that argument.\n\n...\n\nB.  Merits\n\n1.  The parties’ submissions\n\n46.  The applicant explained that the Constitutional Council’s decision of 1 April 2011, given after his conviction, had not settled the problems encountered by judges and counsel during proceedings in the assize courts, in the absence of clear and established rules. For that reason, the Government had implemented a reform as a matter of some urgency, by incorporating the requirement to give reasons for assize court judgments in the bill on the introduction of juries in lower criminal courts. However, the resulting Law no. 2011-939 of 10 August 2011, which had come into force on 1 January 2012, had not amended the provisions of the Code of Criminal Procedure concerning questions to the jury, and so there was still no opportunity for counsel to put additional questions to the jury about the factual details of the alleged offence.\n\n47.  He submitted that this change to the law showed, in hindsight, that the questions put to the jury in assize courts were inadequate as they were not worded in such a way as to allow the defence to put forward sufficiently detailed arguments. Similarly, it was obvious that nobody could have understood the reasons for the judgment convicting him, even in the light of the two questions and the indictment (he referred to Taxquet v. Belgium [GC], no. 926/05, ECHR 2010). Although the indictment had given a detailed account of the background to A.R.’s disappearance and her relationship with the applicant, it had not contained any information about the essential elements of any criminal charge: where, when and how had the alleged offence been committed? Only through the answers to these questions could he have understood the verdict, especially as no reasons had been given for the departure from the assessment of the first-instance assize court, which had acquitted him. The applicant pointed out that besides the allegation of murder, there were two other possible explanations for A.R.’s death, based on precise and established factual circumstances: the victim had disappeared of her own accord before committing suicide, or she had been killed by the Mafia during what was commonly known as the “casino war” on the Côte d’Azur in 1977. He also explained that he had applied for a retrial on account of fresh witness evidence indicating that A.R. had been murdered by the Marseilles Mafia following the sale of her shares in the Palais de la Méditerranée casino under conditions that had prevented the Mafia from adding the casino to the others it effectively controlled.\n\n48.  Accordingly, the applicant submitted that the guilty verdict had not provided any indication either of the reasons why the Assize Court of Appeal had overturned the acquittal reached by the Assize Court in Nice less than a year previously, or of the evidence on which its decision had been based. He emphasised that the Assize Court of Appeal had simply answered “yes” to the question whether he was guilty.\n\n49.  The Government submitted, in the light of the criteria set forth in the Taxquet v. Belgium Chamber judgment of 13 January 2009, that the criminal proceedings in the present case had satisfied the Convention requirements. They stated firstly that the requirement to give reasons for court decisions, which did not appear in the Convention, was to be seen as just one aspect of the proceedings, which needed to be examined as a whole. As a result, the Court had not criticised the fact that in French law, judgments of assize courts did not contain reasons; the finding by a Chamber to that effect in the Papon v. France decision of 15 November 2001 (no. 54210/00, § 26, ECHR 2001-XII) had thus been confirmed by the Grand Chamber in the Taxquet judgment (cited above, §§ 90 and 93). A statement of reasons was not the only means of understanding the decision, since the assize court’s finding as to guilt resulted from reasoning which the defendant could understand and reconstruct through a set of safeguards afforded during the trial (they cited Taxquet, cited above, § 92).\n\n50.  The Government added that all defendants were entitled to have not only the committal order or the Investigation Division’s judgment read out in court, but also, in proceedings before assize courts of appeal, the questions put to the first-instance assize court, its answers and its decision.\n\n51.  They pointed out that the charges were read out and were then the subject of adversarial argument. During the trial in the assize court, each item of evidence was examined and the defendant was assisted by counsel, whose role was also to inform and advise his or her clients.\n\n52.  The Government emphasised that the judges and jury withdrew to deliberate immediately after the oral proceedings had ended and the questions had been read out. Since they did not have access to the case file, they could only discuss the evidence examined by the parties during the trial. Unlike the Belgian system, in which the jury deliberated on their own, the French system assigned a significant role to professional judges throughout the proceedings and during the deliberations.\n\n53.  Lastly, the Government observed that since the Law of 15 June 2000, decisions of assize courts were subject to review by an enlarged assize court of appeal, a stage that had been lacking in the Taxquet case (cited above, § 99).\n\n54.  With regard to the applicant’s specific circumstances, the Government submitted, inter alia, that the indictment, which formed the basis for the referral of the case to the Assize Court and for the principal questions to be answered by the jury, had contained particularly thorough reasoning. The Investigation Division had taken care to explain the aspects justifying the criminal trial: after giving a detailed description of the alleged offence and the investigative measures taken, it had set out all the evidence that might be used against the applicant. The applicant, who had been assisted by counsel throughout the investigation, had been aware of all these aspects because he had appealed to the Court of Cassation against the indictment. The Government added that at the trial in the Assize Court of Appeal, not only had the indictment been read out, but also the judgment given by the Assize Court at first instance, the questions to the jury and their answers. The applicant had been assisted by lawyers, who on several occasions had filed submissions that had given rise to a decision. In particular, he had been free to present his defence and to comment on each item of evidence produced at his trial.\n\n55.  Regarding the principal questions put to the jury by the president, there had been two of them and they had been sufficiently precise and relevant to serve as a basis for the decision to convict him, especially as, unlike in the Taxquet case, the applicant had been the sole defendant.\n\n2.  The Court’s assessment\n\n(a)  General principles\n\n56.  The Court reiterates that the Convention does not require jurors to give reasons for their decision and that Article 6 does not preclude a defendant from being tried by a lay jury even where reasons are not given for the verdict. The absence of reasons in a judgment, owing to the fact that the applicant’s guilt has been determined by a lay jury, is not in itself contrary to the Convention (see Saric v. Denmark (dec.), no 31913/96, 2 February 1999, and Taxquet, cited above, § 89).\n\n57.  Nevertheless, for the requirements of a fair trial to be satisfied, the accused, and indeed the public, must be able to understand the verdict that has been given; this is a vital safeguard against arbitrariness. As the Court has often noted, the rule of law and the avoidance of arbitrary power are principles underlying the Convention (see Taxquet, cited above, § 90). In the judicial sphere, those principles serve to foster public confidence in an objective and transparent justice system, one of the foundations of a democratic society (see Suominen v. Finland, no. 37801/97, § 37, 1 July 2003; Tatishvili v. Russia, no. 1509/02, § 58, ECHR 2007-III; and Taxquet, cited above).\n\n58.  The Court further reiterates that in the case of assize courts sitting with a lay jury, any special procedural features must be accommodated, seeing that the jurors are usually not required – or not permitted – to give reasons for their personal convictions (see Taxquet, cited above, § 92). In these circumstances, Article 6 requires an assessment of whether sufficient safeguards were in place to avoid any risk of arbitrariness and to enable the accused to understand the reasons for his conviction. Such procedural safeguards may include, for example, directions or guidance provided by the presiding judge to the jurors on the legal issues arising or the evidence adduced, and precise, unequivocal questions put to the jury by the judge, forming a framework on which the verdict is based or sufficiently offsetting the fact that no reasons are given for the jury’s answers (ibid.; see also Papon, cited above). Lastly, regard must be had to any avenues of appeal open to the accused.\n\n59.  Seeing that compliance with the requirements of a fair trial must be assessed on the basis of the proceedings as a whole and in the specific context of the legal system concerned, the Court’s task in reviewing the absence of a reasoned verdict is to determine whether, in the light of all the circumstances of the case, the proceedings afforded sufficient safeguards against arbitrariness and made it possible for the accused to understand why he was found guilty (see Taxquet, cited above, § 93). In doing so, it must bear in mind that it is in the face of the heaviest penalties that respect for the right to a fair trial is to be ensured to the highest possible degree by democratic societies (see Salduz v. Turkey [GC], no. 36391/02, § 54, ECHR 2008; and ibid.).\n\n60.  In the Taxquet judgment (cited above) the Court examined the combined impact of the indictment and the questions to the jury. It noted that although the indictment, which was read out at the start of the trial, indicated the nature of the offence and the circumstances determining the sentence, as well as containing a chronological sequence of the investigative measures and the statements taken from witnesses, it did not specify “which items of evidence the prosecution could use against” the accused. Above all, the Court observed that in practice this was of “limited effect” since it was filed “before the trial itself, which must serve as the basis for the jurors’ personal conviction” (ibid., § 95).\n\n61.  The questions put in the Taxquet case, totalling thirty-two for eight defendants, including only four that related to the applicant, had been succinctly worded and identical for all the defendants, making no reference to “any precise and specific circumstances that could have enabled the applicant to understand why he was found guilty”, in contrast to the Papon case, in which the Assize Court had referred to the jury’s answers to each of the 768 questions put by the court’s president (ibid., § 96).\n\n62.  It can be inferred from the Taxquet judgment (cited above) that a combined examination of the indictment and the questions to the jury must make it possible to ascertain which of the items of evidence and factual circumstances discussed at the trial ultimately caused the jury to answer the questions concerning the defendant in the affirmative, in order to be able to: distinguish between the co-defendants; understand why a particular charge was brought rather than another; determine why the jury concluded that the involvement of certain co-defendants had been limited, carrying a lesser sentence; and discern why aggravating factors were taken into account (ibid., § 97). In other words, the questions must be both precise and geared to each individual (ibid., § 98).\n\n(b)  Application of these principles in the present case\n\n63.  The Court observes at the outset that all defendants in French criminal proceedings, like the applicant, are provided with certain information and afforded certain safeguards: the indictment, or the judgment of the investigation division in the case of an appeal, is read out in full by the clerk at the trial in the assize court; the charges are read out and are then the subject of adversarial argument, each item of evidence being examined and the defendant being assisted by counsel; the judges and jury withdraw to deliberate immediately after the oral proceedings have ended and the questions have been read out, without having access to the case file; accordingly, their decision can only be based on the evidence examined by the parties during the trial. Furthermore, decisions of assize courts are subject to review by an enlarged assize court of appeal.\n\n64.  With regard to the combined impact of the indictment and the questions to the jury in the present case, the Court observes firstly that applicant was the sole defendant and the case was very complex.\n\n65.  In addition, as the parties agreed, the effect of the indictment was limited since it was filed before the trial itself, which forms the crucial part of the proceedings. The Court observes, however, that the indictment makes it clear that the offence of murder had not been formally established and that, as a result, the place, time and circumstances of the alleged offence remained unknown; moreover, the applicant had always denied the offence. As to the findings of fact set out in the indictment and their value in assisting an understanding of the guilty verdict against the applicant, the Court cannot speculate as to whether such findings influenced the Assize Court’s deliberations and the judgment it ultimately delivered. It must be acknowledged, however, that these findings necessarily left many things uncertain because the explanation for A.R.’s disappearance was inevitably based on suppositions.\n\n66.  As regards the questions, they were all the more important in that, as the Government themselves indicated, the judges and jury did not have access to the case file during the deliberations and based their decision solely on the evidence examined by the parties at the trial, although in this particular case, in accordance with Article 347 of the Code of Criminal Procedure, they also had access to the indictment.\n\n67.  The Court further notes that a great deal was at stake as the applicant was sentenced to twenty years’ imprisonment having previously been told that there was no case to answer and having later been acquitted.\n\n68.  Since the subsidiary questions in his case were found to be devoid of purpose, only two questions were put to the jury: the first was whether the applicant had intentionally murdered A.R. and the second was, if so, whether the murder had been premeditated.\n\n69.  The Court can only conclude, in view of the considerable complexity of the case, that these questions were succinctly worded and made no allusion to the specific circumstances. It notes, firstly that the applicant had been acquitted at first instance and, secondly, that the reasons for and manner of A.R.’s disappearance, including the possibility of premeditated murder, were based on mere suppositions in the absence of formal evidence, such as the discovery of the body or physical evidence firmly establishing the place, time and modus operandi of the murder of which the applicant was accused. Accordingly, the questions made no reference to “any precise and specific circumstances that could have enabled the applicant to understand why he was found guilty” (see Taxquet, cited above, § 96).\n\n70.  Admittedly, the prosecution appealed, which, as the Government noted, made a review of the first-instance judgment possible (see paragraph 53 above). However, besides the fact that no reasons were given for that judgment either, the appeal resulted in a differently constituted assize court being given the task of re-examining the case file and reassessing the factual and legal issues in the course of a fresh trial. It follows that the applicant was unable to infer any relevant information from the first-instance proceedings as to why he was convicted on appeal by a different jury and different professional judges, especially as he had initially been acquitted.\n\n71.  In conclusion, the Court considers that the applicant was not afforded sufficient safeguards enabling him to understand why he was found guilty.\n\n72.  Lastly, the Court takes note of the reform implemented since the time of the events, following the enactment of Law no. 2011-939 of 10 August 2011 which, among other things, introduced a new Article 365-1 into the Code of Criminal Procedure providing that the reasons for the assize court’s judgment are now to be set out in a “statement of reasons form” appended to the question sheet. In the event of a conviction, the Law requires the statement of reasons to refer to the evidence examined in the course of the deliberations which persuaded the assize court in respect of each of the charges brought against the accused. In the Court’s view, this reform appears, on the face of it, to significantly strengthen the safeguards against arbitrariness and to help the accused understand why they were convicted, thus meeting the requirements of Article 6 § 1 of the Convention.\n\n73.  There has therefore been a violation of Article 6 § 1 of the Convention in the present case.\n\nII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n74.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\n75.  The applicant, who contended that he had suffered considerable non-pecuniary damage, nevertheless did not submit a claim for just satisfaction, stating that he wished above all to be found innocent after a retrial. In addition, his lawyer stated that he had represented him free of charge.\n\n76.  Accordingly, the Court considers that it is not necessary to make an award to the applicant under Article 41 of the Convention, while emphasising that he does indeed have the opportunity to apply for a rehearing of his case, since the Law of 15 June 2000 on reinforcing the presumption of innocence and victims’ rights has incorporated into the Code of Criminal Procedure a Part III concerning “review of a criminal decision following a judgment of the European Court of Human Rights”.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\n...\n\n2.  Holds that there has been a violation of Article 6 § 1 of the Convention.\n\nDone in French, and notified in writing on 10 January 2013, pursuant to Rules 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_390","text":"INTRODUCTION\n\n1.  The applicant complained that proceedings before a pre-trial judge which had confirmed a public prosecutor’s decision not to prosecute an alleged perpetrator had been unfair and had breached his rights guaranteed by Article 6 § 1 of the Convention, because they had taken place in chambers, without the parties being present or aware of each other’s submissions, and without him being able to rebut the arguments submitted by the alleged perpetrator.\n\nTHE FACTS\n\n2.  The applicant was born in 1971 and lives in Bucharest. He was represented by Ms I.M. Peter, a lawyer practising in Bucharest.\n\n3.  The Government were represented successively by their Agents, Mr V. Mocanu and Ms S.M. Teodoroiu of the Ministry of Foreign Affairs.\n\n4.  The facts of the case, as submitted by the parties, may be summarised as follows.\n\nBackground to the case\n\nBackground to the case\n\n5.  On 19 March 2009 the Bucharest District Court (“the District Court”) allowed the applicant’s wife’s application for divorce. The court held that the applicant was the only person responsible for the divorce, and ordered him to pay financial maintenance for his child, who was a minor.\n\nCriminal proceedings COMPRISING civil claims brought by the applicant\n\nCriminal proceedings COMPRISING civil claims brought by the applicant\n\nCriminal proceedings COMPRISING civil claims brought by the applicant\n\n6.  On 1 March 2013 the applicant made a criminal complaint against his former mother-in-law for perjury. He argued that she had lied in a statement of 19 February 2009 that she had given before the courts during the divorce proceedings – a statement about his inappropriate behaviour towards his wife. Moreover, he had never attended the hearings held during the divorce proceedings because he had thought that his wife had merely been antagonising him with her application for divorce. The applicant joined the criminal proceedings as a civil party and claimed 20,000 Romanian Lei (RON) (approximately 4,600 Euros (EUR)) in respect of non-pecuniary damage because his mother-in-law’s above-mentioned statement had affected his image, honour and dignity.\n\n7.  On 24 October 2013 the Bucharest police department proposed that the criminal prosecution against the applicant’s former mother-in-law be discontinued and an administrative penalty be imposed on her, on the grounds that her actions had not met the level of seriousness of an offence. It held that three witnesses had been heard in order to clarify the circumstances of the case, namely the applicant’s neighbour L.O.N., his acquaintance C.S. and the applicant’s daughter T.C.M. L.O.N. and C.S. had stated that they had not heard or seen the applicant to be violent towards his former wife or to force her to leave their home. Likewise, the applicant’s daughter had stated that he had never hit his former wife and that her mother had left their home several times without a reason.\n\n7.  On 24 October 2013 the Bucharest police department proposed that the criminal prosecution against the applicant’s former mother-in-law be discontinued and an administrative penalty be imposed on her, on the grounds that her actions had not met the level of seriousness of an offence. It held that three witnesses had been heard in order to clarify the circumstances of the case, namely the applicant’s neighbour L.O.N., his acquaintance C.S. and the applicant’s daughter T.C.M. L.O.N. and C.S. had stated that they had not heard or seen the applicant to be violent towards his former wife or to force her to leave their home. Likewise, the applicant’s daughter had stated that he had never hit his former wife and that her mother had left their home several times without a reason.\n\n8.  On 27 January 2014 a prosecutor attached to the Bucharest prosecutor’s office (“the prosecutor’s office”) discontinued the criminal prosecution in the case and fined the applicant’s former mother-in-law, on the grounds that her actions had not met the level of seriousness of an offence. He held on the basis of the available evidence that imposing an administrative fine on her was sufficient, given the context in which the act was committed, namely that she did not have a criminal record, the social impact of her actions of February 2009 was largely diminished, and the injured party had not attended any court hearings to defend himself. The applicant’s former mother-in-law challenged the decision before a more senior prosecutor.\n\n8.  On 27 January 2014 a prosecutor attached to the Bucharest prosecutor’s office (“the prosecutor’s office”) discontinued the criminal prosecution in the case and fined the applicant’s former mother-in-law, on the grounds that her actions had not met the level of seriousness of an offence. He held on the basis of the available evidence that imposing an administrative fine on her was sufficient, given the context in which the act was committed, namely that she did not have a criminal record, the social impact of her actions of February 2009 was largely diminished, and the injured party had not attended any court hearings to defend himself. The applicant’s former mother-in-law challenged the decision before a more senior prosecutor.\n\n8.  On 27 January 2014 a prosecutor attached to the Bucharest prosecutor’s office (“the prosecutor’s office”) discontinued the criminal prosecution in the case and fined the applicant’s former mother-in-law, on the grounds that her actions had not met the level of seriousness of an offence. He held on the basis of the available evidence that imposing an administrative fine on her was sufficient, given the context in which the act was committed, namely that she did not have a criminal record, the social impact of her actions of February 2009 was largely diminished, and the injured party had not attended any court hearings to defend himself. The applicant’s former mother-in-law challenged the decision before a more senior prosecutor.\n\n9.  On 25 August 2014 the more senior prosecutor attached to the prosecutor’s office allowed the applicant’s former mother-in-law’s challenge, overruled the lower prosecutor’s decision and closed the criminal proceedings in the case. She held that the investigation had not been sufficient to establish with any certainty whether the applicant’s former mother-in-law had been guilty. The testimony of the three witnesses heard by the investigating authorities could not be taken into account in the case. The applicant’s acquaintance C.S. had not been questioned on essential aspects of the applicant’s family life, such as whether he had been aware of any older family problems the applicant might have had, and the neighbour L.O.N. had known the applicant only since his divorce. In addition, the applicant’s daughter had been living with the applicant, had been underage, and had not been informed of her right not to testify against her grandmother. Moreover, the statutory limitation in respect of the applicant’s former mother-in-law’s criminal liability had expired.\n\n9.  On 25 August 2014 the more senior prosecutor attached to the prosecutor’s office allowed the applicant’s former mother-in-law’s challenge, overruled the lower prosecutor’s decision and closed the criminal proceedings in the case. She held that the investigation had not been sufficient to establish with any certainty whether the applicant’s former mother-in-law had been guilty. The testimony of the three witnesses heard by the investigating authorities could not be taken into account in the case. The applicant’s acquaintance C.S. had not been questioned on essential aspects of the applicant’s family life, such as whether he had been aware of any older family problems the applicant might have had, and the neighbour L.O.N. had known the applicant only since his divorce. In addition, the applicant’s daughter had been living with the applicant, had been underage, and had not been informed of her right not to testify against her grandmother. Moreover, the statutory limitation in respect of the applicant’s former mother-in-law’s criminal liability had expired.\n\n9.  On 25 August 2014 the more senior prosecutor attached to the prosecutor’s office allowed the applicant’s former mother-in-law’s challenge, overruled the lower prosecutor’s decision and closed the criminal proceedings in the case. She held that the investigation had not been sufficient to establish with any certainty whether the applicant’s former mother-in-law had been guilty. The testimony of the three witnesses heard by the investigating authorities could not be taken into account in the case. The applicant’s acquaintance C.S. had not been questioned on essential aspects of the applicant’s family life, such as whether he had been aware of any older family problems the applicant might have had, and the neighbour L.O.N. had known the applicant only since his divorce. In addition, the applicant’s daughter had been living with the applicant, had been underage, and had not been informed of her right not to testify against her grandmother. Moreover, the statutory limitation in respect of the applicant’s former mother-in-law’s criminal liability had expired.\n\n10.  On 13 October 2014 the applicant appealed against the prosecutor’s office’s decision of 25 August 2014 to the District Court. He argued that the decision had been unlawful and that the more senior prosecutor’s conclusion that the evidence had been insufficient to establish with certainty his former mother-in-law’s guilt had been wrong. The senior prosecutor had ignored L.O.N.’s statement that she had been the applicant’s neighbour since before his divorce and that therefore L.O.N. could have been aware of details about his family life even before he and L.O.N. were formally acquainted. Also, the senior prosecutor’s conclusion that his daughter’s testimony could not be taken into account in the case had been unreasonable as long as the investigation authorities had considered on their own motion that it had been necessary for his daughter to be heard in the case. Moreover, some of the procedural deficiencies indicated by the more senior prosecutor, such as the investigating authorities’ failure to notify the applicant’s daughter of her right not to testify against her grandmother, could have been remedied very easily by referring the case back to the police department. The applicant stated that establishing that his former mother-in-law had lied in her statement had been very important to him. At the relevant time he had been working as a police officer, and his employer had been notified of the judgment containing her detailed statement about his inappropriate behaviour towards his family. Afterwards, his employer had subjected him to intense psychological and professional scrutiny before it had allowed him to resume work.\n\n11.  On 22 October 2014 the District Court, sitting as a pre-trial judge, notified the applicant of the date and place of the examination of his appeal against the prosecutor’s office’s decision. In addition, it informed him that he could submit written observations on the admissibility and merits of the appeal.\n\n12.  There is no information in the case file that the applicant made other submissions before the District Court apart from the ones of 13 October 2014 (see paragraph 10 above).\n\n12.  There is no information in the case file that the applicant made other submissions before the District Court apart from the ones of 13 October 2014 (see paragraph 10 above).\n\n12.  There is no information in the case file that the applicant made other submissions before the District Court apart from the ones of 13 October 2014 (see paragraph 10 above).\n\n13.  By an interlocutory judgment of 3 November 2014 which was not amenable to appeal the District Court – sitting as a pre-trial judge, in chambers and without the parties being present – dismissed the applicant’s appeal and upheld the prosecutor’s office’s decision of 25 August 2014 (see paragraph 9 above).\n\n13.  By an interlocutory judgment of 3 November 2014 which was not amenable to appeal the District Court – sitting as a pre-trial judge, in chambers and without the parties being present – dismissed the applicant’s appeal and upheld the prosecutor’s office’s decision of 25 August 2014 (see paragraph 9 above).\n\n14.  The pre-trial judge held that there was no evidence that the applicant’s former mother-in-law had lied in her statement given before the court and committed perjury. The prosecutor had relied on the testimony of two witnesses to conclude that she had lied in court. One of the witnesses was an acquaintance of the applicant, and the other had been a neighbour of the former spouses. Neither of the two witnesses had seen or heard an argument between the applicant and his former wife, and therefore they had contradicted the mother-in-law’s statement that the applicant and his former wife had had arguments.\n\n15.  However, the pre-trial judge considered that the applicant’s former mother-in-law had been in a better position to see or find out about possible arguments or threats between the former spouses, given the close relationship that she had had with them. It could therefore not be excluded that such arguments had existed, even if the witnesses C.S. and L.O.N. had not heard or seen them.\n\n16.  As regards the statement of the applicant’s daughter, the pre-trial judge held that her statement could have been influenced by the relationship that she had with her parents, and by the fact that she had been living with her father.\n\n17.  The pre-trial judge further held that the court which had delivered the judgment of 19 March 2009 (see paragraph 5 above) had not relied on only the applicant’s former mother-in-law’s statements, but also the fact that it had been impossible to carry out a social inquiry at the applicant’s home, he had failed to cooperate with the court, and he had refused to appear in court in order to be questioned by his former wife.\n\n17.  The pre-trial judge further held that the court which had delivered the judgment of 19 March 2009 (see paragraph 5 above) had not relied on only the applicant’s former mother-in-law’s statements, but also the fact that it had been impossible to carry out a social inquiry at the applicant’s home, he had failed to cooperate with the court, and he had refused to appear in court in order to be questioned by his former wife.\n\n18.  According to medical documents submitted by the applicant’s former mother-in-law, in January 2008 the applicant had been taken to hospital by the police at the request of his former wife and treated for erratic behaviour. Even though these documents had not been examined by the prosecutor, in the pre-trial judge’s opinion they corroborated the applicant’s former mother-in-law’s allegations that the applicant had sometimes behaved inappropriately towards his family because of health problems which he had been facing at that time.\n\nseparate Civil proceedings brought by the applicant\n\nseparate Civil proceedings brought by the applicant\n\nseparate Civil proceedings brought by the applicant\n\n19.  On 9 May 2014 the applicant brought general tort law proceedings against his former mother-in-law, seeking compensation for pecuniary and non-pecuniary damage – the psychological and material damage which he had suffered both at work and in his private life following her statement of February 2009. He argued, amongst other things, that on 27 January 2014 the prosecutor’s office had established that his former mother-in-law was guilty of perjury (see paragraph 8 above).\n\n19.  On 9 May 2014 the applicant brought general tort law proceedings against his former mother-in-law, seeking compensation for pecuniary and non-pecuniary damage – the psychological and material damage which he had suffered both at work and in his private life following her statement of February 2009. He argued, amongst other things, that on 27 January 2014 the prosecutor’s office had established that his former mother-in-law was guilty of perjury (see paragraph 8 above).\n\n20. There is no evidence in the file concerning the outcome of the general tort law proceedings brought by the applicant.\n\nRELEVANT LEGAL FRAMEWORK AND PRACTICE\n\nTHE CONSTITUTION\n\nTHE CONSTITUTION\n\n21.  The relevant provisions of the Constitution read as follows:\n\nArticle 20\n\nInternational human rights treaties\n\n“(1)  The provisions of the Constitution concerning citizens’ rights and freedoms shall be interpreted and applied in line with the Universal Declaration of Human Rights [and] the covenants and other treaties to which Romania is a party.\n\n(2)  Where ... there are inconsistencies between the covenants and treaties on fundamental human rights to which Romania is a party and the national laws, the international regulations shall take precedence, unless the Constitution or national laws comprise more favourable provisions.”\n\nArticle 21\n\nFree access to court\n\n“(1)  All persons may bring cases before the courts for the defence of their legitimate rights, liberties and interests.\n\n(2)  The exercise of this right shall not be restricted by any law.\n\n(3)  Parties have the right to a fair trial and [the right to have] their cases examined within a reasonable time.\n\n....”\n\nArticle 24\n\nRight of defence\n\n“(1)  The right of defence is guaranteed.\n\n(2)  Throughout a trial parties have a right to be assisted by a lawyer [who is] either chosen or appointed.”\n\nArticle 129\n\nUse of appeals\n\n“Interested parties and the [prosecutor’s office attached to the High Court of Cassation and Justice] may lodge appeals against judgments under the conditions set out by law.”\n\nArticle 147\n\nConstitutional Court decisions\n\n“(1)  Provisions of the laws ... in force ... [which are] declared unconstitutional shall cease to have any legal effect 45 days after the [relevant] decision of the Constitutional Court is published if, during this time, Parliament or the Government, as the case may be, does not bring the unconstitutional provisions in line with the Constitution. During this time, the provisions which have been declared unconstitutional are suspended by law.\n\n...\n\n(4)  Decisions of the Constitutional Court shall be published in the Official Gazette ... From the moment they are published the decisions are ... mandatory and apply only ex nunc.”\n\nTHE CODE OF CRIMINAL PROCEDURE\n\nTHE CODE OF CRIMINAL PROCEDURE\n\n22.  The relevant provisions of the Code of Criminal Procedure (“the CCP), as in force at the relevant time, read as follows:\n\nArticle 3\n\nSeparation of judicial functions\n\n“(1)  The following judicial functions are exercised during criminal proceedings:\n\n(a)  the criminal investigation function;\n\n...\n\n(c)  the function of reviewing the lawfulness of an indictment or decision not to indict;\n\n(d)  the trial function.\n\n....\n\n(3)  Except for the function mentioned in section (1) (c), which is compatible with the exercise of the trial function, the exercise of one judicial function is incompatible with the exercise of another judicial function during the same set of criminal proceedings.\n\n(4)  In exercising the criminal investigation function, the prosecutor and the criminal investigation bodies gather the necessary evidence to determine whether there are grounds to send a case for trial.\n\n....\n\n(6)  Under the conditions set out by law, the pre-trial judge examines the lawfulness of an act of indictment and the evidence on which it is based, as well as the lawfulness of a decision not to send a case for trial.\n\n(7)  A case is tried by a court ...”\n\nArticle 28\n\nThe force of a criminal judgment in a civil trial, and the effects of a civil judgment in a criminal trial\n\n“(1)  The final judgment of a criminal court is res judicata for a civil court, which examines a civil action as regards the existence of an act and [the existence of evidence that] a person has committed it. The civil court is not bound by a final judgment acquitting [a person] or discontinuing a criminal trial, as regards the existence of damage and the guilt of the person who has committed the unlawful act.\n\n...”\n\nArticle 54\n\nThe competence of a pre-trial judge\n\n“(1)  A pre-trial judge is a judge who is attached to a court and who, in accordance with the court’s competence\n\n(a)  reviews the lawfulness of an act of indictment produced by the prosecutor;\n\n(b)  reviews the lawfulness of [both] the manner in which evidence has been gathered and the actions of the criminal investigation authorities;\n\n(c)  examines complaints against decisions not to prosecute or not to indict; [and]\n\n(d)  examines other situations expressly provided for by law.”\n\nArticle 341\n\nExamination of complaints by a pre-trial judge\n\n“(1)  After a complaint [against a prosecutor’s office’s decision to close or discontinue a prosecution] has been registered with the competent court, it is referred to the pre-trial judge [attached to that court] on the same date ...\n\n(2)  The pre-trial judge has to set a date for the examination of the case, of which the prosecutor and the parties have to be given notice, in addition to a copy of the complaint, and they can submit written observations on the admissibility and merits of the complaint. The complainant has to be given notice of the date for the examination of the case. The person who was a defendant in the case can lodge applications and raise objections which also concern the lawfulness of the manner in which evidence has been gathered or the criminal investigation has been conducted.\n\n...\n\n(5)  The pre-trial judge has to examine a complaint by way of a reasoned interlocutory judgment, in chambers, in the absence of the complainant, the prosecutor, and the respondents.\n\n(6)  In cases where no formal charge has been brought, the pre-trial judge can decide to\n\n(a)  dismiss the complaint as out of time, inadmissible or ill-founded, as the case may be;\n\n(b)  allow the complaint, quash the contested decision and refer the case back to the prosecutor, giving reasons, so that the prosecution of the case may be started or supplemented or a formal charge may be brought ..., as the case may be; [or]\n\n(c)  allow the complaint and change the legal grounds on which the contested decision to close the investigation is based, if this [change] does not place the person who has lodged the complaint in a more difficult situation.\n\n(7)  In cases where a formal charge has been brought, the pre-trial judge\n\n1.  dismisses the complaint as out of time or inadmissible;\n\n2.  reviews the lawfulness of the manner in which evidence has been gathered and the criminal investigation has been conducted, excludes unlawfully gathered evidence, or penalises ... unlawful acts in the criminal investigation, as the case may be, and\n\n(a)  dismisses the complaint as ill-founded;\n\n(b)  allows the complaint, quashes the contested decision and refers the case back to the prosecutor, giving reasons why the prosecution of the case should be supplemented;\n\n(c)  allows the complaint, quashes the contested decision and, when the evidence which has been lawfully gathered is sufficient, sends the case for trial in respect of ... the persons who have been formally charged during the criminal investigation ...; [or]\n\n(d)  allows the complaint and changes the legal grounds on which the contested decision to close the investigation is based, if this [change] does not place the person who has lodged the complaint in a more difficult situation.\n\n(8)  An interlocutory judgment based on one of the solutions provided for in section 6 and [section] 7 (1) and (2) (a), (b), and (d) is [not amenable to appeal].\n\n...\n\n(11)  Evidence excluded [from the case file] cannot be taken into account when the case is examined on the merits.”\n\nArticle 342\n\nThe scope of the procedure before a pre-trial judge\n\n“The scope of the procedure before a pre-trial judge consists in reviewing, after a case has been sent for trial, a court’s competence and [reviewing] whether the case has been referred to it lawfully, as well as [reviewing] the lawfulness of [both] the manner in which evidence has been gathered and the criminal investigation authorities’ actions.”\n\nArticle 344\n\nPreliminary steps\n\n“...\n\n(4)  ..., the pre-trial judge notifies the prosecutor’s office of applications made and objections raised by the defendant, or objections raised [by the pre-trial judge] of [his or her] own motion, and the [prosecutor’s office] can submit a written response ...”\n\nArticle 345\n\nThe procedure before a pre-trial judge\n\n“(1)  Where applications have been made and objections have been raised, or [the pre-trial judge] has raised objections of [his or her] own motion, the pre-trial judge has to examine them by way of a reasoned interlocutory judgment, in chambers, in the absence of the prosecutor and the defendant ...\n\n(2)  When the pre-trial judge considers that an act of indictment is deficient, [or] when [he or she] sets aside... steps in a criminal investigation which have been carried out unlawfully, or excludes one or more pieces of evidence from the case file, the prosecutor’s office which has issued the act of indictment is notified of the interlocutory judgment.\n\n(3)  ... the prosecutor corrects the deficiencies in the act of indictment and informs the pre-trial judge whether he or she is maintaining the decision to send the case for trial or asking for the case to be referred back [to the prosecutor’s office].”\n\nArticle 346\n\nDecisions\n\n“(1)  The pre-trial judge makes a decision by way of an interlocutory judgment, in chambers, in the absence of the prosecutor and the defendant. The prosecutor and the defendant must immediately be notified of the interlocutory judgment.\n\n(2)  If no applications have been made and no objections have been raised, and [the pre-trial judge] has not raised any objections of [his or her] own motion, ... the pretrial judge has to decide whether the referral of the case to the [trial] court, the manner in which the evidence has been gathered and the criminal investigation authorities’ actions have been lawful, and order the beginning of the trial.\n\n(3)  The pre-trial judge has to refer the case back to the prosecutor’s office if\n\n(a)  the act of indictment is deficient and the deficiency has not been remedied by the prosecutor ..., in circumstances where the deficiency makes it impossible to determine the scope or limits of the trial;\n\n(b)  [he or she] has excluded all the evidence gathered during the criminal investigation stage of the proceedings; [or]\n\n(c)  the prosecutor asks for the case to be returned ..., or does not respond ....\n\n(4)  In all other circumstances, where [he or she] has found deficiencies in the act of indictment, has excluded one or more pieces of evidence ..., or has set aside ... the criminal investigation authorities’ actions which have been carried out unlawfully, the pre-trial judge has to order the beginning of the trial.\n\n(5)  Excluded evidence cannot be taken into account during the trial.\n\n...\n\n(7)  The pre-trial judge who has ordered the beginning of the trial has to be the trial judge in the case.”\n\nArticle 347\n\nThe challenge\n\n“(1)  The prosecutor and the defendant can contest decisions concerning applications which have been made and objections which have been raised, as well as decisions which are set out in Article 346 §§ 3-5, within 3 days of notice of the interlocutory judgment mentioned in Article 346 § 1 being given.\n\n(2)  A challenge has to be examined by a pre-trial judge who is attached to a higher court ...\n\n(3)  The rules set out in Articles 343-346 apply accordingly.”\n\n(3)  The rules set out in Articles 343-346 apply accordingly.”\n\n23.  The relevant provisions of the former CCP and of the Civil Code on civil parties joined to criminal proceedings and separate civil proceedings are set out in Nicolae Virgiliu Tănase v. Romania ([GC], no. 41720/13, §§ 66-70, 25 June 2019).\n\nDECISIONS BY THE CONSTITUTIONAL COURT\n\nDecision no. 599 of 21 October 2014\n\nDecision no. 599 of 21 October 2014\n\n24.  By decision no. 599 of 21 October 2014, published in Official Gazette no. 886 of 5 December 2014, the Constitutional Court examined two unconstitutionality objections concerning Article 341 §§ 5-8 of the CPP. It held that Article 341 § 5 was unconstitutional in so far as it provided that a pre-trial judge examined a complaint against the decision of a prosecutor’s office in the absence of the complainant, the prosecutor and the respondent, and that Article 341 §§ 6-8 was constitutional.\n\n25.  The Constitutional Court took the view that the fact that the decisions of a pre-trial judge which were set out in Article 341 §§ 6 and 7 (a), (b) and (d) of the CCP were not amenable to appeal was constitutional, because the rules concerning appeals fell within the exclusive competence of the legislature. A person’s right of defence, right of access to court or right to a fair hearing could not be breached by Article 341 § 8 of the CCP, because that person could still have the benefit of the procedural rights and guarantees provided for by law during a trial examined expeditiously by an independent and impartial tribunal.\n\n26.  The relevant provisions of the Constitution or international norms did not require a second level of jurisdiction in every case, and the special nature of the proceedings covered by Articles 340 and 341 of the CCP – namely proceedings examining prosecutor’s offices’ decisions not to prosecute or not to indict rather than the merits of the offence being investigated – justified the absence of an appeal and rendered Article 2 of Protocol No. 7 to the Convention inapplicable. Likewise, Article 13 of the Convention was inapplicable in such instances, since the right to an effective remedy was different from the right to appeal. The legislature had sought to ensure that such proceedings were examined expeditiously, and that a final judgment on the decisions of a prosecutor’s office was delivered without delay.\n\n26.  The relevant provisions of the Constitution or international norms did not require a second level of jurisdiction in every case, and the special nature of the proceedings covered by Articles 340 and 341 of the CCP – namely proceedings examining prosecutor’s offices’ decisions not to prosecute or not to indict rather than the merits of the offence being investigated – justified the absence of an appeal and rendered Article 2 of Protocol No. 7 to the Convention inapplicable. Likewise, Article 13 of the Convention was inapplicable in such instances, since the right to an effective remedy was different from the right to appeal. The legislature had sought to ensure that such proceedings were examined expeditiously, and that a final judgment on the decisions of a prosecutor’s office was delivered without delay.\n\n26.  The relevant provisions of the Constitution or international norms did not require a second level of jurisdiction in every case, and the special nature of the proceedings covered by Articles 340 and 341 of the CCP – namely proceedings examining prosecutor’s offices’ decisions not to prosecute or not to indict rather than the merits of the offence being investigated – justified the absence of an appeal and rendered Article 2 of Protocol No. 7 to the Convention inapplicable. Likewise, Article 13 of the Convention was inapplicable in such instances, since the right to an effective remedy was different from the right to appeal. The legislature had sought to ensure that such proceedings were examined expeditiously, and that a final judgment on the decisions of a prosecutor’s office was delivered without delay.\n\n27.  However, as regards Article 341 § 5, the Constitutional Court held that the legislature had an obligation to ensure that every individual had fair access to court for the protection of his rights and freedoms. This could be accomplished by setting up a procedure which complied with the requirements of fairness set out in Article 21 § 3 of the Constitution, failing which a person’s right to bring proceedings before a court, and any review of the decision of a prosecutor’s office to close or discontinue criminal proceedings, became devoid of substance. A pre-trial judge’s review of those decisions had to be effective, since the decision of the prosecutor’s office ended the criminal-law dispute and therefore fell within the category of acts by which justice was served.\n\n28.  The Constitutional Court took the view that elements of the right to fair proceedings had to be examined by taking into account proceedings as a whole and the specific principles defining the organisation of each procedure within the proceedings. However, even in the case of ongoing proceedings, a specific examination of certain important aspects of the proceedings could not be excluded.\n\n29.  The level of protection conferred by proceedings before a pre-trial judge – where the judge was called upon to examine a case in the absence of the complainant, the prosecutor and the respondent, and without the proceedings being oral and adversarial – was lower than the level conferred by the type of proceedings which had been in force before February 2014. This fact could not be considered a breach of the principles set out in the Constitution or in international human rights treaties ab initio, as long as no adverse effects could be identified. Therefore, in order to determine whether Article 341 § 5 of the CPP had breached the right to a fair trial, it had to be examined both in isolation and within the overall framework of the procedure concerning the examination of appeals against prosecutor’s offices’ decisions not to prosecute.\n\n30.  The preliminary stages of proceedings constituted only a part of the overall proceedings. However, a breach of certain conditions set out in Article 21 § 3 of the Constitution, such as the right to defend oneself, during the early stages of proceedings could affect the fairness of the proceedings. Also, the manner in which the guarantees of the right to fair proceedings were enforced during the preliminary stages of criminal proceedings was intrinsically linked to the circumstances of the case, the characteristics of the specific procedure, and the possibility that the outcome of proceedings concerning the admissibility of a complaint was decisive for determining whether the criminal charge was well founded.\n\n31.  The procedure under examination did not concern ab initio a criminal charge or criminal proceedings touching on the merits of the case. However, a pre-trial judge’s judgment had the character of a possible act of indictment and therefore a criminal charge, since in accordance with Article 341 § (2) (c) of the CCP, a pre-trial judge could quash a prosecutor’s decision and order that a case be sent for trial. Therefore, the right to a fair trial had to be respected, since there was a possibility that the outcome of proceedings concerning the admissibility of a complaint against a prosecutor’s decision was decisive for the determination of a criminal charge.\n\n32.  In accordance with the principle of adversarial proceedings, parties were placed on an equal footing as regards presenting and pleading a case, rebutting the submissions made, and expressing opinions on the court’s initiatives aimed at establishing the truth in the case. The complainant and the defence challenged each other, so that the court could assess the evidence correctly. Therefore, adversarial proceedings implied equality of arms as regards both the civil and criminal limb of proceedings.\n\n33.  A purely written procedure was not sufficient; it also had to be adversarial and oral, in order for a victim or civil party to be able to fully exercise his or her rights. In accordance with Article 341 § 2 of the CCP, the prosecutor and the parties could submit written observations on the admissibility and merits of a complaint, but none of the parties had the opportunity to read the other parties’ submissions and submit rebuttals. A court was under a duty to effectively examine reasons invoked by the complainant, the parties and the prosecutor, including arguments that were decisive for solving the case. However, as a court could examine only the complaint and the written observations of the parties and the prosecutor, it was not in a position to examine a decisive argument, simply because such an argument could not be raised.\n\n34.  The Constitutional Court further held that the fairness of proceedings also implied that participants had a right to be informed of any document or observation submitted to a court, and a right to rebut such submissions. This was essential for their trust in the justice system. The fact that a complainant was informed of the date when a complaint was going to be examined could not be a substitute for the absence of a fair procedure involving a summons, especially since the fairness of proceedings concerned both the proceedings overall and the interests of the public and the victim.\n\n35.  In accordance with Article 341 § 2 of the CCP, only the prosecutor and the parties to the proceedings were given a copy of the complaint. Also, in accordance with the procedural rules, only a defendant and a civil party were parties to criminal proceedings. Hence, an injured party and a suspect, as principal participants in the proceedings, were not given a copy of the complainant’s complaint and could not defend themselves or protect their legitimate interests. These procedural shortcomings could be overcome as long as the proceedings before a pre-trial judge were adversarial and oral.\n\n35.  In accordance with Article 341 § 2 of the CCP, only the prosecutor and the parties to the proceedings were given a copy of the complaint. Also, in accordance with the procedural rules, only a defendant and a civil party were parties to criminal proceedings. Hence, an injured party and a suspect, as principal participants in the proceedings, were not given a copy of the complainant’s complaint and could not defend themselves or protect their legitimate interests. These procedural shortcomings could be overcome as long as the proceedings before a pre-trial judge were adversarial and oral.\n\n36.  The Constitutional Court considered that a fundamental aspect of the right to a fair trial in criminal proceedings was that each party had to have a reasonable opportunity to present his or her case in circumstances which did not place him or her at a disadvantage vis-à-vis his or her opponent. However, unlike a defendant, in the absence of adversarial argument, a complainant, a civil party, a suspect or an injured party was prevented from lodging applications and raising objections concerning the lawfulness of either the manner in which evidence had been gathered or acts carried out by the authorities in the criminal investigation, and also prevented from contesting applications which had been made and objections which had been raised. This was important, because the evidence gathered during a criminal investigation which was not contested by the parties could no longer be reviewed during the trial. If summoned, interested persons would have the opportunity to be present during the arguments, and the right to express their opinions and answer possible questions addressed by the other participants and the pre-trial judge.\n\n37.  Since a pre-trial judge could order that a case be sent for trial, a defendant clearly had an interest in being summoned and presenting, in an adversarial manner, arguments about the complaint which had been lodged before the court. Thus, for reasons concerning the fairness of proceedings, whenever a court such as a court sitting as a pre-trial judge examined a complaint by analysing all the available evidence that justified the closing of an investigation, it could not reach a verdict without directly hearing from the person who claimed not to have committed the act which was considered to be an offence.\n\n38.  Lastly, the Constitutional Court held that in cases where formal charges had been brought, the scope of proceedings concerning complaints against the decisions of a prosecutor’s office not to prosecute or not to indict concerned both the admissibility of the complaint and whether it was well founded, as well as the lawfulness of both the manner in which evidence had been gathered and the criminal investigation activities. Evidence excluded from the case file at the stage when proceedings were before a pretrial judge could no longer be taken into account at the trial stage of the proceedings, in instances where the case had been sent for trial by the pretrial judge. As long as the essence of any criminal trial was evidence, and as long as the investigating authorities gathered evidence both for and against the defendant or the suspect, it was clear that proceedings before a pre-trial judge had a direct impact on the fairness of the proceedings at a later stage. This meant that both the prosecutor and the defendant had to be present when the pre-trial judge examined the case.\n\nDecision no. 641 of 11 November 2014\n\nDecision no. 641 of 11 November 2014\n\n39.  By decision no. 641 of 11 November 2014, published in Official Gazette no. 887 of 5 December 2014, the Constitutional Court examined unconstitutionality objections raised by private parties concerning Article 344 § 4, Article 345 §§ 1, 2 and 3, Article 346 § 1 and Article 347 §§ 1, 2, and 3. It held that Article 344 § 4, Article 345 § 1, Article 346 § 1 and Article 347 § 3 of the CPP were unconstitutional, whereas the remaining paragraphs of the above-mentioned Articles which had been challenged were constitutional.\n\n39.  By decision no. 641 of 11 November 2014, published in Official Gazette no. 887 of 5 December 2014, the Constitutional Court examined unconstitutionality objections raised by private parties concerning Article 344 § 4, Article 345 §§ 1, 2 and 3, Article 346 § 1 and Article 347 §§ 1, 2, and 3. It held that Article 344 § 4, Article 345 § 1, Article 346 § 1 and Article 347 § 3 of the CPP were unconstitutional, whereas the remaining paragraphs of the above-mentioned Articles which had been challenged were constitutional.\n\n40.  The Constitutional Court held, amongst other things, that proceedings before a pre-trial judge were the equivalent of a new stage of criminal proceedings, and were not part of the criminal investigation stage or the trial stage. The pre-trial judge was called upon to examine the lawfulness of the act of indictment or the decision not to indict. The judge’s activities did not concern the merits of the case, and his or her procedural acts did not touch on or determine the essential elements of the dispute, namely the act, the person who had committed it, and that person’s guilt.\n\n40.  The Constitutional Court held, amongst other things, that proceedings before a pre-trial judge were the equivalent of a new stage of criminal proceedings, and were not part of the criminal investigation stage or the trial stage. The pre-trial judge was called upon to examine the lawfulness of the act of indictment or the decision not to indict. The judge’s activities did not concern the merits of the case, and his or her procedural acts did not touch on or determine the essential elements of the dispute, namely the act, the person who had committed it, and that person’s guilt.\n\n41. The Constitutional Court also held that in accordance with Article 344 § 4 of the CCP, the prosecutor had access to applications made and objections raised by the defendant, and access to objections raised by the pre-trial judge of his or her own motion. However, the defendant was not given notice of objections raised by the pre-trial judge or written responses of the prosecutor’s office. Likewise, objections raised by the defendant or the pre-trial judge, and the prosecutor’s office’s written responses, were not communicated to a civil party, and he or she was unable to challenge them. Consequently, a civil party was excluded from the proceedings before a pre-trial judge ab initio. Thus, the legislature had placed the parties in a disadvantaged position vis-à-vis the prosecutor, because it had seriously hampered their right to be informed of objections raised in the case and to present arguments in that regard.\n\n42.  As a matter of fair trial, the relevant procedural rule had to provide that all parties to a trial, including a civil party, had to be notified of all documents which were capable of influencing the pre-trial judge’s decisions, and the rule had to grant all parties the opportunity to effectively present arguments about the observations submitted to the court.\n\n42.  As a matter of fair trial, the relevant procedural rule had to provide that all parties to a trial, including a civil party, had to be notified of all documents which were capable of influencing the pre-trial judge’s decisions, and the rule had to grant all parties the opportunity to effectively present arguments about the observations submitted to the court.\n\n42.  As a matter of fair trial, the relevant procedural rule had to provide that all parties to a trial, including a civil party, had to be notified of all documents which were capable of influencing the pre-trial judge’s decisions, and the rule had to grant all parties the opportunity to effectively present arguments about the observations submitted to the court.\n\n43.  As regards the right to oral proceedings, the Constitutional Court noted that the level of protection provided by the Convention and the European Court of Human Rights was minimal, and that the Constitution and the Constitutional Court could provide a heightened level of protection. In addition, it had already held that the guarantees set out in Article 6 § 1 of the Convention and Article 21 § 3 of the Constitution were applicable in criminal matters, not only to the procedure on the merits of a dispute, but also to the procedure before a pre-trial judge, and they therefore granted a heightened level of protection compared with that of the Convention.\n\n44.  The Constitutional Court held that the right to oral proceedings included a defendant’s and a civil party’s right to stand before a court. This ensured direct contact between the judge and the parties, enabling the latter to present their case in a certain order and therefore facilitate the correct establishment of the facts of the case.\n\n44.  The Constitutional Court held that the right to oral proceedings included a defendant’s and a civil party’s right to stand before a court. This ensured direct contact between the judge and the parties, enabling the latter to present their case in a certain order and therefore facilitate the correct establishment of the facts of the case.\n\n44.  The Constitutional Court held that the right to oral proceedings included a defendant’s and a civil party’s right to stand before a court. This ensured direct contact between the judge and the parties, enabling the latter to present their case in a certain order and therefore facilitate the correct establishment of the facts of the case.\n\n45.  Also, in the absence of proceedings that were oral and adversarial, a pre-trial judge could carry out only a formal assessment of whether evidence was lawful. The judge could not ask for evidence to be added to the case file which could help him or her determine the lawfulness of evidence gathered by the investigating authorities. However, in certain instances, the factual circumstances behind the collection of certain evidence were directly relevant when determining the lawfulness of that evidence. Therefore, if a pre-trial judge was unable to ask for new evidence to be added to the case file and for new documents to be submitted by the parties, in the absence of oral argument, that judge was in a position where he or she was not able to clarify the facts of the case, which could have an indirect effect on the legal examination of the case.\n\nComparative Law Material\n\nComparative Law Material\n\n46.  The Court conducted a comparative study of the legislation of twenty-five member States of the Council of Europe (Albania, Germany, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Estonia, Spain, France, the Republic of North Macedonia, Greece, Ireland, Italy, Lithuania, Norway, Poland, Portugal, the United Kingdom, Serbia, Slovenia, Sweden, Turkey and Ukraine). The study concluded that the institution of a pre-trial or investigating judge with various roles existed only in fifteen member states (Albania, Austria, Belgium, Bosnia and Herzegovina, Croatia, Spain, the Republic of North Macedonia, France, Greece, Italy, Lithuania, Portugal, Serbia, Slovenia and Ukraine). Depending on the jurisdiction, a judge had different roles. In some jurisdictions a judge played a decisive role in the indictment process (Belgium and France), and in others he or she merely reviewed an act of indictment (Albania) or decided on all the measures concerning a suspect’s rights and freedoms (Austria, Serbia and Croatia).\n\n47.  In all twenty-five member States review of an indictment was amenable to a mandatory or optional appeal. In eleven of the member States the power to examine such an appeal was granted to a specific authority (a judge or chamber), whereas in fourteen member States it was granted to the trial judge who was competent to examine the case. The legislation of seventeen of the member States provided for the possibility to hold before the appeal instance a mandatory or optional hearing, either public or in chambers, whereas the legislation of five of the member States did not provide for such a possibility.\n\n48.  According to the information available, in fourteen of the member States the prosecutor and the accused had a right to attend or appear in person before the relevant court. In all fourteen of the member States the victim, his or her heirs, civil parties, and the person who initiated the criminal proceedings had a right to attend the hearing and take part in the proceedings. In eleven member States the accused was notified of objections raised by the prosecutor or, where applicable, by the judge of his or her own motion. It seemed to be implied that in all twenty-five member States all parties were notified of important decisions taken in a case.\n\n49.  In eighteen of the twenty-five member States decisions not to prosecute or to close proceedings were amenable to an appeal before a court, whereas in seven of the member States they were not (Spain, the Republic of North Macedonia, Norway, Serbia, the United Kingdom, Slovenia and Sweden), but there were other ways in which a victim could complain or ask for an investigation to be continued.\n\n49.  In eighteen of the twenty-five member States decisions not to prosecute or to close proceedings were amenable to an appeal before a court, whereas in seven of the member States they were not (Spain, the Republic of North Macedonia, Norway, Serbia, the United Kingdom, Slovenia and Sweden), but there were other ways in which a victim could complain or ask for an investigation to be continued.\n\n50.  In the majority of the twenty-five member States the judge who was called upon to examine the merits of a case at the trial stage of the proceedings was free to deal with the evidence once again and decide on its lawfulness.\n\nTHE LAW\n\nPRELIMINARY REMARKS\n\n51.  The Government argued that the application was inadmissible. They considered that where the conditions set out in Article 44C § 1 of the Rules of Court were met, the Court could declare the application inadmissible as manifestly ill-founded. According to the Court’s case-law, such a possibility existed in circumstances where an applicant had merely cited one or several Articles of the Convention without explaining how they had been breached, and without this being evident from the facts of the case.\n\n52.  The applicant had not specified how his presence before the pre-trial judge would have changed the judgment delivered by that judge. Also, he had not asked for the kind of evidence to be added to the case file that would have required the parties to be present before the judge.\n\n53.  The applicant did not submit observations on this point.\n\n54.  The Court notes that in the instant case, in his application to the Court and in his subsequent written submissions, the applicant explained why he was of the view that his rights and interests had been affected, and what those effects were. In addition, he submitted evidence aimed at supporting his allegations.\n\n55.  The Court further notes that the Government have not argued or presented any evidence indicating that the applicant took special precautions to prevent information about matters concerning the very core of the issues underlying his complaints under the Convention from being disclosed to the Court, in order to stop the Court from discontinuing the proceedings in his case (contrast Gross v. Switzerland [GC], no. 67810/10, §§ 34-35, ECHR 2014).\n\n56.  As to the Government’s argument that the breaches alleged by the applicant were not evident from the facts of the case, the Court notes that it is closely linked to the substance of the applicant’s allegations, and that it does not disclose a failure by the applicant to participate effectively in the proceedings before the Court.\n\n57.  It follows that the Government’s objection concerning the inadmissibility of the application must be dismissed.\n\nALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION\n\nALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION\n\nALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION\n\n58.  The applicant complained that the proceedings before the pre-trial judge which had confirmed the public prosecutor’s decision not to prosecute the alleged perpetrator had been unfair, because they had taken place in chambers, without the parties being present or aware of each other’s submissions, and without him being able to rebut the arguments submitted by the alleged perpetrator; those proceedings had therefore breached his rights guaranteed by Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:\n\n“1.  In the determination of his civil rights and obligations ... , everyone is entitled to a fair and public hearing ... by [a] ... tribunal ... Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.\n\n...”\n\n...”\n\nAdmissibility\n\n59.  The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.\n\nMerits\n\nSubmissions by the parties\n\nThe applicant\n\nThe applicant\n\n60.  The applicant argued that the Government’s submissions – that the proceedings brought by him had been fair, that he could have asked to be present at the proceedings before the pre-trial judge, and that the proceedings had been adversarial and public because he had had the opportunity to submit written observations – had been contradicted by the Constitutional Court’s decisions (see paragraphs 24-45 above) and the relevant procedural rules.\n\n61.  The amendments made to the relevant procedural rules after the Constitutional Court’s decisions had not remedied the breach of his right to fair proceedings.\n\nThe Government\n\n62.  The Government argued that the criminal proceedings brought by the applicant against his former mother-in-law had been fair.\n\n63.  The Government explained that on 1 February 2014 a new CCP had entered into force in Romania and had changed the manner in which a criminal trial was conducted by introducing a new procedural step, namely a procedure before a pre-trial judge. That procedure was an innovation aimed at shortening the length of the trial stage of proceedings. Its purpose was to examine issues concerning the lawfulness of both an indictment and the evidence adduced, therefore ensuring that the merits of a case would be examined expeditiously. The rules concerning proceedings before a pre-trial judge eliminated the possibility of a case file being sent back to a prosecutor’s office by a trial court on grounds relating to the lawfulness of the evidence and the indictment.\n\n64.  A pre-trial judge had clear objectives, namely to examine the lawfulness of the evidence adduced, the indictment and the acts carried out by the investigating authorities, and to prepare the case for examination at the trial stage of the proceedings. In accordance with domestic doctrine, the CCP also granted a pre-trial judge other powers, including the power to review a prosecutor’s office’s decisions not to prosecute, on the basis of specific procedural rules adopted by the legislature.\n\n65.  As established by the Constitutional Court in decision no. 641 of 11 November 2014 (see paragraphs 39-45 above), the institution of a pretrial judge was not part of the investigation stage or trial stage of proceedings, given the procedural tasks given to such a judge. The activity of a pre-trial judge did not concern the merits of a case, and his or her procedural acts did not touch on and did not determine the essential elements of a dispute, in particular, the act in question, the person who had committed it, and his or her guilt.\n\n66.  Proceedings before a pre-trial judge could end, amongst other things, in the case being referred back to the prosecutor’s office or being sent for trial. In the latter scenario, the trial court could no longer refer the case back to the prosecutor’s office.\n\n66.  Proceedings before a pre-trial judge could end, amongst other things, in the case being referred back to the prosecutor’s office or being sent for trial. In the latter scenario, the trial court could no longer refer the case back to the prosecutor’s office.\n\n67.  The Government also explained that after the Constitutional Court had declared Article 341§ 5 of the CCP unconstitutional, the authorities had changed the text of the Article by Government Emergency Ordinance no. 18/2016, which had entered into force on 23 May 2016.\n\n68.  The Government contended that the Constitutional Court had declared the above-mentioned CCP Article unconstitutional by taking into account the conditions imposed by the right to a fair hearing in circumstances involving the determination of a criminal charge. Also, the Constitutional Court had taken the view that the principles of adversarial and oral proceedings had been breached by the impugned CCP provision, mainly because: (i) the principal participants in criminal proceedings, namely the victim and the suspect – who, under domestic law, did not have the status of parties to the proceedings – could not lodge applications and raise objections concerning the lawfulness of evidence added to the case file, and could not contest any such applications or objections; (ii) at the trial stage of the proceedings there was no new administration of the evidence in the case file which had not been contested before the pre-trial judge; and (iii) the pre-trial judge, when examining a case and the evidence added to the case file, could not hear directly from the person who denied having committed an unlawful act or offence as required by the principle of immediacy.\n\n69.  The Government submitted that the applicant, however, had not found himself in any of the above-mentioned situations. He had joined the criminal proceedings as a civil party (see paragraph 6 above) and had contested all the available evidence before the pre-trial judge. Also, in his appeal against the prosecutor’s office’s decision to close the criminal proceedings in the case (see paragraph 10 above), the applicant had not asked the pre-trial judge to add new evidence to the case file or referred to evidence that would have to have been adduced directly before the judge. Therefore, it could be inferred that the applicant had considered that the facts of the case had been established correctly and that the evidence in the case file had been sufficient.\n\n70.  The Government argued that the exceptional circumstances which might justify dispensing with an oral hearing essentially came down to the nature of the issues to be dealt with by the competent court – in particular, whether these raised any question of fact or law which could not be adequately resolved on the basis of the case file. An oral hearing might not be required where there were no issues of credibility or contested facts which necessitated the oral presentation of evidence or the crossexamination of witnesses, and where the accused was given an adequate opportunity to put forward his case in writing and challenge the evidence against him. In this connection, it was legitimate for the national authorities to have regard to the demands of efficiency and economy.\n\n71.  The applicant’s case had not concerned a hearing or witness confrontation. Also, he had been fully aware of when (the date and time) and where the pre-trial judge had examined his complaint against the prosecutor’s office’s decisions, he had been able to make written submissions before the judge, and he had never asked to be allowed to appear in court.\n\nThe Court’s assessment\n\nScope of the Court’s assessment\n\n72.  The Court notes at the outset that the instant case is about the applicant’s civil claims, and that in his application to the Court he complained of the unfairness of the criminal proceedings comprising these civil claims; in particular, he complained that the proceedings before the pre-trial judge – which had played an important part in the overall context of the proceedings – had taken place in chambers, without the parties being present or aware of each other’s submissions, and without him being able to rebut the arguments submitted by the alleged perpetrator (see paragraph 58 above).\n\n73.  The Court further notes that the applicant’s complaint included express claims that the above-mentioned proceedings had been unfair because the parties had been unaware of each other’s submissions during the proceedings, and because he had been unable to contest the arguments submitted by the alleged perpetrator during those proceedings.\n\nGeneral principles\n\n74.  The Court has accepted that the requirements inherent in the concept of a “fair hearing” are not necessarily the same in cases concerning the determination of civil rights and obligations as in cases concerning the determination of a criminal charge, and it has previously stated that “the Contracting States have greater latitude when dealing with civil cases concerning civil rights and obligations than they have when dealing with criminal cases” (see Dombo Beheer B.V. v. the Netherlands, 27 October 1993, § 32, Series A no. 274, and Levages Prestations Services v. France, 23 October 1996, § 46, Reports of Judgments and Decisions 1996V). There are significant differences between civil and criminal proceedings (see Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, § 66, 11 July 2017). The requirements of Article 6 § 1 as regards cases concerning civil rights are less onerous than they are for criminal charges (see König v. Germany, 28 June 1978, § 96, Series A no. 27). In particular, the rights of persons accused of or charged with a criminal offence require greater protection than the rights of parties to civil proceedings. The principles and standards applicable to criminal proceedings must therefore be laid down with particular clarity and precision. Whereas in civil proceedings the rights of one party may conflict with the rights of the other party, no such considerations stand in the way of measures taken in favour of persons who have been accused, charged or convicted, notwithstanding the rights which the victims of offences might seek to uphold before the domestic courts (see Moreira Ferreira, cited above, § 67).\n\n75.  The Court reiterates that when it examines proceedings falling under the civil head of Article 6, it may find it necessary to draw inspiration from its approach to criminal-law matters (see Dilipak and Karakaya v. Turkey, nos. 7942/05 and 24838/05, § 80, 4 March 2014, and Carmel Saliba v. Malta, no. 24221/13, § 67, 29 November 2016).\n\n76.  The Court further reiterates the principles set out in its case-law concerning the right to adversarial proceedings and equality of arms (see Kress v. France [GC], no. 39594/98, § 74, ECHR 2001VI). The adversarial principle and the principle of equality of arms, which are closely linked, are fundamental components of the concept of a “fair hearing” within the meaning of Article 6 § 1 of the Convention. They require a “fair balance” between the parties: each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent or opponents. In addition, the concept of a fair hearing implies the right to adversarial proceedings, according to which the parties must have the opportunity not only to be made aware of any evidence needed for their claims to succeed, but also to have knowledge of, and comment on, all evidence adduced or observations filed, with a view to influencing the court’s decision. However, the rights deriving from these principles are not absolute and their scope may vary depending on the specific features of the case in question (see Hudáková and Others v. Slovakia, no. 23083/05, § 26, 27 April 2010, and the case-law cited therein). In the last instance it is for the Court to determine whether the requirements of the Convention have been complied with (see Regner v. the Czech Republic [GC], no. 35289/11, §§ 146-147, 19 September 2017, with further references).\n\n77.  Lastly, the Court refers to the principles set out in its case-law concerning the requirement that an oral and public hearing be held in circumstances concerning the determination of civil rights and obligations (see Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, §§ 187-192, 6 November 2018).\n\nApplication of these principles to the instant case\n\nApplication of these principles to the instant case\n\n78.  The Court notes at the outset that the High Contracting Parties have adopted, as part of their legal framework, varied approaches to questions concerning the procedures, competences and role of investigating or pretrial judges (see paragraphs 46-50 above). The Court acknowledges that these issues may involve important and sensitive questions about fairness and how to strike an appropriate balance between the parties to proceedings, and that the solutions adopted are linked with complex procedural matters specific to each constitutional order. This being so, it is not for the Court to seek to impose any particular model on the Contracting Parties. Its task is to conduct a review of the specific circumstances of the case, on the basis of the complaints brought before it (see, mutatis mutandis, Haarde v. Iceland, no. 66847/12, § 84, 23 November 2017).\n\n78.  The Court notes at the outset that the High Contracting Parties have adopted, as part of their legal framework, varied approaches to questions concerning the procedures, competences and role of investigating or pretrial judges (see paragraphs 46-50 above). The Court acknowledges that these issues may involve important and sensitive questions about fairness and how to strike an appropriate balance between the parties to proceedings, and that the solutions adopted are linked with complex procedural matters specific to each constitutional order. This being so, it is not for the Court to seek to impose any particular model on the Contracting Parties. Its task is to conduct a review of the specific circumstances of the case, on the basis of the complaints brought before it (see, mutatis mutandis, Haarde v. Iceland, no. 66847/12, § 84, 23 November 2017).\n\n78.  The Court notes at the outset that the High Contracting Parties have adopted, as part of their legal framework, varied approaches to questions concerning the procedures, competences and role of investigating or pretrial judges (see paragraphs 46-50 above). The Court acknowledges that these issues may involve important and sensitive questions about fairness and how to strike an appropriate balance between the parties to proceedings, and that the solutions adopted are linked with complex procedural matters specific to each constitutional order. This being so, it is not for the Court to seek to impose any particular model on the Contracting Parties. Its task is to conduct a review of the specific circumstances of the case, on the basis of the complaints brought before it (see, mutatis mutandis, Haarde v. Iceland, no. 66847/12, § 84, 23 November 2017).\n\n79.  In the instant case the Court notes that proceedings before a pre-trial judge concerned the preliminary stage of criminal proceedings, taken alone or jointly with claims by a civil party. As established by the Constitutional Court, the main purpose of those proceedings was to decide whether to commence a criminal trial in a case (see paragraph 40 above) or whether to end a criminal-law dispute (see paragraph 27 above). Amongst other things, the pre-trial judge was called upon to examine the lawfulness of an act of indictment or a decision not to indict, or decisions by the prosecutor’s office to discontinue or close the criminal proceedings in a case. The judge’s activities did not concern the merits of the case, and his or her decisions were neither aimed at determining the essential elements of the alleged criminal offence, namely the act in question, the person who had committed it, and that person’s guilt, nor any civil claim lodged by a civil party within criminal proceedings (see paragraph 40 above). These aforementioned points could have been determined by the criminal court only at the trial stage of the proceedings.\n\n79.  In the instant case the Court notes that proceedings before a pre-trial judge concerned the preliminary stage of criminal proceedings, taken alone or jointly with claims by a civil party. As established by the Constitutional Court, the main purpose of those proceedings was to decide whether to commence a criminal trial in a case (see paragraph 40 above) or whether to end a criminal-law dispute (see paragraph 27 above). Amongst other things, the pre-trial judge was called upon to examine the lawfulness of an act of indictment or a decision not to indict, or decisions by the prosecutor’s office to discontinue or close the criminal proceedings in a case. The judge’s activities did not concern the merits of the case, and his or her decisions were neither aimed at determining the essential elements of the alleged criminal offence, namely the act in question, the person who had committed it, and that person’s guilt, nor any civil claim lodged by a civil party within criminal proceedings (see paragraph 40 above). These aforementioned points could have been determined by the criminal court only at the trial stage of the proceedings.\n\n80.  Nevertheless, whereas the primary purpose of Article 6 § 1 as far as civil proceedings are concerned is to ensure a fair trial by a “tribunal” competent to determine “civil rights and obligations”, Article 6 § 1 under its civil head is applicable from the moment that the victim, or his or her next of kin, joins the criminal proceedings as a civil party, even during the preliminary criminal investigation stage taken on its own (see Nicolae Virgiliu Tănase v. Romania [GC], no. 41720/13, § 207, 25 June 2019). This preliminary investigation stage or pre-trial stage of criminal proceedings may be of importance for civil proceedings, both because of the decisive impact the outcome of criminal proceedings might have, in certain circumstances, on civil proceedings (see, amongst other authorities, Perez v. France [GC], no. 47287/99, § 66, ECHR 2004I) and because of the fact that the evidence collected by the authorities could be used by the applicant in the civil proceedings and could prove to be essential for the determination of his claim (see, mutatis mutandis, Nicolae Virgiliu Tănase, cited above, § 176). The manner in which Article 6 § 1 is to be applied during the investigation stage or pre-trial stage of proceedings, however, depends on the special features of the proceedings involved and the circumstances of the case (see mutatis mutandis Haarde, cited above, § 78, and Hudáková and Others, cited above, § 26, with further references).\n\n81.  Given that under the national legal framework it appears that the applicant could have had the merits of his civil rights and obligations determined either within the context of a criminal trial or within the context of separate civil proceedings (see paragraphs 6, 19, and 23 above), the Court will have regard to all the proceedings open to the applicant, including the handling of the case by the pre-trial judge, when determining whether the rights of the applicant were prejudiced. As part of that determination, it will assess whether the measures taken during the proceedings before the pretrial judge weakened the applicant’s position concerning his civil claim to such an extent that all subsequent stages of these proceedings or separate civil proceedings would have been rendered unfair from the outset (see, mutatis mutandis, Haarde, cited above, § 79).\n\n82.  In this connection, the Court reiterates that – in line with the relevant legal framework in place at the time when the applicant’s case was examined – the proceedings before the pre-trial judge were conducted in chambers and in the absence of the parties. Also, the parties could make only written submissions before the pre-trial judge concerning the admissibility and merits of the complaint against the prosecutor’s office’s decision not to prosecute, could not rely on any legal provision expressly giving them the opportunity to ask for a public and oral hearing to be held by the pre-trial judge, and could not ask the pre-trial judge to administer again the available evidence or add new evidence to the case file. In addition, the other participants were not notified of all the submissions made by one of the participants to the proceedings, and the pre-trial judge’s decisions were not amenable to appeal (see paragraphs 22 and 41 above).\n\n83.  The Court further notes that the above-mentioned legal framework was eventually declared partly unconstitutional by the Constitutional Court and was subsequently changed. However, the Constitutional Court’s decision and the subsequent legislative changes had no impact on the proceedings in the applicant’s case, because they came after those proceedings had ended and did not have a retroactive effect (see paragraphs 21 and 67 above).\n\n84.  As already indicated above, the purpose of proceedings before a pretrial judge was to review the decisions of the prosecutor’s office and decide on procedural questions concerning the criminal limb of proceedings (see paragraph 79 above). These proceedings were not concerned as such under any circumstances with determining the merits of an applicant’s civil claim. Admittedly, depending on the circumstances, such decisions could have a more or less extensive effect on the examination of the civil limb of proceedings, regardless whether the civil proceedings were joined to or separate from criminal proceedings. However, the decision of a pre-trial judge seemed to affect rather the manner in which a criminal trial court that was called upon to determine the merits of both criminal and civil limbs of proceedings following an indictment could examine a case and review evidence which had been deemed lawful or unlawful by the pre-trial judge (see paragraph 36 above). It does not seem that such a decision similarly affected the manner in which a civil court could examine a case and the necessary evidence, in circumstances where it was called upon to determine civil proceedings separately, especially in cases where the criminal proceedings had been discontinued at the pre-trial judge stage of the proceedings.\n\n85.  In this connection, the Court observes that the applicant brought separate civil proceedings against his former mother-in-law (see paragraph 19 above). However, there is no evidence in the case file as to the outcome of those proceedings (see paragraph 20 above), and the Court cannot speculate as to what the outcome might have been. It notes, however, that in accordance with the relevant procedural rules, a final judgment of a criminal court was res judicata for civil courts, which were called upon to examine a civil action, only with regard to the existence or lack of an act and the existence of evidence that a person had committed it (see Article 28 of the CPP, quoted in paragraph 22 above). These conditions did not seem to be met with respect to the pre-trial judge’s decision. Even assuming that his decision could be viewed as the final judgment of a criminal court within the context of the domestic legal framework, the Court notes that at no stage of the proceedings brought by the applicant was the investigation in the case discontinued or closed on the substantive grounds that the applicant’s former mother-in-law’s act had not taken place or that she was not the person who had committed that act.\n\n86.  In examining the lawfulness of the prosecutor’s office’s decision, the pre-trial judge relied on the available evidence and drew conclusions about the responsibility of the alleged perpetrator. However, his assessment and conclusions concerned only whether the prosecutor’s office’s decision to exclude the applicant’s former mother-in-law’s actions from the criminal sphere and close the investigation had been lawful, given the particular circumstances of the case and the applicant’s submissions. The pre-trial judge in a reasoned decision confirmed the prosecutor’s office’s view that the investigation had not been sufficient to establish with any certainty whether the applicant’s former mother-in-law had been guilty (see paragraphs 13-18 above) and upheld the finding that the statutory limitation in respect of her criminal liability had expired (see paragraphs 9 and 13 above).\n\n87.  The Court notes further that the applicant has not argued in his submissions to the Court that the pre-trial judge’s decision in his case acquired the force of res judicata for the purpose of the assessment of a civil claim by a civil court in separate proceedings and that it rendered obviously futile any attempts to have the merits of his civil claim determined by that court. In addition, the applicant has not presented any other argument suggesting that a separate civil action against his former mother-in-law would have been unfair ab initio, or would not have been compliant with all the guarantees set out in Article 6 § 1 of the Convention. Therefore, the Court sees no reason to believe otherwise.\n\n88.  That said, the Court reiterates that its power to review compliance with domestic law is limited. It is in the first place for the national authorities, notably the courts, to interpret and apply domestic law, even in those fields where the Convention “incorporates” the rules of that law, since the national authorities are, in the nature of things, particularly qualified to settle the issues arising in this connection (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 149, 20 March 2018). That is why in any legal system in which fundamental rights are protected by the Constitution and the law, it is incumbent on the aggrieved individual to test the extent of that protection and allow the domestic courts to apply those rights and, where appropriate, develop them in exercising their power of interpretation (see Gherghina v. Romania [GC] (dec.), no. 42219/07, § 101, 9 July 2015).\n\n88.  That said, the Court reiterates that its power to review compliance with domestic law is limited. It is in the first place for the national authorities, notably the courts, to interpret and apply domestic law, even in those fields where the Convention “incorporates” the rules of that law, since the national authorities are, in the nature of things, particularly qualified to settle the issues arising in this connection (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 149, 20 March 2018). That is why in any legal system in which fundamental rights are protected by the Constitution and the law, it is incumbent on the aggrieved individual to test the extent of that protection and allow the domestic courts to apply those rights and, where appropriate, develop them in exercising their power of interpretation (see Gherghina v. Romania [GC] (dec.), no. 42219/07, § 101, 9 July 2015).\n\n89.  Having regard to the above, the measures and decisions taken during the proceedings before the pre-trial judge in the circumstances of the applicant’s case did not weaken his position to such an extent that subsequent proceedings aimed at determining the merits of his civil claims would have been rendered unfair from the outset.\n\n90.  The Court’s findings are without prejudice to the domestic authorities’ actions to set up a domestic legal framework in order to ensure a heightened level of protection compared with the Convention, as regards proceedings before a pre-trial judge (see the remarks made in this respect by the Constitutional Court, resumed in paragraph 43 above – see also, mutatis mutandis, Nicolae Virgiliu Tănase, cited above, § 172).\n\n91.  Therefore, there has been no violation of Article 6 § 1 of the Convention.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\nDeclares the application admissible;\n\nHolds that there has been no violation of Article 6 § 1 of the Convention.\n\nDone in English, and notified in writing on 12 January 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_353","text":"PROCEDURE\n\n1.  The case originated in an application (no. 55913/00) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Hıdır Durmaz (“the applicant”), on 18 October 1999.\n\n2.  The applicant was represented by Mr E. L. Yavuzer, a lawyer practising in . The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.\n\n3.  On 22 March 2005 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n4.  The applicant was born in 1954 and was serving his prison sentence in Ceyhan prison at the time of his application to the Court.\n\n5.  On 11 August 1995 the applicant was arrested and taken into custody in  on suspicion of membership of an illegal organisation, namely the TKP/ML-TIKKO. On the same day the applicant was examined by a doctor at the  who did not find any signs of illtreatment on the applicant’s body.\n\n6.  On 23 August 1995 the applicant was examined by a doctor at the  who did not find any signs of illtreatment on the applicant’s body.\n\n7.  On 24 August 1995 the applicant was brought before a judge at the  who ordered his detention on remand.\n\n8.  The public prosecutor at the  in his indictment, dated 20 September 1995, accused the applicant of membership of an illegal organisation. The charges were brought under Article 168 § 1 of the Criminal Code and Article 5 of Law no. 3713.\n\n9.  In the meantime, on 12 October 1995, the applicant filed a petition with the  public prosecutor (hereinafter: “the prosecutor”) and claimed that he had been subjected to ill-treatment while he was held in police custody. On an unspecified date, the prosecutor instigated an investigation into the applicant’s allegations.\n\n10.  On 16 October 1995 the criminal proceedings against the applicant and two other accused commenced before the  State Security Court.\n\n11.  On 13 November 1995 the prosecutor took the statement of the applicant. In his deposition, the applicant submitted, in particular, that he had been hung up, subjected to electric shocks and hosed with pressurised water. He further stated that, during interrogation, his hands and feet had been beaten with a hard object. Finally, he gave the names of four detainees who witnessed the incident.\n\n12.  On 15 November 1995, upon the request of the prosecutor, the applicant was examined by a doctor at the Konya Forensic Medicine Department who noted healed superficial grazes under the armpits and a healed wound of about 1 mm on one of the fingers of the applicant’s right hand. She further found a loss of pigment of 1x2 mm on the applicant’s penis.\n\n13.  The prosecutor took the statements of two police officers who had interrogated the applicant on 17 November 1995 and 3 December 1997. They both denied the allegations of the applicant. The prosecutor also took the witness statements of three detainees (Mr D.B., Mr Y.A. and Mr M.U.). They all affirmed, in particular, that they saw the applicant bleeding from under his armpits during his stay in custody.\n\n14.  In the meantime, at the hearing held on 28 November 1995 the firstinstance court heard witnesses on behalf of the applicant. Four witnesses (Mr D.B., Mr Y.A., Mr M.U. and Mr A.Ö) maintained that they had seen the applicant during his detention in the Security Directorate and that he had bruises on his face and armpits. In the course of the criminal proceedings, the  decided to join the proceedings against the applicant to several other cases brought against other persons who were also accused of membership of the same organisation.\n\n15.  On 12 June 1997, the  acquired jurisdiction over the case since the  had been abolished by Law no. 4210 on 19 May 1997.\n\n16.  On 4 December 1997 the prosecutor, taking into account the contents of the medical reports dated 11 and 23 August 1995 and the fact that it was not possible to determine whether the physical findings noted in the medical report of 15 November 1995 - three months after the applicant’s stay in custody - were the result of ill-treatment, decided that no prosecution should be brought against the two police officers who had interrogated the applicant. The prosecutor found in this connection that there was insufficient evidence in support of the allegations. This decision was not served on the applicant.\n\n17.  Between 12 June 1997 and 14 July 1998 the  held sixteen hearings at regular intervals.\n\n18.  On 14 July 1998 the  convicted the applicant as charged and sentenced him to fourteen years and seven months’ imprisonment.\n\n19.  On 20 April 1999 the Court of Cassation held a hearing and upheld the judgment of the first-instance court. The applicant’s representative failed to attend the hearing.\n\n20.  On 24 December 2004 the  suspended the execution of the applicant’s sentence and ordered his release from prison in light of the provisions of the new Criminal Code.\n\nII.  THE RELEVANT DOMESTIC LAW\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION\n\n27.  The Government asked the Court to dismiss this part of the application as being inadmissible for failure to comply with the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention. They argued that the applicant failed to object to the decision of nonprosecution of the public prosecutor and that he could have also sought reparation for the harm he allegedly suffered by instituting an action in the civil or administrative courts.\n\n28.  The applicant claimed that he was never served with the public prosecutor’s decision. He maintained that, in any event, lodging an objection against it would have been unsuccessful since perpetrators of torture were never prosecuted in .\n\n29.  The Court reiterates that an appeal against decisions of public prosecutors not to prosecute constitutes, in principle, an effective and accessible remedy within the meaning of Article 35 § 1 of the Convention (see, in particular, Saraç v. Turkey (dec.), no. 35841/97, 2 September 2004; and Nuray Şen v. Turkey (dec.), no. 41478/98, 30 April 2002).\n\n30.  In the present case, the applicant did not contest the prosecutor’s decision. Even though the decision not to prosecute was not formally served on the applicant, the Court considers that the applicant and/or his representative, had they behaved more diligently, could have apprised themselves of the decision much sooner. It notes in this connection that, under the relevant domestic law (see paragraph 24 above), the applicant had a period of five years in which to contest the prosecutor’s decision. In the particular circumstances of the case, the Court does not find any special circumstances which would dispense the applicant from the obligation to object to the public prosecutor’s decision of non-prosecution in order to exhaust domestic remedies.\n\nII.  ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION\n\n32.  The applicant complained that his detention on remand exceeded the “reasonable time” requirement as provided in Article 5 § 3 of the Convention, which reads insofar as relevant as follows:\n\n33.  The Government argued that the applicant was no longer a victim within the meaning of Article 34 of the Convention since the period he had spent in remand had been deducted from the sentence eventually imposed by the domestic court.\n\n34.  The Court reiterates that the taking into account of detention on remand as part of a later sentence cannot eliminate a violation of Article 5 § 3, but may have repercussions only under Article 41 on the basis that it limits the loss occasioned (see Engel and Others v. the Netherlands, judgment of 8 June 1976, Series A no. 22, § 69; and Kimran v. Turkey, no. 61440/00, § 41, 5 April 2005). Accordingly, the Government’s objection that the applicant could not be considered a “victim” should be rejected.\n\n35.  However, the Court observes that the applicant’s remand in custody ended when he was convicted by the State Security Court on 14 July 1998, whereas this complaint was lodged with the Court on 18 October 1999, i.e. more than six months later (see, in particular, Wemhoff v. Germany, judgment of 27 June 1968, Series A no. 7, p. 23, § 9; and Turan v. Turkey (dec.), no. 879/02, 27 January 2005). It follows that this part of the application must be rejected for non-compliance with the sixmonth rule in accordance with Article 35 §§ 1 and 4 of the Convention.\n\nIII.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION\n\n36.  The applicant complained that he had been denied a fair hearing by an independent and impartial tribunal on account of the presence of a military judge on the bench of the State Security Courts which tried and convicted him. He further complained that he had not been informed of the nature and cause of the accusations against him and that he did not have adequate time and facilities for the preparation of his defence. Finally, he claimed that the length of the criminal proceedings brought against him was excessive. The applicant relied on Article 6 §§ 1 and 3 (a) and (b) of the Convention, which, in so far as relevant, read as follows:\n\nA.  Admissibility\n\n37.  The Court, in the light of its established case-law (see, among many other authorities, Çıraklar v. Turkey, judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VII) and in view of the materials submitted to it, considers that these complaints raise complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits. The Court therefore concludes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.\n\nB.  Merits\n\n1.   and impartiality of the\n\n2.  Fairness of the proceedings\n\n40.  Having regard to its finding of a violation of the applicant’s right to a fair hearing by an independent and impartial tribunal, the Court considers that it is not necessary to examine the remaining complaints under Article 6 of the Convention relating to the fairness of the proceedings before the domestic courts (see, among other authorities, İncal v. Turkey, judgment of 9 June 1998, Reports 1998IV, § 74).\n\n3.  Length of the proceedings\n\n41.  The Court observes that the period to be taken into consideration began on 11 August 1995, when the applicant was arrested and taken into police custody and ended on 20 April 1999, when the Court of Cassation upheld the judgment of the . The period under consideration thus lasted three years and eight months before two instances.\n\n42.  After examining the overall duration of the proceedings, and taking into account that the case was of some complexity, the number of the accused and the fact that the case was dealt with at two levels of jurisdiction, the Court does not consider that the length of the proceedings in the present case was excessive even if it had been somewhat prolonged by the decisions of the first-instance court to join the applicant’s case to other related criminal proceedings. The Court further finds that no significant delay resulted from the transfer of the case to the .\n\n43.  Having regard to the particular circumstances of the case, the Court finds that the “reasonable time” requirement laid down in Article 6 § 1 of the Convention was complied with in the present case. Consequently, the Court concludes that there has been no violation of Article 6 § 1 as regards the length of the proceedings.\n\nIV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n44.  Article 41 of the Convention provides:\n\nA.  Damage\n\n45.  The applicant claimed 7,500 euros (EUR) in respect of nonpecuniary damage.\n\n46.  The Government contested the amount.\n\n47.  The Court considers that the finding of a violation of Article 6 constitutes in itself sufficient compensation for any non-pecuniary damage suffered by the applicant in this respect (see İncal, cited above, p. 1575, § 82; and Çıraklar, cited above, § 45).\n\nB.  Costs and expenses\n\n49.  The Government contested the amount.\n\n50.  According to the Court’s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings and considers it reasonable to award the sum of EUR 1,000 for the proceedings before the Court.\n\nC.  Default interest\n\n51.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Declares the complaints concerning the applicant’s right to a fair trial within a reasonable time and by an independent and impartial tribunal admissible and the remainder of the application inadmissible;\n\n2.  Holds that there has been a violation of Article 6 § 1 of the Convention as regards the complaint relating to the independence and impartiality of the ;\n\n3.  Holds that there has been no violation of Article 6 § 1 of the Convention as regards the length of the criminal proceedings;\n\n4.  Holds that it is not necessary to consider the applicant’s complaints under Article 6 of the Convention relating to fairness of the proceedings;\n\n5.  Holds that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage suffered by the applicant;\n\n6.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,000 (one thousand euros) in respect of costs and expenses, to be converted into New Turkish liras at the rate applicable at the day of settlement, plus any tax that may be chargeable;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n7.  Dismisses the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 5 December 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_715","text":"PROCEDURE\n\n1.  The case originated in an application (no. 48145/99) against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Italian national, Mr Giuseppe Fabi (“the applicant”), on 20 April 1999.\n\n2.  The applicant was represented by Mr A. Barbàra, a lawyer practising in Rome. The Italian Government (“the Government”) were represented by their Agent, Mr U. Leanza, and by their successive co-agents, respectively Mr V. Esposito and Mr F.  Crisafulli.\n\n3.  The applicant complained under Article 1 of Protocol No. 1 that he had been unable to recover possession of his flat within a reasonable time. Invoking Article 6 § 1 of the Convention, he further complained about the length of the eviction proceedings.\n\n4.  The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1 of the Rules of Court.\n\n5.  On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed First Section.\n\n6.  On 27 June 2002 the Court declared the application admissible.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n7.  The applicant lives in Rome.\n\n8.  The applicant is the owner of a flat in Rome, which he had let to A.M.S.\n\n9.  In a registered letter of 10 April 1987, the applicant informed the tenant that he intended to terminate the lease on expiry of the term on 31 December 1987 and asked her to vacate the premises by that date.\n\n10.  In a writ served on the tenant on 14 October 1987, the applicant reiterated his intention to terminate the lease and summoned the tenant to appear before the Rome Magistrate.\n\n11.  By a decision of 1 February 1988, which was made enforceable on 22 April 1988, the Rome Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 1 February 1989.\n\n12.  On 24 May 1989, the applicant served notice on the tenant requiring her to vacate the premises.\n\n13.  On 18 July 1989 he served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 25 July 1989.\n\n14.  Between 25 July 1989 and 10 December 1998 the bailiff made fourteen attempts to recover possession. Each attempt proved unsuccessful, as, under the statutory provisions providing for the suspension or staggering of evictions, the applicant was not entitled to police assistance in enforcing the order for possession.\n\n15.  Pursuant to Article 6 of Law no. 431/98, the eviction proceedings were suspended until 30 November 2000.\n\n16.  On 11 October 2000, the applicant served a second notice on the tenant requiring her to vacate the premises.\n\n17.  On 3 November 2000, he served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 28 November 2000.\n\n18.  On February 2001, the applicant recovered possession of the flat.\n\nII.  RELEVANT DOMESTIC LAW\n\n19.  The relevant domestic law is described in the Court’s judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V.\n\nTHE LAW\n\nI.\tALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 AND OF ARTICLE 6 § 1 OF THE CONVENTION\n\n20.  The applicant complained that he had been unable to recover possession of his flat within a reasonable time owing to the lack of police assistance. He alleged a violation of Article 1 of Protocol No. 1 to the Convention, which provides:\n\n“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.\n\nThe preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”\n\n21.  The applicant also alleged a breach of Article 6 § 1 of the Convention, the relevant part of which provides:\n\n“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”\n\n22.  The Court has on several previous occasions decided cases raising issues similar to those in the present case and found a violation of Article 1 of Protocol No. 1 and Article 6 § 1 of the Convention (see Immobiliare Saffi, cited above, §§ 46-66; Lunari v. Italy, no. 21463/93, 11 January 2001, §§ 34-46; Palumbo v. Italy, no. 15919/89, 30 November 2000, §§ 33-47).\n\n23.  The Court has examined the present case and finds that there are no facts or arguments relied on by the Government which would lead to any different conclusion in this case. The Court refers to its detailed reasons in the judgments cited above and notes that in this case the applicant has had to wait for eleven years and seven months before repossessing his flat.\n\nConsequently, there has been a violation of Article 1 of Protocol No. 1 and of Article 6 § 1 of the Convention in the present case.\n\nII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n24.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Non-pecuniary damage\n\n25.  The applicant claimed ITL 25,000,000 for non-pecuniary damage (EUR 12,911.42).\n\n26.  The Government submitted that a finding of a violation would in itself constitute sufficient just satisfaction. They further submitted that in any event the amount claimed was excessive. The Government stressed that the applicant had failed to adduce evidence of any non-pecuniary damage sustained as a result of the alleged violation.\n\n27.  The Court considers that the applicant must have sustained some non-pecuniary damage, which the mere finding of a violation cannot adequately compensate. Therefore, it decides, on an equitable basis, to award EUR 3,000 under this head.\n\nB.  Costs and expenses\n\n28.  The applicant sought reimbursement of his legal costs and expenses for the proceedings before the Court, which he put at ITL 8,422,650 (EUR 4,349.94).\n\n29.  According to the Court’s case-law, an award can be made in respect of costs and expenses only in so far as they have been actually and necessarily incurred by the applicant and are reasonable as to quantum (see Bottazzi v. Italy [GC], no. 34884/97, § 30, ECHR 1999-V). In the present case, on the basis of the information in its possession and the above-mentioned criteria, the Court considers that EUR 1,000 is a reasonable sum and awards the applicant that amount.\n\nC.  Default interest\n\n30.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;\n\n2.  Holds that there has been a violation of Article 6 § 1 of the Convention;\n\n3.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts:\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n4.  Dismisses the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 17 April 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_925","text":"PROCEDURE\n\n1.  The case originated in an application (no. 25221/09) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Mr Stefan Georgiev Zafirov (“the applicant”), on 4 March 2009.\n\n2.  The applicant was represented by Mr E. Bitsaxis, a lawyer practising in . The Greek Government (“the Government”) were represented by their Agent’s delegates, Ms K. Paraskevopoulou, Senior Adviser at the State Legal Council, and Mr I. Bakopoulos and Ms G. Kotta, Legal Assistants at the State Legal Council.\n\n3.  On 11 January 2011 the President of the First Section decided to give notice of the application to the Government. In accordance with Protocol No. 14, the application was allocated to a Committee of three Judges.\n\nTHE FACTS\n\nTHE CIRCUMSTANCES OF THE CASE\n\n4.  The applicant was born in 1977 and lives in Patras.\n\n5.  On 20 October 2006 the applicant was arrested and criminal proceedings were brought against him for drug related offences.\n\n6.  After four adjournments - three on the court’s initiative and one on the request of the applicant - on 14 March 2008 the Athens First Instance Criminal Court convicted the applicant and sentenced him to life imprisonment and a fine of 55,000 euros (judgment no. 1579/08).\n\n7.  On the same date the applicant lodged an appeal with the Athens Criminal Court of Appeal challenging the court’s findings and its evaluation of the evidence, which was scheduled for hearing on 1st October 2010.\n\n8.  After several adjournments the hearing of the appeal took place on 3 June 2011 and the applicant’s sentence was reduced to fourteen years of imprisonment.\n\n9.  There is no indication in the case file whether an appeal on points of law was lodged challenging the appellate judgment.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION\n\n10.  The applicant complained that the length of the proceedings, in so far as the proceedings before the first instance and the appellate court are concerned, had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:\n\n“In the determination of ... any criminal charge against him everyone is entitled to a ... hearing within a reasonable time by a ... tribunal...”\n\n11.  The Government contested that argument.\n\n12.  The period to be taken into consideration began on 20 October 2006, when the applicant was arrested and criminal complaints were brought against him and ended on 3 June 2011, when the decision of the appellate court was delivered. It thus lasted more than four years and seven months for two levels of jurisdiction.\n\nA.  Admissibility\n\n13.  The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n14.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II)\n\n15.  The Court observes that the overall length of the proceedings in the present case was approximately four years and seven months for two levels of jurisdiction and that, in particular, the proceedings before the Criminal Court of Appeal lasted more than three years and two months. The Court is of the opinion that mainly the period of two years and six months that lapsed from the date the applicant lodged his appeal and the date the case was initially set for hearing was excessive and was completely attributable to the national authorities. Thus, the Court observes that the national courts’ handling of the case did not facilitate and unjustifiably prolonged its timely completion. In the Court’s opinion, the length of the proceedings can be explained by the failure of the domestic courts to deal with the case diligently (see Gümüÿten v. Turkey, no. 47116/99, §§ 24-26, 30 November 2004).\n\n16.  In view of the above, having regard to its case-law on the subject, the overall duration of the proceedings and the delays attributable to the authorities, in particular with regard to the appellate court, the Court considers that in the instant case the length of the proceedings failed to meet the “reasonable time” requirement.\n\nThere has accordingly been a breach of Article 6 § 1.\n\nII.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION\n\n17.  The applicant further complained of the fact that in  there was no court to which application could be made to complain of the excessive length of proceedings. He relied on Article 13 of the Convention which provides as follows:\n\n“Everyone whose rights and freedoms as set forth in the Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”\n\n18.  The Government contested that argument.\n\n19.  The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.\n\n20.  The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI). It notes that the objections and arguments put forward by the Government have been rejected in earlier cases (see Konti-Arvaniti v. Greece, no. 53401/99, §§ 29-30, 10 April 2003 and Tsoukalas v. Greece, no. 12286/08, §§ 37-43, 22 July 2010) and sees no reason to reach a different conclusion in the present case.\n\n21.  Accordingly, the Court considers that in the present case there has been a violation of Article 13 of the Convention on account of the lack of a remedy under domestic law whereby the applicant could have obtained a ruling upholding his right to have his case heard within a reasonable time, as set forth in Article 6 § 1 of the Convention.\n\nIII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n22.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n23.   The applicant claimed 30,000 euros (EUR) in respect of nonpecuniary damage.\n\n24.  The Government considered the amount claimed exorbitant and submitted that the finding of a violation would constitute sufficient just satisfaction. They submitted, however, that if the Court considers that an award should be made, an amount of EUR 1,000 would be adequate and reasonable.\n\n25.  The Court considers that the applicant must have sustained nonpecuniary damage. Ruling on an equitable basis, it awards him EUR 2,500 under that head, plus any tax that may be chargeable on this amount.\n\nB.  Costs and expenses\n\n26.  The applicant did not submit a claim for the costs and expenses incurred before the domestic courts or for those incurred before the Court. Accordingly, the Court considers that there is no call to award him any sum on that account.\n\nC.  Default interest\n\n27.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Declares the application admissible;\n\n2.  Holds that there has been a violation of Article 6 § 1 of the Convention;\n\n3.  Holds that there has been a violation of Article 13 of the Convention;\n\n4.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months, EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable on this amount, in respect of non-pecuniary damage;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n5.  Dismisses the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 6 March 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_842","text":"PROCEDURE\n\n1.  The case originated in eight applications against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”). The application numbers and the dates on which they were lodged with the Court as well as the applicants’ personal details are listed in the appended table.\n\n2.  The applicants were represented by various NGOs and lawyers indicated in the appended table. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.\n\n3.  Between 7 January 2016 and 31 May 2016 notice of the complaints under Articles 2, 3, 5, and Article 13 in conjunction with these provisions, was given to the Government and the remainder of the applications nos. 31143/11 and 40161/12 was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.\n\n4.  The Government did not object to the examination of the applications by a Committee.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n5.  The applicants are Russian nationals who at the material time lived in the Chechen Republic and the Republic of Ingushetia, a region neighbouring Chechnya. They are close relatives of individuals who disappeared in these regions in 2000-2005 after allegedly being unlawfully detained by servicemen. In each of the applications the events took place in the areas under full control of the Russian federal forces. The applicants had no news of their missing relatives thereafter.\n\n6.  In each of the cases the applicants complained about the abductions to law-enforcement bodies and an official investigation was instituted. In every case the proceedings, after being suspended and resumed on several occasions, have been pending for several years without attaining any tangible results. It follows from the documents submitted that no active investigative steps have been taken by the authorities other than forwarding formal information requests to their counterparts in various regions of Chechnya and the North Caucasus. Further to such requests, the authorities generally reported that the involvement of servicemen in the abductions had not been established and that no special operations had been carried out at the relevant time. The applicants also lodged requests for information and assistance in the search for their missing relatives to various authorities but received only formal responses, if any. The perpetrators have never been identified by the investigating bodies. It appears that all of the investigations are still pending.\n\n7.  Summaries of the facts in respect of each application are set out below. Each account of events is based on statements provided by the applicants and their relatives and/or neighbours to the Court and the domestic investigating authorities. The Government did not dispute the principal facts of the cases as presented by the applicants, but contested the involvement of servicemen in these events.\n\nA.  Dzhamakhadzhiyev v. Russia (no. 31143/11)\n\n8.  The applicant was the father of Mr Said-Magomed Abdulazimov, who was born in 1970. He died on 13 October 2014. The applicant’s son, Mr Sayd-Khasan Dzhamakhadzhiyev, who is also the brother of the missing person Mr SaidMagomed Abdulazimov, expressed his wish to pursue the application.\n\n1.  Abduction of Mr Said-Magomed Abdulazimov\n\n9.  On 12 May 2002 (in the documents submitted, the date was also referred to as 17 May 2002) a group of armed men in balaclavas and camouflage uniforms opened fire and wounded Mr Abdulazimov on a street in the centre of Chiri-Yurt, Chechnya. While he was unconscious, they put him in a Gazel minivan and drove off to an unknown destination.\n\n10.  The whereabouts of Mr Said-Magomed Abdulazimov have remained unknown ever since.\n\n2.  Official investigation into the abduction\n\n11.  On 8 June 2002 the applicant complained about the abduction of his son to the deputy of the State Duma of the Federal Assembly of Russia (the Russian Parliament). It is unclear whether any reply was given to his complaint.\n\n12.  On 24 July 2002 the applicant lodged an official complaint with the Shali district prosecutor requesting assistance in the search for his son.\n\n13.  On 1 August 2002 the Shali district prosecutor’s office opened criminal case no. 59177 under Article 126 of the Criminal Code (abduction).\n\n14.  The investigators sent several requests for information to the lawenforcement authorities. Most responses contained statements that no information about Mr Said-Magomed Abdulazimov was available.\n\n15.  In a letter of 16 August 2002 the Shali district office of the Federal Security Service (“the FSB”) informed the investigators that Mr SaidMagomed Abdulazimov was the emir of Chiri-Yurt who had up to fifteen armed subordinates. Since 2001 he had been involved in planning and carrying out terrorist attacks against the Russian federal forces. Mr Said-Magomed Abdulazimov had a wide network involving leaders of the illegal armed groups and active representatives of Wahhabism. The letter also stated that Mr Abdulazimov carried a Makarov handgun on a permanent basis and was equipped with a grenade belt and a “Kenwood” portable radio set. The Shali district office was undertaking operational search activities aimed at establishing Mr Abdulazimov’s whereabouts.\n\n16.  On 19 September 2002 the applicant was granted victim status and questioned.\n\n17.  On 1 October 2002 the investigation was suspended for failure to identify the perpetrators. The applicant was informed thereof. The investigators’ letter stated that the operational search activities aimed at establishing his son’s whereabouts were being undertaken despite the suspension of the investigation.\n\n18.  On 8 January 2004 the applicant asked the Shali district prosecutor’s office for information about any progress in the investigation.\n\n19.  On 30 January 2004 the investigation was resumed.\n\n20.  On 20 February 2004 the investigators examined the crime scene.\n\n21.  On 25 February 2004 the applicant was questioned again. He stated that Mr Said-Magomed Abdulazimov had participated in the first Chechen war against the Russian federal forces.\n\n22.  On 3 March 2004 the investigation was suspended. The applicant was informed thereof.\n\n23.  The investigation case file contained the death certificate of Mr SaidMagomed Abdulazimov stating that he had died on 27 May 2002.\n\n24.  On 25 November 2009 the applicant requested the Shali inter-district investigation department to grant him full access to the criminal case file and to resume the proceedings. On 26 November 2009 the investigators allowed him to study the case file but refused to resume the investigation.\n\n25.  On 8 November 2010 the deputy head of the Shali inter-district investigation department annulled the decision of 3 March 2004 as unlawful and ordered the resumption of the proceedings. It was stated that on 12 May 2002 Mr Abdulazimov was arrested by unidentified armed men on the street in Chiri-Yurt after an identity check. He offered armed resistance to his arrest and wounded one of the men. They returned fire and wounded Mr Abdulazimov; then they put him in a Gazel minivan and drove off in the direction of Stariye Atagi.\n\n26.  Between 10 and 24 November 2010 the investigators questioned several neighbours and relatives of the applicant.\n\n27.  On 25 November 2010 the investigators ordered a forensic DNA examination.\n\n28.  On 8 December 2010 the investigation was suspended. It was resumed on 18 April 2011 and suspended again on 23 April 2011.\n\n29.  On 26 November 2012 the applicant asked the Shali district interdistrict investigation department for information about any progress in the investigation. On 4 December 2012 the investigators allowed him to study the criminal case file and make copies of the documents.\n\n30.  It appears that the investigation is still pending.\n\n3.  Proceedings against the investigators\n\n31.  On an unspecified date the applicant challenged the investigators’ decision of 3 March 2004 to suspend the proceedings and their failure to take basic investigative steps before the Shali Town Court. On 19 April 2011 the court dismissed the complaint, having found that a day earlier the investigators had already resumed the proceedings.\n\nB.  Tovdayevy v. Russia (no. 41890/11)\n\n32.  The first applicant is the mother of Mr Isa (also spelled as Issa) Tovdayev, who was born in 1984. The second applicant is his brother.\n\n1.  Disappearance of Mr Isa Tovdayev\n\n33.  On 29 April 2000 Mr Isa Tovdayev and his friend Mr I.T., who were teenagers at the time, left their homes in Petropavlovskaya village of Grozny District and went to a rubbish dump located on the outskirts of the village. Between 1 p.m. and 2 p.m. they were seen near the road leading to the military base of the Russian federal forces in Khankala. At that time a convoy of military vehicles, including an APC (armoured personnel carrier), an URAL lorry and an UAZ van, was driving in the same direction. Mr Tovdayev and Mr I.T. never returned home.\n\n34.  The applicants later learned from unidentified servicemen that Mr Tovdayev had been detained at the main military base of the Russian federal forces in Khankala.\n\n35.  According to the statements of Mr A.T., the father of Mr. I.T., the disappeared teenagers had been transferred from the military base to the detention centre in Chernokozovo, Chechnya. In June 2000 they had been seen in “Beliy Lebed” prison near Pyatigorsk.\n\n36.  The whereabouts of Mr Isa Tovdayev have remained unknown ever since.\n\n2.  Official investigation into the disappearance\n\n37.  Immediately after the disappearance the applicants informed the authorities and requested that an investigation be opened.\n\n38.  On 3 May 2000 the head of the administration of Petropavlovskaya asked the Representative of the President of the Russian Federation in Chechnya to provide assistance in the search for Mr Isa Tovdayev and Mr I.T. He indicated, in particular, the presence of military equipment and personnel on the day of the disappearance.\n\n39.  On 13 June 2000 police officers from the Grozny department of the interior examined the crime scene.\n\n40.  On 16 June 2000 the Grozny department of the interior (police station) refused to institute a criminal investigation into the disappearance. On 12 February 2001 the Chechnya prosecutor’s office overruled that decision and opened criminal case no. 19016 under Article 126 of the Criminal Code (abduction).\n\n41.  On 12 March 2001 the grandfather of Mr Isa Tovdayev, Mr D.M., was granted victim status and questioned. He stated that after the disappearance of his grandson he had visited the military base in Khankala where General P. had informed him that both missing teenagers had been taken to Chernokozovo. Mr D.M. had then visited Chernokozovo, but neither his grandson nor Mr I.T. had been detained there.\n\n42.  On 10 April 2001 Mr A.T. was granted victim status and questioned. He stated that on the next day after the disappearance he had visited the police station in Grozny. Police officers had informed him that when they had passed the outskirts of the village on 29 April 2000, they had seen servicemen driving an APC, URAL lorry and UAZ vehicle. Later Mr A.T. learnt from an acquaintance that his son and Isa Tovdayev had been taken to Khankala on that day and had stayed there for about two hours, and then they had been taken to an unknown place.\n\n43.  On 10 April 2001 the investigation was suspended for failure to identify the perpetrators. The applicants were informed about that decision on 26 March 2002.\n\n44.  On 14 May 2001 the investigation was resumed, and on 14 June 2001 suspended again.\n\n45.  On 29 July 2005 the Grozny district prosecutor’s office opened another criminal case no. 44074 into the disappearance of Mr Isa Tovdayev and Mr I.T. under Article 105 of the Criminal Code (murder).\n\n46.  On 29 September 2005 the deputy head of the Grozny district prosecutor’s office annulled the decision of 14 June 2001 and ordered the resumption of the proceedings.\n\n47.  On 2 October 2005 criminal cases nos. 19016 and 44074 were joined under the joint number 19016.\n\n48.  On 20 October 2005 the second applicant was questioned. He informed the investigators that Mr D.M. had died in February 2004 and confirmed the account of events submitted to the Court.\n\n49.  On 25 October 2005 the second applicant was granted victim status in the criminal case.\n\n50.  Between 20 and 26 October 2006 the investigators questioned several witnesses who knew about the abduction mostly from hearsay.\n\n51.  The investigation was resumed and then suspended on a number of occasions. The suspensions took place on 29 October 2005 and 9 October 2009, with the case being resumed on 2 September 2009 and 11 February 2011 accordingly. On 13 March 2011 the investigation was suspended again.\n\n52.  On 13 April 2009 the first applicant asked the head of the Committee for the search for persons who disappeared during the counter-terrorist operation in the Chechen Republic for assistance in the search for Mr Isa Tovdayev. Her request was forwarded to the investigators, who on 4 May 2009 replied that operational search activities were being carried out to establish his whereabouts.\n\n53.  It appears that the investigation is still pending.\n\n3.  Proceedings against the investigators\n\n54.  On 31 January 2011 the second applicant challenged the investigators’ decision to suspend the proceedings and their failure to take basic investigative steps before the Grozny District Court. On 11 February 2011 the court dismissed the complaint, having found that the investigators had already resumed the proceedings earlier on the same date. On 16 March 2011 the Chechnya Supreme Court upheld that decision on appeal.\n\nC.  Tagirova and Others v. Russia (no. 52056/11)\n\n55.  The applicants are close relatives of brothers Mr Tapa Tagirov and Mr Apti Tagirov (both also spelled as Tigirov), who were born in 1974 and 1968 respectively. The first applicant was their mother; she died in 2011. The second and the third applicants are their sisters.\n\n1.  Abduction of Mr Tapa Tagirov and Mr Apti Tagirov\n\n56.  At the material time the applicants and their relatives lived in the settlement of Yandare in Ingushetia as temporarily displaced persons.\n\n57.  On 4 June 2002 Mr Tapa Tagirov left his house on Shosseynaya Street in Yandare village and disappeared. A few hours later Mr Apti Tagirov left in his GAZ-3210 car (registration number К111ХТ 95Rus) to search for his brother and also disappeared.\n\n58.  On 7 June 2002 around fifteen armed men arrived together with Mr Tapa Tagirov in two white Gazel minibuses without registration numbers at the house where he had lived. Some of them were in civilian clothes; others were wearing camouflage uniforms and balaclavas. The men were of Slavic appearance and spoke unaccented Russian. They did not identify themselves and provided no documents authorising the search. Having searched the premises, the men left together with Mr Tapa Tagirov.\n\n59.  The applicants have not seen their relatives since their disappearance.\n\n2.  Official investigation into the abduction\n\n60.  On an unspecified date in June 2002, as submitted by the applicants, the first applicant complained of the abduction of her sons to the Ingushetia prosecutor’s office.\n\n61.  On 17 and then on 24 August 2004 the wives of Mr Tapa Tagirov and Mr Apti Tagirov complained to the Ingushetia prosecutor’s office alleging that their husbands had been abducted by State agents. Both of them pointed out that the first applicant had informed the authorities in June 2002 about the abduction but no investigative steps had been taken.\n\n62.  On 3 October 2004 the Nazran district prosecutor’s office opened criminal case no. 045000023 under Article 126 of the Criminal Code (abduction).\n\n63.  On 26 October 2004 the investigators questioned Mr D. and Ms D. who had rented Mr Tapa Tagirov a room in their house from the end of November 2001 until June 2002. He had lived there with his wife and children. Mr D. and Ms D. had learnt about his disappearance from his wife. A few days after the disappearance a group of servicemen had visited them together with Mr Tapa Tagirov. They had arrived in a white Gazel minivan; some of them had been wearing balaclavas and military uniforms. The servicemen had been of Slavic appearance and spoken unaccented Russian. One of the servicemen had told Mr and Ms D. to stay in their room. Through the window Ms D. had seen that the servicemen had searched Mr Tapa Tagirov’s room and had seized some of his belongings. Then they had left together with Mr Tapa Tagirov, having said that he would be released in two weeks.\n\n64.  The investigators sent several requests for information to the lawenforcement authorities. Most responses contained statements that no information about Mr Tapa Tagirov and Mr Apti Tagirov was available.\n\n65.  On 30 November 2004 Mr Apti Tagirov’s wife was granted victim status and questioned. She stated, in particular, that a few days after the disappearance of her husband and his brother, the first applicant had complained thereof to the Ingushetia prosecutor’s office.\n\n66.  On 1 December 2004 the first applicant was granted victim status and questioned. She confirmed, in particular, that she had lodged an application with the Ingushetia prosecutor’s office about the disappearance of her sons.\n\n67.  On 3 December 2004 the investigation was suspended. On 25 January 2005 the deputy prosecutor of Ingushetia annulled this decision and ordered the resumption of the proceedings.\n\n68.  On 27 January 2005 the investigation was resumed.\n\n69.  On 14 February 2005 the investigators received a reply to the information request from the Department for the Fight against Organised Crime of the Ministry of Interior of Ingushetia. According to that reply, Mr Tapa Tagirov and Mr Apti Tagirov had been arrested by law enforcement officers from the Chechen Republic.\n\n70.  On 27 February 2005 the investigation was suspended.\n\n71.  On 10 July 2009 the first applicant requested that the criminal proceedings be resumed and that she be allowed to study the case file.\n\n72.  On 12 August 2009 the applicant’s request to access the case file was granted but the request to resume the proceedings was rejected.\n\n73.  On 17 January 2011 the investigation was resumed and on 1 March 2011 suspended again.\n\n74.  It appears that the investigation is still pending.\n\n3.  Proceedings against the investigators\n\n75.  On 7 February 2011 the first applicant challenged the investigators’ decision of 27 February 2005 to suspend the proceedings and their failure to take basic investigative steps before the Nazran District Court. On 18 February 2011 the court dismissed the complaint, having found that the investigators had already resumed the proceedings. On 29 March 2011 the Ingushetia Supreme Court upheld that decision on appeal.\n\nD.  Batalova and Others v. Russia (no. 13920/12)\n\n76.  The first and second applicants are the parents of Mr Musa Tashayev, who was born in 1975. The third applicant is his daughter. According to the applicants, between 2000 and 2002, three other sons of theirs have either been killed or have disappeared.\n\n1.  Abduction of Mr Musa Tashayev\n\n77.  According to the applicants, on 20 November 2000 a sweeping operation was carried out in Urus-Martan.\n\n78.  At about 4 a.m. on 20 November 2000 a group of armed servicemen arrived at Mr Tashayev’s house at 100 Titova Street in Urus-Martan in an APC and an URAL lorry. The servicemen wore camouflage uniforms and spoke unaccented Russian. They forced Mr Tashayev into one of the vehicles and drove off to an unknown destination.\n\n79.  On the next morning after the abduction, an officer from the UrusMartan commander’s office told the first applicant that Mr Tashayev had been detained on their premises.\n\n80.  The whereabouts of Mr Tashayev have remained unknown ever since.\n\n2.  Official investigation into the abduction\n\n81.  On 9 March 2001 the wife of Mr Musa Tashayev, Ms D., informed the authorities that her husband had been arrested during the special operation.\n\n82.  On 17 May 2001 the Urus-Martan district prosecutor’s office opened criminal case no. 25052 under Article 126 of the Criminal Code (abduction).\n\n83.  On 19 May 2001 the investigators examined the crime scene.\n\n84.  On 19 May 2001 Ms D. was granted victim status and questioned. A copy of her statement submitted to the Court was illegible.\n\n85.  On 17 July 2001 the investigation was suspended for failure to identify the perpetrators.\n\n86.  On 12 April 2004 the first applicant requested the head of the UrusMartan department of the interior (the police) for assistance in the search for her son. It is unclear whether any reply was given.\n\n87.  On 21 January 2008 the first applicant informed the authorities that Ms D. had married again and had been living independently from their family. The first applicant was appointed as a guardian of her children, including the third applicant, by a judgment of 23 May 2007.\n\n88.  On 31 January 2008 the investigation was resumed. It was subsequently suspended on 29 February 2008, then resumed on 18 March 2008, suspended again on 16 April 2008 and resumed on 29 April 2008, then suspended on 28 May 2008 and resumed on 9 December 2010.\n\n89.  On 13 February 2008 the first applicant was granted victim status and questioned.\n\n90.  On 1 May 2008 the investigators questioned Mr A., who was a neighbour of Mr Tashayev and his family at the relevant time. He had learnt about the incident on the day after the abduction from neighbours, who had confirmed its circumstances as submitted by the applicants.\n\n91.  On 21 July 2010 the first applicant submitted a request to the investigators to be granted access to the criminal case file and for the proceedings to be resumed. Her request was rejected.\n\n92.  On 25 November 2010 the first applicant asked the investigators about progress in the proceedings.\n\n93.  On 9 January 2011 the investigation was suspended again.\n\n94.  On 30 May 2011 the first applicant again requested access to the case file and asked the investigators to resume the criminal proceedings. On 17 June 2011 the investigators granted her access to the file but refused to resume the proceedings.\n\n95.  On 13 July 2011 the proceedings were resumed.\n\n96.  It appears that the investigation is still pending.\n\n3.  Proceedings against the investigators\n\n97.  On 6 December 2010 the first applicant complained to the AchkhoyMartan District Court about the lack of access to the criminal case file and the investigators’ failure to take basic steps. On 17 December 2010 the court ordered the investigators to grant her full access to the criminal case file. The remainder of her complaint was rejected.\n\n98.  On 27 May 2011 the first applicant lodged another complaint challenging the investigators’ failure to take basic steps before the UrusMartan Town Court. On 15 July 2011 the court terminated the proceedings, having found that the investigation had been resumed on 13 July 2011. On 10 August 2011 the Supreme Court of the Chechen Republic upheld the above decision on appeal.\n\nE.  Metsoyeva and Others v. Russia (no. 40161/12)\n\n99.  The first applicant is the wife of Mr Sayd-Eli (also spelled as SaidEli) Garbulatov, who was born in 1960. The second and the third applicants are his children.\n\n1.  Abduction of Mr Sayd-Eli Garbulatov and subsequent events\n\n100.  At about 1 p.m. on 10 August 2005 Mr Garbulatov, a former member of illegal armed groups in Chechnya, was leaving the office of the Grozny Technical Inventory Bureau (БТИ г. Грозного) at 2 Pobedy Avenue in the Zavodskoy district of Grozny, when about twenty armed servicemen in black military uniform surrounded him, forced him into an UAZ vehicle with no registration numbers and drove off to an unknown destination.\n\n101.  On 18 August 2005 the applicants’ relative, Mr V.G., went to the Katayama department of the interior (police station) in Staropromyslovskiy district in Grozny. In one of the corridors of the police station he saw Mr Garbulatov sitting on a chair under armed guard. Mr V.G. managed to approach Mr Garbulatov and to have a brief conversation with him. Mr Garbulatov told him that since his arrest on 10 August 2005 he had been detained in the basement of the police station. At that moment a serviceman in a black military uniform approached them, shouted at Mr V.G. for talking to Mr Garbulatov and walked the latter away. Mr V.G. asked police officers for the name of this serviceman; they replied that it was Mr D.E.\n\n102.  The whereabouts of Mr Sayd-Eli Garbulatov have remained unknown ever since.\n\n2.  Official investigation into the abduction\n\n103.  On 19 January 2006 the first applicant lodged an official complaint with the Zavodskoy district prosecutor’s office in Grozny about the abduction of her husband and asked for assistance in the search for him.\n\n104.  On 30 January 2006 the first applicant was interviewed by the investigators. Her statements were similar to the account of events submitted to the Court.\n\n105.  On 3 February 2006 the Zavodskoy district prosecutor’s office refused to institute criminal proceedings into the abduction on the grounds of the absence of any criminal act.\n\n106.  On 8 May 2006 the supervising prosecutor overruled the above decision and opened criminal case no. 51072 under Article 126 of the Criminal Code (abduction). The first applicant was granted victim status.\n\n107.  On the same date the investigators examined the crime scene. No evidence was collected.\n\n108.  The investigators sent numerous requests for information to the lawenforcement authorities. Most responses contained statements that no information about Mr Sayd-Eli Garbulatov was available.\n\n109.  On 9 May 2006 the Zavodskoy district department of the interior (the police station) replied to the investigators that “in August 2005 Mr Garbulatov was in Katayama police station”.\n\n110.  On 23 May 2006 the investigators questioned Mr V.G. He confirmed his earlier statements (see paragraph 101 above).\n\n111.  In June and July 2006 the investigators questioned several police officers from the Staropromyslovskiy district department of the interior. All of them denied that Mr Garbulatov had ever been arrested or detained by them.\n\n112.  On 8 July 2006 the investigation was suspended for failure to identify the perpetrators. It was subsequently resumed on numerous occasions following the supervisors’ orders and then suspended again. Thus, the investigation was resumed on 18 July 2006, 3 May, 26 July and 15 November 2007, and 20 May 2008 and suspended on 18 August 2006, 7 June, 3 September and 15 December 2007, and 29 June 2008.\n\n113.  On 13 April 2007 the first applicant asked the investigators to resume the proceedings and to grant her access to the criminal case file. Her request for access to the case file was refused.\n\n114.  On an unspecified date in 2007 the first applicant complained to the Head of the Government of the Chechen Republic, asking him to provide assistance in the search for her husband. According to her statements, Mr Garbulatov had spent one month in the basement of the police station and had been questioned by the head of the Staropromyslovskiy district department of the interior on several occasions. Two and a half months after the disappearance of her husband the head of the police station had asked Mr Garbulatov’s brother-in-law, Mr S.G., to bring his clothes. When the latter had arrived at the police station, a police officer had approached him and had provoked him to a quarrel. Then Mr S.G. had been taken to the premises of the separate reconnaissance battalion 2-ORB (2-ОРБ) where he had spent two days. He had been told to stop searching for Mr Garbulatov.\n\n115.  On 28 April 2007 the first applicant’s complaint was forwarded to the deputy prosecutor of the Zavodskoy district of Grozny.\n\n116.  On 2 June 2008 the investigators sent a request for information about certain police officers to the Ministry of the Interior of the Chechen Republic. It was stated in the request that according to the case file materials, Mr Garbulatov had been detained for one month in the Katayama division of the Staropromyslovskiy district department of the interior.\n\n117.  On 26 June 2008 the first applicant was questioned again. She confirmed her statements provided to the Head of the Government of the Chechen Republic (see paragraph 114 above).\n\n118.  On 19 May 2011 the first applicant again requested the investigators to resume the proceedings and to inform her about their progress. In reply she received a letter stating that operational search activities were being undertaken in order to establish her husband’s whereabouts.\n\n119.  On 28 October 2011 the investigation was resumed.\n\n120.  On 14 November 2011 the investigators questioned Mr S.G. He confirmed the first applicant’s statements submitted to the Head of the Government of the Chechen Republic (see paragraph 114 above).\n\n121.  On 7 December 2011 the investigation was suspended.\n\n122.  It appears that the investigation is still pending.\n\n3.  Proceedings against the investigators\n\n123.  On an unspecified date the applicant lodged a complaint with the Zavodskoy District Court of Grozny regarding her lack of access to the investigation file. On 9 November 2007 the court allowed her complaint.\n\n124.  On 18 February 2012 the first applicant lodged another complaint regarding the investigators’ decision to suspend the proceedings and their failure to take basic steps. On 27 February 2012 the court dismissed her complaint.\n\nF.  Azizovy v. Russia (no. 72821/12)\n\n125.  The applicants are the parents of Mr Magomed (also spelled as Magomet) Azizov, who was born in 1981.\n\n1.  Abduction of Mr Magomed Azizov\n\n126.  At about 3 a.m. on 5 February 2003 a group of armed servicemen in camouflage uniforms and balaclavas arrived at the applicants’ family house at 13 Naberezhnaya Street in Shali in a UAZ minivan (“таблетка”) and a Gazel minivan without registration plates. The servicemen were equipped with protective shields and helmets; they spoke unaccented Russian. Having forced their way into the house, they searched the premises, checked passports, and then forced Mr Azizov outside. The first applicant asked the servicemen where they were from. One of them replied that they were from the military commander’s office. The servicemen put Mr Azizov in one of their vehicles and drove off in the direction of Shali city centre.\n\n127.  The whereabouts of Mr Magomed Azizov have remained unknown ever since. The abduction took place in the presence of several witnesses, including the applicants and their family members.\n\n2.  Official investigation into the abduction\n\n128.  Immediately after the abduction the first applicant complained about it to the authorities and asked for the necessary steps to be taken.\n\n129.  On 8 February 2003 the Shali district prosecutor’s office opened criminal case no. 22026 under Article 126 of the Criminal Code (abduction).\n\n130.  On 9 February 2003 the first applicant was granted victim status and questioned. Her statements were similar to the submissions before the Court.\n\n131.  On 10 February 2003 the investigators questioned Mr R.A., whose statement was similar to that of the first applicant.\n\n132.  The investigators sent numerous requests for information to the medical institutions, lawenforcement and other authorities, including the Shali military commander’s office. In reply the commander’s office informed the investigators that Mr Azizov had not been arrested or detained by its officers. Other responses contained statements that no information about Mr Magomed Azizov was available.\n\n133.  On 8 April 2003 the investigation was suspended for failure to identify the perpetrators. The applicants were informed thereof.\n\n134.  On a number of occasions between 2003 and 2009 the applicants complained to various authorities about the abduction and requested assistance in the search for their son. Their complaints were forwarded to the investigators and the Shali district prosecutor’s office. In reply, on each occasion, the applicants received letters from those authorities stating that the law-enforcement agencies were taking measures to establish their son’s whereabouts.\n\n135.  On 30 April 2011 the decision of 8 April 2003 to suspend the investigation was overruled following the supervisors’ criticism, and on 10 May 2011 the proceedings were resumed. They were subsequently suspended on 10 June 2011 and resumed again on 25 April 2012.\n\n136.  On 18 May 2011 the first applicant was questioned again. She reiterated her earlier statements.\n\n137.  On 19 May 2011 the investigators ordered a forensic DNA examination.\n\n138.  Between 20 and 26 May 2011 the investigators questioned Mr R.A., the second applicant and the applicants’ neighbours. All of them confirmed the circumstances of the events as described above.\n\n139.  On 26 May 2011 the investigators examined the crime scene.\n\n140.  On 7 July 2011 the first applicant submitted a request to be granted access to the investigation file. It is unclear whether she received any reply to this request.\n\n141.  On 30 April 2012 the proceedings were suspended. The investigators instructed the Shali district department of the interior (police station) to intensify the search for Mr Magomed Azizov and to take all necessary operational search measures.\n\n142.  On 24 April 2014 the first applicant lodged an application with the head of the police station asking to question two of their neighbours again in order to confirm that the abductors had been State agents. On 2 May 2014 her application was rejected.\n\n143.  It appears that the investigation is still pending.\n\n3.  Proceedings against the investigators\n\n144.  On 9 April 2012 the first applicant challenged the investigators’ decision of 10 June 2011 to suspend the proceedings and their failure to take basic steps before the Shali Town Court. On 26 April 2012 the court terminated the proceedings, having found that the investigation had been resumed the day before. On 6 June 2012 the Chechnya Supreme Court upheld that decision on appeal.\n\nG.  Larsanova v. Russia (no. 3083/13)\n\n145.  The applicant is the mother of Mr Khamzat Larsanov (also spelled as Lorsanov), who was born in 1983.\n\n1.  Abduction of Mr Khamzat Larsanov\n\n146.  At about 4 a.m. on 11 September 2002 Mr Larsanov, his father, Mr R.L., and his mother − the applicant − were at home at 97 Obukhova Street in Grozny when a group of about fifteen armed servicemen in camouflage uniforms and balaclavas arrived in three UAZ vehicles and three APCs. One of the APCs had a registration number containing the digits “002”. The servicemen spoke unaccented Russian; some of them were equipped with portable radio sets which they used at some point to receive a command. Having forced their way into the applicant’s house, they fired some shots and then searched the premises, asking the family members whether any members of illegal armed groups were hiding in the house. One of the servicemen took off his balaclava. He was of Slavic appearance. After the search, the servicemen forced Mr Larsanov into one of their vehicles and took him away to an unknown destination.\n\n147.  The whereabouts of Mr Khamzat Larsanov have remained unknown ever since. His abduction took place in the presence of several witnesses, including the applicant, her relatives and neighbours.\n\n2.  Official investigation into the abduction\n\n148.  The criminal case file concerning the abduction of the applicant’s son was lost in unknown circumstances. Following the supervisor’s order to restore it, in 2016 the investigators resumed the proceedings and took several investigative steps. In particular, they questioned the witnesses and examined the crime scene. The following account of events is based on the copies of the original case file and other documents submitted by the applicant as well as the documents from the restored case file submitted by the Government.\n\n149.  Immediately after the abduction, the applicant informed the authorities thereof and requested that criminal proceedings be opened.\n\n150.  On the same day the investigators examined the criminal scene.\n\n151.  On 26 September 2002 the Grozny town prosecutor’s office opened criminal case no. 48162 under Article 126 of the Criminal Code.\n\n152.  On 16 October 2002 the case no. 48162 was joined with the case no. 48172 concerning the abduction of Mr I.Yu. under the joint number 48162.\n\n153.  On 26 October 2002 the applicant was granted victim status.\n\n154.  On an unspecified date between October and November 2002 the investigators interviewed the applicant, her husband, their relatives and neighbours. All of them confirmed the circumstances of the abduction as described above.\n\n155.  On 26 November 2002 the investigation was suspended for failure to identify the perpetrators.\n\n156.  Between 2004 and 2007 the applicant complained to various authorities and NGOs about the abduction of her son and requested assistance in the search for him. Her complaints were forwarded to the investigators, who replied that the investigation had been suspended and that operational search activities were in progress.\n\n157.  On 15 March 2007 the investigators informed the applicant that the proceedings in the criminal case had been suspended on 26 November 2002 and that operational search activities were in progress to establish her son’s whereabouts.\n\n158.  On 26 June 2007 a police officer from the Leninskiy district police department interviewed the applicant.\n\n159.  On 27 October 2012 the supervising prosecutor overruled the decision of 26 November 2002 to suspend the investigation and ordered its resumption. On 12 December 2012 the proceedings were suspended again.\n\n160.  On 28 June 2016 the Chechnya Investigations Department ordered the head of the investigative committee in Grozny to restore the criminal case-file no. 48162 which had been lost.\n\n161.  On 30 June 2016 the investigators resumed the proceedings.\n\n162.  On 4 July 2016 the investigators questioned the applicant who reiterated her previous statements.\n\n163.  Between 5 and 7 July 2016 the investigators questioned Ms M.E., Ms M.M., Ms Z.D. and the applicant’s husband who had witnessed the abduction of Mr Khamzat Larsanov. All of them confirmed the circumstances of the abduction as described above.\n\n164.  On 13 July 2016 the investigators examined the crime scene.\n\n165.  It appears that the investigation is still pending.\n\nH.  Gaydakova v. Russia (no. 6983/13)\n\n166.  The applicant is the wife of Mr Isa Gaydakov, who was born in 1959.\n\n1.  Abduction of Ms Isa Gaydakov\n\n167.  Mr Isa Gaydakov was a cousin of Mr Shamil Basayev, the underground leader of the Chechen rebel separatist movement, who masterminded and led a number of guerrilla attacks on Russian security forces and civilians, including the hostage-taking in a school in Beslan in September 2004 (see Tagayeva and Others v. Russia, nos. 26562/07 and 6 others, 13 April 2017).\n\n168.  On 23 April 2004 Mr Gaydakov was at the Zhanetta petrol station on Mayakovskogo Street in Grozny, when a group of about seven men in camouflage uniforms forced him out of his Volga car and took him to an unknown destination.\n\n169.  The whereabouts of Mr Isa Gaydakov have remained unknown since the date of his abduction.\n\n2.  Official investigation into the abduction\n\n170.  According to the applicant, she informed the authorities of the abduction shortly afterwards and requested that criminal proceedings be opened. Despite her requests, the authorities refused to officially register her complaints, thereby impeding the investigation.\n\n171.  On 22 May 2005 a police officer from the Leninskiy district department of the interior (the police station) in Grozny interviewed Mr T.M. and Mr L.D. who had worked at the petrol station at the time of the events in question. Both of them denied that they had any information about the abduction of Mr Gaydakov.\n\n172.  On 7 June 2005 the Leninskiy district prosecutor’s office in Grozny refused to open a criminal case into the abduction.\n\n173.  On 1 August 2005 the supervising prosecutor overruled that decision and opened criminal case no. 40157 (in the documents submitted the number was also referred to as 44064) under Article 126 of the Criminal Code (abduction).\n\n174.  On 23 August 2005 the applicant was granted victim status and questioned.\n\n175.  The investigators sent several requests for information to the lawenforcement authorities about Mr Gaydakov. Most responses contained statements that no information had been available.\n\n176.  On an unspecified date in September 2005 the head of the police station informed the investigators that according to their information Mr Gaydakov had been arrested by the officers of the Security Service of the President of Chechnya (Служба безопасности при Президенте Чеченской Республики) on suspicion of his involvement in the activities of illegal armed groups.\n\n177.  On 1 October 2005 the investigation was suspended for failure to identify the perpetrators. That decision was overruled by the supervising prosecutor on 15 November 2005 and the investigation was resumed. It was again suspended on 15 February 2006. The applicant was informed thereof.\n\n178.  On 10 November 2005 the investigators examined the crime scene.\n\n179.  On 15 November 2005 Mr V.M., the deputy head of the provisional task force of the criminal police department of the Ministry of the Interior in Khankala (КМ ВОГО и П МВД России) informed the investigators that Mr Gaydakov was listed as a participant in illegal armed groups. Their statement contained the description of the circumstances of the abduction of Mr Gaydakov.\n\n180.  On 14 December 2005 the investigators questioned Ms Kh.Kh., who was Mr Gaydakov’s second wife. She stated that he had never been involved in the activities of illegal armed groups and had never had any relations with Shamil Basayev.\n\n181.  On the same date Ms Kh.Kh. was also granted victim status in the criminal case.\n\n182.  On 15 December 2005 the investigators questioned several acquaintances of Mr Gaydakov. Some of them had seen his car several days after the abduction driving in various directions.\n\n183.  On 15 January 2006 the investigators’ supervisor approved the plan of investigative steps and operational measures to be taken in order to establish the circumstances of Mr Gaydakov’s abduction and those responsible for it. One of the hypotheses considered by the investigators was the abduction of Mr Gaydakov by the Chechen law-enforcement officers on account of his kinship with Shamil Basayev.\n\n184.  In March 2006 the applicant informed the investigators that on 1 February 2006 a Russian TV channel had aired a story about her husband and Mr A. who had been sentenced to eleven years’ imprisonment. She requested the investigators to obtain a copy of the television programme broadcast.\n\n185.  On 23 March 2006 the investigators granted the applicant’s request. In reply they received a letter from the TV channel stating that no information about Mr Gaydakov had been given on 1 February 2006.\n\n186.  On 27 March 2006 the investigators sent a request for information to the Federal Penitentiary Service in Sverdlovsk Region asking whether Mr Gaydakov had been detained in the colonies of that region. It is unclear whether they received any reply.\n\n187.  On 22 June 2011 the applicant requested that the investigators resume the proceedings, inform her about progress in the investigation and grant her access to the case file. Her request was granted in part: the investigators gave her permission to consult the contents of the case file and informed her about progress in the case.\n\n188.  On 4 April 2012 the applicant’s representative again requested that the investigators resume the proceedings but to no avail.\n\n189.  It appears that the investigation is still pending.\n\n3.  Proceedings against the investigators\n\n190.  On 28 May 2012 the applicant challenged the investigators’ decision to suspend the proceedings and their failure to take basic investigative steps before the Leninskiy District Court of Grozny. On 16 July 2012 the court dismissed the complaint as unfounded, having established that all the necessary investigative steps had been taken.\n\nII.  RELEVANT DOMESTIC LAW AND PRACTICE AND INTERNATIONAL MATERIALS\n\n191.  For a summary of the relevant domestic law and practice and for international and domestic reports on disappearances in Chechnya and Ingushetia between 1999 and 2006, see Aslakhanova and Others v. Russia (nos. 2944/06 and 4 others, §§ 43-59 and §§ 69-84, 18 December 2012).\n\nTHE LAW\n\nI.  JOINDER OF THE APPLICATIONS\n\n192.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.\n\nII.  COMPLIANCE WITH THE SIX-MONTH RULE\n\nA.  The parties’ submissions\n\n1.  The Government\n\n193.  The Government submitted that the applicants had lodged their applications with the Court several years after the abduction of their relatives and more than six months after the date when they ought to have become aware of the ineffectiveness of the pending investigations. They pointed out that the applicants had remained passive and had not been interested in finding their missing relatives. The applicants had therefore failed to comply with the six-month time-limit for lodging their respective complaints with the Court.\n\n194.  The Government further challenged the claim in the application Tagirova and Others (no. 52056/11) that the first applicant had complained about the abduction of her relatives in 2002. They submitted that the applicants had not lodged any complaints with the law-enforcement authorities before August 2004. In the Government’s view, the applicants had failed to show due diligence by promptly informing the authorities about the abduction of their relatives.\n\n2.  The applicants\n\n195.  The applicants in all applications submitted that they had complied with the six-month rule. They had taken all possible steps within a reasonable time to initiate the search for their missing relatives and assist the authorities in the proceedings. They alleged that there had been no excessive or unexplained delays in lodging their applications with the Court, which had been forthcoming as soon as they considered the domestic investigation to be ineffective.\n\n196.  The applicants further submitted that they had complained to the authorities shortly after the incidents and had hoped that the criminal investigation initiated thereafter would produce results. Throughout the proceedings they had maintained regular contact with the authorities and actively cooperated with the investigation. The applicants further maintained that the armed conflict in the area had led them to believe that investigative delays were inevitable and it was only with the passage of time and the lack of information from the domestic authorities that they had begun to doubt the effectiveness of the investigation. Some applicants also referred to their legal illiteracy and their insufficient financial means to retain a lawyer (in Dzhamakhadzhiyev v. Russia (no. 31143/11)). The applicants in Batalova and Others v. Russia (no. 13920/12) additionally submitted that they had found themselves in especially difficult circumstances after the abduction of Mr Musa Tashayev, because three sons of the first and the second applicants had either disappeared or had been killed within the two years that followed.\n\nB.  The Court’s assessment\n\n1.  General principles\n\n197.  A summary of the principles concerning compliance with the sixmonth rule in cases involving violations of Article 2 of the Convention allegedly perpetrated by military servicemen may be found in Sultygov and Others v. Russia, nos. 42575/07 and 11 others, §§ 369-74, 9 October 2014, and Dudayeva v. Russia, no. 67437/09, § 71, 8 December 2015.\n\n2.  Application of the principles to the present case\n\n198.  Turning to the circumstances of the applications before it, the Court notes that in four of the cases at hand the applicants lodged their complaints with the Court within a period ranging from almost seven years to up to ten years after the incidents, and that the authorities became aware of the abductions without there being undue delays. In each of these cases the investigations were formally pending at the time when the applications were lodged with the Court. The criminal proceedings in all the cases were suspended and resumed on several occasions throughout the periods concerned. The applicants maintained reasonable contact with the authorities, cooperated with the investigation, and, where appropriate, took steps to keep themselves informed of the progress in the proceedings and to speed them up, in the hope of a more effective outcome (see paragraphs 18, 24, 29, 113, 118, 156, 184, 187 and 188 above). Given the overall time frame which has elapsed since the abductions and the initiation of the relevant criminal proceedings, as well as the applicants’ active stance in the proceedings and the lack of any significant periods of inaction on their part, the Court is satisfied that the applicants lodged their applications within a reasonable time (see Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, § 166, ECHR 2009).\n\n199.  As to the application Tagirova and Others (no. 52056/11), lodged with the Court nine years after the abduction, the Court notes that the applicants and their relatives made consistent allegations in the domestic proceedings that the first applicant had complained to the authorities about the abduction of Mr Tapa Tagirov and Mr Apti Tagirov for the first time in June 2002 (see paragraphs 61, 65 and 66 above). Should it be accepted that the authorities were informed about the abduction only in August 2004, the Court notes that the investigators had never asked the applicants about the reasons for a two-year delay in bringing their complaints, although this would have been essential for establishing the whereabouts of their relatives. Furthermore, the applicants provided the authorities with the necessary information regarding their relatives and the circumstances of their abduction, thus expecting important investigative developments in establishing their whereabouts or identifying the perpetrators. From the documents submitted it does not transpire, therefore, that the applicants failed to show the requisite diligence by delaying their complaints or remaining passive in respect of the domestic investigation (contrast Doshuyeva and Yusupov v. Russia (dec.), no. 58055/10, §§ 41-47, 31 May 2016).\n\n200.  The Court further notes that the application Azizovy (no. 72821/12) was lodged with the Court less than ten years after the abduction of Mr Magomed Azizov. The applicants informed the authorities immediately after the incident and cooperated with the investigators by giving statements about the circumstances of the abduction (see paragraphs 128 and 130 above). However, there was a discernible lull in the investigation comprising eight years, when the investigation was dormant. Such a long period of inaction on the part of the authorities could have cast doubt on the effectiveness of the pending investigation. The Court notes however that during that period the applicants remained active in trying to establish the whereabouts of their son. They maintained contact with the authorities by lodging complaints with various law-enforcement agencies, complaints which were later forwarded to the investigators, and they received replies stating that operational search activities were under way (see paragraph 134 above). The Court therefore considers that it was reasonable for the applicants, who consistently received such replies from the authorities, to wait for developments that could have resolved crucial factual or legal issues (see El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 142, ECHR 2012). Given the overall time frame between the incident and the lodging of the application with the Court, the above lull in the proceedings, therefore, cannot be interpreted as a failure by the applicants to show due diligence and comply with the six-month requirement.\n\n201.  Turning to the applications Tovdayevy (no. 41890/11) and Batalova and Others (no. 13920/12), the Court notes that they were lodged eleven years after the abduction of the applicants’ relatives. It observes that in Tovdayevy (no. 41890/11) the applicants immediately reported the abduction to the authorities and provided information to the investigators about their relative’s possible whereabouts (see paragraphs 37 and 41 above). The Court further notes that the applicants in Batalova and Others (no. 13920/12) informed the authorities about the abduction without there being any undue delay. Their inaction from 2001 to 2004 could be explained by the fact that they found themselves in a difficult situation during that period, following the active phase of the counterterrorist operation in Chechnya and owing to the loss of their three other sons in addition to the abduction of their son Mr Musa Tashayev (see paragraphs 76 and 196 above). The documents submitted show that the applicants informed the investigators promptly about important developments in the case and asked them to resume the investigation on several occasions (see paragraphs 87, 91, 92 and 94 above). In the Court’s view, it cannot be concluded therefore that the applicants in Tovdayevy (no. 41890/11) and Batalova and Others (no. 13920/12) failed to show the requisite diligence by unreasonably waiting for the pending investigation to yield results (contrast Utsmiyeva and Others v. Russia (dec.), no. 31179/11, §§ 34-40, 26 August 2014).\n\n202.  In the light of the foregoing, the Court finds that the applicants complied with the six-month time-limit.\n\nIII.  THE COURT’S ASSESSMENT OF THE EVIDENCE AND THE ESTABLISHMENT OF THE FACTS\n\nA.  The parties’ submissions\n\n1.  The Government\n\n203.  The Government did not contest the essential facts underlying each application, but submitted that there was no evidence proving beyond reasonable doubt that State agents had been involved in the alleged abductions of the applicants’ relatives.\n\n2.  The applicants\n\n204.  The applicants submitted that it had been established “beyond reasonable doubt” that the men who had taken their relatives had been State agents. In support of that assertion, they referred to evidence contained in their submissions and to documents from the criminal investigation files submitted by the Government. They also stated that they had each made a prima facie case that their relatives had been abducted by military servicemen, and that the essential facts underlying their complaints had not been challenged by the Government. Given the lack of any news about their relatives for a long period and the life-threatening nature of unacknowledged detention in Chechnya at the relevant time, they asked the Court to consider their relatives dead.\n\nB.  The Court’s assessment\n\n1.  General principles\n\n205.  A summary of the principles concerning the assessment of evidence and establishment of the facts in disappearance cases, and the lifethreatening nature of such incidents, can be found in Sultygov and Others (cited above, §§ 393-96).\n\n2.  Application of the above principles to the present case\n\n206.  Turning to the circumstances of the applications before it, and in view of all the material, including the documents from the criminal investigation files provided by the Government in most cases, the Court finds that the applicants have presented prima facie cases that their relatives were abducted by State agents in the circumstances described above.\n\n207.  In the application Dzhamakhadzhiyev v. Russia (no. 31143/11), the Court notes that Mr Said-Magomed Abdulazimov was abducted by armed men in camouflage uniforms and balaclavas after they had checked his identity documents (see paragraphs 9 and 25 above). The Government did not dispute that Federal Security Service had prior information about his involvement in terrorist activities and links with leaders of illegal armed groups (see paragraph 15 above).\n\n208.  As to the application Tovdayevy v. Russia (no. 41890/11), the Court notes the presence of the military vehicles at the time when Mr Isa Tovdayev and his friend had been seen near the road leading to the military base of the Russian federal forces in Khankala (see paragraphs 33 and 38 above). The Court further takes note of the statements of Mr D.M. and Mr A.T., both of whom had testified that Mr Isa Tovdayev and Mr I.T. had spent two or three hours at the military base and had then been transferred to Chernokozovo (see paragraphs 35, 41 and 42 above). However, owing to the investigators’ failure to send requests for information to the competent authorities, the fact of Mr Isa Tovdayev’s detention had never been verified.\n\n209.  The Court further notes that in application Tagirova and Others (no. 52056/11) it was established that Mr Tapa Tagirov and Mr Apti Tagirov had been arrested by law-enforcement agents from the Chechen Republic (see paragraph 69 above). Moreover, a few days after the abduction Mr Tapa Tagirov returned with a group of men to the house where he had lived and those men had been of Slavic appearance and spoke unaccented Russian (see paragraphs 58 and 63 above).\n\n210.  Turning to the application Batalova and Others v. Russia (no. 13920/12), the Court observes that the alleged abductors spoke unaccented Russian and arrived in a heavy military vehicle, the APC. The Government did not dispute this information, as submitted by the applicants and confirmed by the statements of their neighbour (see paragraphs 78 and 90 above).\n\n211.  The Court further observes that in application Metsoyeva and Others v. Russia (no. 40161/12) the fact of the arrest and subsequent detention of Mr Sayd-Eli Garbulatov by the law-enforcement officers was confirmed by the witness statements of Mr V.G. and Mr S.G. (see paragraphs 101, 110 and 120 above). Furthermore, the letter from Zavodskoy police station stated that in August 2005 Mr Garbulatov had been in Katayama police station (see paragraph 109 above).\n\n212.  In the application Azizovy v. Russia (no. 72821/12) it is undisputed by the parties that Mr Magomed Azizov was arrested after the identity check and then detained by servicemen from the military commander’s office (see paragraph 126 above). This fact was also confirmed by a number of witness statements (see paragraphs 131 and 138 above).\n\n213.  In application Larsanova v. Russia (no. 3083/13) the Court notes that the abductors were equipped with portable radio sets which they used to receive a command (see paragraphs 146, 154 and 163 above). Such special means of communication were available only to the military or security personnel at the time (see Aslakhanova and Others, cited above, § 99). The Court also notes the involvement of military vehicles, such as APCs, in the abduction.\n\n214.  As to the application Gaydakova v. Russia (no. 6983/13), the Court observes that the law-enforcement authorities had been aware of Mr Isa Gaydakov’s kinship with Mr Shamil Basayev, the leader of the Chechen separatist movement, and that they had suspected him of involvement in illegal armed groups (see paragraph 179 above). It further notes that according to information provided by the head of the Leninskiy police station to the investigators, Mr Gaydakov had been arrested by the officers of the Security Service of the President of Chechnya on account of that suspicion (see paragraph 176 above).\n\n215.  Having regard to the numerous previous cases concerning disappearances in Chechnya and Ingushetia which have come before it, the Court has found that in the particular context of the conflict, when a person was detained by unidentified State agents without any subsequent acknowledgment of the detention, this could be regarded as lifethreatening (see, among many other authorities, Aslakhanova and Others, cited above, § 101).\n\n216.  Lastly, the Court observes that the Government did not provide a satisfactory and convincing explanation for the events in question. They have therefore failed to discharge their burden of proof (see, among many authorities, Avşar v. Turkey, no. 25657/94, § 392, ECHR 2001VII (extracts)).\n\n217.  In sum, the facts of all the applications provide sufficient evidence to enable the Court to find that the applicants’ relatives were taken into custody by State agents during security operations and remained under the State’s exclusive control. Given the lack of any reliable news about them since their detention and its life-threatening nature, the Court finds that Mr Said-Magomed Abdulazimov, Mr Isa Tovdayev, Mr Tapa Tagirov, Mr Apti Tagirov, Mr Musa Tashayev, Mr Sayd-Eli Garbulatov, Mr Magomed Azizov, Mr Khamzat Larsanov and Mr Isa Gaydakov may be presumed dead following their unacknowledged detention.\n\nIV.  ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION\n\n218.  The applicants complained under Article 2 of the Convention that their relatives had disappeared after being detained by State agents and that the domestic authorities had failed to carry out an effective investigation into the matter. Article 2 reads as follows:\n\n“1.  Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.\n\n2.  Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:\n\nA.  The parties’ submissions\n\n1.  The Government\n\n219.  In the cases of Batalova and Others v. Russia (no. 13920/12), Azizovy v. Russia (no. 72821/12) and Larsanova v. Russia (no. 3083/13), the Government contended that Article 2 of the Convention was inapplicable to the applicants’ complaints of abduction, which they said had to be examined under Article 5 of the Convention. They referred to the case of Kurt v. Turkey (25 May 1998, §§ 101-09, Reports of Judgments and Decisions 1998III) in that respect.\n\n220.  The Government submitted that, in any event, the complaints should be rejected because the applicants had failed to substantiate their allegations of enforced disappearance.\n\n221.  The Government further argued that no evidence had been obtained in the domestic investigations to suggest that the applicants’ relatives had been held under State control or that they had been killed.\n\n222.  Lastly, the Government submitted that the mere fact that the investigations had not produced any specific results, or had produced only limited ones, did not mean that they had been ineffective. All necessary steps had been taken to comply with the positive obligation under Article 2 of the Convention.\n\n2.  The applicants\n\n223.  The applicants maintained their complaints, alleging that their relatives had been abducted and deprived of their lives in violation of Article 2 of the Convention. They further argued that the investigations into the incidents had fallen short of the standards set out in the Convention.\n\nB.  The Court’s assessment\n\n1.  Admissibility\n\n224.  The Court notes that these complaints are not manifestly illfounded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.\n\n2.  Merits\n\n225.  It is undisputed by the parties that the whereabouts of the applicants’ relatives have been unaccounted for from the time of their abduction until the lodging of the applications with the Court. The question arises as to whether, as the Government submit, Article 2 of the Convention is applicable to the applicants’ situations.\n\n226.  The Court notes that it has already examined the Government’s objection in similar cases concerning alleged abductions by State agents and dismissed it (see, for example, Sultygov and Others, cited above, §§ 441-42, and Dzhabrailov and Others v. Russia, nos. 8620/09 and 8 others, §§ 31718, 27 February 2014), Accordingly, it finds that Article 2 of the Convention applies and that the Government’s objection in this respect should be rejected.\n\n227.  Based on the above considerations and noting that it has already been found that the applicants’ relatives may be presumed dead following their unacknowledged detention by State agents (see paragraph 217 above), the Court finds, in the absence of any justification put forward by the Government, that the deaths of the applicants’ relatives can be attributed to the State. It concludes that there has been a violation of the substantive aspect of Article 2 of the Convention in respect of Mr Said-Magomed Abdulazimov, Mr Isa Tovdayev, Mr Tapa Tagirov, Mr Apti Tagirov, Mr Musa Tashayev, Mr Sayd-Eli Garbulatov, Mr Magomed Azizov, Mr Khamzat Larsanov and Mr Isa Gaydakov.\n\n228.  The Court considers that the alleged failure of the Government to submit certain documents from the investigation files does not preclude it from examining the effectiveness of the relevant criminal proceedings.\n\n229.  The Court has previously found that the ineffective investigation of disappearances that occurred in Chechnya and Ingushetia between 1999 and 2006 constituted a systemic problem and that criminal investigations were not an effective remedy in this respect (see Aslakhanova and Others, cited above, § 217). In the cases at hand, as in many previous similar cases examined by the Court, the investigations have been pending for many years without bringing about any significant developments as to the identities of the perpetrators or the fate of the applicants’ missing relatives.\n\n230.  The Court observes that each set of criminal proceedings has been plagued by a combination of defects similar to those enumerated in the Aslakhanova and Others judgment (cited above, §§ 123-25). They have been subjected to several decisions to suspend the investigation, followed by periods of inaction, which have further diminished the prospects of elucidating the crimes. No meaningful steps have been taken to identify and question the servicemen who could have witnessed, made a record of, or participated in, the operations at issue.\n\n231.  In the light of the foregoing, the Court finds that the authorities failed to carry out effective criminal investigations into the circumstances of the disappearance of Mr Said-Magomed Abdulazimov, Mr Isa Tovdayev, Mr Tapa Tagirov, Mr Apti Tagirov, Mr Musa Tashayev, Mr Sayd-Eli Garbulatov, Mr Magomed Azizov, Mr Khamzat Larsanov and Mr Isa Gaydakov. There has accordingly been a violation of Article 2 of the Convention under its procedural limb.\n\nV.  ALLEGED VIOLATION OF ARTICLES 3, 5 AND 13 OF THE CONVENTION\n\n232.  The applicants in all applications, except for Dzhamakhadzhiyev v. Russia (no. 31143/11), complained of a violation of Article 3 of the Convention on account of the mental distress caused to them by the disappearance of their relatives.\n\n233.  All of the applicants complained of a violation of Article 5 of the Convention on account of the unlawfulness of their relatives’ detention.\n\n234.  All of the applicants also alleged that they had no domestic remedies by which to complain of the alleged violations under Article 2 of the Convention.\n\n235.  The applicants in Tovdayevy v. Russia (no. 41890/11), Tagirova and Others v. Russia (no. 52056/11), Batalova and Others v. Russia (no. 13920/12) and Azizovy v. Russia (no. 72821/12) additionally complained about the lack of effective domestic remedies in respect of the alleged violations of Articles 3 and 5 of the Convention. The invoked Articles read, in so far as relevant, as follows:\n\n“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”\n\n“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:\n\n2.  Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.\n\n3.  Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.\n\n“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”\n\nA.  The parties’ submissions\n\n236.  The Government contested the applicants’ claims, arguing in particular that the applicants’ mental distress had not reached the minimum level of severity to fall within the scope of Article 3 of the Convention. They also argued that domestic legislation provided the applicants with effective remedies in respect of their complaints.\n\n237.  The applicants reiterated their complaints.\n\nB.  The Court’s assessment\n\n1.  Admissibility\n\n238.  The Court notes that these complaints are not manifestly illfounded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.\n\n2.  Merits\n\n239.  The Court has found on many occasions that a situation of enforced disappearance gives rise to a violation of Article 3 of the Convention in respect of the close relatives of the missing person. The essence of such a violation lies not so much in the fact of the “disappearance” of the family member, but rather in the authorities’ reactions and attitudes to the situation when it is brought to their attention (see Orhan v. Turkey, no. 25656/94, § 358, 18 June 2002, and Imakayeva v. Russia, no. 7615/02, § 164, ECHR 2006XIII (extracts)). Where the news about a missing person’s death has been preceded by a sufficiently long period in which he or she has been deemed to have disappeared, there is a distinct period during which the applicants are left with sustained uncertainty, anguish and distress, these being characteristics of the specific phenomenon of disappearances (see Luluyev and Others v. Russia, no. 69480/01, § 115, ECHR 2006XIII (extracts)).\n\n240.  The Court reiterates its findings regarding the State’s responsibility for the abductions of Mr Said-Magomed Abdulazimov, Mr Isa Tovdayev, Mr Tapa Tagirov, Mr Apti Tagirov, Mr Musa Tashayev, Mr Sayd-Eli Garbulatov, Mr Magomed Azizov, Mr Khamzat Larsanov and Mr Isa Gaydakov, as well as the authorities’ failure to carry out meaningful investigations into the incidents. It finds that the applicants, who are close relatives of the abducted men, must be considered victims of a violation of Article 3 of the Convention on account of the distress and anguish they have suffered, and continue to suffer, as a result of their inability to ascertain the fate of their missing family members and of the manner in which their complaints have been dealt with. The Court therefore finds a violation of Article 3 of the Convention on this count in respect of all applicants, except for Mr Sayd-Khasan Dzhamakhadzhiyev in application no. 31143/11.\n\n241.  The Court has found on many occasions that unacknowledged detention is a complete negation of the guarantees contained in Article 5 of the Convention and discloses a particularly serious violation of its provisions (see Çiçek v. Turkey, no. 25704/94, § 164, 27 February 2001, and Luluyev and Others, cited above, § 122).\n\n242.  Since it has been established that the applicant’s relatives were detained by State agents, apparently without any legal grounds or acknowledgment of such detention (see paragraph 217 above), this constitutes a particularly serious violation of the right to liberty and security enshrined in Article 5 of the Convention. The Court accordingly finds a violation of this provision in respect of the applicants’ relatives on account of their unlawful detention in all applications.\n\n243.  The Court reiterates its findings regarding the general ineffectiveness of the criminal investigations in cases such as the present one. In the absence of any results of a criminal investigation, any other possible remedy becomes inaccessible in practice. The Court accordingly finds that the applicants did not have at their disposal an effective domestic remedy for their complaints under Article 2 of the Convention, in breach of Article 13. In addition, the applicants in Tovdayevy v. Russia (no. 41890/11), Tagirova and Others v. Russia (no. 52056/11), Batalova and Others v. Russia (no. 13920/12) and Azizovy v. Russia (no. 72821/12) did not have an effective domestic remedy for their complaint under Article 3, in breach of Article 13 of the Convention.\n\n244.  The Court further notes that according to its established caselaw, the more specific guarantees of Article 5 §§ 4 and 5 of the Convention, being a lex specialis in relation to Article 13, absorb its requirements. In view of its finding of a violation of Article 5 of the Convention (see paragraph 242 above), the Court considers that no separate issue arises in respect of Article 13 read in conjunction with Article 5 of the Convention in the circumstances of the present case (see Bantayeva and Others v. Russia, no. 20727/04, § 121, 12 February 2009, and Zhebrailova and Others v. Russia, no. 40166/07, § 84, 26 March 2015).\n\nVI.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n245.  Article 41 of the Convention provides as follows:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n1.  Pecuniary damage\n\n246.  The applicants in all applications, except for Dzhamakhadzhiyev v. Russia (no. 31143/11) and Gaydakova v. Russia (no. 6983/13), claimed compensation for loss of financial support from the breadwinners.\n\n247.  The applicants in Metsoyeva and Others v. Russia (no. 40161/12) made their calculations on the basis of the UK Ogden Actuary Tables using domestic subsistence levels and inflation rates. Other applicants based their calculations on the amount of the minimum wage in Russia and its expected growth in future.\n\n248.  The Government left the issue to the Court’s discretion.\n\n2.  Non-pecuniary damage\n\n249.  The amounts claimed by the applicants under that head are indicated in the appended table.\n\n250.  The Government left the issue to the Court’s discretion.\n\nB.  Costs and expenses\n\n251.  The amounts claimed by all applicants are indicated in the appended table. They asked for the awards to be transferred into the bank accounts of their representatives.\n\n252.  The Government argued that in applications Dzhamakhadzhiyev v. Russia (no. 31143/11), Tovdayevy v. Russia (no. 41890/11), Batalova and Others v. Russia (no. 13920/12), Azizovy v. Russia (no. 72821/12), Larsanova v. Russia (no. 3083/13) and Gaydakova v. Russia (no. 6983/13) the compensation sought by the applicants was excessive. In respect of the remainder of the applications, the Government left the matter of the award to the Court’s discretion.\n\nC.  The Court’s assessment\n\n253.  The Court reiterates that there must be a clear causal connection between the damage claimed by the applicants and the violation of the Convention, and that this may, where appropriate, include compensation in respect of loss of earnings. The Court further finds that any loss of earnings applies to close relatives of the disappeared persons, including spouses, elderly parents and minor children (see, among other authorities, Imakayeva, cited above, § 213).\n\n254.  Where the Court finds a violation of the Convention, it may accept that the applicants have suffered non-pecuniary damage which cannot be compensated for solely by the finding of violations, and make a financial award.\n\n255.  As to the costs and expenses, the Court must establish first whether the costs and expenses indicated by the applicants’ representatives were actually incurred and, second, whether they were necessary and reasonable as to quantum (see McCann and Others v. the United Kingdom, 27 September 1995, § 220, Series A no. 324).\n\n256.  Having regard to its conclusions, the principles enumerated above and the parties’ submissions, the Court awards the applicants the amounts set out in the appended table, plus any tax that may be chargeable to them on those amounts. The awards in respect of costs and expenses are to be paid into the representatives’ bank accounts, as indicated by the applicants.\n\nD.  Default interest\n\n257.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\n1.  Decides to join the applications;\n\n2.  Declares the applications admissible;\n\n3.  Holds that there has been a violation of Article 2 of the Convention under its substantive limb in respect of the applicants’ relatives Mr SaidMagomed Abdulazimov, Mr Isa Tovdayev, Mr Tapa Tagirov, Mr Apti Tagirov, Mr Musa Tashayev, Mr Sayd-Eli Garbulatov, Mr Magomed Azizov, Mr Khamzat Larsanov and Mr Isa Gaydakov;\n\n4.  Holds that there has been a violation of Article 2 of the Convention on account of the failure to conduct an effective investigation into the circumstances in which the applicants’ relatives disappeared;\n\n5.  Holds that there has been a violation of Article 3 of the Convention in respect of the applicants, except for the applicant in Dzhamakhadzhiyev v. Russia (no. 31143/11), on account of their relatives’ disappearance and the authorities’ response to their distress;\n\n6.  Holds that there has been a violation of Article 5 of the Convention in respect of the applicants’ relatives on account of their unlawful detention;\n\n7.  Holds that there has been a violation of Article 13 of the Convention in conjunction with Article 2 of the Convention in respect of all applicants;\n\n8.  Holds that there has been a violation of Article 13 of the Convention in conjunction with Article 3 of the Convention in Tovdayevy v. Russia (no. 41890/11), Tagirova and Others v. Russia (no. 52056/11), Batalova and Others v. Russia (no. 13920/12) and Azizovy v. Russia (no. 72821/12);\n\n9.  Holds that no separate issue arises under Article 13 of the Convention in conjunction with Article 5 of the Convention in Tovdayevy v. Russia (no. 41890/11), Tagirova and Others v. Russia (no. 52056/11), Batalova and Others v. Russia (no. 13920/12) or Azizovy v. Russia (no. 72821/12);\n\n10.  Holds\n\n(a)  that the respondent State is to pay the applicants, within three months the amounts indicated in the appended table, plus any tax that may be chargeable to them, to be converted into the currency of the respondent State at the rate applicable at the date of settlement. The awards in respect of costs and expenses are to be paid directly into the representatives’ bank accounts as indicated by the applicants;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n11.  Dismisses the remainder of the applicants’ claim for just satisfaction.\n\nDone in English, and notified in writing on 27 August 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_657","text":"PROCEDURE\n\n1.  The case originated in an application (no. 29660/03) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Mr Vladimir Štitić (“the applicant”), on 1 September 2003.\n\n2.  The applicant, who had been granted legal aid, was represented by Mr D. Plavec, a lawyer practising in . The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik.\n\n3.  The applicant alleged, in particular, that two sets of disciplinary proceedings against him, one conducted in Lepoglava State Prison, and the other in Gospić Prison, had been unfair, that the general conditions in Gospić Prison and the lack of adequate medical care for an injury he had sustained there had amounted to degrading treatment, that his right to respect for his correspondence had been violated and that he lacked an effective remedy in respect of his Article 3 complaints.\n\n4.  On 9 November 2006 the Court declared the application partly inadmissible and decided to communicate the complaints concerning the fairness of the disciplinary proceedings conducted against the applicant in Lepoglava State Prison and in Gospić Prison, the complaint concerning the general conditions in Gospić Prison and the alleged lack of adequate medical care for his injury, and the complaints concerning the applicant's right to respect for his correspondence and the lack of an effective remedy in respect of his Article 3 complaints to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n5.  The applicant was born in 1967 and is presently serving a prison term in Šibenik Prison.\n\n6.  Following a series of criminal convictions for drug abuse, the applicant was sent to serve the sentence in Lepoglava State Prison (Kazneni zavod Lepoglava) on 11 November 2002. On 29 July 2004 he was transferred to Gospić Prison.\n\nA.  Disciplinary proceedings against the applicant\n\n1.  In Lepoglava State Prison\n\n7.  While the applicant was serving a prison term in Lepoglava State Prison, the prison authorities instituted disciplinary proceedings against him on an unspecified date. The hearings were held on 10 and 13 October 2003. Both the applicant and his counsel were present at the hearings. The applicant and four witnesses gave evidence in person. In the Head of the Disciplinary Proceedings' decision of 14 October 2003 it was established that on 19 July 2003 the applicant had held closed the door of cell no. 9 and had thus prevented a member of the prison staff from entering the cell and performing his duties. The applicant's conduct was found to be in breach of section 145 § 3(10) of the Enforcement of Prison Sentences Act (Zakon o izvršavanju kazne zatvora) and he was sentenced to seven days' solitary confinement suspended for three months. The decision was served on the applicant on 17 October 2003 at 2.45 p.m. It was also served on his counsel on an unspecified date. The applicant's counsel lodged an appeal against the decision on Monday, 20 October 2003.\n\n8.  In a decision of 27 October 2003 the Varaždin County Court judge responsible for the execution of sentences declared the appeal inadmissible as being out of time. The judge held that the time-limit for an appeal was forty-eight hours and that the time-limit had expired on 19 October 2003 at 2.45 p.m. despite the fact that this day had been a Sunday. The time-limit could not be extended to the first working day, since it had been fixed in hours.\n\n2.  In Gospić Prison\n\n9.  During his stay in Gospić Prison the prison authorities opened disciplinary proceedings against the applicant. The prison authorities found that on 16 August 2004 the applicant had attempted to smuggle illegal drugs into the prison via a letter sent to him by his girlfriend, which constituted a disciplinary offence under section 145 (3)(11) of the Enforcement of Prison Sentences Act. In his decision of 2 November 2004 the Head of Disciplinary Proceedings imposed on the applicant a disciplinary measure consisting of a restriction on his movement inside the prison and frequent contacts with the outside world for a period of three months, including a ban on receiving postal parcels, starting from 2 November 2004.\n\n10.  In an appeal of 16 November 2004 the applicant, inter alia, alleged that he had not attended the final hearing before the prison disciplinary authorities because his lawyer had not been present. The applicant also alleged that the notes of that hearing had not been served on him. He further stated that his counsel would elaborate on these issues in a separate appeal. On 16 November 2004 counsel lodged a separate appeal whereby he contested the findings of the applicant's guilt and the severity of the disciplinary measure imposed. On 18 November 2004 the  judge responsible for the execution of sentences dismissed the appeal. The decision analysed in some detail the evidence presented in the disciplinary proceedings but made no mention of the procedural defects complained of by the applicant.\n\nB.  The applicant's stay in Gospić Prison\n\n1.  General conditions of the applicant's stay in Gospić Prison\n\n(a)  The applicant's submissions\n\n11.  The applicant submitted that he had firstly been put in cell no. 5 in Unit 1. However, later on he had been moved to Unit 2. He alleged that the room had been very damp, and the mattresses old and torn so that bare wire stuck out. The bed sheets and pillowcases had been dirty and the blankets old and foul smelling. No daylight entered the cell and the electric light had to be switched on all day. He had been locked in his cell for twenty-one hours per day, with no contact with other prisoners or the outside world. He had been allowed two one-hour walks and one hour of exercise in a gym per day, both without the presence of any other prisoner. The rest of the time he had had to spend locked alone in his cell. He had not had regular access to a bathroom or running water and his access to sanitary facilities had been left to the discretion of the prison guards. The heating had been inadequate and the food of low quality. No toiletries had been provided to the applicant and no permanent doctor had been on duty in the prison. Only one doctor (a paediatrician) had come once in a while for an hour at a time.\n\n12.  According to the Government, the main building of the Gospić Prison was built in 1878 and renovated in 1995. It comprised two units. The first (“Unit 1”) consisted of five-bed cells and the other (“Unit 2”) of two-bed cells, each equipped with a toilet. Inmates shared a communal bathroom. Unit 1 had a communal living-room. Disinfection and rat extermination were performed regularly. Inmates' clothes and bed sheets could be washed in the prison laundry every day. The bed sheets were changed once a week.\n\n13.  On 29 July 2004 the applicant had arrived at Gospić Prison. He had been put in Unit 1, under the “semi-open” prison regime until 24 September 2004 when he had been moved to Unit 2, under a higher security regime, to a cell measuring 3.75 x 3.5 metres and sanitary facilities measuring 2 x 1.6 metres, which he had shared with another inmate. In November 2005 he had been moved back to Unit 1 to a cell measuring 7.15 x 3.7 metres with sanitary facilities measuring 1.6 x 1.5 metres, which he had shared with three to four inmates at times. He had stayed there until 17 March 2006 when he had been moved back to Unit 2 due to an incident involving a fight with another inmate. He had stayed there until May 2006 when he had been transferred to Pula Prison. During his stay in Unit 2 the applicant had been locked in his cell save for one hour in the mornings when he had been allowed to go out in the courtyard and for two hours between 8 and 10 p.m. when he had been allowed to watch television, read or play games in a common room. During his stay in Unit 1 the applicant worked for four hours per day.\n\n2.  Medical assistance provided to the applicant\n\n(a)  The applicant's submissions\n\n14.  According to the applicant, on 17 March 2005 he had been injured by another prisoner who had struck him twice on the head. He had been taken to a doctor to whom he had complained of general sickness, dizziness and heavy thirst. However, the doctor had only prescribed painkillers and had not made any further examinations. The applicant had asked that an X-ray examination be carried out at his own expense, but this had been refused. He further alleged that he had a bruise under his left eye.\n\n15.  According to the Government the applicant had been seen by the prison doctor the very same day and the following day. The doctor had prescribed painkillers. Following the applicant's further complaints of backache, he had been taken to the  and seen by a specialist. An X-ray examination had been carried out but no fractures had been identified. The applicant had been prescribed further painkillers to be taken orally and a soothing gel. The Government submitted a copy of the medical report from the  to confirm their submissions.\n\n3.  Remedies used by the applicant\n\n16.  On 14 September 2004 the applicant petitioned the Gospić County Court judge responsible for the execution of sentences, complaining about the prison conditions and also alleging that a postal parcel sent to him by his parents on 30 August 2004, containing three cartons of cigarettes, two magazines on motor cars and one notebook, had never been delivered but had instead been returned to his parents, who had informed the applicant about it.\n\n17.  On 21 September 2004 the judge requested the Gospić Prison authorities to comment on the complaint concerning the alleged non-delivery of the parcel. In his letter to the prison authorities of 24 September 2004, the judge noted that a prison governor was allowed to temporarily prohibit a prisoner from receiving parcels for health and security reasons and that the prisoner in question should be informed about such a decision and the reasons for it. The applicant received a copy of the letter.\n\n18.  The applicant again petitioned the Gospić County Court judge responsible for the execution of sentences on 21 October 2004, repeating his complaints about the prison conditions and further asserting that six to eight letters he had sent to various persons had never been delivered. The judge replied to the applicant's allegations by letter of 8 November 2004 stating that the Gospić Prison authorities had informed him that all his letters had been properly forwarded and instructed the applicant to send future letters via registered mail only. As to the applicant's complaints concerning the prison conditions, the judge expressly stated that he had no jurisdiction to supervise the running of prisons.\n\n19.  Following the incident of 17 March 2006, the applicant was moved back to Unit 2, and the Prison Governor ordered that disciplinary proceedings be instituted against him. On an unspecified date the applicant appealed against that decision, alleging that he had been attacked by another inmate who had struck him twice on the head. The applicant further complained that the medical assistance provided to him had been insufficient since the doctor had only prescribed him painkillers and had not made any further examinations. His request that an X-ray examination be carried out at his own expense had been refused. On 23 March 2006 the  judge responsible for the execution of sentences dismissed the applicant's appeal on the ground that the decision to place the applicant under the “closed prison regime” had been based in law and was a consequence of his conduct, which had endangered the order and security in the prison. No comment was made about the applicant's allegations concerning the lack of adequate medical assistance.\n\n20.  The applicant appealed against the judge's decision on 27 March 2006 to a three-judge panel of the Gospić County Court. In his appeal he complained about the conditions in Unit 2 (see paragraph 11 above). The panel dismissed the applicant's appeal on 28 March 2006 on the ground that the only way to prevent further unacceptable behaviour on his part had been his isolation. They made no remarks concerning the applicant's complaint about the conditions in Unit 2.\n\nII.  RELEVANT DOMESTIC LAW\n\n21.  Article 23 of the Croatian Constitution (Ustav Republike Hrvatske) provides:\n\n“No one shall be subjected to any form of ill-treatment ...”\n\n22.  The Enforcement of Prison Sentences Act (Zakon o izvršavanju kazne zatvora, Official Gazette no. 128/1999 of 30 November 1999, and no. 190/2003 of 3 December 2003 (consolidated text) – “the Act”) came into force on 1 July 2001, whereas the provisions concerning the judge responsible for the execution of sentences came into force six months later, on 1 January 2002. The relevant provisions of the Act read as follows:\n\nCOMPLAINTS\n\nSection 15\n\n“(1) Inmates shall have the right to complain about an act or decision of a prison employee.\n\n(2) Complaints shall be lodged orally or in writing with a prison governor, a judge responsible for the execution of sentences or the Head Office of the Prison Administration. Written complaints addressed to a judge responsible for the execution of sentences or the Head Office of the Prison Administration shall be submitted in an envelope which the prison authorities may not open ...”\n\nJUDICIAL PROTECTION AGAINST ACTS AND DECISIONS OF THE PRISON ADMINISTRATION\n\nSection 17\n\n“(1)  An inmate may lodge a request for judicial protection against any acts or decisions unlawfully denying him, or limiting him in, any of the rights guaranteed by this Act.\n\n(2)  Requests for judicial protection shall be decided by the judge responsible for the execution of sentences.”\n\nPROCEDURE FOR PERSONAL OBJECTS\n\nSection 60\n\n“...\n\n(3) Objects suspected of being connected to a criminal offence shall be forfeited and a record thereof drawn up. These objects shall be handed over to the competent authority. Objects suspected of being designed to facilitate escape from a prison or endangering order and security and objects that may endanger health shall be forfeited, destroyed or handed over to the competent authority. A record of these acts shall be drawn up.”\n\nACCOMODATION, FURNISHINGS AND NUTRITION\n\nSection 74\n\n“(1)  The accommodation of inmates shall meet the required standards in terms of health, hygiene and space, including climatic conditions.\n\n(2)  Inmates shall as a general rule be accommodated in separate rooms ...\n\n(3)  Inmates' rooms shall be clean, dry and of adequate size. Each inmate shall have at least 4 square metres and 10 cubic metres of space in the room.\n\n(4)  Every room ... must have daylight and artificial light ...\n\n(5)  Penitentiaries and prisons must be equipped with sanitary facilities allowing inmates to meet their physiological needs in clean and adequate conditions, whenever they wish to do so.\n\n(6)  Inmates shall have drinking water at their disposal at all times.”\n\nHEALTH CARE\n\nSection 103\n\n“(1) Inmates shall be provided with medical treatment and regular care for their physical and mental health ...”\n\nOBLIGATORY MEDCIAL EXAMINATION\n\nSection 104\n\n“...\n\n(2) A doctor shall examine a sick or injured inmate ... and undertake all measures necessary to prevent or cure the illness and to prevent deterioration of the inmate's health.”\n\nSPECIALIST EXAMINATION\n\nSection 107\n\n“(1) An inmate has the right to seek a specialist examination if such an examination has not been ordered by a prison doctor.\n\n...”\n\nPOSTAL PARCELS\n\nSection 126\n\n“(1) An inmate has the right to receive a postal parcel containing authorised items at least once a month and during public holidays.\n\n(2) The sender shall enclose a list of contents with the parcel.\n\n(3) The parcel shall be opened and examined by a prison official in the presence of the inmate concerned.\n\n(4) Unauthorised, stale and dangerous items shall be treated in the manner prescribed by section 60 (3) of this Act.\n\n(5) The Prison Governor may temporarily ban reception of parcels for reasons of health or safety, of which the inmate concerned shall be informed. The inmate has the right of appeal to a judge responsible for the execution of sentences. The appeal does not have suspensive effect.”\n\nDISCIPLINARY OFFENCES, MEASURES AND PROCEEDINGS\n\nSection 145\n\n“...\n\n(2) Minor disciplinary offences are:\n\n...\n\n10) preventing an official or any other person involved in the implementation of the programme of execution [of prison sentences] from performing their duties;\n\n...\n\n(3) Grave disciplinary offences are:\n\n...\n\n11) possession or intake of any narcotic or psychoactive substance;\n\n...”\n\nDISCIPLINARY MEASURES\n\nSection 146\n\n“(1) Disciplinary offences are punishable with disciplinary measures.\n\n(3) Disciplinary measures are:\n\n1) an admonition;\n\n2) restriction or prohibition on using money inside the prison for up to three months;\n\n3) restriction or temporary deprivation of some or all privileges enumerated in sections 129 and 130 of this Act;\n\n5) solitary confinement for up to twenty-one days during free time or during night and day;\n\n...”\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION\n\n23.  The applicant complained about the general conditions in the Gospić Prison and alleged that the prison authorities had failed to secure him adequate medical care after he had sustained injuries to his head caused by another inmate on 17 March 2006. He relied on Article 3 of the Convention, which reads as follows:\n\n“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”\n\n24.  The Government contested that argument.\n\nA.  Admissibility\n\n25.  The Government requested the Court to declare these complaints inadmissible for failure to exhaust domestic remedies. They submitted that the 1999 Enforcement of Prison Sentences Act envisages a number of remedies for the protection of the rights of persons deprived of liberty, judicial protection against proceedings and decisions of the prison administration included. The applicant should have firstly addressed his complaints to the prison administration. Those complaints should have been clearly specified. The applicant had, however, addressed them directly to a judge responsible for the execution of sentences. The judge instructed the applicant to firstly make his complaints to the prison administration. Furthermore, assuming that the applicant's letter to the judge responsible for the execution of sentences and the judge's letter in reply might be regarded as first-instance proceedings, the applicant could have lodged an appeal with a three-judge panel of the competent County Court. Finally, the applicant could have filed a constitutional complaint in respect of the prison conditions and all the other decisions taken in any of the disciplinary proceedings against him.\n\n26.  The applicant submitted that he had exhausted all remedies available within the domestic legal system in respect of the alleged violations.\n\n27.  As to the remedies available to the applicant under the Enforcement of Prison Sentences Act, the Court notes that section 5 (2) of that Act clearly provides that complaints shall be lodged orally or in writing with a prison governor, a judge responsible for the execution of sentences or the Head Office of the Prison Administration of the Ministry of Justice. It follows that the applicant could have addressed his complaints to any of these authorities. In fact, he chose to address his complaints to a judge responsible for the execution of sentences. In the Court's view this choice was in conformity with the domestic legislation. However, the judge did not institute any proceedings upon the applicant's complaint nor did he issue a decision upon it. Instead, he replied to the applicant by letters, the first of 24 September 2004 and the second of 8 November 2004. As to the Government's contention that the applicant could have lodged an appeal against the decision of the judge responsible for the execution of sentences, the Court notes that the latter did not issue any decision and that it is not possible to lodge an appeal against a letter.\n\n28.  As to the possibility of lodging a constitutional complaint about the conditions in prison, the Court observes that the rule of exhaustion of domestic remedies contained in Article 35 § 1 of the Convention requires that normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and practice at the relevant time, that is to say, that it was accessible, was capable of providing redress in respect of the applicant's complaints and offered reasonable prospects of success (see, among other authorities, Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, pp. 1210-11, §§ 65 and 68).\n\n29.  Turning to the present case, the Court observes that the established practice of the  is to declare inadmissible constitutional complaints which do not concern the merits of a given case. Having regard to such a practice and the failure of the Government to produce before the Court any case-law supporting their argument concerning the sufficiency and effectiveness of that remedy, and leaving aside the question of the adequacy of a constitutional complaint as a remedy capable of providing redress in respect of the applicant's complaint, the Court concludes that a constitutional complaint about the prison conditions is not a remedy whose existence has been established with sufficient certainty.\n\n30.  The Court finds that the applicant, by complaining to the competent judge responsible for the execution of sentences, made adequate use of the remedies provided for in the domestic law that were at his disposal in respect of his complaints concerning the inadequate prison conditions and the lack of adequate medical assistance. Accordingly, these complaints cannot be dismissed for failure to exhaust domestic remedies.\n\n31.  The Court notes that theses complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.\n\nB.  Merits\n\nA.  The parties' submissions\n\n32.  The Government submitted that each cell in Gospić Prison had a toilet and each section had a communal bathroom. Therefore, the applicant's allegation that he had been accommodated in a cell without a toilet was unfounded. The bed sheets had been changed once a week. In the Government's opinion that was sufficient and the applicant's allegations about the dirty sheets were therefore also unfounded. As to the food provided, the applicant's complaint was of a general nature and unsubstantiated. The Government asserted that the food was prepared according to a normal diet. A representative of prisoners was included in drawing up the menu. There had been no complaints from other inmates about the food quality and therefore the applicant's complaint in that connection was also unfounded. As regards toiletries, the Government acknowledged that these had not been provided to the applicant. However, during his stay in Unit 1 of Gospić Prison he had worked and received some income, and therefore had been able to purchase the necessary toiletries. As to the applicant's general complaints about the lack of adequate medical care in prison, the Government submitted that a doctor had been on call every day. As to the applicant's specific allegations that he had not received adequate medical assistance for his injury, the Government emphasised that the medical records submitted showed that the applicant had been seen by a doctor on the same day and adequate treatment had been prescribed. The doctor had seen the applicant again the very next day and three days after the incident the applicant had been sent to a hospital to be examined by a specialist. On that occasion an X-ray examination had also been carried out and it had showed no fractures.\n\n33.  The applicant maintained his allegations. He claimed that his description of the conditions of detention and lack of medical assistance was accurate (see paragraphs 11, and 14 above).\n\nB.  The Court's assessment\n\n(a)  Scope of the issues for consideration\n\n34.  The Court notes that the applicant's complaints under Article 3 of the Convention mainly concern two issues:\n\n-  first, whether the conditions of the applicant's detention were compatible with that provision; and\n\n-  second, whether the applicant was given adequate medical care for the injury sustained on 17 March 2006.\n\n(b)  General principles enshrined in the case-law\n\n35.  As the Court has held on many occasions, Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim's behaviour (see Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV).\n\n36.  The Court further reiterates that, according to its case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim. Furthermore, in considering whether a treatment is “degrading” within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3 (see Peers v. Greece, no. 28524/95, §§ 67-68, 74, ECHR 2001-III, and Valašinas v. Lithuania, no. 44558/98, § 101, ECHR 2001-VIII).\n\n37.  The Court has consistently stressed that the suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. Measures depriving a person of his liberty may often involve such an element. Under this provision the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured by, among other things, providing him with the requisite medical assistance (see Kudła v. Poland [GC], no. 30210/96, §§ 92-94, ECHR 2000-XI, and McGlinchey and Others v. the , no. 50390/99, § 46, ECHR 2003V).\n\n(c)  Application in the present case\n\n38.  The Court notes that in the present case the parties have disputed the actual conditions of the applicant's detention in Gospić Prison. However, in the present case the Court does not consider it necessary to establish the truthfulness of each and every allegation of the parties, because it may find a violation of Article 3 on the basis of the facts that have been presented or undisputed by the respondent Government, for the following reasons.\n\n39.  The Court notes that it transpires from the Government's observations that in a period of about fifteen months (from 29 September 2004 until November 2005 and again from March to May 2006) the applicant was held in Unit 2 of Gospić Prison where he had been locked in a cell with another inmate save for one hour in the morning, when he had been allowed to go outside, and two hours in the evening, when he had been allowed to watch television, read or play games. Furthermore, the Government did not dispute the applicant's allegations that the cell had been very damp, the mattresses old and torn so that bare wire stuck out, the heating inadequate and the cell devoid of natural light. It is also undisputed that the applicant received no toiletries.\n\n40.  The Court does not find it necessary to examine further the conditions of the applicant's detention as the above considerations are sufficient to find a violation of Article 3 of the Convention.\n\n41.  The Court accepts that in the present case there is no indication that there was a positive intention of humiliating or debasing the applicant. However, although the question whether the purpose of the treatment was to humiliate or debase the victim is a factor to be taken into account, the absence of any such purpose cannot exclude a finding of violation of Article 3 (see Peers, cited above, § 74, and Romanov v. , no. 63993/00, § 80, 20 October 2005). The Court considers that the above described conditions of detention in which the applicant was held for about fifteen months, must have had a harmful effect on the applicant's human dignity. In the light of the above, the Court finds that the applicant's conditions of detention, in particular the fact that he had been locked in a damp cell with no access to natural light for about twenty hours per day must have had a detrimental effect on the applicant's well-being and that these conditions, combined with the length of the period during which the applicant was detained in such conditions, amounted to degrading treatment.\n\n42.  Accordingly, there has been a violation of Article 3 of the Convention concerning the applicant's detention in Unit 2 of Gospić Prison.\n\n43.  The Court notes at the outset that it is undisputed that the applicant was injured on 17 March 2005. The parties disagree, however, over whether the medical assistance provided to the applicant following the injury was adequate and sufficient. The Court observes that the medical records submitted show that on the very same day the applicant saw a prison doctor and complained of dizziness and a headache. The doctor prescribed painkillers. The same doctor saw the applicant again the next day. On 20 March 2005 the applicant was taken to the  since he complained of backache. An X-ray examination was carried out and it showed no fractures. The applicant was prescribed further painkillers and a soothing gel.\n\n44.  In the Court's view the medical assistance provided to the applicant was adequate and sufficient. In this respect the Court points out in particular that the applicant complained that he had requested an X-ray examination, which had been denied to him. However, the medical records clearly show that an X-ray examination was carried out. Since no fractures were identified the treatment was confined to painkillers, which appears adequate, particularly bearing in mind the fact that the applicant made no further complaints about his health.\n\n45.  The foregoing considerations are sufficient to enable the Court to conclude that there has been no violation of Article 3 of the Convention concerning the medical assistance provided to the applicant for the injury sustained on 17 March 2005.\n\nII.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION\n\n46.  The applicant made two separate complaints concerning two different sets of disciplinary proceedings against him. The applicant firstly complained about the fairness of the disciplinary proceedings conducted against him in Lepoglava State Prison. He alleged in particular that the time-limit for an appeal against the prison authorities' decision imposing disciplinary sanctions on him, being forty-eight hours only, had been too short, and further that the Varaždin County Court judge responsible for the execution of sentences had erred in his reasoning that a time-limit fixed in hours and expiring on a Sunday did not have to be extended until the first working day. The applicant also complained that in the disciplinary proceedings conducted against him by the Gospić Prison authorities for the alleged possession of illegal drugs, he had not attended the final hearing because his defence lawyer had not been present. The notes on the hearing had not been served on him. The applicant complained that although he had raised the same issues in his appeal against the prison authorities' decision of 2 November 2004 imposing a disciplinary sanction on him, the Gospić County Court judge's decision of 18 November 2004 had not made any reference to these complaints.\n\nThe applicant relied on Article 6 § 1 of the Convention, the relevant parts of which read as follows:\n\nArticle 6 § 1\n\n“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”\n\n47.  The Government argued that under domestic law the proceedings in question undoubtedly fell within the scope of disciplinary matters. The disciplinary offences enumerated in section 145 of the Enforcement of Prison Sentences Act were a mixture of illegal acts that might amount to violations of the prison disciplinary rules and also those that might amount to criminal offences. As regards the sanctions prescribed, they were purely disciplinary in nature. In conclusion, they submitted that Article 6 was not applicable to the disciplinary proceedings conducted against the applicant.\n\n48.  In the alternative and as regards the proceedings conducted in connection with the offence committed during the applicant's stay in Lepoglava State Prison, they maintained that the applicant had not shown that either he or his counsel had attempted to lodge an appeal on a Sunday. The applicant had been in Lepoglava State Prison, where he could have handed his appeal to a member of the prison staff at any time. Under domestic law this would have sufficed to comply with the prescribed time-limit.\n\n49.  As regards the proceedings conducted against the applicant on charges of possession of drugs in Gospić Prison, the Government contended that the decisions taken in those proceedings had been adequately and sufficiently reasoned. They further stressed that in his appeal the applicant had only briefly mentioned that he had not been present at the final hearing and stated that his counsel would elaborate on this issue in a separate appeal. However, counsel had not done so.\n\n50.  The applicant made no submissions on the applicability of Article 6 but reiterated his initial complaints as regards the fairness of both sets of disciplinary proceedings against him.\n\n51.  The Court firstly has to examine the issue of applicability of Article 6 to both sets of proceedings. The Court reiterates that under its constant case-law Article 6 of the Convention does not apply in principle to disciplinary proceedings, unless, having regard to the autonomy of the concept \"criminal charge\", a disciplinary offence belongs to the criminal sphere (see Engel and Others v. the Netherlands, judgment of 8 June 1976, Series A no. 22, pp. 33-35, § 80-82; Campbell and Fell v. the United Kingdom, judgment of 28 June 1984, Series A no. 80, pp. 34-38, §§ 66- 73; and Ezeh and Connors v. the United Kingdom [GC], nos. 39665/98 and 40086/98, § 82, ECHR 2003-X).\n\n52.  In order to determine whether Article 6 § 1 is applicable under its \"criminal\" head, the Court has to have regard to the three alternative criteria laid down in its case-law, namely the legal classification of the offence under domestic law, the nature of the offence and the nature and degree of severity of the penalty (see Campbell and Fell, cited above, pp. 34 et seq., §§ 67 et seq.).\n\n53.  In the first-mentioned respect it is clear that, in Croatian law, the offences with which the applicant was charged both in Lepoglava State Prison and in Gospić Prison belong to disciplinary law.\n\n54.  In respect of the Lepoglava State Prison proceedings, the Court notes that Section 145 (2)(10) of the Enforcement of Prison Sentences Act states that conduct of that kind on the part of a prisoner is a minor disciplinary offence. The Court finds that this offence was disciplinary in nature, given that it involved a violation of rules governing the operation of the prison.\n\n55.  As to the penalty imposed the Court notes that the applicant was punished with seven days' solitary confinement, which punishment was to be implemented only if the applicant committed another disciplinary offence within three months.\n\n56.  The Court recalls that in the Engel and Others judgment (cited above, p. 35, § 82), it stated that deprivation of liberty liable to be imposed as a punishment was, in general, a penalty that belonged to the \"criminal\" sphere. However, in the present case the legal basis for the applicant's deprivation of liberty was his original conviction for criminal offences. Although the disciplinary sanction added a new element – imposition of seven days' solitary confinement – it did not in any way extend the applicant's prison term. Furthermore, the seriousness of the sanction was lessened by its conditional character. Therefore, the Court considers that the penalty imposed was not of such nature and severity that the matter would thereby have been brought within the “criminal” sphere.\n\n57.  In respect of the proceedings conducted against the applicant in Gospić Prison the Court notes that the applicant was charged with attempting to introduce illegal drugs into the prison via a letter sent to him by his girlfriend.\n\n58.  As to the nature of the offence, it is firstly to be noted that the offence with which the applicant was charged belongs to disciplinary law: section 145 (3)(11) of the Enforcement of Prison Sentences Act states that conduct of that kind on the part of a prisoner is a grave disciplinary offence. However, according to the Court's case law, the indications so afforded by the national law have only relative value; the very nature of the offence is a factor of greater importance (see Campbell and Fell, cited above, p. 36, § 71).\n\n59.  The Court's case law affirms that it has to be borne in mind that misconduct by a prisoner may take different forms; certain acts are clearly no more than a question of internal discipline, whereas others cannot be seen in the same light. Firstly, some matters may be more serious than others. Secondly, the illegality of some acts may not turn on the fact that they were committed in prison: certain conduct which constitutes a disciplinary offence may also amount to an offence under the criminal law. In the circumstance of the present case, it corresponds to a crime of drug abuse under Article 173 of the Croatian Penal Code which comprises also mere possession of the illegal drugs.\n\n60.  However, the fact that the offence in question could have been the subject of both criminal and prison disciplinary proceedings does not suffice for the Court to conclude that Article 6 is applicable to these proceedings. In this respect the Court notes that the national authorities did not institute any criminal proceedings against the applicant, but opted for disciplinary proceedings. Therefore, it is necessary to turn to the third criterion: the nature and degree of severity of the penalty that the applicant risked incurring (see Engel and Others, cited above, pp. 34-35, § 82).\n\n61.  The Court notes that the sanction imposed restricted the applicant's free movement inside the prison and his contact with the outside world for a period of three months. In this respect the Court notes that at the core of maintaining an adequate prison regime lies the need to impose disciplinary sanctions for breaches of prison discipline. The Court stresses the importance of preserving an effective system of order and control in prison. The sanction imposed on the applicant for a very serious breach of prison discipline did not extend the applicant's prison term (see, a contrario, Ezeh and Connors v. the  [GC], nos. 39665/98 and 40086/98, ECHR 2003X), nor did it seriously aggravate the terms of the applicant's prison conditions. It restricted the applicant's freedoms in prison for a limited period of time. In the Court's view, this sanction stayed entirely within the “disciplinary” sphere.\n\n62.  Therefore, the Court concludes that the penalty imposed was not of such nature and severity that the matter would thereby have been brought within the “criminal” sphere. Accordingly, Article 6 of the Convention does not apply in the instant case.\n\n63.  It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention and therefore must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.\n\nIII.  ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION\n\n64.  The applicant further made two complaints concerning his right to respect for his correspondence. He firstly complained of the fact that a postal parcel sent to him to Gospić Prison on 30 August 2004 by his parents had never been delivered. Secondly, he complained that some six to eight letters sent by him from the prison had never been forwarded to the addressees. He relied on Article 8 of the Convention, the relevant parts of which read as follows:\n\nArticle 8\n\n“1.  Everyone has the right to respect for his ... correspondence.\n\n2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”\n\n65.  The Government contested these arguments.\n\n(a)  Postal parcel sent to the applicant by his parents\n\n1.  Admissibility\n\n66.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\n2.  Merits\n\n67.  The Government contended that the ban on receiving postal parcels for a period of three months had been imposed by the prison authorities as a disciplinary measure against the applicant for a grave breach of the prison rules (smuggling of illegal drugs) and that there is no indication that such an interference with the applicant's right to respect for his correspondence had been disproportionate to the legitimate aim pursued.\n\n68.  The Court observes that on 2 November 2004 the applicant was punished with a minor disciplinary reprimand – restriction of movement inside the prison and contact with the outside world for three months, which included the deprivation of the right to receive parcels for the following three months (see paragraph 9 above). The reason for that punishment, as confirmed by the Gospić County Court, was the fact that the applicant had attempted to smuggle illegal drugs into the prison in breach of section 145 (3)(11) of the Enforcement of Prison Sentences Act. The Court finds that this punishment constituted an interference with the applicant's right to respect for his correspondence, within the meaning of Article 8 § 1 of the Convention.\n\n69.  The Court reiterates that any “interference by a public authority” with the right to respect for correspondence will contravene Article 8 of the Convention unless it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2 of that Article and is “necessary in a democratic society” in order to achieve them (see, among many other authorities, the following judgments: Silver and Others v. the United Kingdom, 25 March 1983, Series A no. 61, p. 32, § 84; Campbell v. the United Kingdom, 25 March 1992, Series A no. 233, p. 16, § 34; Niedbała v. Poland, no. 27915/95, § 78, 4 July 2000;and Klyakhin v. , no. 46082/99, § 107, 30 November 2004).\n\n70.  The Court must first consider whether the interference was “in accordance with the law”. This expression requires firstly that the impugned measure should have some basis in domestic law; it also refers to the quality of the law in question, requiring that it should be accessible to the person concerned, who must moreover be able to foresee its consequences for him, and be compatible with the rule of law (see Kruslin v. France, judgment of 24 April 1990, Series A no. 176A, p. 20, § 27; Huvig v. France, Series A no. 176-B, p. 52, § 26; and Dankevich v. , no. 40679/98, § 152, 29 April 2003).\n\n71.  The Court notes that the Enforcement of Prison Sentences Act clearly provides that possession of drugs represents a grave disciplinary offence and that disciplinary offences are punishable, inter alia, with forfeiture of the right to receive parcels for a period of up to three months. An inmate punished with any of the disciplinary sanctions is able to lodge a complaint with a judge responsible for the execution of sentences and to appeal the judge's decision. The Act was published in the Official Gazette. Therefore, the Court is satisfied that the domestic law at issue in the present case was drafted with sufficient clarity and precision so as to satisfy the requirement of being foreseeable, and was furthermore accessible and appealable to a court. The interference was thus compatible with the “lawfulness” requirement in the second paragraph of Article 8. It is further observed that the interference pursued the legitimate aim of the prevention of disorder and crime.\n\n72.  As to the necessity of the interference, the Court considers that the ordinary and reasonable requirements of imprisonment justify a system of imposing disciplinary measures on inmates who breach the prison rules. With that aim in mind, a measure imposing certain restrictions of the prisoner's right to respect for his or her correspondence may be called for and may not of itself be incompatible with the Convention (see Silver and Others v. the United Kingdom, Series A no. 61, judgment of 25 March 1983, p. 38, § 98, and, a contrario, Jankauskas v. Lithuania, no. 59304/00, judgment of 24 February 2005, §§ 21-22).\n\n73.  As to the present case the Court notes firstly that the measure in question was applied in connection with finding the applicant guilty of a very serious disciplinary offence, also amounting to criminal activity (possession of illegal drugs) and that it lasted for a limited period of time (three months). The Court notes, secondly, that the applicant's complaints received a judicial review by the  (see paragraph 10 above). Thirdly, the applicant has failed to present any argument calling into question the proportionality of the measure imposed. Fourthly, the penalty imposed on the applicant was of a minor nature. In the specific circumstances of the present case, the Court considers that the authorities did not overstep their margin of appreciation in the present case, and that the interference was proportionate and necessary in a democratic society.\n\n74.  There has thus been no breach of Article 8.\n\n(b)  Alleged failure of the prison authorities to forward the applicant's letters to the addressees\n\n75.  The Government submitted that all letters handed by the applicant to the prison authorities had been duly forwarded to a post office. They further emphasised that the applicant had failed to produce any details of the facts complained of.\n\n76.  The Court notes that the applicant failed to specify when and if the letters had been handed to the prison authorities and to whom they had been addressed. He also failed to provide any information on how he had learned that the letters had not reached the addressees. In these circumstances the Court considers that the alleged interference has not been established with sufficient certainty.\n\n77.  It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.\n\nIV.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION\n\n78.  The applicant also complained that he had no effective remedy at his disposal in respect of his complaint concerning the prison conditions under Article 3 of the Convention, contrary to Article 13 of the Convention which reads as follows:\n\n“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”\n\nA.  Admissibility\n\n79.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n80.  The Government argued that under national law a number of remedies provided for in the Enforcement of Prison Sentences Act were available to persons deprived of liberty, such as filing a petition with a prison administration, a judge responsible for the execution of sentences or the Head Office of the Prison Administration. Furthermore, the applicant could have lodged a constitutional complaint.\n\n81.  The Court notes that under domestic legislation the applicant was able to lodge a complaint concerning the conditions in prison and the lack of adequate medical assistance and a complaint concerning the lack of respect for his right to correspondence either with the prison authorities, a judge responsible for the execution of sentences or the Head Office of the Prison Administration, and that the applicant actually made use of one of these possibilities, namely, he lodged a complaint with the competent judge responsible for the execution of sentences at the Gospić County Court.\n\n82.  The Court recalls that in its partial decision on admissibility in respect of the present case (see Štitić v. Croatia (dec.), no. 9660/03, 9 November 2006), it established that the applicant, whose situation in Lepoglava State Prison had been remedied by a decision of the Varaždin County Court (Županijski sud u Varaždinu) judge responsible for execution of sentences and who, following such a decision, had been transferred to an adequate cell, could have brought a civil action against the State claiming damages for the suffering hitherto sustained. Whilst the institution of civil proceedings for damages in itself could not be regarded as an effective remedy for addressing adverse prison conditions, such proceedings in combination with an urgent decision of a judge responsible for execution of sentences, with an immediate effect on the actual conditions of an individual applicant, did satisfy the requirements of effectiveness.\n\n83.  However, as regards the applicant's complaints lodged on 14 September and 21 October 2004 with the Gospić County Court judge responsible for the execution of sentences about the general conditions in Gospić Prison (see §§ 16 and 18 above), the Court notes that in his letter of 8 November 2004 the judge expressly stated that he had no jurisdiction to supervise the running of prisons (see § 18 above).\n\n84.  The Court reiterates that the effect of Article 13 is to require the provision of a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they comply with their obligations under this provision (see Chahal v. the United Kingdom, judgment of 15 November 1996, Reports 1996-V, pp. 1869-70, § 145). The remedy required by Article 13 must be “effective”, both in practice and in law. However, such a remedy is required only for complaints that can be regarded as “arguable” under the Convention (see Metropolitan Church of Bessarabia and Others v. Moldova, no. 45701/99, § 137, ECHR 2001-XII).\n\n85.  In the instant case, in view of the conclusion under Article 3 (see § 31 above), the Court considers that the applicant's complaint did raise an issue of compliance with the Convention standards on the conditions in which the applicant was held in Unit 2 of Gospić Prison. The applicant could therefore have expected the Gospić County Court judge responsible for the execution of sentences to deal with the substance of his complaint and adopt a formal decision in this respect, which the judge did not. Instead, he declined his jurisdiction in the matter.\n\n86.  Whilst it is true that the fact that a remedy does not lead to an outcome favourable to the applicant does not render a remedy ineffective (see Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000-XI), the Court concludes that the practice of the Gospić County Court judge responsible for the execution of sentences in the circumstances of the present case rendered an otherwise effective remedy ineffective. This conclusion does not, however, call into question the effectiveness of the remedy as such or the obligation of an incarcerated person to petition a competent judge responsible for the execution of sentences pursuant to sections 15 and 17 of the Enforcement of Prison Sentences Act in order to exhaust domestic remedies concerning complains about the conditions of imprisonment.\n\n87.  However, having regard to the circumstances of the present case, it follows that there has been a violation of Article 13 of the Convention in the present case.\n\nIV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n88.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\n89.  The applicant did not submit a claim for just satisfaction or for any costs and expenses incurred. Accordingly, the Court considers that there is no call to award him any sum on that account.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Declares the complaints concerning the conditions of the applicant's detention in Gospić Prison and the alleged lack of adequate medical assistance for his injury as well as the complaints concerning the violation of the applicants right to respect for his correspondence in the part referring to the ban on receiving postal parcels for a period of three months and the lack of an effective remedy in respect of the complaint concerning the prison conditions admissible and the remainder of the application inadmissible;\n\n2.  Holds that there has been a violation of Article 3 of the Convention on account of the conditions of the applicant's detention in Unit 2 of Gospić Prison;\n\n3.  Holds that there has been no violation of Article 3 of the Convention on account of the alleged lack of adequate medical assistance for the applicant's injury;\n\n4.  Holds that there has been no violation of Article 8 of the Convention;\n\n5.  Holds that there has been a violation of Article 13 of the Convention;\n\nDone in English, and notified in writing on 8 November 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_492","text":"PROCEDURE\n\nl. The König case was referred to the Court by the Government of the Federal Republic of Germany (hereinafter called \"the Government\") and by the European Commission of Human Rights (hereinafter called \"the Commission\").  The case originated in an application against the Federal Republic of Germany lodged with the Commission on 3 July 1973 under Article 25 (art. 25) of the Convention for the protection of Human Rights and Fundamental Freedoms (hereinafter called \"the Convention\") by a German citizen, Dr. Eberhard König.\n\n2. Both the Government's application, which referred to Article 48 (art. 48) of the Convention, and the Commission's request, which relied on Articles 44 and 48, paragraph (a) (art. 44, art. 48-a), and to which was attached the report provided for in Article 31 (art. 31) were lodged with the registry of the Court within the period of three months laid down in Articles 32 para. 1 and 47 (art. 32-1, art. 47) - the former on 28 February 1977, the latter on 14 March 1977.  The purpose of the application and the request is to obtain a decision from the Court as to whether or not the facts of the case disclose a breach by the respondent State of its obligations under Article 6 para. 1 (art. 6-1) of the Convention.\n\n3. On 23 March, the President of the Court drew by lot, in the presence of the Deputy Registrar, the names of five of the seven judges called upon to sit as members of the Chamber; Mr. H. Mosler, the elected judge of German nationality, and Mr. G. Balladore Pallieri, the President of the Court, were ex officio members under Article 43 (art. 43) of the Convention and Rule 21 para. 3 (b) of the Rules of Court respectively.  The five judges thus designated were Mr. Zekia, Mrs. H. Pedersen, Mrs. D. Bindschedler-Robert, Mr. D. Evrigenis and Mr. G. Lagergren (Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).\n\nMr. Balladore Pallieri assumed the office of President of the Chamber in accordance with Rule 21 para. 5.\n\n4. The President of the Chamber ascertained, through the Registrar, the views of the Agent of the Government and the delegates of the Commission regarding the procedure to be followed.  By an Order of 24 March the President decided that the Government should file a memorial within a time-limit expiring on 15 June 1977 and that the delegates of the Commission should be entitled to file a memorial in reply within two months of receipt of the Government's memorial.\n\n5. At a meeting held in private on 23 April in , the Chamber decided under Rule 48 to relinquish jurisdiction forthwith in favour of the plenary Court, on the ground \"that the case raise[d] serious questions affecting the interpretation of the Convention ...\".\n\n6. By an Order of 6 July, the President of the Court extended until 15 July the time allowed to the Government for the filing of their memorial.  The said memorial was received at the registry on 18 July.\n\n7. On 2 August and 5 September, the Government submitted certain other documents; the Government had given notice of the production of the majority of these documents in their memorial of 18 July.\n\n8. On 20 September, the Secretary to the Commission advised the Registrar that the delegates had elected not to file a memorial in reply to the Government's memorial.\n\n9. After consulting, through the Registrar, the Agent of the Government and the delegates of the Commission, the President directed by an Order of the same date that the oral hearings should open on 16 November.\n\n10. At a meeting held in private on 29 September in Luxembourg, the Court decided that, if the Government so requested, their agents and counsel would be authorised to address the Court in German at the oral hearings, the Government undertaking inter alia responsibility for the interpretation into French or English of their pleadings and statements (Rule 27 para. 2).\n\nThe Government in fact presented such a request on 4 October.\n\n11. On 9 November, the Government communicated certain information to the Court and filed another document.\n\n12. Immediately prior to the opening of the hearings, on 16 November, the Court held a preparatory meeting.\n\n13. The oral hearings took place in public at the , , on 16 and 17 November.\n\nThere appeared before the Court:\n\n- for the Government:\n\n- for the Commission:\n\nThe Court heard addresses by Mrs. Maier for the Government and by Mr. Fawcett, Mr. Sperduti, Mr. Frowein and Mr. Burger for the Commission, as well as their replies to questions put by the Court.\n\n14. Several documents that the Court had requested from those appearing at the hearings were supplied on 17 November 1977 by the Commission and on 16 January 1978 by the Government.\n\nOn 6 March and 8 May, the Government communicated certain supplementary information and some further documents to the Court.\n\nAS TO THE FACTS\n\n15. The applicant, a German national born in 1918, had taken up practice as an ear, nose and throat specialist in 1949.  In 1960, he opened at  (Hessen) in the Federal Republic of Germany a clinic of which he was the owner; he was the only medical practitioner working at the clinic which he ran and managed himself and where he performed, in particular, plastic surgery.\n\n16. On 16 October 1962, proceedings against Dr. König for unprofessional conduct were instituted by the Regional Medical Society (Landesärztekammer) before the Tribunal for the Medical Profession (Berufsgericht für Heilberufe) attached to the  (Verwaltungsgericht) and he was declared unfit to practise on 9 July 1964.  The Regional Tribunal for the Medical Profession (Landesberufsgericht für Heilberufe) attached to the Hessenadministrative Court of Appeal (Verwaltungsgerichtshof) rejected Dr. König's appeal on 14 October 1970.\n\nThe accusations against the applicant upheld by the Regional Tribunal including the following: having offered a beauty specialist 20 % of his fees and one of his patients DM 100 for each client they introduced to him; having persuaded a patient to have treatment not covered by social security by assurances that he would in that case be able to use more effective methods; having refused to make out for one of his clients an account corresponding to the fee actually paid; having, as an ear, nose and throat specialist, performed an operation not falling within the field in which he specialised; having had a beauty specialist assist him during operations; having widely-publicised his practice in the daily and weekly press; having used on his name-plates, notepaper and prescription forms wording contrary to the rules of the medical profession.\n\n17. In 1967, the applicant had his authorisation to run his clinic withdrawn and then, in 1971, his authorisation to practise.  Criminal proceedings were taken against him in 1972 for, inter alia, the illegal practice of medicine.\n\nActions brought by Dr. König to challenge both of these withdrawals have been in progress before the competent administrative courts since November 1967 and October 1971, respectively.\n\n18. The applicant complains of the length of the proceedings taken by him against the withdrawals of the authorisations; he makes no complaint about either the disciplinary proceedings before the professional tribunals or the criminal proceedings.\n\n1. The medical profession in the  of\n\n19. In the Federal Republic of Germany, the medical profession is governed partly by Federal law and partly by the law of the Länder. The principal rules relevant for the present case are to be found, in particular, in the Federal Medical Practitioners' Act (Bundesärzteordnung - hereinafter referred to as \"the Federal Act\") in the version of 4 February 1970 as last amended on 2 March 1974 and 26 March 1975, the Regulations of 28 October 1970 on the grant of the authorisation to practise medicine (Approbationsordnung für Ärzte - hereinafter referred to as \"the Regulations\") and the Hessen Act on the Professional Bodies and Tribunals for Medical Practitioners, Dentists, Veterinary Surgeons and Pharmacists (Gesetz über die Berufsvertretungen und über die Berufsgerichtbarkeit der Ärzte, Zahnärzte, Tierärzte and Apotheker - hereinafter referred to as \"the Hessen Act\") in the version of 18 April 1966.\n\n20. According to paragraph 1 of Article 1 of the Federal Act, the medical practitioner shall have the care of the health of each individual and of the community as a whole.  Under paragraph 2, he exercises a liberal profession and not a trade or business.\n\nIn order to be able to practise on a permanent basis, an authorisation issued by the appropriate services of the Länder is required. (Articles 2 para. 1 and 12 of the Federal Act and Article 35 of the Regulations).  This authorisation is granted on request if the person concerned:\n\n\"1. is German ... or is a stateless alien ...,\n\n2. has not been guilty of behaviour showing that he is unfit or unreliable to exercise the profession ...,\n\n3. is not incapable of, or unsuited for, the exercise of the ... profession on account of an infirmity, of some weakness in his mental or physical faculties, or of an addiction (Sucht),\n\n4. after studying medicine for a minimum of six years, including a minimum of eight months' and maximum of twelve months' practical training in a hospital, has passed the medical examination in a place where this Act is applicable.\n\n...\" (Article 3 para. 1 of the Federal Act).\n\nIf the application is granted, the person concerned receives a document (Approbationsurkunde) certifying that the statutory conditions are satisfied and adding:\n\n\"With effect from today's date, he (she) is granted authorisation to exercise the medical profession ....  Such grant authorises the doctor to practise medicine\" (Article 36 of the Regulations and Appendix 21 thereto).\n\nIf, on the other hand, the authorisation has to be refused for nonfulfilment of one of the conditions, the applicant or his representative must first be given a hearing (Article 3 para. 4 of the Federal Act.)\n\nAn authorisation that has been issued must be withdrawn if one of those conditions either was not satisfied at the time of the grant or ceases to be met afterwards (Article 5 of the Federal Act).\n\n21. Anyone wishing to run a clinic must have an authorisation pursuant to the Trade and Business Act (Gewerbeordnung) and is entitled thereto if he fulfils the conditions stipulated by Article 30 para. 1 of the Act (see paragraph 27 below).\n\nSince the management of a clinic is classified as a trade or business, the person running it does not have to be a doctor himself.  However, he is required to take all necessary staffing and organisational measures to ensure the treatment of patients in his institution. He must, therefore, employ one or more doctors responsible for the care of his clients.\n\nThe authorisation is withdrawn if it transpires either that the documents supporting the application were incorrect or that the requisite conditions were never, or have ceased to be, satisfied (Article 53 of the same Act; paragraph 27 below).\n\n22. It is not disputed that, according to German law, the right to be authorised to practise medicine and the right to be authorised to run a private clinic are rights conferred on the individual by public law and protected by Article 12 of the Basic Law which guarantees freedom to exercise a profession.  Again, exercise of the medical profession, unlike the running of a private clinic, is not considered in the  to be a trade or business (see paragraph 20 above); although it also has the purpose of providing an income, its primary aim is disinterested, namely, rendering assistance to mankind.\n\nMedical treatment is a matter for a private-law contract between doctor and patient.  Such a contract serves to guarantee the free choice of a medical adviser, maintain a relationship of trust between him and his patient and uphold professional secrecy.  However, the contract does not establish a well-defined set of rights and obligations since it imposes on the doctor a duty to provide basically unlimited services to anyone seeking treatment.  Moreover, the rules on the medical profession forbid its members to advertise and even regulate in detail the size and content of their name-plates.\n\nAgain, medical practitioners cannot fix their fees at will but must comply with the Regulations even when not practising as national health doctors.  Minimum and maximum fees for medical services are specified by Federal Government decrees, taking into account the legitimate interests of practitioners and of the persons or organisations having to pay them (Article 11 of the Federal Act).\n\nThose affiliated to the social security health insurance funds – about 80 % of the population - are entitled to medical treatment according to the terms of the legislation and agreements in force.  The majority of medical practitioners are approved national health doctors and obliged to treat members of the insurance funds.  The  (Bundesverfassungsgericht) has held that such practitioners are not administering a public service but fulfilling a public-law duty and, by their enrolment, are integrated within a system of public law. (Collected Decisions of the Constitutional Court, Vol. 11, pp 30 et seq.).\n\n23. Medical practitioners carry out their duties under the control, inter alia, of their societies and of the professional tribunals, these institutions being governed by Länder Law.\n\n24. Articles 1 and 2 para. 1 of the Hessen Act provide that regional medical societies are public-law associations to which all doctors practising in the Land belong.  Practitioners who fail to register with the competent society or to fulfil their other obligations under its statutes may be fined (Article 7 of the Hessen Act.)\n\nArticle 4 para. 1 of the Hessen Act gives the following definition of each society's functions:\n\n\"1. supervision of the discharge of (its) members' professional duties ...,\n\n2. promotion of the further training of society members,\n\n3. promotion of harmonious relations among society members and settlement of any disputes, arising in the exercise of the profession, between members or between them and third persons, without prejudice to the jurisdiction of other authorities,\n\n4. assisting the official health service in the performance of its functions, ...\"\n\nThe authorities and the societies must assist each other in the fulfilment of their respective functions (Article 5 of the Hessen Act).\n\nThe societies are under State supervision which extends to observance of the laws and statutes.  The competent Minister may quash any decision contravening these texts (Article 16 of the Hessen Act) and may at any time request information from the societies concerning their affairs (Article 17 para. 1).\n\n25. If the council of the society suspects a practitioner of unprofessional conduct, it refers the matter to the Tribunal for the Medical Profession (Articles 18 and 29 para. 3 of the Hessen Act). Under Article 20 para. 1, the decision at first instance is given by that Tribunal which is attached to the  for the locality and has three members, namely the President, or his representative, and two assessors belonging to the defendant's professional group (Article 21 para. 1).\n\nAn appeal against the Tribunal's decision may be made to the Regional Tribunal for the Medical Profession attached to the Hessen Administrative Court of Appeal (Articles 41 and 20 para. 2); the appellate tribunal is composed of five members, namely the President, or his representative, two other judges of the Administrative Court of Appeal and two assessors belonging to the defendant's professional group (Article 21 para. 2).\n\nThe professional tribunals may impose the following penalties, the second, third and fourth of which may be combined: warning, reprimand, temporary suspension of the right to vote in society proceedings, fine up to DM 10,000 and finding that the individual is unfit to exercise the profession (Article 19 paras. 1 and 3).\n\nThe authorisation to practise is not automatically revoked as the result of the last-mentioned finding.  Although its ultimate purpose is the individual's exclusion from the profession, it binds neither the Regierungspräsident, who alone has power to withdraw the authorisation, nor any courts which may be called upon to examine the lawfulness of such a withdrawal.\n\n26. Decisions by the Regierungspräsident withdrawing either an authorisation to practise or an authorisation to run a private clinic may be challenged before the administrative courts.  However, before the person concerned can bring the matter before the courts, he must first have filed - unsuccessfully - an objection (Widerspruch) with the Regierungspräsident.\n\n2. The withdrawal of the authorisation to run the clinic – proceedings before the 4th Chamber of the\n\n27.  On 12 April 1967, at the request of the Regional Medical Society, the Regierungspräsident in Wiesbaden withdrew the applicant's authorisation to run his clinic, claiming that he could not be relied on to conduct the institution properly and lacked the diligence and knowledge required for its technical and administrative management. The Regierungspräsident adverted to an inspection of the clinic which had revealed, in November 1965, numerous irregularities: out of thirty-four medical records, eighteen were not maintained correctly; the training of the staff was insufficient for the work entrusted to them; the equipment in the treatment room left something to be desired; the instruments, some of which were beginning to rust, were in part badly kept; the X-ray machinery lacked safety devices. Inspectors were said to have found in January 1967 that, amongst other things, the operating theatre and its equipment had not been cleaned. The Regierungspräsident relied also on evidence given by several people to the effect that, between 1962 and October 1966, the clinic had in fact been managed by a young employee who was aged eighteen in 1962 and was unqualified.  She supervised the staff and took care of the patients and had allegedly confirmed that dog-food was kept in the refrigerator at the clinic and that the applicant allowed men to be present in the rooms outside visiting hours.  According to her, Dr. König also made advances to her and one of her colleagues on several occasions.\n\nThe decision of the Regierungspräsident was based on the following provisions of the Trade and Business Act:\n\nArticle 30 para. 1\n\n\"A person running a private clinic, maternity home or mental hospital requires an authorisation from the higher administrative authority. The authorisation may be refused only:\n\n...\"\n\nArticle 53 para. 2\n\n\"The licences ... mentioned in [Article] 30 ... may be withdrawn ... only:\n\n1. ...\n\n2. if it subsequently appears that the person running the institution does not possess the qualifications required for the grant of the licence ... or that the premises or technical equipment of the institution no longer satisfy the requirements for the grant of the authorisation.\n\n...\"\n\n28. On 13 July 1967, the applicant filed an objection which was rejected by the Regierungspräsident on 6 October.  Dr. König then appealed, on 9 November, to the , the case being assigned on the following day of its 4th Chamber which is competent to hear disputes relating to the law on trade and business activities.\n\nThese appeals had the effect of suspending enforcement of the decision complained of.\n\n29. As early as 10 November, the court asked the Regierungspräsident for his observations; it received them on 8 February 1968, after extending the time granted and sending a reminder.\n\nThe Regierungspräsident was requested on 27 March to supply further information and he submitted a written pleading on 30 May.  He indicated therein that the applicant was to undergo a psychiatric examination whose results would be forwarded to the court later. The court asked the Regierungspräsident about this on 10 June, 25 July and 9 August; he supplemented his earlier observations but told the court on 10 January 1969 that the applicant had not agreed to be so examined.\n\nOn 16 January, the court asked the Regierungspräsident to clarify a point in his pleading; this clarification was received by the court on 2 April.\n\n30. In the meantime and until January 1969, the court had tried to obtain from, notably, the Regierungspräsident (10 June 1968) and the competent local authorities (10 October), the addresses of several persons who might be called as witnesses.\n\nThe court also endeavoured, as from 8 January 1969, to procure files on the applicant, including those of the professional tribunals (see paragraph 16 above).\n\nOn 26 August 1969, the court decided to hear sixteen witnesses at sittings fixed for 25 and 26 November.  For this purpose, it tried, for example on 11 and 18 September, to obtain the addresses of witnesses and requested the production of other files concerning Dr. König.\n\nOn 27 November, the court fixed 2 December as the date for the oral hearing (mündliche Verhandlung) and for the continuation of the taking of evidence from the witnesses, including a certain Mr. Xymenes who had made serious accusations against Dr. König before the Regional Medical Society.\n\nThe court sat on 2, 8 and 12 December.  It imposed fines (Ordnungsstrafen) of DM 100 and DM 500 on Mr. Xymenes for failing to appear.\n\nOn 3 February 1970, the court decided not to hear the appeals (Beschwerden) made by Mr. Xymenes against these penalties on 30 December 1969 and 2 January 1970 and to transmit the file to the Hessen Administrative Court of Appeal.  On 17 February, the latter court invited those concerned to present their observations and it set aside the two fines on 9 and 10 March.\n\n31. On 17 April 1970, the file was returned to the  which, on 14 May, informed the parties of the state of the proceedings.  It asked them to indicate as soon as possible what evidence they proposed to put forward, pointing out that several persons had offered to make statements on the medical treatment given to them by the applicant.  The court also stated that, as far as it was concerned, the hearings could be resumed at the end of June or the beginning of July since the lay judges would be available then.\n\nOn 29 May, Dr. König indicated that he would abstain from nominating further witnesses if the Regierungspräsident did likewise.  However, on 8 June, the latter named a certain number of additional witnesses and, on 6 July, he filed with the court a pleading dealing with the evidence taken so far.\n\nThis pleading was sent by the court on 13 July to the applicant for his comments; on 24 September, he requested in writing that seventy-six witnesses be heard should the court decide to hear those mentioned by the Regierungspräsident.\n\nThere followed a further exchange of pleadings.\n\n32. On 25 February 1971, the Regierungspräsident informed the court that Mr. Xymenes was detained in prison at Constance and could accordingly be served with a summons to appear.\n\nAfter advising the applicant, the court wrote on 14 April to the competent authorities in Constance to enquire whether Mr. Xymenes was being held in the prison and, if so, for how long.  The prison replied on 27 April that the witness had been released.\n\n33. On 29 April 1971, the judge acting as rapporteur directed that the file be sent back to the President of the Chamber to enable him to fix the date of the hearing, but this instruction was not carried out, probably due to a mistake on the part of the registry.\n\nOn 24 May, Mr. Schmidt-Leichner of Frankfurt announced that he was no longer acting as Dr. König's lawyer.\n\n34. The applicant, who on 26 August 1971 had asked the court to fix the date for the hearing without delay, was told on 2 September that the file would be submitted to the President of the Chamber immediately he returned from holiday.  An order of the court set 5 September as the date for such submission.\n\nOn 20 October, Messrs. Bossi, Breme and Ufer of Munich told the court that they were now acting for Dr. König.\n\nFollowing receipt of a letter from the Frankfurt Regional Employment Tribunal (Landesarbeitsgericht), the file was returned to the judge acting as rapporteur on 21 October.\n\n35. On 29 November 1971 and 12 January 1972, the court attempted yet again, but without success, to contact Mr. Xymenes to discover whether he would be able to give evidence in January/February or in February/March 1972.\n\nOn 21 February, the court fixed 28 March as the date for a hearing to which it summoned Mr. Xymenes.  He did not appear and on 29 March was fined DM 500 by the court which also ordered him to attend a further hearing due to be held on 31 May.\n\nRelying on a medical certificate, Mr. Xymenes on 8 April lodged an objection against this penalty but the court dismissed the objection and sent the file to the Hessen Administrative Court of Appeal. On 26 April, the latter court asked the witness's doctor to supply further details about the said certificate: it received them on 2 May and set the fine aside on 18 May.\n\nThe file was returned on 29 May to the  which on the same day cancelled the hearing fixed for 31 May, on the ground that the presence of Mr. Xymenes could not be secured.\n\nPursuant to an order of 7 June 1972, there was a further hearing on 11 July.  Once again, Mr. Xymenes did not appear.\n\nOn 13 July, the Court fined him DM 500.  On 10 August, it directed that the taking of evidence would continue on 19 September.  On 22 August, it issued a subpoena against Mr. Xymenes who gave evidence on 19 September.\n\n36. At the conclusion of this last sitting, the court granted the parties the faculty of submitting, by 15 October, their written observations on the result of the examination of witnesses. Dr. König took advantage of this on 13 October.\n\nOn 14 November, other lawyers informed the court that they had been instructed by the applicant and requested it to await their written pleading.  This document, which arrived on 12 February 1973, commented on the evidence already obtained, repeated the earlier applications for evidence to be taken and made new applications therefore.  On the same day, Mr. Demme announced that he was Dr. König's new lawyer. The court transmitted the pleading to the Regierungspräsident on 22 February.\n\nIn the meantime, on 30 January, the court had requested Dr. König to produce his records on two of his former patients.  Having received only photocopies of the documents in question, the court renewed its request on 22 February and tried to trace a further witness.\n\n37. On 30 March 1973, the court supplemented its order of 26 August 1969 (see paragraph 30 above) and fixed 17 April as the date for the continuation of the taking of evidence and for the oral hearing.  At the close of its sitting on 17 April, it indicated that it would give a decision on 8 May.\n\nHowever, after trying to obtain witnesses' addresses and taking cognisance, on 18 April, of another written pleading from the applicant, the court on 2 May adjourned sine die the date for delivery of its decision; at the same time and also subsequently, it requested Dr. König to supply further information, which was received on 14 May and 9 July.  Between these dates, the court also had researches made for the addresses of several witnesses.\n\nThe parties supplemented their pleadings on 26 and 30 July 1973.\n\n38. On 16 August 1973, the court decided that there should be a second additional enquiry and, in particular, the hearing of five new witnesses.  On the next day, it sent the file to the Bad Kissingen District Court (Amtsgericht) for it to hear one of those witnesses; on 20 August, it directed that the three others should be heard on 21 September but, on 22 August, postponed this to 5 October at Dr. König's request.  When the file came back from Bad Kissingen, the court on 19 September asked the Altena District Court to hear another witness.\n\n39. Previously, on 22 August, the applicant had filed with the Hessen Minister of Justice a disciplinary complaint (Dienstaufsichtsbeschwerde) in which he also declared that he challenged \"the \".  For this reason, on 3 October, the court cancelled the hearing due to take place two days later.\n\nOn 4 October, the 3rd Chamber of the , which appeared to have jurisdiction in the matter, asked Dr. König to specify which of the judges he was challenging, pointing out that it was not possible to challenge all the members of a Chamber.\n\nThe applicant replied on 19 October that his claim was limited to the judge of the 4th Chamber acting as rapporteur and that he objected to certain wording used by the latter in the letters rogatory sent on 19 September to the Altena District Court.\n\nOn the same day, Mr. Schilling, acting on behalf of Dr. König, complained about the length of the proceedings to the .  The  was invited on 31 October to present its observations and it did so on 9 November, transmitting the file to the  on 15 November. The latter, by a decision of 28 November, refused to hear the complaint on the ground that it did not offer sufficient prospects of success.\n\nFollowing the return of the file on 10 December, the  on 8 January 1974 upheld the challenge against the judge acting as rapporteur.\n\n40. The file was then transmitted by the  to the Hessen Minister of Justice to enable him to give a decision on the disciplinary complaint; he received the file on 14 January 1974 and returned it on 8 March.  On 22 March, the court sent the file to the  public prosecutor's department (Staatsanwaltschaft) as requested by it and by the President of the  (Landgericht) of the same town, who needed it in order to examine another disciplinary complaint by Dr. König.\n\n41. On 26 April 1974, the applicant asked the  not to hear a witness who it was contemplated should be summoned. This request was repeated on 28 May but rejected on 6 June by the court which decided to hold a hearing on 30 July.\n\nOnly some of the witnesses appeared on that day.  One was heard at home on 14 August and another gave evidence in writing.\n\nOn 14 August, the file was sent to the Hessen Minister of Justice for the purposes of the proceedings instituted by Dr. König on 3 July 1973 before the Commission.  On this occasion, the President of the 4th Chamber made known his observations on the outcome of the court's enquiry; he was of the opinion that the partly contradictory statements of the witnesses did not allow a firm conclusion to be drawn on the applicant's activities as manager of the clinic; accordingly, the question arose whether his conduct as a medical practitioner also had to be taken into account; however, it was not for the 4th Chamber to rule on the complaints against Dr. König in this last-mentioned capacity since they were the object of proceedings pending before the 2nd Chamber.\n\n42. On 25 August, the applicant submitted observations on the statements made by one witness and applied for seven further witnesses to be heard.  A copy of this pleading, which the court had requested from him on 28 August, was sent on 5 September to the Regierungspräsident who replied on 7 October.\n\nThe Hessen Minister of Justice returned the file to the  on 28 October.\n\n43. The court had previously been advised that in July the applicant had entrusted his case to another lawyer, Mr. Unruh.  The latter returned the brief on 26 November and his successor Mr. Heldmann, who had given notice on 18 October 1974 that he was acting for Dr. König, did likewise on 21 February 1975.\n\n44. On 10 February 1975, the President of the 4th Chamber had a meeting with the applicant who stated that he had let the clinic premises for use as an old people's home and would re-open the clinic - in association with a surgeon - only after being authorised to practise again.  Furthermore, he agreed that priority be given to the proceedings, pending before the 2nd Chamber, concerning the exercise by him of his profession.\n\n45. The file was sent on 5 May to the Hessen Minister of Justice for the purpose of the Commission proceedings.  It was returned to the court on 26 June and then communicated on 4 July to Dr. König's new lawyer, Mr. Cartus of , who on 16 April had indicated that he had been instructed.  The Court had allowed him two weeks to consult the file and, on 11 July, extended this period to 8 August.\n\nHowever, on 18 July, Dr. König informed the court that he had withdrawn Mr. Cartus' instructions and requested that he be asked to return the file which Dr. König wished to study himself.  The court communicated on 21 July with the lawyer who returned the file on 29 July.\n\nOn 1, 4 and 11 August, the applicant and his new lawyer, Mr. Mattern, who acted for him from 22 July to 14 August, requested the court to send them certain documents, including verbatim records of evidence, two of which were despatched to them on 18 August.\n\nFrom 11 to 23 September, the file was with Mr. Unruh who, since 11 September, had once again been entrusted with Dr. König's case.\n\n46. On 6 November 1975, there was added to the file a second challenge lodged by the applicant with the Hessen Minister of Justice on 10 October (see also paragraph 67 below).\n\nOn 2 December, the President of the Chamber wrote to Dr. König to enquire whether his intention was to challenge the members of the Chamber on the ground of bias and, if so, which members.\n\nAs regards the duration of the proceedings, the President remarked:\n\n\"I wish to point out that we have repeatedly talked about the expediency of continuing the proceedings concerning the authorisation to run a clinic and pending before the 4th Chamber.  On those occasions you agreed with me that it was necessary first of all to await the conclusion of the proceedings relative to the authorisation to practise medicine because they had to be regarded as having priority. You also mentioned that you would not re-open your clinic before that date although in law you would be entitled to do so.  Should you have changed your mind, please let me know.\"\n\nDr. König's lawyer replied on 8 December that the claim related primarily to the President of the 2nd Chamber and the manner in which the last hearing before that Chamber had been conducted.  He requested the court not to decide, for the time being, whether his client was challenging the 4th Chamber.\n\nOn the subject of the duration of the proceedings, the lawyer declared:\n\n\"The question of the conclusion of the proceedings concerning the authorisation to practise medicine has at present priority because in those proceedings immediate enforcement of the administrative decision has been ordered.  It is known that there is no order for immediate enforcement of the decision to withdraw the authorisation to run the clinic; consequently, as regards the last two sentences in your letter of 2 December 1975, there is at present no need for the 4th Chamber of the Frankfurt-on-Main Administrative Court to give an early decision.\"\n\nThe applicant withdrew Mr. Unruh's instructions on 25 April 1976.\n\n47. The proceedings before the 4th Chamber accordingly remained suspended and were resumed only after the 2nd Chamber had delivered judgment on 9 June 1976.\n\nHearings, which originally had been arranged for 17 May 1977 and were then postponed at the applicant's request, took place in June.\n\nOn 22 June 1977, the 4th Chamber dismissed the applicant's appeal against the withdrawal of the authorisation to run his clinic. Its judgment was based on the evidence taken during the hearing of seventeen witnesses between November 1969 and August 1974.\n\nDr. König appealed to the Hessen Administrative Court of Appeal where the case is still pending before the Chamber (Senat) which, on 2 May 1978, ruled on his appeal against the judgment of the 2nd Chamber of the  (see paragraph 69 below).\n\nAnother lawyer, Mr. Hofferbert of Frankfurt, is representing the applicant before the Administrative Court of Appeal.\n\n48. According to statistics supplied by the Government, purely by way of indication, concerning the action before the 4th Chamber, 1,149 days of the proceedings are attributable to measures taken by the court, 1,725 to measures taken by the applicant and his lawyers and 555 to measures taken by third parties, including the defendant administrative authorities, the professional bodies and the witnesses.\n\n3. The withdrawal of the authorisation to practise medicine - proceedings before the 2nd Chamber of the\n\n49. On 12 May 1971, the Regierungspräsident in  withdrew the applicant's authorisation to practise medicine and directed that this decision should have immediate effect (Article 80 para. 2, sub-paragraph no. 4, of the Code of Administrative Procedure - Verwaltungsgerichtsordnung). On the basis of the findings made by the professional tribunals in 1964 and 1970 (see paragraph 16 above), the Regierungspräsident considered that Dr. König had behaved in a manner which disclosed his professional unfitness and his failure to meet medical ethical standards.  The Regierungspräsident was acting in pursuance of the following provisions of the Federal Act:\n\nArticle 5 para. 2\n\n\"The authorisation to practise medicine shall be withdrawn if one of the requirements of Article 3 para. 1, first sentence, sub-paragraph no. 2, ceases to be satisfied.\"\n\nArticle 3 para. 1\n\n\"The authorisation to practise medicine shall be granted on request provided the applicant:\n\n1. ...\n\n2. has not been guilty of behaviour showing that he is unfit or unreliable to exercise the profession ...\"\n\n50. On 1 June 1971, at the request of the applicant and in order to allow him to refer his patients to other practitioners, the  restored the suspensive effect of the objection against the decision of the Regierungspräsident, but only until 30 June.  The appeal lodged by Dr. König against this ruling was dismissed by the Hessen Administrative Court of Appeal on 6 July.\n\n51. After the Regierungspräsident had rejected on 17 September 1971 the objection filed by the applicant on 18 May against the withdrawal decision, the latter appealed to the  on 20 October 1971.  For reasons of jurisdiction, this court on 25 October referred the case to the  where it was assigned to the 2nd Chamber which is responsible, inter alia, for questions relating to the law on the medical profession.\n\n52. On 2 November 1971, the  notified the Regierungspräsident of the appeal, requesting his comments and production of the files kept by his services.\n\nThe written pleading of the Regierungspräsident was filed on 24 January 1972 and communicated to the applicant's lawyer two days later.  After being asked by the court on 24 April whether he intended to submit a reply, the lawyer made an application for the time-limit to be extended until the end of May.\n\nThe reply in question was filed on 26 June and sent to the Regierungspräsident for comment.  Following the receipt on 11 July of a voluminous supplementary pleading from the applicant's lawyer, the Regierungspräsident on 27 July sought an extension until mid-October of the time-limit expiring on 30 July; on 11 August, the court gave leave for the expiry date to be deferred, but only until 15 September.\n\n53. On 5 September 1972, the court ordered that the Regional Medical Society be joined (Beiladung) to the proceedings.  On 14 September 1972, after requesting the parties and the Regional Medical Society to furnish certain explanations and after calling for the production of certain criminal files, the court proposed a friendly settlement of the case.  The suggestion was that Dr. König would cease to practise as a self-employed physician and to run his clinic, whilst the Regierungspräsident would restore his authorisation to exercise his profession subject to certain conditions.  The applicant rejected this proposal on 12 October.  The court advised the Regierungspräsident of this four days later, reminding him at the same time about the submission of his comments.\n\n54. Those comments were received by the court on 16 January 1973; a written pleading from the Regional Medical Society was filed on 16 February.\n\nDr. König had changed lawyers on 12 February (see paragraph 36 above). His new adviser, Mr. Demme, inspected the court's file, returning it on 14 March; on 2 May, he also returned the files of the administrative authorities which the court had at his request sent to him on 20 March.  On 7 May, he submitted a written pleading which the court communicated for comment to the Regierungspräsident and the Regional Medical Society.\n\n55. On 5 May and 6 August 1973, the court asked the Frankfurt District Court and public prosecutor's department for information as to the state of criminal proceedings instituted against the applicant on 27 July 1972 (see paragraph 71 below).\n\nOn 9 August, the public prosecutor's department advised the court that, following a hearing held in the meantime, those proceedings had been stayed because further witnesses and experts were to be summoned.\n\n56. On 14 September 1973, the President of the Administrative Court of Appeal sent a copy of the disciplinary complaint of 22 August to the 2nd Chamber which Dr. König had mentioned when challenging \"the Frankfurt Administrative Court\" (see paragraph 39 above).\n\nThe file was passed to the 3rd Chamber for it to rule on the challenge.  Together with the file were communicated declarations made by the members of the 2nd Chamber; in particular, the judge acting as rapporteur indicated that the 2nd Chamber wished to await the result of the criminal proceedings in view of their importance for the question at issue before it.\n\nOn 8 October, the 3rd Chamber rejected the challenge on the ground that the applicant had failed to show prima facie the existence of justificatory reasons.  As soon as this decision had become final, the file was returned, on 26 October, to the 2nd Chamber.\n\n57. The court had decided on 25 September 1973 to suspend its proceedings to await the outcome of the criminal proceedings instituted against the applicant (see paragraph 71 below) as it considered that the latter proceedings were of importance for the action pending before it (Article 94 of the Code of Administrative Procedure).\n\n58. On 19 October 1973, Dr. König had complained to the Constitutional Court of the length of the proceedings pending before the 2nd and 4th Chambers (see paragraph 39 above).  Having been requested by the  on 31 October to submit his observations, the President of the 2nd Chamber replied on 6 November that the Chamber proposed to defer its judgment until the close of the criminal proceedings.\n\nThe  decided on 28 November not to allow the appeal.  It observed, inter alia, that, in refusing to fix a date for the hearing as long as it did not know the result of the criminal proceedings, the 2nd Chamber had - up to that time – properly exercised its discretion in the matter.  The nine volumes of the case file had been forwarded to the  on 19 November; they were sent back to the  on 10 December.\n\n59. On 16 February 1974, the Frankfurt District Court informed the 2nd Chamber that, in the criminal proceedings, detailed expert opinions still had to be obtained and that the trial would not take place before the second half of the year.\n\nOn 26 March, the 2nd Chamber asked the District Court to confirm that the applicant remained charged, inter alia, with having continued to practise notwithstanding the withdrawal of the necessary authorisation.\n\n60. On a further application by Dr. König, the Constitutional Court on 11 April 1974 asked the 2nd Chamber for a supplementary report on the state of the proceedings and, in view of their duration, for an indication whether he could not be granted some concessions as regards the immediate enforcement of the withdrawal.\n\nThe President of the 2nd Chamber replied on the same day.  She emphasised that any modification of the decision not to stay such immediate enforcement would endanger the health of the applicant's patients if the accusations against him proved to be founded. The Chamber did not consider that it could take this risk. Furthermore, judicial experience in no way bore out the opinion that the accusation that Dr. König had continued to perform operations could be verified more swiftly by the Chamber than by the District Court, but with the same degree of reliability.\n\nOn 30 May, the  decided not to hear the complaint on the ground that it did not offer sufficient prospects of success. The  received a copy of this decision on 6 June.\n\n61. Previously, on 25 April 1974, the latter court had informed the applicant that it maintained its decision to await the outcome of the criminal proceedings.\n\nOn 8 May, the District Court had confirmed to the 2nd Chamber (see paragraph 59 above) that Dr. König remained charged with having continued to practise after the withdrawal of his authorisation; it had added that a decision within the next six months was hardly likely since the applicant had challenged one of the judges and extensive appellate proceedings were in progress.\n\n62. On 11 July 1974, Dr. König, pleading the length of the proceedings, requested the  to restore the suspensive effect of his appeal against the withdrawal decision.\n\nHowever, the file was sent to the Hessen Minister of Justice who had asked for it on 29 July for the purposes of the Commission proceedings; it was returned to the court on 24 October after the Government's observations on admissibility had been filed in .\n\nBetween 11 July and 24 October, the applicant had changed his advisers twice (see paragraph 43 above); until 16 December the file was retained for consultation by Mr. Heldmann, the second of the lawyers so appointed.\n\n63. On 3 January 1975, the 2nd Chamber rejected the request of 11 July 1974.  Dr. König, who had withdrawn instructions from his lawyer (see paragraph 43 above), at once appealed in person to the Hessen Administrative Court of Appeal but it dismissed the application on 4 November.  The court, relying on the statements made by witnesses during the proceedings before the 2nd Chamber, took the view that, if the applicant were authorised to practise, he might endanger any clients who consulted him.  Dr. König had previously attacked the decision of the 2nd Chamber before the  which, on account of non-exhaustion of remedies, had declined to hear his application.\n\n64. After the return of the file to the Administrative Court on 26 June 1975, the President of the 2nd Chamber and the judge acting as rapporteur agreed on 30 June, in order to expedite matters, not to wait any longer for the result of the criminal proceedings or of the action before the Administrative Court of Appeal.  They contemplated holding hearings on 3 September.\n\nThe judge acting as rapporteur made, also on 30 June, enquiries of the District Court about the state of those criminal proceedings.\n\nOn 10 July 1975, the  decided not to hear a further complaint filed on Dr. König's behalf by Mr. von Stackelberg and objecting, inter alia, to the dilatory nature of the proceedings. It considered, amongst other things, that the special features of the case, from both a factual and a legal point of view, and the applicant's unfitness to practise, which had been conclusively found by the Regional Tribunal for the Medical Profession, justified the 2nd Chamber's awaiting the decision in the criminal proceedings and maintaining the immediate effect of the withdrawal of the authorisation.  The court added that, furthermore, nothing prevented Dr. König from seeking, principally on the ground of the length of the proceedings, restoration of the suspensive effect of the appeal against the said withdrawal.\n\n65. On 14 July 1975, the 2nd Chamber decided that on 2 and 3 September there would be a sitting devoted to the hearing of evidence and of argument.  The parties were informed of this decision two days later.\n\nOn 28 and 31 July, the Chamber had researches made for the addresses of some witnesses.  On 14 August, it was advised that Mr Mattern, the lawyer instructed by Dr. König on 22 July (see paragraph 45 above), was no longer acting for him.  Six days later, the applicant filed a pleading, the Regierungspräsident having submitted one on 14 August.\n\n66. The hearing did take place on 2 and 3 September 1975.  After hearing six witnesses, the court directed that there should be a further sitting on 12 November, but it cancelled this on 14 October as the file was with the Hessen Administrative Court of Appeal which had to rule on the appeal of 3 January (see paragraph 63 above).\n\n67. Dr. König, in a letter of 10 October received on 13 October by the Hessen Ministry of Justice, had sought the transfer to another court of the actions pending before the 2nd and 4th Chambers whose judges, he alleged, could \"no longer be described as impartial\".\n\nThe letter was sent on 16 October by the Minister to the  and was put before the 2nd and 4th Chambers on 6 November (see also paragraph 46 above).\n\nOn 13 November, the President of the 2nd Chamber wrote to the applicant to enquire whether a formal challenge was being made; the lawyer, Mr. Unruh, who from 11 September 1975 to 25 April 1976 once again acted for Dr. König (see paragraphs 45 and 46 above), replied on 6 December that his client was challenging the President herself. He also asked to be allowed to consult the file; this was held at his disposal at the registry until 13 January 1976 but he did not go to collect it there.\n\nOn the last-mentioned date, the file was sent to the Hessen Ministry of Justice for the purposes of the proceedings pending before the Commission.  It came back on 17 February to the court which, on 5 March, rejected the challenge.\n\n68. On 15 April 1976, the 2nd Chamber decided that it would hear further witnesses on 12 May.\n\nOn 28 April, it refused an adjournment requested on 24 April by Dr. König's lawyer and emphasised that his client had insisted on the urgency of a decision.\n\nHaving been told by the applicant on the following day that there would be hearings in the criminal case on 12 May, the Chamber agreed on 6 May to postpone its own sitting until 9 June.\n\nOn 1 June, the applicant sought a further adjournment, maintaining that on 9 June he had to prepare for the hearings which were to resume in the criminal court on the next day.  The 2nd Chamber, having found that he had had sufficient time for preparation, refused the request on 9 June.\n\n69. On 9 June 1976, after hearing witnesses, the court dismissed Dr. König's appeal against the withdrawal of his authorisation to practise medicine.  Its judgment was based on the statements of eight persons heard by it in 1975, most of whom had already given evidence about the same facts before the 4th Chamber, and was communicated on 3 August to the applicant, whose lawyer lodged an appeal on 11 August.\n\nOn 13 August, the court sent the file to the Hessen Administrative Court of Appeal which, by judgment of 2 May 1978, dismissed the appeal; this judgment has not yet become final.\n\n70. According to statistics supplied by the Government, purely by way of indication, concerning the action before the 2nd Chamber, 569 days of the proceedings are attributable to measures taken by the court, 841 to measures taken by the applicant and his lawyers and 311 to measures taken by third parties, including the defendant administrative authorities, the professional bodies and the witnesses.\n\n4. The criminal proceedings against the applicant\n\n71. The criminal proceedings against the applicant are not in issue but should be mentioned because of their effect on the action before the 2nd Chamber of the Frankfurt Administrative Court which had postponed its decision pending their outcome (see paragraphs 55-61 and 64 above).\n\nThe criminal proceedings originated in a complaint against Dr. König relative to the illegal practice of medicine, causing bodily harm and committing fraud, which the Regierungspräsident in Darmstadt had lodged on 27 July 1972 with the Frankfurt public prosecutor's department.\n\n72. The applicant, who on 10 August 1972 had refused to be questioned by the police, was charged on 11 September before the Frankfurt District Court, sitting as a lay magistrates' court (Schöffengericht). The indictment (Anklageschrift) alleged that, between September 1971 and the beginning of June 1972, he had continued to practise despite the withdrawal of the requisite authorisation (continuing breach of the Federal Medical Practitioners' Act), that he had thereby perpetrated frauds (Article 263 of the Penal Code) and that he had caused, in one case, serious bodily harm (Articles 223 and 223 (a) of the Penal Code).\n\n73. At the close of its sitting on 17 April 1973, the court ordered numerous enquiries.  A psychiatrist and a psychologist gave their opinion on one of the alleged victims; he was the only alleged victim called by the public prosecutor's department as a witness and had intervened (Nebenkläger) in the proceedings on 13 November 1972 in order to claim damages.\n\n74. On 14 February 1974, the court decided that, if by 20 April Dr. König had not himself submitted an expert opinion on the state of his mental health, he should be examined by a psychiatrist.\n\nOn 1 March, the applicant lodged an objection against this decision and that of 17 April 1973.  On 14 March, he stated that he was challenging the President of the lay magistrates' court; after a judge had refused this plea on 6 May, both he and the President were challenged by Dr. König on 15 May.\n\nOn 26 May, the District Court dismissed the objection and the challenge and directed that the private expert opinion be submitted not later than 1 August.\n\n75. Two days later, Dr. König repeated his objection of 1 March and at the same time lodged a disciplinary complaint against the President of the lay magistrates' court.  The  dismissed the objection on 10 June 1974; the documents do not disclose the result of the disciplinary complaint.\n\n76. On 29 June, Dr. König challenged the expert nominated by the court and proposed two others.  He supplemented this application on 3 July and appealed to the  against the decisions of 14 February and 26 May.  On the next day, he requested the District Court to suspend enforcement of the first decision until the  had given its ruling.  On 16 July, the District Court declined to do so and, nine days later, it received a copy of the 's decision rejecting the appeal of 3 July.\n\nOn 7 August, the court dismissed an application by Dr. König for a further psychiatric examination of the party claiming damages.\n\n77. On 15 August 1974, the District Court, considering that the potential penalty exceeded that which it had competence to impose, relinquished jurisdiction in favour of the .\n\nUnder the then Article 24 para. 2 of the Constitution of the Courts Act (Gerichtsverfassungsgesetz), a District Court could \"impose neither a penalty of imprisonment for more than three years nor detention for reasons of security (Sicherungsverwahrung)\".\n\n78. On 10 October, the 18th Criminal Chamber (Strafkammer) of the , to which the case had been assigned, directed that the trial (Hauptverhandlung) should take place on 4, 6 and 11 December. On 25 October, it joined to the pending proceedings a further charge, preferred by the public prosecutor's department on 7 August, alleging that Dr. König had practised on 17 July 1972 in  despite the withdrawal of the requisite authorisation and had caused his patient bodily harm.  As the applicant had not appeared, the court on 4 December issued a warrant for his arrest and adjourned the trial sine die.\n\n79. On 1 January 1975, the case was assigned to the 1st Chamber which, however, was composed of the same judges as the 18th Chamber in 1974.\n\nOn 2 January, the 1st Chamber ordered that several witnesses be examined on letters rogatory.  Witnesses were heard in February and March by the , Ahrensburg and Düsseldorf District Courts.\n\nOn 24 March, the Chamber revoked the warrant issued on 4 December.\n\nOn 15 May, the Vice-President of the Chamber directed that the trial should take place in mid-January 1976; at the same time he ordered that a witness be interrogated again by the Ahrensburg District Court.\n\n80. On 20 June 1975, the Presidential Council of the  relieved the 1st Chamber of all matters it had to decide as a court of first instance, with effect from 23 June.  The proceedings pending against Dr. König were transferred to the 13th Chamber.\n\nThe President of the latter Chamber received the case file on 10 July. On 8 August, he postponed the trial until 3, 5, 10 and 12 February 1976; these dates he cancelled on 13 October 1975 for the reason that the Chamber was obliged to deal with another substantial case.\n\n81. On 1 January 1976, all first-instance cases beginning with the letter \"K\", including the applicant's, were passed to the 25th Chamber of the  in accordance with the 1976 arrangements for the allocation of cases.\n\nThe trial opened before the 25th Chamber on 5 May.  On 24 September, after twenty-three days of sittings, the Chamber ordered the discontinuance of the proceedings (Einstellung des Verfahrens) under Article 153 (a) of the Code of Criminal Procedure.\n\nThe Chamber's decision reveals that Dr. König's fault was regarded as very slight.  As he had undertaken to pay DM 8,000 to the party claiming damages and DM 20,000 to the Treasury, the Chamber considered that there was no longer any public interest in the proceedings being pursued further.  The Chamber noted that the applicant had paid over the amounts in question during the actual hearing and specified that its decision to discontinue the proceedings was final.\n\nPROCEEDINGS BEFORE THE COMMISSION\n\n82. In the application which he lodged with the Commission on 3 July 1973, Dr. König complained of the dilatory nature of the proceedings before the Frankfurt Administrative Court and claimed that he was the victim of a violation of Article 6 (art. 6) of the Convention.\n\nThe Commission declared the application admissible on 27 May 1975.\n\n83. In its report of 14 December 1976, the Commission expressed the opinion:\n\n- by ten votes to six, that Article 6 para. 1 (art. 6-1) of the Convention was applicable to the rights claimed by the applicant before the administrative courts;\n\n- by nine votes to six, with one abstention, that in the instant case there was a violation of Article 6 para. 1 (art. 6-1) of the Convention.\n\nThe report contains various separate opinions.\n\nFINAL SUBMISSIONS MADE TO THE COURT\n\n84. In her memorial of 18 July 1977, the Agent of the Government submitted as follows:\n\n\"I would ... at this stage limit my request to asking the Court to hold\n\nthat Article 6 para. 1, first sentence (art. 6-1), of the Convention is not applicable to the administrative court proceedings brought by the applicant against the withdrawal of the authorisation to practise medicine and against the withdrawal of the authorisation to run a private clinic and that the Federal Republic of Germany has accordingly not violated the Convention in the said proceedings\".\n\nAt the oral hearing on 16 November 1977, the Agent of the Government requested the Court to hold\n\n\"that the Federal Republic of Germany has not violated Article 6 (art. 6) of the Convention\".\n\nAS TO THE LAW\n\n1. On the alleged violation of Article 6 para. 1 (art. 6-1) of the Convention\n\n85. The Court recalls that neither the disciplinary proceedings against Dr. König - which in the event took place before the professional tribunals - nor the criminal proceedings instituted against him are in issue in the present case (see paragraph 18 above).\n\nThe applicant complains of the length of the actions he brought before the  (see paragraph 18 above).  He alleges that there has been a violation of Article 6 para. 1 (art. 6-1) of the Convention which provides:\n\n\"In the determination of his civil rights and obligations or of any criminal charges against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.  Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.\"\n\nThe Court has therefore to decide whether Article 6 para. 1 (art. 6-1) is applicable in the present case and, if so, whether the criterion of a \"reasonable time\" appearing in that Article (art. 6-1) was respected in each of the two sets of judicial proceedings concerned.\n\n(a) On the applicability of Article 6 para. 1 (art. 6-1) of the Convention\n\n86. The majority of the Commission is of the opinion that Article 6 para. 1 (art. 6-1) is applicable to the rights claimed by the applicant before the Frankfurt Administrative Court, namely the right to run his clinic and the right to exercise his profession of medical practitioner; it considers these rights to be \"civil\".  The majority is divided into two groups which reach the same conclusion, albeit for different reasons.\n\nThe correctness of this opinion is disputed by the Government.\n\n87. The Court notes at the outset that, as is not contested, under the legislation of the State concerned the actions brought by the applicant before the German courts concern \"rights\".  The difference of view between Commission and Government relates only to the question whether the present case involves disputes (\"contestations\") over civil rights within the meaning of Article 6 para. 1 (art. 6-1) of the Convention.\n\n88. Both the Commission and the Government agree that the concept of \"civil rights and obligations\" cannot be interpreted solely by reference to the domestic law of the respondent State.\n\nThe problem of the \"autonomy\" of the meaning of the expressions used in the Convention, compared with their meaning in domestic law, has already been raised before the Court on several occasions.  Thus, it has decided that the word \"charge\" appearing in Article 6 para. 1 (art. 6-1) has to be understood \"within the meaning of the Convention\" (Neumeister judgment of 27 June 1968, Series A no. 8, p. 41, para. 18, as compared with the second sub-paragraph on p. 28 and the first sub-paragraph on p. 35; see also Wemhoff judgment of 27 June 1968, Series A no. 7, pp. 26-27, para. 19; Ringeisen judgment of 16 July 1971, Series A no. 13, p. 45 para. 110; Engel and others judgment of 8 June 1976, Series A no. 22, p. 34 para. 81).  The Court has also recognised, in the context of the case of Engel and others, the \"autonomy\" of the concept of \"criminal\" within the meaning of Article 6 para. 1 (art. 6-1) (above-mentioned Engel and others judgment, p. 34, para. 81).  Again, the Court has already acknowledged, implicitly, that the concept of \"civil rights and obligations\" is autonomous (above-mentioned Ringeisen judgment, p. 39, para. 94).\n\nThe Court confirms this case-law on the present occasion.  Hence, it considers that the same principle of autonomy applies to the concept in question; any other solution might lead to results incompatible with the object and purpose of the Convention (see, mutatis mutandis, the above-mentioned Engel and others judgment, p. 34, para. 81).\n\n89. Whilst the Court thus concludes that the concept of \"civil rights and obligations\" is autonomous, it nevertheless does not consider that, in this context, the legislation of the State concerned is without importance.  Whether or not a right is to be regarded as civil within the meaning of this expression in the Convention must be determined by reference to the substantive content and effects of the right - and not its legal classification - under the domestic law of the State concerned.  In the exercise of its supervisory functions, the Court must also take account of the object and purpose of the Convention and of the national legal systems of the other Contracting States (see, mutatis mutandis, the above-mentioned Engel and others judgment, p. 35, para. 82).\n\n90. The Government submit that Article 6 para. 1 (art. 6-1) covers private-law disputes in the traditional sense, that is disputes between individuals or between an individual and the State to the extent that the latter had been acting as a private person, subject to private law; amongst other things, disputes between an individual and the State acting in its sovereign capacity would be excluded from the ambit of that Article (art. 6-1).\n\nAs regards the field of application of Article 6 para. 1 (art. 6-1), the Court held in its Ringeisen judgment of 16 July 1971 that \"for Article 6 para. 1 (art. 6-1) to be applicable to a case ('contestation') it is not necessary that both parties to the proceedings should be private persons ....  The wording of Article 6 para. 1 (art. 6-1) is far wider; the French expression 'contestations sur (des) droits et obligations de caractère civil' covers all proceedings the result of which is decisive for private rights and obligations.  The English text, 'determination of ... civil rights and obligations', confirms this interpretation.  The character of the legislation which governs how the matter is to be determined  ... and that of the authority which is invested with jurisdiction in the matter ... are therefore of little consequence\" (Series A no. 13, p. 39, para. 94).\n\nIf the case concerns a dispute between an individual and a public authority, whether the latter had acted as a private person or in its sovereign capacity is therefore not conclusive.\n\nAccordingly, in ascertaining whether a case (\"contestation\") concerns the determination of a civil right, only the character of the right at issue is relevant.\n\n91. The Court recalls firstly that the applicant's appeals before the German administrative courts do not concern the right to be authorised to run a clinic and to be authorised to exercise the medical profession (see paragraphs 20, 21, 28 and 51 above): in challenging the withdrawal of his authorisations ordered by the competent authorities, Dr. König is claiming the right to continue his professional activities for which he had obtained the necessary authorisations.  If the proceedings before the administrative courts were successful, the applicant would not be granted new authorisations: the Court would simply annul the withdrawal decisions taken by the Regierungspräsidenten in  and  (see Article 42 of the German Code of Administrative Procedure).\n\nTherefore, it remains to be ascertained whether Dr. König's right to continue to run a private clinic and his right to continue to exercise the medical profession are civil rights within the meaning of Article 6 para. 1 (art. 6-1).\n\n92. The Court notes that, in the Federal Republic of Germany, the running of a private clinic is in certain respects a commercial activity carried on with a view to profit, classified by German law as a \"Gewerbe\".  This activity is carried on in the private sector through the conclusion of contracts between the clinic and its patients and resembles the exercise of a private right in some ways akin to the right of property.  Private clinics are certainly subject to supervision effected by the authorities in the public interest in order, inter alia, to protect health; supervision in the public interest, which moreover exists as a general rule for all private professional activities in the member States of the Council of Europe, cannot of itself lead to the conclusion that the running of a private clinic is a public-law activity.  An activity presenting, under the law of the State concerned, the character of a private activity cannot automatically be converted into a public-law activity by reason of the fact that it is subject to administrative authorisations and supervision, including if appropriate the withdrawal of authorisations, provided for by law in the interests of public order and public health.  The Court recalls in this context the Ringeisen case in which supervision by the public authorities concerned a contract for sale between private individuals: the Court nonetheless concluded that the right at issue had a civil character (above-mentioned judgment, p. 39, para. 94).\n\n93. The medical profession counts, in the Federal Republic of Germany, among the traditional liberal professions; moreover, Article 1 para. 2 of the Federal Act expressly so provides (see paragraph 20 above). Even under the national health scheme, the medical profession is not a public service: once authorised, the doctor is free to practise or not, and he provides treatment for his patients on the basis of a contract made with them.  Of course, besides treating his patients, the medical practitioner, in the words of the above-mentioned Act, \"has the care of the health of the community as a whole\".  This responsibility, which the medical profession bears towards society at large, does not, however, alter the private character of the medical practitioner's activity: whilst of great importance from the social point of view, that responsibility is accessory to his activity and its equivalent is to be found in other professions whose nature is undeniably private.\n\n94. In these conditions, it is of little consequence that here the cases concern administrative measures taken by the competent bodies in the exercise of public authority.  Neither does it appear pertinent that, under the law of the State concerned, it is for administrative courts to give the decision on these cases and to do so in proceedings which leave to the court the responsibility for the investigation and for the conduct of the trial.  All that is relevant under Article 6 para. 1 (art. 6-1) of the Convention is the fact that the object of the cases in question is the determination of rights of a private nature.\n\n95. Since it thus considers the rights affected by the withdrawal decisions and forming the object of the cases before the administrative courts to be private rights, the Court concludes that Article 6 para. 1 (art. 6-1) is applicable, without it being necessary in the present case to decide whether the concept of \"civil rights and obligations\" within the meaning of that provision extends beyond those rights which have a private nature.\n\n96. Before the Commission, the applicant claimed, in the alternative, that, in view of the nature of the complaints which led to the decisions he contests, he is in reality faced with a \"criminal charge\" within the meaning of Article 6 para. 1 (art. 6-1) of the Convention. In its report, the Commission recalled that it had rejected this claim in its decision on the admissibility of the application.\n\nThe Court notes first of all that this claim by the applicant related to the same facts as his contention that the actions before the German courts concerned civil rights.  This was accordingly not a separate complaint but a formal submission or a mere legal argument.  However, once a case is duly referred to it, the Court may take cognisance of every question of law arising in the course of the proceedings and concerning facts submitted to its examination by a  or by the Commission.  Master of the characterisation to be given in law to the facts, the Court is empowered to examine them, if it deems it necessary and if need be ex officio, in the light of the Convention as a whole (see, inter alia, the judgment of 23 July 1968 on the merits of the \"Belgian Linguistic\" case, Series A no. 6, p. 30, para. 1; the De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, p. 29, para. 49; the Handyside judgment of 7 December 1976, Series A no. 24, p. 20, para. 41; the judgment of 18 January 1978 in the case of Ireland v. the , Series A no. 25, p. 63, para. 157).\n\nHowever, the Court does not consider that it has to examine whether in this case paragraph 1 of Article 6 (art. 6-1) is also relevant under the \"criminal charge\" head.  For, although the requirements of Article 6 (art. 6) as regards cases (\"contestations\") concerning civil rights are less onerous than they are for criminal charges, this difference is of no consequence here: all proceedings covered by Article 6 (art. 6) are subject to the requirement of a \"reasonable time\", whose observance by the German courts remains to be examined.\n\n(b) On the observance of Article 6 para. 1 (art. 6-1) of the Convention\n\n97. According to the Commission, the duration of the proceedings instituted by the applicant before the administrative courts exceeded the \"reasonable time\" stipulated by Article 6 para. 1 (art. 6-1) of the Convention.  Before the Court, the Agent of the Government conceded that the length of those proceedings was a serious matter. She referred, moreover, to certain proposals under discussion in the Federal Republic of Germany designed to accelerate the procedure before the administrative courts.  Although she questions whether, in the circumstances of the case, it is possible to speak of a violation of the Convention, she leaves it to the Court to assess whether the duration of the proceedings was reasonable.\n\n98. In order to be able to arrive at a decision, the Court must first specify the period to be taken into account in the application of Article 6 para. 1 (art. 6-1).\n\nAccording to the Government and the Commission, time starts to run from the date of the filing of the appeals with the Administrative Court of first instance.  The Court does not share this view.  As the Court stated in its Golder judgment of 21 February 1975, \"it is conceivable ... that in civil matters the reasonable time may begin to run, in certain circumstances, even before the issue of the writ commencing proceedings before the court to which the plaintiff submits the dispute\" (Series A no. 18, p. 15, para. 32).  This is the situation in the applicant's case, since he could not seise the competent court before having the lawfulness and the expediency of the impugned administrative acts examined in preliminary proceedings (Vorverfahren) before the administrative authority (Article 68 of the German Code of Administrative Procedure).  Consequently, in the present case, the reasonable time stipulated by Article 6 para. 1 (art. 6-1) starts to run on the day on which Dr. König lodged an objection against the withdrawals of his authorisations.\n\nAs regards the period to which Article 6 (art. 6) is applicable, the Court has held that in criminal matters this period covers the whole of the proceedings in question, including appeal proceedings (above-mentioned Wemhoff judgment, pp. 26 and 27, paras. 18 and 20; above-mentioned Neumeister judgment, p. 41, para. 19; Delcourt judgment of 17 January 1970, Series A no. 11, pp. 13-15, paras. 25 and 26).  The position - as, moreover, the Government concede - is no different in the case of disputes (\"contestations\") over civil rights and obligations for which Article 6 para. 1 (art. 6-1) likewise requires that there be - at first instance, on appeal or in cassation – a determination.\n\n99. The reasonableness of the duration of proceedings covered by Article 6 para. 1 (art. 6-1) of the Convention must be assessed in each case according to its circumstances.  When enquiring into the reasonableness of the duration of criminal proceedings, the Court has had regard, inter alia, to the complexity of the case, to the applicant's conduct and to the manner in which the matter was dealt with by the administrative and judicial authorities (above-mentioned Neumeister judgment, pp. 42-43, paras. 20-21; above-mentioned Ringeisen judgment, p. 45, para. 110).  The Court, like those appearing before it, considers that the same criteria must serve in the present case as the basis for its examination of the question whether the duration of the proceedings before the administrative courts exceeded the reasonable time stipulated by Article 6 para. 1 (art. 6-1).\n\n100. Before embarking upon this examination, the Court wishes to emphasise that it is not its function to express an opinion on the German system of procedure before administrative courts which, as the Agent of the Government stated, enjoys a long tradition.  Admittedly, the present system may appear complex on account of the number of courts and remedies but the Court is not unaware that the explanation for this situation is to be found in the eminently praiseworthy concern to reinforce the guarantees of individual rights.  Should these efforts result in a procedural maze, it is for the State alone to draw the conclusions and, if need be, to simplify the system with a view to complying with Article 6 para. 1 (art. 6-1) of the Convention.\n\n101. These proceedings, which began on 13 July 1967 when the applicant filed an objection against the withdrawal of the authorisation (see paragraph 28 above), have still not been concluded: the Hessen Administrative Court of Appeal has not yet ruled on Dr. König's appeal against the judgment of 22 June 1977 of the 4th Chamber of the Frankfurt Administrative Court.\n\n102. It is clearly a matter for serious concern - as the Government moreover admit - that more than ten years and ten months have elapsed without a decision on the merits of the case and that it was necessary to wait for almost ten years for the judgment at first instance.\n\nIt is true - and on this point the Court shares the Government's opinion - that the 4th Chamber of the  encountered great difficulties in tracing witnesses several of whom had in the meantime changed name or address (see paragraphs 30, 32, 35, 36, 37 and 41 above).  This applied particularly to the witness Xymenes whom the Chamber was not able to hear until thirty-three months after the first summons (see paragraphs 30, 32 and 35 above).  However, the Government in no way pleaded that the case raised exceptionally complex issues of fact or of law.\n\nThe Court appreciates that there was a certain interrelation between this action and the action - pending before the 2nd Chamber of the same court - relative to the withdrawal of the authorisation to practise, since the applicant's activities as manager of a clinic were, to a large extent, indistinguishable from his activities as a medical practitioner.  However, this can scarcely have caused complications.  On the contrary, the 4th Chamber had at its disposal the file of the Regional Tribunal for the Medical Profession which, on 14 October 1970, had declared Dr. König unfit to practise (see paragraphs 16 and 30 above).  On this point the Court notes that the Agent of the Government herself is of the opinion that better co-ordination between the two Chambers would have been desirable.\n\n103. On the other hand, the Government laid great weight on the applicant's behaviour during the proceedings: in their view, Dr. König is personally responsible for about half of the length of the proceedings because of the way in which he organised the conduct of his case.  The Government cited especially the frequent changes of lawyer, the juxtaposition of various appeals and the fresh proposals of evidence at different stages.\n\nThe repeated changing of lawyers - which was certainly within Dr. König's rights - had repercussions on the progress of the proceedings since the different lawyers inevitably needed some time to acquaint themselves with the file.  It must be borne in mind that in fact the delays mentioned by the Government do not total more than a few months (see paragraphs 36 and 45 above).  The Court also observes that Dr. König did not discharge his first lawyer until 24 May 1971 that is after nearly four years of procedure (see paragraph 33 above).\n\nThe Court likewise considers that some delays necessarily resulted from the applicant's various appeals and the overlapping of proceedings which they occasioned.  However, the Court notes that all those appeals were made after the month of July 1973 that is after six years of procedure and at a time when Dr. König had already been deprived for two years of the authorisation to practise.  In fact, the first of the two challenges - which, like the second, was included in a disciplinary complaint and, what is more, was upheld - dates from 22 August 1973 (see paragraph 39 above); it was not until two years later, that is, on 10 October 1975, that Dr. König made - unsuccessfully - the second challenge (see paragraph 46 above). Nevertheless, even before the decision on the first challenge, the applicant had, on 19 October 1973, filed with the  an appeal against the length of the proceedings of which he had also complained as early as 3 July in his application to the Commission (see paragraphs 1, 39 and 41 above).  Finally, another disciplinary complaint was filed by Dr. König with the President of the Hagen District Court in April 1974, that is, before the three 1973 proceedings were terminated (see paragraph 40 above). Obviously this overlapping did not make the 4th Chamber's task any easier, although only the challenges of 1973 and 1975 gave rise, in law, to an interruption of its proceedings in the strict sense.\n\nThe Court is also inclined to share the Government's view that, by tendering fresh evidence after witnesses had been heard, the applicant put difficulties in the way of the investigation of the case. The evidence before the Court reveals that, after the order of 26 August 1969, the hearing of further witnesses was requested by Dr. König on 24 September 1970, 12 February 1973 and 25 August 1974 (see paragraphs 31, 36 and 42 above); his first request was subject to the proviso that he would abandon it if the Regierungspräsident for his part put forward no further witnesses (see paragraph 31 above). Finally, although the Court supplemented its order of 26 August 1969 on 30 March and 16 August 1973, only the second of these decisions seems to have led to a fresh proposal of evidence from Dr. König (see paragraphs 37, 38 and 42 above).\n\n104. Having regard to the surprising length of the proceedings, the Court has examined each detail of the 4th Chamber's conduct of the case.\n\nAlthough the Court cannot reproach the Chamber for having insisted on hearing Mr. Xymenes or for having supplemented, after three years and seven months, its order of 26 August 1969, it notes, as did the Commission, that the exchange of pleadings with which the proceedings opened continued until 2 April 1969, that is, for nearly seventeen months.  Apart from the researches for the addresses of certain witnesses and the request made to the professional tribunals for their files (see paragraphs 29 and 30 above), the first step in the investigation was not taken until 26 August 1969 when the 4th Chamber made its order on the evidence to be adduced (see paragraph 30 above). The Commission rightly stresses, furthermore, that the Chamber waited for seventeen months before calling for the professional tribunals' files despite the interrelation of the action before it and the action relative to the withdrawal of the authorisation to practise.\n\nAgain, the despatch of the file to the authorities and courts to which the applicant had made his various appeals caused appreciable losses of time (see paragraphs 30, 31, 35, 38, 39, 40, 41, 42 and 45 above). To the extent that it was necessary for the competent authority to have the complete file at its disposal, it would have been desirable to consider the possibility of having a copy made.\n\nIt must also be observed that the 4th Chamber decided on 10 February 1975, that is, more than seven years after being seised of the case, to postpone its judgment until the outcome of the action relative to the withdrawal of the authorisation to practise which had been pending for more than three years before the 2nd Chamber of the same court (see paragraphs 44 and 51 above).  This decision was taken after three orders had been made concerning the evidence to be adduced by the parties and after the hearing of numerous witnesses.  On this point, the Government admitted that, with the benefit of hindsight, doubts could arise as to whether the court properly conducted the enquiry.  In fact, the  is unable to discern what the 4th Chamber, which in 1977 was able to dismiss the applicant's appeal on the basis of evidence taken between November 1969 and August 1974 (see paragraph 47 above), was expecting from the outcome of the proceedings pending before the 2nd Chamber.  In this connection, the Court recalls that the latter proceedings had been suspended on 25 September 1973 to await the outcome of the criminal proceedings and were not resumed until 30 June 1975.  The Court concludes that, in these circumstances, the 4th Chamber did not have sufficient reason for prolonging the proceedings in this way, even if account is taken of the applicant's consent (see paragraphs 44 and 46 above).\n\n105.  In an overall assessment of the various factors, the Court concludes that the delays occasioned by the difficulties in the investigation and by the applicant's behaviour do not of themselves justify the length of the proceedings.  Without attaching decisive importance to any one step taken by the 4th Chamber rather than to another, the Court is in fact of the opinion that the principal reason for the length of the proceedings is to be found in the conduct of the case.  The Court finds that it would have been possible for the 4th Chamber to bring the proceedings to an end at an earlier date. Taking into account the fact that the proceedings began on 13 July 1967 and ended on 22 June 1977, the Court concludes that the \"reasonable time\" stipulated by Article 6 para. 1 (art. 6-1) was exceeded.\n\nThe Government stressed that Dr. König's appeal had the effect of suspending enforcement of the withdrawal of the authorisation to run his clinic (see paragraph 28 above) and that this feature of the proceedings might have been to his advantage.  The Court recognises that this suspensive effect may have a bearing on the interpretation of the concept of \"reasonable time\".  However, in view of the total duration of the proceedings and the prolonged uncertainty in which the applicant found himself, the Court cannot depart, on the ground of the appeal's suspensive effect, from the assessment at which it has arrived above.\n\n106. These proceedings began on 18 May 1971 when the applicant lodged his objection against the withdrawal of the authorisation to practise. The 2nd Chamber of the  gave judgment on 9 June 1976, that is after more than five years of proceedings, and the Hessen Administrative Court of Appeal on 2 May 1978.\n\n107. Although the length of these particular proceedings is not as great as that of the action relative to the withdrawal of the authorisation to run the clinic, it does not appear to the Court to be less serious.\n\nThis action seems less complex than the action before the 4th Chamber of the Administrative Court: not only did the 2nd Chamber encounter fewer difficulties as regards the hearing of the witnesses summoned, but also the enquiry was facilitated by the fact that, as early as 14 October 1970, the Regional Tribunal for the Medical Profession had declared Dr. König unfit to practise (see paragraph 16 above).\n\nAs for the interrelation of the two actions, on which the Government relied, it should be noted that this could not have created any complications for the 2nd Chamber: on the contrary, it was able to profit from the results of the investigation conducted by the 4th Chamber whose proceedings had already been in progress for almost four years when Dr. König challenged the withdrawal of the authorisation to practise.\n\n108. Dr. König's behaviour in the action before the 2nd Chamber differs from his behaviour before the 4th Chamber in but a few respects.\n\nThe Court notes to begin with that the applicant changed lawyer for the first time on 12 February 1973 that is after sixteen months of procedure (see paragraph 54 above).  Again, he filed two challenges which, together with those directed against the 4th Chamber, were included in disciplinary complaints - the first on 22 August 1973 after about two years of procedure, the second on 10 October 1975 (see paragraphs 56 and 67 above).  Furthermore, Dr. König made three constitutional appeals against the length of the proceedings, the first on 19 October 1973, the second probably in April 1974 and the third on 10 July 1975 (see paragraphs 58, 60 and 64 above).  Before the first appeal to the , he had also complained of the length of the two actions in his application of 3 July 1973 to the Commission.  As for the manner of tendering his evidence, the applicant does not seem to have proceeded in the same way as he did before the 4th Chamber.\n\nNevertheless, Dr. König's behaviour certainly caused delays.  The Court notes, in particular, that the delays mentioned by the Government as attributable to the changes of lawyer seem more important in this action (see paragraphs 54, 62 and 67 above).\n\n109. As regards the procedure followed by the , failure to join the case relative to the withdrawal of the authorisation to practise and the case relative to the withdrawal of the authorisation to run the clinic certainly prolonged the two actions.  The Court observes, moreover, that, in the appellate proceedings, the two cases were assigned to the same Chamber of the Hessen Administrative Court of Appeal.\n\n110. Turning next to the conduct of the case by the 2nd Chamber itself, the Court notes that the Chamber was little concerned to advance the proceedings.\n\nThe first sitting, for the hearing of witnesses and of argument, was not fixed until 14 July 1975 (see paragraph 65 above).  According to the evidence before the Court, the only steps in the investigation taken by the 2nd Chamber between 25 October 1971, when it was seised, and July 1975 were the request of 2 November 1971 to the Regierungspräsident to submit the relevant files, the order of 5 September 1972 calling for the production of certain criminal files and the decision of the same date that the Regional Medical Society be joined to the proceedings (see paragraphs 52 and 53 above). Admittedly, on 14 September 1972 the court suggested a friendly settlement of the dispute but less than a month later Dr. König rejected this proposal (see paragraph 53 above).  In addition, the Court notes, as did the Commission, that the 2nd Chamber waited more than 10 months before deciding to join the Regional Medical Society whose requests nevertheless had set the professional tribunals' proceedings in motion and led to the withdrawal of the authorisations (see paragraphs 16, 27, 49 and 53 above).\n\nAgain, considerable delays were caused by the despatch of the file to the authorities and courts to which the applicant had made his various appeals (see paragraphs 56, 58, 62, 64, 66 and 67 above).  On this point, the Court refers to its findings in connection with the proceedings before the 4th Chamber (see paragraph 104 above).\n\nHowever, the principal cause of the length of this action is its suspension - decided on 25 September 1973 and maintained until 30 June 1975 - for the purpose of awaiting the outcome of the criminal proceedings taken against Dr. König as early as 27 July 1972.\n\nAlthough Dr. König's conviction might have had some relevance for the investigation of the case pending before the 2nd Chamber, the Court notes that the charges against the applicant referred to events which occurred perhaps in part before the decision of the Regierungspräsident on the objection but in any event after the withdrawal of the authorisation to practise (see paragraphs 49, 51, 71, 72 and 78 above).  Again, although the 2nd Chamber enquired on several occasions about the state of the criminal proceedings, it did not draw in due time the conclusions from the information given to it. In fact, the Court observes that the 2nd Chamber knew as early as 16 February 1974 that the hearings before the criminal court could not be held before the second half of the year; on 8 May, the latter court had indicated that judgment could hardly be given within six months, since the applicant had challenged one of the judges and extensive appellate proceedings had been instituted (see paragraphs 59 and 61 above).  Despite the uncertainties overshadowing the criminal proceedings, the 2nd Chamber still delayed for more than a year before deciding, on 30 June 1975, not to await their outcome any longer.\n\nIn the Court's opinion, the 2nd Chamber's suspension of its proceedings for more than twenty-one months was not justified in the circumstances of the case.\n\n111. In an overall assessment of the various factors and taking into account what was at stake in the proceedings, namely, Dr. König's whole professional livelihood, the Court considers that, notwithstanding the delays attributable to the applicant's behaviour, the investigation of the case was not conducted with the necessary expedition.\n\nThe Court has borne in mind the arguments which the Agent of the Government based on what she referred to as interim judicial protection (einstweiliger Rechtsschutz).  In fact, the applicant twice requested, once in 1971 and once in 1974, restoration of the suspensive effect of his appeal against the withdrawal of the authorisation to practise (see paragraphs 50, 62 and 63 above). The 2nd Chamber and subsequently the Hessen Administrative Court of Appeal rejected these requests in reasoned decisions which touched on the merits of the case, the proceedings concerning the second request having, moreover, lasted more than fifteen months in all.  The Court does not exclude the possibility that the existence of such a procedure may have an incidence on the assessment of the duration of the principal proceedings.  However, in view of the circumstances noted above, the existence of that procedure cannot in the present case affect the overall assessment of the factors taken into account by the Court.\n\nAccordingly, the Court considers that in this case the \"reasonable time\" stipulated by Article 6 para. 1 (art. 6-1) of the Convention was exceeded.\n\n2. On the application of Article 50 (art. 50) of the Convention\n\n112. Under Article 50 (art. 50) of the Convention, if the Court finds \"that a decision or a measure taken\" by any authority of a Contracting State \"is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said [State] allows only partial reparation to be made for the consequences of this decision or measure\", the Court \"shall, if necessary, afford just satisfaction to the injured party\".\n\nThe Rules of Court specify that when the Court \"finds that there is a breach of the Convention, it shall give in the same judgment a decision on the application of Article 50 (art. 50) of the Convention if that question, after being raised under Rule 47 bis, is ready for decision; if the question is not ready for decision, the [Court] shall reserve it in whole or in part and shall fix the further procedure\" (Rule 50 para. 3, first sentence, read in conjunction with Rule 48 para. 3).\n\n113. At the hearing on 17 November 1977, the Court, acting in pursuance of Rule 47 bis, invited those appearing before it to present their observations on the question of the application of Article 50 (art. 50) of the Convention in the present case.\n\nMr Burger's reply reveals that Dr. König is not claiming compensation \"for all the damage he had suffered, as the result of interruption of his work as a medical practitioner and operator of a clinic for a period that already exceeds ten years\".  In point of fact, the applicant leaves to the Court the assessment of \"any compensation that he might expect under Article 50 (art. 50)\" and also the question whether such compensation should \"include the costs of [the] proceedings\" before the Commission and the Court.\n\nThe Agent of the Government, for her part, declared that she reserved her position.\n\n114. The Court notes that the applicant does not claim compensation for all the material damage allegedly suffered; however, he expects to be granted just satisfaction if the Court concludes that there has been a breach of the Convention, without for the moment indicating the amount of his claim.\n\nThe information supplied by the applicant on this point and the observations of the Agent of the Government show that the question of the application of Article 50 (art. 50) of the Convention is not ready for decision; the Court must therefore reserve the question and give a decision on the further procedure relative thereto.\n\nFOR THESE REASONS, THE COURT\n\n1. holds by fifteen votes to one that Article 6 para. 1 (art. 6-1) is applicable to the proceedings relative to the withdrawal of the applicant's authorisation to run his clinic;\n\n2. holds by fourteen votes to two that Article 6 para. 1 (art. 6-1) is applicable to the proceedings relative to the withdrawal of the applicant's authorisation to practise;\n\n3. holds by fifteen votes to one that there has been a violation of Article 6 para. 1 (art. 6-1) as regards the duration of the proceedings relative to the withdrawal of the authorisation to run the clinic;\n\n4. holds by fifteen votes to one that there has been a violation of Article 6 para. 1 (art. 6-1) as regards the duration of the proceedings relative to the withdrawal of the authorisation to practise;\n\n5. holds unanimously that the question of the application of Article 50 (art. 50) is not ready for decision;\n\naccordingly,\n\n(a) reserves the whole of the question of the application of Article 50 (art. 50);\n\n(b) invites the Commission's delegates to transmit to the Court, within three months from the delivery of this judgment, such claims as may be presented by the applicant and any observations which the delegates may have thereon;\n\n(c) decides that the Government shall have the right to reply to such claims and observations within two months from the date on which the Registrar shall have communicated them to the Government;\n\n(d) reserves the further procedure to be followed on this question.\n\nDone in French and English, the French text being authentic, at the Human Rights Building, Strasbourg, this twenty-eighth day of June, one thousand nine hundred and seventy-eight.\n\nThe separate opinions of the following judges are annexed to the present judgment in accordance with Article 51 para. 2 (art. 51-2) of the Convention and Rule 50 para. 2 of the Rules of Court:\n\nMr. WIARDA;\n\nMr. MATSCHER;\n\nMr. PINHEIRO FARINHA.\n\nI share the opinion set out in the judgment, with the sole exception of the reasons concerning the application of Article 6 para. 1 (art. 6-1) of the Convention to the proceedings before the  relating to the withdrawal of the authorisations to run a clinic and to practise medicine.\n\nAccording to the reasoning in the judgment, the rights at issue in these actions were the right to continue to run a private clinic and the right to continue to practise medicine; these two rights are classified as rights of a private nature and thus as civil rights within the meaning of the Convention.\n\nI agree with the view that, whatever scope the concept of civil rights and obligations within the meaning of the Convention may have, it in any event includes rights and obligations of a private nature in the traditional sense; however, I do not consider that the right to run a clinic and the right to practise medicine can be classified as rights of a private nature within the traditional meaning of that concept.\n\nIn my opinion, the classification of a subjective right depends on the classification of the rules of the objective law in which that subjective right has its source.\n\nIn German (objective) law, the (subjective) right to run a private clinic and the (subjective) right to practise medicine depend solely on obtaining and conserving the authorisations required by law for this purpose; however, the conditions which must be fulfilled to obtain and conserve such authorisations are found in (objective) public (administrative) law, not in (objective) private law.  For this reason, I believe that these rights should be classified not as civil but as public rights.\n\nThis does not mean that I cannot agree with the Court's conclusion.\n\nAccording to the Ringeisen judgment, the question whether a case (\"contestation\") is to be considered as a case relating to \"civil rights and obligations\" depends neither on the character of the legislation which governs how the matter is to be determined nor on the character of the authority invested with jurisdiction, but on the character of the rights and obligations for which the result of the proceedings is decisive.\n\nIn the present case, the result of the proceedings instituted by Dr. König before the  was decisive for the conservation or the restoration of his status as owner and manager of a private clinic and as a medical practitioner, and for the conservation or the restoration of the complex of rights and obligations attaching to such status.\n\nThis complex of rights and obligations was mixed in character. Public law played a part (Gewerbeordnung, Bundesärzteordnung), but, in my view, the area governed by private law predominated.  Dr. König owned his clinic and his practice and was exercising his rights of property in the use which he made of them.  The clinic, the practice and his patients represented an element of \"goodwill\" which likewise was in the nature of a private right similar, in some respects, to the right of property.  From the legal point of view, the running of the clinic and the exercise of his profession were carried on through the conclusion of contracts.\n\nThe withdrawal of the authorisations needed by Dr. König to continue running his clinic and exercising his profession amounted to an interference that in many respects deprived this complex of rights and obligations - for the greater part governed by private law - of the value which they represented.\n\nIt was the justification for the withdrawals that was at stake in the proceedings before the  which underlie the present case.\n\nFor this reason, I believe, that it is legitimate to classify the cases (\"contestations\") in issue as cases involving \"civil rights and obligations\" within the meaning of Article 6 para. 1 (art. 6-1) of the Convention.\n\nA. I am not, for the time being, in a position to furnish an abstract, comprehensive definition of the concept of \"civil rights and obligations\" within the meaning of Article 6 para. 1 (art. 6-1) of the Convention.  I should like, however, to try to explain the reasons which prevent me, to my great regret, from accepting the definition of this concept which the Court has just given, even though it limited itself to the requirements of the present judgment.\n\nI think that one must start by noting that the wording of Article 6 para. 1 (art. 6-1) is not clear and unequivocal.  To arrive at its meaning, recourse must be had to the methods of interpretation recognised in international law.\n\nLiteral, grammatical interpretation does not take us very far.\n\nThere is an abundance of writings on the historical background to Article 6 (art. 6).  They show us that no very specific and exact ideas on the scope of this provision emerge from the travaux préparatoires.\n\nThe materials on the Convention do not, I believe, support the view (already expressed in the Ringeisen judgment and repeated in paragraph 90 of the present judgment) that a comparison of the two official texts may point to interpretation in a particular direction.\n\nThe teleological interpretation on which the judgment appears to be principally based (although this is not stated in explicit terms) is limited by the Convention system.  The basic idea behind such an interpretation is that the Convention is chiefly intended to protect the individual against the authorities and to provide him with certain guarantees vis-à-vis the latter.  This means that the Convention should apply whenever the individual's position vis-à-vis the authorities is in question.  However, to draw specific conclusions from this principle, one must above all demonstrate that a right which the Convention was intended to guarantee in a certain way is involved - otherwise, there is a danger of going beyond teleological interpretation and venturing into the field of legislative policy.\n\nThe reasoning in the judgment does not demonstrate that the applicant's legal position in the present case is also covered by Article 6 para. 1 (art. 6-1) of the Convention.\n\nThe judgment starts by reaffirming the principle of \"autonomous\" interpretation of the terms of international conventions in general and of the concept of \"civil rights and obligations\" within the meaning of Article 6 para. 1 (art. 6-1) of the Convention in particular. This is a principle with which I am wholly in agreement (even though I must say that I do not regard the Court's definition of it as wholly unambiguous).  In my view, autonomous interpretation means, above all, that the provisions of international conventions must not be interpreted solely by reference to the meaning and scope which they possess in the domestic law of the contracting State concerned, but that reference must be made, \"first, to the objectives and scheme of the Convention and, secondly, to the general principles which stem from the corpus of the national legal systems\" (judgment of the Court of Justice of the European Communities, 14 October 1976, (Reports) 1976, p. 1552).  Putting it differently, one must look for the \"common denominator\" behind the provisions in question, since it is legitimate to suppose - in the absence of any legal definition in the Convention itself - that such is the meaning which the Contracting States wished these provisions to have.  This \"common denominator\" can be found through a comparative analysis of the domestic law of the Contracting States.  This being so, the result of such an investigation can never be a concept which is totally at variance with the legal systems of the State concerned.  In my view, however, the judgment does not take sufficient account of this requirement.  It arrives at its conclusion - that Article 6 para. 1 (art. 6-1) of the Convention is applicable to the case which forms the subject of the present application - only by reliance on two types of assertion, both of which I regard as highly questionable:\n\nl. The activities of a doctor, whether as practitioner or as director of a private clinic, are said to have a \"private-law\" character, apparently by virtue of the fact that these activities chiefly amount (from the legal point of view) to the maintenance of private-law relationships with his clients (paragraphs 92 and 93 of the judgment).\n\nHowever, this argument seems to me to confuse the special relationship between a doctor and his patients, which is undeniably a matter of private law (insofar as the doctor concerned is not a civil servant), with his professional status which - regardless of whether the State medical service or private practice is concerned - is regulated (each type to a varying extent) by public law in most, if not all, States.\n\nThus, when the Court states that the doctor's professional situation is to be classified as a civil right within the meaning of Article 6 para. 1 (art. 6-1) of the Convention, it is creating a concept of \"civil right\" which is not merely \"autonomous\" within the meaning of the Convention, but which has no foundation in the legal systems of the vast majority of Contracting States.\n\n2. When transposing the conclusions reached in the Ringeisen judgment (Series A no. 13, p. 39, para. 94) to the present case, the Court states (paragraph 90 of the judgment) that \"all proceedings the result of which is decisive for private rights and obligations\" should themselves be regarded as cases concerning civil rights within the meaning of Article 6 para. 1 (art. 6-1) of the Convention.  This, in my view, is an assertion too vague, too elastic, to permit the drawing of any exact conclusions.  What does the phrase \"is decisive for private rights and obligations\" actually mean?\n\nIn the Ringeisen case, the conclusion drawn by the Court from this assertion seems to me acceptable and, possibly, even justified since, in that case, the administrative proceedings bore directly on what was undeniably a private-law contract and had no other object.\n\nThe situation in the König case is fundamentally different: the object of the administrative proceedings was not one or more specific private-law relationships between Dr. König and his patients; the proceedings were not intended to \"be decisive\" for these relationships (on which they had only an indirect bearing).  The administrative proceedings in question were solely concerned with Dr. König's professional situation as a practitioner and as the director of a private clinic. (There would only have been an analogy between the König and the Ringeisen cases if the latter had been concerned with Mr. Ringeisen's status as an estate agent - which it was not).\n\nIn this connection, and contrary to what would seem to be the Court's opinion (paragraph 91 of the judgment), I do not believe, either, that a distinction can be made (as far as Article 6 of the Convention is concerned) (art. 6) between the grant and the withdrawal of an authorisation (to practise medicine or to manage a clinic). Professional status or the legal system governing a gainful activity form an indissoluble whole.  The grant and the withdrawal of the authorisation needed to practise or carry on the activity are merely two particular aspects of such status or system: the grant amounts to a finding that the requisite conditions exist and the withdrawal, on the other hand, to a finding that they have ceased to exist.  From a qualitative standpoint, both have the same bearing on private-law situations.  In conclusion, it is not my impression that the authors of the Convention intended to bring all cases (\"contestations\") relating to undoubted public-law situations under Article 6 (art. 6) of the Convention, simply by reason of the fact that the outcome of such a case might affect the private-law relationships of the person in question.  In any event, in the majority of the Convention States, the relevant proceedings are not organised in the manner envisaged in Article 6 (art. 6) (decision by a tribunal, public hearing, judgment pronounced publicly); this means, according to the conclusions reached in this judgment, that all these States - even when they possess a highly developed system for administrative proceedings - would be in a position that did not comply with Article 6 (art. 6) from the very moment that they ratified the Convention.  This seems to me a clear argument in favour of excluding this type of case from the ambit of Article 6 (art. 6) of the Convention.\n\nThere is still one objection which has to be refuted: when the scope of Article 6 para. 1 (art. 6-1) of the Convention is discussed, it is often argued that the individual has more need of the procedural guarantees provided by Article 6 para. 1 (art. 6-1) in the case of disputes with the authorities than in the case of disputes with his neighbours: one cannot therefore suppose that the Convention was intended to establish a system of guarantees specifically for the latter, but not for the former.\n\nI would explain this situation as follows: the history of law (at least, of continental law) shows very clearly that the principles of oral proceedings, publicity and judgment by an independent tribunal in civil matters are merely a corollary of these same principles in criminal cases.  When a demand was raised, starting with the French Revolution in 1789 and during the European revolutions of 1848, for legal proceedings which respected these principles, criminal proceedings alone were envisaged.  No one would have manned the barricades to secure oral, public proceedings in civil cases! The only reason for introducing these principles for civil cases also – and sometimes even guaranteeing them in constitutional charters - was to follow the pattern adopted for criminal proceedings.  Furthermore – and this is also borne out by experience with judicial tribunals – the importance of these principles has always been relatively limited in civil cases (though it must be admitted that some of these principles, in particular, are of value for civil procedure).\n\nI think that this is the general standpoint which we must adopt to understand why the authors of the Convention, too, whilst retaining for the guarantees of Article 6 (art. 6) their primary purpose, did not restrict those guarantees to criminal cases but extended them to all cases which were generally regarded in most Contracting States as coming within the competence of the courts.\n\nI admit that this consideration of the Convention's historical dimension leads to a relatively narrow concept of \"civil rights\", but I believe that it reflects the meaning and scope of Article 6 para. 1 (art. 6-1), de lege lata.\n\nNor would I deny that, from the de lege ferenda standpoint, an extension of the protection of the individual's rights and of the related procedural guarantees, also vis-à-vis the public authorities, is an ideal which should be pursued, especially in view of the latter's constantly increasing encroachment in all areas.  Recognising the validity of this aspiration, the Court, whose task is to ensure respect of the rights guaranteed by the Convention, is free to employ even a broad interpretation of these guarantees (this it did, rightly in my view, in the Ringeisen case), as long as such interpretation remains covered by the Convention itself.  On the other hand, it is for the Contracting States to go further than the Convention if they find this necessary and if they agree on an amendment thereto.\n\nPerhaps it is also going beyond the function of a judgment (or, to be more exact, a separate opinion) to raise de lege ferenda considerations and to speculate on the possible consequences of an overbroad interpretation of the concept of civil rights.  I should like, nonetheless, to make a few brief comments.\n\nI have doubts as to the utility of invariably using a procedure which fully matched the requirements of Article 6 para. 1 (art. 6-1) of the Convention in many of the cases which would qualify as \"civil law\" cases if the line laid down by the Court in the present instance were followed (those concerned with authorisations or concessions of all kinds, insofar as the latter have a bearing on private-law situations).  For some of them (particularly professional and disciplinary cases), a procedure of this kind (public and necessarily conducted before a court) would, perhaps, hardly be in the best interests of the persons concerned.\n\nI fully agree that, in these cases too, fair judgment must be given within a reasonable time, following a procedure which gives the person concerned every possibility of asserting his rights and that the decision of the competent authority (when it is administrative in character) should be subjected to review by an independent body (that is, to review by a court).  I entirely fail to see however, why the procedure in question should invariably meet all the other requirements of Article 6 para. 1 (art. 6-1) (oral and public proceedings, public pronouncement of judgment).\n\nDe lege ferenda, the above considerations would seem to suggest the need for a revision of Article 6 (art. 6) of the Convention which would draw the following distinction (which is not possible under Article 6 as it stands) (art. 6):\n\n(a) criminal and civil cases (i.e. cases traditionally heard by the courts): entitlement to all the guarantees provided for in Article 6 (art. 6);\n\n(b) disputes on other matters (administrative cases): entitlement to a procedure determined by law and guaranteeing a fair hearing of the parties, judgment within a reasonable time, right to judicial review of the administrative decision.\n\nB. Having given a negative vote on questions 1 and 2, it was only logical that I should also give a negative vote on questions 3 and 4, as formulated in the operative provisions of the judgment.  I should like, however, to make it clear that I share the Court's unanimous view that, in the case both of the proceedings relating to the withdrawal of the authorisation to run the clinic and of the proceedings relating to the withdrawal of the authorisation to practise, the \"reasonable time\" referred to in Article 6 para. 1 (art. 6-1) was exceeded (insofar as this provision might have been applicable in the present case).\n\nl. I find myself in disagreement with the Court's reasoning as regards two paragraphs in the judgment and item 2 of the operative provisions.\n\n2. With regard to paragraph 93 of the judgment, while I agree that the medical profession counts among the traditional liberal professions in the Federal Republic of Germany; that, even under the national health scheme, the medical profession is not a public service; that the doctor, who is free to practise or not, provides treatment for his patients on the basis of a contract; and that the medical practitioner's activity has a private character, I still feel obliged to point out that:\n\n(a) according to paragraph 1 of Article 1 of the Federal Act, the medical practitioner shall have the care of the health of each individual and of the community as a whole; under paragraph 2, he exercises a liberal profession and not a trade or business (paragraph 20 of the judgment);\n\n(b) in order to be able to practise on a permanent basis, an authorisation issued by the appropriate services of the Länder is required (Articles 2 para. 1 and 12 of the Federal Act, Article 35 of the Regulations).  This authorisation is granted on request if the person concerned:\n\n(c) an authorisation that has been issued must be withdrawn if one of those conditions either was not satisfied at the time of the grant or ceases to be met afterwards (Article 5 of the Federal Act; paragraph 20 of the judgment);\n\n(d) although the medical profession also has the purpose of providing an income, its primary aim is disinterested, namely rendering assistance to mankind (paragraph 22 of the judgment).\n\nBearing these quotations in mind and remembering the Hippocratic Oath, which includes a promise by the doctor that: \"With purity and with holiness I will pass my life and practise my art ...  While I continue to keep this oath unviolated, may it be granted to me to enjoy life and the practice of the art, respected by all men, in all times. But should I trespass and violate this oath, may the reverse be my lot!\" - I am bound to conclude that there is a total difference between, firstly, the running of a clinic (a trade or business; paragraph 21 of the judgment) and, secondly, exercise of the medical profession, in which the spiritual element takes precedence over the material element, since \"the duties of dignity, disinterestedness and independence which members of the liberal professions must observe apply very strictly to doctors\" (J. Savatier, La profession libérale, Etude juridique et pratique, Paris, L.G.D.J., 1947, quoted in the Encyclopédie Dalloz, III, 425).\n\n3. With regard to paragraph 95 of the judgment, I cannot agree with the Court in its view of the decision to withdraw the authorisation to practise.  I should like to point out that I agree with paragraph 94 and 95 on the decision to withdraw the authorisation to run the clinic.\n\nIn my view, the right called in question by the withdrawal of the authorisation to practise is a public, and not a civil, right.\n\nI do not believe that a distinction can be made, under Article 6 (art. 6) of the Convention, between the grant and the withdrawal of an authorisation.\n\nIt must be remembered that the administrative proceedings were not concerned directly with one or more specific private-law relationships between Dr. König and his patients, but with his general suitability to practise as a doctor.\n\nSince public law is not concerned with actions but only with the aims which the person in question claims to be pursuing (G. Balladore Pallieri, La doctrine de l'État, volume II - Portuguese edition, page 213), since the withdrawal of the authorisation to practise was not intended to regulate specific relationships between Dr. König and his clients - the latter being a matter for private law - but chiefly to safeguard the health of the community as a whole, and since the administrative authorities found that Dr. König no longer fulfilled certain conditions of public order, lying outside the scope of private law, I would say, unlike the Court, that Article 6 para. 1 (art. 6-1) is not applicable to the proceedings relating to the withdrawal of the authorisation to practise.\n\n4. I feel obliged to accept the decision of the majority of the Court that Article 6 para. 1 (art. 6-1) is applicable to the proceedings relating to the withdrawal of the authorisation to practise, and to vote on its application with regard to the duration of the proceedings.\n\nDisagreeing with the Court on the first question - the applicability of Article 6 para. 1 (art. 6-1) of the Convention -, I agree with the final decision and the arguments used to support it.\n\nI would, however, like to indicate expressly that I would have voted for non-violation of the Convention, on the ground of non-applicability of Article 6 para. 1 (art. 6-1) to the proceedings relating to the authorisation to \"practise\", if there had not been a prior decision on applicability.\n\nI would, however, like to indicate expressly that I would have voted for non-violation of the Convention, on the ground of non-applicability of Article 6 para. 1 (art. 6-1) to the proceedings relating to the authorisation to \"practise\", if there had not been a prior decision on applicability.","title":""}
{"_id":"passage_47","text":"PROCEDURE\n\n1.  The case originated in two applications (nos. 4292/04 and 4347/04) against  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Ukrainian nationals, Ms Ganna Petrivna Glova and Ms Nadiya Fedorivna Bregin (“the applicants”), on 15 and 5 December 2003 respectively.\n\n2.  The Ukrainian Government (“the Government”) were represented by their Agent, Mrs V. Lutkovska.\n\n3.  On 25 October 2004 the Court decided to communicate to the Government the complaints under Articles 6 § 1 and 13 of the Convention concerning non-enforcement of the judgments favourable to the applicants. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the applications at the same time as their admissibility.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n4.  Both applicants were born in 1943. Ms Glova and Ms Bregin reside respectively in the villages of Podillya and Tovste, the Ternopil region, .\n\n5.  In March 2000 the applicants instituted two separate sets of proceedings in the Zalishchytskiy District Court of Ternopil Region against the Zalishchytskiy State Department for Education seeking recovery of payments due to them. On 15 May 2000, the court found for Ms Glova and awarded her UAH 1,015. On 16 May 2000, the court found in part for Ms Bregin and awarded her UAH 1,595. On 13 June 2000, the  upheld both decisions of the first instance court. The decisions became final, but have been enforced only in part.\n\n6.  In March 2003 the Zalishchytskiy State Department for Education requested the Zalishchytskiy District Court to suspend the enforcement of judgments of 15 and 16 May 2000 due to a lack of budget funds and an absence of a mechanism to pay the State’s debts to teachers. On 22 April 2003, the court allowed the requests and decided to suspend the enforcement proceedings until such a mechanism had been elaborated. On 24 June and 1 July 2003 respectively the Ternopil Regional Court of Appeal upheld the decisions of 22 April 2003. The applicants did not appeal in cassation to the Supreme Court.\n\n7.  The judgments in favour of Ms Glova and Ms Bregin remain unenforced in part (UAH 275 and UAH 855 respectively).\n\nII.  RELEVANT DOMESTIC LAW\n\n8.  The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004).\n\nTHE LAW\n\nI.  JOINDER OF THE APPLICATIONS\n\n9.  The Court considers that, pursuant to Rule 42 § 1 of the Rules of Court, the applications should be joined, given their common factual and legal background.\n\nII. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION\n\n10.  Relying on Article 13 and, in substance, Article 6 § 1 of the Convention, the applicants complained about the non-enforcement of the judgments given in their favour. These provisions read, insofar as relevant, as follows:\n\nArticle 6 § 1\n\n“In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...”\n\nArticle 13\n\n“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”\n\nA.  Admissibility\n\n1.  The Government’s preliminary objection\n\n11.  The Government maintained that the applicants, having challenged the decision on suspension of the enforcement proceedings in the courts at two instances, failed to appeal to the Supreme Court on the points of law, which under the Court’s case-law should be considered as a failure to exhaust domestic remedies (see Vorobyeva v. Ukraine (dec.), no. 27517/02, dec. 17 December 2002). In the Government’s opinion, the applicants could also challenge any alleged inactivity or actions of the Bailiffs’ Service and seek compensation.\n\n12.  The applicants maintained that they did not trust the Supreme Court and considered any further appeals ineffective.\n\n13.  The Court recalls that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. It is not in dispute that the applicants did not avail themselves of the possibility to appeal in cassation against the judicial decisions suspending the enforcement proceedings in their cases. The Court therefore should look into the effectiveness of the remedy in question, regard being had not only to the possibility to raise the issue before the domestic courts, but also to the likelihood of obtaining redress.\n\n14.  The Court notes that the circumstances of the present case are similar to others which it has examined where the State itself is a debtor. In those previous applications (see, among other authorities, Zhovner v. Ukraine, no. 56848/00, 29 June 2004, and Voytenko v. Ukraine, no. 18966/02, 29 June 2004), the enforcement proceedings were suspended de facto due to the lack of budgetary funds, while in the present case the enforcement proceedings were suspended also de jure (see paragraph 6 above). This difference, in the Court’s opinion, does not change the general situation, since the enforcement of judgments against a State authority, as it appears from the case file, can only be carried out if the State foresees and makes provision for the appropriate expenditures in the State Budget of Ukraine by taking the appropriate legislative measures. In the Ukrainian legal system, the Supreme Court of Ukraine does not have power to overrule the law, therefore, even if the formal suspension of the enforcement proceedings could be lifted, the enforcement proceedings would anyway depend on statutory restraints outside the courts’ competence.\n\n15.  As to the other remedies invoked by the Government, the Court notes that similar points have already been dismissed in a number of Court judgments (see Voytenko v. Ukraine, no. 18966/02, §§ 2931, 29 June 2004; Chernyayev v. Ukraine, no. 15366/03, § 25, 26 July 2005, Romanchenko v. Ukraine, no. 5596/03, § 14, 22 November 2005). In such cases the Court has found that the applicants were absolved from pursuing the remedies invoked by the Government.\n\n2.  The applicant’s complaints\n\n16.  In the light of the parties’ submissions and the above considerations, the Court dismisses the Government’s preliminary objection and concludes that the applicants’ complaints under Articles 6 § 1 and 13 of the Convention raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It finds no ground for declaring this part of the application inadmissible.\n\nB.  Merits\n\n17.  The Court will now examine the merits of the applicants’ complaint about the unreasonable length of the non-enforcement of the judgments of 15 and 16 May 2000.\n\n18.  In their observations, the Government contended that there had been no violation of Articles 6 § 1 or 13 of the Convention (as in the case of Romashov, cited above, §§ 28-33 and 37).\n\n19.  The applicants disagreed.\n\n20.  The Court notes that both judgments have remained unenforced for more than five years and eight months, and that there is no effective remedy at the applicants’ disposal to redress that delay.\n\n21.  The Court recalls that it has already found violations of Articles 6 § 1 and 13 of the Convention in cases raising issues similar to the present application (see, for instance, the Romashov judgment, cited above, §§ 42-46, and Voytenko v. , no. 18966/02, §§ 46-48, 29 June 2004).\n\nIII.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION\n\n23.  The applicants also complained that the non-enforcement of the judgments in their favour was in breach of Article 17 of the Convention, which provides as follows:\n\nArticle 17\n\n“Nothing in [the] Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”\n\n24.  The Court notes, however, that this complaint is wholly unsubstantiated. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.\n\nIV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n25.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n26.  Ms Glova claimed UAH 7,275 in respect of pecuniary and non-pecuniary damage. This amount comprises UAH 4,576 for the judgment debt, multiplied by 4.5 to cover inflation losses, and UAH 2,699 for non-pecuniary damage.\n\n27.  Ms Bregin claimed UAH 9,000 in respect of pecuniary and non-pecuniary damage. This amount comprises UAH 7,177 for the judgment debt, multiplied by 4.5 times to cover inflation losses, and UAH 1,823 for non-pecuniary damage.\n\n28.  The Government maintained that the applicants could have claimed compensation for inflation losses at the domestic level. They further contended that the applicants did not substantiate their claim for non-pecuniary damage.\n\n29.  As regards the claims for compensation for inflations losses, in view to its findings in the instant case (see paragraph 15 above), the Court considers that the applicants were absolved from pursuing the litigation suggested by the Government. However, the Court notes that these claims are not supported by any documents which would enable the Court to determine the amount. Consequently, it rejects this part of the claim.\n\n30.  In so far as the judgments in the applicants’ favour have not been enforced in full (paragraph 7 above), the Court considers that, if the Government were to pay the remaining judgment debts owed to Ms Glova and Ms Bregin, it would constitute full and final settlement of their claim for pecuniary damage.\n\nB.  Costs and expenses\n\n32.  The applicants did not submit any claim under this head. The Court therefore makes no award.\n\nC.  Default interest\n\n33.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Decides to join the applications;\n\n2.  Declares the complaints concerning the non-enforcement of the judgments under Articles 6 § 1 and 13 of the Convention admissible, and the remainder of the applications inadmissible;\n\n3.  Holds that there has been a violation of Article 6 § 1 of the Convention;\n\n4.  Holds that there has been a violation of Article 13 of the Convention;\n\n5.  Holds\n\n(a)  that the respondent State is to pay Ms Glova, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the judgment debt still owed to her, as well as EUR 452 (four hundred and fifty-two euros) in respect of non-pecuniary damage;\n\n(b)  that the respondent State is to pay Ms Bregin, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the judgment debt still owed to her, as well as EUR 305 (three hundred and five euros) in respect of non-pecuniary damage;\n\n(c)  that the above amounts shall be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable;\n\n(d)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n6.  Dismisses the remainder of the applicants’ claim for just satisfaction.\n\nDone in English, and notified in writing on 28 February 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_188","text":"PROCEDURE\n\n1.  The case originated in an application (no. 12047/05) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Baykal Kuveydar (“the applicant”), on 18 March 2005.\n\n2.  The applicant was represented by Mr S. Dursun, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.\n\n3.  The applicant alleged that he had not had a fair trial, in that the domestic court had refused his request to have witnesses on his behalf examined. He also complained about his alleged ill-treatment during his time in police custody, the court’s use of his police statements, which, according to him, had been taken under duress, and its reliance on evidence obtained through third persons’ telephone conversations.\n\n4.  On 31 August 2010 the application was communicated to the Government.\n\nTHE FACTS\n\nTHE CIRCUMSTANCES OF THE CASE\n\n5.  The applicant was born in 1973 and is currently serving a prison sentence in Edirne.\n\n6.  On 8 February 2001 a certain İ.Y. and his son M.Y., filed a complaint with the Bursa Public Prosecutor’s office, claiming that they had been threatened by members of a criminal organisation, including the applicant, who had acted under his boss, O.K., and that they had had to give them a substantial amount of money and property as a result.\n\n7.  On 20 March 2001 the Public Prosecutor at the Istanbul State Security Court requested the Bursa Security Directorate to investigate the matter within the context of an investigation concerning a bigger criminal organisation.\n\n8.  On 21 March 2001 police officers from the Bursa Security Directorate conducted a search at the applicant’s house, during which they found an unlicensed semi-automatic weapon. The applicant was immediately arrested after the search.\n\n9.  Subsequently, he was taken to the Bursa Directorate of Forensic Medicine, where he was examined by a doctor who noted that there were no signs of ill-treatment on his body. He was placed in police custody on the same day.\n\n10.  On 23 March 2001, following the extension of his police custody by two days, the applicant underwent another medical examination. The report drawn up after that examination noted the names of several persons who had also been arrested as part of the same investigation and indicated that no injury could be found on any of them.\n\n11.  On 24 March 2001 the applicant gave his police statements. He described the course of the events in detail and stated that he and certain people that he worked with had visited İ.Y. and M.Y. at their homes several times in order to obtain money by threatening them.\n\n12.  On 25 March 2001 the applicant’s police custody was extended and he was medically examined once again together with twenty-five others. The doctor who conducted the examination simply noted that there were no traces of ill-treatment on any of the persons he had examined. The day after, 26 March 2001, another doctor issued a report in respect of the same people, stating that none of them had any complaints and that he could find no signs of injury on their bodies.\n\n13.  On 28 March 2001 the applicant went through a final medical examination before he was detained on remand. This time, a report specific to him was drawn up, stating that he had not put forward any physical or psychological complaints during the examination and that there was no indication of ill-treatment on his body. In his application form, the applicant maintained that the doctor had taken account of his submissions and examined his genitals, but had not been able to find any traces of the electric shocks administered to him.\n\n14.  On the same day the applicant gave his statements before the Public Prosecutor at the Istanbul State Security Court. He reiterated his account of the events, but denied certain parts of his police statements, whereby he had admitted to being a member of a criminal organisation and having threatened İ.Y. He did not indicate anything with regard to his alleged illtreatment.\n\n15.  On 21 June 2001 the Public Prosecutor filed an indictment with the Istanbul State Security Court, accusing the applicant of armed robbery, membership of a criminal organisation and illegally carrying weapons. After having explained in detail the composition and acts of a criminal organisation, the Public Prosecutor indicated that the applicant was a member of another organisation, which had threatened and extracted money from İ.Y., a member of the first one. In his recapitulation of the events, the Public Prosecutor mentioned a certain A.V.O., who he claimed to have been involved in the money transactions at issue and to have been threatened by that second criminal organisation. He requested the opening of criminal proceedings against a total of thirty-one people, accusing them of being members of two separate criminal organisations.\n\n16.  On 13 September 2001, at the first hearing before the Istanbul State Security Court, İ.Y. stated in the absence of the applicant (who was unrepresented) that he had asked for help from the applicant’s boss, O.K., to sell some of his property in order to pay his debts and that he had paid him a certain amount in return. He claimed that after the transaction, the applicant had threatened him to obtain more money.\n\n17.  At the second hearing, held on 6 December 2001, the applicant stated before the court that the indictment had not been served on him and that he had not fully understood the charges against him. After having described the events, he maintained that he and his boss had helped İ.Y. pay his debts and that he had just asked him to pay their share, without making any threats. He further retracted the previous statements he had made before the police and the Public Prosecutor. Finally, he argued that he had been subjected to ill-treatment while in police custody, without giving any details about his allegation.\n\n18.  During the same hearing, M.Y. submitted that his father, İ.Y., had been threatened by the applicant. The applicant was not given an opportunity to comment on these submissions.\n\n19.  On 9 April 2002 the Public Prosecutor submitted his written opinion to the Istanbul State Security Court. He stated that the telephones of two of the accused had been intercepted and that the conversations between them and with the applicant had revealed that the latter had threatened İ.Y. upon an order from O.K. In describing the events at issue, the Public Prosecutor once again maintained that A.V.O. had been involved in the transactions and had been threatened by fellow members of the applicant’s criminal organisation. He further indicated that the unfolding of the events had been corroborated by the statements of all of the accused, but that they had all denied having threatened İ.Y. and M.Y. Finally, relying on the telephone recordings and the statements of the other accused, the Public Prosecutor proposed that the applicant should be found guilty as charged.\n\n20.  Subsequently, the applicant submitted his statements to the court, requesting the examination of two witnesses, A.V.O., who had been mentioned in the Public Prosecutor’s written opinion, and a certain İ.D.\n\n21.  At the hearing on 3 September 2002 the Istanbul State Security Court rejected the request, finding that the examination of the witnesses called by the applicant would have no effect on the outcome of the proceedings. After making a summary of all of the defendants’ statements, the court found the applicant guilty as charged, and sentenced him to twenty years and ten months’ imprisonment and a judicial fine. In its reasoning, it stated that the applicant’s guilt had been established on the basis of an overall assessment of the evidence at its disposal, without specifying which particular evidence it relied on.\n\n22.  The applicant appealed against the judgment, arguing that the court had failed to hear any witnesses on his behalf and that it had restricted his right to defend himself during the course of the proceedings, in that it had not taken account of any of his submissions.\n\n23.  On 12 April 2004 the Court of Cassation upheld the judgment after holding a hearing, during which the applicant was not present.\n\n24.  The applicant was not represented by a lawyer at any stage of the proceedings, including the appeal proceedings before the Court of Cassation.\n\n25.  On 11 October 2004 a committal order concerning the execution of the applicant’s sentence was prepared. It was notified to the applicant by the prison administration on 13 October 2004.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION\n\n26.  The applicant complained under Article 3 of the Convention that he had been subjected to ill-treatment during his time in police custody. In that connection, he claimed that he had been blindfolded, beaten and subjected to Palestinian hanging and had received electric shocks to his genitals several times. He further alleged that the medical examinations had not been conducted diligently and that his complaints had not been taken into account by the domestic authorities.\n\n27.  The Government submitted that the applicant had not exhausted the domestic remedies in that he had not brought a case before the administrative courts with regard to his allegations of ill-treatment. They further maintained that the applicant had failed to comply with the sixmonth time-limit, arguing that he should have brought his complaint under Article 3 before the Court within six months after 28 March 2001, the day his police custody had ended. Finally, they contended that the applicant had failed to substantiate his allegations as none of the medical reports drawn up in his respect had indicated any signs of ill-treatment on his body, and that he had not raised his allegations before the domestic authorities at any point except for the hearing held on 6 December 2001.\n\n28.  At the outset, with regard to the Government’s reference to the administrative remedy, the Court reiterates that in the area of unlawful use of force by State agents – and not mere fault, omission or negligence –, civil or administrative proceedings aimed solely at awarding damages, rather than ensuring the identification and punishment of those responsible, are not adequate and effective remedies capable of providing redress for complaints based on the substantive aspect of Articles 2 and 3 of the Convention (see Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, § 227, ECHR 2014 (extracts), and Müftüoğlu and Others v. Turkey, nos. 34520/10 and 2 others, § 52, 28 February 2017).\n\n29.  That being said, it considers that it is not necessary to examine further whether the applicant exhausted domestic remedies or complied with the six-month rule within the meaning of Article 35 § 1, since it considers in any event that this part of the application is inadmissible for the following reasons.\n\n30.  The Court observes that during his time at police custody, the applicant underwent five medical examinations conducted by different doctors. None of the medical reports drawn up after those examinations indicated any signs of injury on the applicant. Although three of the reports were drafted for numerous people, the Court observes that the ones issued immediately before and on the last day of the applicant’s police custody concerned solely the applicant. In that respect, the Court has regard to the latter examination, during which the applicant submitted that the doctor had taken account of his allegations of having received electric shocks, but could not find any signs in support of those claims. It notes that the applicant has adduced no material which could call into question the findings in the medical reports and add probative weight to his allegations.\n\n31.  The Court notes furthermore that the applicant did not raise the matter before the Public Prosecutor and did so only at the first hearing he attended before the Istanbul State Security Court, and without specifying his complaint. He did not bring his complaint before the domestic authorities at the subsequent stages of the proceedings either.\n\n32.  Consequently, the Court finds that the applicant has failed to substantiate his allegations of ill-treatment. Moreover, in the absence of an “arguable claim” and any evidence on which to start an investigation about the applicant’s allegations, there is nothing to call into question the manner in which the domestic judicial authorities acted in that regard (see Soysal v. Turkey, no. 50091/99, § 52, 3 May 2007).\n\n33.  It follows that the applicant’s complaint under Article 3 of the Convention is manifestly ill-founded pursuant to Article 35 § 3 and 4.\n\nII.  ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (d) OF THE CONVENTION\n\n34.  The applicant complained that the criminal proceedings against him had been unfair because he had been deprived of an opportunity to prove his defence and had not been able to obtain the attendance of witnesses on his behalf under the same conditions as witnesses against him, as provided in Article 6 §§ 1 and 3 (d) of the Convention, which reads as follows:\n\n“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...\n\n...\n\n3.  Everyone charged with a criminal offence has the following minimum rights\n\n(d)  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him ... .”\n\nA.  Admissibility\n\n35.  The Government argued that the applicant had not complied with the sixmonth time-limit in that he should have lodged the application with the Court within six months after 12 April 2004, the date on which the Court of Cassation rendered the final decision with regard to the applicant’s conviction.\n\n36.  The Court observes that on 12 April 2004 the Court of Cassation held a hearing and upheld the judgment of the Istanbul State Security Court. The applicant was not present during the hearing. Nor was he represented by a lawyer.\n\n37.  The Court reiterates that where an applicant is entitled to be served ex officio with a written copy of the final domestic decision, the object and purpose of Article 35 § 1 of the Convention are best served by counting the sixmonth period as running from the date of service of the written judgment. The Court notes that, by virtue of Law no. 7201 on notifications, the prison administration is responsible for informing detainees of the outcome of their cases, particularly the final determination of any sentence of imprisonment. Consequently, taking into account that the applicant was not present at the hearing held by the Court of Cassation and did not benefit from any legal assistance during the course of the proceedings, the Court finds that the aim of Article 35 § 1 of the Convention is met by calculating the running of the six month period from 13 October 2004, the date on which he received the committal order. As the application was lodged on 18 March 2005, within six months following that date, the Court dismisses the Government’s objection under this head (see Töre v Turkey (dec.), no. 50744/99, 10 June 2004, and Karabulut v. Turkey, no. 56015/00, § 38, 24 January 2008).\n\n38.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n39.  The applicant reiterated his complaint and submitted that his sentence could have been significantly reduced had the court heard the witnesses on his behalf, in that their statements would have proved that he had not committed armed robbery.\n\n40.  The Government argued that there had been no violation of the applicant’s right to a fair trial in that the domestic court had evaluated the facts and evidence at its disposal in line with the domestic legislation and had respected the applicant’s defence rights at every stage of the proceedings. Referring to the Court’s Georgios Papageorgiou v. Greece judgment (no. 59506/00, ECHR 2003VI (extracts)), they indicated that it was for the national courts, and in particular the court of first instance, to assess the evidence before them as well as the relevance of the evidence which the accused sought to adduce.\n\n41.  The Court reiterates that the right to call witnesses is not absolute and can be limited in the interests of the proper administration of justice. Article 6 § 3 (d) does not require the attendance and examination of every witness on the accused’s behalf. Its essential aim, as is indicated by the words “under the same conditions”, is full “equality of arms” in the matter. With this proviso, it leaves it to the competent national authorities to decide upon the relevance of proposed evidence, in so far as this is compatible with the concept of a fair trial, which dominates the whole of Article 6 (see Engel and Others v. the Netherlands, 8 June 1976, § 91, Series A no. 22; Polyakov v. Russia, no. 77018/01, § 31, 29 January 2009; and Gregačević v. Croatia, no. 58331/09, § 60, 10 July 2012).\n\n42.  The Court notes that it is not sufficient for a defendant to ask for certain witnesses to be questioned; he must, in addition, support his request by explaining why it is important for the witnesses concerned to be heard and their evidence must be necessary for the establishment of the truth (see Perna v. Italy [GC], no. 48898/99, § 29, ECHR 2003V). Thus, when the applicant has made a request to hear witnesses which is not vexatious, and which is sufficiently reasoned, relevant to the subject matter of the accusation and could arguably have strengthened the position of the defence or even led to the applicant’s acquittal, the domestic authorities must provide relevant reasons for dismissing such a request (see Polyakov, cited above, §§ 34-35; Topić v. Croatia, no. 51355/10, § 42, 10 October 2013; and Poropat v. Slovenia, no. 21668/12, § 42, 9 May 2017).\n\n43.  While it is true that the applicant did not request the examination of witnesses on his behalf until the last hearing held on 3 September 2002, asking the court to hear A.V.O. and İ.D. just before that date, the Court considers, in view of his inability to have access to the indictment mentioning the former (see paragraph 17 above), that he could only do so following the submission of the Public Prosecutor’s written opinion which described A.V.O.’s role in the events (see paragraph 19 above). It cannot therefore be claimed that the applicant’s request to have examined witnesses in his defence was vexatious or that he made no reasonable effort to obtain their attendance.\n\n44.  The Court observes that the Istanbul State Security Court rejected the applicant’s request by merely stating that the examination of the witnesses called by the applicant would have no effect on the outcome of the proceedings, which cannot be considered a reasoned decision in itself (see Topić, cited above, § 47). Furthermore, the Court of Cassation did not address the applicant’s argument concerning the trial court’s refusal to call witnesses.\n\n45.  The Court notes that it is not clear from the case-file whether the applicant adequately reasoned his request to have A.V.O. and İ.D. heard by explaining the relevance and importance of those witnesses for the assessment of the case against him. Nevertheless, it observes that the applicant was not represented by a lawyer at any stage of the proceedings, and hence, did not benefit from any legal assistance when he requested the attendance of the two witnesses in criminal proceedings where he faced serious charges and the risk of a heavy criminal penalty. In this connection, the Court finds it noteworthy that A.V.O.’s involvement in the events was considered sufficiently significant by the Public Prosecutor at the Istanbul State Security Court, who mentioned him in both the bill of indictment of 21 June 2001 and his written opinion of 9 April 2002 (see paragraphs 15 and 19 above). Having regard to the prosecution’s recognition of the relevance of that witness (see, mutatis mutandis, Pello v. Estonia, no. 11423/03, § 33, 12 April 2007, where the relevance of the evidence concerned for the establishment of the truth had been recognised both in the bill of indictment and by the County Court), the Court considers that the State Security Court should have evaluated the applicant’s request to have A.V.O. heard by addressing the potential effects of his testimony and should have given reasons for its exclusion. However, it failed to do so and simply rejected the applicant’s request by indicating that the examination of the witnesses called by him would have no effect on the outcome of the proceedings (see paragraph 21 above). The applicant’s arguments in that regard were not taken into account by the Court of Cassation either.\n\n46.  Even though the Court cannot speculate as to what extent an examination of the two witnesses would have strengthened the position of the defence, it considers that the equality between the prosecution and the defence must prevail throughout the trial. The circumstances of the case thus required that the applicant be given an opportunity to examine or have examined one or more witnesses of his choice (see Vaturi v. France, no. 75699/01, § 58, 13 April 2006, and Băcanu and SC « R » S.A. v. Romania, no. 4411/04, § 81, 3 March 2009). The Court therefore concludes that the constraints affecting the rights of the defence in the present case were such that the applicant cannot be said to have received a fair trial.\n\n47.  There has therefore been a violation of Article 6 §§ 1 and 3 (d) of the Convention.\n\nIII.  OTHER ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION\n\n48.  The applicant further complained under Article 6 § 1 of the Convention that he had been denied a fair hearing in that the domestic court had taken into account unlawful evidence, gathered through other persons’ conversations, without there being a decision to intercept his telephone conversations. He also argued that his police statements had been taken under duress and that their use by the trial court in his conviction violated his right to a fair trial.\n\n49.  Having regard to its finding of a violation under Article 6 §§ 1 and 6 (d) of the Convention (see paragraph 47 above), the Court considers that there is no need to make a separate ruling on the admissibility and merits of the applicant’s remaining complaints with regard to the fairness of the proceedings (see Sadak and Others v. Turkey (no. 1), nos. 29900/96 and 3 others, § 69, ECHR 2001VIII, and Abdulgafur Batmaz v. Turkey, no. 44023/09, § 54, 24 May 2016).\n\nIV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n50.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n51.  The applicant claimed 148,900 euros (EUR) in respect of pecuniary damage and EUR 75,000 in respect of non-pecuniary damage.\n\n52.  The Government contested these claims, considering the requested amounts unsubstantiated and excessive.\n\n53.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it considers that the applicant must have suffered pain and distress which cannot be compensated solely by the Court’s finding of a violation. Ruling on an equitable basis, it awards him EUR 1,500 in respect of nonpecuniary damage (see Balta and Demir v. Turkey, no. 48628/12, § 69, 23 June 2015).\n\n54.  The Court further notes that Article 311 of the Code of Criminal Procedure allows for the reopening of the domestic proceedings in the event that the Court finds a violation of the Convention (see Balta and Demir, cited above, § 70).\n\nB.  Costs and expenses\n\n55.  The applicant also claimed EUR 3,000 for the costs and expenses and EUR 8,000 for his lawyer’s fee.\n\n56.  The Government contested these amounts and submitted that the applicant had failed to support his claims with documentary evidence.\n\n57.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the applicant did not submit any contracts, receipts or other vouchers on the basis of which a specific amount could be established. Accordingly, the Court does not make any award under this head.\n\nC.  Default interest\n\n58.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\n1.  Declares the complaint under Article 6 §§ 1 and 3 (d) of the Convention admissible and the complaint under Article 3 of the Convention inadmissible;\n\n2.  Holds that there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention;\n\n3.  Holds that there is no need to examine the other complaints under Article 6 of the Convention;\n\n4.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Turkish liras at the rate applicable at the date of settlement;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n5.  Dismisses the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 19 December 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_415","text":"PROCEDURE\n\n1.  The case originated in an application (no. 9244/02) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Kenan Tandoğan (“the applicant”), on 31 July 2001.\n\n2.  The applicant was represented by Mr and Mrs Kırdök, lawyers practising in . The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.\n\n3.  On 17 November 2006 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n4.  The applicant was born in 1973 and lives in .\n\n5.  On 31 March 1994 the applicant was taken into custody by police officers from the anti-terror branch of the Istanbul Security Directorate on suspicion of membership of an illegal organisation, the Dev-Sol (Revolutionary Left).\n\n6.  On 9 April 1994 the applicant was brought before the  and remanded in custody. He was placed in Ümraniye Prison.\n\n7.  On 2 May 1994 the public prosecutor at the  filed a bill of indictment against the applicant and nine other persons. The public prosecutor charged the applicant with attempting to undermine the constitutional order, an offence defined under Article 146 of the Criminal Code.\n\n8.  Subsequently, the case brought against the applicant was joined with another case pending before the .\n\n9.  Following the riots in the Ümraniye Prison to protest against F-Type prisons, in December 2000 the applicant was sent to Kandıra F-type Prison.\n\n10.  On 25 December 2000 in connection with the incidents that took place in the Ümraniye Prison, the judge at the Üsküdar Magistrate's Court ordered the applicant's detention on remand in absentia. In the detention order, it was stated that the applicant was accused of homicide, armed riot against prison administration and damaging prison property.\n\n11.  On 12 January 2001 the applicant was brought before the Kandıra Magistrate's Court and the detention order dated 25 December 2000 was read out to him. He was also reminded that he could appeal against this decision before the .\n\n12.  On 23 March 2001 the Üsküdar public prosecutor filed a bill of indictment with the  against the applicant and 398 other persons on account of the incidents in Ümraniye Prison. The prosecutor requested the court to convict the accused persons under Articles 264, 304, 450, 456 and 457 of the Criminal Code of homicide, of having started a riot in the prison and of damage to public property.\n\n13.  In the meantime, on 9 February 2001, the  ordered the applicant's release pending trial within the context of the proceedings brought against him with the charge under Article 146 of the Criminal Code. However, he was not released as his detention on remand had been ordered on 25 December 2000 in connection with the incidents in the Ümraniye Prison.\n\n14.  On 14 February 2001 the applicant filed a petition with the Üsküdar Magistrates' Court. In his petition, he maintained that, although his release had been ordered by the state security court, he was not released and that he assumed that the reason for his continued detention was the Üsküdar Magistrate's Court's detention order. The applicant contended that he was not aware of the reasons for this order and requested to be brought before a court and to be released.\n\n15.  On 6 July 2001 the  held its first hearing and ordered the release of the applicant –together with twelve other accused- pending trial.\n\n16.  On 7 July 2001 at around 8.30 p.m. the applicant was released from prison.\n\n17.  In 2004 the State Security Courts were abolished following a constitutional amendment and the applicant's case before the  was transferred to the .\n\n18.  On 27 October 2004 the  held that, since the applicant was a minor when the crimes in question had been committed, the case should be examined by the Istanbul Juvenile Court. It accordingly declared non-jurisdiction.\n\n19.  On 14 November 2006 the  held its first hearing and decided that it lacked jurisdiction to examine the case. The case was accordingly remitted before the Court of Cassation to determine which court had jurisdiction to examine the case.\n\n20.  According to the information in the case file based on the latest submissions by the parties, the case is apparently still pending before the Court of Cassation.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION\n\nIn respect of the applicant's first detention on remand\n\n21.  The applicant complained that his detention on remand exceeded the “reasonable time” requirement of Article 5 § 3 of the Convention, which in so far as relevant reads as follows:\n\n“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”\n\n22.  The Government contested that argument.\n\nA.  Admissibility\n\n23.  The Government argued that the applicant has not exhausted the domestic remedies as he had not awaited the outcome of the proceedings before the domestic courts before lodging his application with the Court. In their view, if the applicant were to be acquitted at the end of the proceedings, he could request compensation pursuant to Law No. 466 on the Payment of Compensation to Persons Unlawfully Arrested or Detained.\n\n24.  In the instant case, the applicant complained under Article 5 § 3 of the Convention that the length of his detention on remand had been excessive.\n\n25.  The Court has already held that Law No. 466, which provides for an action for damages taken against the State in respect of the detention of a person who is subsequently acquitted, concerns Article 5 § 5 only (see, among many others, Yağcı and Sargın v. Turkey, judgment of 8 June 1995, Series A no. 319-A, § 44). Therefore, the compensation which could be awarded to the applicant, if he were to be acquitted at the end of the proceedings, cannot be considered to constitute recognition of or a redress for the specific violation alleged by the applicant, namely the excessive length of his detention on remand (see Duyum v. , no. 57963/00, § 58, 27 March 2007).\n\n26.  The Court accordingly dismisses the Government's objection.\n\n27.  The Court notes this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n28.  The Court notes that, in the instant case, the period to be taken into consideration began on 31 March 1994 with the applicant's arrest and ended on 9 February 2001, when the  ordered his release. It thus lasted approximately 6 years and 10 months. During this period, the domestic courts prolonged the applicant's detention on remand using identical, stereotyped terms, such as “having regard to the nature of the offence, the state of evidence and the duration of detention”.\n\n29.  The Court has frequently found violations of Article 5 § 3 of the Convention in cases raising similar issues to those in the present application (see, for example, Atıcı v. Turkey, no. 19735/02, 10 May 2007; Solmaz, cited above; Dereci v. Turkey, no. 77845/01, 24 May 2005; Taciroğlu v. , no. 25324/02, 2 February 2006).\n\n30.  Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, it considers that in the instant case the length of the applicant's pre-trial detention was excessive and contravened Article 5 § 3 of the Convention.\n\n31.  There has accordingly been a violation of this provision.\n\nIn respect of the applicant's second detention on remand\n\nA.  As regards the applicant's complaint raised under Article 5 § 2\n\n32.  The applicant complained that he was not informed of the reasons of his second detention on remand and of the charges against him.\n\n33.   The Government maintained that the applicant's allegation that he had not been informed of the reasons of his detention on remand and of the charges against him was unsubstantiated. They stated that the applicant was informed of the reasons of his detention on remand and the charges against him on 12 January 2001 when the Kandıra Magistrate's Court judge read out to him the content of the detention order dated 25 December 2000.\n\n34. The Court recalls that, by virtue of Article 5 § 2, any person arrested must be told, in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness in accordance with paragraph 4. Whilst this information must be conveyed “promptly”, it need not be related in its entirety by the arresting officer at the very moment of the arrest. Whether the content and promptness of the information conveyed were sufficient is to be assessed in each case according to its special features (see, for instance, H.B. v. Switzerland, no. 26899/95, § 44, 5 April 2001).\n\n35.  In the present case, following the incidents that took place in the Ümraniye Prison in December 2000, the applicant was accused of homicide, of participating in a riot and of damaging prison property. On 25 December 2000 the Üsküdar Magistrate's Court ordered his detention on remand in abstentia. In the meantime, the applicant was transferred from Ümraniye Prison to Kandıra Prison. On 12 January 2001 when the applicant was brought before the Kandıra Magistrate's Court, the detention order dated 25 December 2000 was read out to him. This detention order indicated that he was accused of homicide, armed riot against prison administration and damaging prison property.\n\n36.  The Court notes that when the Üsküdar Magistrate's Court delivered the detention order on 25 December 2000, the applicant was already detained on remand in the Ümraniye Prison. In the Court's view, the authorities therefore had the possibility of providing his presence before the domestic court when delivering the detention order. However, in the context of this case, the Court finds that the detention order was read out to the applicant on 12 January 2001 and it indicated the essential ground for his detention. As a result, the information furnished to the applicant by the Kandıra Magistrate's Court satisfied the requirements of Article 5 § 2.\n\n37.  It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.\n\nB.  As regards the applicant's release following the release order dated 6 July 2001\n\n38.  The applicant complained under Article 5 § 1 that he had been unlawfully and arbitrarily kept in detention for twenty eight hours between the end of the trial on 6 July 2001 at about 4 p.m. and his release on 7 July 2001 at about 8.30 p.m. Article 5 § 1, in so far as relevant, reads as follows:\n\n“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:\n\n(a)  the lawful detention of a person after conviction by a competent court;\n\n(b)  the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;\n\n(c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;\n\n...”\n\n39.  The Government argued that the period of time in question had been normal, in view of the fact that there were several administrative formalities that had to be carried out before the applicant's release. Before releasing the applicant, the authorities had to verify whether he was wanted for another crime or whether there was another detention order against him. They further maintained that the authorities had not acted arbitrarily or deliberately delayed the applicant's release.\n\n40. The Court reiterates that the list of exceptions to the right to liberty secured in Article 5 § 1 is an exhaustive one and only a narrow interpretation of those exceptions is consistent with the aim of that provision, namely to ensure that no one is arbitrarily deprived of his or her liberty (see, among other authorities, the Giulia Manzoni v. Italy judgment of 1 July 1997, Reports 1997-IV, p. 1191, § 25).\n\n41.  While it is true that for the purposes of Article 5 § 1 (c) detention ceases to be justified “on the day on which the charge is determined” and that, consequently, detention after acquittal is no longer covered by that provision, “some delay in carrying out a decision to release a detainee is often inevitable, although it must be kept to a minimum” (see the Giulia Manzoni, cited above, § 25 in fine). However, the Court must, scrutinise complaints of delays in release of detainees with particular vigilance. It is incumbent on the respondent Government to provide a detailed account of the relevant facts (see, Labita v. Italy ([GC], no. 26772/95, ECHR 2000-IV, § 170 and Bojinov v. , no. 47799/99, § 36, 28 October 2004).\n\n42.  The Government stated that the delay in the applicant's release had been caused due to administrative formalities. The Court reiterates that administrative formalities connected with release cannot justify a delay of more than several hours (see, Nikolov v. , no. 38884/97, § 82, 30 January 2003). In the present case, the applicant was released nearly twenty eight hours after the 's release order. In the absence of a strict account of the relevant events, hour by hour, the Government's contention that the delay in the applicant's release had been justified cannot be upheld (Bojinov, cited above, § 39).\n\n43.  In these circumstances, the applicant's continued detention following the release order did not amount to a first step in the execution of the order for his release and therefore did not come within subparagraph 1 (c), or any other sub-paragraph, of Article 5.\n\n44.  Accordingly, there has been a violation of Article 5 § 1 on that account.\n\nII.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION\n\n45.  The applicant complained under Article 6 § 1 of the Convention about the length of the criminal proceedings brought against him. Article 6 § 1 provides as relevant:\n\n“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”\n\n46.  The Government contested that allegation.\n\n47.  The Court notes that the period to be taken into consideration began on 31 March 1994 when the applicant was taken into police custody and, according to the information in the case file, the proceedings are still pending before the Court of Cassation on the date of adoption of the present judgment. They have thus lasted over thirteen years.\n\nA.  Admissibility\n\n48.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n49.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II)\n\n50.  The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Pélissier and Sassi, cited above).\n\n51.  Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.\n\nThere has accordingly been a breach of Article 6 § 1.\n\nIII. APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n52.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n53.  The applicant claimed 20,000 euros (EUR) in respect of non-pecuniary damage.\n\n54.  The Government contested this claim.\n\n55.  Ruling on an equitable basis, the Court awards the applicant EUR 13,500 in respect of non-pecuniary compensation.\n\nB.  Costs and expenses\n\n56.  The applicant also claimed 250 New Turkish liras (YTL)\n - approximately EUR 140 - in respect of costs and expenses, and YTL 10,200 - approximately EUR 5,700 - in respect of lawyers' fees.\n\n57.  The Government contested these claims.\n\nC.  Default interest\n\n59.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Declares the complaints raised under Article 5 §§ 3 and 1, and Article 6 § 1 admissible and the remainder of the application inadmissible;\n\n2.  Holds that there has been a violation of Article 5 § 3 of the Convention;\n\n3.  Holds that there has been a violation of Article 5 § 1 of the Convention;\n\n4.  Holds that there has been a violation of Article 6 § 1 of the Convention;\n\n5.  Holds\n\n(a)  that the respondent State is to pay the applicant within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts to be converted into New Turkish liras at the rate applicable at the date of settlement and free of any taxes or charges that may be payable:\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n6.  Dismisses the remainder of the applicant's claim for just satisfaction.\n\nDone in English, and notified in writing on 20 September 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_230","text":"PROCEDURE\n\n1.  The case originated in an application (no. 29483/09) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Semir Güzel (“the applicant”), on 6 May 2009.\n\n2.  The applicant was represented by Mr M. Beştaş and Ms M. Danış Beştaş, lawyers practising in Diyarbakır. The Turkish Government (“the Government”) were represented by their Agent.\n\n3.  On 7 January 2014 the complaint concerning alleged interference with the applicant’s right to freedom of expression and of assembly was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n4.  The applicant was born in 1968 and lives in Diyarbakır.\n\n5.  At the time of the events in question the applicant was the vicepresident of HAK-PAR (Hak ve Özgürlükler Partisi – the Rights and Freedoms Party).\n\n6.  On 4 January 2004 the party held its first ordinary congress at a restaurant in Ankara, where the applicant was elected by the delegates to act as the meeting’s chairman.\n\n7.  On 28 February 2005 a public prosecutor at the Ankara public prosecutor’s office filed an indictment with the Ankara Criminal Court of First Instance against thirteen members of HAK-PAR, including the applicant, for acting in violation of section 81 (c) of Law no. 2820 during the congress on the grounds, inter alia, that there had been banners in Kurdish and that most of the speeches given by the delegates had been in Kurdish.\n\n8.  The applicant acknowledged before the first-instance court that he had not intervened as the chairman when certain delegates had spoken in Kurdish. In this connection, he submitted that, as a founder member of HAKPAR, he believed that Kurdish should be used in all areas of life; that those who spoke Kurdish were speaking in their mother tongue; and that he believed that it was neither legal nor ethical for him to intervene to force people to speak in a language other than their mother tongue. He maintained that such speeches could not have constituted an offence, when taking into account laws that had been enacted in compliance with the conditions for membership of the European Union, and the provisions of the European Convention on Human Rights. In this connection, the applicant also submitted that the relevant provisions of Law no. 2820 were contrary to the Constitution.\n\n9.  On 7 December 2005 the first-instance court dismissed an application from the defendants to suspend the proceedings and transfer the case to the Constitutional Court for examination of the compatibility of the relevant provisions with the Constitution.\n\n10.  On 14 February 2007 the Ankara Criminal Court of First Instance convicted the applicant of the charges. In particular, the court considered that the applicant had, despite warnings from a government superintendent present at the congress, continued to allow certain delegates to give their speeches in Kurdish, in breach of section 81 (c) of Law no. 2820. The applicant was sentenced to one year’s imprisonment.\n\n11.  On 23 March 2011 the Court of Cassation quashed the judgment of the first-instance court on the ground that the latter had failed to give any consideration to whether the conditions for suspending the delivery of the judgment against the defendants, pursuant to Article 231 of the Code of Criminal Procedure, had been met.\n\n12.  On 6 December 2011 the Ankara Criminal Court of First Instance ordered that the criminal proceedings against the applicant and the other defendants be terminated, on the ground that the statutory time-limit prescribed under domestic law had expired.\n\nII.  RELEVANT DOMESTIC LAW AND PRACTICE\n\n13.  Section 81 (c) of Law no. 2820 on the regulation of political parties (published in the Official Gazette of 24 April 1983) reads as follows:\n\n“Political parties\n\n(c)  cannot use a language other than Turkish when writing and printing party constitutions or programmes, at their congresses and open-air or indoor meetings, and while engaged in propaganda activities; they cannot use or distribute placards, phonograph recordings, audio and video tapes, brochures and statements written in a language other than Turkish; they cannot remain indifferent to such actions and acts when committed by others. However, it is possible to translate party statutes and programmes into foreign languages other than those forbidden by law.”\n\n14.  At the material time, section 117 of Law no. 2820 provided for a minimum of six months’ imprisonment for those who committed acts prohibited by Chapter IV of Law no. 2820.\n\n15.  On 12 January 2012 the Constitutional Court declared section 117 unconstitutional and abrogated it (merits no: 2011/62, decision no: 2012/2). In its decision, the Constitutional Court held, inter alia, that the ban laid down in sections 78-96 of the law in question applied to political parties, which were legal entities. However, those provisions, by virtue of the application of section 117, were found to be also applicable to individuals. The court considered that the prosecution of individuals for acts prohibited for political parties was in violation of the principle of legal certainty relating to crimes and penalties, as set forth in Article 38 of the Constitution. In particular, it considered that it was unclear which of the prohibitions laid out in Chapter IV of the Law could be applicable to individuals. It noted that the sanction to be applied was indiscriminate in that no distinction was made as to the status or position of a person within a political party. The Court therefore held that such provisions, which left a wide range of people engaging in political activities facing the threat of a criminal penalty, without differentiating between them, were not sufficiently foreseeable for individuals.\n\n16.  The aforementioned decision was published in the Official Gazette on 5 July 2012 and took effect on 5 January 2013.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLES 10 AND 11 OF THE CONVENTION\n\n17.  The applicant complained that he had been tried and convicted because he had failed to prevent some of the delegates at a meeting of a political party which he was chairing from speaking Kurdish, their mother tongue, instead of Turkish. He alleged that this was a breach of his rights under Articles 10 and 11 of the Convention,\n\n18.  The Court deems it appropriate to examine the complaint solely from the standpoint of Article 10 of the Convention, which reads as follows:\n\n“1.  Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers ...\n\n2.  The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime ....”\n\nA.  Admissibility\n\n19.  The Government argued that the applicant was not a victim within the meaning of Article 34 of the Convention because the criminal proceedings initiated against him had subsequently been discontinued on the ground that they had become time-barred. Accordingly, they requested that the Court declare the application incompatible ratione personae with the provisions of the Convention and reject the application.\n\n.  The applicant did not specifically address this point in his observations.\n\n.  The Court considers that the Government’s objection concerning the applicant’s victim status is inextricably linked to its examination of the question whether there has been an interference with the applicant’s right to freedom of expression under Article 10, and therefore to the merits of the case. Accordingly, the Court joins this question to the merits (see, for example, Altuğ Taner Akçam v. Turkey, no. 27520/07, § 51, 25 October 2011, and Dilipak v. Turkey, no. 29680/05, § 38, 15 September 2015).\n\n.  The Court notes that the application is not manifestly illfounded within the meaning of Article 35 § 3 of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n1.  The parties’ observations\n\n23.  The applicant maintained his allegations. In his observations, he observed, in particular, that the object of section 81 (c) of Law no. 2820 was to prevent the creation of minorities, and that therefore it did not cover the language of an existing minority, the Kurds. He further submitted that the mere fact that certain delegates at the party meeting spoke in Kurdish could not be construed as having served the aim of creating a minority. The applicant insisted that the relevant provisions of Law no. 2820 were incompatible with the Constitution and the Treaty of Lausanne. He maintained that the content of the speeches had been within the scope of freedom of expression and that the mere fact that the party delegates had chosen to speak in a language which had been better understood by most of the participants at the meeting was not in breach of the Constitution or international treaties. In this connection, the applicant emphasised that HAKPAR was a party representing Kurds. He was of the view that the interference with his rights and freedoms resulted from a desire to prevent Kurds from using their own language and, thus, to diminish Kurdish culture and language.\n\n24.  The Government drew the Court’s attention to the Constitutional Court decision of 12 January 2012 (see paragraph 15 above). They submitted that a breach of section 81 (c) of Law no. 2820 no longer constituted an offence. In support of their argument they submitted copies of two Court of Cassation judgments.\n\n25.  As to the merits, the Government submitted that section 117 of Law no. 2820 constituted the legal basis for the initial sentence imposed on the applicant and that this interference pursued “legitimate aims”, such as the protection of national security, territorial integrity or public safety, or the prevention of disorder or crime, within the meaning of Article 10 § 2 of the Convention. The Government relied on cases such as Zana v. Turkey (25 November 1997, § 50, Reports of Judgments and Decisions 1997VII); Karataş v. Turkey ([GC], no. 23168/94, § 44, ECHR 1999IV); and Sürek v. Turkey (no. 1) ([GC], no. 26682/95, § 52, ECHR 1999IV). The Government left it to the Court to assess whether the interference in question was “necessary in a democratic society”.\n\n2.  The Court’s assessment\n\n26.  The Court reiterates that any question of an alleged interference with an applicant’s right to freedom of expression hinges upon the prior establishment of whether the applicant has been directly affected by a measure which renders him a victim of a violation of his rights under Article 10 of the Convention (see Altuğ Taner Akçam, cited above, § 65).\n\n27.  It further reiterates that Article 10 of the Convention protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed (see, among other authorities, Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06, and 28964/06, § 53, ECHR 2011). Indeed, a review of the Court’s case-law shows that Article 10 of the Convention has been held to be applicable not only to the more common forms of expression, such as speeches and written texts, but also to other and less obvious media through which people sometimes choose to convey their opinions, messages, ideas and criticisms (see, in particular, Murat Vural v. Turkey, no. 9540/07, § 44, 21 October 2014, and the examples provided therein in §§ 45-51). Moreover, in certain circumstances, the Convention organs have also considered that the right to freedom of expression by implication also guarantees a “negative right” not to be compelled to express oneself (see, for example, K v. Austria, no. 16002/90, Commission Report of 13 October 1992, § 45; Strohal v. Austria, no. 20871/92, Commission decision of 7 April 1994; and a contrario, Gillberg v. Sweden [GC], no. 41723/06, §§ 86 and 94, 3 April 2012). Thus, an assessment of whether an impugned form of conduct falls within the scope of Article 10 of the Convention should not be restrictive, but inclusive (see, Murat Vural, cited above, § 52).\n\n.  In the light of its case-law, the Court considers that, in deciding whether a certain act or form of conduct falls within the ambit of Article 10 of the Convention, an assessment must be made of the nature of the act or conduct in question, in particular of its expressive character seen from an objective point of view, as well as of the purpose or the intention of the person performing the act or engaging in the conduct in question (ibid., § 54).\n\n.  In the instant case, the Court notes that criminal proceedings were initiated against the applicant, the vice-president of a political party and the chairperson of a congress of the party in question, for not preventing some of the delegates from speaking Kurdish, in breach of section 81 (c) of Law no. 2820. The applicant acted in this way despite warnings from a government superintendent, which, from an objective point of view, may be seen as an expressive act of defiance towards an authority representing the State. Furthermore, the Court notes that in the course of the criminal proceedings against him the applicant made it very clear that he had not used his power as chairperson to intervene when certain delegates spoke in Kurdish because of his view that Kurdish should be used in all areas of life; that those who spoke Kurdish were speaking in their mother tongue; and that he believed that it was neither legal nor ethical for him to intervene and to force people to speak in a language other than their mother tongue. In the light of the foregoing, the Court concludes that through his particular conduct the applicant exercised his right to freedom of expression within the meaning of Article 10 of the Convention (see, in the context of Article 11 read in the light of Article 10, Ezelin v. France, 26 April 1991, § 41, Series A no. 202). That provision is thus applicable in the present case.\n\n.  The Court further observes that the applicant was charged under section 117 of Law no. 2820 and sentenced by the firstinstance court to one year’s imprisonment. The criminal proceedings against the applicant were subsequently terminated on the ground that the statutory time-limit prescribed under domestic law had expired and the conviction therefore no longer stood. However, the applicant, an active politician, continued to face the threat of a criminal sanction, entailing a prison sentence, for nearly seven years during the course of the criminal proceedings. Moreover, during the same lengthy period, he was also left in incertitude as to whether or not he ran the risk of new set of criminal proceedings being instituted against him for similar offences, that is not preventing the use of the Kurdish language in the contexts of meetings of a political party, if he was elected to act as a chairman in political party meetings. In view of the above, the Court considers that the application of the prohibition contained in section 81 (c) of Law no. 2820 at the material time amounted to interference with the right to freedom of expression of such a nature that it directly affected the applicant (see, mutatis mutandis, Dilipak, cited above, § 49).\n\n.  For the above reasons, the Court dismisses the Government’s preliminary objection concerning the applicant’s alleged lack of victim status.\n\n32.  Such an interference will contravene Article 10 of the Convention unless it is “prescribed by law”, pursues one or more of the legitimate aims prescribed by paragraph 2 of Article 10, and is “necessary in a democratic society” for achieving such an aim or aims.\n\n33.  The Court reiterates that the expression “prescribed by law”, within the meaning of Article 10 § 2, requires firstly that the impugned measure should have some basis in domestic law; however, it also refers to the quality of the law in question, requiring that it should be accessible to the person concerned, who must moreover be able to foresee its consequences, and that it should be compatible with the rule of law (see, among other authorities, Dink v. Turkey, nos. 2668/07, 6102/08, 30079/08, 7072/09 and 7124/09, § 114, 14 September 2010).\n\n34.  One of the requirements flowing from the expression “prescribed by law” is foreseeability. Thus, a norm cannot be regarded as a “law” unless it is formulated with sufficient precision to enable citizens to regulate their conduct; they must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 141, ECHR 2012, and Delfi AS v. Estonia [GC], no. 64569/09, § 121, ECHR 2015). Such consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable (see Perinçek v. Switzerland [GC], no. 27510/08, § 131, 15 October 2015).Whilst certainty is highly desirable, it may bring in its train excessive rigidity, and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice (see, for example, Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 41, ECHR 2007IV).\n\n35.  As regards accessibility, the Court notes that the provisions in question satisfied this condition, as Law no. 2820 on the regulation of political parties had been published in the Official Gazette of 24 April 1983.\n\n36.  On the issue of foreseeability, the Court observes that the wording of section 81 (c) of Law no. 2820 created a blanket prohibition on the use by political parties of any language other than Turkish for their constitutions or programmes, at congresses and meetings and whilst engaging in propaganda activities. It further held that “they cannot remain indifferent to such actions and acts when committed by others”. Section 117 of Law no. 2820 provided for a minimum six-month prison sentence for anyone who performed acts prohibited by section 81 (c) of Law no. 2820.\n\n37.  The Court observes that the Constitutional Court subsequently declared section 117 unconstitutional and abrogated it. The Constitutional Court found that the prosecution of individuals for carrying out acts prohibited for political parties was in violation of the principle that crimes and punishments should be prescribed by law, as laid out in Article 38 of the Constitution.\n\n38.  Although requested by the Court to do so, the Government have failed to submit any examples of domestic judicial cases showing how the provisions applicable at the material time were interpreted.\n\n39.  In view of the above, the Court finds section 81 (c) of Law no. 2820 to be far from precise as to what type of inaction could form a basis for criminal prosecution and to whom it would apply. Accordingly, it considers that the wording of section 81 of Law no. 2820 was not clear enough to have enabled the applicant to foresee that he would face criminal proceedings, pursuant to section 117 of Law no. 2820, owing to his failure to intervene when certain delegates gave speeches in Kurdish when he was acting as the chairman of the general congress of his political party.\n\n40.  Accordingly, the interference with the applicant’s freedom of expression was not prescribed by law. That being so, the Court is not required to determine whether this interference pursued a legitimate aim or whether it was proportionate to the aim pursued.\n\n41.  The Court concludes, therefore, that there has been a violation of Article 10 of the Convention.\n\nII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n42.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n43.  The applicant claimed an award in respect of pecuniary damage, the amount of which he left to the discretion of the Court, as a result of the lengthy criminal proceedings initiated against him. He further claimed 60,000 Turkish liras (TRY) (approximately 20,800 euros (EUR)) in respect of non-pecuniary damage incurred as a result of breaches of Articles 6, 10 and 11 of the Convention and Article 3 of Protocol No.1.\n\n44.  The Government invited the Court not to make an award in respect of pecuniary damage because they considered that the applicant had not made any claims for a determined amount. They left it to the Court’s discretion whether to make an award to the applicant in respect of non-pecuniary damage.\n\n45.  The Court, in the absence of any further elaboration by the applicant, does not discern any causal link between the violation found and any pecuniary damage and therefore does not make any award for pecuniary damage.\n\n46.  It finds, however, that he must have suffered pain and distress which cannot be compensated for solely by the Court’s finding of a violation. Having regard to the nature of the violation found, the Court finds it appropriate to award him EUR 7,500 in respect of non-pecuniary damage.\n\nB.  Costs and expenses\n\n47.  The applicant claimed TRY 12,000 (approximately EUR 4,166) for costs and expenses incurred before the domestic courts and the Court, including lawyers’ fees. In support of his claims, the applicant submitted a breakdown of the hours spent by his lawyers in representing him before the domestic courts and the Court. The sums were calculated in accordance with the fee scales recommended by the Diyarbakır Bar Association.\n\n48.  The Government contested these claims, submitting that the requested amounts were unsubstantiated.\n\n49.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the applicant has not demonstrated that he has actually incurred these costs and expenses before the domestic courts. It therefore rejects his claims under this head.\n\n.  As to the costs and expenses incurred before the Court, regard being had to the detailed schedule of costs prepared by his lawyer and the above criteria, the Court considers it reasonable to award the sum of EUR 2,000.\n\nC.  Default interest\n\n51.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\n1.  Joins to the merits the Government’s objection regarding victim status and dismisses it;\n\n2.  Declares the application admissible;\n\n3.  Holds that there has been a violation of Article 10 of the Convention;\n\n4.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n5.  Dismisses the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 13 September 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_672","text":"PROCEDURE\n\n1.  The case originated in an application (no. 43664/16) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Ms Tatyana Vladimirovna Shmeleva (“the applicant”), on 25 July 2016.\n\n2.  The applicant was represented by Mr I. Sharapov, a lawyer practising in Moscow. The Russian Government (\"the Government\") were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.\n\n3.  The applicant alleged that her son had died as a result of torture inflicted on him in police custody, and that there had been no effective investigation in this respect.\n\n4.  On 30 August 2016 the application was communicated to the Government.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n5.  The applicant was born in 1958 and lives in St Petersburg. She is the mother of the late Mr Denis Aleksandrovich Vyrzhikovskiy.\n\n6.  On 1 October 2010 police officers apprehended the applicant’s son and his friend, Ms Z. and took them to the Moskovskiy District Department of the Interior of St Petersburg (УВД по Московскому району г. СанктПетербурга). No record of their arrest was drawn up.\n\n7.  For approximately six hours the applicant’s son was ill-treated by police officers He was repeatedly punched in the stomach and hit to the head, right palm and both calves. He was also subjected to the so-called “swallow” method of torture (“ласточка”), with his head, hands and legs being pulled together towards the spine.\n\n8.  Two police officers then took the applicant’s son and Ms Z. to another police station. Ms Z. later testified to having seen a bruise on Mr Vyrzhikovskiy’s forehead and to his having been in pain and having had difficulties getting into a police car.\n\n9.  Early in the morning on 2 October 2010 Mr Vyrzhikovskiy was taken from the station to a hospital. He died there eight days later. An autopsy report stated that the cause of death was “a severe fat pulmonary embolism aggravated by bronchopneumonia with cerebral edema resulted from a comminuted humeral head fracture with a tear of joint capsules and massive bruises, suffusion and strain of soft tissue and the subcutaneous fat layer.” A pathologist also found the following ante mortem injuries on Mr Vyrzhikovskiy’s body, all directly linked to his death: massive bruises covering hands, chest, upper back, neck, armpits and most of his face and ears; bruises on the left hip, right palm, right part of the stomach, right thigh, left knee, both calves; abrasions and bruises on the buttocks. All injuries had been inflicted by hard blunt objects.\n\n10.  On 12 October 2010 criminal investigation was initiated. The applicant was granted victim status in the proceedings. Several police officers were charged with manslaughter and abuse of powers entailing a substantial violation of individual rights, committed using violence.\n\n10.  On 12 October 2010 criminal investigation was initiated. The applicant was granted victim status in the proceedings. Several police officers were charged with manslaughter and abuse of powers entailing a substantial violation of individual rights, committed using violence.\n\n11.  On 26 March 2014 the Moskovskiy District Court of St Petersburg found the officers guilty as charged and sentenced them to various terms of imprisonment. On 1 October 2014 the St Petersburg City Court partially quashed the judgment and acquitted officers of manslaughter for lack of evidence. While having found it established that the injuries had been inflicted on the applicant’s son intentionally in the police custody, the City Court remitted the case for an additional investigation in order to identify those responsible for his death.\n\n12.  On 2 March 2015 the investigation was suspended because the timelimit for the investigation had expired and it was impossible to identify the perpetrators and to carry out any investigative measures in the absence of an accused. On 12 November 2015 the Oktyabrskiy District Court of St Petersburg upheld that decision as lawful. The decision became final on 27 January 2016.\n\nII.  RELEVANT DOMESTIC LAW\n\n13.  For the relevant domestic law see Khismatullin v. Russia, no. 33469/06, §§ 27-33, 11 December 2014 and Keller v. Russia, no. 26824/04, §§ 54-61, 67-71, 17 October 2013.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION\n\n14.  The applicant complained that her son had been killed in the police custody and that the authorities had failed to carry out an effective investigation into the events. She relied on Article 2 of the Convention, which, in its relevant part, reads as follows:\n\n“Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.”\n\n15.  The Government did not contest the applicant’s arguments. They acknowledged that the facts of the case disclosed a violation of Article 2 of the Convention.\n\nA.  Admissibility\n\n16.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n17.  The Court reiterates that while there is no absolute obligation under Article 2 of the Convention for all prosecutions to result in conviction or in a particular sentence, the national courts should not under any circumstances be prepared to allow offences involving violent deaths to go unpunished (see, mutatis mutandis, Öneryıldız v. Turkey [GC], no. , § 96, ECHR 2004-XII; Okkalı v. Turkey, no. , § 65, ECHR 2006-XII (extracts); and Türkmen v. Turkey, no. , § 51, 19 December 2006).\n\n18.  In this connection the Court notes that the main purposes of imposing criminal sanctions include both retribution, as a form of justice for victims, and general deterrence aimed at the prevention of new violations and upholding the rule of law. However, neither of these aims can be obtained without the alleged perpetrators being brought to justice. Failure by the authorities to pursue the prosecution of the most probable direct perpetrators undermines the effectiveness of the criminal-law mechanism aimed at the prevention, suppression and punishment of unlawful killings. Compliance with the State’s procedural obligations under Article 2 requires the domestic legal system to demonstrate its capacity and willingness to enforce the criminal law against those who have unlawfully taken the life of another (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 160, ECHR 2005-VII; Jelić v. Croatia, no. 57856/11, § 90, 12 June 2014; and Ghimp and Others v. the Republic of Moldova, no. 32520/09, § 43, 30 October 2012).\n\n18.  In this connection the Court notes that the main purposes of imposing criminal sanctions include both retribution, as a form of justice for victims, and general deterrence aimed at the prevention of new violations and upholding the rule of law. However, neither of these aims can be obtained without the alleged perpetrators being brought to justice. Failure by the authorities to pursue the prosecution of the most probable direct perpetrators undermines the effectiveness of the criminal-law mechanism aimed at the prevention, suppression and punishment of unlawful killings. Compliance with the State’s procedural obligations under Article 2 requires the domestic legal system to demonstrate its capacity and willingness to enforce the criminal law against those who have unlawfully taken the life of another (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 160, ECHR 2005-VII; Jelić v. Croatia, no. 57856/11, § 90, 12 June 2014; and Ghimp and Others v. the Republic of Moldova, no. 32520/09, § 43, 30 October 2012).\n\n19.  Taking into account the Government’s acknowledgement of a violation of Article 2 of the Convention along with the above principles, the circumstances of the present case, and the finding of the domestic authorities that the applicant’s son died as a result of injuries inflicted on him in police custody (see paragraph 11 above), the Court concludes that the State was responsible for his death and that there has been no effective investigation into the events surrounding it.\n\n20.  There has, accordingly, been a violation of Article 2 under both its substantive and procedural limbs.\n\nII.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION\n\n21.  The applicant also complained that her son had been tortured by the police officers after his apprehension on 1 October 2010 and that the investigation into the events had been ineffective. She invoked Article 3 of the Convention, which reads:\n\n“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”\n\n22.  The Government acknowledged a violation of Article 3.\n\nA.  Admissibility\n\n23.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n24.  The Court observes that the Government did not dispute the applicant’s allegations that her son had been subjected to ill-treatment at the hands of the police after his arrest. The Russian courts also established that Mr Vyrzhikovskiy’s injuries had been inflicted intentionally in police custody (see paragraph 11 above).\n\n25.  In view of the Government’s acknowledgment of ill-treatment and taking into account the findings of the domestic courts, the Court finds that the State was responsible for the ill-treatment of the applicant’s son.\n\n26.  In the present case it was undisputed between the parties that for hours the applicant’s son was subjected to severe beatings and the so-called “swallow” method of torture. The Court finds that the treatment to which the applicant’s son was subjected, given its severity and duration, and the consequences thereof, amounted to torture (see Gäfgen v. Germany [GC], no. 22978/05, §§ 89-90, ECHR 2010).\n\n27.  The Court concludes that there has been a breach of Article 3 of the Convention under its substantive limb.\n\n28.  In the light of the finding relating to the procedural aspect of Article 2 of the Convention (see paragraph 19 above), the Court does not deem it necessary to make a separate finding under Article 3 of the Convention in respect of the alleged ineffectiveness of the investigation.\n\nIII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n29.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n30.  The applicant claimed 60,000 euros (EUR) in respect of nonpecuniary damage.\n\n31.  The Government considered that any award should be made in compliance with the Court’s case-law.\n\n32.  Making its assessment on an equitable basis, the Court awards the applicant EUR 60,000 in respect of non-pecuniary damage.\n\nB. Costs and expenses\n\n33.  The applicant made no claim for costs and expenses. Accordingly, the Court makes no award under this head.\n\nC.  Default interest\n\n34.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\n1.  Declares the application admissible;\n\n2.  Holds that there has been a violation of Article 2 of the Convention on account of the death of the applicant’s son as a result of injuries inflicted on him at the hands of the police;\n\n3.  Holds that there has been a violation of Article 2 of the Convention on account of the authorities’ failure to carry out an effective investigation into the death of the applicant’s son;\n\n4.  Holds that there has been a violation of Article 3 of the Convention in that the applicant’s son had been subjected to torture in police custody;\n\n5.  Holds that there is no need to examine separately the complaint under Article 3 of the Convention regarding the quality of the investigation into the events leading to the applicant’s son’s death;\n\n6.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months, EUR 60,000 (sixty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.\n\nDone in English, and notified in writing on 28 November 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_159","text":"PROCEDURE\n\n1.  The case originated in applications against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table.\n\n2.  The applications were communicated to the Ukrainian Government (“the Government”).\n\nTHE FACTS\n\n3.  The list of applicants and the relevant details of the applications are set out in the appended table.\n\n4.  The applicants complained of the excessive length of their pre-trial detention. Some applicants also raised other complaints under the provisions of the Convention.\n\nTHE LAW\n\nI.  JOINDER OF THE APPLICATIONS\n\n5.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.\n\nII.  THE SCOPE OF APPLICATION NO. 71560/13\n\n6.  The Court notes that, after communication of the application, the applicant introduced new complaints concerning (i) unfairness of the appellate proceedings which resulted in the adoption of the appellate court’s ruling of 7 May 2014, and (ii) the rejection of the applicant’s appeal against the first-instance court ruling of 10 September 2014. In particular, the applicant complained under Article 6 § 1 of the Convention that he was not notified about the appellate court’s hearing of 7 May 2014 and that it had taken place in his absence. He further invoked Articles 5 § 1 (c) and 18 of the Convention claiming that the appellate court, refusing to consider it on the merits, had rejected his appeal against the ruling of 10 September 2014 by which the first-instance court ordered the applicant to be apprehended and presented to the court for further choice of a preventive measure.\n\n7.  In the Court’s view, these new complaints are not an elaboration of the applicant’s original complaints that were communicated to the Government. The Court therefore considers that it is not appropriate now to take these matters up separately (see Piryanik v. Ukraine, no. 75788/01, § 20, 19 April 2005). They will be dealt with in a separate application.\n\nIII.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION\n\n8.  The applicants complained principally about the excessive length of their pre-trial detention. They relied on Article 5 § 3 of the Convention, which read as follows:\n\n“3.  Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”\n\n9.  The Court observes that the general principles regarding the right to trial within a reasonable time or to release pending trial, as guaranteed by Article 5 § 3 of the Convention, have been stated in a number of its previous judgments (see, among many other authorities, Kudła v. Poland [GC], no. 30210/96, § 110, ECHR 2000XI, and McKay v. the United Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006X, with further references).\n\n10.  In the leading cases of Kharchenko v. Ukraine (no. 40107/02, 10 February 2011) and Ignatov v. Ukraine (no. 40583/15, 15 December 2016), the Court already found a violation in respect of issues similar to those in the present case.\n\n11.  Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the applicants’ pre-trial detention was excessive.\n\n12.  These complaints are therefore admissible and disclose a breach of Article 5 § 3 of the Convention.\n\nIV.  OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW\n\n13.  In applications nos. 60859/10, 66440/11, 75007/11, 58383/12, 80605/12, 60962/13, 71560/13 and 77369/16, the applicants submitted other complaints which also raised issues under the Convention, given the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its findings in Merit v. Ukraine (no. 66561/01, 30 March 2004) and Kharchenko v. Ukraine (cited above).\n\nV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n14.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\n15.  Regard being had to the documents in its possession and to its caselaw, the Court considers it reasonable to award the sums indicated in the appended table.\n\n16.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\n1.  Decides to join the applications;\n\n2.  Declares the complaints concerning the excessive length of pre-trial detention and the other complaints under well-established case-law of the Court, as set out in the appended table, admissible;\n\n3.  Holds that these complaints disclose a breach of Article 5 § 3 of the Convention concerning the excessive length of pre-trial detention;\n\n4.  Holds that there has been a violation of the Convention as regards the other complaints raised under well-established case-law of the Court (see appended table);\n\n5.  Holds\n\n(a)  that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State, except for application no. 71560/13, at the rate applicable at the date of settlement;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.\n\nDone in English, and notified in writing on 3 May 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_461","text":"PROCEDURE\n\n1.  The case originated in an application (no. 39468/13) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Croatian nationals, Mr Josip Obajdin and Mr Pave Obajdin (“the applicants”), on 2 May 2013.\n\n2.  The applicants were represented by Ms B. Jeličić Vnučec, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.\n\n3.  The applicants alleged that the investigation into the death of their close relatives, G.O. and M.V., had not been effective.\n\n4.  On 8 April 2014 the application was communicated to the Government.\n\nTHE FACTS\n\nTHE CIRCUMSTANCES OF THE CASE\n\n5.  The first applicant was born in 1983 and lives in Ludbreg. The second applicant was born in 1959 and lives in Slunj.\n\nA.  Background to the case\n\n6.  During 1991 and 1992 Serbian paramilitary forces gained control of about a third of the territory of Croatia and proclaimed the “Serbian Autonomous Region of Krajina” (Srpska autonomna oblast Krajina, hereinafter “Krajina”). At the beginning of August 1995 the Croatian authorities announced their intention to take military action with the aim of regaining control over Krajina. The operation was codenamed “Storm” (Oluja) and took place from 4 to 7 August 1995. Before the military action, the vast majority of the population of Krajina fled Croatia. Most of them went to Bosnia and Herzegovina, and also to Serbia. Some returned to Croatia after the war. The number of people who fled is estimated at between 100,000 and 150,000.\n\n7.  On 5 November 1997 Croatia ratified the Convention.\n\nB.  The killing of the applicants’ relatives and subsequent investigation\n\n8.  On 8 August 1995 the applicants’ close relatives, G.O. and M.V., were killed in a house in Veljun, a town on the territory of Krajina. The police were alerted to the killings on the same day. On 11 August 1995 the bodies were buried in a cemetery in Slunj.\n\n9.  On 25 January 2002 the police interviewed M.M., who said that on 8 August 1995 he had been wounded by the Croatian army in Veljun. That day he had seen G.O. and M.V. alive but did not know what had happened to them after that because he had been taken to a hospital by a member of the Croatian army.\n\n10.  On 20 February 2002 the police interviewed D.V. and J.V. D.V. said that on 6 August 1995 she had moved to a house in Veljun, together with the first applicant, G.O. and M.V. On 7 August 1995 the Croatian army had entered Veljun. When G.O. and M.V. had been killed she had not been in the house and had not seen who had killed them. J.V. said that he had lived in Veljun during the war. On 7 August 1995 the Croatian army had entered Veljun. On 9 August 1995 he had heard that G.O. and M.V. had been killed the day before but had not seen who had done it.\n\n11.  On 25 February 2002 the police interviewed the second applicant. He said that at the material time he had been serving as a Croatian policeman in Karlovac. He had learned about the killing of his wife G.O. and her mother M.V. on 8 August 1995 when his son, who had lived with his mother and grandmother, had been brought to him. The son said that on the morning of 8 August 1995 some members of the Croatian army had come to their house and asked for the keys of a Golf vehicle parked in the courtyard but that his grandmother had shouted at them. The second applicant assumed that that had angered the soldiers who had then killed his wife and her mother.\n\n12.  On 30 March 2006 the Karlovac State Attorney’s Office asked the Slunj police whether the Veljun area had been occupied on 7 August 1995; whether the perpetrator of the killing of G.O. had been identified; and whether G.O. had been a member of the paramilitary forces of Krajina or of the Croatian army. On 6 July 2006 the Karlovac police department replied that Veljun had not been occupied on 7 August 1995 because Serbian paramilitary forces had left the area the previous day as the Croatian forces had advanced from the direction of Slunj. However, owing to the disorganised nature of the withdrawal of the Serbian paramilitary forces, there had still been some armed members of the “Serbian army” in the area. On 7 August 1995 the Croatian forces had started to enter the area and therefore it could be said that from a military point of view that area had been in a war zone. There had been no information about the people who had killed G.O. and she had not been registered as a member of any army.\n\n13.  On 25 October 2006 the police interviewed the first applicant, who said that he had lived with his mother and grandmother in Slunj and that his father had been a Croatian policeman. When the war had escalated in 1991 his mother had stayed in Slunj, in occupied territory, since her mother was a disabled person who could not move at all. Some time at the beginning of Operation Storm his uncle had taken them all to a relative’s house in Veljun. On 5 or 6 August 1995 the Croatian army had entered Veljun. They had instructed them to put a white flag on their house to indicate that there were civilians living there and his mother had done so. The following day he had spent some time with Croatian soldiers, about 1,500 metres from the house where he had been staying with his family. Around noon he had heard some gunshots from the direction of the house but had not paid much attention to them. About half an hour later he had returned home and had found his mother and grandmother shot dead in the house. He had informed some of the Croatian soldiers about it. After that they had taken him to his father in Slunj. He could not remember whether there had been any dispute between his mother and grandmother and Croatian soldiers about the Golf parked in their courtyard, which had belonged to his uncle.\n\n14.  On 17 January 2007 the police interviewed I.B., a policeman who had carried out an inspection of the crime scene. He described how he had found the bodies of G.O. and M.V. On the same day another police officer, Z.G., made a note stating that on 8 January 2007 he had inspected the premises of the elementary school in Veljun, where he had found the following inscriptions on the walls: “Tigers, I.V. 4 August 1995, K.T., 40th regiment GSOSRH” and “Tigers TNT No 31 – Moles”.\n\n15.  On 1 February 2007 the Karlovac police lodged a criminal complaint with the Karlovac County State Attorney’s Office against unknown perpetrators in connection with the killing of G.O. and M.V.\n\n16.  On 1 August 2007 the police interviewed Mi.V. who said that she had not been in Veljun during Operation Storm and had no direct knowledge about the killing of G.O. and M.V.\n\n17.  On 22 October 2012 a Deputy State Attorney of the Karlovac State Attorney’s Office interviewed the applicants, who repeated their previous statements. The first applicant added that in his opinion the Croatian soldiers who had killed his mother and grandmother had not been those who had been the first to enter Veljun because that group had treated civilians correctly.\n\n18.  On 9 November 2012 the Karlovac police asked the Ministry of Defence about the Croatian army units which had been in Veljun between 7 and 12 August 1995, the identity of their commanders and all their members. That request was repeated on 11 December 2012.\n\n19.  On 9 January 2013 the first applicant asked the President’s Office, the State Attorney, the Karlovac County State Attorney, the Ministry of Justice and the State Attorney’s Department of War Crimes to identify the perpetrators of the killing of his mother and grandmother.\n\n20.  On 21 February 2013 the Karlovac police drew up a note on the investigation. It stated that documents about the Croatian army units present in Veljun in the material period (those documents have not been submitted to the Court by the Government) showed that on 7 August 1995 at 10.30 a.m. Veljun had been liberated by members of the 143rd Domobran Regiment of Ogulin (143. domobranska pukovnija Ogulin), under the command of Captain (satnik) N.N. On 7 August 1995 at about noon the armoured battalion of the “Tigers” First Guards Brigade (oklopna bojna 1. gardijske brigade “Tigrovi”) under the command of Captain Lj.U., as well as the Second Infantry Battalion of the First Guards Brigade (2. pješačka bojna 1. gardijske brigade) under the command of Major A.K., had arrived.\n\nOn 8 August 1995 the following Croatian army units had been in Veljun: the Second Infantry Battalion of the 143rd Domobran Regiment from Ogulin under the command of Captain M.K. and the IS-2 (izvidnička skupina IS-2) patrol group comprised of the soldiers M.I., M.B., T.N. and Z.Č., under the command of Lance Corporal (razvodnik) P.K.\n\n21.  Between 27 February and 28 March 2013 the police interviewed several Croatian soldiers who belonged to the units of the Croatian army that had been in Veljun on 7 and 8 August 1995.\n\nN.N., the commander of the Second Battalion of the 143rd Domobran Regiment, said that they had entered Veljun on the morning of 8 August 1995. At the same time the First Guards Brigade under the command of I.K. had been coming to Veljun from the direction of Slunj. He had no knowledge of the killing of two women in Veljun. As regards the officers of the Second Battalion, Z.K. had been in command of the First Company (prva satnija), M.B. of the Second Company (druga satnija) and I.Z. (who had died later on) of the Third Company (treća satnija). The brigade also had a mortar unit (mitnica minobacača) under the command of N.V., a communications squad (desetina za veze) led by D.L., a medical platoon (sanitrani vod) headed by S.P. and an anti-tank platoon (protuoklopni vod) under the command of D.S.\n\nB.S., the second-in-command of the First Battalion of the 143rd Domobran Regiment, confirmed that M.K. had been the commander. The regiment had been composed of three companies. The First and Second Companies had been under the command of I.F. and I.P. respectively, but he could not remember the commander of the Third Company. He said that owing to the passage of time he could not remember the places they had been during Operation Storm. He had no knowledge about the killing of civilians in Veljun.\n\nOfficer J.C. of the Slunj police said that he had heard about the killing of his colleague’s wife and her mother, but had no relevant information.\n\nM.K., the commander of the First Battalion of the 143rd Domobran Regiment of Ogulin, said that that formation had comprised three battalions. His First Battalion and the Second Battalion, which had been under the command of N.N, had had about 970 soldiers. The Third Battalion had been under the command of T.L. He then described the units of the First Battalion and named the commanders he could remember. He had no knowledge about the killing of civilians in Veljun.\n\nA.B., the commander of a platoon of the 134th Domobran Regiment, said that he and his men had spent about an hour in Veljun during Operation Storm but could not say on which day exactly. None of the soldiers in his platoon had searched for civilians in houses and he had no knowledge about the killing of G.O. and M.V.\n\nS.P., the commander of the medical squad of the Second Battalion of the 143rd Domobran Regiment, said that his battalion had entered Veljun at about noon on 7 August 1995 and had stayed there for two days. There had been no military action and he had not given any medical assistance to anyone in Veljun. He knew nothing about the killing of two women there.\n\nOfficer I.Š. of the Slunj police said that during Operation Storm a Croatian soldier had approached him and told him that a child in Veljun needed transport. I.Š. had gone with his colleague M.V. to Veljun where they had found two dead bodies and a child in a house. They had taken the child to Slunj police station to join his father, Pave Obajdin. M.V. confirmed that statement.\n\nS.V. said that he had been a policeman in Slunj during Operation Storm and had been the one who had found the bodies of G.O. and M.V.\n\n22.  Between 14 October 2014 and 21 October 2015 the police conducted further interviews with Croatian soldiers A.Ž., Z.P., B.S., B.G., V.J. and P.K., who all said they had no knowledge about the killing of G.O. and M.V. In the same period the police also interviewed the victims’ relatives G.V., D.M. and S.V., who had all heard about the killing of G.O. and M.V. but had no relevant information about possible perpetrators.\n\nTHE LAW\n\nALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION\n\n23.  The applicants complained that the authorities had not taken appropriate and adequate steps to investigate the death of G.O. and M.V. and to bring the perpetrators to justice. They relied on Article 2 of the Convention which, in so far as relevant, reads as follows:\n\n“1.  Everyone’s right to life shall be protected by law.”\n\nA.  Admissibility\n\n1.  The parties’ submissions\n\n24.  The Government argued that the applicants had not complied with the six-month time-limit. They maintained that the applicants had lodged their application eighteen years after the killing of their relatives and sixteen years after the Convention had been ratified by Croatia and had not given any explanation for that delay.\n\n25.  The applicants replied that the Government itself had submitted that the investigation into the killing of G.O. and M.V. was still ongoing and that the documents submitted by the Government had shown that some steps in the investigation had even been taken after they had lodged their application with the Court.\n\n2.  The Court’s assessment\n\n.  The Court reiterates that the purpose of the six-month rule is to promote legal certainty and to ensure that cases raising issues under the Convention are dealt with within a reasonable period of time. Furthermore, it is also meant to protect the authorities and other parties concerned from being left in a state of uncertainty for a prolonged period of time (see Bayram and Yıldırım v. Turkey (dec.), no. 38587/97, ECHR 2002‑III, and Bulut and Yavuz v. Turkey (dec.), no. 73065/01, 28 May 2002).\n\n.  Where no remedies are available or are judged to be ineffective, the six-month time-limit in principle runs from the date of the act complained of (see Hazar and Others v. Turkey (dec.), no. 62566/00, 10 January 2002). However, special considerations may apply in exceptional cases in which an applicant avails himself of, or relies on, an apparently existing remedy and only subsequently becomes aware of circumstances which render such a remedy ineffective; in such a case it is appropriate to take the start of the six-month period as the date on which he or she first became aware or ought to have become aware of those circumstances rendering the remedy ineffective (see Paul and Audrey Edwards v. the United Kingdom (dec.), no. 46477/99, 7 June 2001).\n\n.  In a number of cases concerning ongoing investigations into the deaths of applicants’ relatives, the Court has examined the period of time from which the applicant could or should have started doubting the effectiveness of a remedy (see Şükran Aydın and Others v. Turkey (dec.), no. 46231/99, 26 May 2005; Bulut and Yavuz, cited above; Bayram and Yıldırım, cited above; Kıniş v. Turkey (dec.), no. 13635/04, 28 June 2005; Elsanova v. Russia (dec.) no. 57952/00, 15 November 2005; Frandeş v. Romania (dec.), no. 35802/05, 17 May 2011; Finozhenok v. Russia (dec.), no. 3025/06, 31 May 2011; Attalah v. France (dec.), no. 51987/07, 30 August 2011; Deari and Others v. the Former Yugoslav Republic of Macedonia (dec.), no. 54415/09, 6 March 2012; Gusar v. Moldova and Romania (dec.), no. 37204/02, 30 April 2013; Bogdanović v. Croatia (dec.), no. 722541/11, 18 March 2014; Orić v. Croatia, no. 50203/12, 13 May 2014; Gojević-Zrnić and Mančić v. Croatia (dec)., no. 5676/13, 17 March 2015; Radičanin and Others v. Croatia (dec.), no. 75504/12; and Grubić v. Croatia (dec.), no. 56094/12, 9 June 2015).\n\n.  Consequently, where a death has occurred, the victim’s relatives are expected to take steps to keep track of the investigation’s progress, or lack thereof, and to lodge their applications with due expedition once they are, or should have become, aware of the lack of any effective criminal investigation (see Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 158, 18 September 2009). On the same basis, where time is of the essence in resolving the issues in a case, there is a burden on applicants to ensure that their claims are raised before the Court with the necessary expedition to ensure that they may be properly, and fairly, resolved (ibid. § 160).\n\n.  The Court has refrained from indicating any specific period for establishing the point at which an investigation has become ineffective for the purposes of assessing when the six-month period should start to run; the determination of such a period by the Court has depended on the circumstances of each case and other factors, such as the diligence and interest displayed by the applicants, as well as the adequacy of the investigation in question. In this connection, in the above-cited Varnava and Others judgment the Court noted that where the lack of progress or ineffectiveness of an investigation was readily apparent, the requirements of expedition might require an applicant to bring such a case before the Court within a matter of months, or at most, depending on the circumstances, a very few years after the events in question. This is particularly pertinent in cases of unlawful death, where there is generally a precise point in time at which the death is known to have occurred and some basic facts are in the public domain; thus, the lack of progress or ineffectiveness of an investigation will generally be more readily apparent (see Varnava and Others, cited above, § 162).\n\n.  In the present case, the Court notes that the applicants’ relatives were killed in August 1995. The police inquiry commenced in January 2002 (see paragraph 9 above). The applicants lodged their application with the Court on 2 May 2013, more than seventeen years after the date of their relatives’ deaths. The investigation was formally pending at the time at which the application was lodged (contrast with Utsmiyeva and Others v. Russia (dec.), no. 31179/11, § 34, 26 August 2014, and Kukavica v. Croatia (dec.), no. 79768/12, § 27, 2 June 2015).\n\n.  The Court further observes that between August 2007 and October 2012 there was a standstill in the investigation (see paragraphs 16 and 17 above). The question therefore arises whether the applicants should have concluded at that period, and before 2 May 2013 (when their application was lodged with the Court), that the ineffectiveness of the investigation required them to lodge their application with the Court earlier than they did. The Court notes that this period of inactivity in the investigation lasted some five years and two months. If the applicants failed to become aware of the ineffectiveness of the investigation given such a significant lull in the course of proceedings, the Court considers that this was attributable to their own negligence (see, for example, Findik and Omer v. Turkey (decs.), nos. 33898/11 and 35798/11, § 15).\n\n.  The Court observes that since the applicants are the close relatives of the victims of the violations claimed, they may be expected to display due diligence and take the requisite initiative in informing themselves about the progress being made in the investigation. The absence of any activity in the investigation of such a serious crime for such a significant period of time should have prompted them to draw appropriate conclusions (see, for example, Açış v. Turkey, no. 7050/05, § 42, 1 February 2011).\n\n.  In view of the above, the Court finds that the applicants have not shown convincingly that some kinds of advances were being made that would justify their inactivity for more than five years. The standstill in the investigation occurred in August 2007, well before 2 May 2013 when this application was lodged (compare to Finozhenok, cited above). The Court finds that, following the standstill in the investigation, the applicants ought to have concluded long before – and certainly more than six months before – the introduction of the present application that this investigation was not effective.\n\n.  Accordingly, the Court finds that the part of the present application which refers to the investigation before October 2012 must be rejected for failure to comply with the six-month time-limit set out in Article 35 §§ 1 of the Convention.\n\n.  As to the steps taken after October 2012, the Court further reiterates that where information purportedly casting new light on the circumstances of a death comes into the public domain, a new obligation to investigate the death may arise (see Hackett v. the United Kingdom (dec.), no. 34698/04, 10 May 2005; Brecknell v. the United Kingdom, no. 32457/04, §§ 66-67, 27 November 2007; Williams v. the United Kingdom (dec.), no. 32567/06, 17 February 2009; Gasyak and Others v. Turkey, no. 27872/03, § 60, 13 October 2009; and Harrison and Others v. the United Kingdom (dec.), no. 44301/13, § 51, 25 March 2014). It cannot be the case that any assertion or allegation can trigger a fresh investigative obligation under Article 2 of the Convention. Nonetheless, given the fundamental importance of this provision, the State authorities must be sensitive to any information or material which has the potential either to undermine the conclusions of an earlier investigation or to allow an earlier inconclusive investigation to be pursued further (see Brecknell, cited above, § 70).\n\n.  As to the present case, the Court notes that in November 2012 the police attempted to obtain official information about the units of the Croatian Army that had been present in Veljun on 8 August 1995 when the applicants’ relatives had been killed. That information was only obtained in February and March 2013, after interviews with the people concerned had begun. That undoubtedly amounted to important fresh evidence. Interviews with possible witnesses were carried out as recently as October 2015 (see paragraph 22 above).\n\n.  In such circumstances, the complaint under the procedural aspect of Article 2 of the Convention concerning the period after October 2012 has been lodged within the six-month time limit.\n\n39.  The Court notes that the complaint concerning the ineffectiveness of the investigation in the period after October 2012 is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n1.  The parties’ submissions\n\n40.  The applicants argued that the authorities had not made a serious attempt to elucidate the circumstances surrounding the death of G.O. and M.V., who had obviously been killed.\n\n41.  The Government argued that there had been no violation of the procedural aspect of Article 2 in the present case. They maintained that the relevant domestic authorities had taken all the reasonable measures that were available, given the circumstances of the case.\n\n2.  The Court’s assessment\n\n42.  The Court reiterates that Article 2 ranks as one of the most fundamental provisions in the Convention. It enshrines one of the basic values of the democratic societies making up the Council of Europe. The object and purpose of the Convention as an instrument for the protection of individual human beings require that Article 2 be interpreted and applied so as to make its safeguards practical and effective (see, among many other authorities, Anguelova v. Bulgaria, no. 38361/97, § 109, ECHR 2002IV).\n\n43.  The obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see, Armani Da Silva v. the United Kingdom [GC], no. 5878/08, § 230, 30 Mars 2016).\n\n44.  The State must therefore ensure, by all means at its disposal, an adequate response – judicial or otherwise – so that the legislative and administrative framework set up to protect the right to life is properly implemented and any breaches of that right are repressed and punished (see Armani Da Silva, cited above, § 230).\n\n45.  In order to be “effective” as this expression is to be understood in the context of Article 2 of the Convention, an investigation must firstly be adequate. This means that it must be capable of leading to the establishment of the facts, a determination of whether the force used was or was not justified in the circumstances and of identifying and – if appropriate – punishing those responsible. This is not an obligation of result, but of means. The authorities must take whatever reasonable steps they can to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of the clinical findings, including the cause of death. Moreover, where there has been a use of force by State agents, the investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used was or was not justified in the circumstances. Any deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible will risk falling foul of this standard (see Armani Da Silva, cited above, § 233).\n\n46.  In particular, the investigation’s conclusions must be based on thorough, objective and impartial analysis of all relevant elements. Failing to follow an obvious line of inquiry undermines to a decisive extent the investigation’s ability to establish the circumstances of the case and the identity of those responsible. Nevertheless, the nature and degree of scrutiny which satisfy the minimum threshold of the investigation’s effectiveness depend on the circumstances of the particular case. The nature and degree of scrutiny must be assessed on the basis of all relevant facts and with regard to the practical realities of investigation work. Where a suspicious death has been inflicted at the hands of a State agent, particularly stringent scrutiny must be applied by the relevant domestic authorities to the ensuing investigation (see Armani Da Silva, cited above, § 234).\n\n47.  A requirement of promptness and reasonable expedition is implicit in this context (see Yaşa v. Turkey, 2 September 1998, §§ 102-104, Reports 1998-VI; and Mahmut Kaya v. Turkey, no. 22535/93, §§ 106-107, ECHR 2003-III). It must be accepted that there may be obstacles or difficulties which prevent progress in an investigation in a particular situation (see Armani Da Silva, cited above, § 237). However, where events took place far in the past, due to the lapse of time, the level of urgency may have diminished; the immediacy of required investigative steps in the aftermath of an incident is likely to be absent (see Brecknell v. the United Kingdom, no. 32457/04, §§ 79-81, 27 November 2007). The standard of expedition in such historical cases is much different from the standard applicable in recent incidents where time is often of the essence in preserving vital evidence at a scene and questioning witnesses when their memories are fresh and detailed (see Emin and Others v Cyprus, no. 59623/08et al, (dec.) 3 April 2012; and Gürtekin and Others v. Cyprus, nos. 60441/13, 68206/13 and 68667/13, § 21, 11 March 2014; see also Palić v. Bosnia and Herzegovina, no. 4704/04, § 70, 15 February 2011 concerning complex post-conflict situations).\n\n48.  As regards the present case, the Court notes that the relevant authorities learned of the death of G.O. and M.V. on 8 August 1995. However, the Court will assess only the effectiveness of the steps taken after October 2012 (see paragraphs 35 and 38 above).\n\n49.  The Court accepts the Government’s argument that as the authorities had been confronted by a high death toll (both civilian and military), it was not possible to immediately open investigations in respect of each of the deceased. Furthermore, given the lapse of about twenty years since events, the prospect of establishing the truth had significantly diminished.\n\n50.  At this juncture the Court reiterates that it has qualified the scope of the above-mentioned obligation to conduct an effective investigation as an obligation as to means, not as to results (see, for example, Shanaghan v. the United Kingdom, no. 37715/97, § 90, 4 May 2001 and the judgments referred to therein).  The Court notes that the police and prosecutors obtained information about the Croatian army units which had been in Veljun between 7 and 12 August 1995, the identity of their commanders and all their members and took statements from the members of these units (see paragraphs 18 and 20-22 above). None of them had any information about the possible perpetrators.\n\n51.  As regards the adequacy of the steps taken by the Croatian authorities in connection with the death of G.O. and M.V., the Court is not persuaded by the applicants’ submission that there have been significant oversights or omissions. The facts of the case show that all traceable witnesses were interviewed and the available evidence was collected and reviewed. The Court notes that the police pursued every line of enquiry (contrast to Charalambous and Others v. Turkey (dec.), no. 46744/07, § 65, 3 April 2012). The applicants have not pointed to any other concrete avenues of enquiry that the police could have pursued. The fact that the investigation did not succeed in identifying the perpetrators does not necessarily mean that the investigation was ineffective. In the circumstances, the Court cannot impugn the authorities for any culpable disregard, discernible bad faith or lack of will (compare to Gürtekin and others v. Cyprus (dec.), no. 60441/13 et al., § 27, 11 March 2014).\n\n52.  In conclusion, the Court finds that the national authorities complied with their procedural obligation under Article 2 of the Convention. It follows that there has been no violation of that provision.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\n1.  Declares the complaint under the procedural aspect of Article 2 of the Convention as regards the period after October 2012 admissible and the remainder of the application inadmissible;\n\n2.  Holds that there has been no violation of the procedural limb of Article 2 of the Convention;\n\nDone in English, and notified in writing on 4 July 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_637","text":"INTRODUCTION\n\n1.  The case concerns complaints under Article 2 of the Convention regarding the ineffectiveness of the investigation into the death of the applicant’s ex-wife which was allegedly not natural.\n\nTHE FACTS\n\n2.  The applicant was born in 1975 and lives in Kyiv.\n\n3.  The Government were represented by their Agent, Mr Ivan Lishchyna.\n\n4.  The facts of the case, as submitted by the parties, may be summarised as follows.\n\n5.  Until 2011 the applicant had been married to K. On 3 September 2013 in the afternoon K. died in her partner’s house in the village of Turka, Ivano-Frankivsk Region, where she had moved from the city of Poltava earlier in August, the same year. The following sets of proceedings ensued.\n\nProceedings initiated by the applicant in Kolomyya\n\n6.  On the same day the crime scene investigation was conducted and no signs of fighting or violent death were found. According to the death certificate, K. died of acute cardiac and pulmonary insufficiency and thromboembolia of the pulmonary artery.\n\n7.  On 4 September 2013 a criminal case was opened into K.’s death by the police of the city of Kolomyya, Ivano-Frankivsk Region (hereafter – the Kolomyya police). The case was opened for murder under Article 115 of the Criminal Code of Ukraine. It transpires from the documents available that the applicant was granted victim status in those proceedings.\n\n8.  It appears that on the same date, a forensic medical examination was ordered by the investigator.\n\n9.  On 5 September 2013 K.’s body was transferred to Poltava, where she had lived for many years before moving to Turku. On the same day she was buried in the local cemetery.\n\n9.  On 5 September 2013 K.’s body was transferred to Poltava, where she had lived for many years before moving to Turku. On the same day she was buried in the local cemetery.\n\n10.  On 9 September 2013 the Kolomyya police terminated the proceedings for lack of a crime. The respective one-and-a-half page resolution referred to the death certificate and testimony of the ambulance doctors and K.’s partner who had been questioned on unspecified dates. In particular, the latter had stated that on 3 September he and K. had been at home together. In the evening K. had started to complain of heart pain and was losing consciousness. Knowing that in 1991 K. had undergone surgery and had a cardiac pacemaker he had called the ambulance, but by the time it arrived K. was already dead. The ambulance doctors confirmed the above statements. They also noted that they had tried to resuscitate K. but their efforts were in vain. They confirmed that they had seen no bodily injuries on K.’s body. Based on this, it was concluded that there were no signs of a crime, in particular, of murder.\n\n10.  On 9 September 2013 the Kolomyya police terminated the proceedings for lack of a crime. The respective one-and-a-half page resolution referred to the death certificate and testimony of the ambulance doctors and K.’s partner who had been questioned on unspecified dates. In particular, the latter had stated that on 3 September he and K. had been at home together. In the evening K. had started to complain of heart pain and was losing consciousness. Knowing that in 1991 K. had undergone surgery and had a cardiac pacemaker he had called the ambulance, but by the time it arrived K. was already dead. The ambulance doctors confirmed the above statements. They also noted that they had tried to resuscitate K. but their efforts were in vain. They confirmed that they had seen no bodily injuries on K.’s body. Based on this, it was concluded that there were no signs of a crime, in particular, of murder.\n\n11.  On 10 September 2013 the applicant challenged the above resolution before the Kolomyya Inter-District prosecutor’s office. He noted that it had been adopted only on the basis of the death certificate, without waiting for the results of the forensic medical examination. He also complained that not all persons had been questioned, including him. He further alleged that K. had been murdered by her mother because of the money she had received from the sale in July 2013 of an apartment in Poltava she co-owned with the applicant. The applicant also mentioned that there were injection marks on K.’s arms which he had allegedly noted when the body was being prepared for burial and which had been disregarded by the authorities. He contended that those marks could signify that K. had been injected with something that had caused her death.\n\n12.  On 3 October 2013 the forensic expert examination ordered on 4 September 2013 was finalised by the Kolomyya Division of the IvanoFrankivsk Regional Bureau of Forensic Expert Examinations. According to its conclusion K. had died of acute cardiac and pulmonary insufficiency and thromboembolia of the pulmonary artery. In the framework of the examination, a blood clot which had allegedly caused death was found and histologically examined. It was also noted in the conclusion that on K.’s body there was only a light bruise on the left shoulder which had appeared 3-4 days before death. Further toxicological expert examination did not find any signs of intoxication in K.’s blood.\n\n13.  By a letter of 9 October 2013, the Kolomyya Inter-District prosecutor’s office, apparently in reply to the applicant’s complaint against the resolution of 9 September 2013, informed the applicant of the actions taken by the investigation. It also noted that as the information gathered did not reveal any signs of a crime, the proceedings were terminated. It was thus concluded that there were no grounds for any measures to be taken by the prosecutor and that the resolution was adopted lawfully. It was also noted that the forensic expert conclusion of 3 October 2013 had been joined to the case file.\n\n13.  By a letter of 9 October 2013, the Kolomyya Inter-District prosecutor’s office, apparently in reply to the applicant’s complaint against the resolution of 9 September 2013, informed the applicant of the actions taken by the investigation. It also noted that as the information gathered did not reveal any signs of a crime, the proceedings were terminated. It was thus concluded that there were no grounds for any measures to be taken by the prosecutor and that the resolution was adopted lawfully. It was also noted that the forensic expert conclusion of 3 October 2013 had been joined to the case file.\n\n14.  It appears that on 8 October 2014 the investigation in the criminal case, terminated by the Kolomyya police on 9 September 2013, was reopened. No copies of the relevant documents were provided by the parties.\n\nProceedings initiated by the applicant in Poltava\n\nProceedings initiated by the applicant in Poltava\n\n15.  On 20 September 2013 the applicant filed a criminal complaint with the Kyivskyy District Police Office of Poltava (hereafter – the Poltava police) submitting that K.’s death had been caused by the premeditated nonprovision of timely medical aid by her partner and her mother, who were with her at the time of her death. In particular, according to him, K.’s mother and sister had tried to persuade K. to spend the money she had received from the sale of the apartment according to their wishes. The applicant also noted that on 1 September 2013 he had received a text message (SMS) from K. reading “Dima [the applicant], I understood, mother and L. [the sister] want my death. They only need money.” The applicant further stated that he had been informed of K.’s death by her father, who in turn had been informed by K.’s sister, at around 3 p.m. while the ambulance had been called at around 5.30 p.m. The applicant also referred to some suspicious marks on K.’s body, including from injections, which were never noted and examined by the authorities. He also contended that K. had had no health problems. Based on all of the above, he requested a thorough examination of the circumstances of the case and the exhumation of the body in order to determine the real time and cause of death.\n\n16.  On 21 September 2013 a criminal case under Article 136 of the Criminal Code of Ukraine (“Failure to provide help to a person in a dangerous situation”) for failing to provide K. with medical care was opened by the Poltava police. No suspect was named. The applicant was granted victim status in those proceedings.\n\n17.  On 26 September 2013 the Poltava police ordered the exhumation and forensic medical examination of K.’s body, referring to the applicant’s version of events described in his complaint of 20 September.\n\n18.  On 8 October 2013 the exhumation of K.’s body took place.\n\n18.  On 8 October 2013 the exhumation of K.’s body took place.\n\n19.  On 20 November 2013 the investigator granted the request of the applicant, for some reason referred to as a “representative of the victim”, to receive “for storage” K.’s histological samples and original medical documents earlier received by the investigator from the Ivano-Frankivsk Regional Bureau of Forensic Expert Examinations. It was also noted in the respective resolution that a request was sent to the Poltava Regional Bureau of Forensic Expert Examinations to provide these materials, after the termination of their examination, to the applicant “for further examinations”. It appears that on 3 December 2013 K.’s histological samples and medical documents were transferred to the applicant.\n\n19.  On 20 November 2013 the investigator granted the request of the applicant, for some reason referred to as a “representative of the victim”, to receive “for storage” K.’s histological samples and original medical documents earlier received by the investigator from the Ivano-Frankivsk Regional Bureau of Forensic Expert Examinations. It was also noted in the respective resolution that a request was sent to the Poltava Regional Bureau of Forensic Expert Examinations to provide these materials, after the termination of their examination, to the applicant “for further examinations”. It appears that on 3 December 2013 K.’s histological samples and medical documents were transferred to the applicant.\n\n20.  On 5 December 2013, acting upon the resolution of 26 September 2013, the Poltava Regional Bureau of Forensic Expert Examinations drafted a conclusion of the examination of K.’s exhumed body. The experts established no trauma or other wounds or marks on the body except for several bruises on the arms and legs. In the text of conclusion it was also mentioned that on 18 November 2013 the experts had received K.’s histological samples and medical documents, apparently those that had been received from the Ivano-Frankivsk Regional Bureau of Forensic Expert Examinations, and on 27 November 2013 these had been returned to the investigator. It was further noted that the investigator had twice been requested to provide the experts with the materials of the criminal case into K.’s death, the original of the expert conclusion by the Kolomyya Division of the Ivano-Frankivsk Regional Bureau of Forensic Expert Examinations and K.’s medical documentation (medical history record, and so on), but these materials had never been provided. Finally, it was also noted that on 3 December 2013 a letter from the investigator had been received with the request to “return the expert examination without execution”. Based on the above, it was decided to “suspend and return” the expert examination to the investigator.\n\n21.  According to the information provided by the Government, this forensic medical examination had never been finalised due to the nonprovision to the experts of K.’s medical documents and histological samples, which were in the applicant’s possession. The Government noted that the applicant had, on numerous occasions, been contacted by the investigators by phone and requested to provide the above materials and inform them of his place of residence, but he had refused. The applicant submitted that he had never been contacted by the authorities, that his place of residence had been known to them and that he had not changed it since the events and had never been hiding from the authorities. It appears that the applicant is still in possession of the materials in question.\n\n22.  On 20 December 2013 the Kyivskyy District Court of Poltava granted the Poltava police investigator’s request to have access to the materials of the case investigated by the Kolomyya police. The request was based, inter alia, on the impossibility of finalising the additional expert examination without these documents. It is unclear whether the investigator attempted actually to obtain the documents in question.\n\n23.  On 21 February 2014 the Poltava police terminated the criminal proceedings for lack of a crime. It was noted in the resolution, inter alia, that because of lack of access to all the necessary medical materials, as the place of their storage was unknown, it had been impossible to conduct an additional forensic medical expert examination.\n\n23.  On 21 February 2014 the Poltava police terminated the criminal proceedings for lack of a crime. It was noted in the resolution, inter alia, that because of lack of access to all the necessary medical materials, as the place of their storage was unknown, it had been impossible to conduct an additional forensic medical expert examination.\n\n24.  It is unclear whether the applicant challenged this resolution. However, by a letter of 22 September 2014 the Kyivskyy District prosecutor’s office of Poltava informed the applicant that on 19 September 2014 the resolution of 21 February 2014 had been quashed as the investigation was incomplete and one-sided. It was also noted that, as the events had taken place in Kolomyya, it had been decided to transfer the case to Kolomyya. No copy of the decision of 19 September 2014 was provided to the Court.\n\nJoinder of the proceedings and their transfer to Kolomyya\n\n25.  As it transpires from the documents available, on 17 October 2014 the two criminal cases were joined into one and their investigation was entrusted to the Kolomyya police.\n\n26.  By a letter of 27 November 2014 the Ivano-Frankivsk Regional prosecutor’s office informed the applicant that the proceedings were pending and that the investigator had been instructed to take all necessary actions to finalise the investigation within a reasonable time.\n\n26.  By a letter of 27 November 2014 the Ivano-Frankivsk Regional prosecutor’s office informed the applicant that the proceedings were pending and that the investigator had been instructed to take all necessary actions to finalise the investigation within a reasonable time.\n\n27.  On 29 June 2016 the Kolomyya police terminated the proceedings for lack of a crime. The resolution referred to the evidence gathered at the initial stages of the investigation back in 2013, such as the testimony of K.’s partner, the testimony of the ambulance doctors, as well as to the expert conclusions of 3 October and 5 December 2013. It was further noted that on 13 July 2015 a complex forensic medical examination, ordered upon the applicant’s motion, had been finalised. However, because of the absence of the medical documents and histological samples kept by the applicant the experts could not provide any replies to the investigator’s questions. Finally, it was noted in the resolution that it was impossible to conduct any further examinations as the applicant, who held the necessary medical documents and histological samples, refused to provide them. In this respect it was stated that the applicant had on numerous occasions been contacted in order to resolve the issue; however, he had refused to indicate his place of residence, or to come to Kolomyya or to send the materials in question.\n\n28.  The applicant alleges that he was not informed of this decision and found out about it only in April 2017. In support of this assertion he provided a copy of his complaint to the Kolomyya police filed on 10 April 2017 in which he requested, among other things, a copy of the resolution of 29 June 2016.\n\n28.  The applicant alleges that he was not informed of this decision and found out about it only in April 2017. In support of this assertion he provided a copy of his complaint to the Kolomyya police filed on 10 April 2017 in which he requested, among other things, a copy of the resolution of 29 June 2016.\n\n29.  The applicant further submitted a copy of his complaint to the IvanoFrankivsk regional prosecutor’s office, filed on 28 April 2017 according to the incoming correspondence stamp. In this complaint he reiterated his version that his ex-wife had been murdered for money and that he suspected that the perpetrators were her partner and mother. He also submitted that there were evident signs of bodily harm on K.’s body which had been disregarded by the forensic experts, in particular during the first expert examination. He also complained that the additional expert examination ordered on 26 September 2014 (which was supposed to verify the conclusions of the initial one) had not been finalised and requested that the case be transferred back to Poltava. On this basis he requested that the resolution of 29 June 2016 be quashed.\n\n29.  The applicant further submitted a copy of his complaint to the IvanoFrankivsk regional prosecutor’s office, filed on 28 April 2017 according to the incoming correspondence stamp. In this complaint he reiterated his version that his ex-wife had been murdered for money and that he suspected that the perpetrators were her partner and mother. He also submitted that there were evident signs of bodily harm on K.’s body which had been disregarded by the forensic experts, in particular during the first expert examination. He also complained that the additional expert examination ordered on 26 September 2014 (which was supposed to verify the conclusions of the initial one) had not been finalised and requested that the case be transferred back to Poltava. On this basis he requested that the resolution of 29 June 2016 be quashed.\n\n30.  By a letter of 3 May 2017 the Ivano-Frankivsk Regional Prosecutor’s Office instructed the Kolomyya local prosecutor’s office to examine the applicant’s complaint and inform them of the results by 22 May 2017.\n\n31.  According to the applicant, he has never received any replies to his complaint. In his view, without this reply he could not apply to the courts.\n\nRELEVANT LEGAL FRAMEWORK\n\nRELEVANT LEGAL FRAMEWORK\n\n32.  The relevant provisions of the Criminal Code of Procedure of 2012 read as follows:\n\nArticle 284. Termination of criminal proceedings\n\nand the proceedings against a legal person\n\n“...4.   An investigator or a prosecutor may issue a decision to terminate criminal proceedings, which is amenable to appeal in accordance with the procedure established by this Code.\n\n...6.  A copy of the investigator’s decision to terminate the criminal proceedings shall be sent to the complainant, the victim and the prosecutor. The prosecutor has the right to quash the decision on the grounds of its unlawfulness or lack of substantiation within twenty days of receipt of the copy of the decision. The prosecutor may also quash the investigator’s decision to terminate the criminal proceedings following a complaint lodged by a complainant or a victim, if such a complaint has been lodged within ten days of receipt of a copy of the decision by the complainant or the victim. ...”\n\nArticle 303. Decisions, acts or inaction of the investigator or the prosecutor, which are amenable to appeal during the pre-trial investigation, and the right to appeal\n\n“1.  During the pre-trial proceedings the following decisions, acts or inactions of the investigator or the prosecutor are amenable to appeal:\n\n...3)  the investigator’s decision to terminate the criminal proceedings - by the complainant, the victim, his or her representative or legal representative;\n\n4)  the prosecutor’s decision to terminate the criminal proceedings - by the complainant, the victim, his or her representative or legal representative, the suspect, his/her counsel or legal representative ...”\n\nArticle 304. Time limits for challenging decisions, acts or omissions\n\nof the investigator or prosecutor, its returning or refusal to open proceedings\n\n“1.  Complaints against decisions, acts or omissions of the investigator or prosecutor referred to in paragraph one of Article 303 of the present Code, may be lodged [with a court] within ten days after the decision was taken, or the act or omission committed. If a decision of the investigator or prosecutor has been drawn up as a resolution, the time limit for lodging a complaint shall be counted from the day the complainant has received its copy.\n\n2.  A complaint shall be returned if:\n\n1)  it has been lodged by a person who is not entitled thereto;\n\n2)  it is not subject to consideration by this court;\n\n3)  it has been lodged after the expiry of time limit specified in paragraph one of this Article, and the complainant does not raise the issue of renewing the time limit, or the investigating judge finds no grounds for renewing it upon the person’s application.\n\n4.  A copy of the ruling to return the complaint shall be immediately forwarded to the complainant, together with the complaint and all materials attached thereto.\n\n5.  The investigating judge or the court refuses to open proceedings only if the complaint is lodged against such decisions, acts or omissions of the investigator or prosecutor that are not subject to appeal.\n\n6.  A copy of the ruling to refuse to open the proceedings shall be immediately forwarded to the complainant, together with the complaint and all materials attached thereto.\n\n7.  A ruling to return the complaint or refuse to open proceedings may be challenged on appeal.\n\n8.  The returning of the complaint does not preclude re-applying to the investigating judge or the court as prescribed in the present Code.”\n\nTHE LAW\n\nALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION\n\n33.  The applicant complained under Articles 2, 3 and 6 of the Convention of the ineffective investigation into the death of his ex-wife, K.\n\n34.  The Court reiterates that by virtue of the jura novit curia principle it is not bound by the legal grounds adduced by the applicant under the Convention and the Protocols thereto and has the power to decide on the characterisation to be given in law to the facts of a complaint by examining it under Articles or provisions of the Convention that are different from those relied upon by the applicant (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, 20 March 2018). In view of that, in the present case the Court finds that the complaints at issue fall to be examined under Article 2 of the Convention, which reads as follows:\n\n“Everyone’s right to life shall be protected by law. (...)”\n\nAdmissibility\n\nAs to the applicant’s victim status\n\n35.  The Government claimed that the applicant could not be regarded as the victim of a violation of Article 2 of the Convention as he was the deceased K.’s ex-husband. In this context they noted that, according to the Court’s case law, in particular, the case of Finogenov and Others v. Russia (nos. 18299/03 and 27311/03, ECHR 2011 (extracts)), only close relatives of a deceased person or those who without being married constituted a de facto family may claim to be themselves victims of a violation of Article 2 of the Convention. As the applicant and K. were divorced back in 2011 and had not been living as a family since, he could not claim to be a victim of the alleged violation.\n\n36.  In reply the applicant stated that he was K.’s ex-husband and thus a relative and that in the respective criminal proceedings he had been officially granted victim status. His standing in the proceedings before the domestic authorities had never been questioned.\n\n37.  The Court summarised the principles governing the assessment of an applicant’s victim status in paragraphs 96-101 of its judgment in the case of Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC] (no. 47848/08, ECHR 2014). In cases where the direct victim died before the lodging of an application, in particular those raising issues under Article 2 of the Convention, the Court has already acknowledged the standing of a parent, sibling or nephew of the deceased. In the cases of Velikova v. Bulgaria (dec.) (no. 41488/98, 18 May 1999) and Finogenov and Others v. Russia (cited above, § 205), the Court has also recognised the standing of a deceased person’s partner even though their relationship existed outside marriage. Conversely, the Court did not grant victim status to a divorced partner who was not considered to have a sufficient link to her deceased ex-husband (see Trivkanović v. Croatia (dec.), no. 12986/13, §§ 50-51, 6 July 2017).\n\n38.  Furthermore, when deciding the issue of standing the Court has also taken into account a person’s involvement into the domestic proceedings (see, mutatis mutandis, Alecu and Others v. Romania, nos. 56838/08 and 80 others, § 31, 27 January 2015).\n\n39.  Turning to the present case, the Court notes that the applicant and K. had been married for six years, until 2011. It appears that since that time they had not been living together, but still lived in the same city and coowned an apartment which they sold in July 2013. After K’s death in September 2013, it was upon the applicant’s complaint that criminal proceedings were initiated and he was granted victim status within their framework. It is unclear whether any other person, that is, blood relatives of K. (her parents or sister) or her new partner, were granted victim status in those proceedings. This is especially important in view of the applicant’s version of events that K. was killed by her mother and partner for money. Furthermore, throughout the proceedings the applicant had been very actively involved in the investigation, submitting applications and challenging the termination of the proceedings on several occasions.\n\n40.  In these specific circumstances, the Court considers that the applicant may claim to be a victim of the alleged violation of the Convention in respect of the subsequent investigation into K.’s death (compare with Trivkanović, cited above). The Court thus rejects the Government’s objection under this head.\n\nOtherwise as to admissibility\n\n41.  The Government further noted that the authorities conducted a number of investigative actions in order to establish the circumstances of the case. It was concluded that K. had died of natural causes. They emphasised that, while asking for further forensic medical examinations to be conducted, the applicant had refused to provide the authorities with the histological samples and medical materials in his possession and that the authorities’ attempts to make him provide these materials (such as phone calls) had been fruitless. In this respect they noted that the applicant lacked interest in the results of the investigation and concluded that his application was therefore manifestly ill-founded.\n\n42.  The Government also stated that, as the applicant did not file any complaints against the resolution on termination of criminal proceedings of 29 June 2016, although he could have challenged it either before the prosecutor or the courts, he had failed to exhaust domestic remedies. They further noted that the applicant had also failed to comply with the sixmonth rule for the submission of his application, as the six months had to be counted from 29 June 2016.\n\n43.  The applicant contended that the investigation into K.’s death had been ineffective and constituted essentially a refusal to investigate. In particular, he complained of the authorities’ inactivity and failure to take necessary measures, referring to, inter alia, the forensic medical examination ordered on 26 September 2013 which had never been finalised. He also complained that the investigating authorities had terminated the proceedings on several occasions.\n\n44.  The applicant further stated that, contrary to what was claimed by the Government, he had submitted a complaint to the prosecutor against the resolution of 29 June 2016, of which he had become aware in April 2017. At the same time, he stated that he could not appeal against it to the courts until he received a reply from the prosecutor. He thus considered that he had exhausted the domestic remedies.\n\n45.  The Court considers that the Government’s objections mentioned above are closely linked to the merits of the present complaint. Consequently, the examination of these issues should be joined to the assessment of the merits of that complaint.\n\nMerits\n\n46.  The Government provided no observations on the merits of the applicant’s complaints.\n\n47.  The Court notes at the outset that the present case falls to be examined from the perspective of the State’s obligation to conduct an effective investigation under the procedural limb of Article 2 of the Convention. The relevant general principles concerning the effectiveness of the investigation were summarised in Giuliani and Gaggio v. Italy [GC] (no. 23458/02, §§ 299-305, ECHR 2011 (extracts)) and Armani Da Silva v. the United Kingdom [GC] (no. 5878/08, §§ 231-37, 30 March 2016, with further references).\n\n48.  More specifically, this is not an obligation of results to be achieved but of means to be employed. The Court accepts that not every investigation is necessarily successful or comes to a conclusion coinciding with the claimant’s account of events. However, it should, in principle, be capable of leading to the establishment of the facts of the case and, if the allegations prove to be true, to the identification and punishment of those responsible (see Giuliani and Gaggio, § 301 and Armani Da Silva, § 233, both cited above).\n\n49.  Once the investigative obligation is triggered, compliance with the procedural requirement of Article 2 is assessed on the basis of several essential parameters: the adequacy of the investigative measures, the promptness of the investigation, the involvement of the deceased person’s family and the independence of the investigation. These elements are interrelated and each of them, taken separately, does not amount to an end in itself (see Armani Da Silva, cited above, §§ 231, 235 and 237).\n\n50.  Turning to the present case, the Court notes that the proceedings into K.’s death were initiated in Kolomyya and Poltava (into murder and nonprovision of help to a person in a dangerous situation, respectively) one and eighteen days after her death. Both sets of proceedings were opened upon the applicant’s complaints and it appears that the national authorities considered those complaints well-grounded and necessitating investigation, in particular, in respect of his allegations that K. did not die of natural causes.\n\n51.  The Court further observes that, despite prompt institution, in these proceedings only a limited number of investigative activities was undertaken and very little evidence was gathered. In particular, as transpires from the resolution on termination of the proceedings of 9 September 2013 (see paragraph 10 above), the police obtained testimony only from K.’s partner and the ambulance doctors. Furthermore, although a forensic medical examination was ordered, when terminating the proceedings the police relied only on the death certificate based on which it concluded that K. had died of natural causes without waiting for the results of the forensic medical examination. The Court is also mindful that the abovementioned resolution was adopted on 9 September 2013, that is only six days after K.’s death, which in itself raises serious doubts as to the thoroughness of the investigation.\n\n52.  As to the proceedings before the Poltava police the Court observes that, apart from ordering the exhumation and the additional forensic medical examination of 26 September 2013, there is no information about any other investigative measures taken in this framework. The only other procedural action undertaken was the request by the investigator to have access to the materials of the case investigated by the Kolomyya police, which was granted by the court. It is, however, unclear whether the investigator actually attempted to receive the documents in question. On 21 February 2014, five months after their initiation, these proceedings were terminated for lack of evidence of a crime.\n\n53.  The Court notes that in the context of the latter set of proceedings the applicant complained that the forensic medical examination ordered on 26 September 2013 had never been finalised. According to the information provided by the Government, it had never been finalised due to the nonprovision to the experts of K.’s medical documents and histological samples, which were in the applicant’s possession. The Government noted that the applicant had been contacted on numerous occasions by the investigators by phone and requested to provide the above materials and inform them of his place of residence, but he had refused. The applicant submitted that he had never been contacted by the authorities, that his place of residence had been known to them and had not changed since the time of the events and that he had never hidden from the authorities. The applicant also acknowledged that he still has the materials in question.\n\n54.  In this context the Court observes that it is unclear why it was decided to have these materials transferred to the applicant in the first place. The resolution of 20 November 2013 (see paragraph 19 above) contains no explanation. Likewise, no explanations in that respect were provided by the parties. In any case it appears that the documents in question were the only existing originals and the histological samples were the only ones available from the initial expert examination. No other copies or samples were stored by the authorities. At the same time the Court observes that the expert conclusion of 5 December 2013 states that some medical documents and histological samples were provided to the experts (see paragraph 20 above). However, in the absence of further details the Court is unable to conclude which particular materials are mentioned.\n\n55.  The Court further observes that this expert conclusion also mentioned that the experts had requested the investigator to provide additional documents, but to no avail. The parties had likewise provided no explanations in that respect. Finally, the Court is mindful that the expert conclusion in question relies on the letter from the investigator requesting the experts to return the expertise “without execution” (see paragraph 20 above). In the absence of the relevant documents the Court cannot examine the reasons for such a request, but in the light of the above circumstances taken cumulatively it cannot but conclude that the authorities lacked diligence in dealing with such important evidence as medical documents and histological samples and failed to ensure their availability and the availability of other important materials for expert examination (see Belenko v. Russia, no. 25435/06, § 83, 18 December 2014).\n\n56.  The Court also notes that from the very early stages of both sets of proceedings the applicant had made known to the authorities his suspicion that K. had been killed for money by her mother and new partner. In his submissions he also pointed to specific facts, like the injection marks on K.’s body, the SMS he had received from his ex-wife several days before her death and the discrepancy in the alleged time of her death (see paragraphs 11 and 15 above). This does not appear be a mere fantasy on the part of the applicant but a reference to facts which could be verified. It appears, however, that this version and the facts referred to by the applicant had never been studied by the authorities in any way (see, mutatis mutandis, Kulik v. Ukraine, no. 10397/10, § 52, 19 March 2015, but compare with Yuriy Slyusar v. Ukraine, no. 39797/05, §§ 86-87, 17 January 2013).\n\n57.  The Court further observes that the terminations of both sets of proceedings were later quashed and the investigation was resumed (see paragraphs 14 and 24 above). In particular, as noted by the prosecutor in a letter to the applicant of 22 September 2014, the resolution of 21 February 2014 on termination of the proceedings before the Poltava police was quashed due to the investigation being superficial and one-sided (see paragraph 24 above). Even in the absence of a copy of the respective documents, the wording used by the prosecutor’s office clearly points to an acknowledgment of the lack of thoroughness by the domestic authorities themselves.\n\n58.  As regards the resolution of 29 June 2016 on termination of the joined proceedings, it essentially relied on the same evidence and re-stated the same conclusions as the very first resolution of 9 September 2013, concluding that K. had died of natural causes. The text of the resolution of 29 June 2016 does not contain any information about the investigative actions taken in the period between October 2014 and June 2016 except for mentioning the complex forensic medical examination completed on 13 July 2015 but which, it appears, had no added value as it did not provide any conclusions referring to the lack of medical documents (see paragraph 27 above).\n\n59.  The above facts bring the Court to the issue of exhaustion of domestic remedies. The Court notes in this respect that, contrary to what was claimed by the Government, the documents available to the Court show that the applicant did complain about the termination of the proceedings to the prosecutor’s office. In particular, this is confirmed by a copy of his complaint which, according to the incoming correspondence stamp, was submitted to the Ivano-Frankivsk Regional Prosecutor’s Office on 28 April 2017 (see paragraph 29 above). In this complaint he clearly requested that the resolution of 29 June 2016 be quashed. Furthermore, as it transpires from the letter of 3 May 2017, the Ivano-Frankivsk Regional Prosecutor’s Office instructed the Kolomyya Local Prosecutor’s Office to examine the applicant’s complaint and inform it of the results by 22 May 2017 (see paragraph 30 above). While the Government claimed that the applicant had never challenged the resolution at stake in any way, they did not provide any comments on the documents from the applicant’s application mentioned above and the Court has no reasons to doubt the authenticity of these documents.\n\n60.  The Court further notes that, according to the applicant, he has not received any reply to his complaint, which precludes him from appealing further to the courts. The Court observes in this respect that the applicable legislation does not require any hierarchy to be followed when challenging the investigator’s decision to terminate proceedings – the person may choose to apply either to the prosecutor or the court, or both, and both the prosecutor and the court have the power to quash the termination of the proceedings (see paragraph 32 above). The Court is mindful that the applicant has been waiting for the prosecutor’s reply for more than 3 years now and had neither applied to the courts nor, as it appears, tried to contact the prosecutor again. The Government claimed that this demonstrated both his lack of interest in pursuing the case and his failure to exhaust domestic remedies. The Court, however, considers that this issue needs to be decided in the light of its conclusions as to the effectiveness of the investigation.\n\n61.  The Court notes that, while initially two sets of proceedings were instituted into the applicant’s complaints, both of them related to the same event, that is K.’s death, and they were later joined together. Therefore, for the purpose of the present examination they will be considered as one investigation. The Court further notes that, while by June 2016 the investigation had been pending for around 2 years and 9 months, it was already marked by several deficiencies. As described in the preceding paragraphs, the initial stages of the investigation were limited in terms of the investigative actions undertaken. Furthermore, the investigation was twice terminated and then reopened, namely due to it being superficial, and this was acknowledged by the authorities themselves. The forensic medical examination ordered on 26 September 2013 had never been finalised and, while the Government claimed that this was due to the applicant’s retention of the necessary materials, the Court cannot accept this argument as it was for the authorities to ensure the storage and availability of the histological samples and medical materials of the deceased. This is all the more so since the applicant still has those pieces of evidence and the authorities are not entirely deprived of the possibility to have access to them. It also appears that the applicant’s version of events had never been examined by the authorities, who essentially stuck to the initial conclusion that K. had died of natural causes. Finally, the applicant has never received any reply to his complaint against the resolution of 29 June 2016 submitted to the prosecutor.\n\n62.  In the light of its findings in the preceding paragraphs, the Court cannot conclude that the authorities did everything in their power to ensure comprehensive action in collecting and securing evidence and establishing the circumstances of K.’s death. Also, in the Court’s view, these deficiencies in the investigation as it stood at the time of adoption of the last resolution on termination of the proceedings in June 2016 seriously undermined the prospects of the investigation’s success, even if promptly resumed upon the applicant’s complaint. Consequently, the Government’s objection as to the non-exhaustion of domestic remedies has to be rejected (compare with Gabibullayev v. Ukraine (dec.), no. 29725/05, 11 January 2011).\n\n63.  Having regard to the above, the Court finds that there has been a violation of the procedural limb of Article 2 of the Convention.\n\nAPPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n64.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\n65.  The applicant claimed 6,000 euros (EUR) in compensation for nonpecuniary damage. He did not raise any other claims.\n\n66.  The Government submitted that the applicant’s claims for nonpecuniary damage had no causal connection with the violation complained of. In any case, in their view, the applicant’s complaints were inadmissible.\n\n67.  Regard being had to the documents in its possession and to the approach taken in similar cases against Ukraine (see, in particular, Nikolay Volkogonov and Igor Volkogonov v. Ukraine [Committee], no. 40525/05, 28 November 2013, and Basyuk v. Ukraine, no. 51151/10, 5 November 2015), the Court finds it reasonable to award the applicant the amount claimed in respect of nonpecuniary damage, plus any tax that may be chargeable.\n\n68.  Since the applicant made no claim in respect of costs and expenses incurred either domestically or before the Court, the Court is not called upon to make an award under this head.\n\n69.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\nHolds that the applicant may claim to be a victim;\n\nJoins the Government’s objection as to the non-exhaustion of domestic remedies to the merits of the complaint under Article 2 of the Convention and dismisses it;\n\nHolds that there has been a violation of Article 2 of the Convention under its procedural limb;\n\nHolds\n\nthat the respondent State is to pay the applicant, within three months, EUR 6,000 (six thousand euros) plus any tax that may be chargeable, in respect of non-pecuniary damage to be converted into the currency of the respondent State at the rate applicable at the date of settlement;\n\nthat from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.\n\nDone in English, and notified in writing on 4 February 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_636","text":"PROCEDURE\n\n1.  The case originated in an application (no. 59196/08) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian national, Mr István Baksza (“the applicant”), on 2 December 2008.\n\n2.  The applicant was represented by Mr A. Kádár, a lawyer practising in . The Hungarian Government (“the Government”) were represented by Mr Z. Tallódi, Agent, Ministry of Public Administration and Justice.\n\n3.  The applicant complained under Article 5 § 3 of the Convention that the excessive length of his pre-trial detention had not been justified. Furthermore, relying on Article 5 § 4 of the Convention, he complained that the principle of “equality of arms” had not been respected when he had been challenging his detention, since he could not get acquainted in detail with the material of the investigation which had underlain the risks held against him.\n\n4.  On 13 October 2011 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n5.  The applicant was born in 1974 and lives in Gödöllő.\n\n6.  The applicant, married and father of a minor, was arrested on 18 January 2006, because the police found several suspicious spare car parts, car documents and various tools in his vehicle. On the same day he was interrogated on suspicion of attempted aggravated larceny, allegedly committed in respect of a van.\n\n7.  On 20 January 2006 the prosecution proposed the applicant’s pre-trial detention. Relying essentially on the above material evidence, it was of the view that there was reasonable suspicion that the applicant and his accomplice, together with other unknown helpers, were active in the car theft business.\n\n8.  On the same day, the Dunakeszi District Court ordered the applicant’s pre-trial detention, referring to, but not substantiating, the risks of absconding, collusion and repetition of crime. An accomplice was detained as well.\n\n9.  The applicant appealed, challenging the suspicion against him and pointing out that his settled background – he had never been convicted before, had legal income, and supported several family members – rendered unlikely the risks of absconding and repetition of crime. The  dismissed the appeal on 27 January 2006, without addressing in detail the applicant’s arguments.\n\n10.  On 13 February 2006 the applicant’s detention was prolonged. The decision referred to eight counts of larceny. In his appeal, the applicant pointed out that the material evidence relating to one of the thefts was in no way capable of connecting him to the vehicle in question, whereas in respect of the remaining seven counts, he had not formally been implicated as a suspect.\n\n11.  On 28 February 2006 the  dismissed the appeal. Without addressing in detail the defence’s arguments, the court pointed out that it could not assess the evidence at that stage of the proceedings.\n\n12.  On 24 April 2006 the applicant requested his release. He argued that the living conditions of those supported by him had deteriorated. His request was to no avail.\n\n13.  Subsequently, the applicant’s detention was repeatedly prolonged at the statutory intervals. The reasoning in the decisions was largely identical to that in the previous ones, and the discrepancy in the counts of theft with which the applicant was charged persisted. His requests for release were to no avail.\n\n14.  On 10 July 2006 the prosecution again proposed the prolongation of the applicant’s detention. This time, reasonable suspicion was invoked in respect of four counts of car theft. The reasons for the applicant’s proposed detention remained the same.\n\n15.  On 14 July 2006 the District Court held a hearing and sustained the prosecution’s motion, while including in the decision the suspicion of another car theft. The applicant’s appeal and subsequent requests for release were to no avail.\n\n16.  On 29 August 2006 an expert was appointed to examine whether or not the material evidence found in the applicant’s car was capable of connecting him to any car theft.\n\n17.  Further prolongations took place on 19 October and 16 November 2006, with essentially unchanged reasoning. The applicant’s ensuing requests for release or a less stringent measure were unsuccessful.\n\n18.  On 21 December 2006 the applicant was charged with further counts of car theft.\n\n19.  On 15 January 2007 the  prolonged the applicant’s detention. The underlying reasons were the same as before. In his appeal, the applicant complained that the expert opinion had never been communicated to him.\n\n20.  After further prolongations, on 16 May 2007 a bill of indictment was preferred. The applicant was charged with altogether 17 counts of car theft or attempted car theft and one count of forgery of documents. The applicant’s detention was maintained, with reference to the risk of absconding and repetition of crime.\n\n21.  The first hearing took place on 21 November 2007. The applicant’s detention was upheld because, in the trial court’s view, the potential severe sanction gave rise to a risk of absconding. No reason was given as to the risk of repetition of crime.\n\n22.  The applicant’s subsequent requests for release or a less stringent measure were to no avail.\n\n23.  Apart from the one of 10 July 2006, none of the prosecution’s motions to have the applicant’s detention prolonged had made any specific reference to the actual evidence which underlay the alleged risks held against him. The applicant’s lawyer repeatedly complained about having no access to these pieces of evidence – in particular, on 17 July and 20 November 2006 – however, this omission was not redressed; and the courts did not refute the defence’s allegations of having no access.\n\n24.  Of the altogether twenty-four decisions on the applicant’s detention, only one contained separate arguments in respect of each of the two co-detainees.\n\n25.  The authorities prolonging the applicant’s pre-trial detention considered the possibility of applying less stringent measures on 8 May 14 July and 16 November 2006, but eventually they did not avail themselves thereof.\n\n26.  The applicant was finally released on 2 June 2008. A prohibition on leaving his domicile was imposed on him.\n\n27.  On 24 May 2011 the applicant was convicted at first instance. The case is currently in the appeal stage.\n\nII.  RELEVANT DOMESTIC LAW\n\n28.  Act no. XIX of 1998 on the Code of Criminal Procedure provides as follows:\n\nSection 131\n\n“(1) Pre-trial detention ordered prior to filing the indictment may continue up to the decision of the court of first instance during the preparations for the trial, but may never be longer than one month. The pre-trial detention may be extended by the investigating judge by three months at the most on each occasion, but the overall period may still not exceed one year after the order of pre-trial detention. Thereafter, pre-trial detention may be extended by the county court acting as a single judge by two months at the most on each occasion, in compliance with the procedural rules pertaining to investigating judges.”\n\nSection 132\n\n“(1) If the period of the pre-trial detention ordered or maintained after filing the indictment\n\na) exceeds six months and the court of first instance has not delivered a conclusive decision, the justification of such pre-trial detention shall be reviewed by the court of first instance,\n\nb) exceeds one year, the justification of such pre-trial detention shall be reviewed by the court of second instance.\n\n(2) After the lapse of the time period specified in subsection (1) b), the justification of the pre-trial detention ordered or maintained after filing the indictment shall be reviewed by the court of second instance, or, if the procedure is held before the court of third instance, by the court of third instance, at least once in every six months.”\n\nSection 211\n\n“(3) At the session the party [that is, the prosecution] having submitted the motion [on ordering or prolonging pre-trial detention] shall present the evidence substantiating the motion in writing or orally. Those present shall be granted the opportunity to examine – within the limits set forth in section 186 – the evidence of the party having submitted the motion. If the notified party does not attend the session but had submitted his observations in writing, this document shall be presented by the investigating judge.”\n\nSection 186\n\n“(1) Any person having the right to be present at an investigatory action may forthwith inspect the minutes taken.\n\n(2) The suspect, the counsel for the defence and the victim may inspect the expert opinion during the investigation as well, but they may only inspect other documents if this does not injure the interests of the investigation.\n\n(3) The suspect and the counsel for the defence shall be entitled to receive a copy of the documents they may inspect.\n\n(4) The copy of the documents produced, obtained, filed or attached in the course of the investigation and containing the testimony or personal data of the victim or the witness shall not indicate the personal data of either the victim or the witness. No copy may be issued of the draft decisions of the prosecutor or the investigating authority. No copy may be issued of the documents created in the course of communications between the prosecutor and the investigating authority pursuant to sections 165 and 165/A, except for the documents that contain the legal standpoint of the prosecutor and the investigating authority in relation to the case – including particularly the document containing the prosecutor’s instruction concerning the conduct of the investigation, provided that the specific investigation was conducted – provided that this does not interfere with the interests of the investigation.”\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION\n\n29.  The applicant complained that the length of his pre-trial detention had been excessive, in breach of Article 5 § 3, which reads as follows:\n\n“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”\n\n30.  The Government contested that argument.\n\nA.  Admissibility\n\n31.  The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n32.  The applicant maintained that the decisions prolonging his detention had not been individualised or taken into account his personal circumstances, had not substantiated the risk of his absconding, collusion and re-offending or involved an assessment of the possibility of applying less stringent measures.\n\n33.  The Government submitted in reply that the applicant’s personal circumstances had duly been considered, in an individualised way, and this in an ever-increasing manner as time had passed. Likewise, the possibility of applying less stringent measures had not been overlooked by the courts. The measure had been maintained because the underlying reasons had remained relevant.\n\n34.  Under the Court’s case-law, the issue of whether a period of detention is reasonable cannot be assessed in abstracto. Whether it is reasonable for an accused to remain in detention must be assessed in each case according to its special features. Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty.\n\nIt falls in the first place to the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable time. To this end they must examine all the facts arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty and set them out in their decisions dismissing the applications for release. It is essentially on the basis of the reasons given in these decisions and of the true facts mentioned by the applicant in his appeals, that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 of the Convention.\n\nThe persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see, among many authorities, Szepesi v. Hungary, no. 7983/06, §§ 23 to 25, 21 December 2010).\n\n35.  The Court observes that there is a dispute between the parties as to whether the grounds given by the judicial authorities for the applicant’s continued detention were “relevant” and “sufficient”, especially in the face of the requisite individualised assessment of the particular circumstances of the detainee and of the case (see, in the context of Article 5 § 1, Darvas v. Hungary, no. 19547/07, §§ 27 to 29, 11 January 2011).\n\n36.  The applicant was held in pre-trial detention from 20 January 2006 until 2 June 2008, that is, for over two years and four months. During this period, the courts made repeated references to the risk of his absconding, collusion and repetition of crime. While the Court accepts that these considerations were “relevant” to the applicant’s case, it finds that, as time elapsed, they were no longer “sufficient”. In particular, no reasons – other than the seriousness of the charges – were advanced at any stage of the proceedings for assuming that the applicant might abscond, which the Court does not find satisfactory in contrast to the fact that the applicant had legal income and supported several family members (see paragraph 9 above).\n\n37.  Moreover, it appears that the courts attributed a certain importance to the risk of the applicant’s reoffending. However, the Court observes that their reasoning contained no particular elements pointing to this danger.\n\n38.  For the Court, the courts’ reasoning for prolonging the applicant’s detention was rather stereotyped on most occasions and devoid of the requisite elements substantiating the specific risks referred to – which is also reflected by the fact that, one instance apart, no separate arguments were advanced by the courts in respect of the two co-detainees (see paragraph 24 above). It finds this particularly troubling in the face of the fact that the detention lasted over two years and four months, and was terminated only almost a year after the indictment on 16 May 2007 (see paragraph 20 above) (see Szepesi, cited above, § 28), during which time the authorities showed no special diligence in accelerating the proceedings.\n\n39.  The above considerations enable the Court to find that the grounds for the applicant’s detention, if “relevant”, were not “sufficient” in respect of the entire period in question.\n\nDrawing attention to its case-law on the matter (see, among many other authorities, the above-cited Szepesi judgment), the Court emphasises that, in protracted criminal proceedings involving a deprivation of personal liberty, it is incumbent on the authorities to seek to reduce the duration of pre-trial detention to the possible minimum and to examine the possibilities of applying less stringent alternatives.\n\nThere has accordingly been a violation of Article 5 § 3 of the Convention.\n\nII.  ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION\n\n40.  The applicant complained that the principle of “equality of arms” had been infringed when he had been challenging his detention, since he had had no access to the relevant material of the investigation. He relied on Article 5 § 4 of the Convention which provides as follows:\n\n“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”\n\n41.  The Government contested that argument.\n\nA.  Admissibility\n\n42.  The Government submitted that the applicant should have filed an action in compensation with the civil courts claiming that the judicial authorities denying his right to have access to the documents submitted by the prosecution had caused him damages. Having failed to do so, he had not exhausted domestic remedies. To support this argument, they submitted excerpts of domestic judgments in which damages had been awarded to plaintiffs complaining about delayed imposition of a cumulative sentence, overdue release from detention, unlawful composition of a court chamber and inadequate service of a summons.\n\n43.  The applicant submitted that at the material time – that is, prior to  decision no. 166/2011. (XII.20.) which endorsed the principles enounced by the Court in the case of Nikolova v. Bulgaria [GC] (no. 31195/96, ECHR 1999II) – it was ambiguous under the domestic law whether or not a suspect in pre-trial detention had a right to access the documents serving as basis for his detention. Therefore, any tort action based on the alleged breach of this right had little prospect of success. In any event, no tort liability could be established on the judicial authorities’ side unless an intentional breach of procedure could be proven. Given the cumbersome nature of bringing such an action, it could not be regarded as an effective remedy in the circumstances.\n\n44.  The Court considers that it is not necessary to embark on a closer scrutiny of the parties arguments’ about the effectiveness of a civil action in the circumstances, since the Government have not produced any evidence to show that such an action has proved effective in cases sufficiently similar to the present one and would consequently constitute a remedy to be exhausted in the circumstances. It follows that this complaint cannot be rejected for non-exhaustion of domestic remedies. Moreover, the Court considers that it is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n45.  The Government submitted that under the domestic law access to the case-file in the investigation phase was not absolute in so far as it was limited to access to those elements of evidence which were relevant to the ordering or maintaining of pre-trial detention. The selection of these pieces of evidence was in the public prosecutor’s discretion. It was important to emphasise in this connection that the judge deciding on detention received exactly the same elements and based his decision on them. In reaction to a proposed amendment to the Code of Criminal Procedure, the  held (in decision no. 166/2011. (XII.20.)), in line with the Court’s judgment in the above-mentioned Nikolova case, that the existing rules satisfied the requirements of the principle of “equality of arms”. Since the applicant had never brought the civil action referred to above (see paragraph 42 above), the Government were unable to take a position as to whether the access actually granted in the instant case had satisfied those requirements.\n\n46.  The applicant submitted that in his particular case no sufficient access to the evidence underlying his detention had been secured. Had such an access been granted, this would have been recorded in the case file. However, the Government had not demonstrated that this was the case. Moreover, had he been able to exercise the right of access, it would have been superfluous on his part to complain about this. However, he had repeatedly made such complaints, but in vain (see paragraph 23 above).\n\n47.  The Court recalls that arrested or detained persons are entitled to a review bearing upon the procedural and substantive conditions which are essential for the “lawfulness”, in the sense of the Convention, of their deprivation of liberty. This means that the competent court has to examine “not only compliance with the procedural requirements set out in [domestic law] but also the reasonableness of the suspicion grounding the arrest and the legitimacy of the purpose pursued by the arrest and the ensuing detention”.\n\nA court examining an appeal against detention must provide guarantees of a judicial procedure. The proceedings must be adversarial and must always ensure “equality of arms” between the parties, the prosecutor and the detained person. Equality of arms is not ensured if counsel is denied access to the investigation file in so far as it is essential in order effectively to challenge the lawfulness of his client’s detention. In the case of a person whose detention falls within the ambit of Article 5 § 1 (c), a hearing is required (see, among many other authorities, Nikolova, cited above, § 58). The disclosure of evidence must take place in good time, giving access to the relevant elements of the file prior to the applicant’s first appearance before the judicial authorities (see Lamy v. , 30 March 1989, § 29, Series A no. 151).\n\n48.  In the present case, the Court notes the Government’s submission according to which – in the absence of a subsequent civil action, in which the disputed issues could be clarified – they were not in a position to form a view on the adequacy of the information provided to the applicant concerning his continued detention. In this connection, the Court would refer to its above finding (see paragraph 44 above) that the non-introduction of the civil action suggested by the Government must be seen as immaterial in the circumstances.\n\n49.  Furthermore, the Court observes that the applicant has consistently asserted, both before the domestic authorities and the Court, that he was granted no access to the relevant elements of the file and that the domestic courts did not refute the allegations about the denial of access (see paragraph 23 above). It also notes (see paragraph 28 above) that such an access is guaranteed by the Code of Criminal Procedure, unless it interferes with the interests of the investigation.\n\nHowever, there is no element in the case file or the parties’ submissions indicating that the applicant could indeed exercise this right (cf. Lamy v. Belgium, loc. cit.; Lietzow v. , no. 24479/94, § 47, ECHR 2001I; Svipsta v. Latvia, no. 66820/01, § 138, ECHR 2006III (extracts)).\n\n50.  In these circumstances, the Court cannot but conclude that the Government have failed to provide evidence that the requisite access was indeed made available to the applicant, the burden of proof being incumbent on the Government in this connection.\n\nIt follows that the principle of “equality of arms” cannot be considered to have been respected in the instant case.\n\nConsequently, there has been a violation of Article 5 § 4 of the Convention.\n\nIII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n51.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n52.  The applicant claimed 6,494 euros (EUR) in respect of pecuniary damage. This amount corresponds to income lost during his detention. Moreover, he claims EUR 20,000 in respect of non-pecuniary damage.\n\n53.  The Government contested these claims.\n\n54.  The Court finds no causal link between the violations found and the pecuniary damage claimed. It therefore rejects this claim. On the other hand, it considers that the applicant must have sustained some non-pecuniary damage, and awards him, on an equitable basis, EUR 6,500 under this head.\n\nB.  Costs and expenses\n\n55.  The applicant also claimed EUR 5,800 for the costs and expenses incurred before the Court. This sum corresponds to 43 hours of legal work billable by his lawyer at an hourly rate of EUR 131, plus EUR 167 of clerical costs.\n\n56.  The Government contested this claim.\n\n57.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 4,500 covering costs under all heads.\n\nC.  Default interest\n\n58.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Declares the application admissible;\n\n2.  Holds that there has been a violation of Article 5 § 3 of the Convention;\n\n3.  Holds that there has been a violation of Article 5 § 4 of the Convention;\n\n4.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n5.  Dismisses the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 23 April 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_48","text":"PROCEDURE\n\n1.  The case originated in an application (no. 46726/11) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Ms Slavica Zrilić (“the applicant”), on 21 July 2011.\n\n2.  The applicant was represented by Ms V. Šnur, a lawyer practising in Vinkovci. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.\n\n3.  The applicant alleged in particular that her rights to respect for her home and to peaceful enjoyment of her possessions under Article 8 of the Convention and Article 1 of Protocol No. 1 had been violated by the national courts’ order for the partition of the house she had jointly owned with her former husband.\n\n4.  On 3 October 2011 the applicant’s complaints concerning the right to respect for her home and peaceful enjoyment of her possessions under Article 8 of the Convention and Article 1 of Protocol No. 1 were communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n5.  The applicant was born in 1958 and lives in Vinkovci.\n\n6.  In 1992 the applicant and her former husband G.Z. built a family house in Vinkovci. The house measured 176.42 square metres on two levels, each consisting of two rooms, bathroom, hallway, dining-room and a kitchen. It was placed on a plot of land measuring in total 455 square metres. The applicant and her former husband lived on the ground floor while the upper level was left in a rough stage of construction.\n\n7.  In May 2005 the applicant and G.Z. divorced, but continued to live in the same house.\n\n8.  In the meantime, the applicant lodged a civil action in the Županja Municipal Court (Općinski sud u Županji) asking it to establish her share in the house and the plot of land. She also asked that her share in the ownership of a jointly owned car be established.\n\n9.  During the proceedings, the Županja Municipal Court commissioned an expert report to establish the total value of the house and the plot of land. The expert submitted her report on 17 March 2009, finding that the total value of the house and the plot of land was 55,158.48 euros (EUR). She also found that the parties’ proportions in the total investments were 66:34 in favour of G.Z.\n\n10.  Since G.Z. did not contest the applicant’s claim, on 8 May 2009 the Županja Municipal Court established that the applicant was the owner of one-third and G.Z. of two-thirds of the house and the plot of land. It also established that they owned their car in equal shares and ordered G.Z. to pay the applicant 3,045.50 Croatian kunas (HRK) on that account. This judgment became final and the applicant and G.Z. registered their shares of the house and the plot of land in the land registry of the Vinkovci Municipal Court (Općinski sud u Vinkovcima).\n\n11.  On 28 August 2009 G.Z. lodged a request with the Vinkovci Municipal Court for partition of the house. He proposed to buy out the applicant’s share or, alternatively, to have the house partitioned by judicial sale.\n\n12.  At a hearing on 6 October 2009 the applicant did not object to the proposal for partition in the proportions established, but she asked for an adjournment of the hearing so she could prepare her observations concerning the proposed partition model.\n\n13.  On 14 October 2009 the applicant opposed the proposed partition model asking the Vinkovci Municipal Court to order partition in kind. She argued that she and G.Z. had already been living in separate parts of the house for some years and that it had amounted to a de facto partition. She further submitted that she had brought a civil action against G.Z. in the Vinkovci Municipal Court in which she had claimed a refund of her previous contributions to the construction of the house. These proceedings were at the time still pending.\n\n14.  On 2 November 2009 G.Z. submitted his reply to the applicant’s observations. He argued that he and the applicant had actually been living in the same space and sharing the same living area, apart from bedrooms. He considered that partition in kind was not technically possible, given their shares in the house and the plot of land. As regards the applicant’s civil action for refund of contributions, he pointed out that they had already had their shares established by a final judgment, and that her civil action had no bearing on the proceedings at issue.\n\n15.  Another hearing before the Vinkovci Municipal Court was scheduled for 23 November 2009 at 9 a.m.\n\n16.  On the day of the hearing, the applicant’s representative informed the Vinkovci Municipal Court that she was not able to attend because she had some undisclosed health issues. She asked for the hearing to be adjourned. The Vinkovci Municipal Court dismissed the request for adjournment of the hearing, on the grounds that the applicant’s representative had not provided any evidence about her health, and that she had not asked for the adjournment in due time. The hearing was held and the Vinkovci Municipal Court decided to commission an expert report in order to establish whether partition in kind was possible and also the market value of the property at issue.\n\n17.  On 26 November 2009 the Vinkovci Municipal Court commissioned an expert report from S.Ž.\n\n18.  On 4 December 2009 the applicant complained to the Vinkovci Municipal Court that she had not been allowed to participate in the choice of the expert and that the decision to commission the report had been adopted in her absence.\n\n19.  On 4 January 2010 S.Ž. submitted his expert report. He estimated the market value of the property at EUR 55,674. As regards the possibility of partition in kind, S.Ž. established that it was not possible because the house was a single unit. He found that the house had one entrance, which led to a hallway from where it was possible to access all the other rooms in the house. He also found that the house had a building permit only for the ground floor although in reality it consisted of two levels, and that the house did not have a use permit.\n\n20.  At a hearing held on 17 February 2010 the applicant objected to the findings of the expert report. She maintained that partition in kind was possible, and pointed out that the expert had not examined the possibility of creating two separate flats, and that his findings as to the value of the property and the existence of the use permit were unclear.\n\n21.  The Vinkovci Municipal Court adjourned the hearing and summoned the expert for questioning concerning the applicant’s objections.\n\n22.  At a hearing held on 8 March 2010 the Vinkovci Municipal Court, in presence of the parties and their representatives, heard expert S.Ž., who reiterated his previous findings. He explained that creating two separate flats would only have been possible if there had been two single units with separate entrances. Since this was not the case with the house at issue it was not possible to establish two separate flats without further significant investment. In particular, it would be necessary to obtain a new building permit, which meant instituting a new set of administrative proceedings, and to carry out the necessary construction work. The expert further explained that he had never seen a use permit and therefore he had made his report as though it did not exist. In any event, the existence of a use permit would not significantly influence his findings, because it could always be obtained without any particular difficulties. As regards the market value of the property at issue, he explained that it had been assessed in line with the relevant market data.\n\n23.  The parties had no questions for the expert. The applicant objected to the part of the report which stated that partition in kind was not possible. She asked for a new report to be commissioned from another expert.\n\n24.  On 22 April 2010 the Vinkovci Municipal Court dismissed the applicant’s request, on the grounds that all the relevant facts had been established, and concluded the proceedings.\n\n25.  On the same day the Vinkovci Municipal Court, relying on the expert report, ordered the sale of the house and the plot of land. The relevant part of the decision reads:\n\n“This court did not accept the respondent’s request for the proceedings to be stayed until termination of the proceedings under no. P-1151/09. The court considers that the outcome of those civil proceedings is not a preliminary issue which could influence these partition proceedings, especially since the respondent did not object to the partition itself and the established shares, which is the decisive prerequisite for partition ...\n\nThe court did not accept the respondent’s objection that the expert had been appointed without having her opinion heard, as provided under Article 251 § 2 of the Code of Civil Procedure.\n\nAt a hearing held on 23 November 2009 the court decided to commission an expert report. The respondent’s representative was duly summoned to this hearing, but she informed the court, on the same day just before the hearing ..., that she could not attend for health reasons, without submitting any evidence of health problems.\n\nThe claimant objected to the adjournment, and the hearing was held in the absence of the respondent and her representative ...\n\nIn any event, although it is true that the parties are allowed to express their opinion as to the choice of the expert, it is for the court to choose an expert, irrespective of whether the parties agree ...\n\nThe respondent asked for a new report to be commissioned from another expert.\n\nAnswering the respondent’s objections at a hearing held on 8 March 2010, expert [S.Ž.] reiterated his findings both as to the market value of the property and the possibility of partition in kind.\n\nAccording to the expert, in order to form a single unit such as an apartment, there would have to be a cohesive group of rooms suitable as living accommodation, which would form a unit and would have a separate entrance. A single unit, according to the expert, could not be formed from one or more rooms which do not meet the aforementioned criteria.\n\nThe parties’ house does not meet the criteria by which single units could be formed, since it would imply significant costs, particularly for the new building permit, the relevant administrative proceedings and eventually the construction work.\n\nThe expert also explained that he had determined the market value taking into account the fact that the house had no use permit, although obtaining one would not entail significant costs.\n\nEven after the expert had reiterated his findings at the hearing, the respondent insisted on her objection to his finding that partition in kind would not be possible, and requested that a new expert report be commissioned.\n\nThis court did not accept the respondent’s request for a new expert report because it found S.Ž.’s report objective and well drafted.\n\nNamely, throughout the proceedings the respondent maintained that partition in kind was possible, as she and the claimant had been sharing the same space as physically divided parts.\n\nHowever, this court considers that the fact that the parties live separately in the same house does not mean in itself that partition in kind is possible, since it would require each party to be allocated a single unit which could be entered in the land register and which would be in proportion with their respective shares.\n\nThe expert explicitly stated that partition in kind would not be possible since it would require additional construction work, special permits and more.\n\nGiven that the central question in proceedings relating to partition of property is to establish whether at the relevant time the property at issue could be physically partitioned, it follows that the respondent’s objections are ill-founded, and consequently the expert’s report was accepted.”\n\n26.  On 17 May 2010 the applicant lodged an appeal before the  (Županijski sud u Vukovaru) challenging the first-instance decision. She maintained that the fact that she and G.Z. both lived in the house amounted to de facto partition and that, in any event, it had been necessary to stay the partition proceedings pending the outcome of the civil proceedings in which she had claimed reimbursement of her previous contributions in the construction of the house. She further challenged the fact that the expert had been chosen without her having the opportunity to make any observations in that respect. Furthermore, the applicant considered that it was possible to form two single units and thus a building with two separate flats. Since the expert had found differently it was necessary to commission another report; the first-instance court had refused to do this without giving any relevant reasons.\n\n27.  On 17 February 2011 the  dismissed the applicant’s appeal as ill-founded. It found the expert report well drafted and convincing and therefore dismissed all the applicant’s arguments in that respect. The Vukovar County Court found that the fact that the applicant had not been heard when the first-instance court had decided to commission the report had had no bearing on the overall fairness of the proceedings. It also pointed out that the expert had been heard during the proceedings and that he had convincingly defended his findings. Finally, the Vukovar County Court endorsed the findings of the first-instance court that partition in kind was not possible, and held that the pending civil proceedings for refund of the applicant’s contributions to the construction of the house had not warranted staying the proceedings, since the parties’ shares in the house had already been established by a final judgment.\n\n28.  On 22 March 2011 the Vinkovci Municipal Court opened enforcement proceedings for judicial sale of the house and the plot of land.\n\n29.  The applicant lodged an appeal against the above decision before the Vukovar County Court on 4 April 2011.\n\n30.  On 7 April 2011 the applicant lodged a constitutional complaint before the  (Ustavni sud Republike Hrvatske) arguing that there had been a violation of her right to a fair trial under Article 29 of the Constitution and Article 6 of the Convention, alone and in conjunction with Article 13 of the Convention. She also considered that there had been a violation of the principle of lawfulness, equality before the law, right to respect for private and family life and the right of ownership, under Articles 5, 14, 35 and 48 of the Constitution respectively. The applicant reiterated her previous arguments concerning the choice of the expert and the findings of the expert report. She maintained that she and G.Z. had both been living in the house for years and that they had already created de facto partition. Thus she considered that partition in kind was the only possible solution. The applicant also asked the  to stay the enforcement proceedings.\n\n31.  On 12 May 2011 the  declared the applicant’s constitutional complaint inadmissible as manifestly ill-founded and dismissed her request for staying of the enforcement proceedings.\n\n32.  On 10 October 2011 the  dismissed the applicant’s appeal against the decision of the Vinkovci Municipal Court instituting the enforcement proceedings (see paragraphs 28 and 29 above).\n\n33. On 18 September 2012 the Vinkovci Municipal Court, the house and the plot of land had been sold to G.Z., by court order, awarded the applicant HRK 135,333.34 as her share.\n\n34.  On the same day the Vinkovci Municipal Court ordered the applicant to vacate the house.\n\nII.  RELEVANT DOMESTIC LAW AND PRACTICE\n\nA.  Relevant domestic law\n\n1.  Constitution\n\n35.  The relevant provisions of the Constitution of the  (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998 (consolidated text), 113/2000, 124/2000 (consolidated text), 28/2001 and 41/2001 (consolidated text), 55/2001 (corrigendum), 76/2010, 85/2010) read as follows:\n\nArticle 14\n\n“Everyone in the  shall enjoy rights and freedoms regardless of their race, colour, sex, language, religion, political or other belief, national or social origin, property, birth, education, social status or other characteristics.\n\nAll shall be equal before the law.”\n\nArticle 34\n\n“The home is inviolable ... “\n\nArticle 35\n\n“Everyone has a right to respect for and legal protection of his private and family life, dignity, reputation and honour.”\n\nArticle 48\n\n“The right of ownership shall be guaranteed ...“\n\nAct\n\n36.  The relevant part of section 62 of the Constitutional Court Act (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002) reads as follows:\n\nSection 62\n\n“1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that an individual act of a state body, a body of local and regional self-government, or a legal person with public authority, concerning his or her rights and obligations, or a suspicion or an accusation of a criminal act, has violated his or her human rights or fundamental freedoms or his or her right to local and regional self-government guaranteed by the Constitution (hereinafter: a constitutional right) ...\n\n2. If another legal remedy exists in respect of the violation of the constitutional right [complained of], a constitutional complaint may be lodged only after that remedy has been used.”\n\n3.  Relevant property legislation\n\n37.  The relevant provisions of the Property Act (Zakon o vlasništvu i drugim stvarnim pravima, Official Gazette nos. 91/96, 68/98, 137/99, 22/00, 73/00, 129/00, 114/01, 79/06, 141/06, 146/08, 38/09, 153/09) reads:\n\nCO-OWNERSHIP\n\nThe right to termination\n\nSection 47\n\n“(1) Co-owners have the right to terminate co-ownership if that is possible and permissible; such a right is not subject to any prescription.\n\n(2) Co-owners may require termination at any time, except when such termination would be detrimental to the interests of other co-owners; however, such a requirement may be made even at such a time if in view of the circumstances it cannot be reasonably expected that the circumstance will change soon to the extent that the termination would not be detrimental to the interests of other co-owners. The court with jurisdiction for the termination proceedings shall decide on any objection to the termination ... “\n\nTermination through court proceedings\n\nSection 50\n\n“(1) In court termination, the court is primarily bound by strict statutory provisions, and subsidiarily by a valid agreement existing between the parties on the method of termination, if any, and if possible and permissible, as well as by the right to terminate by payment to which a co-owner would be entitled based on a legal transaction or law.\n\n(2) If the court is not bound regarding the method of termination within the meaning of paragraph 1 of this Article, the court shall order partition in kind ...\n\n(4) If the partition under paragraph 2 of this Article is not possible without adverse substantial effects on the value of the property, the court shall order judicial sale and divide the proceeds according to the relevant shares (civil termination).\n\nTermination by creating separate premises\n\nSection 53\n\n“If co-owners agree to limit their rights instead of partitioning the real property by establishing separate premises within it in accordance with their own shares, that shall be considered their decision on termination ... “\n\nCONDOMINIUM\n\nCondominium property\n\nSection 67\n\n(1) Part of a co-owned real property, representing a single unit suitable for independent exercise of co-ownership, such as a flat or other single unit, may transform the property into a condominium ... “\n\n38.  What constitutes a flat is defined under the Lease of Flats Act (Zakon o najmu stanova, Official Gazette nos. 91/1996, 48/1998, 66/1998, 22/2006) in the following terms:\n\nSection 2\n\n“(1) A flat is a group of rooms suitable for living accommodation and their ancillary premises, which form a single unit and have a separate entrance ... “\n\nB.  Relevant Constitutional Court practice\n\n39.  In its decision no. U-III-46/2007 of 22 December 2010 the Constitutional Court, referring to the Court’s case-law in Ćosić v. , no. 28261/06, 15 January 2009, examined an appellant’s complaint concerning her eviction from a flat, under the right to home provided in Article 34 § 1 of the Constitution, although the appellant had not cited that provision. In this respect the  noted:\n\n“The appellant complained of a violation of her constitutional rights under Articles 14 and 18 and 3 and 5 of the Constitution. It is to be noted that in substance the appellant complained of a violation of her right to home provided in Article 34 § 1 of the Constitution, and the right to respect for her home provided in Article 8 of the Convention ...\n\nUnder Article 62 § 1 of the Constitutional Court Act anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the individual act of a state body, concerning his or her rights and obligations, has violated his or her human rights or fundamental freedoms (a constitutional right).\n\nTherefore, the Constitutional Court, in the proceedings upon a constitutional complaint, and in view of the relevant arguments, protects the appellants only from violations of their constitutional rights.”\n\n40.  The  followed the same approach in its decision no. U-III-405/2008 of 21 February 2012, concerning the eviction of an appellant from her flat, in which she cited Article 14 § 2 (equality before the law) of the Constitution, but the Constitutional Court considered that her case opened the issue of her right to home. It therefore examined her complaints under Article 34 § 1 (right to home) of the Constitution in conjunction with Articles 35 (right to respect for private and family life) and 16 (restrictions of the Constitution rights) of the Constitution and Article 8 of the Convention.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1\n\n41.  The applicant complained that the national courts’ order for the partition of the house she had jointly owned with her former husband by judicial sale had violated her right to respect for her home and her right to peaceful enjoyment of her possessions. The applicant relied on Article 8 of the Convention, which reads as follows:\n\n“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.\n\n2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”\n\nThe applicant also cited Article 1 of Protocol No. 1, which provides:\n\n“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.\n\nThe preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”\n\nA.  Admissibility\n\n1.  The parties’ arguments\n\n42.  The Government submitted that the applicant had failed to complain about the violation of her right to respect for her home and peaceful enjoyment of her possessions during the proceedings before the domestic authorities. In her constitutional complaint, which had been an effective domestic remedy concerning her complaints, the applicant had not cited the relevant provision of the Constitution or otherwise complained of a violation of her right to respect for her home and peaceful enjoyment of her possessions. Furthermore, the applicant had failed to lodge an appeal on points of law with the Supreme Court, which was also an effective domestic remedy.\n\n43.  The applicant disagreed with the Government, arguing that she had exhausted all available and effective domestic remedies.\n\n2.  The Court’s assessment\n\n44.  The Court reiterates that under Article 35 § 1 of the Convention it may only deal with an application after all domestic remedies have been exhausted. The purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, for example, Mifsud v. France (dec.) [GC], no. 57220/00, § 15, ECHR 2002-VIII). The obligation to exhaust domestic remedies requires an applicant to make normal use of remedies which are effective, sufficient and accessible in respect of his Convention grievances. To be effective, a remedy must be capable of resolving directly the impugned state of affairs (see Balogh v. Hungary, no. 47940/99, § 30, 20 July 2004).\n\n45.  The rule of exhaustion of domestic remedies normally requires that complaints intended to be made subsequently at the international level should have been raised before the domestic courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law. The object of the rule on exhaustion of domestic remedies is to allow the national authorities (primarily the judicial authorities) to address an allegation that a Convention right has been violated and, where appropriate, to afford redress before that allegation is submitted to the Court. In so far as there exists at national level a remedy enabling the national courts to address, at least in substance, any argument as to an alleged violation of a Convention right, it is that remedy which should be used (see Azinas v. Cyprus [GC], no. 56679/00, § 38, ECHR 2004III).\n\n46.  The Court notes that the case at issue concerns partition of the house which the applicant built together with her former husband and in which they lived for years, including after their divorce. Throughout the domestic proceedings the applicant opposed partition of the house by judicial sale, arguing that she and her former husband had already been living in separate parts of the house for years and that this amounted to de facto partition. Thus she maintained her bid for partition in kind, making it clear to the domestic authorities that she did not want to leave the house.\n\n47.  When the lower courts refused to accept the request for partition in kind, the applicant lodged a constitutional complaint whereby she pursued the same complaints as to the effects of partition by judicial sale. In this respect the Court notes that, contrary to the Government’s arguments, the relevant materials from the case file disclose that the applicant did expressly rely on the Constitution provision guaranteeing the right of ownership. In any event, irrespective of the provision the applicant cited, it was open to the  to examine the substance of her complaints (see paragraphs 39 and 40 above).\n\n48.  Therefore the Court considers that, by complaining in substance about the effects of the partition on her right to respect for her home and peaceful enjoyment of her possessions, the applicant made normal use of the domestic remedies, as required by Article 35 § 1 of the Convention, before bringing the same complaints before the Court (see, inter alia, Tarbuk v. , no. 31360/10, § 32, 11 December 2012).\n\n49.  As to the Government’s argument that the applicant failed to lodge an appeal on points of law with the Supreme Court, the Court notes that the Constitutional Court did not declare the applicant’s constitutional complaint inadmissible for non-exhaustion of domestic remedies, but held that her complaint was in substance manifestly ill-founded. By doing so the  implicitly accepted that the applicant’s constitutional complaint satisfied formal criteria. The Court sees no reason to hold otherwise (see Bjedov v. , no. 42150/09, § 48, 29 May 2012).\n\n50.  Against the above background, the Court considers that the Government’s objection must be rejected. The Court further notes that the applicant’s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n1.  The parties’ arguments\n\n51.  The applicant argued that in the house at issue she had developed sufficient links with her private and family life. She had built the house with her former husband and had lived there for a number of years. After their divorce, the applicant and her former husband had both continued to live in the house. She therefore considered that this had amounted to de facto physical partition and that there had been no reason for partition by judicial sale. The applicant contended that the amount she had received from the judicial sale of the house had not been sufficient for her to buy a suitable flat where she could live. In this respect she contested the findings of the expert report both as to the possibility of partition in kind and the value of her share.\n\n52.  The Government submitted that the house at issue had not been the applicant’s home within the meaning of the Convention. They pointed out that the applicant had divorced her husband in 2005 but that from 2004 she had been using only one room on the ground floor of the house. The house had been a single unit and the applicant should have known that it was not possible for her to have a private and family life in that house. Therefore, at least from the moment when the parties’ shares in the house had been established by a final judgment, the applicant’s stay in the house had had a temporary character, which had prevented the applicant from creating sufficient and continuous links with the house.\n\n53.  The Government further argued that the partition of the house had been based on the relevant statutory law, namely the Property Act and the Code of Civil Procedure, and the relevant case-law of the domestic courts. It had pursued the legitimate aim of “the protection of the rights of others” within the meaning of Article 8 § 2 of the Convention, since the applicant’s former husband had also had a right to peaceful enjoyment of his possessions and the partition of co-owned property. Finally, the Government considered that the interference by partition of the house had been “necessary in a democratic society”. The Government pointed out that the domestic courts had been confronted with two opposing views as to the best means of partition of the house. They had therefore commissioned an expert report and afforded the parties sufficient opportunity to present all their arguments.\n\n54.  As regards the applicant’s complaint under Article 1 of Protocol No. 1, the Government pointed out that, according to the Court’s case-law, the State’s responsibility in property disputes between private parties had been limited to providing an effective remedy.  had discharged its obligation in that respect and therefore there had been no interference with the applicant’s rights. In any event, the Government considered that the alleged interference with the applicant’s property rights had been based on the Property Act and the Code of Civil Procedure, that it had pursued the legitimate aim of public interest and that it had been proportionate in the circumstances of the case.\n\n2.  The Court’s assessment\n\n55.  Having regard to all the circumstances of the present case, and the applicant’s complaints, the Court considers it appropriate to examine first the applicant’s complaint under Article 8 of the Convention.\n\n(a)  Whether a right protected by Article 8 is in issue\n\n56.  The first question the Court has to address is whether the applicant may arguably claim that she had a right protected by Article 8 and – more specifically in the present case – whether the house in question may be considered the applicant’s home.\n\n57.  The Court reiterates that the concept of “home” has autonomous meaning under the Convention. Whether or not a particular premises constitutes a “home” which attracts the protection of Article 8 § 1 will depend on the factual circumstances, namely the existence of sufficient and continuous links with a specific place (see, amongst many others, Gillow v. the United Kingdom, 24 November 1986, § 46, Series A no. 109; Buckley v. the United Kingdom, 25 September 1996, §§ 52-54, Reports of Judgments and Decisions 1996IV; and Bjedov, cited above, § 57).\n\n58.  The Court notes that it is undisputed between the parties that the applicant, with her former husband G.Z., built the house at issue in 1992, and that they both lived in the house even after their divorce in 2005. The applicant was ordered to vacate the house only in September 2012 and throughout that period she had no other home or place of residence. In such circumstances, the Court finds that the applicant had sufficient and continuing links with the house at issue for it to be considered her “home” for the purposes of Article 8 of the Convention.\n\n(b)  Whether there has been an interference with the applicant’s right to respect for her home\n\n59.  The Court observes that there is no dispute between the parties that the partition of the applicant’s house and the order to vacate it amounted to an interference with the right to respect for her home. The Court sees no reason to hold otherwise.\n\n(c)  Whether the interference was prescribed by law and pursued a legitimate aim\n\n60.  The partition of the house in question and the order to the applicant to vacate the house were adopted by the national courts under Croatian laws regulating co-ownership, which allow any co-owner to seek termination of the co-ownership. The Court, noting that its power to review compliance with domestic law is limited (see, among other authorities, Allan Jacobsson v. Sweden (no. 1), 25 October 1989, Series A no. 163, p. 17, § 57), is satisfied that the national courts’ decisions had a basis in the relevant domestic law. Furthermore, the interference in question pursued the legitimate aim of the “protection of the rights of others”, namely G.Z.’s right to seek termination of the co-ownership of the house at issue.\n\n(d)  Whether the interference was ‘”necessary in a democratic society”\n\n61.  The central question in this case is therefore whether the interference was “necessary in a democratic society”.\n\n62.  The Court reiterates that an interference will be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued. While it is for the national authorities to make the initial assessment of necessity, the final evaluation as to whether the reasons cited for the interference are relevant and sufficient remains subject to review by the Court for conformity with the requirements of the Convention (see Connors v. the United Kingdom, no. 66746/01, § 81, 27 May 2004, and Buckley, cited above, § 74).\n\n63.  The Court observes that in the case at issue the domestic courts were confronted with the problem of finding a fair balance between the applicant’s and G.Z’s private interests in partition of their family house. These interests involved their rights under Article 8 of the Convention and therefore, by the nature of the dispute, there was an inevitable interference by the domestic courts’ decisions with the rights of one of the parties guaranteed under that provision. In such circumstances, the Court must examine whether the decision-making process leading to measures of interference was fair and was such as to afford due respect to the interests safeguarded to the individual by Article 8 (see Zehentner v. Austria, no. 20082/02, § 58, 16 July 2009).\n\n64.  The Court notes that when G.Z. brought his action in the Vinkovci Municipal Court seeking termination of his and the applicant’s co-ownership of the house at issue by buying out the applicant’s share or partition of the house by judicial sale, the applicant did not object to the proposal for partition (see paragraph 12 above), thus removing the question of the necessity and legitimacy of such a request from any dispute. The applicant rather objected to the proposed partition model, seeking partition in kind (see paragraph 13 above); a proposal which was objected to by G.Z. (see paragraph 14 above).\n\n65.  Such a disagreement between the applicant and G.Z. required the domestic courts to seek a partition model which would be feasible and appropriate in the circumstances of the case. In this connection the Court reiterates that any person at risk of an interference with his right to home should in principle be able to have the proportionality and reasonableness of the measure determined by an independent tribunal in the light of the relevant principles under Article 8 of the Convention (see, mutatis mutandis, Orlić v. , no. 48833/07, § 65, 21 June 2011). This requirement applied equally both to the applicant’s and G.Z.’s relevant interests.\n\n66.  On 26 November 2009 the Vinkovci Municipal Court commissioned an expert report in order to establish whether partition in kind was possible and also the market value of the house and the plot of land. The expert report of 4 January 2010 found that partition in kind was not possible, since the house was a single unit with one entrance and a hallway leading to all the other rooms in the house (see paragraph 19 above). These findings were further elaborated by the expert at a court hearing held on 8 March 2010. The expert explained that partition in kind by establishing separate flats for the applicant and G.Z. was not possible without further significant investment, such as instituting new administrative proceedings, obtaining a new building permit, and carrying out the necessary construction work (see paragraph 22 above).\n\n67.  The Court notes that the applicant had no questions for the expert, although she was given every opportunity to confront the expert with her position and to put the relevant questions concerning his findings. The applicant merely maintained that partition in kind was possible (see paragraph 23 above). The Vinkovci Municipal Court accepted the expert report, finding it sufficiently reasoned and convincing, and ordered partition by judicial sale. The decision of the Vinkovci Municipal Court is sufficiently reasoned and does not disclose any arbitrary or manifestly unreasonable conclusions, particularly having in mind the provisions of the relevant domestic law. They stipulate that the court shall order partition by judicial sale if partition in kind is not possible without adverse effects on the value of the property (see paragraph 37 above, sections 50 § 4 and 67 of the Property Act) and that a “flat” requires a separate entrance (see paragraph 38 above).\n\n68.  The Court therefore, having in mind that it cannot substitute its own findings of fact for that of the domestic courts, which are better placed to assess the evidence adduced before them, is satisfied that the decision-making process leading to measures of interference with the applicant’s rights was fair and such as to afford due respect to the interests safeguarded by Article 8.\n\n69.  Finally, the Court notes that although the applicant raised a relevant argument before it, namely that she would not be able to buy another suitable flat with the money awarded by judicial sale, which could play an important role in balancing of interests also in terms of the relevant domestic law (see paragraph 37 above – section 47 § 2 of the Property Act); she had never raised that argument before the domestic authorities. Having in mind that the domestic authorities duly examined the applicant’s objection as to the partition model, the Court sees no reason to doubt that they would have examined the applicant’s argument as to whether it would be possible for her to buy another flat. However, without having that issue raised at the national level, the Court cannot substitute itself for the national authorities, since that would take it beyond its subsidiary role.\n\n70.  Therefore, the Court finds that there has been no violation of Article 8 of the Convention.\n\n71.  In view of the above considerations, the Court also finds no basis on which to conclude that any of the decisions of the domestic courts were affected by any element of arbitrariness or were otherwise manifestly unreasonable and thus in violation of the applicant’s property rights under Article 1 of Protocol No. 1. (see, mutatis mutandis, Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 86, ECHR 2007I).\n\n72.  This allows the Court to conclude, without further examination, that there has been no violation of Article 1 of Protocol No. 1.\n\nII.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION\n\n73.  Lastly, the applicant complained, under Article 6 § 1 of the Convention, that the domestic courts lacked impartiality, and under Article 14 of the Convention that she was discriminated against, but without any further substantiation.\n\n74.  In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court considers that this part of the application does not disclose any appearance of a violation of the Convention. It follows that it is inadmissible under Article 35 § 3 as manifestly ill-founded, and must be rejected pursuant to Article 35 § 4 of the Convention.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\n1.  Declares the complaint concerning the alleged violation of the applicant’s right to respect for her home and the peaceful enjoyment of her possessions admissible and the remainder of the application inadmissible;\n\n2.  Holds that there has been no violation of Article 8 of the Convention;\n\n3.  Holds that there has been no violation of Article 1 of Protocol No. 1 to the Convention.\n\nDone in English, and notified in writing on 3 October 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_978","text":"PROCEDURE\n\n1.  The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table.\n\n2.  The applications were communicated to the Russian Government (“the Government”).\n\nTHE FACTS\n\n3.  The list of applicants and the relevant details of the applications are set out in the appended table.\n\n4.  The applicants complained of the excessive length of their pre-trial detention. In application no. 53125/17, the applicant also raised a complaint under Article 5 § 4 of the Convention.\n\nTHE LAW\n\nI.  JOINDER OF THE APPLICATIONS\n\n5.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.\n\nII.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION\n\n6.  The applicants complained principally that their pre-trial detention had been unreasonably long. They relied on Article 5 § 3 of the Convention, which read as follows:\n\n“3.  Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”\n\n7.  The Court observes that the general principles regarding the right to trial within a reasonable time or to release pending trial, as guaranteed by Article 5 § 3 of the Convention, have been stated in a number of its previous judgments (see, among many other authorities, Kudła v. Poland [GC], no. 30210/96, § 110, ECHR 2000XI, and McKay v. the United Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006X, with further references).\n\n8.  In the leading case of Dirdizov v. Russia, no. 41461/10, 27 November 2012, the Court already found a violation in respect of issues similar to those in the present case.\n\n9.  Having examined all the material submitted to it, including the Government’ argument of non-exhaustion related to application no. 49998/17, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, including that concerning exhaustion of domestic remedies in the length-of-detention cases (see Polonskiy v. Russia, no. 30033/05, §§ 131-32, 19 March 2009), the Court dismisses the Government’s objection and considers that in the instant case the length of the applicants’ pre-trial detention was excessive.\n\n10.  These complaints are therefore admissible and disclose a breach of Article 5 § 3 of the Convention.\n\nIII.  OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW\n\n11.  In application no. 53125/17, the applicant also submitted a complaint under Article 5 § 4 of the Convention. This complaint is not manifestly illfounded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other ground. Accordingly, it must be declared admissible. Having examined all the material before it, the Court concludes that it also discloses a violation of the Convention in the light of its findings in Zubkov and Others v. Russia, nos. 29431/05 and 2 others, §§ 146-149, 7 November 2017, dealing with the lack of speedy review of the detention matters.\n\nIV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n12.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\n13.  Regard being had to the documents in its possession and to its caselaw (see, in particular, Pastukhov and Yelagin v. Russia, no. 55299/07, 19 December 2013), the Court considers it reasonable to award the sums indicated in the appended table.\n\n14.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\n1.  Decides to join the applications;\n\n2.  Declares the applications admissible;\n\n3.  Holds that these applications disclose a breach of Article 5 § 3 of the Convention concerning the excessive length of pre-trial detention;\n\n4.  Holds that there has been a violation of the Convention as regards the other complaint raised under well-established case-law of the Court (see appended table);\n\n5.  Holds\n\n(a)  that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.\n\nDone in English, and notified in writing on 26 July 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_90","text":"PROCEDURE\n\n1.  The case originated in an application (no. 31549/96) against Romania lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Romanian nationals, Mrs Irina Margaret Popovici, Mrs Sanda Popovici and Mrs Maria Margareta Dumitrescu (“the applicants”), on 5 April 1996. Following the death of Mrs Maria Margareta Dumitrescu on 10 November 1997, her heir, Mrs Maria Cristina Mauc Dumitrescu, a French and Romanian national, expressed her wish, on 9 May 2000, to continue the proceedings.\n\n2.  The Romanian Government (“the Government”) were represented by their Agent, Mrs C. Tarcea, of the Ministry of Justice.\n\n3.  The applicants alleged, in particular, that the Braşov Court of Appeal's finding, on 20 September 1995, that the courts had no jurisdiction to determine an action for recovery of possession and the change in the case-law following the decision of the Supreme Court of Justice were contrary to Article 6 § 1 of the Convention. The applicants also complained that the judgment had had the effect of infringing their right to peaceful enjoyment of their possessions as guaranteed by Article 1 of Protocol No. 1.\n\n4.  The application was referred to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).\n\n5.  By a decision of 10 October 2000, the Court (First Section) declared the application partly admissible.\n\n6.  On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1 of the Rules of Court). This case was assigned to the newly composed Second Section (Rule 52 § 1).\n\n7.  The applicants and the Government each filed observations on the merits (Rule 59 § 1).\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n8.  The first two applicants are Romanian nationals who were born in 1930 and 1932 respectively and live in . The third applicant, a Romanian and French national, lives in VillebonsurYvette, France.\n\n9.  In 1934 S.D, the father of the first two applicants, bought a parcel of land in Predeal, . In 1937 S.D. built a house on the land.\n\n10.  On 30 August 1946 the State requisitioned a room in the house, pursuant to a requisition order of Predeal Town Council, on the ground that it was needed by a third person, M.A.\n\n11.  On 22 May 1948, following an application by the Ministry of the Interior (MAI), the  prefect ordered the property to be returned to the owner, S.D.\n\n12.  On 13 September 1965, as can be seen from the judgments delivered in the present case, the State nationalised the house.\n\n13.  On 17 August 1971 Braşov City Council (Consiliul Popular Judeţean Braşov) decided to transfer the administration of the property from the managing company of state-owned property (Intreprinderea de gospodărie locativă ) to the Romanian Intelligence Service (Consiliul securităţii statului).\n\n14.  According to information provided by the applicants, in 1992 the property was transferred to the administration of the Romanian Intelligence Service (Serviciul Român de Informatii – “SRI”).\n\nA. The first action for recovery of possession\n\n15.  In 1992 the applicants, as heirs, lodged an application under Law no. 18/91 for the return of the land on which the house had been built. In a judgment of 25 November 1992 the Braşov Court of First Instance dismissed their application as ill-founded on the ground that they should have brought an action in the administrative courts in accordance with the provisions of Law no. 29/90.\n\n16.  On 8 January 1993 the first two applicants and Maria Margareta Dumitrescu brought an action for recovery of possession against Military Command Centre no. 05024 of the Ministry of Defence in the Braşov Court of First Instance. They argued that they were the heirs of S.D., that he had owned land of 2,686 m² in Predeal, on which he had built a house, and that in 1946 a room in that house had been requisitioned but that the State had subsequently illegally appropriated the property. They sought to establish their title to the house and land as heirs.\n\n17.  In a judgment of 25 May 1993 the court found that the house had belonged to S.D.; that a room had been requisitioned in 1946 for a specific period; that the house had subsequently been requisitioned in its entirety; and that since then the State had continued to occupy it despite the fact that the owner had protested at the requisition. Noting that the property claimed was now occupied by Command Centre no. 05007 of the SRI, and finding that the requisition order could not have had the effect of lawfully passing the property into the ownership of the State and that the house had been nationalised under Decree no. 92/1950, which had not been lawfully applied, the court held that the applicants were the legal owners of the house and adjoining land and ordered the State's property title to be struck out of the land register and the late S.D. to be registered as owner.\n\n18.  The SRI appealed against that judgment, submitting that, pursuant to section 5 of the Real Property Act (Law no. 18/1991), the property in question had definitively become state-owned property. It submitted, in the alternative, that the house had been nationalised in 1965 pursuant to Decree no. 92/1950.\n\n19.  On 9 December 1993 the  allowed the appeal, set aside the judgment of 25 May 1993 and dismissed the applicants' claim for recovery of possession on the merits.\n\n20.  The applicants lodged an appeal against that decision. In a judgment of 7 June 1994 the Braşov Court of Appeal allowed the applicants' appeal, noted that there had been procedural flaws, quashed the earlier decision and decided to remit the case to the  for a rehearing of the appeal.\n\n21.  On 21 December 1994 the , rehearing the appeal by the SRI, dismissed it as ill-founded. It considered that requisition was not a means of transferring title to property, but an act by which a right of use could temporarily be conferred. In addition, Decree no. 92/1950 was not applicable to the property of S.D., who, on account of his profession, did not fall into the category of persons whose property could be nationalised.\n\n22.  The SRI appealed against the decision of 21 December 1994.\n\nIn a final judgment of 20 September 1995 the Braşov Court of Appeal allowed the appeal and dismissed the action for recovery of possession on the merits. It held that the courts had exceeded their jurisdiction when they had examined the lawfulness of the nationalisation of the house and that the matter could only be settled by legislation.\n\nB. The second action for recovery of possession\n\n23.  On 22 September 1999 the applicants brought a fresh action for recovery of possession against the Ministry of Finance, the SRI and Predeal Town Council.\n\n24.  In a judgment of 5 May 2000 the  granted the applicants' claim, found that they were the lawful owners of the property and ordered the defendants to cease interfering with their enjoyment of their property right.\n\n25.  According to information provided by the Government, an appeal by the SRI was dismissed as ill-founded in a decision of 14 November 2000 of the Braşov Court of Appeal.\n\n26.  According to information provided by the applicants, in a judgment of 4 December 2001 the Supreme Court of Justice decided to allow the appeal by the SRI and to quash the earlier decisions and dismiss the applicants' action for recovery of possession.\n\nC.  The application for restitution under Law no. 112/95\n\n27.  On an unspecified date the applicant lodged an application for restitution with the administrative board established to deal with applications lodged with Braşov City Council pursuant to Law no. 122/95 (“the Administrative Board”).\n\n28.  In an administrative decision of 29 June 1999 the Administrative Board granted the application and ordered the building to be returned to the applicants.\n\n29.  On 10 September 1999 the SRI lodged an objection to that decision.\n\n30.  In a judgment of 16 December 1999 the Braşov Court of First Instance dismissed the objection as ill-founded.\n\n31.  On 9 May 2000 the  dismissed an appeal by the SRI as being ill-founded.\n\n32.  According to information provided by the applicants, in a judgment of 2000 the Braşov Court of Appeal allowed the SRI's appeal and objection, thereby setting aside the decision ordering the return of the building.\n\nII. RELEVANT DOMESTIC LAW AND PRACTICE\n\n33.  The relevant domestic legislation and case-law are set out in the Brumărescu v. Romania judgment ([GC], no. 28342/95, §§ 31, 34, 35, 40-44, ECHR 1999-VII).\n\nTHE LAW\n\nI. THE MERITS\n\nA.  Alleged violation of Article 6 § 1 of the Convention concerning the right of access to a court\n\n34.  According to the applicants, the Braşov Court of Appeal's judgment of 20 September 1995 infringed Article 6 § 1 of the Convention, which provides:\n\n“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] tribunal ...”\n\n35.  In their memorial, the applicants submitted that the Court of Appeal's finding that the courts had no jurisdiction to determine an action for recovery of possession was contrary to the right of access to a court enshrined in Article 21 of the Romanian Constitution and Article 3 of the Romanian Civil Code, which deals with denial of justice.\n\n36.  The Government admitted that the applicant had been denied access to a court, but submitted that this had been temporary and in any event justified by the need to ensure compliance with procedural rules and to preserve the principle of the separation of powers.\n\n37.  The Court must therefore examine whether the judgment of 20 September 1995 infringed Article 6 § 1 of the Convention.\n\n38.  The Court reiterates that in the aforementioned Brumărescu case (see §§ 61-62), it concluded that the Supreme Court of Justice's finding that the courts had no jurisdiction to decide disputes such as the action for recovery of possession in the instant case infringed Article 6 § 1 of the Convention.\n\nThe Court observes that in the instant case the Braşov Court of Appeal took the same approach as the Supreme Court of Justice in the aforementioned Brumarescu case in that it found that the courts did not have jurisdiction to determine an action for recovery of possession.\n\n39.  Moreover, the decision by the Braşov Court of Appeal, in its judgment of 20 September 1995, to exclude the applicants' action for recovery of possession from the courts' jurisdiction is in itself contrary to the right of access to a court guaranteed by Article 6 § 1 of the Convention.\n\n40.  There has thus been a violation of Article 6 § 1 in this respect.\n\nB. Alleged violation of Article 1 of Protocol No. 1 to the Convention\n\n41.  The applicants complained that the Braşov Court of Appeal's judgment had had the effect of infringing their right to peaceful enjoyment of their possessions as guaranteed by Article 1 of Protocol No. 1, which provides:\n\n“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.\n\nThe preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”\n\n42.  The applicants submitted that that judgment, by which their property was held to belong to the State and the earlier judgments were set aside, had amounted to a deprivation of their right to peaceful enjoyment of their possessions.\n\n43.  The Government reiterated their objection that the application was incompatible ratione materiae, which they had raised at the admissibility stage, and referred to the Ioana Asikis v. Greece decision (no. 48229/99, 22 June 2000) regarding the concept of “possession” within the meaning of Article 1 of Protocol No. 1 to the Convention. They submitted that only a final (and irrevocable) decision could be regarded as a possession for the purposes of the Convention and that the applicants did not have the benefit of such a decision.\n\n44.  The Court reiterates that the applicants can only allege a violation of Article 1 of Protocol No. 1 in so far as the proceedings of which they complained related to “possessions”, within the meaning of that provision, purportedly belonging to them.\n\nIn the present case the applicants brought proceedings before the appropriate domestic authorities for recovery of possession of a house. In doing so they sought to establish a right of ownership over the property that had belonged to their father, but at the time of lodging the originating application was no longer the property of their father or of the applicants themselves. Consequently, the proceedings did not relate to an “existing possession” of the applicants (see Malhous v. the Czech Republic (dec.), [GC], no. 33071/96, p. 17).\n\n45.  The Court reiterates that the power to determine a factual situation and apply domestic law falls first and foremost to the national courts. Since the Court cannot speculate as to what the outcome of the proceedings would have been if the domestic courts had determined the dispute, it follows that the applicants have failed to establish that they had a “legitimate expectation” regarding ownership of the property claimed.\n\n46.  In these conditions the Court concludes that the applicants did not have title to a possession within the meaning of Article 1 of Protocol No. 1 cited above.\n\n47.  Accordingly, the Court concludes that there has not been a violation of Article 1 of Protocol No. 1.\n\nC. Application of Article 41 of the Convention\n\n48.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\n1.  Pecuniary damage\n\n49.  As their main claim the applicants sought restitution of the property at issue. Should restitution not be granted, they claimed a sum equivalent to the current value of their property – namely, according to the expert report they submitted to the Court, 108,400 US dollars (USD) (130,208 euros (EUR)) for the house and USD 98,400 (EUR 93,687) for the adjoining land. They claimed USD 381,996 (EUR 363,701) in unpaid rent for the period between 1946 and 2000.\n\n50.  The Government disputed those amounts and submitted that the true value of the building was USD 138,943 (EUR 132,288).\n\nIn respect of the unpaid rent the Government submitted that the amount was inflated and that, in any event, the Romanian State should not be held liable for measures taken prior to 20 June 1994, when the European Convention of Human Rights was ratified.\n\n51.  The Court reiterates that it did not find a violation of Article 1 of Protocol No. 1 to the Convention (see paragraph 46 above). Accordingly, the claims for relief under this head must be refused.\n\n2.  Non-pecuniary damage\n\n52.  The applicants also sought USD 50,000 (EUR 47,605) for non-pecuniary damage sustained on account of the “serious, unbearable and immeasurable” suffering which the Braşov Court of Appeal had inflicted on them.\n\n53.  The Government resisted that claim, submitting that no non-pecuniary damage could be taken into account. Furthermore, according to the Government, the applicants had not proved that they had suffered as stated or that there had been a causal link between that suffering and the alleged violations of the Convention.\n\n54.  The Court considers that the events in question entailed serious interferences with the applicants' right to respect for their right of access to a court, in respect of which the sum of EUR 6,000 would represent fair compensation for the non-pecuniary damage sustained.\n\n3.  Costs and expenses\n\n55.  The applicants claimed reimbursement of USD 1,105 (EUR 1,052), which they broke down as follows in a detailed account they submitted:\n\n(a)  USD 913 (EUR 869) for the expenses incurred in the domestic proceedings and the legal fees incurred in endeavouring to re-establish their property right;\n\n(b)  USD 44 (EUR 41) for having the building valued;\n\n(c)  USD 148 (EUR 140) for various expenses (telephone, photocopies, notary).\n\n56.  The Government did not object to the reimbursement of the costs incurred, provided that vouchers were submitted. They submitted that the sum of USD 913 was not “credible”.\n\n57.  The Court observes that the applicants produced vouchers only for the expert report, the notary fees and other expenses (postage, telephone). In the circumstances, the Court considers it appropriate to award the applicants jointly EUR 192 under this head.\n\n4.  Default interest\n\n58.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.\tHolds that there has been a violation of Article 6 § 1 of the Convention by reason of the refusal of the right of access to a court;\n\n2.  Holds that there has been no violation of Article 1 of Protocol No. 1;\n\n3.  Holds that the respondent State is to pay the applicants jointly, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts:\n\n(i)  EUR 6,000 (six thousand euros) for non-pecuniary damage;\n\n(ii)  EUR 192 (one hundred and ninety-two euros) for costs and expenses; and\n\n(iii)\t that these sums are to be converted into the national currency of the respondent State at the rate applicable on the date of settlement;\n\n4.  Holds that, from the expiry of the above-mentioned three months until settlement, simple interest shall be payable on the amounts indicated under 3 (i) and (ii) at a rate equal to the marginal lending rate of the European Central Bank during that period, to which should be added three percentage points;\n\n5.  Dismisses the remainder of the claim for just satisfaction.\n\nDone in French, and notified in writing on 4 March 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_506","text":"PROCEDURE\n\n1.  The case originated in an application (no. 9134/06) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Austrian and Turkish national, Mr Mehmet Efe (“the applicant”), on 28 February 2006.\n\n2.  The applicant was represented by Mr H. Pochieser, a lawyer practising in . The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry of Foreign Affairs.\n\n3.  The applicant alleged, in particular, that because of the refusal of the Austrian authorities to pay him tax credits in respect of maintenance payments and family allowance for his children, he was a victim of discrimination.\n\n4.  On 6 November 2009 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).\n\n5.  Third-party comments were received from the Turkish Government, who had exercised their right to intervene (Article 36 § 1 of the Convention and Rule 44 § 1 (b)).\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n6.  The applicant was born in Turkey in 1955 and lives in . He moved to  in 1989 and has been living and working there ever since.\n\n7.  On 17 June 2002 he filed a claim for family allowance backdating to 1 June 1997 for his two children who had been resident in  on a permanent basis. His daughter was born in 1978 and at the time of his claim in 2002 she had already finished her studies and taken up a job as a teacher. His son was born in 1980 and had been a student since 2000. Pursuant to a bilateral agreement, the applicant had been receiving a reduced family allowance until 1996.\n\n8.  On 17 February 2003 the Vienna Tax Office dismissed the applicant’s claim because the children were not resident in , which was one of the main conditions for entitlement to such an allowance.\n\n9.  On 8 April 2003 the applicant lodged an appeal, referring to case-law of the European Court of Justice (ECJ). He argued that the decision taken against him contravened European Union (EU) legislation; however, he did not make a request for a referral to the ECJ for a preliminary ruling under Article 267 (ex 234) of the EU Treaty.\n\n10.  On 24 May 2004 the Independent Financial Panel (Unabhängiger Finanzsenat – “the IFP”) dismissed the applicant’s appeal. It held that since Austria had on 30 September 2006 terminated the Social Security Agreement of 12 March 1985 between itself and Turkey (Abkommen zwischen der Republik Österreich und der Türkischen Republik über Soziale Sicherheit) and his children were not resident in Austria, he was no longer entitled to any family allowance. It further found that the applicant did not claim to have ever taken any steps to move his family to .\n\n11.  On 23 September 2004 the applicant made a claim for legal aid and lodged a complaint with the Constitutional Court, alleging a violation of Article 6 of the Convention on the basis that his case had not been referred to the ECJ for a preliminary ruling, although it appears that no such request had ever been made by him. He also alleged breaches of Article 8, 13 and 14 of the Convention and Article 1 of Protocol No. 1.\n\n12.  On 30 November 2004 the  dismissed the applicant’s claim for legal aid because he had already been denied eligibility on 13 July 2004. It further declined to deal with the applicant’s complaint finding that it had no prospects of success, and, upon the applicant’s request, remitted the case to the . In particular it held that the IFP was not a domestic authority obliged to refer cases to the ECJ for a preliminary ruling and that the provisions in question neither contravened the Austrian Constitution nor EU legislation since his children lived in Turkey, which was not a  of the European Union.\n\n13.  In another set of proceedings the IFP on 22 March 2004 dismissed the applicant’s appeal concerning the alleged failure to pay him tax credits for maintenance payments for the years 1999, 2000 and 2001. It held that generally such payments were not possible under Austrian law if the children were over the age of majority and were not in receipt of family allowance.\n\n14.  On an unspecified date the applicant lodged a second complaint with the  against this decision and made a further claim for legal aid.\n\n15.  On 4 October 2004 the  declined to deal with the applicant’s second complaint, finding that it had no prospect of success. It again refused to grant him legal aid.\n\n16.  The applicant requested that the case be remitted to the . The  agreed to do so and thereupon the  joined both sets of proceedings.\n\n17.  On 10 August 2005 the , referring to both its own and the Constitutional Court’s case-law, dismissed both complaints. It found that the legislation that had been in force since 1 January 2001, which prevented persons from receiving family allowances for children over the age of majority living abroad, was lawful. It referred to the constitutional provision that prevented the payment of tax credits for maintenance payments in respect of children for whom no family allowance could be received. It further held that since the provisions concerning family allowance were equally applicable to Austrian nationals and foreigners there was no discrimination. Lastly, it found that there was no legal basis on which to refer the case to the ECJ for a preliminary ruling without giving detailed reasons for such a request. Since there was no appearance of a violation of a right of the applicant, no oral hearing was necessary. That decision was served on the applicant’s counsel on 2 September 2005.\n\nII.  RELEVANT DOMESTIC AND INTERNATIONAL LAW\n\nA.  The Family Burden Equalisation Act\n\n18.  Section 2 of the Family Burden Equalisation Act 1967 (Familienlastenausgleichsgesetz), in so far as relevant reads as follows:\n\n“(1)  Those persons who have their permanent or habitual residence on federal territory, are entitled to receive family allowance\n\na)  for children below the age of majority;\n\nb)  for children over the age of majority who have not reached the age of twenty-six and who are receiving occupational training or further training connected to their occupation at a vocational school, if their attendance prevents them from practising their occupation.. In the case of children over the age of majority attending one of the institutions listed in section 3 of the 1992 Study Promotion Act (Federal Law Gazette no. 305) vocational training may only be accepted if the envisaged study period per study unit is exceeded by no more than one semester or the envisaged training period by no more than one year of training. If a study unit is completed during the envisaged study period, one semester may be added on to a subsequent study unit ...\n\n...\n\nd)  for children over the age of majority, who have not reached the age of twenty-six, for a period of three months after completion of their vocational training, provided that they are not carrying out their military service or training, or alternative civilian service;\n\n...\n\n(2)  The person to whose household the child belongs is entitled to receive family allowance for a child, as provided for in subsection (1) above. A person to whose household a child does not belong, but who pays the majority of the cost of maintaining the child, is entitled to family allowance if no other person is entitled to the allowance pursuant to the first sentence of the present subsection.\n\n...\n\n(5)  A child belongs to ta person’s household if he or she shares an address with that person and there is common housekeeping. Belonging to a household is not deemed to have been discontinued if\n\n(a)  the child in question is away from the shared accommodation for only a temporary period;\n\n(b)  for the purpose of vocational training the child is required to live in secondary accommodation at the place or near the place where he or she receives vocational training;\n\nc)  the child is undergoing institutional care, either permanently or temporarily, owing to a disease or disability, if the person pays maintenance at least equivalent to the amount of family allowance payable for one child; in the event of a child with a major disability, this amount shall be increased by the additional amount payable for a child with a major disability (section 8(4)).\n\n...\n\n(8)  Persons are only entitled to family allowance if the centre of their main interests is on federal territory. A person has the centre of his or her main interests in the country in which he or she maintains his or her closest personal and economic relations.”\n\n19.  Section 5(4) of the Family Burden Equalisation Act 1967, in its version of 12 July 1974 (Federal Law Gazette no. 418/1974), read as follows:\n\n“There is no entitlement to family allowance in respect of children who have their permanent residence abroad, unless there is reciprocity by way of State treaties.”\n\n20.  Section 5(4) of the Family Burden Equalisation Act was amended on 30 April 1996 (Federal Law Gazette no. 201/1996) and now reads as follows:\n\n“There is no entitlement to family allowance in respect of children who have their permanent residence abroad.”\n\nB.  Income Tax Act\n\n21.  Section 34(5) of the Income Tax Act (Einkommensteuergesetz) (Federal Law Gazette Part I no. 201/1996), which entered into force in 1996 and which deals with tax rates and tax deductions, reads as follows:\n\n“(Constitutional provision) Maintenance payments to children over the age of majority, in respect of whom family allowance is not payable shall not be taken into account for the purposes of tax credits in respect of childcare or maintenance payments, or as an extraordinary burden, other than in the cases and to the extent provided for in point (4) above.”\n\nC.  The Agreement between Austria and  on Social Security\n\n22.  In 1985 the Social Security Agreement between Austria and  (Federal Law Gazette no. 91/1985) was concluded. Chapter 4, Article 26(1) provided as follows:\n\n“Persons in paid employment in one Contracting State shall be entitled under that State’s legislation to receive family allowance, including for children who are permanently resident in the other .”\n\n23.  With effect from 30 September 1996 Austria terminated the Social Security Agreement with  (Federal Law Gazette no. 349/1996).\n\nD.  The European Social Charter\n\n24.  Article 12 of the European Social Charter (Revised), of 3 May 1996, CETS No. 173, reads as follows in so far as relevant:\n\n“With a view to ensuring the effective exercise of the right to social security, the Parties undertake:\n\n...\n\n4.  to take steps, by the conclusion of appropriate bilateral and multilateral agreements or by other means, and subject to the conditions laid down in such agreements, in order to ensure:\n\n(a)  equal treatment with their own nationals of the nationals of other Parties in respect of social security rights, including the retention of benefits arising out of social security legislation, whatever movements the persons protected may undertake between the territories of the Parties ...”\n\n25.  The European Committee of Social Rights, in its Conclusions concerning Article 12 of the Charter in respect of Austria (18th report, reference period 2003-2004; Conclusions XVIII-1), stated as follows:\n\n“As regards the payment of family benefits, the Committee considers that according to Article 12 § 4, any child resident in a State Party is entitled to the payment of family benefits on an equal footing with nationals of the State concerned. Therefore, whoever is the beneficiary under the social security system, i.e. whether it is the worker or the child, State Parties are under the obligation to secure through unilateral measures the actual payment of family benefits to all children residing on their territory. In other words, imposing an obligation of residence of the child concerned on the territory of the State is compatible with Article 12 § 4 and its Appendix. However since not all countries apply such a system, States applying the ‘child residence requirement’ are under the obligation, in order to secure equal treatment within the meaning of Article 12 § 4, to conclude within a reasonable period of time bilateral or multilateral agreements with those States which apply a different entitlement principle. The Committee therefore asks the next report to indicate whether such agreements exist with the following countries: Albania, Armenia, Georgia and , or, if not, whether it is envisaged to conclude them and in what time delay.\n\nThe Committee asks for whether a length of residence or employment requirement is imposed on non-EU/EEA nationals of States Parties to the 1961 Charter or the revised Charter for receipt of any of the non-employment related social security benefits. As regards family benefits, the Committee refers to its conclusion under Article 16 in this volume. The Committee recalls that in its previous conclusion (Conclusion XVII-1, p. 36) it found the situation in conformity as regards retention of accrued benefits also for nationals of other States Parties which are currently uncovered by any agreement. Such countries are currently Albania, Andorra, Armenia, Azerbaijan, Georgia and . The Committee asks confirmation of whether the principle of retention of benefits applies to nationals of all these countries.\n\nThe Committee concludes that the situation in  is in conformity with Article 12 § 4 of the Charter.”\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION READ IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No. 1\n\n26.  The applicant complained that the refusal to grant him family allowance after 1996 and to pay him tax credits for maintenance payments because his children were not resident in  constituted discrimination prohibited by the Convention. He relied on Article 14 read in conjunction with Article 1 of Protocol No. 1, which read as follows:\n\nArticle 14\n\n“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”\n\nArticle 1 of Protocol No. 1\n\n“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”\n\n27.  The Government contested that argument.\n\nA.  Admissibility\n\n28.  The Government submitted that in their view the application had been lodged outside the six-month time-limit, since from the documents transmitted to them it could not be ascertained when the application had actually been posted.\n\n29.  This was disputed by the applicant, who submitted that he had complied with the time-limit for lodging the application.\n\n30.  The Court observes that the  gave its decision in the present case on 10 August 2005 and it was served on the applicant’s counsel on 2 September 2005. According to the postage stamp on the envelope containing the applicant’s application to the Court, the letter was posted on 2 March 2006. The six-month time-limit laid down by Article 35 § 1 of the Convention expired on that precise date at midnight (see Sabri Güneş v.  [GC], no. 27396/06, § 44 and § 60, 29 June 2012).\n\n31.  The Court therefore rejects the Government’s argument that the applicant did not comply with the six-month time-limit.\n\n32.  The Court further notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.\n\nB.  Merits\n\n1.  The parties’ submissions\n\n(a)  The applicant\n\n33.  The applicant submitted that while he had been entitled to family allowance for his two children until 1996 and had the possibility of claiming tax credits for maintenance payments, the Austrian authorities had refused to grant him this benefit when he had made his claim in 2002. They had taken the view that he was no longer entitled to these benefits because Austria had, with effect from September 1996, terminated the Social Security Agreement with  that had been the basis for his claim for family allowance. The termination of the agreement was clearly against the spirit of Article 12 § 4 of the European Social Charter. Moreover,  had not terminated the agreement in compliance with the relevant provisions and therefore, the refusal to grant family allowance to the applicant was unlawful.\n\n34.  The result of the termination of the agreement was that in order to be entitled to family allowance children now had to be resident in . However, at the time he had settled there it had been very difficult and almost impossible to achieve family reunification. Before 1993 one of the conditions for family reunification was that the family member working in  had to show that he or she had adequate financial means for supporting the other members of the family. It was only after 1993 that Austrian law had allowed family reunification based on a quota system. He therefore accepted that his children had to remain in Turkey and trusted that during this time he would be entitled to family allowance in .\n\n35.  However, since his claim for family allowance had been refused on the basis of the country of residence of his children, he submitted that he was a victim of discrimination in contravention of Article 14 of the Convention.\n\n(b)  The Government\n\n36.  The Government argued that the alleged difference in treatment as regards entitlement to family allowance related only to the country of residence of the children and not their nationality, as children with Austrian citizenship living abroad were also excluded from receiving it. The decision of the Austrian legislature to abolish family allowance in respect of children living abroad and, as in the present case, children over the age of majority living abroad, was a question of economic and social policy, about which Contracting States had a wide margin of appreciation.\n\n37.  Family allowance, a financial benefit the Austrian State granted as a means of supporting parents in caring for their children, was intended to establish certain minimum standards of living for all children resident in  irrespective of the household in which they lived. Parents were therefore encouraged to care for the next generation. Family allowance was part of Austria’s population policy, whereby measures were taken aimed at sharing the burden between families within the Austrian population. Therefore they were made dependent on the children’s close relationship with Austria, whereas children who permanently lived abroad did not as a rule have such a close link and their support would have little domestic impact in the future on the so-called “intergenerational contract”. The criterion of children having to be permanently resident in  to be entitled to family allowance was therefore appropriate to honour such a contract. Since no minimum length of stay in  was required by the children in order for the parent to receive family allowance payments, the measure was not disproportionate to the aim pursued.\n\n38.  Moreover, granting family allowances of the same amount to children living in and outside  was not a just and appropriate means for establishing certain minimum living standards for all children as living costs between various States were likely to differ considerably.\n\n39.  For these reasons, and taking into account that the financial means available for this population measure were not unlimited, the Austrian legislature had decided in 1996 to modify the conditions for family allowance by terminating the social security agreements it had previously concluded with several countries. Thus, the measure complained of had been reasonably justified and did not discriminate against the applicant.\n\n(c)  The third-party submissions by the Turkish Government\n\n40.  The Turkish Government submitted that when Austria had abolished family allowances in 1996 for children who were not resident in Austria, this had had an impact on numerous Turkish migrant workers residing in  who no longer received this benefit. The abolition had concerned only Turkish migrant workers and not citizens of other Contracting States to the European Social Charter and was therefore in breach of Article 1 of Protocol No. 1 to the Convention. In this connection it had to be stressed that the European Court of Human Rights in its case-law put particular emphasis on the equal treatment of Austrian citizens and foreigners.\n\n41.  Moreover, abolishing family allowances for children who were not resident in Austria was against the spirit of Article 12 § 4 (a) of the European Social Charter, which required Contracting States to undertake to take steps in order to ensure equal treatment of their own nationals and the nationals of other parties as regards social security rights. It had also been the settled practice of the European Committee of Social Rights until 2006 that family allowances had to be granted to all workers without discrimination. In 2006 the Committee had reversed its settled practice, when it found that the requirement for a child to be resident in a particular country in order to be entitled to social security payments was a valid criterion. This was regrettable, as it not only had a negative impact on citizens from other countries living in  but also on people with Austrian citizenship whose children were living abroad.\n\n2.  The Court’s assessment\n\n42.  As the Court has consistently held, Article 14 complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded thereby. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (see, among many other authorities, Van Raalte v. the Netherlands, 21 February 1997, § 33, Reports of Judgments and Decisions 1997I, and Petrovic v. Austria, 27 March 1998, § 22, Reports 1998II).\n\n43.  The Court has also held that not every difference in treatment will amount to a violation of Article 14. It must be established that other persons in an analogous or relevantly similar situation enjoy preferential treatment and that this distinction is discriminatory (see Ünal Tekeli v. Turkey, no. 29865/96, § 49, ECHR 2004X). A difference in treatment is discriminatory within the meaning of Article 14 if it has no objective and reasonable justification. The existence of such a justification must be assessed in relation to the principles which normally prevail in democratic societies. A difference in treatment in the exercise of a right laid down by the Convention must not only pursue a legitimate aim: Article 14 is likewise violated when it is clearly established that there is no “reasonable relationship of proportionality between the means employed and the aim sought to be realised” (see, for example, Burden v. the  [GC], no. 13378/05, § 60, ECHR 2008; Petrovic, cited above, § 30, and Lithgow and Others v. the United Kingdom, 8 July 1986, § 177, Series A no. 102).\n\n44.  The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a difference in treatment (see Gaygusuz v. Austria, 16 September 1996, § 42, Reports 1996IV). The scope of the margin of appreciation will vary according to the circumstances, the subject matter and its background (see Rasmussen v. , 28 November 1984, § 40, Series A no. 87, and Inze v. Austria, 28 October 1987, § 41, Series A no. 126), but the final decision as to observance of the Convention’s requirements rests with the Court. Since the Convention is first and foremost a system for the protection of human rights, the Court must, however, have regard to the changing conditions in Contracting States and respond, for example, to any emerging consensus as to the standards to be achieved (see Ünal Tekeli, cited above, § 54, and, mutatis mutandis, Stafford v. the United Kingdom [GC], no. 46295/99, § 68, ECHR 2002IV).\n\n45.  Lastly, since the applicants complained of inequalities in the welfare system, the Court underlines that Article 1 of Protocol No. 1 does not include a right to acquire property. It places no restriction on the Contracting States’ freedom to decide whether or not to have in place any form of social security scheme, or to choose the type or amount of benefits to provide under any such scheme. If, however, a State does decide to create a benefits or pension scheme, it must do so in a manner which is compatible with Article 14 of the Convention (see Stec and Others v. the  [GC], nos. 65731/01 and 65900/01, § 53, ECHR 2006VI).\n\n46.  As regards the applicability to the present case of Article 14 read in conjunction with Article 1 of Protocol No. 1, the Court observes that in the case of Carson and Others v. the United Kingdom ([GC], no. 42184/05, ECHR 2010) it found that although there was no obligation on a State under Article 1 of Protocol No. 1 to create a welfare or pension scheme, if a State did decide to enact legislation providing for the payment of a welfare benefit or pension as of right ‒ whether conditional or not on previous contributions ‒ that legislation had to be regarded as generating a proprietary interest falling within the ambit of Article 1 of Protocol No. 1 for persons satisfying its requirements (ibid., § 64 ).\n\n47.  In the present case the Austrian legislature had created and modified, as part of its social security and benefits system, a claim for family allowance, thus voluntarily deciding to provide for an additional right falling within the general scope of Article 1 of Protocol No. 1. The facts of the present case therefore fall within the scope of this provision.\n\n48.  The Court further points out that the “country of residence” of the applicant’s children was the essential ground on which the applicant’s claim for family allowance had been dismissed. Applied as a criterion for the differential treatment of citizens, it constitutes an aspect of personal status for the purposes of Article 14 (ibid., § 71).\n\n49.  The Court therefore concludes that Article 14 read in conjunction with Article 1 of Protocol No. 1 is applicable.\n\n50.  As noted in paragraph 43 above, the Court has established in its case-law that, in order for an issue to arise under Article 14, the first condition is that there must be a difference in the treatment of persons in relevantly similar situations. While the applicant claims that he is in a relevantly similar situation to a person working in  whose child resides in that country, this is disputed by the Government. In this connection the applicant put much emphasis on the fact that until Austria terminated the social security agreement with Turkey in 1996, family allowance had been awarded to Turkish citizens living in  by virtue of that treaty.\n\n51.  The Court is not persuaded by the applicant’s argument. In this respect it reiterates its findings in the case of Carson and Others (cited above, § 88):\n\n“States clearly have a right under international law to conclude bilateral social security treaties and indeed this is the preferred method used by the Member States of the Council of Europe to secure reciprocity of welfare benefits (see paragraphs 50-51 above). Such treaties are entered into on the basis of judgments by both parties as to their respective interests and may depend on various factors, among them the numbers of people moving from one country to the other, the benefits available under the other country’s welfare scheme, how far reciprocity is possible and the extent to which the advantages to be gained by an agreement outweigh the additional expenditure likely to be incurred by each State in negotiating and implementing it (see paragraph 44 above). Where an agreement is in place, the flow of funds may differ depending on the level of each country’s benefits and the number of people going in each direction. It is the inevitable result of such a process that different conditions apply in each country depending on whether or not a treaty has been concluded and on what terms.”\n\n52.  On the other hand the Court takes note of the reasons given by the Government for explaining the fundamental difference between these two positions, namely that family allowance was granted by the Austrian State with the intention to establish certain minimum standards of living for all children living in . Moreover, family allowance, as a measure forming part of Austria’s population policy, was granted with the aim of sharing the burden between families within the population as an investment in future generations in the context of the “intergenerational contract” to which children living outside the country would as a rule not contribute in the future, given that they had a less strong link to the country. The Court concludes that the social security system in Austria was therefore primarily designed to cater for the needs of the resident population and that it was therefore hard to draw any genuine comparison with the position of those who based their claim on persons resident elsewhere (ibid., § 86).\n\n53.  In summary, therefore, the Court does not consider that the applicant, whose children over the age of majority lived outside Austria, was in a relevantly similar position to persons claiming family allowance for children living in . It follows that there has been no discrimination and, therefore, no violation of Article 14 taken in conjunction with Article 1 of Protocol No.1.\n\nII.  ALLEGED VIOLATION OF ARTICLE 14 READ IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION\n\n54.  The applicant also complained that the refusal to grant him family allowance after 1996 and to pay him tax credits in respect of his maintenance payments because his children were not resident in Austria was in breach of Article 14 read in conjunction with Article 8 of the Convention. Article 8 reads as follows:\n\n“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.\n\n2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”\n\n55.  The Court considers, however, that, although this complaint is admissible, in view of its findings under Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1 there is no need to also examine the complaint from the point of view of Article 14 in conjunction with Article 8 of the Convention.\n\nIII.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION\n\n56.  The applicant complained under Article 13 of the Convention that the relevant provisions preventing him from being paid tax credits in respect of maintenance payments had constitutional status and were therefore excluded from the review of the . He made a further complaint under Article 6 that there had been no oral hearing before the domestic authorities and that the Austrian courts, despite there being fundamental questions concerning EU law, had not complied with their obligation to refer the case to the ECJ.\n\n57.  However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.\n\n58.  It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Declares the complaints concerning the refusal to grant him family allowance after 1996 and to pay him tax credits in respect of child maintenance payments because his children were not resident in Austria admissible, and the remainder of the application inadmissible;\n\n2.  Holds that there has been no violation of Article 14 read in conjunction with Article 1 of Protocol No. 1;\n\n3.  Holds that there is no need to examine separately the complaint under Article 14 read in conjunction with Article 8 of the Convention.\n\nDone in English, and notified in writing on 8 January 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_572","text":"PROCEDURE\n\n1.  The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table.\n\n2.  The Russian Government (“the Government”) were given notice of the applications.\n\nTHE FACTS\n\n3.  The list of applicants and the relevant details of the applications are set out in the appended table.\n\n4.  The applicants complained about searches of their homes. They also raised other complaints under the provisions of the Convention.\n\nTHE LAW\n\nJOINDER OF THE APPLICATIONS\n\n5.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.\n\nALLEGED VIOLATION OF ARTICLE 8 § 1 of the Convention\n\n6.  The applicants complained about searches of their homes. They relied, expressly or in substance, on Article 8 § 1 of the Convention, which reads as follows:\n\nArticle 8 § 1\n\n“1.  Everyone has the right to respect for his ... home ...\n\n2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”\n\n7.  The Court reiterates that searches of the applicants’ homes amount to an interference with their rights under Article 8 § 1 of the Convention. To be justified under Article 8 § 2 of the Convention an interference has to be in accordance with law, to pursue a legitimate aim and to be necessary in a democratic society.\n\n8.  The Court has consistently held that the Contracting States may consider it necessary to resort to searches and seizures in order to obtain physical evidence of certain offences. The Court must assess whether the reasons adduced to justify such measures were “relevant” and “sufficient” and whether the proportionality principle has been adhered to. As regards the latter point, the Court must first ensure that the relevant legislation and practice afford individuals adequate and effective safeguards against abuse. Secondly, the Court must consider the particular circumstances of each case in order to determine whether, in the case in question, the interference was proportionate to the aim pursued. The criteria the Court has taken into consideration in determining the latter issue have included the severity of the offence in connection with which the search was effected, the manner and circumstances according to which the order was issued – in particular whether the warrant was based on a reasonable suspicion – and the content and scope of the warrant, having particular regard to the nature of the premises searched and the safeguards put in place to confine the impact of the measure within reasonable bounds, and the extent of possible repercussions on the reputation of the person affected by the search.\n\n9.  The Court has previously found violations of Article 8 of the Convention in respect of searches of homes where the authorities breached the national law requirements to the search procedure (see Avaz Zeynalov v. Azerbaijan, nos. 37816/12 and 25260/14, § 81, 22 April 2021, and Kuzminas v. Russia, no. 69810/11, §§ 17-20, 21 December 2021).\n\n10.  Furthermore, the Court has found a search to be unjustified under Article 8 of the Convention where the authorities failed to demonstrate (a) that there were reasonable grounds for suspecting that the commission of crimes imputed to applicants or third people had occurred, (b) that there was evidence capable of corroborating those suspicions and (c) that the relevant evidence could be found in that regard at the premises to be searched (see, for instance, Aliyev v. Azerbaijan, nos. 68762/14 and 71200/14, § 184, 20 September 2018; Kruglov and Others v. Russia, nos. 11264/04 and 15 others, § 127, 4 February 2020, and Kuzminas, cited above, § 25). In cases where the authorities carried out urgent searches without prior judicial review, the Court considered it crucial for the authorities to also set out pressing circumstances justifying the recourse to such an urgent procedure (see Tortladze v. Georgia, no. 42371/08, § 64, 18 March 2021, and Kuzminas, cited above, §§ 23-24).\n\n11.  The Court also reiterates that in a number of previous Russian cases it was the vagueness and excessively broad terms of search warrants giving the authority executing them unrestricted discretion in determining the scope of the search that were considered to constitute the decisive element for the finding of a violation of Article 8 (see Misan v. Russia, no. 4261/04, § 60, 2 October 2014, Kruglov and Others, cited above, § 127, with further references).\n\n12.  Finally, as noted above, another decisive aspect in the Court’s assessment of the necessity of an interference are the procedural safeguards available to an applicant. The first and foremost among them is the guarantee of review by a judge or other independent and impartial decision-making body capable to examine the existence of relevant and sufficient reasons for the search and its compatibility with the legal requirements (see Avanesyan v. Russia, no. 41152/06, §§ 30-34, 18 September 2014, Kruglov and Others, cited above, §§ 134-35).\n\n13.  In its judgments concerning searches of homes in Russia (see, for instance, Smirnov v. Russia, no. 71362/01, 7 June 2007; Kolesnichenko v. Russia, no. 19856/04, 9 April 2009; Avanesyan, cited above; Misan, cited above; Yuditskaya and Others v. Russia, no. 5678/06, 12 February 2015; Kruglov and Others, cited above; and Kuzminas, cited above) the Court has found a violation of Article 8 of the Convention due to the above-mentioned defects.\n\n14.  Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of the complaints in the present cases. Having regard to its case-law on the subject, the Court considers that in the instant case the searches of the applicants’ homes were not in accordance with law and/or not necessary in a democratic society.\n\n15.  These complaints are therefore admissible and disclose a breach of Article 8 § 1 of the Convention.\n\nOTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW\n\n16.  The applicants submitted other complaints which also raised issues under the Convention, given the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its findings in Smirnov, cited above, §§ 58-59, Avanesyan, cited above, §§ 30-36, and Kruglov and Others, cited above, § 144.\n\nREMAINING COMPLAINTS\n\n17.  In their applications the applicants also raised other complaints under various Articles of the Convention.\n\n18.  The Court has examined the applications and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.\n\n19.  It follows that this part of the applications must be rejected in accordance with Article 35 § 4 of the Convention.\n\nAPPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n20.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\n21.  Regard being had to the documents in its possession and to its caselaw (see, in particular, Misan, cited above, § 70), the Court considers it reasonable to award the sums indicated in the appended table and dismisses the remainder of the applicants’ claims for just satisfaction.\n\n22.  The Court further considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\nDecides to join the applications;\n\nDeclares the complaints concerning the searches of the applicants’ homes and the other complaints under well-established case-law of the Court, as set out in the appended table, admissible, and the remainder of the applications inadmissible;\n\nHolds that these complaints disclose a breach of Article 8 § 1 of the Convention concerning the searches of the applicants’ homes;\n\nHolds that there has been a violation of the Convention as regards the other complaints raised under well-established case-law of the Court (see appended table);\n\nHolds\n\nthat the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;\n\nthat from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\nDismisses the remainder of the applicants’ claims for just satisfaction.\n\nDone in English, and notified in writing on 13 October 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_216","text":"PROCEDURE\n\n1.  The case originated in an application (no. 58278/00) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Latvian national, Ms Tatjana Ždanoka (“the applicant”), on 20 January 2000.\n\n2.  The applicant was represented by Mr W. Bowring, a lawyer practising in . The Latvian Government (“the Government”) were represented by their Agent, Ms I. Reine, of the Ministry of Foreign Affairs.\n\n3.  The applicant alleged, in particular, that her disqualification from standing for election to the Latvian parliament and to municipal elections infringed her rights as guaranteed by Article 3 of Protocol No. 1 and Articles 10 and 11 of the Convention.\n\n4.  The application was assigned to the Second Section of the Court (Rule 52 § 1 of the Rules of Court).\n\n5.  On 1 November 2001 the Court changed the composition of its sections (Rule 25 § 1). This case was assigned to the newly composed First Section (Rule 52 § 1). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.\n\n6.  By a decision of 6 March 2003, the Chamber declared the application partly admissible.\n\n7.  On 17 June 2004, following a hearing on the merits (Rule 59 § 3), a Chamber of the First Section, composed of Christos Rozakis, President, Peer Lorenzen, Giovanni Bonello, Françoise Tulkens, Egils Levits, Anatoly Kovler, Vladimiro Zagrebelsky, judges, and Søren Nielsen, Section Registrar, delivered a judgment in which it held, by five votes to two, that there had been a violation of Article 3 of Protocol No. 1 and Article 11 of the Convention, and that it was not necessary to examine separately the applicant’s complaint under Article 10 of the Convention. The Chamber also decided, by five votes to two, to award compensation for pecuniary damage in the amount of 2,236.50 lati, non-pecuniary damage in the amount of 10,000 euros (EUR), and legal costs and expenses in the amount of EUR 10,000. The dissenting opinions of Judges Bonello and Levits were annexed to the judgment.\n\n8.  On 17 September 2004 the Government requested, in accordance with Article 43 of the Convention, that the case be referred to the Grand Chamber. A panel of the Grand Chamber accepted this request on 10 November 2004.\n\n9.  The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24.\n\n10.  A hearing took place in public in the Human Rights Building, , on 1 June 2005 (Rule 59 § 3).\n\nThere appeared before the Court:\n\nThe Court heard addresses by Mr Bowring and Ms Reine.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n11.  The applicant is a Latvian national who was born in 1950 and lives in . She is currently a member of the European Parliament.\n\nA.  The historical context and the background to the case\n\n1.  The Molotov-Ribbentrop Pact and the Soviet period\n\n12.  On 23 August 1939 the foreign ministers of Germany and the Union of the Soviet Socialist Republics (USSR) signed a non-aggression treaty (the Molotov-Ribbentrop Pact). The treaty included a secret additional protocol, approved on 23 August 1939 and amended on 28 September 1939, whereby Germany and the Soviet Union agreed to settle the map of their “spheres of influence” in the event of a future “territorial and political rearrangement” of the territories of the then independent countries of central and eastern Europe, including the three Baltic States of Lithuania, Latvia and Estonia. After Germany’s invasion of Poland on 1 September 1939 and the subsequent start of the Second World War, the Soviet Union began exerting considerable pressure on the governments of the Baltic States with a view to taking control of those countries pursuant to the Molotov-Ribbentrop Pact and its additional protocol.\n\n13.  Following an ultimatum to allow an unlimited number of Soviet troops to be stationed in the Baltic countries, on 16-17 June 1940 the Soviet army invaded  and the other two independent States. The government of Latvia was removed from office, and a new government was formed under the direction of the Communist Party of the Soviet Union (“the CPSU”), the USSR’s only party. From 21 July to 3 August 1940 the Soviet Union completed the annexation of Latvia, which became part of the  under the name “Soviet Socialist Republic of Latvia” (“Latvian SSR”).\n\n14.  The applicant was born in  into a Russian-speaking family. In 1971 she joined the Communist Party of Latvia (“the CPL”) while studying at the University of Latvia in . The CPL was in fact a regional branch of the CPSU. From 1972 to 1990 the applicant worked as a lecturer at the . Throughout this period she was a member of the CPL.\n\n15.  In the late 1980s there was considerable social pressure in , as in other east European countries, for the democratisation of political life. As a result of the newly introduced freedom of expression in the territory of the Soviet Union, mass political movements were formed in Latvia, as well as in the other Baltic States, condemning the annexation of the country, asserting the need to construct a new society based, inter alia, on Latvian identity and values, and emphasising the need to restore State independence.\n\n16.  The first independent elections under the Soviet regime took place on Latvian territory in March 1990. The applicant was elected to the Supreme Council (Augstākā Padome) of the Latvian SSR as a representative for the Pļavnieki constituency in . She subsequently joined the CPL’s local branch. In April 1990 this branch selected her to attend the CPL’s 25th Congress, where she was elected to the party’s Central Committee for Supervision and Audit. According to copies of that committee’s minutes, the applicant was a member of a sub-committee responsible for supervising the implementation of decisions and activities arising from the CPL programme.\n\n17.  At the same congress, a group of delegates expressed their disagreement with the CPL’s general policy, which remained loyal to the Soviet Union and the CPSU. According to those delegates, the CPL was opposed to any democratisation of public life and sought to maintain the status quo of the Soviet rule. These delegates publicly announced their withdrawal from the CPL and established a new party, the “Independent Communist Party of Latvia”, which immediately declared its support for Latvian independence and for a multi-party political system. The applicant did not join the dissident delegates and remained with the CPL.\n\n2.  Latvia’s Declaration of\n\n18.  On 4 May 1990 the Supreme Council adopted a Declaration on the Restoration of the Independence of the Republic of Latvia, which declared Latvia’s incorporation into the  unlawful and void and restored legal force to the fundamental provisions of the Latvian Constitution (Satversme) of 1922. However, paragraph 5 of the Declaration introduced a transition period, aimed at a gradual restoration of genuine State sovereignty as each institutional tie with the  was severed. During that transition period, various provisions of the Constitution of the Latvian SSR would remain in force. A special governmental commission was given responsibility for negotiating with the Soviet Union on the basis of the Russo-Latvian Peace Treaty of 11 August 1920.\n\nThe above-mentioned Declaration was adopted by 139 out of a total of 201 Supreme Council members, with one abstention. Fifty-seven members of the Līdztiesība parliamentary bloc (“Equal Rights”, in fact the CPL group), including the applicant, did not vote. On the same day, 4 May 1990, the Central Committee of the CPL adopted a resolution strongly criticising the Declaration and calling on the President of the Soviet Union to intervene.\n\n19.  On 7 May 1990 the Supreme Council approved the government of the independent .\n\n3.  The events of January and March 1991\n\n20.  On the evening of 12 January 1991 the Soviet army launched military operations against the neighbouring country of , whose government had been formed in the same way as the Latvian government. Soviet troops entered the television  and the headquarters of Lithuanian public television, and also tried to take the seats of the Lithuanian parliament and other authorities. Massive crowds, made up of Lithuanian citizens, came to the rescue of the institutions of the newly independent . Thirteen Lithuanian civilians were killed and hundreds injured during the clash with the Soviet army.\n\n21.  The parties disagree as to who was responsible for the deaths during the events in  on 12-13 January 1991. According to the respondent Government, the CPSU was directly responsible for those deaths, in that it had full and effective control of the Soviet troops. The applicant contested the Government’s version, stating that the Soviet army’s aggression against the Lithuanian government and the Lithuanian people was not a proven fact; in this connection, she submitted a copy of a Russian newspaper article which alleged that it had been the Lithuanian independence supporters themselves who fired into the crowd with the aim of discrediting the Soviet army.\n\n22.  At the same time, an attempted coup was launched in . On 13 January 1991 the plenum of the CPL Central Committee called for the resignation of the Latvian government, the dissolution of the Supreme Council and the assumption of full powers by the Latvian Public Rescue Committee (Vislatvijas Sabiedriskās glābšanas komiteja), set up on the same date by several organisations including the CPL. On 15 January 1991 this committee announced that the Supreme Council and the government were stripped of their respective powers and declared that it was assuming full powers. After causing the loss of five civilian lives and injuries to thirty-four persons during armed clashes in , this attempted coup failed.\n\n23.  According to the respondent Government, it was absolutely clear that the attempted coup in Latvia was launched by the CPL against the background of the Vilnius events, in the hope that Soviet troops would also invade  to support the pro-Soviet coup. The applicant submitted that, at the material time, a series of public demonstrations had been held in  to protest against the rise in food prices introduced by the Latvian government; those demonstrations were thus the main reason for the events of January 1991. The applicant also emphasised that, in their respective statements of 13 and 15 January 1991, the plenum of the CPL Central Committee and the Latvian Public Rescue Committee had not only called for and announced the removal of the Latvian authorities, but had also stated that early elections would be held for the Supreme Council.\n\n24.  On 3 March 1991 a national plebiscite was held on Latvian territory. Electors had to reply to a question worded as follows: “Do you support a democratic and politically independent ?” According to figures supplied by the Government, 87.5% of all residents registered on the electoral roll voted, and 73.6% of them replied in the affirmative. According to the Government, this was a genuine national referendum, confirming the support of the overwhelming majority of the Latvian population for the idea of national independence. The applicant maintains that it was a simple consultative vote and contests the above-mentioned turnout, and thus the very legitimacy of the plebiscite.\n\n4.  The events of August and September 1991\n\n25.  On 19 August 1991 there was an attempted coup in . The self-proclaimed “National State of Emergency Committee” announced that Mr Gorbachev, President of the USSR, was suspended from his duties, declared itself the sole ruling authority and imposed a state of emergency “in certain regions of the ”.\n\n26.  On the same day the Central Committee and the Riga Committee of the CPL declared their support for the National State of Emergency Committee and set up an “operational group” to provide assistance to it. According to the Government, on 20 August 1991 the CPL, the Līdztiesība parliamentary bloc and various other organisations signed and disseminated an appeal entitled “Godājamie Latvijas iedzīvotāji!” (“Honourable residents of Latvia!”), urging the population to comply with the requirements of the state of emergency and not to oppose the measures imposed by the National State of Emergency Committee in . According to the applicant, the CPL’s participation in all those events has not been proved; in particular, the members of the Līdztiesība bloc were taking part in parliamentary debates over two consecutive days and were not even aware that such an appeal was to be issued.\n\n27.  This coup also failed. On 21 August 1991, the Latvian Supreme Council enacted a constitutional law on the status of the  as a State and proclaimed the country’s immediate and absolute independence. Paragraph 5 of the Declaration of 4 May 1990, concerning the transition period, was repealed.\n\n28.  By a decision of 23 August 1991, the Supreme Council declared the CPL unconstitutional. The following day, the party’s activities were suspended and the Minister of Justice was instructed “to investigate the unlawful activities of the CPL and to put forward ... a motion on the possibility of authorising its continued operations”. On the basis of the proposal by the Minister of Justice, the Supreme Council ordered the party’s dissolution on 10 September 1991.\n\n29.  In the meantime, on 22 August 1991 the Supreme Council set up a parliamentary committee to investigate the involvement of members of the Līdztiesība bloc in the coup. On the basis of that committee’s final report, on 9 July 1992 the Supreme Council revoked fifteen members’ right to sit in Parliament. The applicant was not one of those concerned.\n\n5.  Subsequent developments involving the applicant\n\n30.  In February 1993 the applicant became chairperson of the Movement for Social Justice and Equal Rights in  (Kustība par sociālo taisnīgumu un līdztiesību Latvijā), which later became a political party, Līdztiesība (“Equal rights”).\n\n31.  On 5 and 6 June 1993 parliamentary elections were held in accordance with the restored Constitution of 1922. For the first time since Latvian independence had been regained, the population elected the parliament (Saeima), which took over from the Supreme Council. It was at that point that the applicant’s term of office as a member of parliament expired. As a result of the Latvian authorities’ refusal to include her on the residents’ register as a Latvian citizen, she was unable to take part in those elections, in the following parliamentary elections held in 1995, or in the municipal elections of 1994. Following an appeal by the applicant, the courts recognised her as holding Latvian nationality by right in January 1996, on the ground of her being a descendant of a person who had possessed Latvian nationality before 1940. The courts therefore instructed the electoral authorities to register the applicant and to supply her with the appropriate documents.\n\n6.  Criminal proceedings against two former leaders of the CPL\n\n32.  By a final judgment of the Supreme Court of 27 July 1995, A.R. and O.P., formerly the most senior officials of the CPL, were found guilty of attempting to overthrow the legitimate authorities of independent  by violent means. The judgment accepted, inter alia, the following circumstances as historical facts:\n\n(a)  Having failed to obtain a majority on the Supreme Council in the democratic elections of March 1990, the CPL and the other organisations listed in section 5(6) of the Parliamentary Elections Act decided to take the unconstitutional route and set up the Latvian Public Rescue Committee, which attempted to usurp power and to dissolve the Supreme Council and the legitimate government of Latvia. Such actions were contrary not only to Article 2 of the 1922 Constitution, which stated that sovereign power was vested in the people, but also to Article 2 of the Constitution of the Latvian SSR, which conferred authority to act on behalf of the people on elected councils (soviets) alone.\n\n(b)  The Central Committee of the CPL provided financial support to the special unit of the Soviet police which was entirely responsible for the fatal incidents of January 1991 (see paragraphs 22-23 above); at the same time, the Latvian Public Rescue Committee publicly expressed its support for this militarised body.\n\n(c)  During the coup of August 1991 the Central Committee of the CPL openly declared its support for the National State of Emergency Committee, set up an “operational group” with a view to providing assistance to it and published an appeal calling on the public to comply with the regime imposed by this self-proclaimed and unconstitutional body.\n\nB.  The 1997 municipal elections\n\n33.  On 25 January 1997 the Movement for Social Justice and Equal Rights in  submitted to the Riga Electoral Commission a list of ten candidates for the forthcoming municipal elections of 9 March 1997. The applicant was one of those candidates. In accordance with the requirements of the Municipal Elections Act, she signed the list and attached a written statement confirming that she was not one of the persons referred to in section 9 of that Act. Under the terms of the Act, individuals who had “actively participated” (darbojušās) in the CPSU, the CPL and several other named organisations after 13 January 1991 were not entitled to stand for office. In a letter sent on the same day, the applicant informed the Electoral Commission that she had been a member of the CPL’s Pļavnieki branch and of its Central Committee for Supervision and Audit until 10 September 1991, the date of the CPL’s official dissolution. However, she argued that the restrictions mentioned above were not applicable to her, since they were contrary to Articles 2 and 25 of the International Covenant on Civil and Political Rights.\n\n34.  By a decision of 11 February 1997, the Riga Electoral Commission registered the list submitted by the applicant. At the elections of 9 March 1997 this list obtained four of the sixty seats on Riga City Council (Rīgas Dome). The applicant was one of those elected.\n\nC.  The 1998 parliamentary elections\n\n35.  With a view to participating in the parliamentary elections of 3 October 1998, the Movement for Social Justice and Equal Rights in  formed a coalition with the Party of National Harmony (Tautas Saskaņas partija), the Latvian Socialist Party (Latvijas Sociālistiskā partija) and the Russian Party (Krievu partija). The four parties formed a united list entitled “Party of National Harmony”. The applicant appeared on this list as a candidate for the constituencies of  and Vidzeme.\n\nOn 28 July 1998 the list was submitted to the Central Electoral Commission for registration. In accordance with the requirements of the Parliamentary Elections Act, the applicant signed the list and attached to it a written statement identical to the one she had submitted prior to the municipal elections. As she had done for the 1997 elections, she likewise sent a letter to the Central Electoral Commission explaining her situation and arguing that the restrictions in question were incompatible with the International Covenant on Civil and Political Rights and with Article 3 of Protocol No. 1 to the Convention.\n\n36.  On 29 July 1998 the Central Electoral Commission suspended registration of the list on the ground that the applicant’s candidacy did not meet the requirements of the Parliamentary Elections Act. Not wishing to jeopardise the entire list’s prospects of being registered, the applicant withdrew her candidacy, after which the list was immediately registered.\n\nD.  The procedure for determining the applicant’s participation in the CPL\n\n37.  By a letter of 7 August 1998, the President of the Central Electoral Commission asked the Prosecutor General to examine the legitimacy of the applicant’s election to the Riga City Council.\n\n38.  By a decision of 31 August 1998, a copy of which was sent to the Central Electoral Commission, the Office of the Prosecutor General (Ģenerālprokuratūra) noted that the applicant had not committed any act defined as an offence in the Criminal Code. The decision stated that, although the applicant had provided false information to the Riga Electoral Commission regarding her participation in the CPL, there was nothing to prove that she had done so with the specific objective of misleading the commission. In that connection, the prosecutors considered that the statement by the applicant, appended to the list of candidates for the elections of 9 March 1997, was to be read in conjunction with her explanatory letter of 25 January 1997.\n\n39.  On 14 January 1999 the Office of the Prosecutor General applied to the  for a finding that the applicant had participated in the activities of the CPL after 13 January 1991. The prosecutors attached the following documents to their submission: the applicant’s letter of 25 January 1997; the minutes of the meeting of 26 January 1991 of the CPL’s Central Committee for Supervision and Audit; the minutes of the joint meeting of 27 March 1991 of the Central Committee for Supervision and Audit and the municipal and regional committees for supervision and audit; and the annexes to those minutes, indicating the structure and composition of the said committee and a list of the members of the Audit Committee at 1 July 1991.\n\n40.  Following adversarial proceedings, the  allowed the prosecutors’ request in a judgment of 15 February 1999. It considered that the documents in its possession clearly attested to the applicant’s active participation in the party’s activities after the critical date, and that the evidence provided by the applicant was insufficient to refute this finding. Consequently, the court dismissed the applicant’s arguments to the effect that she was only formally a member of the CPL, did not participate in the meetings of its Central Committee for Supervision and Audit and that, accordingly, she could not be held to have “acted”, “been a militant” or “actively participated” (darboties) in the party’s activities.\n\n41.  The applicant appealed against this judgment to the Civil Division of the Supreme Court. On 12 November 1999 the Civil Division began examining the appeal. At the oral hearing, the applicant submitted that the content of the above-mentioned minutes of 26 January and 27 March 1991, referring to her by name, could not be held against her since on both those dates she had been carrying out her duties in the Latvian Supreme Council and not in the CPL. After hearing evidence from two witnesses who stated that the applicant had indeed been present at the Supreme Council, the Division suspended examination of the case in order to enable the applicant to submit more cogent evidence in support of her statements, such as a record of parliamentary debates or minutes of the Līdztiesība parliamentary bloc’s meetings. However, as the above-mentioned minutes had not been preserved by the Parliamentary Record Office, the applicant was never able to produce such evidence.\n\n42.  By a judgment of 15 December 1999, the Civil Division dismissed the applicant’s appeal. It stated that the evidence gathered by the Office of the Prosecutor General was sufficient to conclude that the applicant had actively taken part in the CPL’s activities after 13 January 1991. The Division further noted that the CPL’s dissolution had been ordered “in accordance with the interests of the  in a specific historical and political situation” and that the international conventions relied on by the applicant allowed for justified limitations on the exercise of electoral rights.\n\n43.  Following the Civil Division’s judgment, enforceable from the date of its delivery, the applicant was disqualified from electoral office and lost her seat as a member of Riga City Council.\n\n44.  The applicant applied to the Senate of the Supreme Court to have the Civil Division’s judgment quashed. She stressed, inter alia, the restriction’s incompatibility with Article 11 of the Convention. By a final order of 7 February 2000 the Senate declared the appeal inadmissible. In the Senate’s opinion, the proceedings in question were limited to a single strictly-defined objective, namely a finding as to whether or not the applicant had actively taken part in the CPL’s activities after 13 January 1991. The Senate concluded that it did not have jurisdiction to analyse the legal consequences of this finding, on the ground that this was irrelevant to the finding itself. In addition, the Senate noted that any such analysis would involve an examination of the Latvian legislation’s compatibility with constitutional and international law, which did not come within the final appeal court’s jurisdiction.\n\n45.  Proceedings similar to those against the applicant were also instituted against a small number of other CPL activists, not all of whom were recognised by the courts as having “actively participated” in the activities of the CPL after January 1991.\n\nE.  The 2002 parliamentary elections\n\n46.  The next parliamentary elections took place on 5 October 2002. With a view to taking part in those elections, the Līdztiesība party, chaired by the applicant, formed an alliance entitled “For Human Rights in a United Latvia” (Par cilvēka tiesībām vienotā Latvijā, abbreviated to PCTVL) with two other parties, the Party of National Harmony and the Socialist Party. The alliance’s electoral manifesto expressly referred to the need to abolish the restrictions on the electoral rights of persons who had been actively involved in the CPL after 13 January 1991.\n\n47.  In spring 2002 the Executive Council of the Līdztiesība party put the applicant forward as a candidate for the 2002 elections; the Council of the PCTVL alliance approved this nomination. Shortly afterwards, however, on 16 May 2002, the outgoing parliament rejected a motion to repeal section 5(6) of the Parliamentary Elections Act. The alliance’s council, which was fully aware of the applicant’s situation and feared that her candidacy would prevent registration of the PCTVL’s entire list, changed its opinion and decided not to include her name on the list of candidates. The applicant then decided to submit a separate list containing only one name, her own, entitled “Party of National Harmony”.\n\n48.  On 23 July 2002 the PCTVL electoral alliance submitted its list to the Central Electoral Commission. In all, it contained the names of seventy-seven candidates for Latvia’s five constituencies. On the same date the applicant asked the commission to register her own list, for the constituency of Kurzeme alone. As she had done for the 1998 elections, she attached to her list a written statement to the effect that the disputed restrictions were incompatible with the Constitution and with Latvia’s international undertakings. On 25 July 2002 the commission registered both lists.\n\n49.  By a decision of 7 August 2002, the Central Electoral Commission, referring to the Civil Division’s judgment of 15 December 1999, removed the applicant from its list. In addition, having noted that the applicant had been the only candidate on the “Party of National Harmony” list and that, following her removal, there were no other names, the commission decided to cancel the registration of that list.\n\n50.  At the elections of 5 October 2002, the PCTVL alliance’s list obtained 18.94% of the votes and won twenty-five seats in Parliament.\n\nF.  Elections to the European Parliament\n\n51.   became a member of the European Union on 1 May 2004. Prior to that date, on the basis of the European Parliament Elections Act (Eiropas Parlamenta vēlēšanu likums) of 12 February 2004, the applicant was granted permission to run in those elections. They were held on 12 June 2004 and the applicant was elected as a member of the European Parliament.\n\nII.  RELEVANT DOMESTIC LAW AND PRACTICE\n\nA.  Provisions regarding Latvia’s status\n\n52.  The operative provisions of the Declaration of 4 May 1990 on the Restoration of the Independence of the  read as follows:\n\n“The Supreme Council of the Latvian SSR decides:\n\n(1)  in recognition of the supremacy of international law over the provisions of national law, to consider illegal the Pact of 23 August 1939 between the USSR and Germany and the subsequent liquidation of the sovereignty of the Republic of Latvia through the USSR’s military aggression on 17 June 1940;\n\n(2)  to declare null and void the Declaration by the Parliament [Saeima] of Latvia, adopted on 21 July 1940, on Latvia’s integration into the ;\n\n(3)  to restore the legal effect of the Constitution [Satversme] of the Republic of Latvia, adopted on 15 February 1922 by the Constituent Assembly [Satversmes sapulce], throughout the entire . The official name of the Latvian State shall be the REPUBLIC of LATVIA, abbreviated to ;\n\n(4)  to suspend the Constitution of the Republic of Latvia pending the adoption of a new version of the Constitution, with the exception of those Articles which define the constitutional and legal foundation of the Latvian State and which, in accordance with Article 77 of the same Constitution, may only be amended by referendum, namely:\n\nArticle 1 –  is an independent and democratic republic.\n\nArticle 2 – The sovereign power of the State of Latvia is vested in the Latvian people.\n\nArticle 3 – The territory of the State of Latvia, as established by international agreements, consists of Vidzeme, Latgale, Kurzeme and Zemgale.\n\nArticle 6 – Parliament [Saeima] shall be elected in general, equal, direct and secret elections, based on proportional representation.\n\nArticle 6 of the Constitution shall be applied after the restoration of the State and administrative structures of the independent , which will guarantee free elections;\n\n(5)  to introduce a transition period for the re-establishment of the Republic of Latvia’s de facto sovereignty, which will end with the convening of the Parliament of the . During the transition period, supreme power shall be exercised by the Supreme Council of the ;\n\n(6)  during the transition period, to accept the application of those constitutional and other legal provisions of the Latvian SSR which are in force in the territory of the Latvian SSR when the present Declaration is adopted, in so far as those provisions do not contradict Articles 1, 2, 3 and 6 of the Constitution of the Republic of Latvia.\n\nDisputes on matters relating to the application of legislative texts will be referred to the Constitutional Court of the .\n\nDuring the transition period, only the Supreme Council of the  shall adopt new legislation or amend existing legislation;\n\n(7)  to set up a commission to draft a new version of the Constitution of the Republic of Latvia that will correspond to the current political, economic and social situation in ;\n\n(8)  to guarantee social, economic and cultural rights, as well as universally recognised political freedoms compatible with international instruments of human rights, to citizens of the Republic of Latvia and citizens of other States permanently residing in Latvia. This shall apply to citizens of the USSR who wish to live in Latvia without acquiring Latvian nationality;\n\n(9)  to base relations between the Republic of Latvia and the USSR on the Peace Treaty of 11 August 1920 between Latvia and Russia, which is still in force and which recognises the independence of the  for all time. A governmental commission shall be set up to conduct the negotiations with the USSR.”\n\n53.  The operative provisions of the Constitutional Law of 21 August 1991 on the status of the Republic of Latvia as a State (Konstitucionālais likums “Par Latvijas Republikas valstisko statusu”) read as follows:\n\n“The Supreme Council of the Republic of Latvia decides:\n\n(1)  to declare that Latvia is an independent and democratic republic in which the sovereign power of the State of Latvia belongs to the Latvian people, the status of which as a State is defined by the Constitution of 15 February 1922;\n\n(2)  to repeal paragraph 5 of the Declaration of 4 May 1990 on the Restoration of the Independence of the Republic of Latvia, establishing a transition period for the de facto restoration of the Republic of Latvia’s State sovereignty;\n\n(3)  until such time as the occupation and annexation is ended and Parliament is convened, supreme State power in the Republic of Latvia shall be fully exercised by the Supreme Council of the . Only those laws and decrees enacted by the supreme governing and administrative authorities of the Republic of Latvia shall be in force in its territory;\n\n(4)  this constitutional law shall enter into force on the date of its enactment.”\n\nB.  The status of the CPSU and the CPL\n\n54.  The role of the CPSU in the former Soviet Union was defined in Article 6 of the Constitution of the  (1977) and in Article 6 of the Constitution of the Latvian SSR (1978), which were worded along identical lines. Those provisions stated:\n\n“The leading and guiding force of Soviet society and the nucleus of its political system and of all State organisations and public organisations is the Communist Party of the Soviet Union. The CPSU exists for the people and serves the people.\n\nThe Communist Party, armed with Marxism-Leninism, determines the general perspectives of the development of society and the course of the USSR’s domestic and foreign policy, directs the great constructive work of the Soviet people, and imparts a planned, systematic and theoretically substantiated character to their struggle for the victory of communism.\n\nAll party organisations shall function within the framework of the Constitution of the USSR.”\n\n55.  The Supreme Council’s decision of 24 August 1991 on the suspension of the activities of certain non-governmental and political organisations was worded as follows:\n\n“On 20 August 1991 the Internationalist Front of Workers of the Latvian SSR, the United Council of Labour Collectives, the Republican Council of War and Labour Veterans, the Central Committee of the Communist Party of Latvia and the Central Committee of the Latvian Union of Communist Youth issued a proclamation informing the Republic’s population that a state of emergency had been decreed in Latvia and encouraging all private individuals to oppose those who did not submit to the orders of the National State of Emergency Committee. In so doing, the above-mentioned organisations ... declared their support for the organisers of the coup d’état and encouraged other individuals to do the same.\n\nThe actions of those organisations are contrary to Articles 4, 6 and 49 of the Latvian Constitution, which state that Latvian citizens are entitled to form parties and other associations only if their objectives and practical activities are not aimed at the violent transformation or overthrow of the existing constitutional order ... and that associations must observe the Constitution and legislation and act in accordance with their provisions.\n\nThe Supreme Council of the Republic of Latvia decrees:\n\n1.  The activities of the Communist Party of Latvia [and of the other above-mentioned organisations] are hereby suspended ...”\n\n56.  The relevant parts of the Supreme Council’s decision of 10 September 1991 on the dissolution of the above-mentioned organisations read as follows:\n\n“... In May 1990 the Communist Party of Latvia, the Internationalist Front of Workers of the Latvian SSR, the United Council of Labour Collectives and the Republican Council of War and Labour Veterans set up the Committee for the Defence of the Constitution of the USSR and the Latvian SSR and the Rights of Citizens, which was renamed the Latvian Public Rescue Committee on 25 November 1990 ...\n\nOn 15 January 1991 the Latvian Public Rescue Committee declared that it was seizing power and dissolving the Supreme Council and the Government of the Republic of Latvia.\n\nIn August 1991 the Central Committee of the Communist Party of Latvia [and the other above-mentioned organisations] supported the coup ...\n\nHaving regard to the preceding, the Supreme Council of the Republic of Latvia decrees:\n\n1.  The Communist Party of  [and the other above-mentioned organisations], together with the coalition of these organisations, the Latvian Public Rescue Committee, are hereby dissolved on the ground that they have acted against the Constitution ...\n\n2.  Former members of the Communist Party of Latvia [and of the other above-mentioned organisations] are informed that they are entitled to associate within parties and other associations whose objectives and practical activities are not aimed at the violent transformation or overthrow of the existing constitutional order, and which are not otherwise contrary to the Constitution and the laws of the Republic of Latvia ...”\n\nC.  The electoral legislation\n\n1.  Substantive provisions\n\n57.  The relevant provisions of the Constitution (Satversme) of the Republic of Latvia, adopted in 1922 and amended by the Law of 15 October 1998, are worded as follows:\n\nArticle 9\n\n“All citizens of Latvia who enjoy full civic rights and who have reached the age of 21 on the day of the elections may be elected to Parliament.”\n\nArticle 64\n\n“Legislative power lies with Parliament and with the people, in the conditions and to the extent provided for by this Constitution.”\n\nArticle 91\n\n“All persons in Latvia shall be equal before the law and the courts. Human rights shall be exercised without discrimination of any kind.”\n\nArticle 101\n\n“All citizens of Latvia are entitled to participate, in accordance with the law, in the activities of the State and of local government ...”\n\n58.  The relevant provisions of the Parliamentary Elections Act (Saeimas vēlēšanu likums) of 25 May 1995 provide:\n\nSection 4\n\n“All Latvian citizens who have reached the age of 21 on the date of the elections may be elected to Parliament, on condition that they are not concerned by one of the restrictions provided for in section 5 of the present Act.”\n\nSection 5\n\n“The following may not stand as candidates in elections or be elected to Parliament:\n\n...\n\n(6)  persons who actively participated [darbojušās] after 13 January 1991 in the CPSU (CPL), the Internationalist Front of Workers of the Latvian SSR, the United Council of Labour Collectives, the Organisation of War and Labour Veterans or the Latvian Public Rescue Committee, or in their regional committees; ...”\n\nSection 11\n\n“The following documents must be appended to the list of candidates:\n\n...\n\n(3)  a signed declaration by each candidate on the list confirming that he or she meets the requirements of section 4 of this Act and that he or she is not concerned by section 5(1)-(6) of the present Act; ...”\n\nSection 13\n\n“...\n\n(2)  Once registered, the candidate lists are definitive, and the Central Electoral Commission may make only the following corrections:\n\n1.  removal of a candidate from the list, where: ...\n\n(a)  the candidate is not a citizen enjoying full civic rights (sections 4 and 5 above);\n\n...\n\n(3)  ... [A] candidate shall be removed from the list on the basis of a statement from the relevant authority or of a court decision. The fact that the candidate:\n\n...\n\n6.  actively participated after 13 January 1991 in the CPSU (CPL), the Internationalist Front of Workers of the Latvian SSR, the United Council of Labour Collectives, the Organisation of War and Labour Veterans or the Latvian Public Rescue Committee, or in their regional committees, shall be attested by a judgment of the relevant court; ...”\n\n59.  The Law of 13 January 1994 on elections to municipal councils and city councils (Pilsētas domes un pagasta padomes vēlēšanu likums) contains similar provisions to the provisions of the Parliamentary Elections Act cited above. In particular, section 9(5) is identical to section 5(6) of that Act.\n\n2.  Procedural provisions\n\n60.  The procedure for obtaining a judicial statement attesting to an individual’s participation or non-participation in the above-mentioned organisations is governed by Chapter 23-A of the Code of Civil Procedure (Civilprocesa kodekss), which was inserted by a law of 3 September 1998 and is entitled “Examination of cases concerning the attestation of restrictions on electoral rights”. The provisions of that chapter read as follows:\n\nArticle 233-1\n\n“A request for a statement of restriction on electoral rights may be submitted by the prosecutor ...\n\nThe request must be submitted to the court in whose territorial jurisdiction is situated the home of the person in respect of whom the attestation of a restriction on electoral rights is requested.\n\nThe request may be submitted where an electoral commission has registered a list of candidates which includes ... a citizen in respect of whom there is evidence that, subsequent to 13 January 1991, he or she actively participated in the CPSU (in the CPL) ... A request concerning a person included in the list of candidates may also be submitted once the elections have taken place.\n\nThe request must be accompanied by a statement from the electoral commission confirming that the person in question has stood as a candidate in elections and that the list in question has been registered, as well as by evidence confirming the allegations made in the request.”\n\nArticle 233-3\n\n“After examining the request, the court shall give its judgment:\n\n(1)  finding that, after 13 January 1991, the person concerned did actively participate in the CPSU (in the CPL) ...;\n\n(2)  declaring the request ill-founded and dismissing it ...”\n\nD.  Proposals to repeal the disputed restrictions\n\n61.  The Parliamentary Elections Act was enacted on 25 May 1995 by the first parliament elected after the restoration of Latvia’s independence, otherwise known as the “Fifth Legislature” (the first four legislatures having operated between 1922 and 1934). The following legislature (the Sixth), elected in October 1995, examined three different proposals seeking to repeal section 5(6) of the above-mentioned Act. At the plenary session of 9 October 1997, the three proposals were rejected by large majorities after lengthy debates. Likewise, on 18 December 1997, during a debate on a proposal to restrict section 5(6), the provision’s current wording was confirmed. Elected in October 1998, the following legislature (the Seventh) examined a proposal to repeal section 5(6) at a plenary session on 16 May 2002. After lengthy discussions, the majority of members of parliament refused to accept the proposal. Finally, the Eighth Legislature, elected in October 2002, examined a similar proposal on 15 January 2004. It was also rejected.\n\nE.  The Constitutional Court’s judgment of 30 August 2000\n\n62.  In a judgment of 30 August 2000 in case no. 2000-03-01, the Constitutional Court (Satversmes tiesa) found that the restrictions imposed by section 5(6) of the Parliamentary Elections Act and section 9(5) of the Municipal Elections Act were compatible with the Latvian Constitution and with Article 14 of the Convention taken in conjunction with Article 3 of Protocol No. 1.\n\nIn that judgment, adopted by four votes to three, the  first reiterated the general principles laid down in the settled case-law of the Convention institutions in applying Article 14 of the Convention and Article 3 of Protocol No. 1. It further held:\n\n“4.  The argument that the provisions complained of, forbidding certain Latvian citizens from standing as candidates or being elected to Parliament and municipal councils, discriminate against them on the basis of their political allegiance is without foundation ... The impugned provisions do not provide for a difference in treatment on the basis of an individual’s political convictions (opinions) but for a restriction on electoral rights for having acted against the re-established democratic order after 13 January 1991 ...\n\nAccordingly, Parliament limited the restrictions to the degree of each individual’s personal responsibility [individuālās atbildības pakāpe] in carrying out those organisations’ objectives and programmes, and the restriction on the right to be elected to Parliament or to a municipal council ... is related to the specific individual’s activities in the respective ... associations.\n\nIn itself, formal membership of the above-mentioned organisations cannot serve as a basis for preventing an individual from standing as candidate or being elected to Parliament ...\n\nConsequently, the impugned provisions are directed only against those who attempted, subsequent to 13 January 1991 and in the presence of the army of occupation, to re-establish the former regime through active participation [ar aktīvu darbību]; on the other hand, they do not affect persons who have differing political convictions (opinions). The tendency of certain courts to concentrate solely on the finding of the fact of formal membership and not to evaluate the person’s behaviour is inconsistent with the objectives sought by Parliament in enacting the provision in issue ...\n\n6.  ... Given that those organisations’ objectives were linked to the overthrow of the existing State regime [pastāvošās valsts iekārtas graušana], they were essentially unconstitutional ...\n\nConsequently, the aim of the restrictions on passive electoral rights is to protect the democratic State order, national security and territorial integrity of Latvia. The impugned provisions are not directed against pluralism of ideas in  or against a person’s political opinions, but against those who, through their active participation, have attempted to overthrow the democratic State order ... The exercise of human rights may not be directed against democracy as such ...\n\nThe substance and effectiveness of law is demonstrated in its ethical nature [ētiskums]. A democratic society has a legitimate interest in requiring loyalty to democracy from its political representatives. In establishing restrictions, the candidates’ honour and reputation is not challenged, in the sense of personal legal benefit [personisks tiesisks labums]; what is challenged is the worthiness of the persons in question to represent the people in Parliament or in the relevant municipal council. These restrictions concern persons who were permanent agents of the occupying power’s repressive regime, or who, after 13 January 1991, participated in the organisations mentioned in the impugned provisions and actively fought against the re-established Latvian Constitution and State ...\n\nThe argument ... that democratic State order must be protected against individuals who are not ethically qualified to become representatives of a democratic State at political or administrative level ... is well-founded ...\n\n... The removal from the list of a candidate who was involved in the above-mentioned organisations is not an arbitrary administrative decision; it is based on an individual judgment by a court. In accordance with the law, evaluation of individual responsibility comes under the jurisdiction of the courts ...\n\n7.  ... In order to determine whether the measure applied, namely the restrictions on passive electoral rights, is proportionate to the objectives being pursued, namely the protection, firstly, of democratic State order and, secondly, of the national security and integrity of the Latvian State, it is necessary to assess the political situation in the country and other related circumstances. Parliament having evaluated the historical and political circumstances of the development of democracy on several occasions ... the Court does not consider that at this stage there would be grounds for challenging the proportionality between the measure applied and its aim.\n\nHowever, Parliament, by periodically examining the political situation in the State and the necessity and merits of the restrictions, should decide to establish a time-limit on these restrictions ... since such limitations on passive electoral rights may exist only for a specific period.”\n\n63.  Three of the Constitutional Court’s seven judges who examined the above-mentioned case gave a dissenting opinion in which they expressed their disagreement with the majority’s conclusions. Referring, inter alia, to Vogt v. Germany (26 September 1995, Series A no. 323) and Rekvényi v. Hungary ([GC], no. 25390/94, ECHR 1999-III), they argued that the disputed restrictions could be more extensive with regard to civil servants than to elected representatives. According to those judges, Latvia’s democratic regime and institutional system had become sufficiently stable in the years since 1991 for individuals who had campaigned against the system ten years previously no longer to represent a real threat to the State. Consequently, the restriction on those persons’ electoral rights was not proportionate to the legitimate aim pursued.\n\nF.  The European Parliament Elections Act\n\n64.  Prior to Latvia becoming a member of the European Union, the Latvian parliament adopted the European Parliament Elections Act (Eiropas Parlamenta vēlēšanu likums), which was enacted on 29 January 2004 and came into force on 12 February 2004. The Act contains no provision similar to section 5(6) of the Parliamentary Elections Act. Consequently, the applicant was free to stand as a candidate in the elections to the European Parliament.\n\nTHE LAW\n\nI.  THE GOVERNMENT’S PRELIMINARY OBJECTION\n\n65.  The Government claimed that the European Parliament Elections Act contained no provision similar to section 5(6) of the Parliamentary Elections Act (see paragraphs 58 and 64 above). Consequently, the applicant was free to stand as a candidate in the elections to the European Parliament, to which she was in fact subsequently elected. The Government argued that, as a supranational legislature, the European Parliament ought to be considered a “higher” legislative body than the Latvian parliament, and that “the applicant will be able to exercise her ‘passive’ electoral rights effectively at an even higher level than that foreseen at the outset”.\n\n66.  The Government acknowledged that no amendments had so far been made to the laws on parliamentary and municipal elections. The disputed restriction therefore remained in force and the applicant was still disqualified from standing for Parliament and for municipal councils. However, they did not consider that this fact was material to the outcome of the case. Latvia’s accession to the European Union in spring 2004 marked the culmination of the transitional period, that is, the country’s journey from a totalitarian to a democratic society, and the members of parliament had been aware of this. Furthermore, the periodic review of the disputed provisions constituted a stable parliamentary practice (see paragraph 61 above) and the restrictions complained of by the applicant were provisional in nature.\n\n67.  For the above reasons, the Government considered that the dispute at the origin of the present case had been resolved, and that the application should be struck out of the list in accordance with Article 37 § 1 (b) of the Convention.\n\n68.  The applicant disagreed. She acknowledged that she was entitled to stand in the European elections and had done so. However, this fact did not resolve the dispute in that the restrictions contained in the laws on parliamentary and local elections were still in force and that it was by no means certain that they would be repealed in the near future.\n\n69.  In the Court’s view, the question posed by the Government’s pleadings is whether the applicant has in fact lost her status as “victim” within the meaning of Article 34 of the Convention. In that connection, the Court refers to its settled case-law to the effect that a decision or measure favourable to an applicant is not in principle sufficient to deprive him or her of victim status unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, for example, Amuur v. France, 25 June 1996, § 36, Reports of Judgments and Decisions 1996-III; Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI; Labita v. Italy [GC], no. 26772/95, § 142, ECHR 2000-IV; and Ilaşcu and Others v. Moldova and Russia (dec.) [GC], no. 48787/99, 4 July 2001). In the present case, the impugned legislative provisions remain in force, and the applicant is still disqualified from standing for the national parliament (and for municipal councils).\n\n70.  In so far as the Government refer to the fact that the applicant was entitled to take part in the European Parliament elections, the Court recognises that Article 3 of Protocol No. 1 is applicable in this respect (see Matthews v. the United Kingdom [GC], no. 24833/94, §§ 39-44 and 48-54, ECHR 1999-I). However, the fact that the applicant is entitled to stand for election to the European Parliament cannot suffice to release the State from its obligation to respect the rights guaranteed in Article 3 of Protocol No. 1 with regard to the national parliament.\n\n71.  In sum, to this day the Latvian authorities have not recognised, let alone redressed, the violations alleged by the applicant. She therefore remains a “victim” of those alleged violations.\n\n72.  Accordingly, the Government’s preliminary objection must be dismissed.\n\nII.  ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL No. 1\n\n73.  The applicant complained that her disqualification from standing for election to the national parliament, on the ground that she had actively participated in the CPL after 13 January 1991, constituted a violation of Article 3 of Protocol No. 1, which provides:\n\n“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”\n\nA.  The Chamber’s judgment\n\n74.  The Chamber considered at the outset that the duty of political loyalty established by the Court in relation to the limitations on the political activities of public servants could not be applied to the same extent in the context of the eligibility of individuals to stand for Parliament. It further found that the disqualification of the applicant pursued legitimate aims, namely the protection of the State’s independence, democratic order and national security. The Chamber observed that the restriction was not limited in time, and that a permanent disqualification could only be justified in cases of grievous criminal offences, such as war crimes or treason. At the same time, it considered that barring the leading figures of the former regime from standing as parliamentary candidates could be considered a legitimate and balanced measure during the early years following the re-establishment of Latvia’s independence, without it being necessary to look into the conduct of the individual concerned.\n\n75.  However, after a certain time it became necessary to establish whether other factors, particularly an individual’s personal participation in the disputed events, continued to justify his or her ineligibility. In the view of the Chamber, since the domestic courts only had limited, if any, powers to assess the real danger posed to the current democratic order by each individual to whom the restriction applied, the Court had itself to examine whether the applicant’s conduct more than a decade previously still constituted sufficient justification for barring her from standing in parliamentary elections. It noted in this connection that although the applicant had occupied an important position within the CPL structure, there was no evidence that her actual conduct at the material time in 1991 justified the continuing restriction. The Chamber also considered it noteworthy that the applicant was never prosecuted for an offence, that the CPL had not been dissolved until after the events of August 1991 and that there was no proof that the applicant’s current conduct justified the continuing restriction. It further criticised the Latvian legislature for adopting the impugned restriction only in 1995, and not before the elections held in 1993. This showed that former leading figures at the CPL were not considered to pose a danger to democracy. In sum, and having regard in particular to the case-law principles derived from Article 11 of the Convention to support its reasoning and conclusion, the Chamber considered that the applicant’s disqualification from standing as a parliamentary candidate was disproportionate and therefore in violation of Article 3 of Protocol No. 1.\n\nB.  The parties’ submissions\n\n1.  The applicant\n\n76.  The applicant requested that the Chamber’s judgment be upheld. She considered that the reasons given for her disqualification should be examined in the light of the principles and conclusions identified by the Court in United Communist Party of Turkey and Others v. Turkey (30 January 1998, §§ 45-46, Reports 1998-I). The applicant contested the allegations regarding the CPL’s allegedly totalitarian and dangerous nature with reference to the party’s official programme adopted in April 1990, which advocated “constructive cooperation between different political forces favourable to the democratic transformation of society” and “a society based on the principles of democracy [and] humanism”. Moreover, at the time of the CPL’s 25th Congress, the party had had no intention of restoring the former totalitarian communist regime. She further pointed out that the CPL was declared unconstitutional only on 23 August 1991 and that the party’s activities had remained perfectly legal until that date, including in the period after the events of January 1991.\n\n77.  The applicant further argued that the very facts of her membership in the CPL and her position in the structure of the party did not suffice to prove a lack of loyalty towards Latvia. Indeed, of the 201 members of the Supreme Council, 106 had originally been members of the CPL and the division of members of parliament into two main camps had been based solely on their attitude to the Declaration of Independence, and not on whether they had been members of that party. Equally, the CPL could not be accused of having attempted to overthrow the democratic regime. With regard to the events of January 1991, the applicant repeated her own version of events (see paragraphs 21 and 23-24 above). She submitted a copy of the appeal by the CPL parliamentary group, published on 21 January 1991, containing a denial that the party had been involved in organising the armed incursions and deploring “political provocation ... misleading world opinion”. In any event, the applicant herself had never been a member of the Latvian Public Rescue Committee. As to the events of 19 August 1991, she contended that there was evidence exculpating the CPL.\n\n78.  The applicant considered that the Republic of Latvia’s ambiguous constitutional status during the period in question was an important factor to be taken into consideration. In that connection, she noted that the Declaration of Independence of 4 May 1990 had established a transition period so that institutional links with the USSR could be gradually severed. In reality, it had been a period of diarchy, during which Soviet and Latvian constitutional and legislative texts, and even some Soviet and Latvian institutions, coexisted and functioned in parallel throughout the national territory. The applicant acknowledged that the Constitutional Law of 21 August 1991 had ended the transition period; however, it was impossible to declare null and void the very existence of that period. Since the legitimacy of the institutions which were then functioning on the territory of Latvia was not clearly established, it was not correct to speak of a coup d’état in the proper meaning of the term.\n\n79.  Nor could the CPL be criticised for having taken a pro-Soviet and anti-independence stance during the transition period. While acknowledging that the CPL and she herself had declared their firm support for a Latvia which enjoyed greater sovereignty but remained an integral part of the USSR, the applicant observed that, at the material time, there was a very wide range of opinions on how the country should develop politically, even among those members of parliament who supported independence in principle. In addition, leaders of foreign States had also been divided on this subject: some had been very sceptical about the liberation of the Baltic States and had preferred to adopt an approach based on non-interference in the Soviet Union’s internal affairs. In short, in supporting one of the possible avenues for development, the CPL had in fact exercised its right to pluralism of political opinions, a right which was inherent in a democratic society.\n\n80.  The applicant considered ill-founded and unsubstantiated the Government’s argument that to allow persons who had been members of the CPL after 13 January 1991 to become members of the national parliament would be likely to compromise national security. She pointed out that the impugned restriction had not existed before 1995 and that, in the first parliamentary elections following restoration of the 1922 Constitution, three individuals in the same position as herself had been elected to the Latvian parliament. In those circumstances, the applicant could not see how her election could threaten national security such a long time after the facts held against her.\n\n81.  In so far as the Government referred to the Constitutional Court’s judgment of 30 August 2000, the applicant referred to the dissenting opinion signed by three of the seven judges who had examined the case and found that the restriction was disproportionate. With regard to the Constitutional Court’s restrictive interpretation of the electoral law, which presupposed an evaluation of the individual responsibility of each person concerned, the applicant argued that nothing in her personal conduct justified the disputed measure, since she had never attempted to restore the totalitarian regime or to overthrow the legitimate authorities. On the contrary, she had campaigned for democratisation and reform within the CPSU, the CPL and society as a whole.\n\n82.  The applicant also argued that nothing in her personal conduct justified the restriction imposed on her electoral rights. Subsequent to January 1990, she had campaigned in a non-governmental organisation, the Latvian Committee for Human Rights (Latvijas Cilvēktiesību komiteja), and had co-chaired that organisation until 1997. Working within the committee, she had become very well known for her activities in providing legal assistance to thousands of individuals; she had helped to promote respect for human rights in Latvia and she had been responsible for implementing three Council of Europe programmes.\n\n83.  Finally, and contrary to the Government’s submissions, the applicant considered that the impugned restriction was not provisional. In that connection, she pointed out that, although Parliament had indeed re-examined the electoral law before each election, this re-examination had always resulted in an extension rather than a reduction in the number of circumstances entailing disqualification. Consequently, it had to be acknowledged that the disqualification of individuals who had been active within the CPL after 13 January 1991 was likely to continue. In conclusion, the applicant emphasised that the Government’s restoration of her ability to stand as a candidate to the Latvian parliament was long overdue, in particular in view of her recent election as a member of the European Parliament, a fact which confirmed that she had the confidence and support of a significant part of the Latvian electorate.\n\n2.  The Government\n\n84.  The Government requested the Grand Chamber to find no violation of Article 3 of Protocol No. 1. They submitted a detailed description of the historical events leading to the restoration of Latvian State independence. They stated that the Chamber had failed to take due account of these events in reaching its conclusions. In addition, they referred to the historical facts established by the Latvian judicial and parliamentary authorities, confirming the CPL’s responsibility for the unconstitutional attempted coups between January and August 1991 (see paragraphs 20-29, 32, 37-44 and 54-55 above). The Government emphasised that the applicant had been fully aware of the scale of the events, but she had nevertheless chosen to remain a CPL activist rather than dissociate herself from that organisation’s clearly subversive activities.\n\n85.  The Government acknowledged that a national parliament was not part of the “civil service” in the same way as the police or the armed forces. However, they emphasised that Parliament was a public institution and, in enacting legislation, MPs were participating directly in the exercise of powers conferred on them by the Constitution and other laws. Consequently, the criteria identified by the Court under Articles 10 and 11 of the Convention with regard to restrictions on the political activity of civil servants were applicable by analogy to candidates for parliamentary office as well as elected representatives. The Government therefore disagreed with the Chamber’s finding that the criteria of political loyalty had no relevance to the right to stand as a candidate for election.\n\n86.  With regard to the aim pursued by the impugned restriction, the Government observed that the disqualification from standing for election applied to those persons who had been active within organisations which, following the declaration of Latvia’s independence, had openly turned against the new democratic order and had actively sought to restore the former totalitarian communist regime. It was therefore necessary to exclude those persons from exercising legislative authority. Having failed to respect democratic principles in the past, there was no guarantee that they would now comply with such principles. Relying on Ahmed and Others v. the United Kingdom (2 September 1998, § 52, Reports 1998-VI), the Government argued that the disputed disqualification was preventative in nature and did not require proof of actual dangerous or undemocratic actions on the part of those persons. The Government therefore disagreed with the Chamber’s finding on the allegedly punitive nature of the impugned restriction.\n\n87.  With reference to Rekvényi (cited above, § 41), the Government underlined that the principle of a “democracy capable of defending itself” was compatible with the Convention, especially in the context of the post-communist societies of central and eastern Europe.\n\n88.  Furthermore, Vogt (cited above) could not be relied on in support of the applicant’s submissions. Mrs Vogt’s activities within the German Communist Party had been legal activities within a legal organisation. In contrast, in the present case the enactment on 4 May 1990 of the Declaration of Independence had created a new constitutional order for , of which that Declaration had become the basis. Accordingly, during the period from 4 May 1990 to 6 June 1993, the date on which the 1922 Constitution was fully re-established, any action against the said Declaration or against the State system founded by it had to be considered unconstitutional. The Government also disputed the applicant’s assertion regarding the existence of a constitutional diarchy during the events of 1991.\n\n89.  In addition, the applicant’s disqualification had the aim of protecting the State’s independence and national security. Referring in that connection to the resolutions adopted in April 1990 by the CPL’s 25th Congress, the Government noted that that party had always been hostile to the restoration of Latvia’s independence and that one of its main aims had been to keep the country within the Soviet Union. Accordingly, the very existence of a State Party to the Convention was threatened in the instant case, and granting access to the bodies of supreme State power to individuals who were hostile to that State’s independence would be likely to compromise national security.\n\n90.  Furthermore, the restriction in question was proportionate to the legitimate aims pursued. The impugned disqualification was not applicable to all those individuals who had officially been members of the CPL after 13 January 1991, but only to those who had “acted” or “actively participated” in the party’s operations after the above-mentioned date, that is, to persons who, in their administrative or representative functions, had threatened Latvia’s democratic order and sovereignty. This restrictive interpretation of the electoral legislation had in fact been imposed by the Constitutional Court in its judgment of 30 August 2000.\n\n91.  In the present case, the applicant’s hostile attitude to democracy and to Latvia’s independence had been clear since the CPL’s 25th Congress, during which she chose not to align herself with the dissident progressive delegates, opting instead to remain with those who supported the “hard-line” Soviet policy (see paragraph 17 above). Equally, the Central Committee for Supervision and Audit had a leading position in the CPL’s internal structure and the applicant was a member of a sub-committee responsible for supervising implementation of the party’s decisions and policies. The majority of decisions taken by CPL bodies reflected an extremely hostile attitude to the re-establishment of a democratic and independent republic. In that connection, the Government referred once again to the statement issued by the CPL’s Central Committee on 13 January 1991, establishing the Latvian Public Rescue Committee and aimed at usurping power, even though they admitted that the applicant herself had not been present at the Central Committee’s meeting on that date. In short, as one of those responsible for supervising implementation of the CPL’s decisions, the applicant could not have failed to oppose an independent Latvia during the period in question.\n\n92.  Although the applicant’s position within the CPL sufficed in itself to demonstrate her active involvement in that party’s activities, the domestic courts had nonetheless based their reasoning on the extent of her personal responsibility rather than on a formal finding regarding her status in the party’s organisational structure. The Government therefore disagreed with the Chamber’s finding that the review of the applicant’s case by the domestic courts had been excessively formal or insufficient.\n\n93.  Moreover, the applicant’s current conduct continued to justify her disqualification. Relying on numerous press articles, they submitted that the applicant’s political activities were part of a “carefully scripted scenario” aimed at harming Latvia’s interests, distancing it from the European Union and NATO and bringing it closer to the Commonwealth of Independent States. The Government referred to certain critical statements recently made by the applicant about the State’s current policy towards the Russian-speaking minority and the new Language Act; they also criticised the applicant’s role in the organisation of public meetings on the dates of former Soviet festivals.\n\n94.  They stressed that since the reinstatement of the 1922 Constitution, each successive parliament had examined the need to maintain the disqualification of individuals who had been active members of the CPSU or the CPL after 13 January 1991. This periodic re-examination constituted an established parliamentary practice and showed that the restriction in question was provisional in nature. The Chamber had failed to give sufficient weight to that fact.\n\n95.  Finally, the Government emphasised the fact that the CPSU, through its subordinate sections within the Soviet Union and elsewhere in central and eastern Europe, had to be seen as the only party having control of all branches of power, as well as of the “lives and minds” of the people, for a period of many decades following the Second World War. The former communist States of central and eastern Europe were thus to be distinguished from other countries where a political party might be considered as posing a threat to national security and other vital interests within the context of the established framework of democratic institutions. The new democracies of central and eastern Europe were more sensitive than other European countries to the threat to the democratic regime presented by the resurgence of ideas akin to those espoused by the CPSU and CPL. In view of these special circumstances, the Government considered that the Latvian authorities were best placed to evaluate the steps needed to protect the democratic regime, including by means of measures such as those in issue in the present case.\n\nC.  The Court’s assessment\n\n1.  The facts in dispute\n\n96.  The Court observes, in the first place, that a number of historical events are disputed between the parties. Thus, the applicant contests the Government’s version of events with regard to the origin and nature of the first attempted coup in January 1991, the plebiscite of March 1991 and the CPL’s collaboration with the perpetrators of the second attempted coup in August 1991 (see paragraphs 20-29, 32, 37-44 and 55-56 above). However, in exercising its supervisory jurisdiction, the Court’s task is not to take the place of the competent national authorities but rather to review the decisions they delivered pursuant to their power of appreciation. In so doing, it has to satisfy itself that the national authorities based their decisions on an acceptable assessment of the relevant facts, and did not reach arbitrary conclusions (see, for example, Vogt, cited above, § 52; Socialist Party and Others v. Turkey, 25 May 1998, § 44, Reports 1998-III; Freedom and Democracy Party (ÖZDEP) v. Turkey [GC], no. 23885/94, § 39, ECHR 1999-VIII). Furthermore, the Court will abstain, as far as possible, from pronouncing on matters of purely historical fact, which do not come within its jurisdiction; however, it may accept certain well-known historical truths and base its reasoning on them (see Marais v. France, no. 31159/96, Commission decision of 24 June 1996, Decisions and Reports (DR) 86-B, p. 184, and Garaudy v. France (dec.), no. 65831/01, ECHR 2003-IX).\n\n97.  In the present case, there is no indication of arbitrariness in the way in which the Latvian courts evaluated the relevant facts. In particular, the CPL’s participation in the events of 1991 has been established by a Supreme Court judgment in the context of a criminal case brought against two former senior officials of the party (see paragraph 32 above). Equally, the Court does not see any reason to dispute either the findings of fact made by the Riga Regional Court and the Civil Division of the Supreme Court with regard to the events of 1991 and the applicant’s standing in the CPL at the material time, or the reasons given by the Supreme Council to justify the suspension of the CPL’s activities in September 1991. It accepts the facts concerning the CPL’s role during the events of January and August 1991, as well as its activities in the wake of these events, as established by the Latvian judicial and parliamentary authorities (see paragraphs 20-29, 32, 37-44 and 55-56 above).\n\n2.  The general principles established by the case-law under the Convention\n\n(a)  Democracy and its protection in the Convention system\n\n98.  Democracy constitutes a fundamental element of the “European public order”. That is apparent, firstly, from the Preamble to the Convention, which establishes a very clear connection between the Convention and democracy by stating that the maintenance and further realisation of human rights and fundamental freedoms are best ensured on the one hand by an effective political democracy and on the other by a common understanding and observance of human rights. The Preamble goes on to affirm that European countries have a common heritage of political traditions, ideals, freedom and the rule of law. This common heritage consists in the underlying values of the Convention; thus, the Court has pointed out on many occasions that the Convention was in fact designed to maintain and promote the ideals and values of a democratic society. In other words, democracy is the only political model contemplated by the Convention and, accordingly, the only one compatible with it (see, among many other examples, United Communist Party of Turkey and Others, cited above, § 45; Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, § 86, ECHR 2003-II; and, lastly, Gorzelik and Others v. Poland [GC], no. 44158/98, § 89, ECHR 2004-I).\n\n99.  It cannot be ruled out that a person or a group of persons will rely on the rights enshrined in the Convention or its Protocols in order to attempt to derive therefrom the right to conduct what amounts in practice to activities intended to destroy the rights or freedoms set forth in the Convention; any such destruction would put an end to democracy. It was precisely this concern which led the authors of the Convention to introduce Article 17, which provides: “Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention” (see Collected Edition of the “Travaux Préparatoires”: Official Report of the Consultative Assembly, 1949, pp. 1235-39). Following the same line of reasoning, the Court considers that no one should be authorised to rely on the Convention’s provisions in order to weaken or destroy the ideals and values of a democratic society (see Refah Partisi (the Welfare Party) and Others, cited above, § 99).\n\n100.  Consequently, in order to guarantee the stability and effectiveness of a democratic system, the State may be required to take specific measures to protect itself. Thus, in the above-cited Vogt judgment, with regard to the requirement of political loyalty imposed on civil servants, the Court acknowledged the legitimacy of the concept of a “democracy capable of defending itself” (§§ 51 and 59). It has also found that pluralism and democracy are based on a compromise that requires various concessions by individuals, who must sometimes be prepared to limit some of their freedoms so as to ensure the greater stability of the country as a whole (Refah Partisi (the Welfare Party) and Others, cited above, § 99). The problem which is then posed is that of achieving a compromise between the requirements of defending democratic society on the one hand and protecting individual rights on the other (see United Communist Party of Turkey and Others, cited above, § 32). Every time a State intends to rely on the principle of “a democracy capable of defending itself” in order to justify interference with individual rights, it must carefully evaluate the scope and consequences of the measure under consideration, to ensure that the aforementioned balance is achieved.\n\n101.  Finally, with regard to the implementation of measures intended to defend democratic values, the Court stated in Refah Partisi (the Welfare Party) and Others (cited above, § 102):\n\n“The Court considers that a State cannot be required to wait, before intervening, until a political party has seized power and begun to take concrete steps to implement a policy incompatible with the standards of the Convention and democracy, even though the danger of that policy for democracy is sufficiently established and imminent. The Court accepts that where the presence of such a danger has been established by the national courts, after detailed scrutiny subjected to rigorous European supervision, a State may ‘reasonably forestall the execution of such a policy, which is incompatible with the Convention’s provisions, before an attempt is made to implement it through concrete steps that might prejudice civil peace and the country’s democratic regime’. ...”\n\n(b)  The Court’s test under Article 3 of Protocol No. 1\n\n102.  Article 3 of Protocol No. 1 differs from other rights guaranteed by the Convention and its Protocols as it is phrased in terms of the obligation of the High Contracting Party to hold elections which ensure the free expression of the opinion of the people rather than in terms of a particular right or freedom. However, having regard to the preparatory work to Article 3 of Protocol No. 1 and the interpretation of the provision in the context of the Convention as a whole, the Court has established that this provision also implies individual rights, including the right to vote and to stand for election (see Mathieu-Mohin and Clerfayt v. Belgium, 2 March 1987, §§ 46-51, Series A no. 113).\n\n103.  The rights guaranteed under Article 3 of Protocol No. 1 are crucial to establishing and maintaining the foundations of an effective and meaningful democracy governed by the rule of law. Nonetheless, these rights are not absolute. There is room for “implied limitations”, and Contracting States must be given a margin of appreciation in this sphere. The Court reaffirms that the margin in this area is wide (see Mathieu-Mohin and Clerfayt, cited above, § 52; Matthews, cited above, § 63; Labita, cited above, § 201; and Podkolzina v. Latvia, no. 46726/99, § 33, ECHR 2002-II). There are numerous ways of organising and running electoral systems and a wealth of differences, inter alia, in historical development, cultural diversity and political thought within Europe, which it is for each Contracting State to mould into its own democratic vision (see Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, § 61, ECHR 2005-IX).\n\n104.  It is, however, for the Court to determine in the last resort whether the requirements of Article 3 of Protocol No. 1 have been complied with; it has to satisfy itself that the conditions imposed on the rights to vote or to stand for election do not curtail the exercise of those rights to such an extent as to impair their very essence and deprive them of their effectiveness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate (see Mathieu-Mohin and Clerfayt, cited above, § 52). In particular, any such conditions must not thwart the free expression of the people in the choice of the legislature – in other words, they must reflect, or not run counter to, the concern to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage (see Hirst, cited above, § 62).\n\n105.  In relation to the cases concerning the right to vote, that is, the so-called “active” aspect of the rights under Article 3 of Protocol No. 1, the Court has considered that exclusion of any groups or categories of the general population must be reconcilable with the underlying purposes of Article 3 of Protocol No. 1 (see, mutatis mutandis, Aziz v. Cyprus, no. 69949/01, § 28, ECHR 2004-V). In particular, the Court has found that domestic legislation imposing a minimum age or residence requirements for the exercise of the right to vote is, in principle, compatible with Article 3 of Protocol No. 1 (see Hilbe v. Liechtenstein (dec.), no. 31981/96, ECHR 1999-VI; see also Hirst, cited above, § 62). The Convention institutions have also held that it was open to the legislature to remove political rights from persons convicted of serious or financial crimes (see Holland v. Ireland, no. 24827/94, Commission decision of 14 April 1998, DR 93-A, p. 15, and M.D.U. v. Italy (dec.), no. 58540/00, 28 January 2003). In Hirst (§ 82), however, the Grand Chamber underlined that the Contracting States did not have carte blanche to disqualify all detained convicts from the right to vote without having due regard to relevant matters such as the length of the prisoner’s sentence or the nature and gravity of the offence. A general, automatic and indiscriminate restriction on all detained convicts’ right to vote was considered by the Court as falling outside the acceptable margin of appreciation.\n\n106.  The Convention institutions have had fewer occasions to deal with an alleged violation of an individual’s right to stand as a candidate for election, that is, the so-called “passive” aspect of the rights under Article 3 of Protocol No. 1. In this regard the Court has emphasised that the Contracting States enjoy considerable latitude in establishing constitutional rules on the status of members of parliament, including criteria governing eligibility to stand for election. Although they have a common origin in the need to ensure both the independence of elected representatives and the freedom of choice of electors, these criteria vary in accordance with the historical and political factors specific to each State. The multiplicity of situations provided for in the constitutions and electoral legislation of numerous member States of the Council of Europe shows the diversity of possible approaches in this area. Therefore, for the purposes of applying Article 3, any electoral legislation must be assessed in the light of the political evolution of the country concerned (see Mathieu-Mohin and Clerfayt, § 54, and Podkolzina, § 33, both cited above).\n\n107.  In Podkolzina, the Court found a violation of Article 3 of Protocol No. 1 with regard to restrictions on an individual’s eligibility to stand as a candidate for election. In that case, the applicant was removed from the list of parliamentary candidates on account of her allegedly insufficient knowledge of the official language of the State. The Court acknowledged that a decision determining a parliament’s working language was in principle one which the State alone had the power to take, this being a factor shaped by the historical and political considerations specific to the country concerned. A violation of Article 3 of Protocol No. 1 was found, however, because the procedure applied to the applicant to determine her proficiency in the official language was incompatible with the requirements of procedural fairness and legal certainty, with the result that the negative conclusion reached by the domestic authorities in this connection could be deemed deficient (§§ 33-38).\n\n108.  In Melnychenko v. Ukraine (no. 17707/02, §§ 53-67, ECHR 2004X), the Court also recognised that legislation establishing domestic residence requirements for a parliamentary candidate was, as such, compatible with Article 3 of Protocol No. 1. At the same time, the decision of the Ukrainian authorities to deny the applicant registration as a parliamentary candidate was found to be in breach of the above provision, given that the domestic law governing proof of a candidate’s residence lacked the necessary certainty and precision to guarantee the applicant adequate safeguards against arbitrary treatment. The Court underlined in that case that, while the Contracting States have a wide margin of appreciation when establishing eligibility conditions in the abstract, the principle that rights must be effective requires that the eligibility procedure itself contains sufficient safeguards to prevent arbitrary decisions (§ 59).\n\n109.  In certain older cases, the former Commission was required on several occasions to consider whether the decision to withdraw an individual’s so-called “active” or “passive” election rights on account of his or her previous activities constituted a violation of Article 3 of Protocol No. 1. In all those cases, the Commission found that it did not. Thus, in the cases of X v. the Netherlands (no. 6573/74, Commission decision of 19 December 1974, DR 1, p. 87) and X v. Belgium (no. 8701/79, Commission decision of 3 December 1979, DR 18, p. 250), it declared inadmissible applications from two persons who had been convicted following the Second World War of collaboration with the enemy or “uncitizen-like conduct” and, on that account, were permanently deprived of the right to vote. In particular, the Commission considered that “the purpose of legislation depriving persons convicted of treason of certain political rights and, more specifically, the right to vote [was] to ensure that persons who [had] seriously abused, in wartime, their right to participate in the public life of their country are prevented in future from abusing their political rights in a manner prejudicial to the security of the State or the foundations of a democratic society” (see X v. Belgium, p. 253).\n\n110.  In the case of Van Wambeke v. Belgium (no. 16692/90, Commission decision of 12 April 1991, unreported), the Commission declared inadmissible, on the same grounds, an application from a former member of the Waffen-SS, convicted of treason in 1945, who complained that he had been unable to take part in the elections to the European Parliament in 1989. In the case of Glimmerveen and Hagenbeek v. the Netherlands (nos. 8348/78 and 8406/78, Commission decision of 11 October 1979, DR 18, p. 187), the Commission declared inadmissible two applications concerning the refusal to allow the applicants, who were the leaders of a proscribed organisation with racist and xenophobic tendencies, to stand for election. On that occasion, the Commission referred to Article 17 of the Convention, noting that the applicants “intended to participate in these elections and to avail themselves of the right [concerned] for a purpose which the Commission [had] found to be unacceptable under Article 17” (ibid., p. 197). In that case it was also underlined that the standard of tolerance does not prevent a democratic society from taking steps to protect itself against activities intended to destroy the rights or freedoms set forth in the Convention. Article 3 of Protocol No. 1, which enshrines the individual’s capacity to influence the composition of the law-making power, does not therefore exclude that restrictions on electoral rights are imposed on an individual who has, for example, seriously abused a public position or whose conduct threatened to undermine the rule of law or democratic foundations.\n\n111.  In the context of employment restrictions imposed on public officials on political grounds, the Court has held that Article 10 of the Convention may apply in connection with their dismissal. A violation of Article 10 was found in this respect in Vogt (cited above, §§ 43-44), where the applicant was dismissed as a civil servant in relation to her specific activities as a member of the Communist Party in West Germany. However, in Volkmer v. Germany ((dec.), no. 39799/98, 22 November 2001) and Petersen v. Germany ((dec.), no. 39793/98, ECHR 2001-XII), the Court declared inadmissible as unsubstantiated the applicant civil servants’ complaints under Article 10 about their dismissal on account of their collaboration with the regime and secret services of the former German Democratic Republic. In the case of Sidabras and Džiautas v. Lithuania (nos. 55480/00 and 59330/00, §§ 51-62, ECHR 2004-VIII), the Court found a violation of Article 14 taken in conjunction with Article 8 as regards the existence of wide-ranging restrictions barring former KGB officers in Lithuania from access to various spheres of employment in the private sector, which were introduced almost a decade after the re-establishment of Lithuanian independence. At the same time, it is to be noted that those applicants’ dismissal from their positions as, respectively, a tax inspector and prosecutor, on the ground of their former KGB employment was not considered to amount to an interference with their rights under Article 10 of the Convention (ibid., §§ 67-73).\n\n112.  It is also relevant in this context to note that Article 3 of Protocol No. 1, or indeed other Convention provisions, do not prevent, in principle, Contracting States from introducing general policy schemes by way of legislative measures whereby a certain category or group of individuals is treated differently from others, provided that the interference with the rights of the statutory category or group as a whole can be justified under the Convention (see, in the context of a legislative ban on a police officer from engaging in political activities, examined by the Court under Articles 10 and 11 of the Convention, Rekvényi, cited above, §§ 34-50 and 58-62).\n\n113.  In Rekvényi, no violation of the Convention was found in that the domestic legislation in issue was judged to be sufficiently clear and precise as to the definition of the categories of persons affected (members of the armed forces, police and security services) and as to the scope of the application of the impugned statutory restriction, the statute’s underlying purpose of excluding the whole group from political activities being compatible with the proportionality requirements under Articles 10 and 11 of the Convention. It was thus immaterial for the Court’s assessment of the compatibility of the impugned measures with the Convention whether or not the applicant in that case could have requested the domestic courts to scrutinise whether his own political involvement represented a possible danger to the democratic order (ibid.). Similarly, in Podkolzina and Melnychenko, both cited above, the Court did not state that the Convention required that the domestic courts be empowered to review matters such as the proportionality of the statutory obligations imposed on those applicants to comply with, respectively, language and residence requirements in order to exercise their rights to stand as candidates for election, given that those statutory requirements were in themselves perfectly acceptable from the Convention point of view.\n\n114.  It follows from the above analysis that, as long as the statutory distinction itself is proportionate and not discriminatory as regards the whole category or group specified in the legislation, the task of the domestic courts may be limited to establishing whether a particular individual belongs to the impugned statutory category or group. The requirement for “individualisation”, that is the necessity of the supervision by the domestic judicial authorities of the proportionality of the impugned statutory restriction in view of the specific features of each and every case, is not a precondition of the measure’s compatibility with the Convention.\n\n(c)  The Court’s conclusion as to the principles to be applied under Article 3 of Protocol No. 1\n\n115.  Against the background of the aforementioned cases, the Court reaches the following conclusions as to the test to be applied when examining compliance with Article 3 of Protocol No. 1.\n\n(a)  Article 3 of Protocol No. 1 is akin to other Convention provisions protecting various forms of civic and political rights such as, for example, Article 10 which secures the right to freedom of expression or Article 11 which guarantees the right to freedom of association including the individual’s right to political association with others by way of party membership. There is undoubtedly a link between all of these provisions, namely the need to guarantee respect for pluralism of opinion in a democratic society through the exercise of civic and political freedoms. In addition, the Convention and the Protocols must be seen as a whole. However, where an interference with Article 3 of Protocol No. 1 is in issue the Court should not automatically adhere to the same criteria as those applied with regard to the interference permitted by the second paragraphs of Articles 8 to 11 of the Convention, and it should not necessarily base its conclusions under Article 3 of Protocol No. 1 on the principles derived from the application of Articles 8 to 11 of the Convention. Because of the relevance of Article 3 of Protocol No. 1 to the institutional order of the State, this provision is cast in very different terms from Articles 8 to 11 of the Convention. Article 3 of Protocol No. 1 is phrased in collective and general terms, although it has been interpreted by the Court as also implying specific individual rights. The standards to be applied for establishing compliance with Article 3 of Protocol No. 1 must therefore be considered to be less stringent than those applied under Articles 8 to 11 of the Convention.\n\n(b)  The concept of “implied limitations” under Article 3 of Protocol No. 1 is of major importance for the determination of the relevance of the aims pursued by the restrictions on the rights guaranteed by this provision. Given that Article 3 of Protocol No. 1 is not limited by a specific list of “legitimate aims” such as those enumerated in Articles 8 to 11 of the Convention, the Contracting States are therefore free to rely on an aim not contained in that list to justify a restriction, provided that the compatibility of that aim with the principle of the rule of law and the general objectives of the Convention is proved in the particular circumstances of a case.\n\n(c)  The “implied limitations” concept under Article 3 of Protocol No. 1 also means that the Court does not apply the traditional tests of “necessity” or “pressing social need” which are used in the context of Articles 8 to 11 of the Convention. In examining compliance with Article 3 of Protocol No. 1, the Court has focused mainly on two criteria: whether there has been arbitrariness or a lack of proportionality, and whether the restriction has interfered with the free expression of the opinion of the people. In this connection, the wide margin of appreciation enjoyed by the Contracting States has always been underlined. In addition, the Court has stressed the need to assess any electoral legislation in the light of the political evolution of the country concerned, with the result that features unacceptable in the context of one system may be justified in the context of another (see, inter alia, Mathieu-Mohin and Clerfayt and Podkolzina, both cited above).\n\n(d)  The need for individualisation of a legislative measure alleged by an individual to be in breach of the Convention, and the degree of that individualisation where it is required by the Convention, depend on the circumstances of each particular case, namely the nature, type, duration and consequences of the impugned statutory restriction. For a restrictive measure to comply with Article 3 of Protocol No. 1, a lesser degree of individualisation may be sufficient, in contrast to situations concerning an alleged breach of Articles 8 to 11 of the Convention.\n\n(e)  As regards the right to stand as a candidate for election, that is, the so-called “passive” aspect of the rights guaranteed by Article 3 of Protocol No. 1, the Court has been even more cautious in its assessment of restrictions in that context than when it has been called upon to examine restrictions on the right to vote, the so-called “active” element of the rights under Article 3 of Protocol No. 1. In Melnychenko (cited above, § 57), the Court observed that stricter requirements may be imposed on eligibility to stand for election to Parliament than is the case for eligibility to vote. In fact, while the test relating to the “active” aspect of Article 3 of Protocol No. 1 has usually included a wider assessment of the proportionality of the statutory provisions disqualifying a person or a certain group of persons from the right to vote, the Court’s test in relation to the “passive” aspect of the above provision has been limited largely to a check on the absence of arbitrariness in the domestic procedures leading to disqualification of an individual from standing as a candidate (see, in particular, paragraphs 10608 above).\n\n3.  Application of these principles in the present case\n\n116.  Turning to the circumstances of the present case, the Court notes that the applicant alleges a violation of Article 3 of Protocol No. 1 in view of her exclusion from standing as a candidate for election to the Latvian parliament pursuant to section 5(6) of the Parliamentary Elections Act 1995 on the ground that she had “actively participated” in the activities of the CPSU (CPL) after 13 January 1991.\n\n117.  The Court points out in the first place that the criterion of political loyalty which may be applied to public servants is of little, if any, relevance to the circumstances of the instant case, which deals with the very different matter of the eligibility of individuals to stand for Parliament. The criterion of “political neutrality” cannot be applied to members of parliament in the same way as it pertains to other State officials, given that the former cannot be “politically neutral” by definition.\n\n118.  The Court further finds that the impugned restriction pursued aims compatible with the principle of the rule of law and the general objectives of the Convention, namely the protection of the State’s independence, democratic order and national security.\n\n119.  It remains to be established whether the restriction was proportionate. It is to be observed in this connection that Latvia, along with the other Baltic States, lost its independence in 1940 in the aftermath of the partition of central and eastern Europe agreed by Hitler’s Germany and Stalin’s Soviet Union by way of the secret protocol to the Molotov-Ribbentrop Pact, an agreement contrary to the generally recognised principles of international law. The ensuing annexation of Latvia by the Soviet Union was orchestrated and conducted under the authority of the Communist Party of the Soviet Union (CPSU), the Communist Party of Latvia (CPL) being a satellite branch of the CPSU. In the late 1980s, a feeling of discontent with the Soviet regime among the Latvian population led to a movement in favour of State independence and democratisation of the political system, which was confirmed by the results of a national plebiscite.\n\n120.  In March 1990, the newly elected parliament (the Supreme Council) adopted a declaration re-establishing Latvia’s independence. As the Court has observed (see paragraphs 96-97 above), it sees nothing arbitrary in the domestic courts’ findings that the unsuccessful attempted coups in the Baltic States in January 1991 and then in August 1991 were organised and conducted under the direction of the CPSU and its regional branches, including the CPL. The applicant referred to the CPL’s official programme in order to exonerate the party from any responsibility for the events of 1991. In her opinion, the programme showed that this organisation had chosen the path to democratisation since 1990. However, the intentions of a party must be judged, above all, by the actions of its leaders and members rather than by its official slogans.\n\n121.  The impugned restriction introduced by the Latvian legislature by way of section 5(6) of the 1995 Act, precluding persons from standing for Parliament where they had “actively participated” in the activities of the CPL between 13 January 1991 and the date of that party’s dissolution in September 1991, must be assessed with due regard to this very special historico-political context and the resultant wide margin of appreciation enjoyed by the State in this respect (see paragraph 115 (c) above).\n\n122.  The parties disagree as to whether the impugned restriction constituted a preventive or punitive measure. In the Court’s opinion, what was at the heart of the impugned legislation was not an intention to punish those who had been active in the CPL. Rather, it was to protect the integrity of the democratic process by excluding from participation in the work of a democratic legislature those individuals who had taken an active and leading role in a party which was directly linked to the attempted violent overthrow of the newly-established democratic regime. It is true that it is not stated in the legislation that the disqualification is unlimited in time, but nor does it appear that it is temporary. Notwithstanding this ambiguity, the intention of the legislature was clearly motivated by prevention rather than by punishment. The Constitutional Court’s conclusions of 30 August 2000 and the subsequent periodic review of the legislation at the national level confirm this conclusion (see paragraphs 61-62 above).\n\n123.  In Refah Partisi (the Welfare Party) and Others (cited above, § 115) the Court held that acts of leaders of a party were imputable to the party unless it distanced itself from them. The corollary may be equally true in circumstances such as those of the instant case, namely that the acts of a party are imputable to its members, particularly those who are leading figures in it, unless those members distance themselves from those acts. A politician’s conduct usually includes not only actions or speeches but also omissions or a lack of response, which can equally constitute acts indicating that politician’s stance. In view of the critical events surrounding the survival of democracy in Latvia which occurred after 13 January 1991, it was reasonable for the Latvian legislature to presume that the leading figures of the CPL held an anti-democratic stance, unless by their actions they had rebutted this presumption, for example, by actively dissociating themselves from the CPL at the material time. However, the applicant has not made any statement distancing herself from the CPSU/CPL at the material time, or indeed at any time thereafter (see paragraphs 21, 23 and 120 above).\n\n124.  Criminal proceedings were never brought against the applicant. If this had been the case, she would have benefited from safeguards such as the presumption of innocence and the resolution of doubts in her favour in respect of such proceedings. The disqualification imposed under section 5(6) of the 1995 Act constitutes a special public-law measure regulating access to the political process at the highest level. In the context of such a procedure, doubts could be interpreted against a person wishing to be a candidate, the burden of proof could be shifted onto him or her, and appearances could be considered of importance. As observed above, the Court is of the opinion that the Latvian authorities were entitled, within their margin of appreciation, to presume that a person in the applicant’s position had held opinions incompatible with the need to ensure the integrity of the democratic process, and to declare that person ineligible to stand for election. The applicant has not disproved the validity of those appearances before the domestic courts; nor has she done so in the context of the instant proceedings.\n\n125.  It should also be recalled that the Convention does not exclude a situation where the scope and conditions of a restrictive measure may be determined in detail by the legislature, leaving the courts of ordinary jurisdiction only with the task of verifying whether a particular individual belongs to the category or group covered by the statutory measure in issue. This is particularly so in matters relating to Article 3 of Protocol No. 1. The Court’s task is essentially to evaluate whether the measure defined by Parliament is proportionate from the standpoint of this provision, and not to find fault with the measure simply on the ground that the domestic courts were not empowered to “fully individualise” the application of the measure in the light of an individual’s specific situation and circumstances (see paragraphs 112-15 above).\n\n126.  It is to be observed in this respect that section 5(6) of the 1995 Act is worded in relatively narrow terms. The very fact that the restriction relates only to those having “actively participated” in CPL activities at the material time confirms that the legislature clearly distinguished between the various forms of involvement in the party of its former members, as correctly pointed out in the Constitutional Court’s decision of 30 August 2000.\n\n127.  Further, the Act conferred on individuals affected by the provisions of section 5(6) the right to have determined by a court the issue of whether they belonged to the category defined by the legislature, that is to say whether they could be deemed to have been “active participants”. It is clear that this was not an illusory right (see paragraph 45 above). The applicant does not allege that the proceedings in her case were not adversarial. The Court also recalls that it has accepted the domestic courts’ findings that the applicant was more than a formal member of the CPL, that she had participated in the party’s activities after the critical date of 13 January 1991, and that the CPL itself had taken an active role in the events of 1991, including the abortive coup (see paragraphs 23 and 37-44 above). The procedures applied in the applicant’s case, or indeed the conclusions reached by the domestic courts in applying the relevant domestic legislation, could not be considered arbitrary (see, by contrast, the Podkolzina and Melnychenko cases referred to in paragraphs 107-08 above).\n\n128.  In view of the above considerations, the Court considers that the impugned legislation was clear and precise as to the definition of the category of persons affected by it, and it was also sufficiently flexible to allow the domestic courts to examine whether or not a particular person belonged to that category. In the present case, a sufficient degree of individualisation as required by Article 3 of Protocol No. 1 was thus effected by the Latvian parliament in adopting section 5(6) of the 1995 Act, and thereafter by the domestic courts in establishing that the impugned statutory measure applied to the applicant. There was no obligation under Article 3 of Protocol No. 1 for the Latvian parliament to delegate more extensive jurisdiction to the Latvian courts to “fully individualise” the applicant’s situation so as to enable them to establish as a fact whether or not she had done anything which would justify holding her personally responsible for the CPL’s activities at the material time in 1991, or to reassess the actual danger to the democratic process which might have arisen by allowing her to run for election in view of her past or present conduct (see, by way of contrast, paragraph 75 above).\n\n129.  Furthermore, it is not of central importance, for the purpose of justifying the applicant’s inability to run for the national parliament, that she was never prosecuted for a criminal offence and was not one of the fifteen members of parliament who were stripped of their seats (see paragraphs 29 and 75 above). On the contrary, by choosing to bring a criminal prosecution only against the two former leaders of the CPL (see paragraph 32 above) and imposing more lenient restrictions on the political rights of other CPL activists such as the applicant, the Latvian authorities demonstrated a certain flexibility towards the latter group of persons.\n\n130.  Moreover, the Court considers irrelevant the question whether the CPL should be regarded as a legal or an illegal organisation during the period after 13 January 1991, given that the subversive nature of its activities was obvious at least from that date (see paragraphs 96, 97 and 120 above). It is clear that the applicant chose to support the CPL’s anti-democratic stance, and her silence in the face of the events at the material time was just as telling as any overt action in support of the CPL’s activities (see paragraphs 123-24 above).\n\n131.  Finally, the fact that the impugned statutory measure was not introduced by Parliament immediately after the restoration of Latvian independence does not appear in this case to be crucial, any more than it was in Rekvényi (cited above), where the provision excluding police officers from political activities became effective almost four years after Hungary’s transition to a democratic system. It is not surprising that a newly established democratic legislature should need time for reflection in a period of political turmoil to enable it to consider what measures were required to sustain its achievements. This is all the more so in the case of Latvia, where troops of a foreign country, , remained until 1994 (see Slivenko v. Latvia [GC], no. 48321/99, ECHR 2003-X). Furthermore, the fact that the Latvian parliament enacted the statutory measure only in 1995 cannot be equated with the much more far-reaching restriction of personal rights barring former KGB officers in Lithuania from access to various spheres of employment in the private sector, which were introduced almost a decade after the re-establishment of Lithuanian independence, and which were considered, partly for this reason, disproportionate from the point of view of the Convention (see Sidabras and Džiautas, cited above, ibid.). It cannot therefore be concluded that the fact of Latvia having introduced the measure only in 1995 showed that the State itself did not deem such a restriction to be necessary to protect the democratic process in the country.\n\n4.  The Court’s observations in conclusion\n\n132.  The Latvian authorities’ view that even today the applicant’s former position in the CPL, coupled with her stance during the events of 1991 (see, in particular, paragraphs 123-24 above), still warrant her exclusion from standing as a candidate to the national parliament, can be considered to be in line with the requirements of Article 3 of Protocol No. 1. The impugned statutory restriction as applied to the applicant has not been found to be arbitrary or disproportionate. The applicant’s current or recent conduct is not a material consideration, given that the statutory restriction in question relates only to her political stance during the crucial period of Latvia’s struggle for “democracy through independence” in 1991.\n\n133.  While such a measure may scarcely be considered acceptable in the context of one political system, for example in a country which has an established framework of democratic institutions going back many decades or centuries, it may nonetheless be considered acceptable in Latvia in view of the historico-political context which led to its adoption and given the threat to the new democratic order posed by the resurgence of ideas which, if allowed to gain ground, might appear capable of restoring the former regime.\n\n134.  The Court therefore accepts in the present case that the national authorities of Latvia, both legislative and judicial, are better placed to assess the difficulties faced in establishing and safeguarding the democratic order. Those authorities should therefore be left sufficient latitude to assess the needs of their society in building confidence in the new democratic institutions, including the national parliament, and to answer the question whether the impugned measure is still needed for these purposes, provided that the Court has found nothing arbitrary or disproportionate in such an assessment. In this respect, the Court also attaches weight to the fact that the Latvian parliament has periodically reviewed section 5(6) of the 1995 Act, most recently in 2004. Even more importantly, the Constitutional Court carefully examined, in its decision of 30 August 2000, the historical and political circumstances which gave rise to the enactment of the law in Latvia, finding the restriction to be neither arbitrary nor disproportionate at that point in time, that is, nine years after the events in question (see paragraphs 61-63 above).\n\n135.  It is to be noted that the Constitutional Court observed in its decision of 30 August 2000 that the Latvian parliament should establish a time-limit on the restriction. In the light of this warning, even if today Latvia cannot be considered to have overstepped its wide margin of appreciation under Article 3 of Protocol No. 1, it is nevertheless the case that the Latvian parliament must keep the statutory restriction under constant review, with a view to bringing it to an early end. Such a conclusion seems all the more justified in view of the greater stability which  now enjoys, inter alia, by reason of its full European integration (see paragraph 51 above). Hence, the failure by the Latvian legislature to take active steps in this connection may result in a different finding by the Court (see, mutatis mutandis, Sheffield and Horsham v. the United Kingdom, 30 July 1998, § 60, Reports 1998-V; see also the follow-up judgment to that case, Christine Goodwin v. the United Kingdom [GC], no. 28957/95, §§ 7193, ECHR 2002-VI).\n\n136.  The Court concludes that there has been no violation of Article 3 of Protocol No. 1.\n\nIII.  ALLEGED VIOLATION OF ARTICLES 10 AND 11 OF THE CONVENTION\n\n137.  The applicant complained that her disqualification from standing for election to the national parliament as well as municipal councils amounted to a violation of Articles 10 and 11 of the Convention. The relevant parts of these Articles provide:\n\nArticle 10\n\n“1.  Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...\n\n2.  The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, ... for the protection of the reputation or rights of others ...”\n\nArticle 11\n\n“1.  Everyone has the right to freedom of peaceful assembly and to freedom of association ...\n\n2.  No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, ... or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”\n\nA.  The Chamber’s judgment\n\n138.  The Chamber considered that there had been a disproportionate interference with the applicant’s rights, in breach of Article 11 of the Convention. The Chamber also considered that it was not required to rule on the applicant’s complaints under Article 10.\n\nB.  The parties’ submissions\n\n1.  The applicant\n\n139.  The applicant acknowledged that the interference in question was “prescribed by law” within the meaning of Articles 10 § 2 and 11 § 2 of the Convention. However, she considered that the Government’s submissions concerning the legitimacy of the aims pursued by the impugned measure and their respect for the principle of proportionality were unsubstantiated. In particular, neither the Rekvényi judgment cited above, nor Article 17 of the Convention supported the Government’s position in the present case.\n\n2.  The Government\n\n140.  The Government maintained that the interference complied with the requirements of the second paragraphs of Articles 10 and 11 and that the impugned measure was “necessary in a democratic society”.\n\nC.  The Court’s assessment\n\n141.  The Court considers in the circumstances of the case that Article 3 of Protocol No. 1 is the lex specialis, and no separate examination of the applicant’s complaints is warranted under Article 11. Nor can the Court find any argument that would require a separate examination of the applicant’s complaints about her inability to stand for election from the point of view of Article 10.\n\nFOR THESE REASONS, THE COURT\n\n1.  Dismisses, unanimously, the Government’s preliminary objection;\n\n2.  Holds, by thirteen votes to four, that there has been no violation of Article 3 of Protocol No. 1;\n\n3.  Holds, by thirteen votes to four, that it is not necessary to examine separately the applicant’s complaints under Article 11 of the Convention;\n\n4.  Holds, unanimously, that it is not necessary to examine separately the applicant’s complaints under Article 10 of the Convention.\n\nDone in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 16 March 2006.\n\nIn accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:\n\n(a)  partly dissenting opinion of Judge Wildhaber;\n\n(b)  partly dissenting opinion of Judges Spielmann and Jaeger;\n\n(c)  dissenting opinion of Judge Rozakis;\n\n(d)  dissenting opinion of Judge Zupančič;\n\n(e)  joint dissenting opinion of Judges Mijović and Gyulumyan.\n\nI agree with the majority that this case concerns a complaint by the applicant under Article 3 of Protocol No. 1 about her disqualification from standing for election to the national parliament. If I dissented from the finding that it was not necessary to examine separately the applicant’s complaint under Article 11 of the Convention, it was merely to emphasise that the applicant is not and has not been prevented from joining a party of her choice. Nor do the facts underlying her complaint that she was prevented from standing as a candidate in municipal elections give rise to an interference under Article 11.\n\n1.  We do not agree with the majority’s decision that no separate examination of the applicant’s complaints was warranted under Article 11 of the Convention (see paragraph 141 and point 3 of the operative provisions).\n\nWe consider that the applicant’s disqualification from standing for election to Parliament and to municipal councils as a result of her active participation in the CPL, a ban maintained more than a decade after the events of which that party was accused, ought to have been examined by the Court from the perspective of its compatibility with Article 11 of the Convention.\n\n2.  The applicant’s leading position within the CPL and her conduct during the events of 1991 were used to justify the refusal to allow her to stand in either parliamentary or local elections. Those elements, namely the applicant’s membership of and leading position within the CPL and her conduct during a crucial period of Latvia’s struggle for “democracy through independence” in 1991, are thus at the core of the restriction that the Court has found to be compatible with Article 3 of Protocol No. 1.\n\nAn examination of the compatibility of that disqualification was required not only with regard to Article 3 of Protocol No. 1, but also with regard to Article 11.\n\n3.  It should be noted that when the crucial events occurred, namely when the attempted coup took place on 13 January 1991 with the CPL’s backing, that party was not prohibited. It was only on 23 August 1991 that the CPL was declared unconstitutional by a decision of the Supreme Council, and, on the following day, that the party’s activities were suspended and the Minister of Justice was instructed “to investigate the unlawful activities of the CPL and to put forward ... a motion on the possibility of authorising its continued operations”. The Supreme Council did not order the party’s dissolution until 10 September 1991.\n\n4.  Admittedly, the applicant’s disqualification was not based solely on the ground of her membership of the CPL. However, in the instant case, such membership was nevertheless one of the sine qua non conditions for the impugned restriction.\n\nThus, given that her membership of the CPL and her leading position within that party were among the elements used to justify the disqualification, we consider that the scope of the protection (Schutzbereich) offered by Article 11 has been brought into play.\n\n5.  In this context, it is incumbent on us to emphasise that the right guaranteed under Article 11 of the Convention involves not only the right to join a political party but also restricts the possibilities for penalising past party membership.\n\n6.  In addition, the exercise of the rights guaranteed by Article 11 § 1 of the Convention can only be construed within the limits of the second paragraph of that provision, which does not, however, leave States the same margin of appreciation as that granted by the Court in respect of Article 3 of Protocol No. 1 and which is described in the judgment as “wide” (see paragraphs 103, 115 (c), 121 and 135).\n\nThe Court has noted this fundamental distinction more specifically in paragraph 115 (a) of the judgment, where it states:\n\n7.  Finally, the parties agreed before the Court that a separate issue arose under this Article. The respondent Government alleged that the interference with the applicant’s rights under Article 11 was compatible with the requirements of the second paragraph of that provision and that the impugned measure was “necessary in a democratic society”. The applicant contested the legitimacy of the aims pursued by the impugned measure, and considered that it was disproportionate.\n\n8.  In consequence, we consider that the Court ought to have made a separate finding on this important question.\n\nWhile I concur with a number of the majority’s considerations in this case – including their finding that no separate issue arises in so far as Articles 10 and 11 are concerned – I am unable to agree with some of their conclusions which, in my view, are of central importance in this case, and justify my departure from the majority’s decision to find that there had been no violation of Article 3 of Protocol No. 1 in the circumstances. I would also like, from the outset, to point out that I can in many respects readily follow the thread of thinking of Judge Zupančič as reflected in his own dissent; still, his approach is basically a principled one and I would like to concentrate here primarily on certain considerations of a more, I would say, technical nature than his own broadly theoretical approach.\n\nLet me start by what I consider an indispensable preliminary clarification, which may be justified by the somewhat dubious position of the majority with regard to the nature of the rights under Article 3 of Protocol No. 1. In paragraph 115 of the judgment the Court considers that “Article 3 ... is phrased in collective and general terms, although it has been interpreted by the Court as also implying specific individual rights”. This sentence, although it ultimately does not have a radical impact on the Court’s further pronouncements (the sentence which follows in the same paragraph shows that this finding simply affects the standards to be applied for establishing compliance with Article 3, and does not constitute a complete negation of the Article’s substance as containing an individual right), is an obscure generalisation which contradicts not only the drafting history of the Protocol and the previous case-law of the Court, but also the letter of the present judgment itself, paragraph 102 of which states in less dubious, but still open-ended, terms that “the Court has established that this provision also implies individual rights, including the right to vote and to stand for election”.\n\nI consider that, regardless of whether Article 3 of Protocol No. 1 is “phrased in collective and general terms”, it is clear that this Article does not simply imply an individual right but actually provides for one. The drafters’ aim was to enrich the Convention with a political right not differing from the other individual human rights contained in the original Convention. The Convention lays down, without exception, individual rights whose bearers are indiscriminately entitled to invoke them in their relations vis-à-vis the States Parties and the Convention institutions. Hence, regardless of other possible functions, Article 3 does confer a specific individual right, which does not differ qualitatively from any other right provided for by the Convention. This conclusion is in agreement with the locus classicus of our case-law, the judgment in Mathieu-Mohin and Clerfayt v. Belgium (2 March 1987, §§ 49-50, Series A no. 113), in which the Court stated, inter alia:\n\nComing now to the findings of the majority which are pertinent to the concrete case before us, my main observation concerns the nature of a parliamentarian’s functions in a democratic society. The Court correctly points out, in paragraph 117 of the judgment, that “the criterion of political loyalty which may be applied to public servants is of little, if any relevance, to the circumstances of the instant case, which deals with the very different matter of the eligibility of individuals to stand for Parliament. The criterion of ‘political neutrality’ cannot be applied to members of parliament in the same way as it pertains to other State officials, given that the former cannot be ‘politically neutral’ by definition.”\n\nIndeed, the role of a parliamentarian is totally different from all the other roles played by those involved in public matters, including the members of the executive when they exercise their administrative function. In a representative democracy parliamentarians represent, by definition, the opinions and the positions of their electorate – that is, those who have voted for them. They replace them in expressing opinions and positions within and outside Parliament, and, theoretically, act instead of them in a system which, by definition, is not a direct democracy. It is obvious that in this system of representative democracy not everyone can claim to validly represent others. There are at least two safeguards which secure the direct accountability of parliamentarians in faithfully expressing their electorate’s broad wishes: firstly, the safety valve of the democratic election (candidates are elected on the basis of their personality, ideas and opinions as revealed to the public before the elections), and, secondly, the safety valve of post-electoral scrutiny: if an elected representative does not stand up to the expectations of his or her electorate, he or she will probably lose their confidence, and, in the end, his or her seat in Parliament.\n\nThe election of parliamentarians to express their electorate’s expectations lies at the core of a representative democracy, whatever their opinions are, and however displeasing these latter are to other strata of society. In a system of sound democratic governance the criterion of eligibility cannot be determined by whether a politician expresses ideas which seem to be acceptable to the mainstream of the political spectrum, or loyal to the established ideologies of the State and society, but by the real representativeness of his or her ideas vis-à-vis even a very small segment of society. Accordingly, if a politician is prevented from representing part of society’s ideas, it is not only he or she who suffers; it is also the electorate which suffers, it is democracy which suffers.\n\nFor these reasons prohibitions on eligibility to stand for election should be very exceptional and very carefully circumscribed. One can, of course, understand that a State may introduce eligibility conditions of a technical nature, such as those referred to in the Convention’s jurisprudence and considered in some cases already examined by the Strasbourg institutions (see paragraphs 103 et seq. of the judgment). One can also understand that in certain very exceptional circumstances, the very protection of the primary value of democracy may call for a prohibition on the exercise of the rights contained in Article 3 of Protocol No. 1. But in such circumstances, the State cannot of course escape the scrutiny of the Convention institutions, which should carefully delineate the limits of the State’s liberty to restrain the passive right of a politician or a political party to be elected.\n\nIn this respect, the judgment of this Court in the case of Refah Partisi (the Welfare Party) and Others v. Turkey ([GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, ECHR 2003-II) is extremely illustrative of the way in which the Strasbourg institution has dealt with the very difficult and delicate matter of the prohibition of a political party from participating in national elections. Indeed, in Refah Partisi we were confronted with a situation in which a political party propagating undemocratic ideas directly threatening the fragile political infrastructure of Turkey had had a strong possibility of seizing power by using the democratic electoral procedures provided by the system. The danger was “real and present”, to use the famous dictum of the United States Supreme Court. And our Court correctly considered that, in such exceptional circumstances, a “State cannot be required to wait, before intervening, until a political party has seized power and begun to take concrete steps to implement a policy incompatible with the standards of the Convention and democracy, even though the danger of that policy for democracy is sufficiently established and imminent” (ibid., § 102).\n\nThe question is whether we are confronted in the present case with a situation bearing (even remote) similarities with that in Refah Partisi, which would justify treating the case in the same way. My answer is categorically negative, for the following reasons.\n\nFirst, the applicant was not allowed to take part in the elections, not because of the imminent threat that she posed to the democratic governance of Latvia at the time when the 1995 Act came into force, but because of her past attitude, and mainly her participation in the 1991 events. Leaving aside the argument of the belated emergence of the 1995 Act, and the gap between the events and its enactment, there was no indication in 1995 that the subversive tendencies of her political milieu which had been present in 1991 were still the same in 1995, or that she herself in 1995 would propagate ideas similar to the ones which had been at the forefront of the 1991 events.\n\nBut even if we accept – and this is my second observation – that in the circumstances of Latvia’s transition to democracy and its efforts to be disentangled from its recent past, such a harsh measure could have been justified during the first difficult years of adapting to the new regime and for the sake of democratic consolidation, the restrictions have nevertheless not been abolished to date, and this despite the fact that in the meantime Latvia has become a member State of NATO and, more importantly, of the European Union. We are now eleven years away from the date of the Act prohibiting the applicant from standing for election, fifteen years from the events which led to the belated promulgation of the Act, five years from the Constitutional Court’s decision, and almost two years from the election of the applicant to the European Parliament.\n\nLast, but not least, the situation of a single candidate for a seat in Parliament differs radically from the situation of a whole political party aspiring to become the government of a country. It is undoubtedly clear from the facts of the case that the applicant was not only an isolated candidate representing ideas shared by only part of the pro-Russian electorate, but also that she belonged to an ideological current which was, in any event, a minority strand within the political spectrum of Latvia. In these circumstances, it is difficult to contend that the election of the applicant to the Latvian parliament would have had adverse effects on the democratic stability of the country.\n\nFor all these reasons, I consider that the applicant – together with, implicitly, her followers – was unduly deprived of her rights under Article 3 of Protocol No. 1, and that, consequently, there has been a violation of this Article.\n\nI regret that I cannot join the majority opinion in this case. Clearly, the majority decision hinges on accurate assessment of the real threat posed by the applicant’s political activities at the material time. Yet these activities, even at the time critical for Latvian independence, were not subversive or even secretive. If at any time Mrs Ždanoka truly represented a danger to the emerging Latvian sovereignty, this was a corollary of her real prospects of being elected.\n\nConsequently, the issue in this as in all similar cases concerns the relationship between democracy and the rule of law.\n\nHowever, from a historical viewpoint, when the Latvian constitutional order was still in statu nascendi, one could not have simply said – not even in terms of the Molotov-Ribbentrop Pact and international law! – that Mrs Ždanoka’s and others’ concurrent political activities opposing Latvian independence, the disintegration of the Soviet Union and so on were per se politically illegitimate or even illegal. Even international law does not have the power to wipe away a historical period of some fifty years. Consequently, if the applicant’s activity were to be a priori declared illegitimate or illegal, much of what had been happening in the Soviet Union ought to have been a posteriori declared illegitimate or illegal. Ex factis ius oritur; history may have the power to make that judgment, but not the law. The law’s attention span is limited by the established State power. History, on the other hand, is written by the victor; Mrs Ždanoka found herself on the wrong side of that history.\n\nThe majority’s opinion thus derives from a rather narrow time perspective. Since timing is at the heart of this decision, I beg to differ.\n\nŽdanoka v.  is a case in which the historical and ideological significance of transition from Soviet communism as a failed socio-political experiment back to capitalism, democracy and the rule of law is inescapably the central issue. I say “inescapably”, because the case concerns the political rights of the sizeable Russian-speaking minority.\n\nTo the Latvians the continuation of communist rule was synonymous with the continuation of Russian occupation. To the Russian-speaking minority, representing some 30% of the population, the imminent self-determination of Latvians foreshadowed the certain loss of privileged status and a possibility of discrimination. To the Latvian majority, as was made clear in the case of Slivenko v. Latvia ([GC], no. 48321/99, ECHR 2003-X), the granting of particular human rights to the large Russian-speaking minority, a consequence of the fifty years of Russian occupation, was and is absurd. It smacks of the inverse logic of Article 17 of the Convention. Suddenly, the former occupiers whose very existence on Latvian territory had originated in illegal occupation, claimed to be victims of human rights violations. Had the very rule of law and democracy for which the Latvians had fought and which for decades had been denied them by the communist rulers of the Soviet Union now become the weapon to be turned against the Latvians themselves? The historical paradox they faced is an existentially absurd one, reflecting an internal clivage to which there can be no immediate solution.\n\nNevertheless, the travesty of former oppressors subsequently appealing to and profiting from democracy and the rule of law is not specific to Latvia or even only to all three Baltic countries. Specific cases reaching this Court make this evident. In central and eastern Europe we now find many aging individuals who have blood on their hands. Some of them have become vociferous proponents of human rights. If anybody should propose retribution towards, for example, all those who in the not so distant past avidly collaborated with the secret police, they raise their voices with the accustomed arrogance derived from their past and established authoritarian position. They barefacedly claim the very human rights which they spent their life denying to others, nay, often cold-bloodedly violating them in the most brutal fashion.\n\nThis Court must take a clear position on this matter.\n\nThe logic underlying Article 17 is clear. The legal weapon of claiming human rights must not be perverted. It must not be used to serve those who would in turn violate human rights themselves. The genius of Karl Popper formulated this clearly. He maintained that democracy is for everybody except for those who would destroy it. We are to be tolerant of everything except acts of intolerance.\n\nTwo questions derive from this general principle. Firstly, are those who were intolerant in the past subsequently entitled to tolerance? This is a question of Biblical proportions. Should the talionic tooth-for-tooth retributive logic of the Old Testament apply, or should human rights be universal not just in space but also in time? In turn, does this mean turning the other cheek to those who slapped us?\n\nSecondly, what kind of (simultaneous) intolerance should be directed at those who are themselves intolerant? Does the Constitutional Court of Austria, for example, have the right and indeed the duty to proscribe the activities of Mr Haider’s proto-Nazi party that feeds on “Urangst” and ethnic intolerance against Slovenians in Carinthia? How clear and present should be the danger established by the famous Brandenburg v. Ohio test recently adopted by Turkish domestic legislation?\n\nThese used to be “political questions”. Thanks to the colossal progress of constitutional law in the second half of the twentieth century it is now clear that they go to the essence of the rule of law.\n\nIn international law, the Nuremberg trial is a historic representation of how the rule of law responds to barbarity, of how the power of legal logic ex post facto prevails over the Hobbesian logic of power. In Streletz, Kessler and Krenz (cited above) it became clear, on narrower grounds, that the systemic practice of impunity, despite the purely formal existence of precise punitive norms to the contrary, cannot afterwards be grounds for the affirmative defence based on an excusable mistake of law. Once the rule of law is re-established, the positive norm, even if previously dormant, will apply. Ever since 1764 when Cesare Beccaria wrote his decisive “Dei delitti e delle pene” the retrospective validity of the punitive rule of law has been an integral part of the principle of legality. Later it was reformulated by Anselm Feuerbach into the famous formula “nullum crimen, nulla poena sine lege praevia”. The doctrine is now reiterated in the first paragraph of Article 7 of the European Convention on Human Rights. Thus, the temporal scope of the rule of law – at least in its negative, punitive aspect – is subject to strict restraints. Streletz, Kessler and Krenz, however, also proves that this doctrine cannot be reduced, as it mostly is in our own case-law, to the simple notion of advance notice. It proves that the punitive norm, even if dormant and subject to selective but systemic denial, that is, the generalised practice of impunity, and thus liable to make the actors reasonably assume it will not be applied, is, years afterwards, still in positive existence. At least in so far as the circles of law and morality overlap, in other words, the selective non-application of a penal norm (the systemic practice of selective impunity) is no bar to subsequent prosecution. I maintain here what I said in my concurring opinion in Streletz, Kessler and Krenz – that it is not a case of the retroactive application of criminal law but of an inexcusable mistake of law.\n\nIn the present case, however, we do have to deal with the positive element of retrospectivity. Here we are concerned with positive rights (the right to be elected) and not with negative-punitive norms. Restrictions as to the temporal scope of the application of the norm, such as derive from the principle of legality, do not apply. For example, the extensive interpretation of the presumption of innocence precludes discrimination against former collaborators (lustration) unless, of course, their criminal liability has been finally established. It is relevant that Mrs Ždanoka has never been convicted of anything.\n\nFurthermore, people cannot be prevented from actively participating in the democratic process simply because they are likely to be elected. The alleged political subversiveness of Mrs Ždanoka does not derive from any illegal activity on her part established by a Latvian criminal court. Moreover, she would be politically irrelevant were it not for the real odds, past, present or future, that she would be elected. By whom? By members of the Russian-speaking minority? When she was permitted to stand (successfully) for election to the European Parliament this was tolerated because her political impact in the European Parliament is diluted and does not threaten the autonomist rule in Latvia. The fact, incidentally, that she was elected proves the real odds mentioned above.\n\nIn other words, I do not believe for a moment that the Latvian authorities would have prevented Mrs Ždanoka from standing in national elections in Latvia were it only for her communist past. Neither is the true reason her present unwillingness to recant and repudiate her communist views. The domestic Latvian point of view concerns no more (and no less) than Mrs Ždanoka’s future political dangerousness. This has to do with the demographic fact that thirty per cent of the existing Latvian population speaks Russian. Presumably, this puts in jeopardy the pro-autonomy rule of the autochthonous majority in whose name the separation of Latvia (and the other two Baltic States) from the Soviet Union was carried out in the first place.\n\nNow that we have reached the stage where we can, without legalistic smokescreens, call a spade a spade, we can finally address the real question. The large Russian-speaking minority in Latvia is a demographic by-product of the long-term illegal occupation by the Soviet Union. Does the historical fact that the occupation was illegal – and it is probably not an accident that the majority opinion emphasises the early illegality of the Molotov-Ribbentrop pact – imply that the residence of the Russian-speaking population in  is itself illegal?\n\nIn different terms the same issue arose in Slivenko (cited above). The critical distinction when an individual’s human right is at stake is precisely between an individual’s personal situation on the one hand, and the larger historical and collective situation of the group to which he or she happens to belong on the other. In principle, human rights are strictly individual rights. Historical and collective aspects of the situation are beyond the scope of our jurisdiction.\n\nYet the majority opinion, like the domestic decisions concerning Mrs Ždanoka, rightly treats her situation as representative not merely of her private predicament. Obviously, the right to stand for election – for this reason considered in a separate Protocol – affects the individual (Mrs Ždanoka) and the collectivity (the Russian-speaking minority) he or she has the ambition to represent politically. The majority opinion, however, implicitly amalgamates the two aspects. The consequence of this mingling of issues is explicit endorsement of the denial of the right to stand for election. The reason for this denial was that Mrs Ždanoka had a real chance of being elected. So much for democracy.\n\nAdmittedly, this result is a consequence of the narrow scope of our jurisdiction. Yet, are we here to correct the historical wrongs? Are we to say that 30% of the Latvian population is there illegally? Even if these people were regarded as aliens, their collective expulsion would be explicitly forbidden by Article 4 of Protocol No. 4. The prohibition of the collective expulsion of aliens indicates a clear legal answer to this question, if indeed there is a need for one. This answer is tolerance in the passage of time.\n\nThe dilemma is not specific to the Baltic States. In fact the whole of European history, not to speak of its horrific colonial cruelties, is replete with the recurrent “movement of nations” – usually by means of wars and violent takeovers. Needless to say, in terms of international law – in so far as its criteria applied at all – most of these takeovers were utterly “illegal”. It is for the historians to assess the end results of this mixing of populations, determining who in any particular case were the victors and who the vanquished.\n\nThe issue, however, has always been the preservation of national identity versus assimilation. In terms of international law, Woodrow Wilson’s formula concerning “self-determination of nations” implies, as he had been warned by his advisers at the time, a wide-ranging particularisation and ethnic intolerance.\n\nParallel to this process of particularisation, however, we have today an intense global process of universalisation. It goes under the name of “globalisation”. Some legal theorists, among them Roberto Mangabeira Unger of Harvard, even maintain that the current intense reversion to “the preservation of national identity”, or the pandemonium of nationalism, is a regressive and over-compensatory reaction not to interstate conquests but to the process of globalisation. This is happening through commercial ties and through the means of global communications that insistently and gradually obliterate residual value hierarchies, ethnic attributes, and distinctive cultural productivity. In international-law circles there is talk of legal and cultural imperialism.\n\nThe two processes (of particularisation and universalisation) run in parallel and dialectically condition one another. The process of particularisation implies, as if the breakdown into a number of pocket States in Europe were not enough, regression to ever smaller units of ethnic defensiveness.\n\nParallel to this, the inevitable universalisation (economically: “globalisation”) makes these defensive postures both more and more irrelevant but also more aggressive. As usual, this aggression is then displaced to the target that is closest and most at hand. In Nachova and Others v. Bulgaria it was the Roma people, in Blečić v. Croatia it was Serbians, in Serbia it was Albanians, in Germany and  it may be immigrant workers and their children, and so on. In many of these realms we detect the unhealthy trend from patriotism on the one hand to nationalism, chauvinism and racism on the other.\n\nThis intolerance is the European scourge. Because European history is replete with instances of aggression deriving from regressive nationalism, the European Court of Human Rights must take an unambiguous and unshakable moral stand on this predicament. Inter-ethnic tolerance is a categorical imperative of modernity. From intolerance derive too many violations of human dignity and human rights.\n\nProtocol No.12 will bring discrimination as such into play. There can be absolutely no doubt that discrimination on the basis of the suspect class of national origin is par excellence an issue of constitutional and human rights. In my opinion the future of the European Union, too, depends on such moral leadership and on the ability of united Europe to rise above the petty nationalistic prejudices that have hitherto been the cause of so many wars and of so much human suffering.\n\nHere, above all, the Court will be tested as to its wished-for historical role.\n\nIn the present case, which concerns the right to free elections, the majority of the judges have found no violation of Article 3 of Protocol No. 1. Having gone through the facts of this case, we, to our regret, were unable to follow the majority of the judges for the following reasons.\n\nIn the present case a Latvian politician was disqualified from standing for election on account of her former membership of the Communist Party of Latvia (CPL), which during the Soviet period was a regional branch of the Communist Party of the Soviet Union.\n\nIn March 1990, as a member of that political party, Tatjana Ždanoka went on to become a member of the Supreme Council of the Soviet Socialist Republic of Latvia. After the restoration of Latvia’s independence, on 23 August 1991 the CPL was declared unconstitutional, with a stipulation that persons who had participated in the activities of the CPL after 13 January 1991 would be ineligible to stand for political office.\n\nBy a decision of the Central Electoral Commission, the applicant was ruled ineligible to stand as a candidate in the parliamentary elections. Her exclusion was based on her former membership of the Communist Party of Latvia.\n\nShe complained that her right to stand for election had been infringed as a result of her disqualification.\n\nAlthough we are aware that this case concerns very sensitive circumstances, we consider that it was not the Court’s task to take sides in the historical and political controversies, but rather to examine the legality of the applicant’s ineligibility in the context of punitive measures – in other words, to assess whether the lack of a fixed duration for the applicant’s ineligibility was appropriate in view of the (temporary) nature of punitive measures.\n\nThe Court reiterated that States Parties to the Convention had a wide margin of appreciation in their internal legal orders in subjecting the right to vote and to stand for election to prescribed conditions, and that is something we completely agree with.\n\nWe have no difficulty in accepting the legitimacy of a punitive measure, since we cannot exclude the possibility that the restriction in issue could have been justified and proportionate during the first few years after the restoration of Latvia’s independence. It is commonly accepted that certain restrictions may be necessary in newly established and vulnerable democratic regimes (just as the requirement of proportionality is), and this approach has been developed by the Court in addressing a number of clearly defined questions. Additionally, it has been established that the law of each and every State Party to the Convention should be sufficiently clear to allow individuals to foresee such restrictions and to be aware of the way in which their rights will be limited (see Khan v. the United Kingdom, no. 35394/97, ECHR 2000-V).\n\nOn the other hand, we strongly believe that such restrictive measures should be temporary in order to be proportionate. In this case the restriction imposed on the applicant seems permanent in that it is of indefinite duration and will continue until legislation putting an end to it is adopted. More than ten years after its initial concerns, we cannot accept that the Latvian parliament still believes that former CPL members are a threat to democracy. And if this is so, if former members of the CPL were and still are a real threat and danger to democracy, why has the parliament failed to enact legislation providing for their permanent ineligibility?\n\nWe consider that the Latvian parliament should have decided to impose a time-limit on these restrictions since such limitations on the right to free elections, as we have already mentioned, should exist only for a specific period, a period of vulnerability for a newly established regime. On that basis, we believe that the ineligibility procedure introduced as a result of the Constitutional Court’s interpretation was not sufficient, since it did not allow the courts to assess whether a person represented a real threat and danger to democracy. On the other hand, the very same Constitutional Court in its judgment of 30 August 2000 urged the legislature to periodically re-examine the need to maintain the disputed measure.\n\nFurthermore, the applicant had never been convicted of a criminal offence, she was not one of the fifteen members of parliament who were removed from their seats and there was no evidence that she herself had committed any acts aimed at undermining the new regime.\n\nHaving regard to all the above, we strongly believe that the permanent restrictions on standing for election to the Latvian parliament imposed on the applicant on account of her former membership of the Communist Party of Latvia violated her right to free elections.\n\nHaving regard to all the above, we strongly believe that the permanent restrictions on standing for election to the Latvian parliament imposed on the applicant on account of her former membership of the Communist Party of Latvia violated her right to free elections.","title":""}
{"_id":"passage_383","text":"PROCEDURE\n\n1.  The case originated in an application (no. 2052/08) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Ms Natalya Konstantinovna Kokoshkina (“the applicant”), on 24 December 2007.\n\n2.  The applicant was represented by Mr F. Bagryanskiy and Mr M. Ovchinnikov, lawyers practising in . The Russian Government (“the Government”) were initially represented by Ms V. Milinchuk, former Representative of the  at the European Court of Human Rights, and subsequently by their Representative, Mr G. Matyushkin.\n\n3.  The applicant alleged that she had been detained in inhuman conditions and that her detention had been excessively long.\n\n4.  On 7 March 2008 the President of the First Section decided to communicate the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). The President made a decision on priority treatment of the application (Rule 41 of the Rules of Court).\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n5.  The applicant was born in 1980 and lives in the Moscow Region.\n\nA.  Criminal proceedings against the applicant\n\n6.  On 3 October 2006 the applicant was arrested on suspicion of drug trafficking. On an unspecified date charges were brought against her and several other persons.\n\n7.  On 5 October 2006 the Podolsk Town Court of the Moscow Region remanded her in custody. It referred to the gravity of the charge and found that she might abscond, reoffend, threaten witnesses, destroy evidence or impede the investigation in some other way.\n\n8.  The applicant appealed. She submitted that she had no intention of absconding or interfering with the investigation and asked the court to release her on bail. She had a permanent place of residence and employment, positive references and a clean criminal record.\n\n9.  On 31 October 2006 the  upheld the detention order on appeal, finding that it had been lawful and justified. There was a well-founded suspicion of the applicant’s involvement in drug trafficking.\n\n10.  On 30 November 2006 the  extended the applicant’s detention until 3 February 2007, referring to the gravity of the charge, the risk of absconding, reoffending or interfering with the proceedings, and the need for a further investigation. In particular, it noted that it was necessary to listen to 126 recordings of the applicant’s phone conversations, to perform an expert analysis of those recordings, to carry out fingerprint, physico-chemical and psychiatric expert examinations, to make these expert opinions available to the defendants and counsel and to draft a bill of indictment.\n\n11.  The applicant appealed. She repeated her arguments advanced in the previous grounds of appeal and further claimed that the  had not explained how she could interfere with the expert examinations or obstruct the listening to the recordings. She also submitted that her brother was terminally ill with cancer.\n\n12.  On 19 December 2006 the  upheld the extension order on appeal, finding that it had been lawful and justified.\n\n13.  On 1 February 2007 the Podolsk Town Court extended the applicant’s detention until 3 April 2007, referring to the gravity of the charge, “her active role in the commission of the crime”, her being the leader of an organised criminal group, her refusal to cooperate with the investigator and to name her accomplices, the risk of absconding, reoffending or interfering with the proceedings, and the need for a further investigation. In particular, it noted that it was necessary to listen to 123 recordings of the applicant’s phone conversations, to perform an expert analysis of those recordings, to identify other members of the organised criminal group, to find and question witnesses who might have information about the group’s activities, to verify whether the applicant was involved in the commission of other crimes related to drug trafficking, to bring final charges against her and her seven accomplices and to perform other investigative measures.\n\n14.  On 13 February 2007 the  upheld the extension order on appeal.\n\n15.  On an unspecified date the investigator applied for a further extension of the applicant’s detention, submitting that the investigation had not been completed. It was necessary to listen to fifty-one recordings of the applicant’s phone conversations, to perform an expert analysis of those recordings and make the results available to the defendants and counsel, to find and question witnesses who might have information about the group’s activities, to find one of the accomplices who had absconded, to find out whether the defendants were involved in the commission of other crimes related to drug trafficking, to bring final charges against them and to perform other investigative measures.\n\n16.  On 2 April 2007 the  extended the applicant’s detention until 3 June 2007, referring to the gravity of the charge, the need for a further investigation, and the risk that she might abscond, reoffend or interfere with the investigation. On 11 April 2007 the  upheld the extension order on appeal.\n\n17.  On an unspecified date the investigator applied for a further extension of the applicant’s detention, submitting that the investigation was still pending. In particular, an expert analysis of the recordings of the applicant’s telephone conversations had not been completed and some of the applicant’s accomplices had not been charged yet. The applicant refused to cooperate with the investigation and there was a risk that she might abscond, reoffend or put pressure on witnesses if released.\n\n18.  On 31 May 2007 the  extended the applicant’s detention until 3 October 2007. It noted that the applicant was charged with a particularly serious offence and that further investigation was necessary. The purpose of her detention was to ensure that the investigation was completed effectively and in good time and to eliminate any risk of her absconding, reoffending or hampering the proceedings.\n\n19.  In her appeal submissions the applicant complained that the court’s conclusions had not been based on relevant facts. She had a permanent place of residence and employment, positive references and a clean criminal record. There was no evidence of any attempts to interfere with the investigation, either on her part or on the part of her co-defendants who were not in custody.\n\n20.  On 13 June 2007 the  upheld the extension order on appeal.\n\n21.  On 24 September 2007 the  extended the applicant’s detention until 3 February 2008, referring to the gravity of the charges, the need for a further investigation and the risk of her absconding or interfering with the investigation.\n\n22.  The applicant appealed. In her grounds of appeal she complained, in particular, that the length of her detention had exceeded a “reasonable time”, contrary to 5 § 3 of the Convention. She submitted that all evidence had been already collected and the investigation completed, save for certain purely administrative formalities. She further claimed that the Regional Court’s conclusion that she might abscond or interfere with the investigation had been hypothetical and had not been supported by relevant facts. The court had disregarded her arguments that she had a permanent place of residence and employment, positive references, a clean criminal record and a terminally ill brother. She also complained about inhuman conditions of her detention, in particular overcrowding, insufficient number of sleeping places and poor sanitary conditions. She asked the court to apply a more lenient preventive measure.\n\n23.  On 30 November 2007 the Supreme Court of the  upheld the extension order on appeal. It noted, in particular, that the maximum eighteen-month time-limit permitted by the domestic law had not been exceeded.\n\n24.  On 18 January 2008 the  extended the applicant’s detention until 3 April 2008. It noted that the defendants and their counsel were studying the voluminous case file and the investigator needed time to prepare the case for the committal before a court. It referred to the complexity of the case, the number of the defendants, the gravity of the charges against the applicant and her leadership of an organised criminal group. The applicant’s arguments about her good character were insufficient to warrant release. The court found that she might reoffend, abscond, or intimidate witnesses. It also rejected the applicant’s request to be released on bail of 100,000 Russian roubles (RUB, approximately 2,800 euros (EUR)), finding that there was no reason to amend the preventive measure.\n\n25.  In her appeal submissions the applicant asked to be released. She complained that the court had not given reasons for rejecting her bail offer and offered to post higher bail if the proposed amount was insufficient. She argued that the length of her detention had exceeded a “reasonable time” and that the investigating authorities had failed to display “special diligence” in the conduct of the investigation. In particular, they had procrastinated in preparing the case for remittal before a court. She further submitted that she could no longer interfere with the investigation as it had been completed, all witnesses had been questioned and material evidence collected. Finally, she again complained of overcrowding, insufficient sleeping places and poor sanitary conditions in the detention facility and submitted that the combination of those factors to which she had been exposed for many months had already resulted in a deterioration in her health.\n\n26.  On 13 March 2008 the Supreme Court upheld the detention order on appeal, finding that it had been lawful, well-reasoned and justified.\n\n27.  On 17 March 2008 the  extended the applicant’s detention until 3 July 2008. It noted that the defendants and their counsel were studying the case file and that the investigator needed time to prepare the case for committal before a court. It referred to the complexity of the case, the number of the defendants, the gravity of the charges against the applicant and her leadership of an organised criminal group. It also noted that her drug test had been positive, therefore there were reasons to believe that she might abscond, reoffend, intimidate witnesses or interfere with the proceedings in some other way.\n\n28.  The applicant appealed, repeating her arguments set forth in the previous appeal submissions. She also argued that the drug test had been performed a long time ago and its results were irrelevant for the assessment of the risk of absconding, reoffending or interfering with the proceedings.\n\n28.  The applicant appealed, repeating her arguments set forth in the previous appeal submissions. She also argued that the drug test had been performed a long time ago and its results were irrelevant for the assessment of the risk of absconding, reoffending or interfering with the proceedings.\n\n29.  On 7 May 2008 the Supreme Court quashed the extension decision and ordered that the applicant be released on bail of RUB 100,000. It found that the  had not adduced sufficient reasons to justify an extension of the applicant’s detention up to twenty-one months. In particular, it held that under domestic law the complexity of the case could only serve as a justification for up to twelve months’ detention and could not justify an extension of detention beyond that time-limit. The Regional Court’s conclusion that the applicant might abscond, reoffend or interfere with the proceedings had not been supported by relevant facts or evidence. The  had disregarded such pertinent facts as the applicant’s positive references, permanent residence and employment and her family situation. It had failed to take into account the recent death of her brother, which mitigated the risk of her absconding as in such circumstances she naturally wished to be with her family. As the investigation had been completed and the witnesses questioned, the risk of interfering with the proceedings was also negligible. The results of the drug test were irrelevant for the assessment of the risk of reoffending, as the test had been performed immediately after the arrest, that is more than a year before, and the applicant had never been medically certified as being a drug addict. The Supreme Court further referred to the applicant’s frail health and “her well-founded complaints about the inhuman conditions of her detention, which caused her humiliation and imperilled her health”. Finally, it found fault with the  for its failure to consider the possibility of applying a more lenient preventive measure, although the applicant had asked to be released on bail.\n\n30.  On the same day the applicant posted bail and was released. It appears that the criminal proceedings against her are still pending.\n\nB. Conditions of the applicant’s detention\n\n31.  From 11 October 2006 to 7 May 2008 the applicant was held in detention facility no. IZ-50/3 in the town of , the Moscow Region.\n\n1.  Number of inmates per cell and sleeping arrangements\n\n1.  Number of inmates per cell and sleeping arrangements\n\n32.  According to a certificate of 10 April 2008 from the facility administration, produced by the Government, from 11 October 2006 to 17 September 2007 and from 25 September 2007 to 7 May 2008 the applicant was held in cell no. 32 measuring 21.2 sq. m. It was equipped with eight bunks and accommodated five to eight inmates. From 17 to 25 September 2007 she was held in cell no. 52 measuring 41 sq. m. It was equipped with twelve bunks and accommodated eight inmates. The Government supported their assertions with copies of extracts from registration logs showing the number of detainees on 11 October, 4 November and 8 December 2006, 19 January, 6 February, 2 April, 3, 14, 15, 21, 22 and 23 May, 6 and 7 June, 8 and 9 July, 9 August, 4 and 17 September, 11 October, 13 November and 18 December 2007, and 11 January, 6 February, 11 March and 9 April 2008. They further submitted that the applicant had at all times had a separate bunk and had been provided with clean bedding and a mattress which was 6.5 centimetres thick.\n\n33.  The applicant did not dispute the cell measurements or the number of bunks. She disagreed, however, with the number of inmates asserted by the Government. According to her, cell no. 32 accommodated up to twelve inmates. At times inmates did not have individual bunks and had to take turns to sleep. The metal bunks were covered with thin mattresses. The applicant, who suffered from back pain, had to stuff a layer of magazines between the metal frame and the mattress to make her bed softer.\n\n2.  Sanitary conditions and installations, temperature, food and water supply\n\n34.  The Government contended that the cells had natural light from the windows. Each cell had two windows measuring 1.44 m in width and 1.60 m in length. The windows were covered with metal bars. Openings between the metal bars, measuring 10 centimetres in width and 20 centimetres in length, allowed natural light. The cells were also equipped with fluorescent lamps which functioned during the day and at night. The applicant stated that the windows were covered with thick metal bars that blocked access to natural light. The openings between the metal bars measured no more than five centimetres by five centimetres. The artificial light was dim and did not allow inmates to read or write. As the artificial light was never switched off at night the applicant’s sleep was disturbed.\n\n34.  The Government contended that the cells had natural light from the windows. Each cell had two windows measuring 1.44 m in width and 1.60 m in length. The windows were covered with metal bars. Openings between the metal bars, measuring 10 centimetres in width and 20 centimetres in length, allowed natural light. The cells were also equipped with fluorescent lamps which functioned during the day and at night. The applicant stated that the windows were covered with thick metal bars that blocked access to natural light. The openings between the metal bars measured no more than five centimetres by five centimetres. The artificial light was dim and did not allow inmates to read or write. As the artificial light was never switched off at night the applicant’s sleep was disturbed.\n\n35.  The Government submitted that each cell had a ventilation system. They were also naturally ventilated through the windows. They admitted that there was a pigsty 62 m away from the detention facility. They insisted however that the windows of the applicant’s cells looked onto the opposite side. There were no insects or rodents in the detention facility, as all the cells were disinfected every month. It follows from the certificate of 10 April 2008 from the facility administration that sanitary services cleansed the cells regularly to reduce the number of rodents and insects. The applicant claimed that there was no forced ventilation and it was stifling and smoky in the cells. It was also smelly as the windows faced a pigsty. The cells swarmed with flies, mosquitoes and lice. Inmates had to do their laundry indoors, creating excessive humidity. The ceiling was covered with fungus. Some of the inmates were suffering from tuberculosis.\n\n36.   Relying on the certificates issued by the facility administration on 10 April 2008, the Government stated that the average temperature in the cells was 20 to 23 degrees Celsius both in winter and in summer. The floor was covered by wood plates which were four centimetres thick. According to the applicant, it was very cold in the cells in autumn and spring when the heating system was not on. She had to sleep in woollen clothes. The cells had a concrete floor covered with thin wood flooring and it was freezing to walk on.\n\n37.  It follows from the same certificates produced by the Government that the cells were equipped with a lavatory bowl, a sink and a tap with running cold and hot water. This was separated from the living area by a partition 167 centimetres in height in cell no. 32 and 137 centimetres in height in cell no. 52. Toilet articles and detergents were distributed regularly. In cell no. 32 the dining table was situated 0.63 m from the toilet bowl, while in cell no. 52 the distance between the toilet bowl and the dining table was 2.90 m. The applicant disagreed with this description. She claimed that the lavatory bowl was placed in the corner of the cell. There was indeed a partition on one side, but the other side was left unshielded so that the person using the toilet was in view of the other inmates and the warders. The dining table was fixed to the floor less than a metre from the toilet and the bunks were 1.5 metres from it. No toilet articles or detergents were distributed. There was no running hot water in the cell but detainees were permitted to use immersion heaters.\n\n38.  The Government further contended that inmates were allowed to take a shower once a week and were provided at that time with clean bedding and towels. The temperature in the shower hall was 31 degrees Celsius, while the water temperature was 70 degrees Celsius. The water temperature could be adjusted by the warders upon request. According to the applicant, inmates were allowed to take a shower once a week for ten or fifteen minutes. The water was too hot. It took time to call a warder to adjust the temperature and then inmates had insufficient time to shower. It was so cold in the changing room in winter that the door was covered with ice.\n\n39.  Finally, the Government submitted that inmates were provided with sufficient and wholesome food. There were containers with boiled drinking water in each cell. The applicant claimed that the food was insipid and she could not bring herself to eat it. Inmates were not provided with drinking water and had to drink tap water which did not meet sanitary conditions.\n\n3.  Outdoor exercise\n\n40.  The Government submitted that the applicant had an hour-long walk daily. The yard measured 20.8 sq. m. It was covered by a roof to protect inmates from rain. The entire cell population was taken to the yard at once. The number of inmates walking in the yard simultaneously with the applicant varied between four and seven.\n\n41.  The applicant did not dispute the yard measurements. She claimed however that up to twelve detainees were taken into the yard at once. The walls were coated with shuba, a sort of abrasive concrete lining, designed to prevent detainees from leaning on the walls. The opening to the sky was covered with rusty metal bars. When it rained rusty water came pouring down on the detainees. The yard had a concrete floor and was freezing to walk on. It was very smoky in the yard.\n\nII.  RELEVANT DOMESTIC LAW\n\n42.  “Preventive measures” or “measures of restraint” (меры пресечения) include an undertaking not to leave a town or region, personal surety, bail and detention (Article 98). If necessary, the suspect or accused may be asked to give an undertaking to appear (обязательство о явке) (Article 112 of the CCrP).\n\n42.  “Preventive measures” or “measures of restraint” (меры пресечения) include an undertaking not to leave a town or region, personal surety, bail and detention (Article 98). If necessary, the suspect or accused may be asked to give an undertaking to appear (обязательство о явке) (Article 112 of the CCrP).\n\n42.  “Preventive measures” or “measures of restraint” (меры пресечения) include an undertaking not to leave a town or region, personal surety, bail and detention (Article 98). If necessary, the suspect or accused may be asked to give an undertaking to appear (обязательство о явке) (Article 112 of the CCrP).\n\n43.  When deciding on a preventive measure, the competent authority is required to consider whether there are “sufficient grounds to believe” that the accused would abscond during the investigation or trial, reoffend or obstruct the establishment of the truth (Article 97). It must also take into account the gravity of the charge, information on the accused’s character, his or her profession, age, state of health, family status and other circumstances (Article 99).\n\n43.  When deciding on a preventive measure, the competent authority is required to consider whether there are “sufficient grounds to believe” that the accused would abscond during the investigation or trial, reoffend or obstruct the establishment of the truth (Article 97). It must also take into account the gravity of the charge, information on the accused’s character, his or her profession, age, state of health, family status and other circumstances (Article 99).\n\n43.  When deciding on a preventive measure, the competent authority is required to consider whether there are “sufficient grounds to believe” that the accused would abscond during the investigation or trial, reoffend or obstruct the establishment of the truth (Article 97). It must also take into account the gravity of the charge, information on the accused’s character, his or her profession, age, state of health, family status and other circumstances (Article 99).\n\n43.  When deciding on a preventive measure, the competent authority is required to consider whether there are “sufficient grounds to believe” that the accused would abscond during the investigation or trial, reoffend or obstruct the establishment of the truth (Article 97). It must also take into account the gravity of the charge, information on the accused’s character, his or her profession, age, state of health, family status and other circumstances (Article 99).\n\n43.  When deciding on a preventive measure, the competent authority is required to consider whether there are “sufficient grounds to believe” that the accused would abscond during the investigation or trial, reoffend or obstruct the establishment of the truth (Article 97). It must also take into account the gravity of the charge, information on the accused’s character, his or her profession, age, state of health, family status and other circumstances (Article 99).\n\n44.  Detention may be ordered by a court if the charge carries a sentence of at least two years’ imprisonment, provided that a less restrictive preventive measure cannot be applied (Article 108 § 1).\n\n44.  Detention may be ordered by a court if the charge carries a sentence of at least two years’ imprisonment, provided that a less restrictive preventive measure cannot be applied (Article 108 § 1).\n\n44.  Detention may be ordered by a court if the charge carries a sentence of at least two years’ imprisonment, provided that a less restrictive preventive measure cannot be applied (Article 108 § 1).\n\n45.  After arrest the suspect is placed in custody “during the investigation”. The period of detention during the investigation may be extended beyond six months only if the detainee is charged with a serious or particularly serious criminal offence. No extension beyond eighteen months is possible (Article 109 §§ 1-3). The period of detention “during the investigation” is calculated up to the day when the prosecutor sends the case to the trial court (Article 109 § 9).\n\n46.  From the date the prosecutor forwards the case to the trial court, the defendant’s detention is “before the court” (or “during the trial”). The period of detention “during the trial” is calculated up to the date the judgment is given. It may not normally exceed six months, but if the case concerns serious or particularly serious criminal offences, the trial court may approve one or more extensions of no longer than three months each (Article 255 §§ 2 and 3).\n\n47.  Section 22 of the Detention of Suspects Act (Federal Law no. 103-FZ of 15 July 1995) provides that detainees should be given free food sufficient to maintain them in good health according to standards established by the Government of the . Section 23 provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION\n\n“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”\n\nA.  Admissibility\n\n49.  The Government argued that the applicant had not exhausted the domestic remedies available to her. In particular, she had not sought compensation for non-pecuniary damage before a court. To prove the effectiveness of that remedy, they referred to an article in a Russian newspaper, reporting on the case of Mr D., who had contracted scabies while in detention and had been awarded RUB 25,000 by the  in respect of non-pecuniary damage. They further referred to the judgment of the Zheleznodorozhniy District Court of Orel of 2 June 2004, awarding Mr R. RUB 30,000 as compensation for unlawful detention lasting fifty-six days, for four of which he had been without food. Mr S. had been awarded RUB 3,000 for the inadequate conditions of his detention by the judgment of the Supreme Court of the  of 14 March 2006. It had been also open for the applicant to complain to a prosecutor, such complaint being, in the Government’s opinion, an effective remedy. They referred to improvements in the conditions of detention which had been made in response to complaints lodged with the prosecutor’s office by Mr N., Mr D. and Mr Sh. (a medical unit had been created, medicines purchased and maintenance works carried out). They stated that 13% of complaints about the allegedly inadequate conditions of detention had been considered well-founded in 2007, while in the first half of 2006 the prosecutors had recognised 18% of such complaints as well-founded.\n\n50.  The Government further submitted that the Court had competence to examine the conditions of the applicant’s detention only during the six months preceding the submission of her application form. They argued that the applicant’s detention had not been a continuing situation, as she had been repeatedly transferred from one cell to another and the conditions of her detention had varied in different cells. Moreover, if detainees were allowed to complain about long periods of detention, this would impose a disproportionate burden on the authorities to store detention facility registers indefinitely. Accordingly, the Government invited the Court to reject the applicant’s complaints relating to the period prior to 24 June 2007 for non-compliance with the six-month rule.\n\n51.  The applicant submitted that she had raised a complaint of poor conditions of detention at court hearings. She consistently mentioned inhuman conditions in her appeal submissions. However, the courts ignored her complaints. She further argued that her detention had been a continuous situation. During the majority of her detention she had been held in overcrowded conditions in cell no. 32, except for several days in September 2007 when she had been temporarily transferred to cell no. 52.\n\n52.  The Court observes that in the cases of Mamedova v. Russia (no. 7064/05, § 57, 1 June 2006) and Benediktov v. Russia (no. 106/02, §§ 29-30, 10 May 2007), in comparable circumstances, it found that the Government had failed to demonstrate what redress could have been afforded to the applicant by a prosecutor or a court, taking into account that the problems arising from the conditions of the applicant’s detention had apparently been of a structural nature and had not concerned the applicant’s personal situation alone.  In the case at hand, the Government submitted no evidence to enable the Court to depart from these findings with regard to the existence of an effective domestic remedy for the structural problem of overcrowding in Russian detention facilities. Although they referred to three cases in which the domestic courts had granted detainees non-pecuniary damage for inadequate conditions of detention, the Court notes that in those cases compensation was awarded for a detainee’s infection with scabies or a failure to provide a detainee with food. Neither of those cases concerned detention in overcrowded cells. Moreover, the Government did not produce copies of the judgments cited by them. Nor did they submit the prosecutor’s decisions to which they referred. Accordingly, the Court dismisses the Government’s objection as to non-exhaustion of domestic remedies.\n\n53.  As regards the Government’s argument about non-compliance with the six-month rule, the Court notes that the applicant was detained in the same detention facility from 11 October 2006 to 7 May 2008. The continuous nature of her detention, her identical descriptions of the general conditions of detention in all the cells in the detention facility and the allegation of severe overcrowding as the main characteristic of her detention conditions in both cells in which she was held warrant the examination of the applicant’s detention from 11 October 2006 to 7 May 2008 as a whole, without dividing it into separate periods (see, for similar reasoning, Guliyev v. Russia, no. 24650/02, §§ 31 to 33, 19 June 2008, and Benediktov, cited above, § 31). The Court does not lose sight of the Government’s argument that certain aspects of the conditions of the applicant’s detention varied in different cells. However, it does not consider that those differences are sufficient to allow it to distinguish between the conditions of the applicant’s detention or for her detention to be separated into several periods depending on the cell in which she was kept. The Court therefore dismisses the Government’s objection as to non-compliance with the six-month rule.\n\n54.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n1.  Arguments by the parties\n\n55.  The Government submitted that the conditions of the applicant’s detention had been satisfactory. They conceded that detention facility no. IZ-50/3 in  had been overcrowded. However, the authorities had done their best to improve the conditions of detention there. The applicant had had sufficient personal space and had been provided with an individual bunk and bedding at all times. She had been able to move freely and to exercise both in her cell and, for an hour daily, in the exercise yard. The sanitary and hygienic norms had been met. In sum, the conditions of the applicant’s detention had been compatible with Article 3. In support of their submissions, the Government produced black and white photographs of the cells in which the applicant had been held. They also produced extracts from the registration logs showing the number of detainees in the applicant’s cells on certain dates (see paragraph 32 above) and numerous certificates issued by the facility administration on 10 April 2008.\n\n56.  The applicant maintained that her cell had been overcrowded. The number of inmates per cell had been greater than that suggested by the Government and she had not always had a bed to herself. She drew the Court’s attention to the fact that the Government had submitted extracts from the registration logs showing the number of detainees on certain dates only, and claimed that the Government had deliberately chosen days when her cell had not been overcrowded, and omitted those when it had been filled beyond its design capacity. Given that the other cells in the detention facility had been severely and routinely overpopulated, as the Government had admitted, it was implausible that her cell had never been affected by that problem. The applicant also challenged the Government’s description of sanitary conditions as factually untrue. Her cells had been dim, cold, stuffy and smelly. Toilet facilities had offered no privacy. The artificial light had never been turned off, disturbing the applicant’s sleep. Although the Government denied the presence of insects, it transpired from the certificate of 10 April 2008 issued by the detention facility administration that the cells had been regularly cleansed to reduce the number of rodents and insects (see paragraph 35 above). The use of the word “reduce” implied, in the applicant’s opinion, that the cells had been infested with parasites and that the disinfection carried out by the facility administration had been unsuccessful, as the population of parasites had been thereby reduced rather than exterminated. The applicant further stated that there had been no real opportunity for outdoor exercise because the exercise yards had been overcrowded and also covered with metal bars that severely limited access to fresh air. In support of her submissions the applicant produced a statement by Ms B. who had been detained in cell no. 32 of the same facility from 15 January to 6 June 2007, and a statement by Ms K. who had been held in a neighbouring cell.\n\n2.  The Court’s assessment\n\n57.  The Court notes that parties have disputed certain aspects of the conditions of the applicant’s detention. However, there is no need for the Court to establish the veracity of each and every allegation, because it finds a violation of Article 3 on the basis of facts presented to it which the respondent Government have failed to refute.\n\n58.  The focal point for the Court’s assessment is the living space afforded to the applicant. The main characteristic, which the parties agreed upon, is the size of the cells. However, the applicant claimed that they had accommodated up to twelve persons, thus exceeding their design capacity. The Government conceded that the detention facility had been in general overcrowded, but asserted that the applicant’s cells had not been affected by that condition. They submitted that the number of inmates per cell had never exceeded the number of bunks and that the applicant’s cells had accommodated no more than eight persons.\n\n59.  The Court reiterates that Convention proceedings, such as the present application, do not in all cases lend themselves to a rigorous application of the principle affirmanti incumbit probatio (he who alleges something must prove that allegation) because in certain instances the respondent Government alone have access to information capable of corroborating or refuting these allegations. A failure on a Government’s part to submit such information without a satisfactory explanation may give rise to the drawing of inferences as to the well-foundedness of the applicant’s allegations (see, among other authorities, Fadeyeva v. Russia, no. 55723/00, § 79, ECHR 2005-IV, and Ahmet Özkan and Others v. Turkey, no. 21689/93, § 426, 6 April 2004).\n\n60.  Applying the above principles in the present case, the Court finds that the Government failed to submit information capable of refuting the applicant’s allegations. In their plea concerning the number of detainees the Government cited statements by the director of the facility indicating that the applicant’s cells accommodated five to eight inmates. Those statements were supported by extracts from the registration logs showing the number of detainees in the cells (see paragraph 32 above). The Court however notes that the Government preferred to submit the extracts for certain dates only and finds such incomplete and selective evidence unconvincing. It observes that the Government did not refer to any source of information on the basis of which they had made the assertion that the applicant’s cells had never accommodated more than eight persons and did not submit documents on the basis of which that assertion could be verified. The directors’ certificates and extracts from the logs are therefore of little evidential value for the Court (see, for similar reasoning, Sudarkov v. , no. 3130/03, § 43, 10 July 2008). The Court also takes note of the Government’s acknowledgement that the detention facility had been overpopulated at the material time. It is not convinced by the Government’s assertion, which is not supported by conclusive documentary evidence, that the applicant’s cell had remained unaffected by that problem.\n\n61.  The Court further observes that the applicant’s allegations of severe overcrowding and a shortage of sleeping places were corroborated by written depositions by persons held in the same remand centre at the same time. Moreover, a Russian court found her allegations of cramped conditions to be well-founded (see paragraph 29 above). In the absence of conclusive official data as to the number of detainees in the applicant’s cells, the Court will examine the issue on the basis of the applicant’s submissions.\n\n62.   According to the applicant, the number of inmates in cell no. 32 was at times greater than the number of available bunks. The Court therefore finds it established to the standard of proof required under Article 3 of the Convention that cell no. 32 in which the applicant was held for the majority of her detention was at times overcrowded beyond its design capacity and that the applicant had not had a sleeping place she could call her own. She was moreover afforded less than three square metres of personal space and on occasions her personal space was reduced to less than two square metres. Even when the cell was filled below its design capacity and accommodated seven or eight inmates, such occurrences being undisputed by the Government, the applicant was afforded three square metres or less of personal space. The applicant was confined to her cell day and night, save for one hour of daily outdoor exercise. The Court reiterates in this connection that in previous cases where the applicants had at their disposal less than three square metres of personal space, it found that the overcrowding was so severe as to justify in its own right a finding of a violation of Article 3 of the Convention. Accordingly, it was not necessary to assess other aspects of the physical conditions of detention (see, for example, Lind v. Russia, no. 25664/05, § 59, 6 December 2007; Kantyrev v. Russia, no. 37213/02, §§ 50-51, 21 June 2007; Andrey Frolov v. Russia, no. 205/02, §§ 47-49, 29 March 2007; Mamedova, cited above, §§ 61-67; Mayzit v. Russia, no. 63378/00, § 40, 20 January 2005; and Labzov v. , no. 62208/00, § 44, 16 June 2005).\n\n62.   According to the applicant, the number of inmates in cell no. 32 was at times greater than the number of available bunks. The Court therefore finds it established to the standard of proof required under Article 3 of the Convention that cell no. 32 in which the applicant was held for the majority of her detention was at times overcrowded beyond its design capacity and that the applicant had not had a sleeping place she could call her own. She was moreover afforded less than three square metres of personal space and on occasions her personal space was reduced to less than two square metres. Even when the cell was filled below its design capacity and accommodated seven or eight inmates, such occurrences being undisputed by the Government, the applicant was afforded three square metres or less of personal space. The applicant was confined to her cell day and night, save for one hour of daily outdoor exercise. The Court reiterates in this connection that in previous cases where the applicants had at their disposal less than three square metres of personal space, it found that the overcrowding was so severe as to justify in its own right a finding of a violation of Article 3 of the Convention. Accordingly, it was not necessary to assess other aspects of the physical conditions of detention (see, for example, Lind v. Russia, no. 25664/05, § 59, 6 December 2007; Kantyrev v. Russia, no. 37213/02, §§ 50-51, 21 June 2007; Andrey Frolov v. Russia, no. 205/02, §§ 47-49, 29 March 2007; Mamedova, cited above, §§ 61-67; Mayzit v. Russia, no. 63378/00, § 40, 20 January 2005; and Labzov v. , no. 62208/00, § 44, 16 June 2005).\n\n62.   According to the applicant, the number of inmates in cell no. 32 was at times greater than the number of available bunks. The Court therefore finds it established to the standard of proof required under Article 3 of the Convention that cell no. 32 in which the applicant was held for the majority of her detention was at times overcrowded beyond its design capacity and that the applicant had not had a sleeping place she could call her own. She was moreover afforded less than three square metres of personal space and on occasions her personal space was reduced to less than two square metres. Even when the cell was filled below its design capacity and accommodated seven or eight inmates, such occurrences being undisputed by the Government, the applicant was afforded three square metres or less of personal space. The applicant was confined to her cell day and night, save for one hour of daily outdoor exercise. The Court reiterates in this connection that in previous cases where the applicants had at their disposal less than three square metres of personal space, it found that the overcrowding was so severe as to justify in its own right a finding of a violation of Article 3 of the Convention. Accordingly, it was not necessary to assess other aspects of the physical conditions of detention (see, for example, Lind v. Russia, no. 25664/05, § 59, 6 December 2007; Kantyrev v. Russia, no. 37213/02, §§ 50-51, 21 June 2007; Andrey Frolov v. Russia, no. 205/02, §§ 47-49, 29 March 2007; Mamedova, cited above, §§ 61-67; Mayzit v. Russia, no. 63378/00, § 40, 20 January 2005; and Labzov v. , no. 62208/00, § 44, 16 June 2005).\n\n62.   According to the applicant, the number of inmates in cell no. 32 was at times greater than the number of available bunks. The Court therefore finds it established to the standard of proof required under Article 3 of the Convention that cell no. 32 in which the applicant was held for the majority of her detention was at times overcrowded beyond its design capacity and that the applicant had not had a sleeping place she could call her own. She was moreover afforded less than three square metres of personal space and on occasions her personal space was reduced to less than two square metres. Even when the cell was filled below its design capacity and accommodated seven or eight inmates, such occurrences being undisputed by the Government, the applicant was afforded three square metres or less of personal space. The applicant was confined to her cell day and night, save for one hour of daily outdoor exercise. The Court reiterates in this connection that in previous cases where the applicants had at their disposal less than three square metres of personal space, it found that the overcrowding was so severe as to justify in its own right a finding of a violation of Article 3 of the Convention. Accordingly, it was not necessary to assess other aspects of the physical conditions of detention (see, for example, Lind v. Russia, no. 25664/05, § 59, 6 December 2007; Kantyrev v. Russia, no. 37213/02, §§ 50-51, 21 June 2007; Andrey Frolov v. Russia, no. 205/02, §§ 47-49, 29 March 2007; Mamedova, cited above, §§ 61-67; Mayzit v. Russia, no. 63378/00, § 40, 20 January 2005; and Labzov v. , no. 62208/00, § 44, 16 June 2005).\n\n62.   According to the applicant, the number of inmates in cell no. 32 was at times greater than the number of available bunks. The Court therefore finds it established to the standard of proof required under Article 3 of the Convention that cell no. 32 in which the applicant was held for the majority of her detention was at times overcrowded beyond its design capacity and that the applicant had not had a sleeping place she could call her own. She was moreover afforded less than three square metres of personal space and on occasions her personal space was reduced to less than two square metres. Even when the cell was filled below its design capacity and accommodated seven or eight inmates, such occurrences being undisputed by the Government, the applicant was afforded three square metres or less of personal space. The applicant was confined to her cell day and night, save for one hour of daily outdoor exercise. The Court reiterates in this connection that in previous cases where the applicants had at their disposal less than three square metres of personal space, it found that the overcrowding was so severe as to justify in its own right a finding of a violation of Article 3 of the Convention. Accordingly, it was not necessary to assess other aspects of the physical conditions of detention (see, for example, Lind v. Russia, no. 25664/05, § 59, 6 December 2007; Kantyrev v. Russia, no. 37213/02, §§ 50-51, 21 June 2007; Andrey Frolov v. Russia, no. 205/02, §§ 47-49, 29 March 2007; Mamedova, cited above, §§ 61-67; Mayzit v. Russia, no. 63378/00, § 40, 20 January 2005; and Labzov v. , no. 62208/00, § 44, 16 June 2005).\n\n63.  Having regard to its case-law on the subject and the material submitted by the parties, the Court notes that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. That the applicant was obliged to live, sleep and use the toilet in the same cell as so many other inmates was itself sufficient to cause distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention.\n\n64.  The Court concludes that by keeping the applicant in overcrowded cells the domestic authorities subjected her to inhuman and degrading treatment. There has therefore been a violation of Article 3 of the Convention on account of the conditions of the applicant’s detention in facility no. IZ-50/3.\n\nII.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION\n\n65.  The applicant complained of a violation of her right to trial within a reasonable time and alleged that detention orders had not been founded on sufficient reasons. She relied on Article 5 § 3 of the Convention, which provides:\n\n“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”\n\nA.  Admissibility\n\n66.  The Government invited the Court to reject the applicant’s complaint relating to the period of her detention before 24 June 2007. In their opinion, the Court had competence to examine the applicant’s detention only with regard to the six months preceding the submission of her application form. The Government further claimed that the applicant could no longer claim to be a victim of a violation of Article 5 § 3. On 7 May 2008 the Supreme Court had found that the length of her detention had been excessive and ordered her release. The alleged violation of her rights had been thereby redressed. Following her release the applicant could have made a civil claim for pecuniary and non-pecuniary damages arising from unlawful detention.\n\n67.  The applicant submitted that there was no basis in the Court’s case-law for the Government’s claim that her detention should be divided into separate periods for the purposes of verifying compliance with the six-month rule. She further argued that her release had not deprived her of her victim status. The Supreme Court had only found that the extension order of 17 March 2008 had been poorly reasoned and unjustified. The decision of 7 May 2008 had not contained any acknowledgement of a violation of the applicant’s rights during the preceding months of her detention. In the absence of such acknowledgment, a civil action for damages had not had any prospects of success.\n\n68.  The Court considers that a person alleging a violation of Article 5 § 3 of the Convention with respect to the length of his or her detention complains of a continuing situation which should be considered as a whole and not divided into separate periods in the manner suggested by the Government (see, mutatis mutandis, Solmaz v. , no. 27561/02, §§ 29 and 37, ECHR 2007... (extracts)). Following her placement in custody on 3 October 2006 the applicant remained continuously in detention until 7 May 2008. The Court therefore finds that it has competence to examine the entire period of her detention and dismisses the Government’s objection as to non-compliance with the six-month rule.\n\n69.  The Court further reiterates that “a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a ‘victim’ unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention” (see, for example, Amuur v. France, judgment of 25 June 1996, Reports of Judgments and Decisions 1996-III, p. 846, § 36, and Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI). It observes that on 7 May 2008 the Supreme Court ordered the applicant’s release on the ground that her further detention would be unjustified. It did not however acknowledge that her detention during the preceding period had been founded on insufficient reasons or had exceeded a reasonable time. The decision of 7 May 2008 cannot therefore be regarded as an acknowledgment, even in substance, of a violation of the applicant’s right to trial within a reasonable time or release pending trial. Moreover, the Court is not convinced by the Government’s argument that the applicant could have obtained redress by bringing a civil action for damages. It has already found that Russian law does not provide for State liability for detention which is not based on “relevant and sufficient” reasons or which exceeds a “reasonable time”. This state of Russian law precludes any legal opportunity for the applicant to receive compensation for the detention which was effected in breach of Article 5 § 3 of the Convention (see Korshunov v. Russia, no. 38971/06, § 62, 25 October 2007, and Govorushko v. Russia, no. 42940/06, § 60, 25 October 2007). The Court therefore finds that the applicant can still claim to be a “victim” of a breach of Article 5 § 3 of the Convention, and dismisses the Government’s objection.\n\n70.  The Court finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n1.  Arguments by the parties\n\n71.  The Government argued that the decisions to remand the applicant in custody had been lawful and justified. The applicant had been charged with a particularly serious criminal offence. She had moreover been suspected of being the leader of an organised criminal group trafficking in drugs and presenting an increased danger to society. Referring to the case of Contrada v. Italy (24 August 1998, § 67, Reports of Judgments and Decisions 1998-V), the Government submitted that her membership of a mafia-type organisation with a rigid hierarchical structure and substantial power of intimidation had complicated and lengthened the criminal proceedings. As to the applicant’s character, her drug test had been positive, she had refused to give evidence against her accomplices or cooperate with the investigation team and, if released, she had been likely to abscond, reoffend or interfere with witnesses or obstruct the investigation and the trial in some other way. She had not provided any guarantees that she would appear for trial. The Government considered the applicant’s detention had been founded on “relevant and sufficient” reasons.\n\n72.  The applicant considered that there had been no “relevant and sufficient” reasons to hold her in custody for a year and seven months. The domestic authorities had continuously extended her detention, relying essentially on the gravity of the charge and without demonstrating the existence of concrete facts in support of their conclusion that she might abscond, interfere with the investigation or reoffend. She argued she had not presented any such risks. She was in frail health, had positive references, no criminal record, had permanent residence and employment, and her brother had been dying of cancer. She had moreover offered to post bail. Although her drug test had indeed been positive, the Supreme Court had found that it could not serve as a basis for her detention in the absence of any medical evidence of drug addiction. The need for a further investigation could not justify her detention after September 2007, as by that time the investigation had already been completed. No further investigative measures had been carried out during the subsequent months of her detention.\n\n2.  The Court’s assessment\n\n(a)  General principles\n\n73.  The Court reiterates that the persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention. However after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see Labita v. Italy [GC], no. 26772/95, §§ 152 and 153, ECHR 2000-IV).\n\n74.  The presumption is in favour of release. As the Court has consistently held, the second limb of Article 5 § 3 does not give judicial authorities a choice between either bringing an accused to trial within a reasonable time or granting him provisional release pending trial. Until his conviction, the accused must be presumed innocent, and the purpose of the provision under consideration is essentially to require his provisional release once his continued detention ceases to be reasonable. A person charged with an offence must always be released pending trial unless the State can show that there are “relevant and sufficient” reasons to justify the continued detention (see, among other authorities, Castravet v. Moldova, no. 23393/05, §§ 30 and 32, 13 March 2007; McKay v. the United Kingdom [GC], no. 543/03, § 41, ECHR 2006-...; Jabłoński v. Poland, no. 33492/96, § 83, 21 December 2000; and Neumeister v. Austria, 27 June 1968, § 4, Series A no. 8). Article 5 § 3 of the Convention cannot be seen as unconditionally authorising detention provided that it lasts no longer than a certain period. Justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities (see Shishkov v. Bulgaria, no. 38822/97, § 66, ECHR 2003-I (extracts)).\n\n75.  It is incumbent on the domestic authorities to establish the existence of specific facts relevant to the grounds for continued detention. Shifting the burden of proof to the detained person in such matters is tantamount to overturning the rule of Article 5 of the Convention, a provision which makes detention an exceptional departure from the right to liberty and one that is only permissible in exhaustively enumerated and strictly defined cases (see Rokhlina v. Russia, no. 54071/00, § 67, 7 April 2005, and Ilijkov v. Bulgaria, no. 33977/96, §§ 84-85, 26 July 2001). The national judicial authorities must examine all the facts arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty, and must set them out in their decisions dismissing the applications for release. It is not the Court’s task to establish such facts and take the place of the national authorities who ruled on the applicant’s detention. It is essentially on the basis of the reasons given in the domestic courts’ decisions and of the true facts mentioned by the applicant in his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 of the Convention (see Korchuganova v. Russia, no. 75039/01, § 72, 8 June 2006; Ilijkov, cited above, § 86; and Labita, cited above, § 152).\n\n(b)  Application to the present case\n\n76.  The applicant was arrested on 3 October 2006. She was released on bail on 7 May 2008. The period to be taken into consideration lasted slightly more than one year and seven months.\n\n77.  It is not disputed by the parties that the applicant’s detention was initially warranted by a reasonable suspicion of her involvement in drug trafficking. It remains to be ascertained whether the judicial authorities gave “relevant” and “sufficient” grounds to justify her continued detention and whether they displayed “special diligence” in the conduct of the proceedings.\n\n78.  The gravity of the charges was the main factor for the assessment of the applicant’s potential to abscond, reoffend or obstruct the course of justice. However, the Court has repeatedly held that, although the severity of the sentence faced is a relevant element in the assessment of the risk of an accused absconding or reoffending, the need to continue the deprivation of liberty cannot be assessed from a purely abstract point of view, taking into consideration only the gravity of the offence. Nor can continuation of the detention be used to anticipate a custodial sentence (see Letellier v. , 26 June 1991, § 51, Series A no. 207; also see Panchenko v. Russia, no. 45100/98, § 102, 8 February 2005; Goral v. Poland, no. 38654/97, § 68, 30 October 2003; and Ilijkov, cited above, § 81). The Court will therefore examine whether the other grounds referred to by the domestic courts were sufficient to justify the applicant’s detention.\n\n79.  The Court is prepared to accept that there were relevant and sufficient grounds for the applicant’s detention during the time needed to terminate the investigation. Although the applicant’s refusal to name her accomplices cannot serve as a justification for her detention, as she was not obliged to cooperate with the authorities and she cannot be blamed for having taken full advantage of her right to silence (see Mamedova, cited above, § 83, and, mutadis mutandis, Yağcı and Sargın v. Turkey, 8 June 1995, § 66, Series A no. 319A, and W. v. Switzerland, 26 January 1993, § 42, Series A no. 254A), the Court accepts that the authorities could justifiably consider that the risk of interference with the investigation was initially present, taking into account that the applicant was suspected of being the leader of an organised criminal group. In cases concerning organised crime the risk that a detainee if released might put pressure on witnesses or might otherwise obstruct the proceedings is often particularly high. These factors can justify a relatively longer period of detention. However, they do not give the authorities unlimited power to extend this preventive measure (see Osuch v. Poland, no. 31246/02, § 26, 14 November 2006; and Celejewski v. Poland, no. 17584/04, §§ 37-38, 4 May 2006). The Court is convinced that in the particular circumstances of the present case the applicant’s presumed leadership of an organised criminal group may be regarded as a sufficient ground to justify her detention while the investigation was pending. The investigation was conducted with due expedition and completed within a year, which does not appear excessive having regard to the relative complexity of the case, the number of defendants, and the need to obtain a considerable amount of evidence. However, after the evidence had been collected, the witnesses interviewed and the investigation completed, the reference to the risk of interfering with the proceedings became less relevant. In the Court’s opinion, after the completion of the investigation in September 2007 it was no longer sufficient to outweigh, on its own, the applicant’s right to trial within a reasonable time or release pending trial.\n\n80.  The domestic courts, however, did not refer to any other grounds which could be regarded as sufficient to justify the applicant’s detention after September 2007. The Regional Court’s reference to her positive drug test results in the extension order of 17 March 2008 was found to be irrelevant by the Supreme Court (see paragraph 29 above). The Court does not see any reason to depart from the Supreme Court’s finding. It therefore concludes that the domestic courts did not point to any aspects of the applicant’s character or behaviour that would justify their conclusion that she presented a persistent risk of fleeing from justice or reoffending. The applicant, on the other hand, constantly invoked the facts mitigating such risks. However, the domestic courts devoted no attention to discussion of the applicant’s arguments that she was in frail health, had positive references, no criminal record, had a permanent place of residence and employment, and that her brother had been terminally ill. It was not until May 2008 that the Supreme Court discussed those factors for the first time and, on finding that they negated the risks of absconding or reoffending, considered that there was no justification for the applicant’s further detention.\n\n81.  The Court further notes that when deciding whether a person should be released or detained the authorities have an obligation under Article 5 § 3 to consider alternative measures of ensuring his or her appearance at trial. This Convention provision proclaims not only the right to “trial within a reasonable time or to release pending trial” but also lays down that “release may be conditioned by guarantees to appear for trial” (see Sulaoja v. Estonia, no. 55939/00, § 64 in fine, 15 February 2005, and Jabłoński, cited above, § 83). The Court considers that after the investigation had been completed the domestic authorities should have discussed with particular attention the possibility of bail as a guarantee against absconding. However, they had not considered such a possibility until May 2008, that is about eight months after the termination of the investigation, although the applicant had offered to post bail many times.\n\n82.  Finally, the Court observes that although the investigation had been terminated in September 2007, in May 2008 the case was still not ready for referral to a trial court. The Government did not provide any explanation for that eight-month delay.\n\n83.  The Court has frequently found violations of Article 5 § 3 of the Convention in Russian cases where the domestic courts extended an applicant’s detention relying essentially on the gravity of the charges and using stereotyped formulae without addressing specific facts or considering alternative preventive measures (see Belevitskiy v. Russia, no. 72967/01, §§ 99 et seq., 1 March 2007; Khudobin v. Russia, no. 59696/00, §§ 103 et seq., ECHR 2006-... (extracts); Mamedova v. Russia, cited above, §§ 72 et seq.; Dolgova v. Russia, cited above, §§ 38 et seq.; Khudoyorov v. Russia, cited above, §§ 172 et seq.; Rokhlina v. Russia, cited above, §§ 63 et seq.; Panchenko v. Russia, cited above, §§ 91 et seq.; and Smirnova v. Russia, nos. 46133/99 and 48183/99, §§ 56 et seq., ECHR 2003-IX (extracts)).\n\n84.  Having regard to the above, the Court considers that by failing to address specific situation or consider alternative “preventive measures” and by relying essentially on the gravity of the charges, the authorities extended the applicant’s detention on grounds which, although “relevant”, cannot be regarded as “sufficient” for the entire period of detention. Nor were the proceedings conducted with “special diligence”.\n\n85.  There has accordingly been a violation of Article 5 § 3 of the Convention.\n\nIII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n86.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n87.  The applicant claimed EUR 20,000 in respect of non-pecuniary damage.\n\n88.  The Government submitted that the claim was excessive and not supported by any document.\n\n89.  The Court notes that it has found a combination of grievous violations in the present case. The applicant spent a year and seven months in custody, in inhuman and degrading conditions. Moreover, the duration of her detention was not based on sufficient grounds. In these circumstances, the Court considers that the applicant’s suffering and frustration cannot be compensated for by a mere finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 15,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on it.\n\nB.  Costs and expenses\n\n90.  The applicant claimed RUB 176,460 for her representation. She produced the legal fee agreements and the receipts showing that she had already paid the legal fee.\n\n91.  The Government considered the costs and expenses claimed by the applicant to be unnecessary and unreasonable as to quantum.\n\n92.  According to the Court’s case-law, an applicant is entitled to reimbursement of his costs and expenses in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 4,000, plus any tax that may be chargeable to the applicant on that amount.\n\nC.  Default interest\n\n93.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Declares the application admissible;\n\n2.  Holds that there has been a violation of Article 3 of the Convention;\n\n3.  Holds that there has been a violation of Article 5 § 3 of the Convention;\n\n4.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Russian roubles at the rate applicable at the date of settlement\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n5.  Dismisses the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 28 May 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_755","text":"INTRODUCTION\n\n1.  The applicant complained that the publication of a newspaper article disclosing his personal information, accompanied by a photograph of him, and the prosecutor’s statement in relation to the pending criminal proceedings against him had been in breach of his rights under Articles 6 § 2 and 8 of the Convention.\n\nTHE FACTS\n\n2.  The applicant was born in 1968 and lives in Chelyabinsk Region. The applicant, who had been granted legal aid, was represented by Mr E. Markov, a lawyer admitted to practise in Ukraine.\n\n3.  The Government were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.\n\n4.  The facts of the case, as submitted by the parties, may be summarised as follows.\n\nCriminal proceedings against the applicant and a newspaper article\n\n5.  At the material time the applicant was the head of the local inspectorate for juvenile affaires.\n\n6.  In April 2005 he was arrested on suspicion of sexual assault of a minor.\n\n7.  On 18 May 2005 a local newspaper published an article “Major’s shameful passion. Police officer abused underage offenders.”, which was accompanied with the applicant’s photograph and read as follows:\n\n“Andrey Parfentyev, the head of the inspectorate for juvenile affairs of the Sosnovskiy district in Chelyabinsk Region was well-respected by his fellow colleagues and superiors ...\n\nThe well-appreciated major molested underage hooligans in his office. He had no wife and no children of his own, and was 37 years of age [at the time]. He lived together with his mother and brother. The latter has had no problems with his private life.\n\nAndrey was jealous of his brother. He did try to have an affair but, despite his rank and status, ladies would not maintain a relationship with him ...\n\nThe major is now in detention. The investigation will have to clarify how many souls he ‘saved’ with his advice. The police have so far received one complaint from the parents of one minor ... Parfentyev has plead not guilty and asserted that the boys made wrongful accusations against him. The district prosecutor thinks differently:\n\n‘Numerous schoolboys who “visited” the major’s office are reluctant to talk about the loving officer. The children feel simply embarrassed to describe the sex games in detail to the investigator or even to their parents. Parfentyev has been charged with sexual abuse of minors and can be punished with up to twelve years’ imprisonment.’”\n\n8.  In September 2005 the criminal case against the applicant was referred to the Sosnovskiy District Court of Chelyabinsk Region (“the District Court”) for trial.\n\n9.  On 28 April 2006 the District Court found the applicant guilty of several counts of sexual abuse of minors, who had not reached the age of 14 years old, which had been committed by taking advantage of the helplessness of the victims, and sentenced him to nine years’ imprisonment.\n\n10.  On 11 August 2006 the Chelyabinsk Regional Court upheld the judgment.\n\nDefamation proceedings\n\n11.  In March 2008 the applicant brought defamation proceedings against the publisher of the local newspaper. He submitted that the article had contained untrue information about him, which had damaged his honour, dignity and reputation. In that article he had been de facto found guilty of a criminal offence prior to his conviction by a court. The publisher had also breached his right to private and family life by publishing a photograph from his private album and disclosing information about his family and private life.\n\n12.  On 22 May 2008 the Tsentralnyy District Court of Chelyabinsk rejected his claims. The court held as follows:\n\n“... It is apparent from the claimant’s [the applicant’s] statement of claim that he has been convicted of the impugned criminal offences and he is serving a prison term ...\n\nHaving analysed the circumstances of the case and legal norms, the court considers that the mass media’s information about the criminal offence committed by the claimant does not amount to an interference with his private life or a violation of the presumption of innocence. The circumstances of his life, which relate to the offence, do not fall within the scope of private life. The above information is an exercise of the principle of openness of proceedings, protected by Article 10 of the Convention ...\n\nBy publishing the disputed article the newspaper provided press coverage of a public event, exercising therefore its right to freedom of mass media. It did not breach the claimant’s constitutional right to respect for private and family life ...\n\nThe defendant’s actions were aimed at calling the public’s attention to the functioning of justice. They were also a means of control over the activities of the investigating authorities and of the courts ...”\n\n13.  On 19 August 2008 the Chelyabinsk Regional Court upheld the judgment. It held as follows:\n\n“Article 152 of the Civil Code provides that a citizen can seek refutation of statements, which tarnish his or her honour ... The relevant circumstances include the fact of dissemination of the information relating to the claimant, its tarnishing character and that it does not correspond to reality [не соответствует действительности] ... The absence of one of the above elements entails a rejection of the claim ... The court rightly concluded that the information in “Major’s shameful passion” corresponded to reality, did not tarnish the claimant’s honour and reputation and did not violate his rights ...\n\nThus, the publication of the photograph and information about the applicant’s family does not fall under the sphere of private or family life and does not breach the inviolability of private life, as protected by Article 23 of the Constitution...\n\nMoreover, in a judgment of 28 April 2006 the Sosnovskiy District Court of Chelyabinsk Region found the applicant guilty of sexual abuse of minors who had not reached fourteen years of age.\n\nTherefore, the information published in the article corresponded to the reality and did not damage the claimant’s honour, dignity and reputation...\n\nIt is impossible to accept the claimant’s [the applicant’s] argument whereby the article contains confidential information about him. His name, place of work, official position, private relationships with his relatives do not belong to such information...\n\nThe publication in mass media of the information about the charges against the claimant [the applicant], as well as of some information from his biography and his photograph do not constitute an interference with his private life... ”\n\nThe applicant’s correspondence with the Court\n\n14.  Between 2006 and 2015 the applicant served his sentence in two prisons. During his imprisonment he sent five letters to the Court: his first letter of 26 November 2008, his application form of 11 February 2009 and his letters of 16 June and 10 September 2009 and 12 January 2012.\n\n15.  All those letters arrived at the Court accompanied by cover letters drawn up by the staff of prisons in which he was serving his sentence. The cover letters indicated the information on the applicant’s conviction, the number of pages submitted by the applicant for dispatch and the nature of the correspondence (for instance, complaint, application form, additional submissions). All those letters bore inscriptions made by prison authorities indicating the registration number and the date of the registration.\n\n16.  The cover letter to the applicant’s letter of 12 January 2012 indicated that the applicant had been acquainted with the procedure for sending of the complaints and submissions.\n\n17.  On 1 August 2015 the applicant appointed Mr E. Markov to represent him in the proceedings before the Court and all further correspondence in the case was sent to the Court by the applicant’s representative.\n\nRELEVANT LEGAL FRAMEWORK\n\nRELEVANT LEGAL FRAMEWORK\n\n18.  Article 91 § 2 of the Code of Execution of Sentences of 9 January 1997, as amended on 8 December 2003, 30 December 2012 and 2 November 2013, provides that detainees’ correspondence is subject to censorship by the prison authorities. Article 15 § 4 provides that detainees’ complaints submitted to intergovernmental bodies of protection of human rights and freedoms and replies to those complaints are not subject to censorship.\n\nTHE LAW\n\nALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION\n\n19.  The applicant complained that the prosecutor’s statement reproduced in the newspaper article of 18 May 2005 had breached Article 6 § 2 of the Convention, which reads as follows:\n\n“2.  Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”\n\nAdmissibility\n\nThe parties’ submissions\n\n20.  The Government submitted that the applicant had not exhausted the domestic remedies available to him in respect of his complaint. He had not lodged any complaints against the prosecutor regarding the statements which he had allegedly made in respect of him. Nor had he raised any complaints before the courts which had examined the criminal charges against him. Alternatively, the applicant had lodged his complaint outside the sixmonth time-limit, which had started to run either on 18 May 2005, when the article had been published, or on 11 August 2006, when the appellate court had upheld the applicant’s criminal conviction.\n\n21.  The Government further submitted that the publishing house was not a representative of the public authorities and the newspaper was not an official news source of the Government. Articles and opinions published in the newspaper were not official statements by the Russian authorities and their content should not be attributable to the State.\n\n22.  The applicant submitted that the newspaper article had referred to the opinion of the prosecutor, who had alleged the applicant’s guilt in the incriminated offence. Therefore, the contents of the publication should be attributable to the State.\n\nThe Court’s assessment\n\n23.  The Court does not find it necessary to examine the pleas of inadmissibility raised by the Government concerning the applicant’s failure to exhaust the domestic remedies and comply with the six-month time-limit for lodging his complaint since his complaint is in any event inadmissible for the reasons stated below.\n\n24.  The Court observes that there is nothing in the material in the case file to indicate that the impugned statement constituted a verbatim reproduction of (or an otherwise direct quotation from) any official statement by the prosecutor or any other State authority and that, therefore, the State should be held responsible under Article 6 § 2 of the Convention. Accordingly, the applicant’s complaint is manifestly ill-founded and should be declared inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention (see Mityanin and Leonov v. Russia, nos. 11436/06 and 22912/06, § 102, 7 May 2019).\n\nALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION\n\n25.  The applicant complained that the disclosure in the newspaper article of 18 May 2005 of the information on his private life and publication of a photograph of him had been in breach of his right to respect for his private life guaranteed by Article 8 of the Convention, which reads as follows:\n\n“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.\n\n2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”\n\nAdmissibility\n\nThe parties’ submissions\n\n26.  The Government submitted that there had been no interference by a State authority with the applicant’s right to respect for his private life. If the Court came to the conclusion that there had been such interference due to the publication in the newspaper of a statement which had been allegedly made by the prosecutor, the complaint should be rejected for nonexhaustion of domestic remedies.\n\n27.  The Government further submitted that in so far as the applicant complained of the way in which the domestic courts had examined his complaints against the publisher, his complaint was manifestly ill-founded.\n\n28.  The applicant submitted that the impugned article had amounted to an interference with his right to respect for his private life.\n\nThe Court’s assessment\n\n29.  In so far as the applicant complained of the interference with his right to respect for his private life by State authorities, the Court observes that there is nothing in the material in the case file to indicate that there had been interference by State authorities with the applicant’s right to respect for his private life. Accordingly, the applicant’s complaint is manifestly illfounded and should be declared inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.\n\n30.  In so far as the applicant complained that the domestic courts had failed to strike a fair balance between his right to respect for his private life and the freedom of expression of the publisher, the Court observes that the impugned article disclosed the applicant’s personal information, including his image in a photograph, which he could legitimately have expected not to have been published without his consent. The Court considers that such content fell within the scope of the applicant’s private life, within the meaning of Article 8 of the Convention (see Flinkkilä and Others v. Finland, no. 25576/04, § 75, 6 April 2010). Therefore, the applicant’s complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.\n\nMerits\n\nThe parties’ submissions\n\n31.  The applicant submitted that the domestic courts had failed to strike a fair balance between the competing interests.\n\n32.  The Government submitted that the domestic courts had carefully balanced the applicant’s rights and the public interests involved and concluded that the publication in the mass media of information concerning a crime had not amounted to an interference with the applicant’s right to respect for his private life. Regarding the photograph, the domestic courts held that the applicant had not provided any evidence to confirm that that photograph had been taken from his private archive in breach of his right to respect for his private life.\n\nThe Court’s assessment\n\n33.  The Court observes that what is at issue in the present case is not an action by the State but the alleged inadequacy of the protection afforded by the domestic courts to the applicant’s private life. While the essential object of Article 8 of the Convention is to protect the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this negative undertaking, there may be positive obligations inherent in effective respect for private or family life. These obligations may also involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves. The boundary between the State’s positive and negative obligations under Article 8 does not lend itself to precise definition; the applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the relevant competing interests (see Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, §§ 98-99, ECHR 2012).\n\n34.  Relying on principles which are well-established in the its case-law (see, among other authorities, Axel Springer AG v. Germany [GC], no. 39954/08, §§ 78-95, 7 February 2012; Von Hannover, cited above, §§ 95-113; and Bédat v. Switzerland [GC], no. 56925/08, §§ 48-54, 29 March 2016), the Court will examine the question whether a fair balance has been struck between the applicant’s right to respect for his private life under Article 8 of the Convention and the freedom of expression of the publisher, as guaranteed by Article 10 of the Convention.\n\n35.  Having examined the judgments of the domestic courts delivered at two levels of jurisdiction, the Court observes that the national judicial authorities refused to acknowledge that the publication of the article which contained the applicant’s personal information together with the applicant’s photograph had constituted an interference with his right to respect for his private life. Although the domestic courts took into account the freedom of the expression of the publisher, they failed to balance this right against the applicant’s rights guaranteed by Article 8 of the Convention.\n\n36.  The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 8 of the Convention.\n\nALLEGED VIOLATION OF ARTICLES 8 and 34 oF the CONVENTION\n\n37.  The Court, of its own motion, raised the issue of whether the registration by the prison authorities of the applicant’s letters to the Court in the register of outgoing correspondence and sending them together with their own cover letters had amounted to a violation of Articles 8 and 34 of the Convention.\n\n38.  The Court, being the master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018), finds it appropriate to examine this complaint under Article 34 of the Convention, which reads as follows:\n\n“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”\n\n39.  The applicant submitted that the prison authorities had opened and monitored his correspondence with the Court.\n\n40.  The Government submitted that the registration of the applicant’s letters and sending them with cover letters had not amounted to a hindrance to the effective exercise of his right of individual petition.\n\n41.  The Court observes at the outset that a complaint under Article 34 of the Convention is of a procedural nature and therefore does not give rise to any issue of admissibility under the Convention (see Yefimenko v. Russia, no. 152/04, § 157, 12 February 2013).\n\n42.  It is of the utmost importance for the effective operation of the system of individual petition, guaranteed by Article 34 of the Convention, that applicants should be able to communicate freely with the Convention organs without being subjected to any form of pressure from the authorities to withdraw or modify their complaints. In this context, “pressure” includes not only direct coercion and flagrant acts of intimidation but also other improper indirect acts or contacts designed to dissuade or discourage applicants from pursuing a Convention remedy (see, among others, Konstantin Markin v. Russia [GC], no. 30078/06, §§ 158-59, ECHR 2012 (extracts).\n\n43.  The Court reiterates the importance of respecting the confidentiality of correspondence between the Court and applicants, since that correspondence may concern allegations against prison authorities or prison officials (see Peers v. Greece, no. 28524/95, § 84, ECHR 2001III). The opening of letters from the Court or addressed to it undoubtedly gives rise to the possibility that they will be read and may conceivably, on occasion, also create the risk of reprisals by prison staff against the prisoner concerned (see Klyakhin v. Russia, no. 46082/99, § 118, 30 November 2004).\n\n44.  In the present case it is not in dispute that the applicant’s letters addressed to the Court bore inscriptions made by the prison staff and were accompanied by cover letters written by prison staff indicating the nature of the applicant’s correspondence. These facts suggest that the applicant’s correspondence with the Court was subject to monitoring by the officers of the detention facility.\n\n45.  The Court observes that pursuant to Article 91 of the Code of Execution of Sentences, correspondence with the Court is privileged and is not subject to censorship (see paragraph 18 above). The applicant’s letters addressed to the Court were therefore monitored in breach of domestic law.\n\n46.  The opening and monitoring of the applicant’s correspondence addressed to the Court therefore amounted to a hindrance to the effective exercise of the applicant’s right of individual petition (see Yefimenko, cited above, §§ 16465).\n\n47.  The Court therefore considers that the respondent State has failed to comply with its obligations under Article 34 of the Convention.\n\nOTHER ALLEGED VIOLATIONS OF THE CONVENTION\n\n48.  The Court has examined the other complaints submitted by the applicant. Having regard to all the material in its possession and in so far as these complaints fall within the Court’s competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.\n\nAPPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n49.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA. Damage\n\n50.  The applicant claimed 10,000 euros (EUR) in respect of nonpecuniary damage.\n\n51.  The Government submitted that Article 41 of the Convention should be applied in the present case in accordance with the Court’s established case-law.\n\n52.  Making an assessment on an equitable basis, the Court awards the applicant EUR 2,600 in respect of non-pecuniary damage.\n\nB. Costs and expenses\n\n53.  The applicant also claimed EUR 2,500 for the costs and expenses incurred.\n\n54.  The Government did not comment.\n\n55.  Regard being had to the documents in its possession and to its caselaw, to the fact that some complaints have been declared inadmissible and to the fact that legal aid was granted to the applicant, the Court considers it reasonable to award the sum of EUR 1,000 covering costs under all heads.\n\nC. Default interest\n\n56.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\nDeclares the complaint under Article 8 of the Convention concerning the domestic courts’ failure to strike a fair balance between the applicant’s right to respect for his private life and the freedom of expression of the publisher admissible and the remainder of the application inadmissible;\n\nHolds that there has been a violation of Article 8 of the Convention;\n\nHolds that the respondent State has failed to comply with its obligations under Article 34 of the Convention;\n\nHolds\n\nthat the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:\n\nthat from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\nDismisses the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 3 November 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_330","text":"PROCEDURE\n\n1.  The case originated in an application (no. 10523/02) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Coorplan-Jenni GmbH (“the applicant company”) and a national of  Mr Elvir Hascic (“the second applicant”) on 7 August 2001.\n\n2.  The applicants were represented by Mr W.L. Weh, a lawyer practising in Bregenz. The Austrian Government (“the Government”) were represented first by their Agent, Mr Hans Winkler and subsequently by their Agent Mr Ferdinand Trauttmansdorff, Head of the International Law Department at the Federal Ministry for Foreign Affairs.\n\n3.  Both applicants complained under Article 6 of the Convention that there had been no oral hearing before the  in the proceedings concerning the applicant company’s request for an employment permit. The second applicant further complained under Article 6 of the Convention that he had been denied access to a court as he was not a party to the proceedings.\n\n4.  The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.\n\n5.  On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed First Section (Rule 52 § 1). The Government of Bosnia-Herzegovina did not wish to intervene under Article 36 of the Convention.\n\n6.  A hearing took place in public in the Human Rights Building, , on 24 February 2005 (Rule 54 § 3).\n\n7.  There appeared before the Court:\n\n8.  The Court heard addresses by Mr Winkler for the Government and Mr Weh for the applicants.\n\n9.  By a decision of 24 February 2005 following the hearing the Court declared the application partly admissible.\n\n10.  The applicants but not the Government filed observations on the merits (Rule 59 § 1).\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n11.  In April 1991 the second applicant entered  on a tourist visa. He made two unsuccessful requests for a residence permit (Aufenthaltserlaubnis) in February 1992 and April 1994 respectively. In May 1996 he made a new request for a residence permit, which was granted in July 1996 for a period of two years for the purpose of family reunification with his wife and baby daughter, both of whom lived in . His leave to remain was subsequently extended for successive two-year periods.\n\n12.  From 1991 onwards the second applicant worked for the applicant company.\n\n13.  After the Labour Market Service had advised that an employment permit was required for the second applicant, the applicants lodged a request with the Feldkirch Labour Market Service (Arbeitsmarktservice) on 23 April 1998 for the grant of an employment permit to the applicant company.\n\n14.  On 4 June 1998 the Labour Market Service refused the request in accordance with s. 4(6) of the Employment of Aliens Act (Ausländerbeschäftigungsgesetz). It found that the maximum quota fixed for the employment of foreign workers that year in Vorarlberg had been exceeded and none of the exceptional conditions of s. 4(6) of the above Act were met.\n\n15.  On 18 June 1998 the applicants appealed. They submitted that the second applicant had been living in  since 1991 and was a shareholder in the Jenni Montagen OEG company. They claimed that the second applicant had a right to employment in  and referred in that connection to the Geneva Refugee Convention, the European Social Charter and the International Covenant on Economic, Social and Cultural Rights. They further referred to the Association Agreement between the European Union and  and submitted that that treaty had to be applied by analogy to their case.\n\n16.  On 22 July 1998 the Vorarlberg Labour Market Service dismissed the applicant company’s complaint and rejected the second applicant’s complaint. It noted that only the applicant company as the proposed employer, not the second applicant, had the right to lodge a request for the grant of an employment permit. According to s. 21 of the Employment of Aliens Act an alien only became a party to proceedings concerning the issue of a work permit if his personal circumstances were relevant to the decision or if there was no employer. In the present case, however, neither of these conditions applied. In particular, the Bregenz Labour Market Service had based its decision exclusively on the situation of the labour market, and in particular the fact that the maximum quota for the employment of foreign workers had been exceeded. For that reason, the second applicant was not a party to the proceedings.\n\n17.  As regards the applicant company’s complaint, it noted that only certain refugees – namely, those who had indefinite leave to remain, were married to an Austrian national or had a child of Austrian nationality – were exempted from the regulations of the Employment of Aliens Act. However, throughout the proceedings it had been common ground that the second applicant was not a refugee. The Association Agreement between the European Union and  was not applicable in the present case as the second applicant was not a Turkish national.\n\n18.  On 3 September 1998 the applicants filed a complaint with the  and requested an oral hearing. They contested the lawfulness of the fixed maximum quota system and the accuracy of the official statistics according to which the maximum quota had been exceeded. They submitted in that connection that, in view of the number of foreign workers in employment that had been given in the official statistics some months before, the number that was now being quoted could not be correct. They further complained that the Labour Market Service had failed to establish objectively in adversarial proceedings that the maximum quota for Vorarlberg had been exceeded.\n\n19.  They further submitted that the second applicant had a right to take up employment in  and had standing to join the proceedings. The applicant had been living with his wife in  since 1991 and they had a daughter who was born in 1995. The applicant was in possession of a settlement permit (Niederlassungsbewilligung) limited in time while his wife and his daughter had been granted indefinite residence permits (Aufenthaltsbewilligung). The applicants referred to Article 17 of the Geneva Refugee Convention and submitted that it should be applied by analogy to nationals of Bosnia and Herzegovina who had come to  before the civil war. They further referred to Article 23 of the Universal Declaration of Human Rights, Article 6 of the International Covenant on Economic, Social and Cultural Rights and the European Social Charter. They also relied on Article 6 and Article 8 of the Convention and Article 1 of Protocol No. 1.\n\n20.  On 12 October 1998 the Vorarlberg Labour Market Service submitted its comments.\n\n21.  On 19 December 2000 the  dismissed the applicant company’s complaint and rejected the second applicant’s complaint.\n\n22.  As regards the second applicant it found that none of his rights had been violated, as it was in principle for the employer to request the issue of an employment permit. It further referred to the case-law of the  according to which a decision whether or not to issue an employment permit did not concern a “civil right” within the meaning of Article 6 of the Convention.\n\n23.  As regards the applicant company’s complaint, the  noted that the official statistics showing that the maximum quota had been exceeded constituted documentary evidence which it had been open to the company to contest by adducing proof to the contrary. The company had, however, failed to make any valid objection to the Labour Market Service to the statistical evidence that the maximum quota had been exceeded. The complaint now made before the Administrative Court that the Labour Market Service had failed to establish objectively in adversarial proceedings that the maximum quota for Vorarlberg had been exceeded was unsubstantiated and, in any event, inadmissible, as it had not previously been raised before the Labour Market Service.\n\n24.  As regards the reference to the Geneva Refugee Convention and the Association Agreement between the European Union and  the  noted that those treaties were not applicable to the present case as the second applicant had never claimed to be a refugee within the meaning of the Geneva Refugee Convention and was not Turkish. It further noted that no right for the second applicant to take up employment could be deduced from the Universal Declaration of Human Rights or the International Covenant for Economic, Social and Cultural Rights.\n\n25.  In accordance with s. 39(2) of the Administrative Court Act (Verwaltungsgerichtshofgesetz), the  dismissed the applicants’ request for a hearing as it found that an oral hearing was not likely to contribute to the clarification of the case. Referring to its case-law it found that the proceedings did not concern a “civil right” within the meaning of Article 6 of the Convention. This decision was served on the applicants’ counsel on 7 February 2001.\n\n26.  Meanwhile, on 23 October 2000, the second applicant’s wife acquired Austrian citizenship. Consequently, the Employment of Aliens Act is no longer applicable to the second applicant.\n\nII.  RELEVANT DOMESTIC LAW AND PRACTICE\n\n27.  The Employment of Aliens Act (Ausländerbeschäftigungsgesetz) regulates foreign workers’ access to the Austrian labour market. The relevant parts of the Act at the material time were as follows:\n\n28.  Section 1 of the Act stated that it was not applicable inter alia to:\n\n- certain refugees who had indefinite leave to remain in , who were married to an Austrian national or who had a child of Austrian nationality (s. 1(2)(a));\n\n- aliens married to an Austrian national if they were in possession of a residence document (Aufenthaltstitel) within the meaning of the Act (s.1(2)(1)); under the Aliens Act (Fremdengesetz) there are two types of residence document: residence permits (Aufenthaltsbewilligung) and settlement permits (Niederlassungsbewilligung). The relevant provisions of the Aliens Act make it easier for aliens married to an Austrian national to obtain a settlement permit.\n\nUnder s. 3(8) of the Employment of Aliens Act the competent Regional Labour Office had to certify that the alien concerned fulfilled the requirements of s. 1(2) (l) before he could take up employment.\n\n29.  S. 3(1) and (2) of the Act laid down the principle that a proposed employer required an employment permit (Beschäftigungsbewilligung) if he wished to take on a foreign employee. Without such a permit the contract of employment between the employer and the foreign employee was null and void. However, while he was actually employed an alien hired without an employment permit had the same rights against his employer as he would have had if the contract of employment had been valid. If the lack of an employment permit was due to the employer’s negligence, the foreign employee further enjoyed all the rights to which he would have been entitled upon the termination of a valid employment relationship (s. 29).\n\n30.  S. 15 of the Act provided that a request could be made for an “exemption certificate” (Befreiungsschein) in respect of aliens who had been continuously legally employed within the meaning of the Act in Austria for at least five years during the previous eight, and for aliens who had been married to an Austrian national for at least five years and had their residence (Wohnsitz) in Austria. The exemption certificate subsequently relieved the alien or potential employer from the obligation to apply for an employment permit. S. 19 provided that the alien concerned could apply for an exemption certificate to the competent Regional Labour Market Service.\n\n31.  If an alien had been continuously legally employed within the meaning of the Act for at least 52 weeks in the previous 14 months, he was entitled to request a personal work permit (Arbeitserlaubnis) which was normally valid for one region only and could be restricted to certain kinds of employment (s. 14(a)).\n\n32.  S. 19 provided that in order to obtain an employment permit the employer had to submit details of the proposed employment of the individual employee to the Regional Labour Market Service concerned. The application could be made by the alien only if there was no employer.\n\n33.  According to s. 4(1) an employment permit could only be granted if the situation and evolution of the labour market so allowed and important public or economic interests would not be harmed. Furthermore, specific conditions listed in s. 4(3) had to be fulfilled.\n\n34.  S. 4(b)(1) laid down that the situation and evolution of the labour market only allowed an employment permit to be granted in respect of a proposed foreign employee if there were no prior-ranking foreign job applicants. Prior-ranking foreign job applicants included aliens who were in possession of an exemption certificate within the meaning of s. 15 of the Act or who were in receipt of unemployment insurance payments (Arbeitslosenversicherung) (s. 4(b)(2) and (3)).\n\n35.  S. 4(c) provided that an employment permit had to be issued ex officio in respect of Turkish nationals falling within the relevant provisions of the Association Agreement between the European Union and .\n\n36.  Under s. 13(a) the Minister for Labour and Social Affairs could fix maximum quotas for the employment of aliens in a specific region (Landeshöchstzahl) for the following year. S. 4(6) provided that once the maximum quota had been exhausted, no further employment permits could be issued unless there were certain exceptional circumstances.\n\n37.  S. 21 provided that, in principle, the foreign job applicant was not a party to the proceedings concerning the issue of the employment permit. Exceptions were made where the personal circumstances of the alien were relevant to the decision or where there was no employer.\n\n38.  According to the settled case-law of the Constitutional Court and the Administrative Court a refusal to issue an employment permit under S. 4(1) and (6) of the Employment of Aliens Act could not violate a proposed foreign employee’s rights because he had no legal entitlement to the grant under that Act (see VfSlg 14.347/1995, VfSlg 13617/1993; and the Administrative Court’s decision of 16 November 1995, 94/09/0330).\n\n39.  The  and the  have further held that the refusal of an employment permit to a proposed employer is not a decision concerning the employer’s “civil rights” (see, for example, VfSlg 13617/1993 and ’s decision of 29 October 1997, 95/09/0254 with further references).\n\n40.  According to s. 39(1) of the Administrative Court Act, the  must hold a hearing after its preliminary investigation of the case if a complainant so requests within the time-limit. S. 39(2) and (6) provides, however, that, notwithstanding such a request, the Administrative Court may decide not to hold a hearing if it is apparent from the written pleadings of the parties and the files relating to the previous proceedings that an oral hearing is unlikely to help clarify the case and that the lack of a hearing will not violate Article 6 of the Convention.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION\n\n41.  Both applicants complained that there had been no oral hearing before the  in the proceedings concerning the issue of an employment permit. The second applicant further complained that he had been denied access to a court as he was not a party to the proceedings. The applicants relied on Article 6 of the Convention, which, in so far as relevant, reads as follows:\n\n“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”\n\nA.  The parties’ submissions\n\n1.  The applicants\n\n42.  The applicants submitted that the second applicant was integrated in  and had a right to an employment permit under Article 8 of the Convention. They submitted in this regard that the second applicant had been legally residing in Austria since 1991 and had a wife and a daughter in  who, in the interim, had become Austrian nationals. He had already worked for the applicant company for seven years. The applicants submitted that a claim to work by a foreign worker permanently established with his family in the host country was, at the very least, an arguable right. The right of a foreign employee to an employment permit was furthermore indirectly recognised by the case-law of the  according to which an alien was not to be discriminated against by another alien. Further, the competent authorities did not have an unfettered discretion to decide whether or not an employment permit should be granted but were bound by the conditions laid down in the Employment of Aliens Act. The applicants argued that the second applicant’s right to employment in Austria could be deduced from the Geneva Refugee Convention, the International Covenant on Economic, Social and Cultural Rights, the Association Agreement between Austria and Turkey and the European Social Charter.\n\n43.  The applicants submitted that an employment permit was a condition precedent to the validity of the contract of employment between the employer and the foreign employee and was therefore a decisive factor in a civil-law relationship. Even if a foreign worker employed under an invalid employment contract had the same rights to a salary from his employer as he would have had under a valid employment contract, he did not have protection against dismissal, health insurance, pension rights or a right to representation by the Workers’ Committee. Moreover, a worker who was illegally employed risked being prohibited from residing in . The proceedings at issue were comparable to administrative proceedings concerning the approval of a transaction under the Real Property Transactions Act to which the Court had found that Article 6 was applicable (Ringeisen v. Austria, judgment of 16 July 1971 Series A no. 13, and Sramek v. Austria, judgment of 22 October 1984, Series A, no. 84), or to proceedings concerning a guardianship court’s approval of a contract concerning a minor. The applicants further pointed out that the Labour Market Service could not change a civil employment contract but could refuse to grant a permit if the salary did not correspond to the minimum wage set out in the relevant collective bargaining agreement.\n\n44.  They maintained that the lack of an oral hearing before the  and the fact that the second applicant had been denied access to a court constituted violations of Article 6 of the Convention.\n\n2.  The Government\n\n45.  The Government submitted that Article 6 was not applicable to the proceedings at issue. In respect of the second applicant they argued that he could not claim a right within the meaning of Article 6 as under domestic law he had neither a right to apply for an employment permit nor a right to the issue of such a permit. They referred in that connection to the decision of B. v. the Netherlands (no. 12074/86, Commission decision of 14 July 1988, unreported), in which the Commission found that, in the absence of an independent right of an alien to apply for a work permit under Dutch law, Article 6 was not applicable to the proceedings relating to such an application. The Government further stressed that the refusal to issue an employment permit affected the foreign worker’s legal position only to a limited extent as, in the absence of an employment permit a foreign worker who was actually employed had the same rights against his employer as if the contract of employment was valid. Furthermore, if the lack of an employment permit was due to the employer’s negligence, the foreign employee enjoyed all the rights to which he would have been entitled upon the termination of a valid employment relationship.\n\n46.  The Government also argued that the proceedings did not involve the determination of a “civil” right of either the applicant company or the second applicant. They argued in this respect that the requirement of an employment permit for foreign workers served to regulate the Austrian labour market and social policy. Although a decision concerning such a permit had certain effects on relationships under the civil law, its primary purpose was public. In the present case, the refusal to grant an employment permit was exclusively based on considerations concerning the public interest. The Employment of Aliens Act provided for the gradual integration of foreign workers into the Austrian labour market. The decision concerning the alien’s initial entry into the Austrian labour market, namely the issue of an employment permit, was exclusively based on public interests and the alien concerned therefore had no right to such a permit. As the alien became further integrated into the labour market, however, public interests became less decisive and he acquired a legal right to a work permit and, subsequently, to an exemption certificate granting him full access to the Austrian labour market.\n\n47.  The Government further argued that the applicant company had been free to employ someone else. There had not, therefore, been any restriction on the manner in which it exercised its economic activities and property rights or in the scope of those activities and rights.\n\n48.  The Government submitted that, even if the Court were to find that Article 6 was applicable, there had been no violation of the applicant company’s right to an oral hearing before a tribunal as the special features of the proceedings constituted “exceptional circumstances” which justified the absence of a hearing. The Government noted in that connection that in their submissions to the  the applicants had not substantiated their complaint relating to the maximum quota or their request for an oral hearing. The  had, therefore, been in a position in which it could decide the case on the basis of the case-file.\n\n49.  The Government admitted that, if the Court found that Article 6 was applicable to the proceedings at issue, the second applicant’s right of access to a court had been violated.\n\nB.  The Court’s assessment\n\n1.   Applicability of Article 6 § 1 of the Convention\n\n50.  The Court reiterates that, according to the principles laid down in its case-law, it must first ascertain whether there was a “dispute” (“contestation”) over a “right” which can be said, at least on arguable grounds, to be recognised under domestic law. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise. The outcome of the proceedings must be directly decisive for the right in question. Lastly, the right must be a “civil” right (see, amongst many other authorities, Mennitto v.  [GC], no. 33804/96, § 23, ECHR 2000X, with further references).\n\n51.  Turning to the circumstances of the present case, the Court finds that the applicants’ situations must be examined separately.\n\n1.  The applicant company\n\n52.   The Court notes at the outset that the Government did not deny that, following the Labour Market’s Services’ refusal to grant an employment permit, a dispute had arisen between the applicant company and that authority. The dispute, in which the applicant company inter alia argued that the Vorarlberg Labour Market Service had relied on inaccurate figures, was genuine and serious. It remains to be determined whether the dispute related to a civil right of the applicant company.\n\n53.  In this regard, the Court notes that under the Employment of Aliens Act an employment permit for a specific foreign employee is granted to the employer upon request, provided that specified conditions are met, important public or economic interests are not harmed and the situation and evolution of the labour market allow. It follows that the applicant company as the proposed employer could, at least on arguable grounds, claim the right to an employment permit.\n\n54.  The Court finally notes that the validity of an employment contract concluded between an employer and a foreign employee is in principle dependent on the grant of an employment permit. Therefore, the outcome of the proceedings at issue has to be considered directly decisive for the applicant company’s relations in civil law and thus concerned the applicant company’s “civil” rights (see mutatis mutandis Ringeisen v. , cited above; Fehr and Others v. Austria, no. 28866/95, Commission decision of 2 July 1997, unreported).\n\n55.  It follows that Article 6 of the Convention applies to the proceedings concerning the applicant company’s request for an employment permit.\n\n2.  The second applicant\n\n56.   The Court notes that as the proposed foreign employee the second applicant had no locus standi in the proceedings concerning the employment permit. The Court will examine whether this restriction delimited the substantive content properly speaking of the second applicant’s right (so that the guarantees of Article 6 § 1 do not apply) or amounted to a procedural bar preventing the bringing of a potential claim to court, to which Article 6 could have some application (see mutatis mutandis Roche v. the  [GC], no. 32555/96, §§ 118,119, 19 October 2005).\n\n57.  The Court observes that the applicants agreed on the second applicant’s employment by the applicant company and jointly applied for an employment permit. In this important aspect the present case differs from the case of B. v. the Netherlands (cited above), in which the employer refused to join the applicant in his application for a work permit and the Commission found that, in the absence of an independent right to such a permit by the applicant, Article 6 did not apply.\n\n58.  Thus, the present case does not concern the second applicant’s right to employment as such, but rather his right to the necessary public approval of his concrete employment plans with the applicant company. Considering that the applicant company could and actually did claim a right to the issue of an employment permit, the Court finds that the second applicant must be taken to have also had a right, derived from the applicant company’s right, to adjudication on his request for an employment permit. The fact that the domestic legislation precluded him from making the request for an employment permit to the domestic authorities personally does not affect the existence of that right but is only a procedural bar. The Court is comforted in this view by the fact that the relevant domestic legislation does not unconditionally prevent a foreign employee from applying for an employment permit but provides exceptional circumstances in which a foreign worker can institute such proceedings personally (see § 37 above).\n\n59.  Having regard to its findings above (see §§ 53, 54), the Court further considers that the second applicant’s right to conclude a valid employment contract was arguable, and that the dispute he wished to bring before the domestic tribunals was directly decisive for this “civil” right and genuine and serious.\n\n60.  It follows that Article 6 § of the Convention also applies in respect of the second applicant.\n\n2.  Compliance with Article 6 § 1 of the Convention\n\n1.  The applicant company\n\n61 The applicant company complained under Article 6 § 1 of the Convention that there had been no oral hearing before the .\n\n62.  The Court notes that the applicant company’s case was considered by the Bregenz Labour Market Service and the Vorarlberg Labour Market Service, both purely administrative authorities, and subsequently by the . The applicant company did not contest that the  qualified as a tribunal, and there is no indication in the file that the ’s scope of review was insufficient in the circumstances of the case. Thus, the  was the first and only tribunal to examine the applicant’s case (see mutatis mutandis Schelling v. , no. 55193/00, § 29, 10 November 2005).\n\n63.  The applicant company was thus in principle entitled to a public oral hearing before the first and only tribunal to examine its case, unless there were exceptional circumstances which justified dispensing with such a hearing. The Court has accepted such exceptional circumstances in cases where proceedings concerned exclusively legal or highly technical questions (see Schuler-Zgraggen v. Switzerland, judgment of 24 June 1993, Series A no. 263, p. 19-20, § 58; Varela Assalino v. Portugal (dec.), no. 64336/01, 25 April 2002; Speil v. Austria (dec.) no. 42057/98, 5 September 2002).\n\n64.  However, the Court does not consider that the subject matter of the proceedings before the  in the present case was of such a highly technical or exclusively legal nature as to justify dispensing with the obligation to hold a hearing.\n\n65.  There has accordingly been a violation of Article 6 § 1 of the Convention.\n\n2.  The second applicant\n\n66.  The second applicant complained under Article 6 § 1 of the Convention that he had been denied access to a court as he was not a party to the proceedings concerning the issue of an employment permit. He further complained under Article 6 § 1 of the Convention that there had been no oral hearing before the .\n\n67.  The Court reiterates that Article 6 § 1 embodies the “right to a court”, of which the right of access, that is, the right to institute proceedings before a court in civil matters, constitutes one aspect. While this right may be subject to limitations; it must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see, among many other authorities, Osman v. the United Kingdom, judgment of 28 October 1998, Reports of Judgments and Decisions 1998VIII, § 174).\n\n68.  In the present case, the Employment of Aliens Act prevented the second applicant from bringing his claim for an employment permit before the domestic authorities.\n\n69.  The Government admitted that if the Court found that Article 6 was applicable to the proceedings at issue the second applicant’s right of access to a court had been violated.\n\n70.  In the light of the foregoing and its conclusion that Article 6 of the Convention is applicable to the second applicant’s case, the Court finds that there has been a violation of the second applicant’s right of access to a court, as guaranteed by Article 6 § 1 of the Convention.\n\n71.  In view of this finding, the Court does not find it necessary to examine the second applicant’s complaint about the lack of an oral hearing before the .\n\nII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n72.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n73.  The applicants claimed reimbursement of their costs in the domestic proceedings and before the Court under the head of pecuniary damage.\n\n74.  The Court will examine these claims under the head of costs and expenses.\n\nB.  Costs and expenses\n\n75.  The applicants claimed a total of 2,175.36 euros (EUR) including VAT for the costs they had incurred before the domestic authorities, namely before the Vorarlberg Labour Market Service and the . They further claimed EUR 11,744.78 including VAT for the costs incurred in the proceedings before the Court.\n\n76.  The Government argued that these claims were excessive.\n\n77.  According to the Court’s established case-law, an award can be made in respect of costs and expenses incurred by the applicants only in so far as they have been actually and necessarily incurred and are reasonable as to quantum (see inter alia, Belziuk v. Poland, judgment of 25 March 1998, Reports 1998-II, p. 573, § 49, and Craxi v. Italy, no. 34896/97, § 115, 5 December 2002).\n\n78.  As to the costs claim concerning the domestic proceedings, the Court considers that the applicants’ claims meet the above-mentioned conditions. It therefore awards the full sum claimed, namely EUR 2,175.36. This sum includes any taxes chargeable on this amount.\n\n79.  As regards the Convention proceedings, the Court notes the applicants, who did not have the benefit of legal aid, were represented before the Court. However, the application was only partly successful and was brought by the same lawyer and is similar to the application brought in the case of Jurisic and Collegium Mehrerau v. Austria. Making its assessment on an overall basis, the Court awards EUR 7,000 under this head. This sum includes any taxes chargeable on this amount.\n\n80.  Thus, a total of EUR 9,175.36 is awarded in respect of cost and expenses.\n\nC.  Default interest\n\n81.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT\n\n1. Holds unanimously that Article 6 § 1 of the Convention is applicable to the proceedings in respect of the applicant company;\n\n2. Holds by five votes to two that Article 6 § 1 of the Convention is applicable to the proceedings in respect of the second applicant;\n\n3.  Holds by six votes to one that there has been a violation of Article 6 § 1 of the Convention in respect of the applicant company’s right to a public oral hearing before the Administrative Court;\n\n4.  Holds by five votes to two that there has been a violation of Article 6 § 1 of the Convention in respect of the second applicant’s right of access to a court;\n\n5. Holds unanimously that it is unnecessary to examine the second applicant’s further complaint about the lack of an oral hearing under Article 6 § 1 of the Convention;\n\n6.  Holds by six votes to one\n\n(a)  that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 9,175.36 (nine thousand one hundred and seventy-five euros and thirty-six cents) in respect of costs and expenses;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount[s] at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n6.  Dismisses unanimously the remainder of the applicants’ claim for just satisfaction.\n\nDone in English, and notified in writing on 27 July 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.\n\nIn accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following dissenting opinions are annexed to this judgment:\n\n(a)  Partly dissenting opinion of Mrs Steiner joined by Mrs Vajić;\n\n(b)  Partly dissenting opinion of Mrs Vajić.\n\nI do not agree with the majority that Article 6 of the Convention is applicable in respect of the second applicant for the following reasons.\n\nIt has been the Court’s consistent case-law that Article 6 applies only to disputes over “rights” which can be said, at least on arguable grounds, to be recognised under domestic law (see, amongst many other authorities, James and Others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98, Z and Others, at § 81 and the authorities cited therein together with McElhinney v. Ireland [GC], no. 31253/96, § 23, ECHR 2001XI (extracts))\n\nIt was the applicants’ contention that the second applicant had a right recognised under Austrian law for an employment permit. They did not claim that such a right could be derived from the provisions of the Employment Act but rather argued that such a right can be based on other provisions which are part of Austrian law.\n\nI will take these provisions in turn. The first argument is that he can rely on Article 8 of the Convention. I would, however, point out that in the admissibility decision of this very case, the Court found that the facts complained of did not fall within the ambit of Article 8 of the Convention. The applicants next argue that the second applicant can rely on the ’s case-law prohibiting all kinds of discrimination including discrimination between foreigners. However, this case-law merely refers to an equal enjoyment of legal positions guaranteed by law and cannot guarantee a substantive right to employment itself. Next the applicants suggest that a right to an employment permit might be inferred from the Geneva Refugee Convention. However, it has not been submitted that the second applicant has been recognised as a refugee or that any such application had been made before the domestic authorities. Further, the applicants refer to the International Covenant on Economic, Social and Cultural rights and the European Social Charta. However, these international instruments are not self executing at the domestic level and for this reason cannot confer any subjective right at the domestic level on the applicants. I would only add that the wording of the relevant provisions does not give the impression that they actually give an unconditional right of employment to foreigners. Lastly the applicants propose that the Association Agreement concluded between the European Union and the  be extended to them. I do not think this is possible. By concluding such an agreement the parties have consented to enter into a special relation and it cannot be claimed that they had had the intention to extend this special treatment to thirds who are not party to that agreement.\n\nI will now turn to the majority’s finding that the fact that the second applicant had no locus standi in the proceedings concerning the issuing of an employment permit did not delimit the substantive content properly speaking of his right, but amounted merely to a procedural bar and that Article 6 of the Convention was therefore applicable (§§ 56, 58). They cite the case Roche v. the . This case refers in fact to previous case-law concerning otherwise well-founded claims in domestic law subsequently prevented from being entertained before a domestic court because subsequently issued legal acts or the grant of State immunity. In these cases Article 6 was held applicable (see Tinnelly & Sons Ltd and Others and McElduff and Others v. the United Kingdom, judgment of 10 July 1998, Reports of Judgments and Decisions 1998IV; Al-Adsani v. the United Kingdom [GC], no. 35763/97, ECHR 2001XI; Fogarty v. the United Kingdom [GC], no. 37112/97, ECHR 2001XI and McElhinney v. Ireland [GC], no. 31253/96, ECHR 2001XI (extracts)).\n\nHowever, I cannot find that the present case is in any aspect comparable to these cases. Looking at the relevant provisions of the domestic legislation, the Employment of Aliens Act, and its interpretation by the domestic courts, I cannot discern any provision granting a foreigner the right to an employment permit and, consequently, general locus standi in such proceedings. Only in very exceptional situations, which the applicants have never even alleged to exist in their case, a foreigner may be party to the proceedings (see § 37 above).\n\nI finally note that in the very case Roche v. United Kingdom the Court stressed that, in assessing whether there is a civil “right” and in determining the substantive or procedural characterisation to be given to an impugned restriction, the starting point must be the provisions of the relevant domestic law and their interpretation by the domestic courts (see § 120) and, having carefully examined these elements, considered that Mr Roche had no (civil) “right” recognised under domestic law which would attract the application of Article 6 § 1 of the Convention (§ 124)\n\nI regret that the majority disregarded these principles in the present case. Thereby, the Court distorted the domestic legislation and its accepted interpretation by substituting them by its own understanding.\n\n1. I regret that I am unable to agree with the majority’s finding that Article 6 of the Convention is applicable to the second applicant. On that point I join the dissenting opinion of Judge Steiner.\n\n2. I have voted with the majority as to the applicability of Article 6 in respect of the first applicant. However, I cannot agree with the finding that there was also a violation of Article 6 in respect of the applicant company’s rights to an oral hearing in the present case. In rejecting the request for an oral hearing the Administrative Court based itself, inter alia, on section 39(2) of the Administrative Court Act according to which it may decide not to hold a hearing if such a hearing is unlikely to help clarify the case (§ 25).\n\nThe dispute between the parties in the instant case related basically to the maximum quota fixed for the employment of foreign workers in Vorarlberg as the applicant contested the accuracy of the official statistics due to which the quota had been exceeded.\n\nThe majority has concluded, without any further explanation and following a somewhat mechanical approach, that the subject matter of the proceedings before the Administrative Court in the present case was not of such a “highly technical or exclusively legal nature” as to justify dispensing with the obligation to hold a hearing (§ 64). With due respect, I do not share that opinion.\n\nIn my opinion the applicant’s submissions to the Administrative Court were not of a kind to raise issues of fact or law which were of such a nature as to require an oral hearing for their disposition (see among others Pitkänen v. Sweden (dec.), no. 52793/99, 26 August 2003; Pursiheimo v. Finland (dec.), no. 57795/00, 25 November 2003; Varela Assalino v. Portugal (dec.), no. 64336/01,25 April 2002; Döry v. Sweden, judgment of 12 November 2002, § 44; Strömblad v. Sweden (dec.), no. 45935/99, 11 February 2003; Allan Jacobsson v. Sweden (No. 2), judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, § 49). Having regard to the facts of the case, the main question the  had to determine related to the finding of the Labour Market Services that the maximum quota has been exceeded and the application of the quota to the applicant, thus leaving no discretionary powers to the court to decide. In my opinion that question could have been adequately resolved on the basis of the case file and the written submissions and did not require a debate. I therefore fail to see why written submissions challenging the findings on the maximum quota and containing information and possible data trying to prove the contrary would not have sufficed. The applicant has not submitted any elements of a nature to convince me that only an oral hearing subsequent to the written submissions would have assured the fair character of the proceedings.\n\nMoreover, it is understandable that in this sphere relating to employment quotas for foreign workers the national authorities should have regard to the demands of efficiency and economy. Systematically holding hearings could be an obstacle to the particular diligence required in such cases (see mutatis mutandis Speil v. Austria (dec.), no. 42057/98, 5 September 2002; Schuler-Zgraggen v. Switzerland, judgment of 24 June 1993, Series A no. 263, § 58).\n\nFor these reasons I am of the opinion that there were circumstances which justified dispensing with an oral hearing before the  in the present case.\n\nFinally, I am of the opinion that the Court should have a more flexible approach, than the one adopted by the majority in the instant case, when evaluating whether decisions of domestic authorities not to hold an oral hearing in civil cases amounted to a violation of Article 6 § 1 of the Convention. In other words, it should examine the need for the hearing (i.e., whether it would serve any purpose and/or bring new elements to the courts’ reasoning) on the particular facts of each case and also having special regard to the reasoning of the domestic courts. The Court should, of course, always emphasize the need for an oral hearing in really important cases, but at the same time it should avoid unnecessarily burdening domestic courts from whom we repeatedly demand particular diligence, especially in the kind of cases as the present one.","title":""}
{"_id":"passage_419","text":"PROCEDURE\n\n1.  The case originated in an application (no. 72092/12) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Lithuanian national, Mr Aleksandras Mažukna (“the applicant”), on 5 November 2012.\n\n2.  The applicant was represented by Ms S. Naidenko, a lawyer practising in Antežeriai, Vilnius Region. The Lithuanian Government (“the Government”) were represented by their Agent, Ms K. Bubnytė.\n\n3.  The applicant alleged that there had not been an effective investigation into the circumstances of an accident at work in which he had been injured. He relied on Article 6 § 1 and Article 13 of the Convention.\n\n4.  On 10 September 2014 the application was communicated to the Government under Articles 3, 6 § 1 and 13 of the Convention.\n\n5.  On 9 January 2016 the applicant died. His son and legal heir, Mr Marius Mažukna, expressed the wish to pursue the proceedings on the applicant’s behalf.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n6.  The applicant was born in 1959 and lived in Pamažupiai, Pasvalys Region.\n\n7.  In February 2007 the applicant started working as a welder for the company N. On 17 April 2007 he was working at a factory construction site in the city of Klaipėda. Around 4.20 p.m., while the applicant and two other workers were standing on scaffolding approximately two metres above the ground, the scaffolding broke and all the workers fell to the ground (hereinafter “the accident”).\n\n8.  According to the applicant, he fell on his back and hit his head on a concrete surface, causing his helmet to break into pieces. One of his coworkers and a metal tool fell on top of him. The applicant lost consciousness. He stated that while he was unconscious, he was moved away from the location of the accident on the orders of his employer and all traces of the accident were removed. At 4.53 p.m. an ambulance was called and the applicant was taken to hospital. It appears that the other workers sustained only minor injuries.\n\n9.  The site of the accident was examined the same day by an inspector from the State Labour Inspectorate. He noted that at the time of the examination the scaffolding was intact and no workers were present at the construction site. The inspector spoke to the construction site manager, V.J.S., who stated that he had not seen the accident because he had been elsewhere on the site. The inspector also spoke to the person in charge of work safety in the company N. who informed him that, on the basis of the initial medical examination, the applicant had not sustained any serious injuries. Accordingly, the inspector decided that the State Labour Inspectorate would not investigate the circumstances of the accident.\n\n10.  On 31 May 2007 another inspector from the State Labour Inspectorate looked into how the accident had happened and concluded that the applicant had fallen from the scaffolding because of his own recklessness. The applicant submitted a complaint against that conclusion and on 15 July 2007 the Inspectorate adopted a new conclusion, holding that the accident had been caused by “the inappropriate organisation of dangerous work” (netinkamas pavojingo darbo organizavimas), in particular because the scaffolding had not complied with the applicable work safety requirements.\n\nA.  Pre-trial investigation\n\n11.  On 10 September 2007 the applicant asked the Klaipėda city prosecutor’s office (hereinafter “the prosecutor”) to open a pre-trial investigation into the accident. The investigation was opened on the same day and conducted by an investigator from Klaipėda police (hereinafter “the investigator”).\n\n12.  On 9 October 2007 the investigator instructed a court medical expert to examine the applicant’s medical file in order to determine the number, severity and causes of his injuries. The report on the results of that examination, delivered on 18 October 2007, showed that the applicant had sustained a large cut on his head, face and right ear, as well as multiple fractures of his facial bones, and a contusion on the chest. The injuries had been caused by blunt objects and flat surfaces, and could have occurred when falling from a height. The report noted that the injury on the head had bled, so there should have been traces of blood at the site of the accident. It concluded that the injuries to the applicant’s head and face amounted to a minor health impairment (nesunkus sveikatos sutrikdymas) while the injury to his chest amounted to a negligible health impairment (nežymus sveikatos sutrikdymas). However, it also noted that the injury to the face would leave a big scar, possibly resulting in disfigurement and impairment of facial expression.\n\n13.  On 13 November 2007 the applicant was interviewed as a witness in the investigation. He stated that just before the accident he and five other workers had been carrying a metal platform to attach to a reservoir tank. The applicant and two other workers had been holding the upper part of the platform while standing on the scaffolding and three others had been on the ground, holding the platform’s bottom part. The weight of the platform was about 200 kg. Suddenly, the scaffolding had collapsed and all three workers had fallen to the ground. At that point the applicant had lost consciousness. When he had come to, he had realised that he was not lying near the scaffolding, where he must have fallen, but in a different place. He had not seen any debris from the scaffolding around him, or any other traces of the accident.\n\nOn the same day the applicant was granted the status of a victim in the investigation.\n\n14.  On the same day the investigator instructed a court medical expert to examine the applicant’s scars caused by the accident. The report on the results of that examination, delivered on 15 November 2007, found that the facial injury had left a large, rough scar, causing a minor disfigurement and impairment of facial expression. It also found that the scar and the resulting deformation could only be removed by plastic surgery, so the injury was considered as irreparable. As a result, the report concluded that the applicant’s injury was legally classified as serious health impairment (sunkus sveikatos sutrikdymas).\n\n15.  In November and December 2007 the investigator interviewed several of the applicant’s co-workers and other people who had worked near the factory construction site. It appears that the co-workers stated that no platform had been carried on the day of the accident. None of those interviewed had seen how the applicant had fallen from the scaffolding. From January to June 2008 more witnesses were interviewed and the investigator requested various documents from the applicant’s employer and from several State institutions which had assessed the applicant’s health and ability to work after the accident.\n\n16.  On 13 August 2008 the applicant was interviewed again. He stated that before the accident he had sometimes felt dizzy and had a feeling of numbness in his legs, but he had been declared fit to work after a medical examination.\n\n17.  On 6 October 2008 the prosecutor discontinued the pre-trial investigation. He relied on the State Labour Inspectorate report that no damage to the scaffolding on the day of the accident had been observed (see paragraph 9 above), and noted that none of the witnesses had corroborated the applicant’s description of how he had fallen. The prosecutor observed that the applicant may have fallen from the scaffolding owing to his own recklessness (dėl savo paties neatsargumo), possibly because of the numbness in his legs. Accordingly, the prosecutor decided that the scaffolding had complied with safety requirements, and that there were no grounds to find that the applicant’s employer had violated any laws.\n\n18.  The applicant appealed against the prosecutor’s decision. He also asked for the appointment of a different prosecutor to supervise the case and to carry out a forensic examination in order to determine the causes of the accident. On 27 October 2008 a senior prosecutor dismissed his appeal, noting that around fifty witnesses had been questioned, but nobody had corroborated the applicant’s claims. However, on 5 December 2008 the Klaipėda District Court overruled the prosecutor’s decision and reopened the pre-trial investigation. The court noted that the prosecutor had not addressed the State Labour Inspectorate’s conclusion of 15 July 2007 (see paragraph 10 above), and that other witnesses had only stated that they had not seen how the applicant had fallen from the scaffolding but had not disputed his account. The court also considered that the prosecutor’s conclusion that the applicant had fallen because of his own recklessness or a medical condition had been “speculative and not based on any objective facts”. However, the court rejected the applicant’s request to appoint a different prosecutor as unfounded and did not examine his request to carry out a forensic examination, noting that the choice of investigative measures was the prerogative of investigators and prosecutors.\n\n19.  In January and February 2009 the investigator examined the site of the accident and interviewed more witnesses.\n\n20.  On 2 April 2009 the prosecutor instructed the investigator to carry out several additional investigative measures. Among other things, the investigator was requested to identify whether on the day of the accident or earlier the applicant and other workers had been ordered by their employer to attach the metal platform to the reservoir tank.\n\n21.  In April and May 2009 the investigator carried out additional interviews with several witnesses and requested further information from the applicant’s employer and from the medical institutions which had examined him.\n\n22.  On 12 May 2009, in response to a prior complaint by the applicant, the deputy chief prosecutor of the Klaipėda city prosecutor’s office informed him that there were no grounds to find that the pre-trial investigation in his case had been unduly protracted.\n\n23.  On 21 May 2009 the applicant’s co-worker V.K. submitted a written statement to the State Labour Inspectorate that on the day of the accident he and other workers had been ordered by their supervisor V.J.S. to attach the metal platform to the reservoir tank. V.K. also submitted that the scaffolding had been made of very thin wood and could have broken at any time. He further alleged that immediately after the accident the director of the company N. had told other workers to repair the scaffolding. V.K. also asserted that he had previously given different testimony because of pressure from his employer.\n\n24.  On 8 June 2009, in response to a complaint by the applicant about the length of the investigation, the chief prosecutor of the Klaipėda city prosecutor’s office noted that “the investigation had not always been of sufficient intensity” (tyrimo intensyvumas ne visada buvo pakankamas) and that the prosecutor had been instructed to set a deadline for completing the investigation. The chief prosecutor also informed the applicant that it was still necessary to interview several witnesses living in various parts of the country and to carry out further investigative measures.\n\n25.  On 17 June 2009 the State Labour Inspectorate adopted a new conclusion on the circumstances of the accident, holding that the scaffolding had not complied with applicable safety requirements and that the applicant had not been given appropriate instructions for working at height. Accordingly, the Inspectorate concluded that the applicant’s employer had breached the legal requirements concerning safety at work.\n\n26.  On 3 July 2009 the prosecutor discontinued the pre-trial investigation. He observed that the applicant and other workers had been using the scaffolding for several days before the accident and there had not been any accidents during that time, so there were no grounds to find that the scaffolding had been unsafe. The prosecutor also concluded that the workers had not been ordered by their employer to attach the metal platform to the reservoir tank because the construction manager, V.J.S., had not been at work on the day of the accident. Accordingly, the employer could not be held responsible for the workers’ decision to carry the platform on the scaffolding. The prosecutor further observed that, in any event, the applicant had had the right to refuse to carry out tasks which were unsafe or for which he was unqualified, but he had not exercised that right. The prosecutor therefore concluded that the accident had been caused by the recklessness of the workers and not by the actions or omissions of the employer.\n\n27.  The applicant appealed against the prosecutor’s decision but on 24 July 2009 a senior prosecutor dismissed his appeal. However, on 13 October 2009 the Klaipėda District Court overruled the prosecutor’s decision and reopened the pre-trial investigation. The court observed that the absence of previous accidents on the scaffolding could not be interpreted as evidence that the scaffolding was safe. It also held that the applicant’s right to refuse to carry out tasks in unsafe conditions did not excuse the employer from a duty to ensure that unsafe conditions did not exist at the workplace. The court further noted that attaching the platform to the reservoir tank had clearly been part of the construction work, so the employer had a duty to properly supervise the workers and to instruct them how to carry out that task safely – and by failing to do so, the applicant’s employer had acted contrary to the law.\n\n28.  The prosecutor appealed against that judgment, but on 28 October 2009 the Klaipėda Regional Court dismissed the appeal. In its judgment the court noted that although more than two years had passed since the accident, the prosecutor had still not determined the precise way in which the accident had happened, and that without doing that it was not possible to determine who had been responsible for it. The court also considered it unlikely that the workers would have decided to attach the platform without receiving an order from their supervisor or at least informing him, so it was necessary to examine whether the construction manager V.J.S. had been present at the construction site at any time that day. Lastly, the court drew attention to the fact that “some witnesses” had admitted to giving false testimony under pressure from the employer and so it was necessary to investigate those claims further.\n\n29.  In November and December 2009 the investigator arranged several formal confrontations between witnesses, interviewed additional witnesses, and requested further information from the applicant’s employer and the hospital where the applicant had been examined.\n\n30.  On 17 December 2009, following a complaint by the applicant, the deputy chief prosecutor of the Klaipėda region prosecutor’s office sent a note to the Klaipėda city prosecutor’s office, observing that the pre-trial investigation had been going on for more than two years, and requesting that it promptly carry out any necessary further investigative measures in order to make a well-founded final decision.\n\n31.  On 7 January 2010, after an application by the prosecutor, the Klaipėda District Court ordered a forensic examination of the precise way in which the accident had happened and its causes. The forensic expert examined the case file and delivered a report on 17 February 2010. The report noted that there was insufficient information in the case file concerning the technical characteristics of the metal platform and the scaffolding, so the way the accident had happened could be established only in part. On the basis of the available material, the report found that the weight of the platform had exceeded the weight limit of the scaffolding and had thus caused it to collapse. Accordingly, it concluded that the scaffolding had not been suitable for the work for which it was used, and that the workers had not been adequately informed about how to carry out their work safely. The report found that the employer had thereby breached the applicable work safety requirements.\n\n32.  In March 2010 the investigator interviewed additional witnesses and arranged formal confrontations.\n\n33.  On 19 May 2010 the prosecutor again discontinued the pre-trial investigation. He held that witness testimony and other evidence showed that the applicant’s supervisor V.J.S. had not been present at the construction site on the day of the accident and that he had not ordered the workers to attach the platform. As a result, the prosecutor concluded that V.J.S. had not had any duty to ensure the safety of that operation. He further concluded that the accident had been caused by the workers’ reckless decision to carry the platform, which had exceeded the weight limit of the scaffolding. The prosecutor noted that although the scaffolding had not fully complied with the applicable safety requirements, that had not been the main cause of the accident and thus the applicant’s employer could be held liable only for an administrative offence of failure to comply with work safety requirements (see paragraph 58 below), but not for a criminal offence.\n\nThe prosecutor also observed that a separate pre-trial investigation should be opened in order to examine the claims of some witnesses that they had been pressured by their employer to give false testimony. However, from the material available to the Court it appears that no such investigation was opened.\n\n34.  The applicant appealed against the prosecutor’s decision, but on 7 June 2010 a senior prosecutor dismissed his appeal. However, on 9 August 2010 the Klaipėda District Court overruled the prosecutor’s decision and reopened the pre-trial investigation. The court underlined that attaching the platform to the reservoir tank had been an inherent part of the construction work carried out by the applicant and other workers, so it could not be considered that they had decided to do that of their own free will. It referred to the expert report of 17 February 2010, noting that that report had given grounds to believe that the applicant’s employer had failed to ensure safe working conditions. The court further noted that V.J.S. had not been officially authorised to leave his workplace on the day of the accident, and thus he had failed to ensure the safety of the workers under his supervision.\n\n35.  On 15 October 2010 V.J.S. was officially notified that he, being a person authorised by an employer to supervise construction work, was suspected of violating safety requirements at work, which had resulted in an accident, as set out in Article 176 § 1 of the Criminal Code.\n\n36.  In October and November 2010 the investigator interviewed V.J.S. and several witnesses.\n\n37.  On an unspecified date the applicant complained to the Prosecutor General’s Office that the pre-trial investigation had been protracted, in particular because it had been discontinued and reopened several times. On 26 November 2010 the Prosecutor General’s Office dismissed his complaint and stated that the repeated discontinuation of the investigation did not give grounds to find that any requirements of the Code of Criminal Procedure had been violated.\n\n38.  In January and February 2011 the investigator carried out additional interviews with several witnesses and requested further information from the applicant’s employer.\n\n39.  On 14 February 2011 the applicant was informed that the pre-trial investigation had been completed. V.J.S. submitted a request to continue the investigation and carry out additional investigative measures but that request was dismissed.\n\nB.  Court proceedings\n\n40.  On 1 April 2011 the prosecutor issued an indictment against V.J.S. under Article 176 § 1 of the Criminal Code and on 5 April 2011 the case was transferred to the Klaipėda District Court for examination on the merits. On 28 April 2011 the chairperson of that court noted that the case was complex and large-scale, and allowed an additional thirty days to prepare for its examination.\n\n41.  The Klaipėda District Court held the first hearing on 30 June 2011 and decided to adjourn the case until 27 September 2011 because several witnesses were not present.\n\n42.  The next hearing was held on 27 September 2011 but several witnesses were absent again and the Klaipėda District Court fined them for failing to appear. The court also decided to adjourn the case until 24 November 2011 in order to ensure the participation of all the necessary witnesses and, as requested by the applicant, to obtain the technical details about the metal platform.\n\n43.  It appears that subsequently the case was adjourned again and a new hearing was scheduled for 14 December 2011.\n\n44.  On 13 December 2011 V.J.S. submitted a medical certificate to the court indicating that he would be sick from 12 to 16 December 2011, and asked for a further adjournment.\n\n45.  The Klaipėda District Court held a hearing on 14 December 2011 but because of the absence of the accused it was decided to adjourn and to schedule a new hearing for 5 January 2012.\n\n46.  At the hearing of 5 January 2012 V.J.S.’s lawyer informed the Klaipėda District Court that his client was still sick and had a medical certificate that was valid for another seven days. The court scheduled new hearings for 17, 19 and 24 January 2012.\n\n47.  On 16 January 2012 the applicant submitted a civil claim against V.J.S., asking for non-pecuniary damages of 300,000 Lithuanian litai (LTL – approximately 86,886 euros (EUR)).\n\n48.  On 17 January 2012 V.J.S.’s lawyer asked the court to adjourn the case again because his client had been admitted to hospital. Later, V.J.S. submitted a medical certificate indicating that he would be sick from 16 to 23 January 2012, which also showed that he would undergo rehabilitation treatment from 23 January to 6 February 2012.\n\n49.  The Klaipėda District Court held a hearing on 24 January 2012 and decided to adjourn until 14 February 2012. Subsequently, owing to the continued illness of the accused, the case was adjourned until 17 February 2012, then again until 1 March 2012 and 16 March 2012.\n\n50.  On 19 March 2012 the applicant asked the Klaipėda District Court to continue its examination of the case in the absence of the accused, complaining that the latter was deliberately avoiding appearing before the court. The Klaipėda District Court dismissed that application, informing the applicant that V.J.S. had submitted the required medical certificates to prove his illness and that domestic law did not allow for the examination of a criminal case in the absence of the accused. The court also noted that examination of the case had not been unduly protracted because the hearings had been scheduled with as little time between them as possible.\n\n51.  Subsequently, owing to the accused’s continued illness, the court further adjourned the case to 11 April 2012, 24 April 2012, and then to 8 May 2012.\n\n52.  On 7 May 2012 the applicant asked the court to adjourn the hearing because he had to be admitted to hospital for surgery.\n\n53.  The Klaipėda District Court held a hearing on 8 May 2012 from which the applicant was absent. During the hearing the prosecutor asked the court to terminate the case against V.J.S. as time-barred. The court adopted a decision on 14 May 2012 and terminated the case. It noted that V.J.S. had been charged with a crime of negligence, and in such cases the statute of limitations, applicable at the time of the accident, was five years (see paragraph 59 below). The court also observed that the domestic law provisions on the statute of limitations, applicable at the time of the accident, were “unconditional” (besąlygiškos nuostatos) and did not provide for the possibility to suspend the limitation period. The domestic law was subsequently amended to allow such a decision (see paragraph 60 below), but the new legal framework could not be applied retroactively to the detriment of the accused.\n\nThe court did not examine the applicant’s civil claim and noted that he had the right to institute separate civil proceedings for damages.\n\n54.  On 4 June 2012 the applicant complained to the Klaipėda Regional Court that the examination of the case before the district court had been so protracted that it had become time-barred, and asked the regional court to identify the reasons for that protraction. The court considered that complaint as an appeal by the applicant against the Klaipėda District Court’s judgment of 14 May 2012 but refused to admit it because the applicant had not signed it or properly outlined the reasons for the appeal. The applicant did not submit another appeal against the judgment of 14 May 2012.\n\n55.  On an unspecified date V.J.S. appealed against the Klaipėda District Court’s judgment of 14 May 2012 and asked the court to examine the case on the merits and to acquit him, but on 13 June 2012 his appeal was dismissed.\n\n56.  On 22 November 2012 the Prosecutor General’s Office, in response to a complaint by the applicant, informed him that it had analysed the work of the prosecutors involved in the case and had not detected any “substantial violations” (esminiai pažeidimai) of the Code of Criminal Procedure.\n\nII.  RELEVANT DOMESTIC LAW\n\nA.  Liability for violations of work safety requirements\n\n57.  At the material time, the relevant parts of Article 176 of the Criminal Code read:\n\n“1.  An employer or a person authorised by him or her who violates the requirements of safety or health protection at work as set out in legislation on safety at work or other legal acts, where this results in an accident involving people or causes other serious consequences, shall be punished by a fine or by imprisonment for a term of up to eight years ...\n\n3.  The acts provided for in paragraph 1 of this Article shall be criminal also where they have been committed through negligence.”\n\n58.  At the material time, the relevant pars of Article 41 of the Code of Administrative Offences read:\n\n“When there has been a violation of labour laws or legal acts on work safety and work hygiene, the employer or a person authorised by the employer shall be fined from five hundred to five thousand Lithuanian litai. ...”\n\nB.  Statute of limitations\n\n.  The relevant parts of Article 95 of the Criminal Code, in force from April 2003 until June 2010, provided:\n\n“1.  A person who has committed a criminal offence cannot be convicted if:\n\n1)  the following period has lapsed: ...\n\nb)  five years, in the event of the commission of a crime of negligence or of a minor premeditated crime; ...\n\n2)  during the period laid down in sub-paragraph 1, the person did not hide from the pre-trial investigation or the trial and did not commit a new criminal offence ...”\n\n.  In June 2010 a new version of Article 95 of the Criminal Code was passed. It provides, in the relevant parts, as follows:\n\n“1.  A person who has committed a criminal offence cannot be convicted if:\n\n1)  the following period has lapsed: ...\n\nb)  eight years, in the event of the commission of a crime of negligence or of a minor premeditated crime; ...\n\n2)  during the period laid down in sub-paragraph 1, that person did not hide from the pre-trial investigation or the trial and did not commit a new premeditated criminal offence ...\n\n5.  During the examination of a case before a court, the statute of limitations is suspended for the period during which:\n\n1)  the court adjourns the examination of the case because of the absence of the accused or his or her counsel;\n\n2)  the court adjourns the examination of the case until a forensic examination requested by the court or a specialist investigation has been carried out, or until a legal assistance request sent to another State has been executed;\n\n3)  the court adjourns the examination of the case and instructs a prosecutor or a pretrial investigation judge to carry out investigative measures provided in the Code of Criminal Procedure;\n\n4)  the court adjourns the examination of the case in order to allow newly appointed defence counsel to get acquainted with the case file ...”\n\n61.  In a ruling of 7 November 2006 in criminal case no. 2K-466/2006 the Supreme Court held:\n\n“In accordance with the laws on criminal procedure, a criminal case must be discontinued when the statute of limitations expires ... By providing for such a possibility, the legislator acknowledged that pre-trial investigation institutions or courts in a given criminal case may not fulfil their constitutional duty [to examine the case] within the time-limit provided by law. For that reason, the Criminal Code provides, imperatively and unconditionally, that in such instances a criminal case must be discontinued.”\n\nC.  Civil claim in criminal proceedings\n\n62.  The relevant parts of Article 115 of the Code of Criminal Procedure read:\n\n“1.  When adopting a judgment of conviction, the court grants the civil claim in full, in part or refuses it, depending on the evidence as to the well-foundedness and amount of the claim. ...\n\n2.  In exceptional instances, when the amount of the civil claim cannot be calculated precisely without adjourning the criminal case or obtaining additional information, the court adopting a judgment of conviction may recognise the civil claimant’s right to have his or her claim granted and leave the question of the amount to be examined in civil proceedings.\n\n3.  When adopting a judgment of acquittal, the court:\n\n1)  refuses to grant the civil claim if it has not been proven that the accused participated in the criminal act;\n\n2)  leaves the civil claim unexamined if the accused is acquitted because a criminal act has not been committed. In such instances the civil claimant may submit the claim in civil proceedings.”\n\n63.  In a ruling of 14 March 2006 in criminal case no. 2K-260/2006 the Supreme Court held:\n\n“The Code of Criminal Procedure does not explicitly provide for how to deal with a civil claim when the criminal case has been discontinued. In the present case, the proceedings ... were discontinued as time-barred. When the statute of limitations expires, criminal legal relations are terminated and no criminal legal consequences arise for the accused. Since a civil claim in criminal proceedings is an aspect of criminal legal relations, such a claim cannot be granted after the termination of those relations ... Therefore, after a criminal case has been discontinued, the civil claim must be left unexamined. It can be submitted in separate civil proceedings.”\n\nTHE LAW\n\nI.  PRELIMINARY QUESTION\n\n64.  The Court notes at the outset that the applicant died after the present application had been lodged. His son and legal heir, Mr Marius Mažukna, has expressed his wish to continue the proceedings before the Court. The Government have not disputed that he is entitled to pursue the application on the applicant’s behalf and the Court sees no reason to hold otherwise (see, among other authorities, Sargsyan v. Azerbaijan (dec.) [GC], no. 40167/06, § 51, 14 December 2011, and the cases cited therein).\n\nII.  ALLEGED VIOLATION OF THE PROCEDURAL LIMB OF ARTICLE 3 OF THE CONVENTION\n\n65.  The applicant complained that the pre-trial investigation and criminal proceedings concerning the circumstances of the accident had not been effective. He invoked Articles 6 § 1 and 13 of the Convention. The Court, being the master of the characterisation to be given in law to the facts of a case, considers that this complaint falls to be examined under the procedural limb of Article 3 of the Convention, which reads:\n\n“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”\n\nA.  Admissibility\n\n1.  As to the exhaustion of domestic remedies\n\n.  The Government submitted that the applicant had failed to submit a proper appeal against the Klaipėda District Court’s judgment of 14 May 2012 to terminate the case as time-barred. They contended that if the applicant had appealed, the appellate court could have settled his civil claim against V.J.S.\n\n.  The applicant argued that an appeal against the decision to terminate the case as time-barred had no prospects of success and was therefore not an effective remedy.\n\n.  The Court reiterates that applicants are only obliged to exhaust domestic remedies which are available in theory and in practice – that is to say, remedies that are capable of providing redress in respect of their complaints and offering reasonable prospects of success (see, among many other authorities, Sejdovic v. Italy [GC], no. 56581/00, § 46, ECHR 2006II).\n\n69.  Turning to the circumstances of the present case, the Court notes that the Klaipėda District Court in its judgment of 14 May 2012 held that domestic law provided for a five-year statute of limitations in cases of crimes of negligence, and that that limitation period had to be applied “unconditionally”, as there were no legal grounds to suspend it (see paragraph 53 above; see also the case-law of the Supreme Court of Lithuania in paragraph 61 above). In their preliminary objection, the Government did not argue that the appellate court could have interpreted the domestic law differently so as to overturn that conclusion and return the case for examination on the merits, as sought by the applicant. The Court also notes that the Klaipėda Regional Court examined an appeal submitted by the accused, in which the latter also requested that the court examine the merits of the case, and dismissed it (see paragraph 55 above). Furthermore, the Court observes that, in line with domestic law, the discontinuation of the criminal case as time-barred precluded the courts in the criminal proceedings from examining the applicant’s civil claim (see paragraphs 6263 above). The Court therefore considers that in the specific circumstances of the present case, an appeal against the judgment of 14 May 2012 would not have offered the applicant any reasonable prospect of success in respect of his complaint and thus was not a remedy which he had to exhaust (see, mutatis mutandis, P.M. v. Bulgaria, no. 49669/07, § 59, 24 January 2012).\n\n.  Accordingly, the Court dismisses the Government’s preliminary objection that the applicant failed to exhaust domestic remedies by not appealing against the Klaipėda District Court’s judgment of 14 May 2012.\n\n.  The Government submitted that the applicant had had the right to institute civil proceedings for damages against V.J.S. or any other person whom he considered responsible for the accident, but had failed to do so. They provided examples of domestic case-law where individuals had been awarded damages in civil proceedings, even after the criminal cases had been terminated.\n\n.  The Government further submitted that the applicant had had the right to institute civil proceedings against the State to claim non-pecuniary damages for conducting an ineffective pre-trial investigation. They also provided examples of domestic case-law where such damages had been awarded.\n\n.  The applicant argued that all the cases cited by the Government were different from his. He also submitted that his former employer, company N., had been declared bankrupt in February 2011, thereby making it impossible to claim any damages from it.\n\n.  The Court reiterates that where more than one potentially effective remedy is available, the applicant is only required to have used one remedy of his or her choice (see, among many other authorities, Kozacıoğlu v. Turkey [GC], no. 2334/03, § 40, 19 February 2009; Micallef v. Malta [GC], no. 17056/06, § 58, ECHR 2009; Karakó v. Hungary, no. 39311/05, § 14, 28 April 2009; Nada v. Switzerland [GC], no. 10593/08, § 142, ECHR 2012; Göthlin v. Sweden, no. 8307/11, § 45, 16 October 2014; and O’Keeffe v. Ireland [GC], no. 35810/09, §§ 109-111, ECHR 2014 (extracts)). In the present case, the applicant fully exhausted the criminal law avenues against the individual whom he considered responsible for the accident: he asked the prosecutor to open a pre-trial investigation, was granted the status of a victim, participated in the pre-trial investigation and in the court proceedings by giving statements and lodging appeals, and submitted a civil claim in those criminal proceedings (see paragraphs 11, 13, 18, 22, 24, 27, 30, 34, 37, 47 and 50 above). Accordingly, in the circumstances of this case, the Court does not share the Government’s view that the applicant ought to have used a separate remedy of civil proceedings either against V.J.S. or the bankrupt company N. (see paragraph 73 above).\n\n.  The Court also considers that a civil claim against the State in respect of the failure to conduct an effective investigation into the accident in which the applicant was injured would not have provided him any redress in terms of ensuring the effectiveness of that investigation (see Mircea Pop v. Romania, no. 43885/13, § 61, 19 July 2016).\n\n76.  Accordingly, the Court dismisses the Government’s preliminary objection that the applicant failed to exhaust domestic remedies by not instituting separate civil proceedings.\n\n2.  Conclusion\n\n77.  The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n1.  The parties’ submissions\n\n78.  The applicant submitted that the pre-trial investigation into the circumstances of the accident had been protracted and ineffective, in particular because the prosecutor had discontinued it three times without taking into account the findings of the State Labour Inspectorate and the forensic expert that the accident had been caused by unsafe working conditions. He further argued that the examination of the criminal case had been repeatedly adjourned by the domestic court without good reason, until it had become time-barred.\n\n79.  The Government submitted that the pre-trial investigation had been opened immediately after the applicant’s request, that the applicant had been fully involved in the proceedings, and that the authorities had made a serious attempt to establish all the relevant circumstances – they had questioned more than fifty witnesses, arranged numerous formal confrontations between them, collected relevant documents, and had identified the person responsible for the accident – the construction manager V.J.S.\n\n80.  The Government further contended that the length of the pre-trial investigation (three years and seven months) had been caused by the scope and complexity of the case – in particular because many of the witnesses had lived in different parts of the country and thus it had been necessary to request that the respective territorial police departments carry out interviews. They also submitted that the repeated termination and reopening of the investigation did not imply that it had been inefficient but, on the contrary, had shown “the authorities’ due regard towards the applicant’s complaints”. Lastly, the Government submitted that the hearings before the domestic court had been adjourned because of the accused’s illness and not because of any omissions on the part of the authorities.\n\n2.  The Court’s assessment\n\n81.  The Court notes at the outset that as a result of an accident at work the applicant suffered injuries to his face and chest, which caused disfigurement and impaired his ability to make facial expressions. A medical examination found that the applicant’s injury was irreparable and classified it as serious health impairment (see paragraph 14 above). Accordingly, the Court is of the view that the situation attains the threshold of severity necessary to fall within the scope of Article 3 of the Convention.\n\n82.  In this connection the Court reiterates that Article 3 of the Convention requires that the authorities conduct an effective official investigation into alleged ill-treatment, even if such treatment has been inflicted by private individuals (see O’Keeffe, cited above, § 172, and Kraulaidis v. Lithuania, no. 76805/11, § 57, 8 November 2016, and the cases cited therein). The procedural obligation under Article 3 of the Convention requires that any investigation should in principle be capable of leading to the establishment of the facts of the case and to the identification and punishment of those responsible for an offence. This is not an obligation as to result, but as to means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, such as taking witness statements and gathering forensic evidence (see N.D. v. Slovenia, no. 16605/09, § 57, 15 January 2015, and the cases cited therein).\n\n.  The Court also reiterates that the promptness of the authorities’ reaction to complaints is an important factor. In previous judgments the Court has given consideration to matters such as the time taken to open investigations, delays in identifying witnesses or taking statements, and the unjustified protraction of criminal proceedings resulting in the expiry of the statute of limitations (ibid.). Moreover, where the investigation leads to charges being brought before the national courts, the positive obligations under Article 3 of the Convention extend to the trial stage of the proceedings. In such cases, the proceedings as a whole, including the trial stage, must meet the requirements of Article 3. In that respect, the Court reiterates that, regardless of the final outcome of the proceedings, the protection mechanisms available under domestic law should operate in practice in a manner allowing for the examination of the merits of a particular case within a reasonable time (ibid., § 58, and the cases cited therein).\n\n84.  Turning to the circumstances of the present case, the Court does not question the assessment of the domestic authorities that the case concerning the applicant’s injury was complex, as it required rather specific technical knowledge and involved a large number of witnesses living in different parts of the country. Nonetheless, the Court is of the view that complexity alone cannot justify the duration of the proceedings – three years and seven months in the hands of the prosecutor, and one year and one month awaiting examination by the first-instance court, before the case was terminated as time-barred. While there do not appear to have been any significant periods of inactivity on the part of the authorities, the Court observes that some of the essential investigative measures were taken inexplicably late. The applicant told the investigator during his first interview on 13 November 2007 that the scaffolding had collapsed because of the weight of the metal platform. However, the authorities did not attempt to clarify whether the platform had been carried at the employer’s instruction until April 2009 (one year and seven months after the start of the investigation), and did not request that a forensic expert determine the precise course of events of the accident until January 2010 (two years and four months after the start of the investigation) (see paragraphs 20, 28 and 31 above). In this context the Court notes that on several occasions senior prosecutors acknowledged that the investigation was not being carried out with sufficient promptness (see paragraphs 24 and 30 above), yet it does not appear that effective measures were taken to speed up the investigation.\n\n85.  The Court further notes that the prosecutor discontinued the pre-trial investigation three times and that each of those decisions was overruled by courts, finding that the prosecutor had not examined all the essential circumstances of the case or had made conclusions which had been “speculative and not based on any objective facts” (see paragraphs 18, 27, 28 and 34 above). The Court reiterates that the repetition of such decisions may disclose a serious deficiency in the proceedings (see Wierciszewska v. Poland, no. 41431/98, § 46, 25 November 2003; Drozd v. Ukraine, no. 12174/03, § 66, 30 July 2009; and Kapustyak v. Ukraine, no. 26230/11, § 78, 3 March 2016), and in the present case there are no weighty reasons to hold otherwise. In particular, the Court observes that although the applicant consistently claimed that he had fallen from the scaffolding because of its collapse (see paragraphs 7 and 13 above), in the initial decisions to discontinue the investigation the prosecutor did not examine the reasons for that collapse, instead focusing on the alleged recklessness of the applicant himself (see paragraphs 17 and 26 above). The Court also shares the concern of the domestic courts that even though the State Labour Inspectorate and a forensic expert had concluded that the accident had been caused by the employer’s failure to comply with work safety requirements, the prosecutor’s decisions to discontinue the investigation did not address the findings of those specialist bodies and did not provide any reasons for rejecting them (see paragraphs 18 and 34 above). Furthermore, while there were suspicions that some witnesses had been pressured by the applicant’s employer to give false testimony, it does not appear that the authorities examined those suspicions (see paragraphs 23, 28 and 33 above). In such circumstances, the Court is of the view that the pre-trial investigation could not be considered thorough.\n\n86.  Lastly, the Court observes that when the case was transferred to the Klaipėda District Court for examination on the merits, only slightly more than one year remained until the expiry of the statute of limitations. In those circumstances the Court considers that the domestic courts should have acted diligently and at a reasonable pace in order to examine the merits of the case and adopt a judgment before the prosecution became time-barred (see, mutatis mutandis, Velev v. Bulgaria, no. 43531/08, § 58, 16 April 2013). However, the case had to be repeatedly adjourned, first because of the absence of witnesses, and later because of the illness of the accused. As noted by the domestic court, the relevant provisions of the Criminal Code in force at the time of the accident required the application of the statute of limitations “unconditionally” and did not permit its suspension during adjournments (see paragraphs 53 and 59 above). The Court notes that that legal framework was changed in June 2010 and currently the Criminal Code of Lithuania provides, inter alia, that during the examination of a case by a court, the running of the limitation period is suspended when a trial is adjourned because of the absence of the accused (see paragraph 60 above). While it is not the role of this Court to determine what domestic legal framework is the most appropriate for ensuring the rights guaranteed by the Convention (see, mutatis mutandis, Hristozov and Others v. Bulgaria, nos. 47039/11 and 358/12, § 105, ECHR 2012 (extracts), and the cases cited therein), it reiterates that the manner in which the limitation period is applied must be compatible with the requirements of the Convention (see, mutatis mutandis, Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08, § 326, ECHR 2014 (extracts)). In the present case, while the Court accepts that the case was adjourned for important reasons, it cannot help but notice that the lack of any possibility to suspend the statute of limitations during the adjournment of the case deprived the applicant of the opportunity to have the question of responsibility for his injury examined by a court.\n\n87.  The foregoing considerations are sufficient to enable the Court to conclude that there has not been an effective investigation into the circumstances of the accident in which the applicant was injured. There has accordingly been a violation of Article 3 of the Convention under its procedural limb.\n\nIII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n89.  The applicant claimed 17.82 euros (EUR) in respect of pecuniary damage for medical expenses because of his injuries. He also claimed EUR 280,000 in respect of non-pecuniary damage, stating that the accident and the resulting injuries, particularly the disfigurement of the face, had caused him severe physical and psychological suffering.\n\n90.  The Government contended that the receipts submitted by the applicant did not specify what medical services were provided and whether they had been related to the accident. They also submitted that the applicant’s claim in respect of non-pecuniary damage was excessive and unsubstantiated.\n\n.  The Court notes that just satisfaction can be awarded in so far as the damage is the result of a violation found, and that no award can be made for damage caused by events or situations which have not been found to constitute a violation of the Convention, or for damage related to complaints declared inadmissible. In the present case the Court has found a violation of the procedural limb of Article 3 of the Convention on account of an ineffective investigation into the circumstances of the applicant’s injuries. It considers that the applicant’s medical expenses cannot be directly linked to that violation and therefore rejects the applicant’s claim in respect of pecuniary damage.\n\n92.  On the other hand, the Court considers that the violation found in the present case undoubtedly caused the applicant distress and frustration. However, it considers the amount claimed by the applicant excessive. Making its assessment on an equitable basis, the Court awards the applicant EUR 6,500 in respect of non-pecuniary damage.\n\nB.  Costs and expenses\n\n93.  The applicant also claimed EUR 369.65 for the costs and expenses incurred before the domestic courts and before the Court. He submitted supporting documents for legal and photocopying expenses amounting to EUR 309.\n\n94.  The Government contended that the receipts submitted by the applicant did not specify what legal services had been provided to him and whether any of the photocopying expenses had been specifically related to the present case.\n\n95.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court awards the sum of EUR 309 covering costs under all heads.\n\nC.  Default interest\n\n96.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT\n\n1.  Declares, unanimously, that the applicant’s heir has standing to continue the present proceedings in his stead;\n\n2.  Declares, by a majority, the application admissible;\n\n3.  Holds, by six votes to one, that there has been a violation of Article 3 of the Convention under its procedural limb;\n\n4.  Holds, by six votes to one,\n\n(a)  that the respondent State is to pay the applicant’s heir (see paragraph 64 above), within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n5.  Dismisses, unanimously, the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 11 April 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.\n\nIn accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:\n\n(a)  joint concurring opinion of Judge Sajó and Judge Tsotsoria;\n\n(b)  dissenting opinion of Judge Bošnjak.\n\nThis judgment follows a line of the Court’s case-law that disregards the Grand Chamber judgment in Calvelli and Ciglio v. Italy ([GC], no. 32967/96, ECHR 2002I) and, without making a proper distinction, applies to private negligence the case-law that has been developed and applied in relation to inhuman and degrading conduct on the part of State agents exercising physical power. Together with other colleagues, we expressed our reservations in Kraulaidis v. Lithuania (no. 76805/11, 8 November 2016) and we cannot agree with the present judgment to the extent that its finding of a violation of Article 3 is based on the assumption that O’Keeffe v. Ireland ([GC], no. 35810/09, ECHR 2014 (extracts)) requires the same standard to apply irrespective of whether the inhuman or degrading treatment by private individuals was inflicted voluntarily or not. Moreover, we are of the view that where a more effective remedy exists than the criminal one, applicants must avail themselves of that remedy, although in the circumstances of the case no such remedy was available and therefore the application is admissible.\n\nContrary to the situation in Kraulaidis and its progeny, there was enough evidence in the present case for the prosecutor to indict the construction site manager for a non-negligent crime (see paragraph 40 of the judgment), although this does not apply to the initial period of the investigation, when the available information, including official reports to the State Labour Inspectorate, indicated only formal breaches of safety rules. Moreover, in 2009 a court had already found that “some witnesses” had admitted to giving false testimony under pressure from the employer (see paragraph 28). In view of the above, there must have been grounds for treating this case with all the care that is due when an investigation is conducted into a substantiated allegation of at least serious recklessness. However, the domestic courts did not exercise proper diligence, even though they should have been aware of the fact that the prosecution would soon become timebarred.\n\n1.  Unfortunately, I cannot agree with the majority that the application in the present case should be declared admissible. Furthermore, even assuming that the conditions for the application’s admissibility were met, it is my belief that the Chamber should not find a violation of Article 3 of the Convention.\n\n2.  Following the workplace accident which resulted in serious impairment of the applicant’s health, he decided to seek a criminallaw response against those responsible for the incident, by turning to the Klaipeda city prosecutor’s office. In the course of the ensuing criminal proceedings, the applicant lodged a claim for civil damages. On 8 May 2012 the Klaipeda District Court terminated the case against V.J.S. on the ground that the prosecution had become time-barred. The court decided that the applicant’s civil claim should not be examined and that the applicant should instead institute civil proceedings. Such a decision was in accordance with the relevant provisions of the Lithuanian Code of Criminal Procedure and the case-law of the Supreme Court of Lithuania. This legal framework is not unique to Lithuania – indeed, it can be encountered in several other High Contracting Parties to the Convention. Its logic is clear: while there may exist procedural or/and substantive obstacles to finding a defendant criminally responsible, there may still be grounds to grant the related civil claim, but these are to be determined in separate civil proceedings. The Government have provided the Court with examples of successful civil actions brought by plaintiffs subsequent to criminal proceedings in which the defendants were not convicted. It appears from those examples that the applicant in the present case could possibly have been successful with his claim had he continued to pursue it in civil proceedings, as instructed by the Klaipeda District Court. For reasons unknown to our Court, he failed to act accordingly and thereby discontinued his action against V.J.S.\n\n3.  It may well be considered reasonable for a victim to join the criminal proceedings against a defendant by lodging a civil claim, rather than by instituting separate civil proceedings. However, if a criminal-law action against a defendant does not lead to a conviction and consequently, in view of the provisions of the particular legal system, no decision on the merits of the civil claim is taken, this claim will remain to be decided in civil proceedings. Although burdensome for the victim, this path is to be considered legally coherent and acceptable. Since the applicant in the present case did not use it, his civil claim remained undecided on the merits by the courts of the respondent State. In my opinion, this should lead to a conclusion that the applicant failed to exhaust the available domestic legal remedies. Consequently, the application should have been declared inadmissible.\n\n4.  Notwithstanding the issues of admissibility, I believe that in the present case there was no violation of Article 3 of the Convention. While it is true that under the case-law of this Court (see, for example, O’Keefe v. Ireland, [GC], no. 35810/09, ECHR 2014), Article 3 of the Convention requires that the authorities conduct an effective official investigation into alleged ill-treatment even where such treatment has been inflicted by private individuals, one must first discern the conduct that can possibly fall within the ambit of Article 3. The case-law of the Court, adjudicating on the positive obligation of the High Contracting Parties under the procedural limb of Article 3 of the Convention, has dealt with cases of rape, sexual abuse or violence (see O’Keeffe v. Ireland, cited above; C.A.S. and C.S. v. Romania, no. 26692/05, 20 March 2012; M.C. v. Bulgaria, no. 59297/12, 25 March 2014; Y. v. Slovenia, no. 41107/10, 28 May 2015), in certain instances coupled with illegal confinement (see S.Z. and others v. Bulgaria, no. 29263/12, 3 March 2015). Some of the cases examined have concerned family violence (see M. and M. v. Croatia, no. 10161/13, 3 September 2015) or violent beating and injuries in a fight (see Sakir v. Greece, no. 48475/09, 24 March 2016; Dimitar Shopov v. Bulgaria, no. 17253/07, 16 April 2014; Biser Kostov v. Bulgaria, no. 32662/06, 10 January 2012; and Beganović v. Croatia, no. 46423/06, 25 June 2009). What these cases have in common is conduct containing elements of violence, inducing feelings of humiliation and degradation in the victim. In each case, this conduct was directed against a specific victim (who later became an applicant before the Court), more specifically against his or her life or limb and/or personal integrity. It was committed intentionally, with the possible exception of the case of Muta v. Ukraine (no. 37246/06, 31 July 2012), where it remained open whether the perpetrator had acted intentionally or with negligence – in all other aspects, that case did not differ from the above-mentioned cases of ill-treatment by private individuals. Apparently, there exist important similarities between the conduct qualified as illtreatment in those cases and the brutality inflicted by police and other State agents that was at the heart of the Article 3 case-law as it was developed over the decades.\n\n5.  Recently, a Chamber of the Fourth Section delivered a judgment in the case of Kraulaidis v. Lithuania (no. 76805/11, 8 November 2016). It found a violation of the procedural limb of Article 3 in a case concerning a traffic accident. This judgment is inconsistent with the existing wellestablished case-law. Previously, any deficiencies in judicial proceedings concerning traffic and other accidents were analysed under Article 6 of the Convention (see, for example, Dragomir v. Romania, no. 43045/08, 14 June 2016; Atanasova v. Bulgaria, no. 72001/01, 2 October 2008; and Buonfardieci v. Italy, no. 39933/03, 18 December 2007). The judgment in Kraulaidis v. Lithuania created considerable unease among four judges of the composition, who decided to write a concurring opinion. They explicitly highlighted the absence of the ill-treatment aspect in a car accident caused by negligence (see § 12 of the concurring opinion) and called upon the Grand Chamber to stop the drift into trivialisation of Article 3 rights (see § 7 of the concurring opinion). Nevertheless, this majority within the Chamber chose not to vote against the finding of a violation of the procedural limb of Article 3 of the Convention.\n\n6.  The judgment in the present case goes a step further. It is inconsistent with the case-law cited in § 4 of this dissenting opinion. The specific conduct resulting in the applicant’s accident has never been established, but it is allegedly related to the deficient organisation of the construction site. In contrast to the acts qualified as ill-treatment in the above-mentioned cases, such failure to ensure deficient organisation was not a violent act and did not on the face of it include any element of humiliation and debasement of the victim, that is, of the applicant. What is more, it was not directed against the applicant, let alone against his life, limb or personal integrity. Instead it appears from the provisions of Article 176 of the Lithuanian Criminal Code (hereinafter referred to as the LCC) that the criminalisation of acts under this provision is targeted at the protection of safety and health at work, which are legal goods only remotely and indirectly connected with the physical and personal inviolability of an individual. The alleged perpetrator, V.J.S., was initially accused of intentional and subsequently of negligent disregard of workplace safety rules. However, this mental element of the offence did not relate to the serious bodily injury sustained by the applicant. According to the wording of Article 176 of the LCC, a violation of the requirements of safety protection at work is considered a criminal offence when it results in an accident involving people or causing other serious consequences. The offender’s intent (or negligence, if § 3 of Article 176 of the LCC is applicable) relates to the violation of safety or health requirements and not to the consequence, which in the present case was the serious bodily harm suffered by the applicant. The result is the so-called objective condition of criminalisation (in German, die Objektive Bedingung der Strafbarkeit). In other words, according to Article 176 of the LCC, neither intent nor negligence is required in relation to the bodily harm suffered by the victim (the applicant in our case). This illustrates an additional trivialisation of the Court’s case-law with regard to Article 3.\n\n7.  Finally, one should not forget that the applicant never claimed a violation of Article 3. He never asserted that he had been tortured or treated in an inhuman or degrading manner. Instead, he relied upon Articles 6 and 13 of the Convention. Nevertheless, the Chamber decided to examine the case under Article 3 of the Convention, relying upon the Court’s role as the master of legal characterisation. It is my belief that this role should be exercised with the utmost caution. To be specific, there exists an imminent danger of reading into an application facts and circumstances that are not contained within it, and in consequence, examining it under an angle that was never envisaged by the person who lodged it. In such cases, the Court decides ultra petitum, which is incompatible with its role as a court. It is likely that in the present case the Chamber decided to rule in favour of the applicant due to a feeling of sympathy for the injustice arguably experienced by the applicant. In order to pave the way for this outcome, the Chamber identified Article 3 of the Convention as the provision best suited to that purpose and interpreted it in the manner described above.\n\n8.  I have to dissent from such an approach. While it is true that the Convention is a living instrument, its interpretation cannot be construed beyond the meaning of its provisions. It is unlikely that an average qualified observer would characterise an unsafe construction site as an instance of the inhuman or degrading treatment that the High Contracting Parties have a positive obligation to prevent and investigate. For this reason, I decided to vote against finding a violation of Article 3 of the Convention.\n\n8.  I have to dissent from such an approach. While it is true that the Convention is a living instrument, its interpretation cannot be construed beyond the meaning of its provisions. It is unlikely that an average qualified observer would characterise an unsafe construction site as an instance of the inhuman or degrading treatment that the High Contracting Parties have a positive obligation to prevent and investigate. For this reason, I decided to vote against finding a violation of Article 3 of the Convention.","title":""}
{"_id":"passage_787","text":"PROCEDURE\n\n1.  The case originated in an application (no. 15351/03) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Adam Zarzycki (“the applicant”), on 2 May 2003.\n\n2.  The applicant was represented by Ms M. Lubieniecka-Chełstowska, a lawyer practising in Olsztyn. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, succeeded by Ms J. Chrzanowska, of the Ministry of Foreign Affairs.\n\n3.  The applicant alleged, in particular, that in view of his physical disability and his special needs, his protracted detention in the conditions of Szczytno and Olsztyn Remand Centres was in breach of Article 3 of the Convention.\n\n4.  On 17 October 2007 the President of the Fourth Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). In addition, third-party comments were received from the Helsinki Foundation for Human Rights (Warsaw, Poland), which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2). The parties have not replied to those comments (Rule 44 § 5).\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n5.  The applicant was born in 1976 and lives in Jedwabno.\n\nIn 1996 he lost both his forearms in an accident. He is certified as having a first-degree disability, requiring the assistance of another person.\n\nA.  The applicant’s pretrial detention and criminal proceedings against him\n\n6.  On 17 June 2002 the applicant, who was a suspect in criminal proceedings, was summoned by the police to present himself, two days later, at the Szczytno District Police Headquarters (Powiatowa Komeda Policji).\n\n7.  On 19 June 2002 the Szczytno District Court (Sąd Rejonowy) remanded the applicant in custody on suspicion of having committed a number of offences against a minor and of having coerced a person into committing perjury.\n\n8.  The domestic court justified the applicant’s pretrial detention by the existence of strong evidence against him, the likelihood that a severe penalty would be imposed and by the need to secure the proper course of the proceedings. On the latter point, it emphasised that the applicant, who had remained at large for some time after the start of the investigation, had attempted to coerce witnesses into giving false testimony in the case. The authorities took into consideration the applicant’s disability and a medical certificate issued by his doctor on 15 March 2002, which stated that the applicant was not able to live independently.\n\n9.  On 1 July 2002 the Szczytno District Prosecutor (Prokurator Rejonowy) dismissed the applicant’s request for the pretrial detention order to be lifted. The prosecutor reiterated the reasons for the applicant’s pretrial detention as they had been presented by the Szczytno District Court. Moreover, it was noted that the applicant had been detained for four months in the past in Szczytno Remand Centre, in connection with another criminal case against him. The Szczytno Remand Centre had never informed the authorities of any obstacles to providing the applicant with adequate care and conditions during his detention. In case of medical necessity the authorities were prepared to transfer the applicant to a remand centre hospital, where he would be able to obtain specialist medical treatment. It was pointed out that the testimony of the applicant’s mother, who had submitted that the applicant was unable to live independently, had been contradicted by the statements of other witnesses who had described the applicant as being completely independent.\n\n10.  On 12 July 2002 the  (Sąd Okręgowy) upheld the decision to keep the applicant in pretrial detention.\n\n11.  On 29 July 2002 the Szczytno District Prosecutor dismissed a request by the applicant for pretrial detention to be replaced with a different preventive measure.\n\n12.  On 30 August 2002 the applicant was indicted on numerous counts of extortion of money from a minor and other related offences.\n\n13.  His pretrial detention was extended by decisions of the Szczytno District Court of 5 August, 6 September and 31 October 2002. The last two decisions were upheld by the  on 27 September and 22 November 2002 respectively.\n\nThe domestic courts reiterated that there was strong evidence against the applicant and a likelihood that a severe penalty would be imposed, and referred again to the need to secure the proper course of the proceedings. Additionally, it was noted that the authorities needed more time to hear the witnesses for the defence and to complete other investigative steps.\n\n14.  In the meantime, on 1 July and 25 October 2002, the  dismissed the applicant’s requests to have the measure in question lifted for humanitarian reasons.\n\n15.   The first hearing was held on 10 October 2002.\n\n16.  On 31 October 2002 the Szczytno District Court convicted the applicant of several of the charges and sentenced him to three years’ imprisonment.\n\n17.  On 17 January 2003 the  decided to extend the applicant’s detention while his criminal case was pending on appeal.\n\n18.  On 24 January 2003 the same court refused to lift the measure because the applicant had been convicted and sentenced to a term of imprisonment by the firstinstance court. In addition, the court relied on the assessment that, despite the applicant’s disability, his detention did not put his life or health at any risk.\n\n19.  On 31 January 2003 the  upheld its own decision of 17 January 2003.\n\n20.  On 19 February 2003 the  upheld the firstinstance judgment in the main part, changing the legal classification of one of the offences of which the applicant had been convicted by the firstinstance court. The judgment was served on the applicant on 26 May 2003.\n\n21.  No cassation appeal was lodged in the case.\n\n22.  Throughout the proceedings the applicant was represented by a lawyer of his choice.\n\nB.  The conditions of the applicant’s detention\n\n1.  The chronology of the applicant’s detention\n\n23.  From 19 June 2002 until 5 March 2003 the applicant was detained in Szczytno Remand Centre. From 5 until 28 March 2003 he was committed to Olsztyn Remand Centre. From 28 March until 7 July 2003 he was again detained in Szczytno Remand Centre.\n\n24.  On 7 July 2003 the applicant was granted leave from serving his sentence (przerwa w odbywaniu kary) to seek orthopaedic care outside the penitentiary system.\n\n25.  After his leave came to an end, the applicant was held in Szczytno and Olsztyn Remand Centres alternately. He was detained in the former facility from 13 July 2004 until 15 February 2005, from 9 until 17 August 2005 and from 25 April until 21 October 2006. He was detained in the latter facility from 15 February until 9 August 2005 and from 17 August 2005 until 25 April 2006.\n\n26.  On 21 October 2006 the applicant was granted parole (warunkowe zwolnienie) and is currently at liberty.\n\n2.  The description of the conditions of the applicant’s detention and procedure for obtaining arm prostheses\n\n(a)  From 19 June 2002 until 7 July 2003- without prostheses\n\n27.  In Szczytno Remand Centre (from 19 June 2002 until 5 March 2003 and from 28 March until 7 July 2003) the applicant was held in various multi-occupancy cells in the general wing.\n\n28.  The applicant claimed that the conditions in Szczytno Remand Centre had not been adapted to his specific needs. He asserted that, despite his disability, the remand centre staff had not provided him with any special care. That had made his life in detention very difficult. The applicant had not been able to carry out many of his daily or routine tasks, such as serving his meals, making his bed, cutting his toenails, washing, shaving and getting dressed, and cleaning himself after going to the bathroom. He had had to seek help from his fellow inmates, which had put him in a position of dependency.\n\n29.  The Government submitted that during his detention the applicant had been self-sufficient. He had his meals, got dressed, made his bed and read newspapers without the aid of another person. Occasionally, in very minor tasks such as making sandwiches, he received help from his fellow inmates.\n\n30.  In their submission, the applicant was under the special care of the remand centre’s administration. He was released from the duty to clean his cell and benefited from various privileges, such as longer family visits, the right to receive additional food parcels and to take a shower six times per week. As a reward for winning various prison competitions, the applicant was granted unsupervised leave from the remand centre five times. Three of these periods of leave lasted a few days. The applicant was also under the supervision of the prison psychologist, whom he consulted eleven times.\n\n31.  Prior to the applicant’s detention, on 15 March 2002 an orthopaedist of the Olsztyn Regional Specialised Hospital (Wojewódzki Szpital Specjalistyczny) issued a medical certificate (zaświadczenie lekarskie), stating that the applicant was not fit for self-sufficient existence and detention in a prison.\n\n32.  On 19 August 2002 the Head of the Medical Establishment at Szczytno Remand Centre (Zakład Opieki Zdrowotnej) issued a memorandum to the Governor (Dyrektor) of Szczytno Remand Centre, in which he stated that there was no medical reason to transfer the applicant to a specialist facility since his health was good. It was noted that the assistance which the applicant required was not of a medical nature but, rather, related to his physical inability to carry out his daily tasks independently.\n\n33.  In a letter of 3 September 2002 the remand centre governor informed the applicant that his complaints about the conditions of his pretrial detention had been considered illfounded. It was noted that the remand centre doctor had not found any medical reasons to justify the applicant’s transfer to another place of detention or his release. Furthermore it was stated that the applicant was independent in his daily routines in the remand centre. He could dress himself, make his bed, eat, and read newspapers without anyone’s assistance. In other daily tasks the applicant received help from his inmates.\n\n34.  On 13 October 2002 the applicant was informed by an official of a local selfgovernment organisation, who visited him in the remand centre, about the procedure for renewing his application for prostheses.\n\n35.  The same day, the Szczytno Remand Centre’s in-house doctor made an official application for prostheses on the applicant’s behalf.\n\n36.  On 23 January 2003 the State-run Sick Fund (Kasa Chorych) approved a full reimbursement of the cost of basic mechanical prostheses (protezy mechaniczne), which was PLN 3,600 (approximately EUR 860). The prostheses were to be made by the Orthopaedic Equipment Establishment (Zakład Sprzętu Ortopedycznego) in .\n\n37.  By a letter of 28 February 2003 the Director of the Olsztyn Regional Prison Service (Dyrektor Okręgowy Służby Więziennej) replied to allegations that the Szczytno Remand Centre had not supported the applicant in his efforts to obtain forearm prostheses and that the medical care provided during his detention had been inadequate. It was observed that, prior to the applicant’s detention, in July 2001 the Sick Fund had approved the applicant’s request to obtain forearm prostheses free of charge. However, the grant could not be executed due to a shortage of funds. On 15 March 2002 the State Sick Fund extended the validity of its prostheses approval until 30 September 2002. On 13 October 2002 the applicant was informed by an official of a local selfgovernment organisation, who visited him in the remand centre, about the procedure for renewing his application for prostheses. Despite this, the applicant did not proceed with his application for four months. Finally, thanks to the remand centre’s assistance, on 23 January 2003 the State Sick Fund approved a full reimbursement of the cost of the prostheses. The applicant was scheduled to be transferred to Olsztyn Remand Centre in order to have the prostheses made in a local orthopaedic centre. It was concluded that the applicant’s detention did not put his life or health at any risk and that, having had his forearms amputated six years previously, he was now perfectly independent in carrying out his daily routines in detention.\n\n38.  On 5 March 2003 the applicant was transferred to Olsztyn Remand Centre in order to have the prostheses made. The basic prostheses offered, however, did not suit the applicant. He declared that he would only accept bio-mechanical (kinetic) prostheses (protezy biomechaniczne). That type of prostheses were not made in Olsztyn but by the Independent Public Establishment for Orthopaedic Supplies (Samodzielny Publiczny Zakład Zaopatrzenia Ortopedycznego) in .\n\n39.  On 28 March 2003 the applicant was transferred back to Szczytno Remand Centre. An application for bio-mechanical prostheses was made by the prison authorities on his behalf.\n\n40.  On 7 May 2003 the Szczytno District Court found that the applicant’s detention in Szczytno Remand Centre did not put his life or health in danger but created only minor difficulties for him.\n\n41.  The total cost of the applicant’s bio-mechanical prostheses was estimated at 50,000 Polish zlotys (PLN) (approximately EUR 12,000). On an unspecified date the applicant was informed that a refund of PLN 3,600 (approximately EUR 860) could be granted by the National Health Fund (Narodowy Fundusz Zdrowia). Under the applicable law every patient seeking to obtain bio-mechanical prosthesis had to pay the difference from his or her own budget.\n\n42.  On 12 May 2003 the  ruled that the applicant be transferred to Poznań Remand Centre, where he could have fittings for his bio-mechanical prostheses, provided that he undertook to pay the nonrefundable portion of the price. In the Government’s submission, the applicant did not agree to that.\n\n43.  On 29 May 2003 a psychiatrist at Szczytno Remand Centre diagnosed the applicant with a form of depression which in his opinion could be attributed to the applicant’s fear of not being able to obtain forearm prostheses. It was noted that the applicant had twice attempted to commit suicide when he had been held in a correction centre when he was a minor. The doctor did not make any recommendation as to the conditions of the applicant’s detention or his treatment.\n\n44.  A copy of the applicant’s medical records reveals that during this part of his detention, he was consulted by various specialists on approximately twelve occasions.\n\n45.  On 7 July 2003 the applicant was granted a sixmonth period of leave from serving his sentence to seek orthopaedic care outside the penitentiary system. The domestic court observed that, even though the applicant’s disability did not make him, strictly speaking, unfit for detention, it was nevertheless making it more difficult for him, especially without prostheses. The leave was subsequently extended until 7 July 2004.\n\n(b)  From 13 July 2004 until 21 October 2006 – with prostheses\n\n46.  While at liberty, presumably in March 2004, the applicant obtained two basic mechanical forearm prostheses and underwent the necessary physiotherapy (rehabilitation).\n\n47.  On 18 March 2004 the applicant obtained a medical certificate from a private medical clinic, stating that he had recently received new prostheses and urgently required physiotherapy. It was further noted that the applicant was not self-sufficient and required the aid of third persons, and that he could not be detained in prison.\n\n48.  On 7 July 2004 the applicant’s leave came to an end but he failed to return to prison. On 13 July 2004 he was arrested and committed to Szczytno Remand Centre to serve the rest of his prison sentence.\n\n49.  The applicant was detained in Szczytno Remand Centre from 13 July 2004 until 15 February 2005, from 9 until 17 August 2005 and from 25 April until 21 October 2006. He was also detained in Olsztyn Remand Centre from 15 February until 9 August 2005 and from 17 August 2005 until 25 April 2006.\n\n50.  By letter of 25 November 2004 the director of a rehabilitation centre in Szczytno (Ponadlokalne Centrum Rehabilitacyjno-Edukacyjne dla Dzieci i Młodzieży Niepełnosprawnej) provided the applicant with the following information. According to the results of the medical consultation of 10 November 2004 and the opinion of a specialist in rehabilitation, the applicant did not require any further rehabilitation or training in using his arm prostheses. With his basic mechanical prostheses, the applicant could carry out simple daily tasks such as eating and brushing his teeth. Those prostheses, however, did not allow for high precision movements, such as those necessary for washing, putting on smaller items of clothing, shaving or going to the bathroom.\n\n51.  On 26 November 2004 the Governor of Szczytno Remand Centre applied to the Szczytno District Court for permission to transfer the applicant to a detention facility near  in order to enable him to undergo further physiotherapy.\n\nOn 30 November 2004 the request was rejected by the Szczytno District Court on the ground that the applicant’s presence was necessary in Szczytno, where new criminal proceedings were pending against him.\n\n52.  On 17 January 2005 the Szczytno Remand Centre governor informed the applicant, in reply to the latter’s query, that during his detention “adequate help was secured [to him] by the remand centre administration through the applicant’s inmates”. It was also noted that the applicant had refused to work with a physiotherapist whose presence at the remand centre had been arranged by the administration.\n\n53.  On 7 and 20 April 2005 an inhouse doctor at Olsztyn Remand Centre issued two medical certificates stating that the applicant could not receive adequate care and treatment in prison because of the nature of his disability.\n\n54.  On 25 April 2005 the Szczytno District Court asked for an expert medical report to verify whether or not the applicant was fit to be kept in prison.\n\n55.  On 21 June 2005 two experts, in cardiology and orthopaedics respectively, issued a report, stating that although the applicant found his prostheses helpful, he still needed the assistance of others in many of his daily activities, as his mechanical prostheses did not allow him to make any precise movements. It was noted that the applicant had expressed a wish to obtain more advanced biomechanical prostheses, which were available from the Orthopaedic and Rehabilitation Equipment Establishment in . In addition, the applicant was diagnosed with hypertension. Nevertheless, the experts concluded that the applicant had adapted well to his disability and that his overall health was good which, in turn, made him fit to continue his detention. On the other hand, it was pointed out that some assistance should be provided to the applicant in his daily routines by the remand centre staff.\n\n56.  On 8 November 2005 the Head of the Healthcare Establishment (Kierownik Zakładu Opieki Zdrowotnej) of Olsztyn Remand Centre informed the applicant of the following: the applicant’s disability did not require any medical treatment; his other ailments could be treated within the prison healthcare system; bio-mechanical prostheses were not refunded by the National Health Fund; and lastly, according to the applicable law, a person with a first-degree disability required the assistance of another person in his or her daily existence. Such assistance could not be provided to the applicant in the remand centre. Nevertheless, as stated in the expert opinion of 21 June 2005 (see paragraph 49 above), the applicant was fit for detention because he was well-adjusted to his disability.\n\n57.  The applicant provided the Court with a document dated 23 December 2005 in which the Deputy Governor of Olsztyn Remand Centre stated that the applicant had been detained in a four-person cell in wing A, which was not adapted for special needs prisoners. It was also noted that Olsztyn Remand Centre as such did not possess any cells in which special arrangements had been made to accommodate the needs of physically disabled persons.\n\n58.  The Government submitted that in Olsztyn Remand Centre the applicant had been committed to a wing in which cells had been kept open almost all day long. Other than that, the conditions of the applicant’s detention there were similar to those in Szczytno Remand Centre.\n\n59.  A copy of the applicant’s medical records reveals that during this part of his detention, he was consulted by various specialists on approximately sixty occasions.\n\n3.  Actions concerning the conditions of the applicant’s detention.\n\n60.  The applicant lodged numerous complaints with the administration of Szczytno Remand Centre, domestic courts and penitentiary authorities, arguing that he should not be detained due to his disability or, alternatively, that he should be offered special care. In addition, he complained about the difficulties he had had in obtaining forearm prostheses (see paragraphs 28, 29, 32 and 35 above).\n\n61.  On 13 October 2003 the Szczytno District Prosecutor (Prokurator Rejonowy) discontinued an inquiry into the applicant’s allegations that between 19 June 2002 and 7 July 2003 the staff of Szczytno Remand Centre had failed in undertaking the necessary actions to provide the applicant with arm prostheses. The authorities referred to the events described in paragraphs 34-42 above and concluded that the prison authorities had not acted to the applicant’s detriment but, to the contrary, had made extensive efforts to provide him with arm prostheses.\n\nII.  RELEVANT DOMESTIC LAW AND PRACTICE\n\nA.  General conditions of detention\n\n62.  A detailed description of the relevant domestic law and practice concerning general rules governing conditions of detention in Poland and domestic remedies available to detainees alleging that the conditions of their detention were inadequate are set out in the Court’s pilot judgments given in the cases of Orchowski v. Poland (no. 17885/04) and Norbert Sikorski v.  (no. 17599/05) on 22 October 2009 (see §§ 75-85 and §§ 4588 respectively and in the case of Kaprykowski v. Poland, no. 23052/05, §§ 40-47, 3 February 2009).\n\nB.  Detention of disabled detainees\n\n63.  Article 96 of the Code of Enforcement of Criminal Sentences (“the Code”) establishes a “therapeutic regime” under which convicted persons with mental of physical disabilities who require specialised treatment, in particular psychological or medical care, or rehabilitation, can serve their prison sentences.\n\n64.  Furthermore, Article 97 § 1 of the Code provides that with regard to prisoners serving their penalty under a therapeutic regime, the authorities should be guided, inter alia, by the need to prepare these prisoners for a self-sufficient life. According to paragraph 2 of that provision, the execution of the prison sentence is to be adapted to the prisoner’s needs in the area of medical treatment and hygiene and sanitary requirements. Lastly, paragraph 3 of this provision provides that convicted persons who no longer require specialised treatment should be transferred to another appropriate prison regime.\n\n65.  On the basis of Article 249 of the Code, on 25 August 2003 the Minister of Justice issued the Ordinance on the code of practice for the organisation and arrangement of pretrial detention (Rozporządzenie Ministra Sprawiedliwości w sprawie regulaminu organizacyjnoporządkowego wykonywania tymczasowego aresztowania) (“the 2003 Ordinance on Pre-Trial Detention”) and the Ordinance on the code of practice for the organisation and arrangement of imprisonment (Rozporządzenie Ministra Sprawiedliwości w sprawie regulaminu organizacyjnoporządkowego wykonywania kary pozbawienia wolności) (“the 2003 Ordinance on Imprisonment”). Both ordinances entered into force on 1 September 2003.\n\n66.  The 2003 Ordinance on PreTrial Detention and the 2003 Ordinance on Imprisonment both state that pretrial detention and detention after a conviction must take place in remand centres and prisons respectively. However, both acts provide for exceptions to the standard regime of detention.\n\n67.  Paragraph 28 of the 2003 Ordinance on PreTrial Detention and paragraph 26 of the 2003 Ordinance on Imprisonment provide that the governor of a remand centre or a prison may, at the request of or after consultation with a doctor, make necessary exceptions to the arrangements for pretrial detention or imprisonment as laid down in the relevant code of practice, in so far as this is justified by the state of health of the detainee concerned. The provisions apply to detainees with a physical disability.\n\n68.  The detention of disabled persons is not regulated any further by Polish domestic law.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION\n\n69.  The applicant complained that in view of his disability and his special needs, his protracted detention in the conditions of Szczytno and Olsztyn Remand Centres had been in breach of Article 3 of the Convention, which reads as follows:\n\n“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”\n\nA.  Admissibility\n\nThe Government’s objection on exhaustion of domestic remedies\n\n70.  The Government raised a preliminary objection, arguing that the applicant had not exhausted the domestic remedies available to him.\n\n(a)  The Government\n\n71.  They submitted, in their letter dated 3 March 2008, that the applicant should have brought a civil action for compensation under Articles 23 and 24 of the Civil Code, read in conjunction with Article 448 of that Code. That remedy would have enabled him to seek compensation for the alleged infringement of his personal rights, namely, his dignity and health, suffered on account of the authorities’ alleged failure to secure to him care and conditions adequate to his special needs during his detention.\n\n72.  In that connection the Government referred to nine judgments in which domestic courts had examined claims for compensation brought by former detainees on account of the alleged infringement of their personal rights (see, for example, Orchowski, cited above, §§ 82 and 83, and Sławomir Musiał v. , no. 28300/06, § 59, 20 January 2009).\n\n73.  In four of the cases cited by the Government, which had been examined by domestic courts in 2005, 2006 and 2007, the plaintiffs, nonsmokers detained with smoking inmates, had been awarded compensation (ranging from PLN 2,000 to PLN 5,000) because it had been found that they had been at risk of suffering or had actually suffered a health disorder (plaintiffs W.L., N.S., L.W. and K.K.)\n\n74.  One of these cases was examined under Articles 23 and 224 of the Civil Code, read in conjunction with Article 448 of that Code. The remaining three cases were examined under Article 417 or 445 of the Civil Code. The notion of damage under the latter provisions was linked with the liability ex delicto. The provisions relied on concerned both material and nonmaterial damage. The former was defined as a physical injury or health disorder resulting from an unlawful act or omission. The latter could be manifested by negative mental experiences suffered by the plaintiff as a result of his physical injury or health disorder.\n\n75.  Another of the cases referred to concerned a prisoner who had suffered food poisoning in prison (plaintiff S.L.; judgment of the Olsztyn Regional Court of 6 March 2007) and another concerned a detainee who had been beaten up by a fellow inmate (plaintiff M.P.; judgment of the Szczecin Court of Appeal of 29 March 2007).\n\n76.  In another case, brought by a certain J.K., who had been detained for seven days in an overcrowded and insanitary cell, the Warsaw Court of Appeal (judgment of 27 July 2006) granted partial compensation on account of the fact that the prison governor had failed to inform the competent penitentiary judge, in compliance with the applicable procedure, about the problem of overcrowding at the time when the plaintiff was serving his sentence there. In the similar case of a certain S.G. the Cracow Court of Appeal (judgment of 23 February 2007) held that there had been no legal basis to grant compensation for detaining the plaintiff in an overcrowded cell.\n\n77.  Lastly, in the case of a certain R.D. the Łódź Court of Appeal (judgment of 8 September 2006) awarded the applicant compensation in the amount of PLN 7,500 because the plaintiff was found to have been at a real risk of contracting a disease from his HIV-positive fellow inmates and had experienced significant psychological suffering.\n\n78.  The Government further submitted that under the above-mentioned provisions of the Civil Code a plaintiff could also ask the civil court to impose an injunction, requiring the penitentiary authorities to cease the infringement of his personal rights, for example, by relocating him to another cell. They did not supply any specific example of a successful request to this effect.\n\n79.  In view of the foregoing, the Government invited the Court to reject this part of the application for non-exhaustion of domestic remedies, pursuant to Article 35 § 1 of the Convention.\n\n(b)  The applicant\n\n80.  The applicant did not submit any comments in that regard.\n\n(c)  The Court’s assessment\n\n81.  The Court observes that the rule of exhaustion of domestic remedies contained in Article 35 § 1 of the Convention requires that normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see, among other authorities, Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports of Judgments and Decisions 1996-IV).\n\n82.  In the area of the exhaustion of domestic remedies there is a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and practice at the relevant time, that is to say, that it was accessible, was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. However, once this burden has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement (ibid., § 68).\n\nIn addition, Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism. This means amongst other things that it must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate as well as the personal circumstances of the applicants (ibid., § 69).\n\n83.  It must be noted that the applicant lodged his application with the Court on 2 May 2003. By that time he had already spent nearly one year in continuous detention (see paragraph 23 above). He complained to the Court that in view of his disability and his special needs, his protracted detention in the conditions of Szczytno and Olsztyn Remand Centres had been in breach of Article 3 of the Convention.\n\nThe applicant filed numerous applications for release from pre-trial detention on humanitarian grounds and lodged many complaints with the administration of Szczytno Remand Centre, domestic courts and penitentiary authorities, arguing that he should not be detained due to his disability and, alternatively, that he should be offered special care. He also complained to various domestic authorities about the difficulties he had had in obtaining forearm prostheses (see paragraphs 9, 14, 18, 32, 33, 37, 40, 52, 54, 56 and 60 above).\n\n84.  The Government argued that the applicant should have brought, in addition to the above-mentioned appeals, a civil action for compensation under Articles 23 and 24 of the Civil Code, read in conjunction with Article 448 of that Code. In their opinion, that remedy would have enabled him to seek compensation for the alleged infringement of his personal rights, suffered on account of the authorities’ alleged failure to secure to him care and conditions adequate to his special needs during his detention.\n\n85.  In the Court’s view, it cannot be said that the applicant did not sufficiently bring his situation to the attention of the competent authorities or seek improvement of the conditions of his detention.\n\nIn the first year the authorities decided to maintain the detention measure because the applicant was considered fit for it. Subsequently, the applicant was granted a twelve-month-long period of leave from serving his sentence to seek orthopaedic care outside the penitentiary system. The second term of the applicant’s detention lasted two years and three months despite discrepancies between different medical reports concerning his level of self-sufficiency and fitness for detention. Eventually, the applicant was released on parole.\n\n86.  The Court takes note, however, of the examples of domestic cases provided by the Government, in which various provisions of the Civil Code had been successfully relied on with the effect of granting prisoners compensation for non-material damage which had been suffered on account of an unlawful interference with their right to protect themselves from passive smoking, food poisoning, being beaten up by a fellow inmate or of being exposed to a real risk of contracting a disease from HIV positive inmates. It should be stressed that almost all the judgments referred to by the Government were rendered after the date on which the applicant had lodged his application with the Court.\n\n87.  The issue of the effectiveness and adequacy of the Polish civil remedies was already examined by the Court in a case similar to the present one, in which an epileptic prisoner complained of inadequate medical care (see Kaprykowski, cited above). The Court welcomed the developments in domestic jurisprudence in the field of personal rights. It was not persuaded, however, that the judgments referred to by the Government could have any parallel effect in the area of claims arising from inadequate medical care in detention and whether they could be considered examples of a common and well-established practice (see Kaprykowski, cited above, § 55).\n\n88.  It must be observed that the applicant in the instant case did not suffer during his detention from any health ailment requiring that he be provided with medical supervision or treatment. He had a serious physical disability, which, as he alleged, made him unable to attend to himself without the aid of another person and meant that he needed special care.\n\n89.  It cannot therefore be said that the examples from domestic case-law supplied by the Government show that, in the circumstances of the instant case and, more particularly, in May 2003, when the applicant brought his application under the Convention, an action under Article 445 or Article 448 of the Civil Code could have offered him reasonable prospects of securing more adequate conditions or a special care regime during his detention (see Kaprykowski, cited above, §§ 54-57 and Kulikowski v.  (no. 2), no. 16831/07, § 52, 9 October 2012).\n\n90.  In view of the above, the Court is not satisfied that the civil remedies relied on by the Government in the present case would have been adequate and effective in connection with the applicant’s complaint concerning the lack of special care during his detention. Nor does it consider that the Government have demonstrated the effectiveness, at the time when the applicant lodged the application with the Court, of any other remedy in the domestic law system which the applicant should have used to obtain the requisite relief in addition to his administrative and penitentiary complaints or his habeas corpus applications.\n\nAccordingly, the Government’s objection on the ground of nonexhaustion of domestic remedies must be rejected.\n\n91.  The Court also notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n1.  The parties’ submissions\n\n(a)  The applicant\n\n92.  The applicant complained that in view of his disability and his special needs, his protracted detention in the conditions of Szczytno and Olsztyn Remand Centres had been in breach of Article 3 of the Convention. More precisely, the applicant asserted that, despite his disability, the remand centre staff had not provided him with any special care. That had made his life in detention very difficult because he had not been able to carry out many of his daily or routine tasks, such as serving his meals, making his bed, cutting his toenails, washing, shaving and getting dressed, and cleaning himself after going to the bathroom. He had had to seek help from his inmates, which had put him in a position of dependency.\n\n93.  In addition, the applicant complained that the penitentiary authorities had failed to arrange for him to be provided with the necessary forearm prostheses.\n\n(b)  The Government\n\n94.  The Government argued that during his detention the applicant had not suffered inhuman or degrading treatment which had attained the minimum level of severity within the meaning of Article 3 of the Convention.\n\n95.  Moreover, they submitted that the applicant’s disability had been taken into consideration when the domestic court decided to remand him in custody in connection with the criminal proceedings pending against him at that time. The applicant remained under medical supervision throughout his entire detention and his fitness for detention was the subject of regular assessment by the domestic courts and penitentiary authorities.\n\n96.  Lastly, the Government noted that the relevant authorities had actively assisted the applicant in the procedure for obtaining mechanical and bio-mechanical prostheses. In view of the applicant’s passive attitude, it was only thanks to the administration of Szczytno Remand Centre that the State Sick Fund approved a full reimbursement of the mechanical prostheses. The applicant was transferred without undue delay to Olsztyn Remand Centre, where the prostheses were to be made. The fact that they were not made during the applicant’s first term of detention was to be blamed entirely on the applicant, who declared that he would only accept the more advanced bio-mechanical prostheses.\n\n97.  It was also stressed that the applicant had had his arms amputated many years before his detention. He was well-adjusted to his disability, as he had not used prostheses when he was at liberty. He could therefore function in detention without experiencing any particular discomfort on account of his amputated forearms.\n\n(c)  The  Foundation for Human Rights\n\n98.  The written comments submitted on 31 January 2008 by the Helsinki Foundation for Human Rights (Helsińska Fundacja Praw Człowieka) (“the Foundation”) contain an extensive overview of the domestic law and practice concerning the detention of persons with disabilities and a comparative study of relevant regulations and practices in the United Kingdom and the United States.\n\n2.  The Court’s assessment\n\n99.  In accordance with the Court’s settled case-law ill-treatment must attain a minimum level of severity to fall under Article 3 of the Convention. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Kudła v. Poland [GC], no. 30210/96, § 91, ECHR 2000-XI; Price v. the United Kingdom, no. 33394/96, § 24, ECHR 2001-VII; and Enea v.  [GC], no. 74912/01, § 55, ECHR 2009).\n\n100.  The Court has considered treatment to be “degrading” within the meaning of Article 3 because it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them (see, for example, Kudła, cited above, § 92). The Court will have regard to whether the object of such treatment is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3 (see, for example, the Raninen v. Finland 16 December 1997, § 55, Reports of Judgments and Decisions, 1997-VIII). However, the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3 (see, for example, Peers v. Greece, no. 28524/95, § 74, ECHR 2001-III).\n\n101.  The suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. Measures depriving a person of his liberty may often involve such an element. Although Article 3 of the Convention cannot be construed as laying down a general obligation to release detainees or place them in a civil hospital, even if they are suffering from an illness which is particularly difficult to treat (see Mouisel v. , no. 67263/01, § 40, ECHR 2002IX), it nonetheless imposes an obligation on the State to ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see Kudła, cited above, §§ 92-94).\n\n102.  Persons in custody are in a vulnerable position and the authorities are under a duty to protect them. Where the authorities decide to place and maintain in detention a person with disabilities, they should demonstrate special care in guaranteeing such conditions as correspond to his special needs resulting from his disability (see Price, cited above, § 30 and Farbtuhs v. Latvia, no. 4672/02, § 56, 2 December 2004).\n\n103.  In this type of cases, the Court must take account of three factors in particular in assessing whether the continued detention of an applicant is compatible with his or her state of health where the latter is giving cause for concern. These are: (a) the prisoner’s condition, (b) the quality of care provided and (c) whether or not the applicant should continue to be detained in view of his or her state of health (see, for example, Farbtuhs, cited above, § 53).\n\n104.  In applying these principles, the Court has already held that detaining persons suffering from a serious physical disability in conditions inappropriate to their state of health or leaving such persons to rely on their cellmates in receiving assistance to relieve themselves, bathe and get dressed or undressed, amounted to degrading treatment (see Price, cited above, § 30; Engel v. , no. 46857/06, §§ 27-30, 20 May 2010; and Vincent v. France, no. 6253/03, §§ 94-103, 24 October 2006).\n\n105. The Court will now examine whether, in view of all the circumstances of the present case, the applicant’s continued detention was compatible with his disability and whether that situation attained a sufficient level of severity to fall within the scope of Article 3 of the Convention.\n\n106. As to the prisoner’s condition, it is undisputed that the applicant, who had amputated forearms, was certified as someone requiring the assistance of a third person (see paragraphs 5 and 32 above) and was initially declared not fit for self-sufficient existence and detention in prison (see paragraph 31 above). Later on, it was considered that the assistance which the applicant required was not of a medical nature (see paragraphs 32 and 33 above) and that his disability did not make him, strictly speaking, unfit for detention (see paragraphs 45 above). It was nevertheless acknowledged that the applicant’s physical condition made his detention very difficult, especially during the period of approximately thirteen months when he did not have arm prostheses (see paragraphs 40 and 45 above).\n\n107.  The applicant claimed that during both periods of his detention he had not been able to carry out many of his daily or routine tasks, such as serving his meals, making his bed, cutting his toenails, washing, shaving and getting dressed, and cleaning himself after going to the bathroom (see paragraph 28 above).\n\nThe Government submitted that the applicant had for the most part been self-sufficient (see paragraphs 29, 37 and 97 above) and that he had received special treatment in prison. For example, he had been released from a prisoner’s ordinary duties, such as cleaning his cell, and enjoyed wider privileges, such as longer family visits and a shower six times per week (see paragraph 30 above).\n\n108.  It was also stressed that thanks to the actions of the penitentiary authorities and the granting the applicant leave from serving his sentence, the applicant had obtained two mechanical forearm prostheses. From that time on, he became even more independent and fit to be detained (see paragraph 96 above).\n\n109.  The Court observes that a series of medical reports which were drafted after the applicant had been equipped with mechanical prostheses clearly stated that he was not self-sufficient and fit to be detained in a prison (see paragraphs 47, 50, 53 and 55 above). In November 2004 and June 2005 it was considered that although the prostheses helped the applicant in carrying out simple daily tasks such as eating and brushing his teeth, they did not allow for high precision movements, such as those necessary for washing, putting on smaller items of clothing, shaving or cleaning after going to the bathroom (see paragraphs 50 and 55 above). In April 2005 it was declared that the applicant could not receive adequate care and treatment in prison because of the nature of his disability (see paragraph 53 above).\n\n110. As to the quality of care provided to the applicant in prison, the Court observes that during the first period of the applicant’s detention the authorities undeniably took some steps to ensure that adequate treatment was provided to meet his special needs.\n\n111.  At first, the governor of Szczytno Remand Centre sought to transfer the applicant to a specialised medical facility (see paragraph 32 above) but no medical reason for such a transfer was found by the head of the remand centre’s medical establishment (see paragraphs 32 and 33 above). In consequence, the applicant remained in the remand centre and special arrangements were made in an attempt to relieve or to make up for the hardships of his detention. For example, the applicant was allowed to have six showers per week and was exempted from ordinary prisoner’s duties such as cleaning his cell and granted longer or more frequent family visits (see paragraph 30 above).\n\n112.  In addition, it is clear that the State authorities actively assisted the applicant in the procedure for obtaining mechanical, and later biomechanical, arm prostheses. The necessary applications were made on the applicant’s behalf by the prison doctors, a full reimbursement of the cost of basic mechanical prostheses was approved by the State Sick Fund and the applicant was transferred to different detention facilities where he could have the prostheses of his choice made and fitted (see paragraphs 35 – 42 above). When it became clear that, despite those efforts, the applicant would not be able to obtain prostheses of an advanced bio-mechanical type in prison, he was granted leave from serving his sentence to seek orthopaedic care outside the penitentiary system (see paragraph 45 above).\n\n113.  During the second period of his detention, the applicant used basic mechanical prostheses. As stated by various medical authorities, those prostheses enabled him to carry out simple daily tasks such as eating and brushing his teeth. They did not allow, however, for high precision movements, such as those necessary for maintaining personal hygiene or putting on smaller items of clothing (see paragraphs 50 and 55 above). Consequently, it was recommended that some assistance be provided to the applicant in his daily routines by the remand centre staff (see paragraph 55 above).\n\n114.  It is unclear whether during the second period of his detention the administration of Szczytno and Olsztyn Remand Centres made the same practical arrangements for the applicant as during his first period of detention (see paragraph 111 above).\n\n115.  The Court takes note, however, of the submission that Szczytno Remand Centre had arranged for a physiotherapist to come to the centre but the applicant had refused, for an unspecified reason, to undergo rehabilitation with that person (see paragraph 52 above).\n\n116.  Throughout both periods of his detention the authorities took steps to ensure that the applicant was assisted by his fellow inmates (see paragraphs 28, 29 and 33 above).   The letter of the governor of Szczytno Remand Centre dated 17 January 2005 (see paragraph 52 above) confirms that the authorities made arrangements within the remand centre to enable the applicant to call on his fellow inmates when the need arose. On the facts of the applicant’s case, it cannot be said that the authorities abandoned their obligations towards the applicant and left him to rely entirely on the availability and goodwill of his fellow prisoners. The applicant’s case is therefore to be distinguished from the case of D.G. v. Poland, no. 45705/07, §§ 45 and 147, 12 February 2013 (not yet final).\n\n117.  The Court also observes that the applicant’s condition clearly did not require any specialised care, for which a type of a formal nurse training would be necessary (see paragraph 32 above). The applicant was for the most part autonomous, especially after he started using the prostheses, and the assistance which he needed was limited to common washing and dressing tasks which required higher precision (see paragraphs 28, 29, 33, 50 and 55 above).\n\n118.  It is true that the Court often criticised the scheme of providing routine assistance to a prisoner with a physical disability through cellmates, even if they were volunteers and even if their help was solicited only when the prison infirmary was closed (see Farbtuhs v. Latvia, no. 4672/02, § 60, 2 December 2004). In the particular circumstances of the present case, however, the Court does not find any reason to condemn the system which was put in place by the authorities to secure the adequate and necessary aid to the applicant (see Turzyński v. Poland (dec.), no. 61254/09, § 40, 17 April 2012).\n\n119.  On the subject of access to a shower, the Court observes that giving the applicant an unlimited daily possibility of washing himself under the shower would have been an ideal solution to his hygiene maintenance prolems. On the other hand, the Court is aware of the practical difficulties of managing various groups of detainees and of reconciling their individual needs with the requirements of prison security. It is to be noted that the applicant’s access to a shower room was by far more frequent than that of an ordinary prisoner and sufficient for him to keep clean, including, after going to the toilet. In view of these considerations, the Court is satisfied that by allowing the applicant to use a shower room six times per week, the authorities adequately responded to his special needs (contrary to, Price v. the United Kingdom, no. 33394/96, §§ 28-30, ECHR 2001VII and Melnītis v. , no. 30779/05, § 75, 28 February 2012).\n\n120.  Furthermore, the Court takes notice of the submissions of the Helsinki Foundation for Human Rights about the inadequate treatment of prisoners with disabilities in Polish prisons and remand centres (see paragraph 98 above). It is also accepted, against this general background, that  and Szczytno remand centres, to which the applicant was committed, were not adapted for special needs prisoners (see paragraphs 27, 28, 57 above).\n\nOn the other hand, it is clear that the existence of ordinary architectural or technical barriers did not affect the applicant, who had amputated forearms but not a mobility disorder and was able to access the medical and other prison facilities, outdoor exercise areas and fresh air (contrary to Arutyunyan v. , no. 48977/09, §§ 77 and 81, 10 January 2012 and Cara-Damiani v. , no. 2447/05, § 70, 7 February 2012).\n\n121.  Lastly, the Court will examine the applicant’s complaint that the penitentiary authorities had failed to arrange for the necessary forearm prostheses to be provided to him.\n\n122.  It must be noted that upon his arrest in 2002 the applicant was actively assisted by the penitentiary authorities and various institutions in the procedure for obtaining mechanical, and more advanced bio-mechanical, prostheses (see paragraphs 34-42 above). A full reimbursement of the cost of the basic-type prostheses was approved without any undue delay by the State Sick Fund (see paragraph 36 above) and the necessary notices were obtained with regard to the financing of bio-mechanic prostheses, which the applicant decided to get instead (see paragraphs 41 and 42 above). Eventually, the applicant obtained mechanical prostheses free of charge and underwent the necessary physiotherapy (see paragraph 46 above).\n\n123.  In the light of the above findings, the Court is satisfied that the penitentiary authorities actively looked for, and succeeded without undue delay in providing, an appropriate solution to the applicant’s situation (contrary to Vladimir Vasilyev v. , no. 28370/05, §§ 67-69, 10 January 2012).\n\n124.  In so far as the applicant may be understood to be complaining that the State did not approve a full refund of the cost of advanced-type biomechanical prostheses, the Court observes that the case does not relate to a systemic problem caused by flaws in the medical insurance system for providing orthopaedic or prosthetic care to detainees deprived of any financial means, contrary to the factual situation in the case of V.D. v. Romania (no. 7078/02, § 86-88, 16 February 2010). It should be added that under the Polish legislation every patient seeking to obtain biomechanical prosthesis could claim only a very limited refund and had to pay the difference from his or her budget.\n\nConsequently, bearing in mind that the basic-type mechanical prostheses were available and indeed provided to the applicant free of charge and that a refund of a small part of the cost of bio-mechanic prostheses was also available, the Court considers that the respondent State cannot be said, in the circumstances of the present case, to have failed to discharge its obligations under Article 3 by not paying the full costs of a prosthetic device of an advanced type (see, by comparison, Nitecki v. Poland (dec.), no. 65653/01, 21 March 2002).\n\n125.  In conclusion, the Court notes the pro-active attitude of the prison administration vis-à-vis the applicant. The competent authorities provided the applicant with the regular and adequate assistance his special needs warranted (see paragraphs 110125 above). Moreover, there is no evidence in this case of any incident or positive intention to humiliate or debase the applicant. The Court holds, therefore, that even though a prisoner with amputated forearms is more vulnerable to the hardships of detention, the treatment of the applicant in the circumstances of the present case did not reach the threshold of severity required to constitute degrading treatment contrary to Article 3 of the Convention (see contrary to, Price, cited above, §§ 28-30, Engel v. , no. 46857/06, §§ 27 and 30, 20 May 2010 and Vincent v. , no. 6253/03, § 94-103, 24 October 2006). The Court therefore finds that there was no violation of this provision in the present case.\n\nII.  THE REMAINING COMPLAINTS\n\n126.  The applicant also complained under Article 5 §§ 1 and 3 of the Convention that his pretrial detention was unlawful and unreasonably long. The provisions in question read as follows:\n\n“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:\n\n...\n\n(c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;\n\n...\n\n3.  Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial ....”\n\n127.  However, pursuant to Article 35 of the Convention:\n\n“1. The Court may only deal with the matter ... within a period of six months from the date on which the final decision was taken ...\n\n(...)\n\n4.  The Court shall reject any application which it considers inadmissible under this Article. It may do so at any stage of the proceedings.”\n\n128.  The Court notes that the decision to remand the applicant in custody was delivered by the Szczytno District Court on 19 June 2002 and the applicant’s appeal against that decision was handed down by the  on 12 July 2002 (see paragraphs 7 and 10 above). There was no other possibility, under the applicable domestic law, to challenge the detention order in question.\n\nMoreover, the applicant’s detention on remand, within the meaning of Article 5 § 3 of the Convention, came to an end on 31 October 2002 when he was convicted by the Szczytno District Court (see paragraph 16 above).\n\n129.  In view of the fact that the applicant lodged his application with the Court on 2 May 2003, the above-mentioned Article 5 complaints have been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.\n\n130.  Lastly, the applicant complained under Article 6 § 1 of the Convention about the outcome of the criminal proceedings against him and claimed that they were unfair. The relevant part of the provision invoked reads the following:\n\n“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”\n\n131.  However, pursuant to Article 35 § 1 of the Convention:\n\n“ The Court may only deal with the matter after all domestic remedies have been exhausted ...”\n\n132.  It is noted that the applicant failed to lodge a cassation appeal against the Olsztyn Regional Court’s judgment of 19 February 2003. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.\n\nFOR THESE REASONS, THE COURT\n\n1.  Declares unanimously the complaint under Article 3 admissible and the remainder of the application inadmissible;\n\n2.  Holds by five votes to two that there has been no violation of Article 3 of the Convention.\n\nDone in English, and notified in writing on 12 March 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.\n\nIn accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the joint dissenting opinion of Judge I. Ziemele and Judge Z. Kalaydjieva is annexed to this judgment.\n\n1.  We respectfully disagree with the majority which found no violation of Article 3 in this case. We note that the applicant formulated two complaints under Article 3. The first concerned his disability and special needs since he was unable to carry out many of his daily or routine tasks and had to seek help from his fellow inmates. Secondly, he complained about the protracted process of providing him with forearm prostheses (see paragraphs 92-93 of the judgment). We can accept that the authorities assisted the applicant and obtained the necessary prostheses after some delay (see paragraphs 124-125). However, we do not agree with the majority view that the arrangements put in place by the prison authorities to assist the applicant in attending to his daily needs were both adequate and made in time to avoid a lasting situation of questionable compatibility with the requirements of Article 3 (compare and contrast with Todorov v. Bulgaria (dec.), no. 8321/11, 12 February 2013).\n\n2.  In this regard we would like to reiterate the main principles of the Court’s case-law. More generally, the Court has stated as follows: “[Article 3] nonetheless imposes an obligation on the State to protect the physical well-being of persons deprived of their liberty, for example by providing them with the requisite medical assistance (see Hurtado v. Switzerland, 28 January 1994, Series A no. 280A, opinion of the Commission, pp. 15-16, § 79). The Court has also emphasised the right of all prisoners to conditions of detention which are compatible with human dignity, so as to ensure that the manner and method of execution of the measures imposed do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention; in addition, besides the health of prisoners, their well-being also has to be adequately secured, given the practical demands of imprisonment (see Kudła, cited above, § 94)” (see Mouisel v. , no. 67263/01, § 40, ECHR 2002IX). In the case of Farbtuhs v. Latvia (no. 4672/02, 2 December 2004), the Court noted that the prison authorities had permitted the family members to stay with the detainee for twenty-four hours at a time and that this took place on a regular basis. In addition to the family taking care of the applicant, who had a physical disability, he was assisted during working hours by the medical personnel and outside working hours was helped by his co-detainees on a voluntary basis. In that case, the Court found that such a solution was not acceptable. The Court stated that it doubted “the appropriateness of such a solution, leaving as it did the bulk of responsibility for a man with such a severe disability in the hands of unqualified prisoners, even if only for a limited period. It is true that the applicant did not report having suffered any incident or particular difficulty as a result of the impugned situation; he merely stated that the prisoners in question sometimes ‘refused to cooperate’, without mentioning any specific case in which they had refused. However, the anxiety and unease which such a severely disabled person could be expected to feel, knowing that he would receive no professional assistance in the event of an emergency, in themselves raise a serious issue from the standpoint of Article 3 of the Convention” (see Farbtuhs v. , no. 4672/02, § 60, 2 December 2004).\n\n3.  In assessing the minimum level of severity of treatment, the Court has always taken into account the relative differences in individual circumstances – depending on the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim. We would stress again that, according to medical experts, the condition of the applicant in the present case required permanent assistance. The fact that the applicant had to rely on fellow inmates for assistance in meeting his daily personal needs in itself raises an issue as to whether the manner and method of execution of the punishment measures were appropriate to his disabled condition or subjected him to further distress, hardship or humiliation of an intensity exceeding the unavoidable level of suffering inherent in detention. In our view this issue was insufficiently examined.\n\n4.  The majority, despite not having in its possession any precise information as to the functioning of the system of inmate assistance to the applicant, still chose to accept that the existence of such a system was adequate from the point of view of Article 3. No distinction was subsequently made between the facts of this case and those of Farbtuhs v. Latvia. We consider that the Chamber departed from the established caselaw without even providing a reason.\n\n4.  The majority, despite not having in its possession any precise information as to the functioning of the system of inmate assistance to the applicant, still chose to accept that the existence of such a system was adequate from the point of view of Article 3. No distinction was subsequently made between the facts of this case and those of Farbtuhs v. Latvia. We consider that the Chamber departed from the established caselaw without even providing a reason.","title":""}
{"_id":"passage_211","text":"PROCEDURE\n\n1.  The case originated in an application (no. 12793/02) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Ms Maya Timofeyevna Seregina (“the applicant”), on 6 October 2001.\n\n2.  The Russian Government (“the Government”) were represented by Mr P. Laptev, Representative of the  at the European Court of Human Rights.\n\n3.  On 14 September 2005 the Court decided to communicate the application to the Government.\n\n4.  Under Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.\n\nTHE FACTS\n\nI. THE CIRCUMSTANCES OF THE CASE\n\n5.  The applicant was born in 1936 and lives in the town of  of the Sakhalin Region.\n\n1. The background of the case\n\n6.  In 1987 the applicant and her sister V. decided jointly to build a residence in the town of  on two adjacent land plots allocated to them by a local council. The plots were registered respectively in the applicant's name and in the name of V.'s son Z.\n\n7.  The construction works started in 1989 and in 1990 the title over the second land plot was transferred to V.\n\n8.  According to the applicant, in 1992 V. died leaving a will by which she bequeathed her part of the house to the applicant.\n\n9.  By 1995 the construction works had been nearly completed.\n\n10.  On 11 October 1995 Z. obtained a decision of the local administration transferring to him the title to the second land plot and moved into the house.\n\n11.  In response to the applicant's complaints that Z. had forged an official document concerning his share in V.'s inheritance, the local police refused to institute criminal proceedings for the lack of evidence of a crime.\n\n12.  The local prosecutor also advised the applicant that it would be possible to evict Z. from the house only on the basis of a court decision. It does not appear that the applicant brought proceedings for his eviction.\n\n2. First round of proceedings\n\n13.  In October 1996 the applicant lodged with the  (“the ”) a complaint concerning the decision of the local administration transferring the land title to Z.\n\n14.  On 23 October 1996 the complaint was registered and accepted for examination.\n\n15.  By decision of 20 January 1997 the court decided to suspend the proceedings with reference to the need to request the evidence.\n\n16.  On 31 July 1997 the applicant lodged a separate civil action against Z., requesting the court to confirm her property rights in relation to the part of the house formerly owned by V. with reference to her sister's will, the fact that it was her and her sister's joint possession and that the applicant had borne a major part of the construction expenses. She also asked the court to restore the time limits for acceptance of her share in V.'s inheritance and establish that she had in fact accepted it.\n\n17.  In response, Z. filed a counterclaim requesting the court to invalidate V.'s will.\n\n18.  The proceedings concerning the decision of the local administration resumed on 25 August 1997. By decision of 17 November 1997 the court joined the applicant's claims against the local council and Z. in one set of proceedings.\n\n19.  By the same decision the court also accepted Z.'s waiver of claims against the applicant. The waiver was subsequently declared unlawful and quashed by the  (“the ”) on 14 January 1999.\n\n20.  On 22 December 1997 the court decided to request the  to question a number of witnesses. The request was executed and on 9 April 1998 the court received the necessary evidence.\n\n21.  On 5 May 1998 the Convention entered into force in respect of .\n\n22.  The hearing of 3 June 1998 did not take place because of Z.'s failure to appear.\n\n23.  On 29 July 1998 the  dismissed the applicant's claims as unfounded.\n\n24.  The  quashed this judgment on appeal and remitted the case at first instance on 26 August 1998.\n\n3. Second round of proceedings\n\n25.  The case was returned to the  and accepted for examination on 8 September 1998.\n\n26.  The court decided to start the hearings in the case on 20 November 1998. On that date the parties failed to appear and the hearing was postponed.\n\n27.  On 27 January 1999 the applicant successfully challenged the judge and the case was transferred to a different court composition.\n\n28.  The hearing of 1 April 1999 did not take place as the defendant's counsel failed to appear. The hearing was postponed until 19 May 1999. On that date a counsel for the local administration failed to appear and the court again rescheduled the hearing.\n\n29.  On 24 June 1999 the applicant's lawyer dropped the claims for the restoration of time limits and the establishment of the fact of acceptance of inheritance. She also retracted the submission that the applicant's ownership to her sister's part of the house should be declared in accordance with the will, claiming ownership only on the ground that the house had been a joint possession and that the applicant had borne the major construction expenses.\n\n30.  By decision of the same date the  granted this motion and discontinued the proceedings in respect of these claims accordingly. The applicant submitted that she had not authorised her lawyer to do so and that she had not been aware of this decision.\n\n31.  On 27 August 1999 the court decided to split the proceedings into two parts and examine the defendant's counterclaim separately. The parties filed an interlocutory appeal against this decision and on 1 September 1999 the proceedings were suspended awaiting the examination of the appeal.\n\n32.  The  refused to examine the appeal on 4 October 1999 on the ground that the decision of 27 August 1999 had been final and not subject to appeal.\n\n33.  Thereafter the proceedings resumed, but on 9 December 1999 the  ordered an expert examination and again suspended the examination of the case.\n\n34.  On 28 April 2000 the completed expert examination reached the court and the proceedings resumed.\n\n35.  The hearing of 11 July 2000 did not take place because of the absence of the applicant's counsel.\n\n36.  The expert who was summoned to the hearings of 3 August and 14 September 2000 failed to appear and the hearings were adjourned.\n\n37.  On 26 October 2000 for an unspecified reason the case was transferred to a different court composition.\n\n38.  The hearing scheduled for 8 December 2000 did not take place for the failure of the parties to appear.\n\n39.  On 25 January and 12 March 2001 the court decided to adjourn the hearing with reference to the applicant's failure to attend.\n\n40.  By decision of 27 April 2001 the court ordered an additional expert examination and suspended the proceedings.\n\n41.  On 24 May 2001 the examination was completed and on 30 May 2001 the proceedings resumed.\n\n42.  By judgment of 5 June 2001 the  held in the applicant's favour. It declared her the owner of the house at issue and voided the decision of the local administration for transfer of land title to Z. as breaching the applicant's rights\n\n43.  Z. appealed against this judgment.\n\n44.  On 11 July 2001 the  rejected his appeal and upheld the first instance judgment in full. The judgment became final on the same day.\n\n4. Supervisory review of the decisions in the applicant's favour\n\n45.  On an unspecified date the acting President of the  lodged with the Presidium an application for supervisory review of the judgment of 5 June 2001 and the appeal decision of 11 July 2001.\n\n46.  On 13 September 2001 the Presidium of the  examined the case. It appears that the applicant stated her case at the hearing in person.\n\n47.  By decision of the same date the Presidium quashed the impugned decisions. It found that the trial and appeal courts had erroneously applied the provisions of the Civil Code of 1996 to the events which had taken place before its entry into force. The Presidium also referred to discrepancies between the facts established by the lower courts and the courts' conclusions and remitted the case for a fresh examination at first instance.\n\n48.  On 26 August 2002 the Supreme Court dismissed the applicant's complaint about the decision of 13 September 2001 and noted that she was free to advance her arguments during the fresh examination of her case at first instance.\n\n5. Third round of proceedings\n\n49.  The proceedings in the case resumed on an unspecified date.\n\n50.  On 11 October 2001 a presiding judge withdrew from the case and on 25 December 2001 it was transferred to a different court composition.\n\n51.  By decision of 30 January 2002 the court scheduled the hearing for 20 February 2002. On the latter date the presiding judge was sick and the hearing was postponed.\n\n52.  On 21 March 2002 the court suspended the proceedings with reference to the applicant's illness.\n\n53.  The proceedings resumed on 8 October 2002 and the next hearing was scheduled for 11 November 2002.\n\n54.  On that date the court decided to request further evidence and adjourned the hearing again.\n\n55.  On 29 November 2002 the defendant failed to appear and the hearing was adjourned.\n\n56.  By judgment of 15 December 2002 the  rejected the applicant's claim of ownership of the disputed part of the house. The court held that there was insufficient evidence to conclude that the house was a joint possession and that the applicant had assumed the major construction expenses. It further established that the applicant's ownership could not be based on the will either since the will was invalid. As to the land plot, the court granted the applicant's claim and voided the decision transferring title over land to Z.\n\n57.  On 26 February 2003 the  upheld the first instance judgment on appeal and it became final.\n\n6. Second supervisory review of the case\n\n58.  The applicant filed several applications for supervisory review of the judgment of 15 December 2002 and the decision of 26 February 2003. She also sought to set aside the decision of 24 June 1999 alleging that she had not authorised her lawyer to drop the claims.\n\n59.  In response to these applications, by decision of 7 May 2004 the President of the  ordered that the applicant's case be examined on the merits by the Presidium of the .\n\n60.  On 10 June 2004 the Presidium of the  examined the case.\n\n61.  It quashed the decision of 24 June 1999 on the ground that the applicant's counsel had gone beyond her authority when he had dropped a part of the claims and that the applicant had been unaware of the decision in question. The Presidium ordered a fresh examination of this part of the claim. It also ordered re-examination of the issue as to whether the applicant could claim ownership to V.'s part of the house as V.'s heir.\n\n62.  As to the judgment of 15 December 2002 and the appeal decision, the court ordered the exclusion from the courts' reasoning of the references to the validity of V.'s will and upheld them as to the rest.\n\n7.  Fourth round of proceedings\n\n63.  On 7 July 2004 the case was accepted for examination by the .\n\n64.  On 16 July 2004 the court scheduled the hearing for 7 September 2004. On that date the applicant dropped her claims against the local administration and the court adjourned the hearing with reference to the need to request the evidence.\n\n65.  The hearings of 29 September and 19 October 2004 did not take place for the same reason.\n\n66.  On 22 November 2004 the court ordered an additional expert examination and suspended the proceedings.\n\n67.  By decision of 2 December 2004 the court admitted the new evidence in the case and forwarded it for examination to the expert institution.\n\n68.  The proceedings resumed on 21 March 2005. The next hearing was scheduled for 12 April 2005.\n\n69.  By judgment of 12 April 2005 the  dismissed the applicant's claims and granted Z.'s counter-claim in full.\n\n70.  The judgment was upheld by the  on appeal on 18 May 2005.\n\n71.  On 11 November 2005 the applicant's application for supervisory review of the case was dismissed.\n\nII. Relevant domestic law\n\n72.  Section 11 of the Code of Civil Procedure of 1964 (Гражданский процессуальный кодекс РСФСР), as in force at the relevant time, provided that regional and higher courts could conduct supervisory review of the activities of the lower courts.\n\n73.  According to Sections 319, 320 and 327 of the Code, certain senior judicial officers could, at any time, on the request by the person concerned or on their own motion, lodge with a higher court an application for supervisory review of a final decision of a lower court on points of law and procedure.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 ON ACCOUNT OF THE SUPERVISORY REVIEW OF 13 SEPTEMBER 2001\n\n74.  The applicant complained about unfair proceedings in her case. In particular, she submitted that on 13 September 2001 the supervisory instance court had unlawfully quashed the court decisions in her favour, which had been in the process of being enforced.\n\n75.  These complaints fall to be examined under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 which, insofar as relevant, read as follows:\n\nArticle 6 § 1\n\n“In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing ...”\n\nArticle 1 of Protocol No. 1\n\n“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.\n\nThe preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”\n\n76.  The Government alleged that the decisions in the applicant's case had been erroneous in that the domestic courts had wrongly interpreted and applied the relevant law and that therefore the quashing had been justified. They contended that the decisions had been reversed with a view to correct a judicial error.\n\n77.  The applicant contested the Government's submissions and maintained her complaints.\n\nA.  Admissibility\n\n78.  The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.\n\nB.  Merits\n\n1.  Article 6 § 1 of the Convention\n\n79.  The Court first notes that the property dispute at issue was of a pecuniary nature and indisputably concerned a civil right within the meaning of Article 6 § 1.\n\n80.  The Court observes that the issue of the present case is whether the supervisory review procedure permitting a final judgment to be quashed can be considered compatible with Article 6 § 1 and, more specifically, whether on the facts of the present case the principle of legal certainty was respected.\n\n81.  The Court finds that this case is similar to the case of Ryabykh v. Russia (no. 52854/99, ECHR 2003IX), where it was said, in so far as relevant to the instant case:\n\n“51. ... the Court reiterates that the right to a fair hearing before a tribunal as guaranteed by Article 6 § 1 of the Convention must be interpreted in the light of the Preamble to the Convention, which declares, in its relevant part, the rule of law to be part of the common heritage of the Contracting States. One of the fundamental aspects of the rule of law is the principle of legal certainty, which requires, among other things, that where the courts have finally determined an issue, their ruling should not be called into question...\n\n54.  The Court notes that the supervisory review of the judgment ... was set in motion by the President of the Belgorod Regional Court – who was not party to the proceedings ... As with the situation under Romanian law examined in Brumărescu, the exercise of this power by the President was not subject to any time-limit, so that judgments were liable to challenge indefinitely.\n\n55.  The Court reiterates that Article 6 § 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. In this way it embodies the “right to a court”, of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect. However, that right would be illusory if a 's domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party. It would be inconceivable that Article 6 § 1 should describe in detail procedural guarantees afforded to litigants – proceedings that are fair, public and expeditious – without protecting the implementation of judicial decisions; to construe Article 6 as being concerned exclusively with access to a court and the conduct of proceedings would be likely to lead to situations incompatible with the principle of the rule of law which the Contracting States undertook to respect when they ratified the Convention (see Hornsby v. Greece, judgment of 19 March 1997, Reports of Judgments and Decisions 1997II, p. 510, § 40).\n\n56.  The Court considers that the right of a litigant to a court would be equally illusory if a 's legal system allowed a judicial decision which had become final and binding to be quashed by a higher court on an application made by a State official.”\n\n82.  Furthermore, the Court has made the following finding in this respect in the judgment of Sovtransavto Holding v. Ukraine (no. 48553/99, § 77, ECHR 2002VII):\n\n“...judicial systems characterised by the objection (protest) procedure and, therefore, by the risk of final judgments being set aside repeatedly, as occurred in the instant case, are, as such, incompatible with the principle of legal certainty that is one of the fundamental aspects of the rule of law for the purposes of Article 6 § 1 of the Convention, read in the light of Brumărescu ...”\n\n83.  Turning to the facts of the present case, the Court notes that on an unspecified date the acting President of the  lodged a special appeal against the judgment of 5 June 2001 and the appeal decision of 11 July 2001 in the applicant's favour that had become final and binding. On 13 September 2001 the Presidium of the  quashed the aforementioned decisions as erroneous and remitted the case for a fresh consideration at first instance.\n\n84.  The Court does not find any reason for departing from its aforementioned judgments and considers that there has been a violation of Article 6 § 1 in respect of the quashing of the final and binding judgment given in the applicant's case.\n\n2.  Article 1 of Protocol No. 1\n\n85.  The Court reiterates first that the judgment of the Azov Town Court of 5 June 2001 recognised the applicant as a rightful owner of the house at dispute and voided the decision of the local administration for transfer of land title to Z. This judgment became final after it had been upheld by the  on appeal on 11 July 2001.\n\n86.  The Court finds that the decision of the Rostov Regional Court of 13 September 2001 and subsequent proceedings eventually rejecting the applicant's claims in full constituted an interference with the applicant's right to the peaceful enjoyment of possessions guaranteed by Article 1 of Protocol No. 1 (see Brumărescu v. Romania [GC], no. 28342/95, §§ 67-70, ECHR 1999VII).\n\n87.  Having regard to its case-law (see §§ 78-80 in the Brumărescu judgment cited above) and the conclusions under Article 6 § 1 above, the Court considers that, even assuming that the interference in question could be shown to serve some public interest, a fair balance was upset and that the applicant bore and continues to bear an individual and excessive burden.\n\n88.  There has accordingly been a violation of Article 1 of Protocol No. 1.\n\nII.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE LENGTH OF PROCEEDINGS\n\n89.  The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention, which reads:\n\n“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”\n\n90.  The Government contested that argument and submitted that the proceedings had not breached the reasonable-time requirement of Article 6.\n\n91.  The Court recalls that the proceedings in question commenced on 23 October 1996 when the applicant filed a complaint with the District Court against the local administration. However, the period to be taken into consideration began on 5 May 1998, when the Convention entered into force in respect of . Nevertheless, in assessing the reasonableness of the time that elapsed after that date, account may be taken of the state of proceedings at the time. The Court finds that the period in question ended on 18 May 2005 when the judgment of 12 April 2005 was upheld on appeal.\n\n92.  Furthermore, only the periods when the case was actually pending before the courts are to be taken into account, thus excluding the periods between the adoption of final and binding judgments and their annulment in the course of extraordinary proceedings (see Markin v. Russia (dec.), no. 59502/00, 16 September 2004). Accordingly, in the present case only the periods between 23 October 1996, i.e. the date of institution of proceeding, and 11 July 2001, when the judgment of 5 June 2001 was upheld on appeal, as well as from 13 September 2001, when the Presidium of the Rostov Regional Court re-opened the case by way of supervisory review, to 26 February 2003, when the Regional Court rejected the appeal against the judgment of 15 December 2002, and between 7 May 2004, when the third round of supervisory review was instituted, and 18 May 2005, which is the date of the appeal decision of the Regional Court upholding the judgment of 12 April 2005, fall to be examined by the Court.\n\n93.  Thus, the total length of the proceedings was of seven years, two months and three days of which five years, eight months and two days fall within the Court's competence ratione temporis.\n\nA.  Admissibility\n\n94.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n95.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the conduct of the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II).\n\n96.  The Court notes that the case was of a certain complexity, as it concerned a number of intertwined property claims and involved three parties. It furthermore considers that the applicant's conduct, at least to a certain extent, contributed to the length of the proceedings as her counsel failed to appear at the hearing of 11 July 2000. In addition, on 25 January and 12 March 2001 the applicant herself failed to attend which on all of the occasions resulted in the adjournment of the hearings. In addition, between 21 March and 8 October 2002 the proceedings were suspended due to the applicant's illness.\n\n97.  As regards the conduct of the judicial authorities, the Court notes that it led to substantial delays in the proceedings, especially during the second examination of the applicant's case at first instance. Having regard to the above, to the fact that the case was not particularly complex, that the proceedings within the Court's competence ratione temporis lasted over five years and eight months and in view of the fact that on the date of ratification the proceedings were already pending for almost a year and a half, the Court considers that the length of the proceedings did not satisfy the “reasonable-time” requirement. Accordingly, there has been a breach of Article 6 § 1 of the Convention.\n\nIII.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION\n\n98.  The applicant also complained that Z. had unlawfully moved into the house which she had constructed and that the authorities had failed to evict and prosecute Z. for the alleged fraud. She also complained about the supervisory review proceedings of 13 September 2001, arguing that they breached her rights to respect for home under Article 8 of the Convention.\n\n99.  As to the complaints concerning the actions of Z. and the alleged failure of the authorities to evict him, the Court observes that the applicant was free to bring a separate set of civil proceedings concerning the allegedly unlawful actions of Z. or proceedings for his eviction but clearly failed to do so. Insofar as the applicant complained about the failure of the authorities to prosecute Z., the Court recalls that the Convention does not guarantee, as such, the right to bring criminal proceedings against a third person. Finally, as regards the complaint under Article 8 of the Convention about the supervisory review proceedings of 13 September 2001, the Court recalls that the existence of “home” for the purposes of the Convention depends on whether there is a continuous and sufficient link with a particular place, there being no need for it to be lawfully established (see Prokopovich v. Russia, no. 58255/00, § 36, ECHR 2004...). On the facts, the Court observes that from the materials in its possession it transpires that the applicant's only place of residence was in the town of Kholmsk in the Sakhalin Region and there is nothing to suggest that at the relevant period she undertook any steps with a view to moving to the house in dispute in Azov or, indeed, resided there on a permanent basis. In view of the foregoing, the Court considers that the proceedings of 13 September 2001 did not concern the applicant's “home” within the meaning of Article 8 of the Convention.\n\n100.  It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.\n\nIV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n101.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n102.  The applicant claimed EUR 120,000 as a value of the lost house and EUR 18,000 as an accrued interest for the period from 1993 to the present. She also claimed EUR 50,000 in respect of non-pecuniary damage.\n\n103.  The Government contested these claims as manifestly excessive. As regards the value of the house, they submitted that there was no causal link between the violation and the pecuniary damage alleged.\n\n104.  Having regard to the circumstances of the case, the Court finds it necessary to award the applicant EUR 70,000 representing the value of the lost house and the accrued interest, plus any tax that may be chargeable on the amount.\n\n105.  As regards the non-pecuniary damage, the Court takes the view that the applicant has suffered some non-pecuniary damage as a result of the violations found which cannot be made good by the Court's mere finding of a violation. Nevertheless, the amount claimed is excessive. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant the sum of EUR 1,400 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.\n\nB.  Costs and expenses\n\n106.  The applicant also claimed EUR 24,361 for the costs and expenses incurred before the Court.\n\n107.  The Government considered this amount as excessive and unsubstantiated.\n\n108.  Regard being had to the information in its possession and the Government's submissions, the Court finds it appropriate to grant the applicant EUR 300 in respect of costs and expenses, plus any tax that may be chargeable on the above amount.\n\nC.  Default interest\n\n109.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Declares the complaints concerning the supervisory review of 13 September 2001 and the length of proceedings admissible and the remainder of the application inadmissible;\n\n2.  Holds that there has been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in respect of the supervisory review of the final judgment in the applicant's favour;\n\n3.  Holds that there has been a violation of Article 6 § 1 of the Convention on account of the excessive length of proceedings;\n\n4.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts, to be converted into Russian roubles at the rate applicable at the date of settlement:\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n5.  Dismisses the remainder of the applicant's claim for just satisfaction.\n\nDone in English, and notified in writing on 30 November 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_292","text":"PROCEDURE\n\n1.  The case originated in an application (no. 45729/05) against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Georgian national, Mr Mitrophane Sturua (“the applicant”), on 29 November 2005.\n\n2.  The applicant was represented by Mr N. Kvaratskhelia, a lawyer practising in Tbilisi. The Georgian Government (“the Government”) were represented by their Agent, Mr D. Tomadze, of the Ministry of Justice.\n\n3.  The applicant alleged that, contrary to Article 6 § 1 of the Convention, the disciplinary proceedings against him had been unfair, that his appeal had been heard by a body lacking impartiality and that he did not have access to a court.\n\n4.  On 27 August 2007 the application was communicated to the Government.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n5.  The applicant was born in 1953 and lives in Tbilisi.\n\n6.  On 15 May 1999 the applicant was appointed President of the Abasha District Court for a ten-year term.\n\n7.  On 3 December 2004 the Supreme Council of Justice initiated disciplinary proceedings against the applicant under section 2(2)-(e) of the Act of 22 February 2000 on Disciplinary Proceedings against Judges of Ordinary Courts (hereinafter, “the Disciplinary Proceedings Act” – see paragraphs 15-18 below). He was accused in particular of having retained a criminal case file for six months after withdrawing from the case on 29 October 2003.\n\n8.  On 23 December 2004 a Panel of the Disciplinary Council of Judges (hereinafter, “the Panel”), composed of Mr K.K. (the President of the Panel and rapporteur), Mr G.Ch, Mr D.S. and Mr Th.Th., considered the case at an oral hearing. According to the transcript of the hearing, the applicant admitted to the act of negligence he had been accused of. After examining the circumstances of the case, the Panel found the applicant guilty of the misconduct in question. It considered his conduct all the more serious because the defendants in the case had been in detention at the time and because he had had a duty, under Article 6 of the Convention, to act promptly and without fault. The Panel took into account the nature of the misconduct, which it classified as serious, and the existence of another disciplinary measure against the applicant in the past, and decided to remove him from office.\n\n9.  On 29 December 2004 the applicant lodged an appeal with the Disciplinary Council of Judges (hereinafter, “the Disciplinary Council”) on points of fact and law under section 60(1) of the Disciplinary Proceedings Act (see paragraph 17 below). He questioned the assessment of the circumstances of the case and the application of the legal provisions to the established facts in the decision of 23 December 2004. His appeal was examined at a plenary session of the Disciplinary Council composed of eight members, including the same four, Mr K.K., Mr G.Ch., Mr D.S. and Mr Th.Th, who had sat at the first hearing. As before, Mr K.K. acted as President and rapporteur in the examination of the applicant’s appeal.\n\n10.  By a decision of 27 January 2005, the Disciplinary Council unanimously upheld the Panel’s decision of 23 December 2004 in its entirety. The appellate instance confirmed that the lower body had correctly established the facts and applied the relevant law to the factual findings.\n\n11.  The applicant then lodged an appeal on points of law with the Supreme Court under section 74 of the Disciplinary Proceedings Act, as amended on 25 February 2005 (see paragraph 18 below). He argued that he had not been given notice that he could appear before the Panel and that there had been a delay in the Disciplinary Council examining his appeal. He also stated that under Article 6 of the Convention the four members of the Panel who had taken the decision of 23 December 2004 had not had the right to sit subsequently in the Disciplinary Council appeal hearing.\n\n12.  In a judgment of 11 July 2005, the Supreme Court dismissed the applicant’s cassation appeal as ill-founded. Based on the transcript, it found that he had in fact been present at the Panel hearing on 23 December 2004 and had been able to state his case without impediment, contrary to his allegation. At the hearing the applicant had admitted to the act of negligence with which he had been charged. The Supreme Court rejected the allegation of a delay in the examination of the case by the Disciplinary Council by noting that the latter had given its ruling within the statutory time-limit of one month. The Supreme Court also found that the presence of four members of the Panel as participants in the subsequent Disciplinary Council proceedings had not contravened the requirements of sections 22 and 24 of the Disciplinary Proceedings Act (see paragraph 17 below).\n\nII.  RELEVANT DOMESTIC LAW\n\nA.  Guarantees on the irremovability of judges in the domestic law\n\n13.  Pursuant to sections 48(1) and 49(1) of the Act of 13 June 1997 on Courts of Ordinary Jurisdiction, as in force at the time of the applicant’s appointment to the judicial post in 1999 (see paragraph 6 above), President of Georgia was empowered to appoint qualified candidates as judge for the ten years’ term of office.\n\n14.  Articles 84 and 86 of the Constitution of Georgia, the provisions proclaiming the principles of independence and irremovability of judges, read, at the material time of the relevant events, as follows:\n\n“1. A judge shall be independent in his/her activity and shall be subject only to the Constitution and law. Any pressure upon the judge or interference with his/her activity with the aim of influencing his/her decision shall be prohibited and punishable by law.\n\n2. The removal of a judge from the consideration of a case, his/her early dismissal from office or transfer to another judicial position shall be permissible only in the circumstances defined by law.\n\n3. No one shall have the right to hold a judge accountable for a case under his/her consideration.”\n\n“2. The term of office of an appointed judge shall be no less than ten years. The procedures for selection of judicial candidates, their appointment to or early removal from office shall be determined by law.”\n\nB.  The Disciplinary Proceedings Act\n\nB.  The Disciplinary Proceedings Act\n\n15.  As in force at the time of the opening of the disciplinary proceedings against the applicant, Section 2(2)-(e) of the Disciplinary Proceedings Act provided that a judge who had contributed to making the examination of a case protracted without any valid reason was considered to be in breach of his or her official duties.\n\n16.  Prior to 30 June 2004, the Disciplinary Proceedings Act, notably section 62(2), explicitly forbade the members of the Panel which had examined a disciplinary case at first instance from sitting in the case when the Disciplinary Council reviewed it on appeal. In addition, section 66(1) stated that if the President of the Disciplinary Council had participated in a Panel then he or she should withdraw from presiding over a Disciplinary Council session during the appellate review of the same case. An amendment of 30 June 2004 removed the above-mentioned provisions by rewording sections 62(2) and 66(1).\n\n17.  After the amendment of 30 June 2004, the most relevant provisions of a procedural nature in the Disciplinary Proceedings Act read as follows:\n\n“1. The Disciplinary Council of Judges of Ordinary Courts shall be composed of eight members.\n\n2. The members of the Council ..., of whom four shall be judges of ordinary courts, shall be elected by the Conference of Judges of Ordinary Courts by a majority vote, on a proposal from the Supreme Council of Justice ...\n\n3. Within the Council, Panels of four members each shall be formed. ...\n\n4. The Council shall have a President who is also one of its members. The President shall chair the Council’s sessions. ...”\n\n“The term of office of members of the Disciplinary Council shall be four years.”\n\n“Once a decision has been taken by a Disciplinary Panel to remove a judge from office, the judge in question shall be disqualified, in accordance with the procedure prescribed by law, from considering cases and from other activities arising out of the exercise of his or her office.”\n\n“A decision by a Disciplinary Panel may be reconsidered on appeal before the plenary of the Disciplinary Council of Judges.”\n\n“The Disciplinary Council shall consider the case ... within a month of the appeal being lodged.”\n\n“... Hearings [before the plenary of the Council] shall be chaired by the President of the Council or, by decision of the President, by another member of the Council.”\n\n“Decisions of the Disciplinary Council, sitting in plenary session, shall be taken by a simple majority vote. In the event of a tie, the President shall have the casting vote.”\n\n18.  Prior to 25 February 2005, section 74 of the Disciplinary Proceedings Act stated that a Disciplinary Council appellate decision in disciplinary proceedings, which had reviewed the factual and legal wellfoundedness of a first-instance decision taken by a Panel, was final and enforceable. However, an amendment of section 74 on 25 February 2005 allowed the Supreme Court of Georgia, the cassation instance, to carry out a further review of Disciplinary Council appellate decisions. Such reviews can only be on points of law.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION\n\n19.  The applicant complained that his case had not been heard by an impartial tribunal as the same judges had taken part in the first and appellate disciplinary proceedings. He relied on Article 6 § 1 of the Convention which reads, in its relevant parts, as follows:\n\n“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”\n\nA.  Admissibility\n\n1.  The parties’ submissions\n\n20.  Firstly, the Government contended that Article 6 of the Convention did not apply in the present case. Among other arguments, they relied on the Court’s decision in the case of Pitkevich v. Russia ((dec.), no. 47936/99, 8 February 2001) and maintained that disputes relating to dismissal from the judiciary fell outside the scope of the provision in question.\n\n21.  The Government also submitted that the applicant had not exhausted domestic remedies, as required by Article 35 § 1 of the Convention. They stated that the applicant should have applied to the Constitutional Court of Georgia and requested that the impugned provisions of the Disciplinary Proceedings Act, which allowed for the same judges to sit both at first instance and at appeal, be repealed as being unconstitutional.\n\n22.  The applicant disagreed with the Government’s objections, considering them to be misplaced and not supported by the Court’s relevant case-law.\n\n2.  The Court’s assessment\n\n23.  The Court reiterates that Article 6 § 1 of the Convention applies under its civil head to a dispute (“contestation” in the French text) over a “civil right” which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether it is also protected under the Convention. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise. The result of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6 § 1 into play (see Micallef v. Malta [GC], no. 17056/06, § 74, ECHR 2009, and Boulois v. Luxembourg [GC], no. 37575/04, § 90, ECHR 2012).\n\n24.  The Court observes that, in the light of the domestic legislative framework as in force at the time of his appointment in 1999, the applicant could arguably claim to have had an entitlement under the Georgian law, including the Constitution, to protection against unjustified termination of his judicial mandate prior to the expiry of the relevant ten years’ term (see paragraphs 13 and 14 above). Furthermore, the outcome of the disciplinary proceedings in question was directly decisive for the manner of the exercise of the said right. Indeed, the applicant’s dispute with the Supreme Council of Justice, which body initiated the disciplinary proceedings him (see paragraph 7 above), could have led to the setting-aside of the impugned disciplinary sanction – removal from office. That being so, the Court considers that in the present case there was a genuine and serious dispute over a “right” which the applicant could claim at least on arguable grounds under domestic law (see Baka v. Hungary [GC], no. 20261/12, §§ 107111, ECHR 2016, and Tato Marinho dos Santos Costa Alves dos Santos and Figueiredo v. Portugal, nos. 9023/13 and 78077/13, § 39, 21 June 2016).\n\n25.  The Court notes that in Vilho Eskelinen and Others v. Finland, it held that in order for a respondent Government to be able to argue before the Court that Article 6 § 1 of the Convention does not apply under its “civil” limb to employment disputes between the authorities and public servants, two conditions must be fulfilled. Firstly, the Government must show that the respondent State’s national law expressly excludes access to a court for the post or category of staff in question and, secondly, the exclusion must be justified on objective grounds in the State’s interest (see Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 62, ECHR 2007II).\n\n26.  The Court further observes that in the context of the first condition it is not prevented from classifying a particular domestic body, outside the domestic judiciary, as a “court” for the purposes of the Vilho Eskelinen test (see Oleksandr Volkov v. Ukraine, no. 21722/11, § 88, ECHR 2013). This test is equally applicable with respect to both ordinary civil servants and judges (see Baka, cited above, § 104). Furthermore, the Vilho Eskelinen test covers all types of employment disputes concerning civil servants and judges, including those relating to recruitment/appointment, career/promotion, transfer and termination of service (see Baka, cited above, § 105, with further references, and Olujić v. Croatia, no. 22330/05, §§ 31 44, 5 February 2009, where the Court held Article 6 to be applicable to the proceedings concerning the disciplinary dismissal of the President of the Supreme Court).\n\n27.  Returning to the circumstances of the present case, the Court notes that the disciplinary charge against the applicant was examined by the Disciplinary Council of Judges at first instance and on appeal. At first instance, it sat as a four-member Panel while at the appellate level it examined the case in plenary session. The Disciplinary Council took reasoned decisions on the applicant’s dismissal, which were then reviewed by the Supreme Court of Georgia, sitting as an ordinary final court of cassation (see paragraphs 8-12 above). Given therefore that the disciplinary proceedings against the applicant were conducted by bodies which clearly performed a judicial function, with the Disciplinary Council clearly representing “a tribunal” within the meaning of Article 6 § 1 of the Convention, it cannot be concluded that domestic law “expressly excluded access to court” in the applicant’s case (see, mutatis mutandis, Oleksandr Volkov, cited above, §§ 89-91; H. v. Belgium, 30 November 1987, § 50, Series A no. 127B; and Belilos v. Switzerland, 29 April 1988, § 66, Series A no. 132). The first condition of the Vilho Eskelinen test has therefore not been met and Article 6 applies under its “civil” head to the impugned disciplinary proceedings (compare with Olujić, cited above, §§ 31-44; Saghatelyan v. Armenia, no. 7984/06, §§ 31-35, 20 October 2015; Gerovska Popčevska v. the former Yugoslav Republic of Macedonia, no. 48783/07, § 38, 7 January 2016; and Tato Marinho dos Santos Costa Alves dos Santos and Figueiredo, cited above, §§ 40-42).\n\n28.  While the civil and criminal aspects of Article 6 are not necessarily mutually exclusive (see Albert and Le Compete v. Belgium, 10 February 1983, § 30, Series A no. 58), the Court, in line with its previous findings on the early dismissal of judges from their posts, finds that the disciplinary proceedings in the present case did not attract the applicability of the criminal limb of the provision in question (see Oleksandr Volkov, cited above, §§ 92-95).\n\n29.  As regards the Government’s objection of non-exhaustion of domestic remedies (see paragraph 21 above), the Court reiterates that it has already found the lodging of an individual constitutional complaint in Georgia to be an ineffective remedy for the purposes of Article 35 of the Convention, mainly on account of the Constitutional Court’s inability to set aside individual decisions by the public authorities or courts which directly affect complainants’ rights (see Apostol v. Georgia, no. 40765/02, §§ 35-46, ECHR 2006-XIV; Mumladze v. Georgia, no. 30097/03, § 37, 8 January 2008; and Khoniakina v. Georgia, no. 17767/08, § 59, 19 June 2012).\n\n30.  Consequently, the Court dismisses both of the Government’s inadmissibility objections and concludes that the applicant’s complaint concerning the impartiality of the Disciplinary Council is neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n1.  The parties’ submissions\n\n31.  The Government argued in essence that domestic law had offered sufficient guarantees about the independence and impartiality of the Disciplinary Council. It had been lawful for the same four members of the Council to sit first in the Panel and then in the plenary meeting. The plenary of the Disciplinary Council should not be viewed as an ordinary appellate instance. Overlap in the composition of the Disciplinary Council when sitting in two different bodies was inevitable in the light of the relevant domestic legal framework, but that fact could not taint the validity of the decisions taken by the collegial body by majority vote. In addition, there had been no indication of personal bias on the part of any of the impugned four members of the Disciplinary Council who had examined the applicant’s case at two stages of the same procedure. The fact that the same four judges had taken part in adjudication of the issues at two different stages did not in itself prove that they had been biased.\n\n32.  The applicant maintained that his case had not been considered by an “independent and impartial tribunal”. In particular, those requirements had not been met by the Disciplinary Council when it had sat in its plenary formation. He argued that since four members of the plenary, including the President, had examined his case at first instance, they had not been able to ensure an adequate rehearing of the issues on appeal.\n\n2.  The Court’s assessment\n\n33.  The Court reiterates that Article 6 § 1 of the Convention requires a tribunal falling within its scope to be impartial. Impartiality normally denotes absence of prejudice or bias and its existence can be tested in various ways. The Court has thus distinguished between a subjective approach, that is endeavouring to ascertain the personal conviction of a given judge in a given case, and an objective approach, that is determining whether he offered guarantees sufficient to exclude any legitimate doubt in this respect (see, amongst many other authorities, Piersack v. Belgium, 1st October 1982, § 30, Series A no. 53). Under the latter approach, what is decisive is whether the fear that a particular judge lacks impartiality can be held, irrespective of the judge’s real personal standpoint, to be objectively justified (see Wettstein v. Switzerland, no. 33958/96, § 44, ECHR 2000XII). Indeed, whilst it may often be difficult to procure evidence with which to rebut the presumption of the personal impartiality of a judge, the requirement of objective impartiality provides, in this respect, a further important guarantee (see Pullar v. the United Kingdom, 10 June 1996, § 32, Reports of Judgments and Decisions 1996-III). In other words, the Court has recognised the difficulty of establishing a breach of Article 6 on account of subjective partiality and for this reason has in the vast majority of cases raising impartiality issues focused on the objective test. However, there is no watertight division between the two notions, since a judge’s conduct may not only prompt objectively held misgivings as to impartiality from the point of view of the external observer (objective test), but may also go to the issue of his or her personal conviction (subjective test) (see Kyprianou v. Cyprus [GC], no. 73797/01, § 119, ECHR 2005XIII; and Olujić, cited above, § 58).\n\n34.  The Court observes that in the present case four members of the Disciplinary Council of Judges had first gathered as a Panel to examine, in the capacity of a judicial body of first instance, the well-foundedness of the disciplinary charge brought against the applicant. The Panel conducted a hearing, examined all the evidence and then delivered a reasoned decision on 23 December 2004 finding the applicant guilty of a disciplinary offence and punishing him with dismissal (see paragraph 8 above). The judicial decision contained an interpretation and application of the relevant legal provisions to the facts of the case.\n\n35.  Subsequently, the same four judges were part of the eight-member plenary session of the Disciplinary Council which reviewed on appeal the issues of fact and points of law raised by the applicant under section 60(1) in relation to their decision of 23 December 2004. In other words, on appeal, the same four judges were called upon to reconsider their own decision in the same case in its entirety, to review whether or not they themselves had committed any error in their assessment of the facts or of legal interpretation (compare with San Leonard Band Club v. Malta, no. 77562/01, §§ 6166, ECHR 2004IX; Indra v. Slovakia, no. 46845/99, §§ 51-55, 1 February 2005; and HIT d.d. Nova Gorica v. Slovenia, no. 50996/08, §§ 37-42, 5 June 2014; contrast with Warsicka v. Poland, no. 2065/03, §§ 43-47, 16 January 2007, and Central Mediterranean Development Corporation Limited v. Malta (no. 2), no. 18544/08, §§ 35-38, 22 November 2011). The Court also notes that the eight-member plenary of the Disciplinary Council took, at the material time, appellate decisions by a simple majority, with its President possessing the casting vote in the event of a tie (see section 68(1) of the Disciplinary Proceedings Act, cited at paragraph 17 above). That meant that half of the bench, including its President, had been previously involved in examining the case at first instance (see, mutatis mutandis, Perote Pellon v. Spain, no. 45238/99, §§ 50-52, 25 July 2002; Cardona Serrat v. Spain, no. 38715/06, §§ 37 and 38, 26 October 2010; and Fazlı Aslaner v. Turkey, no. 36073/04, §§ 37-39, 4 March 2014). Furthermore, given that the Supreme Court’s review of the disciplinary proceedings was clearly limited to the assessment of the questions of law (see paragraphs 12 and 18 above), the Court has certain misgivings about the cassation instance’s ability to handle the matter effectively (compare with, mutatis mutandis, Oleksandr Volkov, cited above, §§ 126-128, and contrast with A. Menarini Diagnostics S.r.l. v. Italy, no. 43509/08, § 64, 27 September 2011). In the eyes of the Court, those circumstances are sufficient to allow it to hold that the applicant’s fears as to a lack of impartiality on the part of the Disciplinary Council were objectively justified.\n\n36.  There has accordingly been a breach of Article 6 § 1 of the Convention.\n\nII.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION\n\n37.  Relying on Article 6 § 1 of the Convention, the applicant also complained, on the one hand, that he did not have access to a court and, on the other, that the outcome of the disciplinary proceedings had been based on an erroneous assessment of the facts and a wrongful application of the law by the Disciplinary Council and the Supreme Court of Georgia.\n\n38.  As regards the complaint about the inability to have access to a court, the Government submitted that it was manifestly ill-founded given that, by virtue of the amendment of 25 February 2005 to section 74 of the Disciplinary Proceedings Act (see paragraph 18 above), the applicant had availed himself of the possibility to appeal to the Supreme Court of Georgia against the outcome of the disciplinary proceedings (see paragraph 11 above).\n\n39.  The applicant disagreed with the Government’s above-mentioned arguments, maintaining that he had not benefited from a proper judicial review of the disciplinary charge against him.\n\n40.  Having regard to its findings about the applicability of Article 6 § 1 of the Convention to the disciplinary proceedings in question, the Court reiterates that the Disciplinary Council of Judges, albeit a body outside the ordinary judiciary, clearly constituted in itself “a tribunal” for the purposes of Article 6 § 1 of the Convention (see paragraphs 26 and 27 above).\n\n41.  As regards the applicant’s complaint about the outcome of the disciplinary proceedings, the Court reiterates that it cannot act as a fourth instance and will not therefore question the domestic judicial bodies’ findings of fact and law, unless their findings can be regarded as arbitrary or manifestly unreasonable (see, for instance, Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 61, 5 February 2015). In the present case, the Court does not see any appearance of arbitrariness in the conclusions of the domestic courts.\n\n42.  It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.\n\nIII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n43.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n44.  The applicant claimed 15,000 Georgian laris (GEL) (approximately 6,400 euros (EUR) at the relevant time) in respect of non-pecuniary damage.\n\n45.  The Government submitted that the amount claimed was excessive.\n\n46.  The Court accepts that the applicant suffered non-pecuniary damage which is not sufficiently compensated for by the finding of a violation (see, for instance, Toziczka v. Poland, no. 29995/08, § 56, 24 July 2012, and Fazlı Aslaner, cited above, § 62). Making its assessment on an equitable basis and having regard to the circumstances of the case, the Court awards the applicant EUR 3,500 under this head.\n\nB.  Costs and expenses\n\n47.  The applicant claimed GEL 7,900 (approximately EUR 3,380 at the relevant time) in respect of his representation before the Court. In support of this claim, he submitted a contract for legal services that he had concluded with his representative on 26 February 2008 together with an itemised invoice breaking down the services provided into hours and fees – fortythree hours and forty minutes at a rate of GEL 180 (approximately EUR 77) per hour. The itemised list also indicated the dates and exact types of legal services rendered.\n\n48.  The Government argued that the applicant’s claims were mostly unsubstantiated and excessive.\n\n49.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 3,380 for costs and expenses in the proceedings before the Court.\n\nC.  Default interest\n\n50.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\n1.  Declares the complaint under Article 6 § 1 of the Convention concerning the alleged lack of impartiality of the Disciplinary Council admissible and the remainder of the application inadmissible;\n\n2.  Holds that there has been a violation of Article 6 § 1 of the Convention;\n\n3.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n4.  Dismisses the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 28 March 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_433","text":"PROCEDURE\n\n1.  The case originated in an application (no. 49929/99) against the  lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Wiesław Chodecki (“the applicant”), on 10 August 1998.\n\n2.  The Polish Government (“the Government”) were represented by their Agents Mr K. Drzewicki, and subsequently, Mr J. Wołąsiewicz, of the Ministry of Foreign Affairs.\n\n3.  On 9 October 2003 the Court declared the application partly inadmissible and decided to communicate the complaint concerning the length of the applicant’s detention on remand to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.\n\n4. On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Second Section (Rule 52 § 1).\n\nTHE FACTS\n\nI. THE CIRCUMSTANCES OF THE CASE\n\n5. The applicant was born in 1955 and lives in .\n\n6. On 12 June 1994 he was arrested on suspicion of murdering his common-law wife.\n\n7. On 13 June 1994 the Sosnowiec District Prosecutor (Prokurator Rejonowy) charged the applicant with homicide and remanded him in custody until 12 August 1994 in connection with the investigation against him. The prosecutor considered that, given the serious nature of the offence in question, keeping the applicant in custody was necessary to ensure that the process of obtaining evidence followed its proper course. On the same day the prosecutor ordered an autopsy.\n\n8. On 23 June 1994 the applicant appealed and requested his release.\n\n9. On 24 June and 4 July 1994 the prosecutor ordered expert opinions. On 6 July 1994 the prosecutor ordered a reconstitution of the events which had taken place on the day of the death.\n\n10. On 11 July 1994 the  (Sąd Wojewódzki) dismissed the applicant’s appeal of 23 June 1994. It found the same justification for the applicant’s detention: the reasonable suspicion against him, the serious nature of the offence in question and the fear that the applicant might tamper with the evidence.\n\n11. On 28 July 1994 the Sosnowiec District Prosecutor prolonged the applicant’s detention until 12 September 1994.\n\n12. On 29 July 1994 the Sosnowiec District Court ordered that two psychiatric reports be obtained in order to establish the applicant’s criminal responsibility.\n\n13. On 27 and 28 August 1994 the prosecutor ordered that two other medical reports be obtained.\n\n14. On 5 September 1994 the  prolonged the applicant’s detention on remand until 30 October 1994, relying on the existence of a reasonable suspicion that he had committed the offence in question. The court referred also to the fact that two expert reports had to be prepared. They were submitted to the court on 9 September and 24 October 1994.\n\n15. On 24 October 1994 the applicant obtained access to the case-file.\n\n16. On 28 October 1994 the District Prosecutor submitted the bill of indictment to the . The prosecutor asked the court to hear evidence from 38 witnesses.\n\n17. The trial court held hearings on 12 January, 16 March, 21 March, 28 March, 1 June, 8 June, 20 June, 12 October and 12 December 1995, as well as on 28 March 1996.\n\n18. On 28 March 1996 the  gave judgment. The court convicted the applicant as charged, and sentenced him to twelve years’ imprisonment.\n\n19. On 30 May 1996 the applicant appealed.\n\n20. On 13 August 1996 the Katowice Court of Appeal (Sąd Apelacyjny) quashed the first-instance judgment and remitted the case for re-examination. It pointed out that the conviction was based on circumstantial evidence and that certain facts required further clarification.\n\n21. In the course of the retrial, the  held hearings on 10 December 1996, 27 February, 28 February, 26 March, 30 April, 8 May and 28 October 1997, as well as on 14 and 22 January 1998. The hearing scheduled for 17 February 1998 was adjourned.\n\n22. At the hearings of 30 April 1997, 28 October 1997 and 17 February 1998 the applicant’s counsel applied for his release, but to no avail.\n\n23. On 1 June 1998 the court prolonged the applicant’s detention until 30 November 1998. It made reference to the reasonableness of the suspicion that he had committed the offence in question. The court stressed the serious nature of that offence and the necessity to consider further evidence.\n\n24. On 10 June 1998 the applicant’s lawyer appealed against that decision. He contested the reasonableness of the charge against his client, maintaining that it was solely based on presumptive evidence. He also submitted that the applicant’s prolonged detention no longer served the purpose of securing the proper course of the proceedings since all necessary evidence had been obtained by the courts.\n\n25. On 24 June 1998 the Katowice Court of Appeal dismissed both appeals. It pointed out that the principle referred to by the applicant, whereby detention exceeding two years could be prolonged only by the Supreme Court, did not apply to his case. The court observed that that principle concerned only the proceedings before the trial court and it was no longer valid once that court had delivered its judgment, even if the judgment was subsequently quashed by the appellate court.\n\n26. On 30 July 1998 the applicant appealed against this decision.\n\n27. On 3 August 1998 the Katowice Court of Appeal informed the applicant that no appeal lay against a decision given by an appellate court.\n\n28. On 24 September 1998 the  gave judgment. It again convicted the applicant of homicide and sentenced him to ten years’ imprisonment. The court deducted from the sentence the period spent by the applicant in detention.\n\n29. On 26 November 1998 the applicant’s lawyer appealed.\n\n30. On 27 November 198 the  prolonged the applicant’s detention on remand until 29 January 1999 in view of the applicant’s conviction and sentence the month before.\n\n31. On 8 December 1998 the applicant challenged that decision before a court which did not have the necessary jurisdiction. Accordingly, on 11 January 1999 the matter was transferred to the Katowice Court of Appeal, which on 25 February 1999 dismissed both of his appeals.\n\n32.  On 26 April 1999 the applicant’s lawyer lodged a cassation appeal with the Supreme Court concerning the conviction and sentence.\n\n33. On 6 March 2000 the Supreme Court dismissed that appeal.\n\nII.  RELEVANT DOMESTIC LAW AND PRACTICE\n\n34.  At the material time the rules governing detention on remand were contained in Chapter 24 of the Law of 19 April 1969 “Code of Criminal Procedure” (Kodeks postępowania karnego) (“the Code”) entitled “Preventive measures” (Środki zapobiegawcze). The Code is no longer in force. It was repealed and replaced by the Law of 6 June 1997 (commonly referred to as the “New Code of Criminal Procedure”), which entered into force on 1 September 1998. The Code listed as “preventive measures”, inter alia, detention on remand, bail and police supervision.\n\n35.  Article 209 set out the general grounds justifying the imposition of preventive measures, as follows:\n\n“Preventive measures may be imposed in order to ensure the proper conduct of proceedings if the evidence against the accused sufficiently justifies the opinion that he has committed a criminal offence.”\n\n36.  Article 217 § 1 defined the grounds for detention on remand. The relevant part of this provision, in the version applicable until 1 January 1996, provided as follows:\n\n“1. Detention on remand may be imposed if:\n\n(1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when he has no fixed residence [in Poland] or his identity cannot be established; or\n\n(2) there is a reasonable risk that an accused will attempt to induce witnesses to give false testimony or to obstruct the proper course of proceedings by any other unlawful means; or\n\n(3) an accused has been charged with a serious offence or has relapsed into crime in the manner defined in the Criminal Code; or\n\n(4) an accused has been charged with an offence which creates a serious danger to society...”\n\n37.  On 1 January 1996 sub-paragraphs 3 and 4 of Article 217 § 1 were repealed and the whole provision was redrafted. From that date onwards the relevant sub-paragraphs read:\n\n“(1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or he has no permanent abode [in Poland]; or\n\n(2) [as it stood before 1 January 1996].”\n\nParagraph 2 of Article 217 provided:\n\n“If an accused has been charged with a serious offence or an intentional offence [for the commission of which he may be] liable to a sentence of a statutory maximum of at least eight years’ imprisonment, or if a court of first instance has sentenced him to at least three years’ imprisonment, the need to continue detention in order to secure the proper conduct of proceedings may be based upon the likelihood that a heavy penalty will be imposed.”\n\n38.  The Code envisaged a margin of discretion in maintaining a specific preventive measure. Articles 213 § 1, 218 and 225 of the Code were based on the precept that detention on remand was the most extreme preventive measure and that it should not be imposed if more lenient measures were adequate.\n\n39. On 4 August 1996 an amendment to the Code of Criminal Procedure entered into force, according to which time-limits for detention on remand were introduced.\n\n40. From that date onwards, Article 222 of the Code read, in so far as relevant, as follows:\n\n” 3. The whole period of detention on remand until the date on which the court of first instance gives judgment may not exceed one year and six months in cases concerning ordinary offences. In cases concerning serious offences this period may not exceed two years.\n\n4. In particularly justified cases, the Supreme Court may, upon the request of the court competent to deal with the case ... prolong detention on remand for a further fixed period exceeding the periods referred to in paragraphs 2 and 3, when it is necessary in connection with a suspension of the proceedings, a prolonged psychiatric observation of the accused, when evidence needs to be obtained from abroad or when the accused has deliberately obstructed the termination of the proceedings within the time-limits referred to in paragraph 3.”\n\n41. Article 263 of the 1997 Code provides, in so far as relevant:\n\n“3. The length of detention on remand until the delivery of a first judgment by the trial court shall not exceed two years.\n\n4. Detention on remand may be prolonged for a fixed period exceeding the periods provided for in paragraphs 2 and 3 only by the Supreme Court at the request of the court dealing with a case ... – if it is necessary because of the suspension of criminal proceedings, the prolonged psychiatric observation of an accused, the prolonged preparation of an expert opinion, the collection of evidence in a particularly complicated case or abroad, a delay in the proceedings caused by an accused, as well as other obstacles which could not be overcome.”\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION\n\n43.  The Government contested that argument.\n\nA.  Admissibility\n\n44.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n1.  The Government’s submissions\n\n45. The Government submitted that the period of the applicant’s detention falling within the scope of Article 5 § 3 of lasted 3 years, 10 months and 27 days. However, in their opinion, keeping him in custody was justified for the entire period. First of all, there had been a reasonable suspicion based on evidence that the applicant had committed homicide, for which he had been charged. There was also a considerable risk of criminal collusion because several witnesses from the applicant’s close environment had to be heard during the investigation. Therefore, the authorities conducting the case had to prevent the applicant from interfering with the process of obtaining evidence.\n\n46. Secondly, given the complexity of the issues involved, in particular the number of witnesses and expert opinions ordered during the proceeding, the authorities had shown due diligence in dealing with the case.\n\n47. Finally, the applicant’s detention had been subject to frequent review by the domestic courts. The courts had examined his applications for release diligently and had given detailed reasons.\n\n2.  The applicant’s submissions\n\n48. The applicant generally disagreed with the Government’s submissions.\n\n49. He argued that the period of 3 years, 10 months and 27 days he had spent in detention was not compatible with the “reasonable time” requirement.\n\n50. He claimed that one of the reasons for keeping him in custody given by the courts had been the alleged risk that he could have interfered with the process of hearing evidence from witnesses. However, the court had only heard evidence from witnesses during the investigation in 1994 and not thereafter. In the applicant’s opinion, this fact confirmed that he could have been released much earlier.\n\n3.  The Court’s assessment\n\nI.  Period to be taken into consideration\n\n51.  The Court notes that the applicant was remanded in custody on 12 June 1994. On 28 March 1996 the trial court convicted him of homicide. As from that date he was detained “after conviction by a competent court”, within the meaning of Article 5 § 1 (a) and therefore that period of his detention falls outside the scope of Article 5 § 3 (cf. Český v. the , no. 33644/96, § 71, 6 June 2000). On 13 August 1996 the Court of Appeal quashed the applicant’s conviction. Following that date his detention was again covered by Article 5 § 3. It continued until 24 September 1998, when the trial court again convicted the applicant. Consequently, the period to be taken under consideration lasted nearly 3 years and 11 months.\n\nII.  Reasonableness of the period in question\n\na)  General principles\n\n52.  The Court reiterates that the question whether a period of detention is reasonable cannot be assessed in the abstract but must be considered in each case according to its special features. Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty laid down in Article 5 of the Convention (see, among other authorities, Kudła v. Poland [GC], no. 30210/96, §§ 110-111, ECHR 2000-X).\n\n53.  Under Article 5 § 3 the national judicial authorities must ensure that the pre-trial detention of an accused person does not exceed a reasonable time. To this end they must, paying due regard to the principle of the presumption of innocence, examine all the facts arguing for a departure from the rule in Article 5, and must set them out in their decisions on the applications for release.\n\n54.  The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. The Court must then establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also be satisfied that the national authorities displayed “special diligence” in the conduct of the proceedings (see, for instance, Jabłoński v. Poland, no. 33492/96, § 80, 21 December 2000).\n\nb)  Application of the above principles to the present case\n\n55. The authorities gave several grounds for the applicant’s detention. Firstly, they relied on a reasonable suspicion that he had committed the serious offence with which he had been charged. They added that the applicant should be kept in custody in order to ensure that the process of obtaining evidence followed its proper course (see paragraphs 7, 14 and 23 above).\n\n56. The Court agrees that the suspicion against the applicant of having committed the serious offence could have initially warranted his detention. It also accepts that the need to ensure the proper conduct of the proceedings justified keeping him in custody at least as long as most of the evidence from the witnesses had not been taken.\n\n57.  However, with the passage of time, those grounds inevitably became less relevant. Nevertheless, when rejecting the applicant’s requests for release, the domestic courts still relied on the same reasons (see paragraphs 10 and 23 above).\n\n58.  In this respect it should be noted that during the entire period of the applicant’s pre-trial detention, the authorities did not envisage the possibility of imposing on the applicant other measures – such as bail or police supervision – expressly foreseen by Polish law to secure the proper conduct of criminal proceedings (see paragraphs 34-38 above).\n\n59.  In that context, the Court would emphasise that under Article 5 § 3 the authorities, when deciding whether a person should be released or detained, are obliged to consider alternative measures of ensuring his appearance at trial. Indeed, that provision proclaims not only the right to “trial within a reasonable time or to release pending trial” but also lays down that “release may be conditioned by guarantees to appear for trial” (see the Jabłoński judgment cited above, § 83).\n\n60. Furthermore, it appears that the authorities referred to the risk of collusion in the very general manner and without indicating how his release would upset the course of the proceedings. The  heard evidence from witnesses only during the investigation in 1994 and not later on. Therefore, the applicant’s prolonged detention no longer served the purpose of securing the proper course of the proceedings.\n\n61.  In the circumstances, the Court concludes that the grounds stated in the impugned decisions were not sufficient to justify the applicant being kept in detention on remand for nearly 3 years and 11 months.\n\n62.  There has accordingly been a violation of Article 5 § 3 of the Convention.\n\nII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n63.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n64.  The applicant submitted that the length of his detention put a severe strain on him. However, he was not able to either quantify the pecuniary damage or even supply any documents confirming the costs and expenses incurred during the proceedings. He asked the Court to make the relevant assessment in the light of its case-law.\n\n65.  The Government did not comment on the applicant’s claim.\n\n66. The Court accepts that the applicant may have suffered some non-pecuniary damage as a result of the protracted remand period, which is not sufficiently compensated by the finding of violation of the Convention. In the circumstances of this particular case and deciding on an equitable basis, it awards the applicant EUR 1,000 under the head of non-pecuniary damage.\n\nB.  Costs and expenses\n\n67. The applicant did not make any claim under this head.\n\nC.  Default interest\n\n68.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Declares the remainder of the application admissible;\n\n2.  Holds that there has been a violation of Article 5 § 3 of the Convention;\n\n3.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 1,000 (one thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, to be converted into Polish zlotys at the rate applicable at the date of the settlement;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\nDone in English, and notified in writing on 26 April 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_24","text":"PROCEDURE\n\n1.  The case originated in an application (no. 6134/03) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mirosław Gospodarczyk (“the applicant”), on 12 February 2003.\n\n2.  The applicant, who had been granted legal aid, was represented by Mr S. Kwietniowski, a lawyer practising in Zielona Góra. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.\n\n3.  The applicant alleged in particular that he had been deprived of his right of access to a court, contrary to Article 6 of the Convention.\n\n4.  On 7 July 2006 the President of the Fourth Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n5.  The applicant was born in 1948 and lives in .\n\n6.  On 26 October 1998 the applicant purchased a house and a plot of land located in Niedoradz in the Otyń municipality, for which he paid 28,684 Polish zlotys (PLN).\n\n7.  In December 1999 the applicant discovered that the plot in question was 36 sq. m smaller than the size specified in the contract.\n\n8.  On an unspecified date in 2002 the applicant lodged a claim against the municipality with the , seeking PLN 412,666 in compensation for the alleged difference between the actual size of the property and the one declared in the notarial deed. He claimed that due to the fact that the plot was in fact smaller he could not construct a special sanitary tank there and consequently could not open a bakery, which he had originally planned to do. He also sought exemption from the entire amount of court fees which were set at PLN 22,233.30. The applicant claimed that his monthly income was only an invalidity pension of PLN 449.51. He submitted that after paying rent for his cooperative flat, his net income amounted to PLN 200.\n\n9.  The  requested the applicant to supplement his declaration of means. Subsequently, the applicant submitted that he owned a house in Niedoradz which according to him had a value of PLN 120,000, and that he had a cooperative flat in Zielona Góra, a plot of land (570 sq. m), a small retail outlet and a van (valued at PLN 10,000) used for temporary work. He claimed that he had purchased the Niedoradz property using his savings and family loans, and that he intended to use it to create employment for him and his family. He also informed the court that he had invested PLN 92,000 of his own money in the house.\n\n10.  On 22 July 2002 the  refused his application for exemption from court fees. It held, in so far as relevant:\n\n“Pursuant to Article 113 § 1 of the Code of Civil Procedure exemption from court fees may be sought by a party who is unable to bear them without entailing a substantial reduction in his or her standard of living. The plaintiff does not satisfy this requirement. It is evident to the court that the plaintiff has a substantially higher income than the declared pension which he knowingly does not disclose, in that his retail outlet and his van must generate profits. These profits must be substantial because otherwise he could not have a cooperative flat and three other properties and could not invest nearly PLN 100,000 in other business projects and maintain them. The plaintiff continuously conceals his real profits and they are substantial, because nobody could believe that he lives on PLN 200 per month.\n\nExemption from court fees is a privilege serving to legally protect the indigent, and the plaintiff is a very affluent person in Polish terms”.\n\n11.  The applicant appealed against that decision and pleaded that he was in an exceptional situation. He submitted that he had acquired the Niedoradz property, which was the subject of his dispute with the municipality, and had invested PLN 92,000 in it with a view to conducting business activity there. However, he could not execute his business plans since the property did not conform to certain unspecified requirements and as a result his financial situation had worsened. He further submitted that he had to pay back a loan of PLN 40,000 obtained from his brother for renovation of the house. He produced a statement signed by his brother which attested that the applicant had received the loan and had not paid it back as of 1 August 2002.\n\n12.  The applicant further submitted that he had a cooperative flat, but that he was in arrears of rent in the amount of PLN 3,532.35. In addition, he maintained that his and his wife’s retail outlet was making losses. He produced their joint tax return which attested that in the 2001 tax year he had sustained a loss of PLN 14,628.23. Furthermore, the applicant claimed that he was financially supported by his family, in particular his mother who provided him with PLN 600 each month. He produced a statement from his mother to that effect.\n\n13.  On 14 August 2002 the Poznań Court of Appeal upheld the contested decision. It held, in so far as relevant:\n\n“The appeal should be considered unfounded. In particular, the first-instance court was right when holding that the applicant’s declaration of means was unreliable. In that declaration of means the applicant did not state, inter alia, that he was conducting a business activity, and he explained that circumstance only in the appeal proceedings. It is also not difficult to notice the differences between the applicant’s declared income and the value of his assets. It is a well-established principle in the case-law that being an owner of a[n immovable] property excludes the possibility of granting exemption from court fees (judgments of the Supreme Court of 23 October 1934, no. C II 1441/34 and of 1 February 1937, no. C II 2379/36).\n\nThe applicant can pay the court fees for his action since he has considerable assets and given that he has recently, as he claims, invested PLN 124,000 in one of his properties. What is more, the fact at the origin of the dispute, namely that the property acquired by the applicant from the municipality is in fact smaller than declared in a notarial deed, has been known to the applicant since 1999. Thus, he could have made savings with a view to funding his litigation.”\n\n14.  Consequently, the applicant was summoned to pay the court fees for proceeding with his claim against the municipality. On 21 October 2002 the  returned the applicant’s statement of claim since he had not paid the fees in question. The applicant appealed against that decision. However, he was informed that his appeal would not be considered until he had paid PLN 4,446.70 in court fees.\n\nII.  RELEVANT DOMESTIC LAW AND PRACTICE\n\n15.  The legal provisions applicable at the material time and questions of practice are set out in paragraphs 23-33 of the judgment delivered by the Court on 19 June 2001 in the case of Kreuz v. Poland (no. 28249/95, ECHR 2001-VI; see also Jedamski and Jedamska v. Poland, no. 73547/01, §§ 2939).\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION\n\n16.  The applicant complained under Article 6 § 1 that the excessive court fees required from him in order to proceed with his claim had been in breach of his right of access to a court for the determination of his civil rights. The relevant part of Article 6 § 1 provides:\n\n“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing ... by [a] ... tribunal established by law. ...”\n\n17.  The Government contested that argument.\n\nA.  Admissibility\n\n18.  The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n1.  The parties’ submissions\n\n(a)  The applicant\n\n19.  The applicant maintained that the sum required from him for proceeding with his claim had been unusually high and disproportionate to his means. He submitted that the first-instance court had considered his declaration in an arbitrary way since it had not requested him to provide additional explanations.\n\n20.  The applicant stressed that the sole fact that he had had assets could not have deprived him of his right to be exempted from court fees.\n\nHe further could not have been asked to sell his property as it would have been detrimental to the maintenance of his family.\n\n21.  The applicant concluded that his right of access to a court had been breached.\n\n(b)  The Government\n\n22.  The Government firstly recapitulated the general rules concerning exemption from court fees.\n\n23.  They secondly noted that the court fee was justified and calculated with reference to the value of the claim. The applicant should have realised that the value of his claim would have influenced the court fee required from him.\n\n24.  They further stressed that the applicant’s claim had been of a speculative nature, since it had been much higher than the original value of the property. Furthermore, the applicant had not provided the court with any evidence that he had indeed invested PLN 92,000 in the house.\n\n25.  They also noted that the value of the applicant’s assets had been high and totally disproportionate to the declared income. The domestic courts confirmed that his declarations had been unreliable since they had not included information about the applicant’s conduct of a business activity.\n\n26.  It was true that the Poznań Court of Appeal had relied on an old legal doctrine which had been developed in the context of different socio-economic conditions. However, this principle had not been decisive in this case, as the main reason for the Court of Appeal’s decision was the difference between the applicant’s declared income and the value of his assets.\n\n27.  In sum, the Government invited the Court to find that there had been no violation of Article 6 of the Convention.\n\n2.  The Court’s assessment\n\n(a)  Principles deriving from the Court’s case-law\n\n28.  The Court observes that in its judgment in Kreuz v. Poland (cited above, § 60) it dealt with the question whether the requirement to pay substantial fees to civil courts in connection with claims could be regarded as a restriction on the right of access to a court.\n\n29.  In this connection the Court held that the amount of the fees assessed in the light of the particular circumstances of a given case, including the applicant’s ability to pay them, and the phase of the proceedings at which that restriction had been imposed, were factors which were material in determining whether or not a person had enjoyed his right of access and had “a ... hearing by [a] tribunal”.\n\n(b)  Application of the above principles to the present case\n\n30. The Court will now determine whether, in the particular circumstances of the present case, the fee actually requested constituted a restriction that impaired the very essence of the applicant’s right of access to a court.\n\n31.  The Court firstly notes that the case concerned the applicant’s claim for compensation against the Otyń municipality. The fee in the case was determined as a fraction of the value of the claim, namely the amount of compensation sought.\n\n32.  The Court observes that the applicant was ordered to pay PLN 22,233.30.\n\n33.  The Court further notes that it is true that the taking and assessment of evidence are primarily matters for the domestic courts and that the Court’s role is to ascertain whether those courts, when exercising their power of appreciation in that sphere, acted in accordance with Article 6 § 1. In this respect it observes that the judicial authorities refused to accept the applicant’s argument that he was unable to pay the court fees, given the difference between the value of his various assets and the declared income. They further stressed that the applicant could not be considered indigent given the fact that he owned a house, a cooperative flat, a plot of land, a retail outlet and a van (see paragraphs 9 and 10). They were of the opinion that his declaration of means had been unreliable and that he had not disclosed all his income. On that basis, they concluded that the applicant had sufficient funds to pay the court fee in question.\n\n34.  The Court agrees with the Government’s position that the applicant himself was responsible for the fact that he had been ordered to pay the sum in question in court fees, as he had claimed an amount very significantly higher than the original value of his property.\n\n35.  The Court further observes that even conceding that the applicant’s income was small, he had assets (see paragraphs 9 and 10).\n\n36.  Consequently, in accordance with the principle of subsidiarity, the Court is of the opinion that it does not appear that in the present case the domestic courts’ approach when assessing the applicant’s financial situation and his ability to pay the fees was arbitrary or discriminatory.\n\n37. For the above reasons, the Court concludes that the refusal to exempt the applicant from the fee for lodging his claim was not a disproportionate restriction on his right of access to a court.\n\n38.  It accordingly finds that there has been no violation of Article 6 § 1 of the Convention.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Declares the application admissible;\n\n2.  Holds that there has been no violation of Article 6 § 1 of the Convention.\n\nDone in English, and notified in writing on 17 February 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_18","text":"PROCEDURE\n\n1.  The case originated in an application (no. 39405/03) against  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Valeriy Pavlovich Chervonets (“the applicant”), on 12 November 2003.\n\n2.  The Ukrainian Government (“the Government”) were represented by their Agent, Mr Yuriy Zaytssev.\n\n3.  On 3 April 2007 the Court decided to communicate the complaints concerning the length of the criminal proceedings and the non-enforcement of the judgment given in the applicant’s favour to the Government. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n4.  The applicant was born in 1940 and lives in Kharkiv.\n\nA.  Enforcement proceedings in the applicant’s civil case\n\n5.  On 23 October 2002 the Dzerzhinsky District Court of Kharkiv (hereinafter “the Dzerzhinsky Court”), upon the applicant’s claim, ordered the Department of the State Pension Fund in Dzerzhinsky District of Kharkiv (Дзержинське районне відділення Пенсійного Фонду України у м. Харків, hereinafter “the Pension Department”) to recalculate in Ukrainian hryvnas the applicant’s salary, which he received in 1985-1989 in Soviet roubles, in order to establish the correct amount of his pension according to the Decree of the Cabinet of Ministers of 13 January 1993 (hereinafter “the Decree”). The defendant was also obliged to pay the applicant the recalculated amount as his regular pension.\n\n6.  This judgment became final on 23 November 2002 and the writ of execution was issued on 24 November 2002.\n\n7.  On 25 February 2003 the Bailiffs’ Office in Dzerzhinsky District of Kharkiv (hereinafter “the Bailiffs”) issued the warrant for the enforcement of the judgment by 4 March 2003.\n\n8.  On 8 April 2003 the Bailiffs re-issued the warrant.\n\n9.  As the Pension Department twice submitted calculations of the applicant’s pension which were not based on the Decree, on 17 June and 28 August 2003 the Bailiffs fined the officials of the Pension Department for failure to enforce the judgment.\n\n10.  In December 2003 the applicant and the Bailiffs requested the Public Prosecutor of the Dzerzhinsky District of Kharkiv (hereinafter “the Public Prosecutor”) to institute criminal proceedings against the officials of the Pension Department for intentional non-enforcement of the judgment of 23 October 2002.\n\n11.  On 13 April 2004 the Public Prosecutor rejected this request for want of proof of a crime.\n\n12.  On 4 March 2005 the Dzerzhinsky District Court rejected the applicant’s complaint against this decision.\n\n13.  On 23 April 2004, upon the applicant’s request, the  issued a ruling explaining the judgment of 23 October 2002. It indicated the coefficients that should be used by the Pension Department in order to recalculate the applicant’s pension according to the Decree.\n\n14.  The Pension Department did not appeal against this ruling within the statutory time-limit and the same court, by rulings of 14 June and 21 September 2005, returned the Department’s belated appeal without considering it.\n\n15.  During 2004-2005, following numerous written requests by the Bailiffs, the Pension Department submitted recalculations of the applicant’s pension, which were not based on the ruling of 23 April 2004.\n\n16.  On 6 February 2006 the bailiff personally handed to the official of the Pension Department the ruling of 23 April 2004 and requested him to enforce it by 13 February 2006. The bailiff drew up a written report.\n\n17.  On 10 February 2006 the Public Prosecutor, on behalf of the Pension Department, lodged with the Supreme Court a cassation appeal against the rulings of 14 June and 21 September 2005.\n\n18.  On 13 February 2006, following the request of the Public Prosecutor, the Bailiffs suspended the enforcement proceedings.\n\n19.  On 22 March 2006 the Head of the Bailiffs quashed this decision on the ground that lodging a cassation appeal in itself could not suspend the enforcement of the final judgment.\n\n20.  On 24 March 2006 the enforcement proceedings were resumed.\n\n21.  On 5 and 19 May 2006 the Bailiffs fined the officials of the Pension Department for failure to enforce the judgment of 23 October 2002 and the ruling of 23 April 2004.\n\n22.  On 25 May 2006 the Bailiffs requested the Public Prosecutor to institute criminal proceedings against the officials of the Pension Department for intentional non-enforcement of the judgment of 23 October 2002 and ruling of 23 April 2004.\n\n23.  On 11 August 2006 the Public Prosecutor rejected this request for want of proof of a crime.\n\n24.  On 30 May 2007 the  rejected the Public Prosecutor’s cassation appeal against the rulings of 14 June and 21 September 2005.\n\n25.  On 8 August 2007 the  rejected the Public Prosecutor’s request to review the case in the light of newly disclosed circumstances and to suspend the enforcement proceedings.\n\n26.  On 4 October 2007 the Kharkiv Regional Court of Appeal (hereinafter “the Court of Appeal”) upheld this ruling.\n\n27.  The judgment of 23 October 2002 remains unenforced.\n\nB.  Criminal proceedings against the applicant\n\n28.  On 5 December 2002 the Public Prosecutor instituted criminal proceedings against the applicant for threatening a judge of the  (Article 376 of the Criminal Code). The applicant was obliged not to leave his place of his permanent residence.\n\n29.  On 26 February 2003, upon termination of the pre-trial investigation, the Public Prosecutor transmitted the criminal case to the .\n\n30.  On 5 March 2003 the Court of Appeal, following the motion of the President of the Dzerzhinsky Court, transferred the case to the Chervonozavodsky District Court of Kharkiv (hereinafter “the Chervonozavodsky Court”).\n\n31.  November 2003 the  rejected the applicant’s complaint against the Public Prosecutor’s decision of 5 December 2002 as the case was pending before the first instance court.\n\n32.  In the course of its examination of the applicant’s appeal against the ruling of 20 November 2003, the Court of Appeal established that the applicant had not been not duly informed about the date of hearing before the Dzerzhinsky District Court and on 13 January 2004 requested the Judicial Administration to investigate this matter.\n\n33.  On 16 March 2004 the Court of Appeal upheld the ruling of 20 November 2003. On the same date, it issued a ruling to the Judicial Administration setting out procedural omissions by the judge of  who had examined the case.\n\n34.  On 10 February 2005 the Supreme Court rejected the applicant’s cassation appeal against the ruling of 20 November 2003.\n\n35.  On 30 November 2005 the  terminated the criminal proceedings against the applicant as time-barred.\n\n36.  On 5 December 2005 the applicant lodged an appeal seeking to be acquitted.\n\n37.  On 16 February 2006 the Court of Appeal quashed the ruling of 30 November 2005 and remitted the case for a fresh consideration.\n\n38.  In May 2006 the proceedings were resumed before the .\n\n39.  Between May 2006 and February 2007 five out of six hearings scheduled were adjourned due to the witnesses’ and the victim’s failure to appear before the court.\n\n40.  In February 2007 the case was assigned to another judge.\n\n41.  The proceedings are still pending before the first instance court.\n\nII.  RELEVANT DOMESTIC LAW\n\n42.  The relevant domestic law concerning the non-enforcement of the final judgments is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004).\n\nTHE LAW\n\nTO THE NON-ENFORCEMENT OF THE FINAL JUDGMENT GIVEN IN THE APPLICANT’S FAVOUR\n\n43.  The applicant complained under Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1 about the lengthy non-enforcement of the judgment of 23 October 2002. The Articles invoked, in so far as relevant, provide as follows:\n\nArticle 6 § 1\n\n“In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law...”\n\nArticle 13\n\nEveryone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”\n\nArticle 1 of Protocol No. 1\n\n“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.\n\nThe preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”\n\nA.  Admissibility\n\n44.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n45.  In their observations, the Government submitted that the Bailiffs took all necessary measures aimed at enforcement of the judgment at issue and contended that there had been no violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in the applicant’s respect. They also maintained that the length of the enforcement proceedings was due to the defendant’s numerous appeals against the decisions and rulings of the domestic courts.\n\n46.  The applicant disagreed. He argued, in particular, that the Pension department and the Public Prosecutor intentionally lodged apparently inadmissible appeals and requests with the aim to protract the enforcement proceedings.\n\n49.  The Court recalls that it has already found violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in a number of similar cases (see Romashov, cited above, §§ 42-46, and Voytenko v. , no. 18966/02, §§ 53-55, 29 June 2004).\n\n51.  There has, accordingly, been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.\n\n52.  The Court does not find it necessary in the circumstances to examine the same complaint under Article 13 of the Convention (see Derkach and Palek v. Ukraine, nos. 34297/02 and 39574/02, § 42, 21 December 2004).\n\nII.  AS TO THE LENGTH OF THE CRIMINAL PROCEEDINGS AGAINST THE APPLICANT\n\n53.  The applicant also complained that the length of the criminal proceedings had been incompatible with the “reasonable time” requirement, laid down in Articles 6 § 1 and 13 of the Convention, which read as follows:\n\nArticle 6 § 1\n\n“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”\n\nArticle 13\n\nEveryone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”\n\n54.  The Government contested that argument.\n\n55.  The period to be taken into consideration began on 5 December 2002 It has thus lasted almost five years and four month to date; procedural decisions were taken at three instances, the substantive case was dealt with at two instances, and the proceedings are now pending at first instance.\n\nA.  Admissibility\n\n56.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n57.  The Government maintained that the case was complicated and that the protracted length of the proceedings was imputable to the applicant’s appeals against the rulings of the domestic courts. They also maintained that the hearings were postponed on numerous occasions due to the witnesses’ and victim’s failure to appear before the courts.\n\n58.  The applicant disagreed. He stressed that the authorities had been fully responsible for excessive duration of the case.\n\n59.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II).\n\n60.  The Court considers that, having regard to the nature of the crime with which the applicant was charged, the present case cannot be considered as complicated. The Court also takes into account the repeated adjournment of the hearings due to the witnesses’ and victim’s failure to appear before the court. However, the domestic court failed to take any steps to assure the presence of the said persons in order to proceed with the case.\n\n61.  The Court further notes that even though the proceedings had to be suspended because of the applicant’s appeal against the ruling of 20 November 2003, the overall length of the proceedings cannot be considered as reasonable in particular taking into account the fact that since May 2006 the case has been pending before the first instance court without any measures being taken.\n\n62.  The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Pélissier and Sassi, cited above).\n\n63.  Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.\n\n64.  There has accordingly been a breach of Article 6 § 1.\n\n65.  Having regard to its findings under Article 6 § 1, the Court concludes that it is not necessary to rule whether, in this case, there has been a violation of Article 13 of the Convention (see, in the civil context, Kukharchuk v. Ukraine, no. 10437/02, §§ 39-40, 10 August 2006).\n\nIII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n66.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n67.  The applicant claimed 5,500 euros (EUR) in respect of pecuniary and EUR 1,500 in respect of non-pecuniary damage caused by the lengthy non-enforcement of the judgment of 23 October 2002. He also claimed EUR 1,000 in respect of non-pecuniary damage caused by the lengthy criminal proceedings against him.\n\n68.  The Government contested these claims.\n\n69.  As to the applicant’s claim in respect of pecuniary damage caused by the lengthy non-enforcement of the judgment of 23 October 2002, the Court considers that the applicant remains entitled to claim in the course of domestic proceedings compensation in lieu of execution of the said judgment. At the same time, the Court reiterates that a judgment in which it finds a breach imposes on the respondent State a legal obligation to put an end to the breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach (Metaxas v. , no. 8415/02, § 35, 27 May 2004 and Iatridis v.  (just satisfaction) [GC], no. 31107/96, § 32, ECHR 2000XI). Therefore, the Court concludes that the State’s outstanding obligation to enforce the judgment given in the applicant’s favour is not in dispute (see Blanutsa v. Ukraine, no. 35274/03, § 39, 20 September 2007, and Fateyev v. , no. 39265/02, § 37, 6 September 2007).\n\n70.  As to the remainder of the applicant’s claims for just satisfaction, the Court, making its assessment on an equitable basis, as required by Article 41 of the Convention, awards the applicant EUR 2,500 (two thousand and five hundred euros) in respect of non-pecuniary damage.\n\nB.  Costs and expenses\n\n71.  The applicant also claimed EUR 100 for the costs and expenses incurred before the Court.\n\n72.  The Government contested the claim.\n\n73.  The Court considers that the sum claimed should be awarded in full.\n\nC.  Default interest\n\n74.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Declares the application admissible;\n\n2.  Holds that there has been a violation of Article 6 § 1 of the Convention in respect of the lengthy non-enforcement of the judgment of 23 October 2002;\n\n3.  Holds that there has been a violation of Article 1 of Protocol No. 1 in the same respect;\n\n4.  Holds that there has been a violation of Article 6 § 1 of the Convention in respect of the length of the criminal proceedings against the applicant;\n\n5.  Holds that there is no need to examine the complaints under Article 13 of the Convention;\n\n6.  Holds\n\n(a)  that the respondent State is to fulfil the judgment of 23 October 2002 given by the Dzerzhinsky District Court of Kharkiv in the applicant’s favour as well as to pay him, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following sums, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement:\n\n(i)  EUR 2,500 (two thousand and five hundred euros) in respect of non-pecuniary damage, plus any tax that may be chargeable;\n\n(ii)  EUR 100 (one hundred euros) for costs and expenses, plus any tax that may be chargeable to the applicant;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n7.  Dismisses the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 24 April 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_151","text":"PROCEDURE\n\n1.  The case originated in an application (no. 30813/14) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr K.J. (“the applicant”), on 12 April 2014.\n\n2.  The applicant was represented by Mr G. Thuan Dit Dieudonné, a lawyer practising in Strasbourg. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, of the Ministry of Foreign Affairs.\n\n3.  The applicant alleged mainly that the refusal of the Polish family court to order the return of his child in application of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, constituted a violation of his right for respect of his family life and a breach of Article 8 of the Convention.\n\n4.  On 15 September 2014 the application was communicated to the Government.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\nA.  Background\n\n5.  The applicant was born in 1978. He is Polish and lives in Kent, the United Kingdom. He is married to M.J., who is also Polish. In 2005 the couple moved to the United Kingdom. Their daughter was born there in January 2010. Parental responsibility was exercised jointly by both parents.\n\nB.  Child retention and proceedings under the Hague Convention\n\n6.  On 17 July 2012 M.J. and the child went to Poland on holiday, with the applicant’s consent. On 9 September 2012 M.J. informed the applicant that she was not coming back to the United Kingdom with the child.\n\n7.  On 21 September 2012 the applicant applied to the United Kingdom Central Authority for a return order for the child under the Hague Convention.\n\n8.  It appears that in mid-October 2012 the application was registered with the Grudziądz District Court. Judge D.K. was assigned to preside over the case.\n\n9.  In response to the applicant’s request, M.J. submitted that in 2011 she and her husband had become distant from each other; the applicant had lost interest in his family and had been spending his spare time playing computer games. For those reasons, and also out of fear that the child would never again be allowed to leave the United Kingdom, M.J. did not agree to her daughter’s returning to the United Kingdom alone and informed the domestic court that she did not wish to go back there with the child.\n\n10.  The first hearing was held on 19 December 2012 before the Grudziądz District Court, with Judge D.K. presiding. The applicant and his lawyer attended the hearing.\n\n11.  The second hearing was held on 4 February 2013 before the same judge. The applicant and his lawyer attended the hearing. The domestic court heard two witnesses and ordered a report of experts in psychology from the Family Consultation Centre (Rodzinny Ośrodek Diagnostyczno Konsultacyjny “RODK”).\n\n12.  On 22 March 2013 the experts examined the applicant, M.J. and the child, who was three years old at the time. The report was issued on 17 April 2013.\n\n13.  The third hearing was held on 8 May 2013 before Judge D.K. At this hearing, the Grudziądz District Court decided to dismiss the applicant’s request for the child’s return (III Nsm 999/12).\n\n14.  The first-instance court ruled on the basis of the following evidence: testimony of the applicant, M.J. and the members of both families and the RODK experts’ report.\n\n15.  The RODK experts were ordered to make the following assessment:\n\n“whether moving [the child] into her father’s care, linked with her separation from the mother, would disturb [the child’s] sense of security and would affect her emotional state in a negative way; or is it recommended, [with a view to] the adequate psycho-physical development of the child, to [put the child under the father’s care] linked with [giving] an order to surrender the child by the mother.”\n\n16.  The experts concluded that “the child’s return to the United Kingdom and her separation from the mother”, her primary caregiver, “would cause more emotional harm to the child than the lack of daily contact with her father.” In particular, the child’s sense of security and stability could be disturbed. To this effect the report read as follows: “Considering the [young] age and the sex of the child, it must be stated that the mother is currently best suited to satisfy her daughter’s needs.”\n\nThe experts also noted that the child was emotionally attached to both parents; she was developing well; perceived Poland and the United Kingdom on an equal footing; spoke Polish and had adapted well to her new life in Poland. It was recommended that the child should stay with her mother in Poland and have regular contact with her father.\n\n17.  The first-instance court considered that the RODK’s report was thorough, clear and of a high evidentiary value.\n\n18.  On the merits, the Grudziądz District Court considered that it was called to examine “the relationship between the child and [each of] the parents, her physical and psychological development and also, any [possible] physical or psychological harm [which could occur] in the event of the child’s return to her father without the mother.”\n\n19.  The domestic court attached importance to the young age of the child (who was three years and four months old at the time of the ruling) and the fact that the mother had always been the child’s primary caregiver. The reasons for the mother’s refusal to return to the United Kingdom together with the child were not discussed by the domestic court. The district court held, relying on the experts’ report, that there was a grave risk of psychological harm if she were to return to the United Kingdom without her mother. It was noted that Article 13 (b) of the Hague Convention protected abducted children to such a great extent that it did not allow for their return if that was going to place them in a “disadvantageous situation” (w niekorzystnej sytuacji).\n\n20.  The applicant appealed, arguing among others the following points of fact and law: the first-instance court ruled in breach of Article 13 (b) of the Hague Convention, firstly in that they concluded that in the circumstances of the case there was a grave risk that the child’s return to the United Kingdom would expose her to intolerable psychological harm and would place her in a disadvantageous situation, and secondly in that they wrongly assumed that the child would have to be separated from the mother even though the latter had not cited any objective obstacles to her returning to the United Kingdom; the first-instance court ruled in breach of Article 3 of the Convention on the Rights of the Child and its general directive that the best interest of the child be protected; the facts as established by the domestic court contradicted the evidence produced in the course of the proceedings; the court’s conclusion that the child’s return would expose her to intolerable psychological harm contradicted the findings of the expert report; and the court should not have refused to adjourn the hearing at which the applicant was not represented by a lawyer.\n\n21.  At the appellate hearing, the applicant also argued (6) that the experts in psychology who had drafted the RODK’s report for the firstinstance court were incompetent.\n\n22.  On 14 October 2013 the Toruń Regional Court dismissed the appeal (IV Ca 1865/12).\n\n23.  The appellate court fully relied on the findings of fact made by the first-instance court, and held that the child’s return to the United Kingdom with or without the mother would place her in an intolerable situation (“w sytuacji nie do zniesienia”). Firstly, in view of the child’s very young age and the fact that since the retention the child had been under her mother’s care practically round the clock and that her contact with the applicant had been rare, the child’s separation from her mother would cause negative and irreversible consequences. Secondly, the child’s return with her mother would not have a positive impact on the child’s development either. To this effect, it was noted that M.J. had never adapted to her life in the United Kingdom; she was in conflict with the applicant and her departure from Poland would be against her will and forced by the circumstances.\n\n24.  As to the remaining grounds of the applicant’s appeal, the regional court ruled in the following manner: contrary to the applicant’s impression, the RODK’s report was clear and adamant in its conclusion that the child’s best interest would be better served if she were allowed to stay in Poland with her mother; in view of the fact that the applicant’s lawyer had gone on holiday and the applicant had not agreed to be represented by a substitute lawyer, granting his motion for adjournment was not justified; and the argument about the incompetence of the RODK’s experts was, firstly, belated (the applicant had not raised that issue before the first-instance court or in his appeal) and, secondly, inconsistent with the applicant’s reliance on the impugned report in support of his remaining arguments.\n\nC.  The applicant’s contact with the child, divorce application and recent developments\n\n25.  At the first hearing, held on 19 December 2012 by the Grudziądz District Court, the applicant’s lawyer applied, expressly citing Article 21 of the Hague Convention, for arrangements for organising and securing the effective exercise of the applicant’s right of contact during the Hague Convention proceedings.\n\n26.  The domestic court did not rule on that application.\n\n27.  On 28 December 2012 the applicant applied to the Grudziądz District Court for a contact order in respect of the child. He did not rely on Article 21 of the Hague Convention. He asked, inter alia, for an interim order to be issued obliging M.J. for the duration of the Hague Convention proceedings to allow him to take the child to his house every second and fourth weekend of the month from 3 p.m. on Friday until 8 p.m. on Sunday, and to talk to the child by telephone or Skype every Monday, Wednesday and Friday between 4 p.m. and 7 p.m.\n\n28.   On 28 February 2013 the Grudziądz District Court, with D.K. as the presiding judge, decided under Article 445 1 § 1 and 2 of the Code of Civil Procedure to stay the proceedings concerning the applicant’s contact with the child until the end of the couple’s divorce proceedings, which had been instituted before the Toruń Regional Court on 14 January 2013 (III. R. Nsm 35/13).\n\n29.  On 25 March 2013 the divorce application lodged by M.J. (IC 117/13) was rejected by the Toruń Regional Court, with S.M. as the presiding judge accompanied by two lay judges. The regional court favoured the jurisdiction of the English courts because the last common place of residence of the couple was in Maidstone, the United Kingdom. On 24 June 2013 the Gdańsk Court of Appeal, with D.K. as the presiding judge, dismissed M.J.’s interlocutory appeal against that decision.\n\n30.  The applicant submitted that when the Hague Convention proceedings had been pending in Poland, he had seen his daughter on several occasions, in the mother’s house and in her presence.\n\n31.  On 28 November 2014 the Grudziadz District Court issued a decision on the applicant’s contact with his daughter. A copy of this decision has not been submitted to the Court. It appears that the applicant was authorised to see his daughter the second and the fourth weekend of every month; during one week of winter holidays; during two weeks of summer holidays and on selected days of Christmas and Easter holidays. It appears that the applicant did not appeal against this decision.\n\nOn 31 August 2015 the Grudziądz District Court, with D.K. as presiding judge, confirmed that the above-mentioned decision was binding and enforceable as of 8 July 2015.\n\n32. Divorce proceedings are currently pending in the United Kingdom.\n\nII.  RELEVANT INTERNATIONAL AND COMPARATIVE LAW\n\nA.  The Hague Convention\n\n33.  The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction which has been ratified by Poland (Dz.U.1995 r. Nr 108, poz. 528, date of entry onto force 1 November 1992) and the United Kingdom provides, in so far as relevant, as follows.\n\n“... Article 3\n\nThe removal or the retention of a child is to be considered wrongful where -\n\na) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and\n\nb) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.\n\nThe rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.\n\nArticle 4\n\nThe Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.\n\n...\n\nArticle 11\n\nThe judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.\n\nIf the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. If a reply is received by the Central Authority of the requested State, that Authority shall transmit the reply to the Central Authority of the requesting State, or to the applicant, as the case may be.\n\nArticle 12\n\nWhere a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.\n\nThe judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.\n\nWhere the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.\n\nArticle 13\n\nNotwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that -\n\na) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or\n\nb) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.\n\nThe judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.\n\nIn considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.\n\n...\n\nArticle 16\n\nAfter receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice.\n\nArticle 19\n\nA decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.\n\n...”\n\nB.  The Pérez-Vera Explanatory Report on the 1980 Hague Child Abduction Convention\n\n.  The Explanatory Report on the 1980 Hague Child Abduction Convention, prepared by Elisa Pérez-Vera and published by The Hague Conference on Private International Law (HCCH) in 1982 ( “the PérezVera Report”), provides the following comments on the notion of “the best interest of the child”:\n\n“... ‘the legal standard ‘the best interest of the child’ is that at first view of such vagueness that it seems to resemble more closely a sociological paradigm than a concrete juridical standard ... the general statement of the standard does not make it clear whether ‘the interest’ of the child to be served are those of the immediate aftermath of the decision, of the adolescence of the child, of young adulthood, maturity, senescence or old age’ ...” (§21, p. 431)\n\n“... [the philosophy of the Convention] can be defined as follows: the struggle against the great increase on international child abductions must always be inspired by the desire to protect children and should be based upon an interpretation of their true interests...the right not to be removed or retained in the name of more or less arguable rights concerning its person is one of the most objective examples of what constitutes the interests of the child...’the presumption generally stated is that the true victim of the ‘childnapping’ is the child himself, who suffers from the sudden upsetting of his stability, the traumatic loss of contact with the parent who has been in charge of his upbringing, the uncertainty and frustration which come with the necessity to adapt to a strange language, unfamiliar cultural conditions and unknown teachers and relatives’ ...” (§24, pp. 431 and 432)\n\n“It is thus legitimate to assert that the two objects of the Convention – one preventive, the other designed to secure the immediate reintegration of the child into his habitual environment – both correspond to a specific idea of what constitutes the ‘best interests of the child’ ... However ... it has to be admitted that the removal of the child can sometimes be justified by objective reasons which have to do either with its person, or with the environment with which it is most closely connected ...” (§ 25, p. 432)”\n\n.  As a consequence, the Hague Convention contains a number of clearly derived from a consideration of the interest of the child, namely that of a serious risk that a child’s return would expose him or her to “physical or psychological harm” or otherwise place the child in an “intolerable situation”.\n\n.  The Pérez-Vera Report contains the following general comments about the exceptions to the principle of the child’s prompt return under Article 13 (b):\n\n“... [the exceptions] to the rule concerning the return of the child must be applied only as far as they go and no further. This implies above all that they are to be interpreted in a restrictive fashion if the Convention is not to become a dead letter... The practical application of this principle requires that the signatory States be convinced that they belong, despite their differences, to the same legal community within which the authorities of each State acknowledge that the authorities of one of them – those of the child’s habitual residence – are in principle best placed to decide upon questions of custody and access. As a result, a systematic invocation of the said exceptions, substituting the forum chosen by the abductor for that of the child’s residence, would lead to the collapse of the whole structure of the Convention by depriving it of the spirit of mutual confidence which is its inspiration...” (§34, pp. 434 and 435)\n\n“... the exceptions [in Articles 13 and 20] do not apply automatically, in that they do not invariably result in the child’s retention; nevertheless, the very nature of these exceptions gives judges a discretion – and does not impose upon them a duty – to refuse to return a child in certain circumstances ...” (§113 p. 460)\n\n“... With regard to article 13, the introductory past of the first paragraph highlights the fact that the burden of proving the facts stated in sub-paragraphs a and b is imposed on the person who opposes the return of the child ...” (§ 114, p. 460)\n\n“... The exceptions contained in [article 13] b deal with situations ... where the return of the child would be contrary to its interests ... Each of the terms used in this provision, is the result of a fragile compromise reached during the deliberations of the Special Commission and has been kept unaltered. Thus it cannot be inferred, a contrario, from the rejection during the Fourteenth Session of proposals favouring the inclusion of an express provision stating that this exception could not be invoked if the return of the child might harm its economic or educational prospects, that the exceptions are to receive a wide interpretation ...” (§116, p. 461)\n\n.  With regard to Article 29 the Pérez-Vera Report states that the aim of the Hague Convention is to provide additional means of helping persons whose custody or contact rights have been breached. Those persons have a choice either to apply directly to the Central Authorities, as provided for in the Hague Convention, or to institute relevant proceedings before the authorities of the State where the child is located. In such a case, where the applicants have recourse to a direct action before the competent authorities, they can choose to submit their application “whether or not under the provisions” of the Hague Convention. In the latter case, according to the explanatory report, the authorities are not obliged to apply the provisions of the convention unless they have been incorporated in their domestic law.\n\nC.  The International Convention on the Rights of the Child\n\n38.  The relevant provisions of the United Nations Convention on the Rights of the Child, signed in New York on 20 November 1989, read as follows:\n\nPreamble\n\n“The States Parties to the present Convention,\n\n...\n\nConvinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community,\n\nRecognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding, ...\n\nHave agreed as follows:\n\n...\n\nArticle 3\n\n1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration...\n\nArticle 7\n\n1. The child shall be registered immediately after birth and shall have the right from birth... to know and be cared for by his or her parents...\n\nArticle 9\n\n1. States Parties shall ensure that a child shall not be separated from his or her parents against their will...\n\nArticle 14\n\n1. States Parties shall respect the right of the child to freedom of thought, conscience and religion.\n\n2. States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child...\n\nArticle 18\n\n1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.\n\n...”\n\nD.  European Union law\n\n39.  Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (known as “Brussels II bis Regulation”) reads, in particular, as follows:\n\n“...\n\n(12) The grounds of jurisdiction in matters of parental responsibility established in the present Regulation are shaped in the light of the best interests of the child, in particular on the criterion of proximity. This means that jurisdiction should lie in the first place with the Member State of the child’s habitual residence, except for certain cases of a change in the child’s residence or pursuant to an agreement between the holders of parental responsibility.\n\n(13) In the interest of the child, this Regulation allows, by way of exception and under certain conditions, that the court having jurisdiction may transfer a case to a court of another Member State if this court is better placed to hear the case. However, in this case the second court should not be allowed to transfer the case to a third court.\n\n...\n\n(17) In cases of wrongful removal or retention of a child, the return of the child should be obtained without delay, and to this end the Hague Convention of 25 October 1980 would continue to apply as complemented by the provisions of this Regulation, in particular Article 11. The courts of the Member State to or in which the child has been wrongfully removed or retained should be able to oppose his or her return in specific, duly justified cases. However, such a decision could be replaced by a subsequent decision by the court of the Member State of habitual residence of the child prior to the wrongful removal or retention. Should that judgment entail the return of the child, the return should take place without any special procedure being required for recognition and enforcement of that judgment in the Member State to or in which the child has been removed or retained.\n\n...\n\nArticle 10\n\nJurisdiction in cases of child abduction\n\nIn case of wrongful removal or retention of the child, the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired a habitual residence in another Member State and:\n\n(a) each person, institution or other body having rights of custody has acquiesced in the removal or retention;\n\nor\n\n(b) the child has resided in that other Member State for a period of at least one year after the person, institution or other body having rights of custody has had or should have had knowledge of the whereabouts of the child and the child is settled in his or her new environment and at least one of the following conditions is met:\n\n(i) within one year after the holder of rights of custody has had or should have had knowledge of the whereabouts of the child, no request for return has been lodged before the competent authorities of the Member State where the child has been removed or is being retained;\n\n(ii) a request for return lodged by the holder of rights of custody has been withdrawn and no new request has been lodged within the time limit set in paragraph (i);\n\n(iii) a case before the court in the Member State where the child was habitually resident immediately before the wrongful removal or retention has been closed pursuant to Article 11(7);\n\n(iv) a judgment on custody that does not entail the return of the child has been issued by the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention.\n\nArticle 11\n\nReturn of the child\n\n1. Where a person, institution or other body having rights of custody applies to the competent authorities in a Member State to deliver a judgment on the basis of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereinafter \"the 1980 Hague Convention\"), in order to obtain the return of a child that has been wrongfully removed or retained in a Member State other than the Member State where the child was habitually resident immediately before the wrongful removal or retention, paragraphs 2 to 8 shall apply.\n\n...\n\n3. A court to which an application for return of a child is made as mentioned in paragraph 1 shall act expeditiously in proceedings on the application, using the most expeditious procedures available in national law.\n\nWithout prejudice to the first subparagraph, the court shall, except where exceptional circumstances make this impossible, issue its judgment no later than six weeks after the application is lodged.\n\n4. A court cannot refuse to return a child on the basis of Article 13b of the 1980 Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return.\n\n5. A court cannot refuse to return a child unless the person who requested the return of the child has been given an opportunity to be heard.\n\n...”\n\nE.  European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children\n\n40.  The European Convention of 20 May 1980 on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children (known as “Luxembourg Convention”) reads, in so far as relevant, as follows:\n\nIII.  RELEVANT DOMESTIC LAW\n\n41.  The amendment to the 1964 Code of Civil Procedure (Kodeks Postępowania Cywilnego) introduced on 19 July 2001, which entered into force on 27 September 2001 regulates the proceedings concerning the return of children under the Hague Convention (Articles 5981-59814 of the Code of Civil Procedure).\n\nArticle 5982 provides that when proceedings under the Hague Convention are pending, the domestic court shall not, in principle, rule on the issue of parental rights and custody. Custody proceedings shall be stayed proprio motu until the end of the proceedings concerning the child’s return.\n\nArticle 4451 operates in the general context of family disputes over minor children and provides that when proceedings for divorce are pending, separate proceedings concerning right of contact shall not be instituted or shall be stayed proprio motu if they had been instituted prior to the application for divorce. Under this provision, the issue of the right of contact shall be decided by the court before which the divorce proceedings are pending by means of interim procedure.\n\nLastly, under paragraph 2 of this provision proceedings for the right of contact shall be resumed if the final and binding ruling ending the divorce proceedings is silent on the issue of contact. Otherwise, proceedings for the right of contact shall be discontinued.\n\n.  Irrespective of the above-mentioned regulations, a party to civil proceedings is entitled to apply for an interim measure (Article 730 et al. of the Code of Civil Procedure). Article 755 of the Code of Civil Procedure specifically provides that matters of custody and contact with a child may be regulated by a court by means of an interim measure. Under Article 737 of the Code of Civil Procedure, an application for an interim measure shall be examined without undue delay, in principle no later than one week after the date of its lodging with the court.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION ON ACCOUNT OF THE OUTCOME THE PROCEEDINGS FOR THE CHILD’S RETURN UNDER THE HAGUE CONVENTION AND THE DECISION-MAKING PROCESS\n\n43.  The applicant complained of a breach of his right to respect for his family life under Article 8 of the Convention because of the dismissal of his Hague Convention request. The applicant elaborated on this complaint, indicating that the unfavourable outcome of the impugned proceedings resulted from the misapplication of the Hague Convention and from various alleged shortcomings in the decision-making process. Article 8 of the Convention reads as follows:\n\n“1.  Everyone has the right to respect for his private and family life ...\n\n2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”\n\nA.  Admissibility\n\n44.  The Court notes that the application is not manifestly illfounded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n1.  The parties’ submissions\n\n45.  In his application to the Court, the applicant complained of a breach of Article 8 of the Convention on account of the outcome of his Hague Convention proceedings. In his subsequent observations on the case he specified a series of shortcomings in the decision-making process leading to the refusal to grant his Hague Convention request.\n\n46.  More specifically, the applicant submitted that the Polish family court had misapplied the Hague Convention procedure in that they had focused on two elements which were absent from the Hague Convention test under Article 13. Incidentally, these elements also constituted wrong assumptions, namely that the applicant’s daughter would have to be separated from her mother and that she would be placed in her father’s custody.\n\nTo this effect, the applicant considered that the issue which had been put forward by the first-instance court to the RODK’s experts had been formulated erroneously de jure since the applicant’s request for the child’s return under the Hague Convention had not aimed at “moving the child into the father’s care” but simply at returning the child to her habitual place of residence regardless of who was responsible for her care. Firstly, such was the nature of the Hague Convention requests which pursued its restorative objective. And secondly, with regard to the applicant’s specific case, in the divorce proceedings pending in the United Kingdom the applicant had specifically asked for shared and not exclusive custody of his daughter.\n\nIn the applicant’s opinion, the subsequent judicial examination of his Hague Convention request was likewise erroneously focused on those two elements.\n\n47.  The applicant also argued that the impugned decision of the domestic court, which resulted from an incorrectly broad interpretation of Article 13 (b) of the Hague Convention, was contrary to the child’s best interests within the meaning of that provision and instead protected the interests of the child’s mother, who had decided not to return to the United Kingdom without indicating any objective reasons for such a decision.\n\n48.  Moreover, the applicant submitted that the decision-making process leading to the adoption of the impugned decision was contrary to the procedural requirements of Article 8 of the Convention.\n\n49.  Firstly, in the applicant’s opinion, the Polish family court had taken too long to examine his Hague Convention request, in breach of the requirement of expeditious proceedings under Article 11 of the Hague Convention. Secondly, in the absence of a decision to adjourn, the applicant had to attend one hearing before the first-instance court without a lawyer. Thirdly, the presiding judge who issued the first-instance ruling was to be biased because she “welcomed the divorce petition” filed by the applicant’s wife. Fourthly, the RODK’s report was, in the applicant’s view, issued unlawfully because the appointment of expert psychologists and their professional liability was not regulated under Polish law at the time. And fifthly, under the Hague Convention and under the Brussels II Regulation, the Polish courts should not have examined the divorce application brought by M.J. as long as the applicant’s request for the child’s return was pending.\n\n50.  The Government refrained from making comments on the merits of the case.\n\n2.  The Court’s assessment\n\n.  The general principles on the relationship between the Convention and the Hague Convention, the scope of the Court’s examination of child international child abduction applications, the best interests of the child and on the procedural obligations of the States, are laid down in the Court’s Grand Chamber judgment in the case of X v. Latvia (see X v. Latvia [GC], no. 27853/09, §§ 93-102, 107 ECHR 2013) and also in a number of other judgments concerning proceedings for return of children under the Hague Convention (see Maumousseau and Washington v. France, no. 39388/05, § 68, 6 December 2007; Ignaccolo-Zenide v. Romania, no. 31679/96, § 102, ECHR 2000I; Iosub Caras v. Romania, no. 7198/04, § 38, 27 July 2006; Shaw v. Hungary, no. 6457/09, § 72, 26 July 2011; and Adžić v. Croatia, no. 22643/14, §§ 93-95, 12  March 2015).\n\n.  In the instant case, the primary interference with the applicant’s right to respect for his family life may not be attributed to an action or omission by the respondent State, but rather to the action of the applicant’s wife and his child’s mother, a private individual, who has retained their daughter in Poland (see López Guió v. Slovakia, no. 10280/12, § 85, 3 June 2014).\n\n.  That action nevertheless placed the respondent State under positive obligations to secure for the applicant his right to respect for his family life, which included taking measures under the Hague Convention with a view to ensuring his prompt reunification with his child (see Ignaccolo-Zenide, cited above, § 94).\n\n.  In the present case, while holding that the retention of the child away from her habitual residence in the United Kingdom was wrongful within the meaning of Article 3 of the Hague Convention, the domestic courts took twelve months to examine the applicant’s request for the return of his daughter, and eventually dismissed it on the ground that her return without her mother would place the girl in an intolerable situation within the meaning of Article 13 (b) of the Hague Convention.\n\n.  The Court finds therefore that the events under consideration in the instant case, in so far as they give rise to the responsibility of the respondent State, amounted to an interference with the applicant’s right to respect for his family life (see Iosub Caras, cited above, § 30).\n\n.  The Court also notes that this interference had its legal basis in the Hague Convention, which entered into force in Poland in 1992 and which forms part of its domestic law. Moreover, the domestic courts acted in what they considered to be pursuit of the legitimate aim of protecting the rights and freedoms of the child and her mother (see Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, §§ 99 and 106, ECHR 2010, and, mutatis mutandis, Maummousseau, cited above, § 61).\n\n.  The Court must therefore determine whether the interference in question was “necessary in a democratic society” within the meaning of Article 8 § 2 of the Convention, interpreted in the light of the relevant international instruments, and whether when striking the balance between the competing interests at stake appropriate weight was given to the child’s best interests, within the margin of appreciation afforded to the State in such matters.\n\n.  The Court must be also aware of the context which is all-important for the interpretation of treaties. The 1980 Hague Convention is not the only instrument regulating matters connected with child abduction in relations between Poland and the United Kingdom. Both States are also parties to the 2003 Brussels II bis Regulation and the 1980 Luxembourg Convention. The 1980 Hague Convention itself has to be interpreted and applied in the context of these instruments.\n\n.  The Court observes that the assessment of the child’s best interests carried out by the Polish family courts in the course of the applicant’s Hague Convention proceedings has indeed revolved around the question of whether moving the child into her father’s care and separating her from the mother would disturb the child’s sense of security and would have a negative impact on her emotional state (see paragraphs 15, 18 and 23 above).\n\n.  Firstly, a question to this effect was formulated in explicit terms and put to the RODK’s experts with a view to obtaining a report which later served as the basis of the family courts’ assessment of the exceptions under Article 13 (b) of the Hague Convention (see paragraphs 16 and 17 above). The RODK’s experts in fact recommended that the child should continue living in Poland because her return to the United Kingdom without the mother would be more harmful to her than the lack of daily contact with her father (see paragraph 16 above).\n\n.  Secondly, the first-instance court assessed the risk of psychological and physical harm to the child in the event of her return to her father without the mother; no consideration having been given to the alternative return of the child with the mother (see paragraph 18 above). As a matter of fact the district court held that there was a grave risk of psychological trauma for the child in the event of her immediate separation from her mother, because of the girl’s young age and because her mother had always been her primary caregiver (see paragraph 19 above).\n\n.  Thirdly, even though the appellate court reformulated its reasoning when upholding the decision to dismiss the applicant’s Hague Convention request, the fact that the child’s mother was unwilling to live in the United Kingdom remained central to its analysis (see paragraph 23 above). Being faced with the applicant’s explicit argument that the lower court had breached Article 13 (b) of the Hague Convention in that it had wrongly assumed that the child would have to be separated from the mother in absence of any objective obstacles to her return to the United Kingdom (see paragraph 20 above), the appellate court appears to have accepted that the conflict between the applicant and M.J. and the latter’s alleged inability to adapt to her life abroad were reasons objective and convincing enough to prompt the conclusion that with or without her mother the child’s return to her habitual environment would place her in an intolerable situation within the meaning of Article 13 (b) of the Hague Convention (see paragraph 23 above).\n\n.  It is not the Court’s task to take the place of the competent authorities in determining whether a grave risk exists that the child would be exposed to psychological harm within the meaning of Article 13 of the Hague Convention if she returned to the United Kingdom. However, the Court is in a position to ascertain whether the domestic courts, in applying and interpreting the provisions of that convention, secured the guarantees set forth in Article 8 of the Convention, particularly taking into account the child’s best interests (see, amongst other authorities, Olsson v. Sweden judgment of 24 March 1988, Series A no. 130, p. 32, § 68).\n\n. The Court observes that it was the applicant’s estranged wife who opposed the child’s return. It was therefore for her to make and to substantiate any potential allegation of specific risks under Article 13 (b) of the Hague Convention (see paragraph 38 above). While this provision is not restrictive as to the exact nature of the “grave risk” – which could entail not only “physical or psychological harm” but also “an intolerable situation” – it cannot be read, in the light of Article 8 of the Convention, as including all of the inconveniences necessarily linked to the experience of return: the exception provided for in Article 13 (b) concerns only situations which go beyond what a child might reasonably be expected to bear (see X v. Latvia, cited above, § 116, and Maumousseau and Washington, cited above, §§ 69 and 73).\n\n65.  In the instant case, the applicant’s wife objected to the child’s return to the United Kingdom, giving two reasons. The first was essentially the break-up of the marriage, and the second her fear that the child would not be allowed to leave the United Kingdom (see paragraph 9 above).\n\n66.  The Court considers that both of these arguments fell short of the requirements of Article 13 (b) of the Hague Convention which were described above. The domestic courts nevertheless proceeded with the case, assessing the said Article 13 (b) risks in view of what appears to be a rather arbitrary refusal of the child’s mother to return with the child as discussed in paragraph 60 above.\n\n67.  In addition to restating consistently that the exceptions to return under the Hague Convention must be interpreted strictly (see X v. Latvia, cited above, § 116), this Court has also specifically held that the harm referred to in Article 13 (b) of the Hague Convention cannot arise solely from separation from the parent who was responsible for the wrongful removal or retention. This separation, however difficult for the child, would not automatically meet the grave risk test (see mutatis mutandis, G.S. v. Georgia, no. 2361/13, § 56, 21 July 2015).\n\n68.  Nothing in the circumstances unveiled before the domestic courts objectively ruled out the possibility of the mother’s return together with the child. It was not implied that the applicant’s wife did not have access to UK territory (see, mutatis mutandis, Maumousseau, cited above, § 74) or that she would have faced criminal sanctions upon her return (see, a contrario, Neullinger, cited above, §§ 149 and 150). In addition, nothing indicated that the applicant might actively prevent M.J. from seeing her child in the United Kingdom or might deprive her of parental rights or custody (see, mutatis mutandis, Paradis and Others v. Germany (dec.), no. 4783/03, 15 May 2003). Instead, the appellate court upheld the conclusion and the reasoning of the lower court that the child’s separation from the mother would have negative irreversible consequences, adding that it was so because since the abduction the child had been under her mother’s care practically round the clock, and her contact with the applicant had been rare (see paragraph 23 above).\n\n.  The alternative part of the appellate court’s ruling, namely its holding that the child’s return to the United Kingdom with the mother would not have a positive impact on the child’s development, because M.J.’s departure from Poland would be against her will (see paragraph 23 above), must be considered equally misguided. The domestic court has clearly gone beyond the elements which ought to have been assessed under Article 13 (b) of the Hague Convention. Moreover, even in doing so, it seemed to have completely ignored the remaining conclusions of the RODK’s experts, namely that the child, who was apparently adaptable, was in good physical and psychological health, was emotionally attached to both parents, and perceived Poland and the United Kingdom as on an equal footing (see paragraph 16 above).\n\n70.  Lastly, the Court observes that the issues of custody and access are not to be intertwined in the Hague Convention proceedings (see paragraph 38 above, and see also Maumousseau, cited above, § 69). Consequently, whether in the light of international law or of domestic law, it was erroneous for the family court in the instant case to assume that if returned to the United Kingdom the child would be placed in the applicant’s custody or care.\n\n71.  The Court also observes that, as regards the length of the impugned domestic proceedings, despite the recognised urgent nature of the Hague Convention proceedings, a period of one year elapsed from the date on which the applicant’s request for the return of the child was registered with the Grudziadz District Court to the date of the final decision. No explanation was put forward by the Government for this delay.\n\n72.  Consequently, even though the six-week time-limit is non-obligatory under the Hague Convention (see paragraph 33 above), the Court considers that exceeding it by forty-five weeks, which is more than eightfold, in the absence of any circumstances capable of exempting the domestic courts from the duty to strictly observe it, does not meet the urgency of the situation and is not in compliance with the positive obligation to act expeditiously in proceedings for the return of children (see Carlson v. Switzerland, no. 49492/06, § 76, 6 November 2008; Karrer v. Romania, no. 16965/10, § 54, 21 February 2012; R.S. v. Poland, no. 63777/09, § 70, 21 July 2015; Blaga v. Romania, no. 54443/10, § 83, 1 July 2014; and Monory, cited above, § 82; see also, a contrario, Lipkowsky (dec.), cited above).\n\n73.  In conclusion, in the circumstances of the case seen as a whole and notwithstanding the respondent States’ margin of appreciation in the matter, the Court considers that the State failed to comply with its positive obligations under Article 8 of the Convention.\n\n74.  In view of the above conclusion, it is unnecessary that the remainder of the applicant’s complaint about the allegedly defective procedure be examined by the Court.\n\n75.  There has accordingly been a violation of Article 8 of the Convention.\n\n76.  Lastly, the Court observes that, as the child has lived with her mother in Poland for over three years and a half, there is no basis for the present judgment to be interpreted as obliging the respondent State to take steps ordering the child’s return to the United Kingdom.\n\nII.  ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION ON ACCOUNT OF THE DOMESTIC COURTS’ FAILURE TO ISSUE AN INTERIM CONTACT ORDER\n\n77.  In his observations on the admissibility and the merits of the case which were submitted to the Court on 19 January 2015, the applicant made an additional complaint, namely that the Polish family court failed to secure the exercise of his right of contact during the Hague Convention proceedings. In result, his contact with the child was irregular and rare, as it was at the absolute discretion of the abducting mother. That, in the applicant’s view, was in breach of Article 21 of the Hague Convention and in violation of his and his daughter’s right for respect for their family life under Article 8 of the Convention.\n\n78.  The Court considers that the above grievance cannot be viewed as an integral part of the applicant’s main complaint, which concerned the dismissal of his Hague Convention request and the features of these proceedings in so far as they might have influenced that outcome. Consequently, the applicant’s allegation that his contact was not secured by the domestic court during the return proceedings must be examined as a separate complaint. It is not open to the Court, however, to set aside the application of the six-month rule even in the absence of the relevant objection from the Government (see, among many other authorities, Wereda v. Poland, no. 54727/08, § 57, 26 November 2013; Belaousof and Others v. Greece, no. 66296/01, judgment of 27 May 2004, § 38; Miroshnik v. Ukraine, no. 75804/01, § 55, 27 November 2008; Tsikakis v. Germany, no. 1521/06, § 55, 10 February 2011; and Ciornei v. Romania, no. 6098/05, § 19, 21 July 2009).\n\n79.  In view of these considerations, it must be noted that the examination of the merits of the applicant’s request for contact arrangements was stayed by the Grudziądz District Court on 28 February 2013 until the termination of the divorce proceedings (see paragraph 28 above). The latter proceedings ended on 24 June 2013 with the decision of the Gdańsk Court of Appeal (see paragraph 29 above). The applicant informed the Court that on 28 November 2014 a decision on contact arrangements had been issued (see paragraph 31 above). The latter development, however, is of no importance since the Hague Convention proceedings, for the duration of which the applicant sought to have contact with his child, ended on 14 October 2013 (see paragraph 22 above).\n\n80.  Having regard to the above, the Court finds that the applicant’s complaint that the Polish family court failed to secure his right of contact during the return proceedings has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.\n\nIII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n81.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n82.  In his application form, the applicant claimed 20,000 euros (EUR) in respect of non-pecuniary damage. In his subsequent submissions on just satisfaction, he claimed EUR 1,886 in respect of pecuniary damage, representing loss of income when the applicant was absent from work to participate in the impugned domestic court proceedings. At that point, the applicant also claimed EUR 50,000 in respect of nonpecuniary damage.\n\n83.  The Government submitted that no causal link existed between the applicant’s Article 8 application and the pecuniary damage which he had allegedly suffered. Moreover, they argued that the non-pecuniary damages sought were excessive and did not correspond to what had originally been claimed by the applicant.\n\n84.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, the Court accepts that the applicant must have suffered distress and emotional hardship, as a result of the Polish court’s refusal to order her daughter’s return to the United Kingdom, which is not sufficiently compensated for by the finding of a violation of the Convention. Having regard to the sums awarded in comparable cases, and making an assessment on an equitable basis, the Court awards the applicant EUR 9,000 in respect of non-pecuniary damage.\n\nB.  Costs and expenses\n\n85.  The applicant also claimed EUR 7,447.74 for costs and expenses incurred in relation to the proceedings before domestic courts and EUR 3,000 for those incurred before the Court. The former amount comprised EUR 5,473.54 of the applicant and his witness’s travel expenses (transportation, hotels and parking fees) incurred between December 2012 and October 2013 and EUR 1,974.2 of various court and translation fees.\n\n86.  The Government argued that only costs actually incurred in the preparation and defence of the applicant’s case before the Court should be taken into consideration.\n\n87.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 6,145 covering costs under all heads.\n\nC.  Default interest\n\n88.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\n1.  Declares the Article 8 complaint about the outcome of the Hague Convention proceedings and the decision-making process admissible and the remainder of the application inadmissible;\n\n2.  Holds that there has been a violation of Article 8 of the Convention;\n\n3.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n4.  Dismisses the remainder of the applicant’s claim for just satisfaction and for costs and expenses.\n\nDone in English, and notified in writing on 1 March 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_531","text":"PROCEDURE\n\n1.  The case originated in an application (no. 63638/14) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 12 September 2014 by four applicants. The first and second applicants, Mr Eduard Anatolievich Posevin, a Russian national born in 1962, and Ms Tetyana Anatolyivna Posevina, a Ukrainian and Bulgarian national born in 1974, are spouses. The third and fourth applicants, Ms Valeriya Eduardovna Posevina, a Ukrainian national born in 2001, and Ms Dzhulia Eduardovna Posevina, a Ukrainian national born in 2004, are their daughters. All applicants live in Plovdiv, Bulgaria.\n\n2.  The applicants were represented by Mr M. Ekimdzhiev, Ms K. Boncheva and Ms S. Stefanova, lawyers practising in Plovdiv. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Dimitrova, of the Ministry of Justice.\n\n3.  The applicants alleged, in particular, that searches and seizures in their house and photography studio, and a search of the first applicant’s email account had been unlawful and disproportionate. They also alleged that the house search and the first applicant’s arrest in the course of that search had constituted inhuman and degrading treatment because the police had acted with needless brutality. Lastly, the applicants alleged that under Bulgarian law they did not have an effective remedy with respect to the searches and seizures, and could not challenge them before a court.\n\n4.  On 20 November 2015 the Court decided to give the Government notice of the above complaints and declared the remainder of the application inadmissible under Rule 54 § 3 of its Rules.\n\n5.  As the first applicant is a Russian national and the other three applicants are Ukrainian nationals, on 26 November 2015 the Court advised the Government of the Russian Federation and the Government of Ukraine of their right under Article 36 § 1 of the Convention to submit written comments. On 18 February 2016 the former stated that they did not wish to exercise this right at this stage of the proceedings. The latter did not reply within the twelve-week time-limit under Rule 44 § 1 (b) of the Rules of Court.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n6.  The first applicant is a professional photographer. Since 1998 he has owned and managed a single-member limited liability company through which he operates a photography studio in Plovdiv.\n\nA.  The investigation of suspected forgery of identity documents\n\n7.  In January 2014 the French authorities informed the Bulgarian Border Police that a Turkish national who had a permit to reside in Bulgaria was suspected of forging Bulgarian identity documents and providing them to Turkish nationals residing unlawfully in France. Electronic surveillance had showed that he had exchanged email messages with an alleged accomplice whose email account was hosted by a Bulgarian Internet service provider.\n\n8.  Enquiries by the Bulgarian Border Police revealed that the email account belonged to the first applicant and his company. A wiretap placed on the Turkish national’s French mobile telephone showed that on 4 March 2014 he had called the photography studio’s landline and talked with a woman who spoke Bulgarian with a Russian accent. They discussed the receipt of the photographs of two people.\n\n9.  On 10-11 March 2014 the Turkish national travelled from Bulgaria to France by car, and was arrested shortly after entering French territory. A search of his car revealed eight fake Bulgarian identity cards, five fake Bulgarian drivers’ licences and six fake Bulgarian passports.\n\nB.  The warrants for searches and seizures in the applicants’ house, the first applicant’s car, and the photography studio\n\n10.  Two days later, on 13 March 2014, the Plovdiv district prosecutor’s office applied for warrants to search the photography studio, the first applicant’s car and the applicants’ house, and seize evidence there. It set out the above developments, and said that it was investigating the forging of identity documents in which the main suspect was the above-mentioned Turkish national. According to the available information, he had received assistance from the first applicant. The applications were worded as follows:\n\n“In the course of the proceedings, the need has arisen to carry out a search and seizure in [the applicants’ house, the first applicant’s car, and the photography studio], since the available evidence gives probable cause to suspect that [these places] contain items of relevance to the case – items relating to the subject matter of the case. I therefore ... ask for permission for an investigator to search [these places] with a view to finding and seizing the above-mentioned items.”\n\n11.  Between 3.30 and 4 p.m. the same day, a judge of the Plovdiv District Court, sitting in private, issued three warrants authorising the searches and seizures in the following terms:\n\n“The submitted materials make it clear that it is necessary to carry out a search and seizure in [these places] with a view to finding the items set out in the application[s]  relating to the forging of identity documents and others, relevant to the case which is the subject matter of the criminal proceedings.”\n\nC.  The searches and seizures on 14 March 2014\n\n12.  At about 9 a.m. the following day, 14 March 2014, just as the first applicant was leaving his house, he was intercepted by three police officers, two in plain clothes and one in uniform.\n\n12.  At about 9 a.m. the following day, 14 March 2014, just as the first applicant was leaving his house, he was intercepted by three police officers, two in plain clothes and one in uniform.\n\n13.  The parties’ accounts of the ensuing events differ widely. According to the applicants, the police did not identify themselves, roughly pinned down and handcuffed the first applicant behind his back, scared his two daughters, the third and fourth applicants, who were minors, and then searched the house in a rude and chaotic manner, without presenting the warrant authorising them to do so. According to the Government, whose account was based on a statement informally obtained from one of the officers who took part in the search, the first applicant attempted to run back to the house, possibly to conceal evidence, and was only handcuffed for that reason. The officers searched the house with restraint, specifically endeavouring not to frighten the two children. They were only looking for computers, mobile telephones and similar devices, and did not rummage needlessly through things in the house.\n\n14.  According to the record of the search, it lasted between 9.15 and 10.50 a.m. and took place in the presence of two certifying witnesses. The police seized eleven SIM cards, identity and other documents, a laptop computer, three mobile Internet dongles, and a mobile telephone.\n\n15.  According to the applicants, after the search the officers dragged the first applicant into the street, bent over with his hands handcuffed behind his back, in sight of many neighbours and passers-by. Between 10.55 and 11.05 a.m. they searched his car, from which they did not seize anything. The officers then put the first applicant in a police car and drove to the photography studio, very close to the corner of a busy pedestrian street in the centre of Plovdiv, which they searched between 11.35 a.m. and 12.30 p.m. They again refused to allow the first applicant to acquaint himself with the search warrant. According to the record of that search, the officers seized three desktop computers, two video cameras, two still cameras, several flash memory cards, flash memory drives, and cash.\n\n15.  According to the applicants, after the search the officers dragged the first applicant into the street, bent over with his hands handcuffed behind his back, in sight of many neighbours and passers-by. Between 10.55 and 11.05 a.m. they searched his car, from which they did not seize anything. The officers then put the first applicant in a police car and drove to the photography studio, very close to the corner of a busy pedestrian street in the centre of Plovdiv, which they searched between 11.35 a.m. and 12.30 p.m. They again refused to allow the first applicant to acquaint himself with the search warrant. According to the record of that search, the officers seized three desktop computers, two video cameras, two still cameras, several flash memory cards, flash memory drives, and cash.\n\n16.  At about the same time, between 11.15 and 11.30 a.m. the police searched the first applicant himself, without a judicial warrant. They seized three flash memory drives and two mobile telephones. They submitted the search record to a judge of the Plovdiv District Court, who approved it at 5 p.m. the same day.\n\n16.  At about the same time, between 11.15 and 11.30 a.m. the police searched the first applicant himself, without a judicial warrant. They seized three flash memory drives and two mobile telephones. They submitted the search record to a judge of the Plovdiv District Court, who approved it at 5 p.m. the same day.\n\n17.  The officers then took the first applicant to a police station for a “conversation”. According to the first applicant, he was kept in handcuffs the whole time. The Government denied this, noting that if that had indeed been the case, the first applicant would not have been able to sign the search records and produce a handwritten statement in the police station.\n\n18.  In the statement the first applicant explained, inter alia, that he used the email account in which the police were interested (see paragraphs 7 and 8 above) to exchange computer files, mostly image files, with clients of his photography studio. He stated that he agreed to provide access to the account for the needs of the investigation, so that the police could subject the messages in it relating to the Turkish national to examination by an expert, and then gave his password. The Government submitted that the police had used the password to go through the email account, but had not seized any messages from it. The first applicant was released at about 6 p.m. The police did not issue a written order for his detention.\n\n19.  The first applicant’s wife, the second applicant, came back to Plovdiv later that evening. According to her, she had been contacted earlier during the day by telephone by her older daughter, the third applicant, and had become worried at the news that her husband had been arrested and their daughters left alone, frightened, in the house. She kept calling her daughters and trying to call her husband throughout the day.\n\nD.  The expert’s examination of the seized electronic media\n\nD.  The expert’s examination of the seized electronic media\n\n20.  On 20 March 2014 the investigator in charge of the case asked a computer expert to copy the data from three of the seized flash memory cards to an optical disk. In his report, submitted the following day, 21 March 2014, the expert said that he had copied all the files from two of the cards and that the third card did not contain any files.\n\n21.  On 6 June 2014 the investigator asked the same expert to copy the data from the laptop computer seized in the applicants’ house to an external hard drive and to inspect the three desktop computers seized in the photography studio for the presence of software or files which could be used for the forging of documents. In his report, submitted on 18 June 2014, the expert said that he had copied 192,610 files with a total size of 333,204 megabytes from the laptop computer to an external hard drive, which he enclosed with his report, and that his inspection of the desktop computers had revealed that two of them contained software programs which could be used to edit image files, and that the third computer was defective and could not be booted up.\n\n22.  It is unclear what happened with the data copied from the laptop computer and the two memory cards.\n\nE.  The return of the seized items\n\nE.  The return of the seized items\n\n23.  On 17 March 2014 the first applicant asked the Plovdiv district prosecutor’s office to order the return of all the seized items. He submitted that they were not relevant for the case and that he urgently needed them for his work as a photographer. On 20 March 2014 the prosecutor’s office partly allowed the request and ordered the return of some of the items – two cameras, two flash memory cards, and two video cameras – but only after the police had made copies of their contents. The next day, 21 March 2014, those items were given back to the first applicant. On 7 April 2014 he appealed to the Plovdiv regional prosecutor’s office, complaining of the refusal of the lower prosecutor’s office to order the return of the remainder of the seized items. It does not appear that he received a formal reply to his appeal, but on 14 May 2014, two months after the seizure, the investigator in charge of the case gave him back three mobile telephones, three mobile Internet dongles, 1,000 euros (EUR), 100 United States dollars, four flash memory cards, and three flash memory drives. The remainder of the seized items were given back to the first applicant a little more than three months after the seizure, on 18 June 2014, immediately after their contents had been inspected by the expert (see paragraph 21 above).\n\nF.  The ensuing course of the investigation\n\nF.  The ensuing course of the investigation\n\n24.  On 9 July 2014 the police sent the case file to the Plovdiv district prosecutor’s office, recommending that the proceedings be discontinued. On 2 September 2014 that office disagreed and instead decided to stay the proceedings on the grounds that the author of the presumed offence had not been identified. On 10 September 2014 it sent the case file back to the police for further investigation. On 18 March 2015 the police again transmitted the case file to the Plovdiv district prosecutor’s office. It appears that the proceedings are still pending. Neither the first nor the second applicant has been charged with an offence.\n\nII.  RELEVANT DOMESTIC LAW AND PRACTICE\n\nA.  Search of premises\n\nA.  Search of premises\n\n25.  Searches of premises in the course of criminal proceedings are governed by Articles 160 to 163 of the Code of Criminal Procedure of 2005.\n\n26.  Article 160 § 1 provides that when there are enough grounds to suspect that premises contain items, papers or computer systems which contain data that might be relevant for a criminal case, they may be searched and those items or data seized.\n\n26.  Article 160 § 1 provides that when there are enough grounds to suspect that premises contain items, papers or computer systems which contain data that might be relevant for a criminal case, they may be searched and those items or data seized.\n\n27.  As a rule, searches and seizures in the course of a preliminary investigation must be authorised beforehand by a judge of the first-instance criminal court which would try the case or the first-instance criminal court which has jurisdiction over the place where the search and seizure are to take place (Article 161 § 1). In exigent circumstances, when a search and seizure would be the only way to obtain and preserve evidence, the investigating authorities may proceed without a judicial warrant, but then the supervising public prosecutor must submit the record of the search to a judge for approval immediately or, in any event, not more than twenty-four hours after the search (Article 161 § 2).\n\n27.  As a rule, searches and seizures in the course of a preliminary investigation must be authorised beforehand by a judge of the first-instance criminal court which would try the case or the first-instance criminal court which has jurisdiction over the place where the search and seizure are to take place (Article 161 § 1). In exigent circumstances, when a search and seizure would be the only way to obtain and preserve evidence, the investigating authorities may proceed without a judicial warrant, but then the supervising public prosecutor must submit the record of the search to a judge for approval immediately or, in any event, not more than twenty-four hours after the search (Article 161 § 2).\n\n28.  Articles 162 and 163 lay down the manner in which searches and seizures are to be carried out.\n\n28.  Articles 162 and 163 lay down the manner in which searches and seizures are to be carried out.\n\n29.  Article 162 § 1 provides that the search and seizure must take place in the presence of certifying witnesses and the person who uses the premises. By Article 162 § 2, if that person or a family member cannot be present, the search and seizure must be carried out in the presence of the building manager or a representative of the municipality. Article 162 § 6 provides that when the search and seizure concern a computer system or software, they must be carried out in the presence of a technical specialist.\n\n29.  Article 162 § 1 provides that the search and seizure must take place in the presence of certifying witnesses and the person who uses the premises. By Article 162 § 2, if that person or a family member cannot be present, the search and seizure must be carried out in the presence of the building manager or a representative of the municipality. Article 162 § 6 provides that when the search and seizure concern a computer system or software, they must be carried out in the presence of a technical specialist.\n\n30.  Article 163 § 1 provides that, unless urgent, searches and seizures must be carried out during the day. By Article 163 § 2, before proceeding with the search, the investigating authorities must present the search warrant to the person concerned and ask him or her to produce the items, papers or computer systems that they are seeking. By Article 163 § 3, the officers carrying out the search may prohibit those present at the search from interacting with one another or others, or from leaving the premises, until the search is over. By Article 163 § 4, when carrying out a search and seizure, the authorities may not take steps not required to attain their purpose, and rooms and containers may only be opened by force if the persons concerned refuse to open them, but unnecessary damage must be avoided. Article 163 § 5 provides that if the search and seizure reveal intimate details about those concerned, the authorities must take steps to prevent that information from becoming public knowledge.\n\n31.  Article 163 §§ 7 and 8, which relate to data in computer systems, provide that, as a rule, such data must be seized in printed form. If that is not possible, the computer system must be sealed with a record featuring the case number, the authority which has carried out the seizure, the place and time, and the names of all persons present, who must then sign the record. The system can then only be unsealed if authorised by the competent public prosecutor and in the presence of certifying witnesses and a technical specialist.\n\nB.  Seizure and retention of email correspondence\n\n32.  The seizure and retention of paper or email correspondence in the course of criminal proceedings is governed by Article 165 of the Code. Article 165 § 1 provides that such correspondence may only be seized and retained if necessary to uncover or prevent “serious offences” (Article 93 § 7 of the Criminal Code of 1968 defines a serious offence as one punishable by more than five years’ imprisonment, life imprisonment, or whole life imprisonment). Article 165 § 2 provides that the seizure and retention of correspondence in the course of a preliminary investigation must be authorised, following an application by the competent public prosecutor, by a judge of the first-instance criminal court which would try the case or the first-instance criminal court which has jurisdiction over the place where the seizure is to take place. Reported cases under those provisions show that the courts have authorised the prosecuting authorities to seize email messages by approaching the Internet service provider which holds them on its servers (see опр. № 451 от 31.07.2012 г. по ч. н. д. № 942/2012 г., РС-Враца; опр. № 559 от 09.10.2012 г. по ч. н. д. № 1182/2012 г., РС-Враца; and опр. № 142 от 14.03.2013 г. по ч. н. д. № 319/2013 г., РС-Враца).\n\n32.  The seizure and retention of paper or email correspondence in the course of criminal proceedings is governed by Article 165 of the Code. Article 165 § 1 provides that such correspondence may only be seized and retained if necessary to uncover or prevent “serious offences” (Article 93 § 7 of the Criminal Code of 1968 defines a serious offence as one punishable by more than five years’ imprisonment, life imprisonment, or whole life imprisonment). Article 165 § 2 provides that the seizure and retention of correspondence in the course of a preliminary investigation must be authorised, following an application by the competent public prosecutor, by a judge of the first-instance criminal court which would try the case or the first-instance criminal court which has jurisdiction over the place where the seizure is to take place. Reported cases under those provisions show that the courts have authorised the prosecuting authorities to seize email messages by approaching the Internet service provider which holds them on its servers (see опр. № 451 от 31.07.2012 г. по ч. н. д. № 942/2012 г., РС-Враца; опр. № 559 от 09.10.2012 г. по ч. н. д. № 1182/2012 г., РС-Враца; and опр. № 142 от 14.03.2013 г. по ч. н. д. № 319/2013 г., РС-Враца).\n\n33.  In two recent judgments (реш. № 530 от 04.01.2012 г. по н. д. № 2005/2011 г., ВКС, I н. о., and реш. № 17 от 29.01.2015 г. по н. д. № 1622/2014 г., ВКС, I н. о.) which concerned, inter alia, questions of whether the investigating authorities had duly seized Skype conversations and whether it had been proper to admit them in evidence, the Supreme Court of Cassation held that the search of data in computer systems under Article 163 of the 2005 Code (see paragraph 31 above) and the seizure of electronic correspondence under Article 165 of the Code (see paragraph 32 above) were distinct procedures, subject to different requirements, but that the Skype conversations at issue, which were both “computer data” for the purposes of the former Article and “correspondence” for the purposes of the latter Article, had been properly seized because they had been obtained by accessing the data in computers which had themselves already been duly seized. In the first case, the court examined whether the investigating authorities had resorted to the procedure under Article 163 to circumvent that under Article 165, but was satisfied that they had not.\n\nC.  Liability of the authorities for arrests, searches and seizures\n\n1.  Under the State and Municipalities Liability for Damage Act 1988\n\n34.  Section 1(1) of the State and Municipalities Liability for Damage Act 1988 provides that the State is liable for damage suffered by individuals or legal entities as a result of unlawful decisions, actions or omissions by State or municipal authorities or civil servants, committed in the course of or in connection with administrative action. By section 1(2) of the Act and Article 203 § 1 of the Code of Administrative Procedure of 2006, in force since March 2007, such claims fall to be examined by the administrative courts. Before that, they were within the jurisdiction of the civil courts.\n\n35.  Section 2(1) of the Act provides for liability of the investigating and prosecuting authorities and the courts in several specific types of situation: unlawful detention; the bringing of charges, if the accused is acquitted or the proceedings are discontinued on certain grounds; conviction and sentencing, if the conviction is later set aside; coercive medical treatment or coercive measures imposed by a court, if the decision is later quashed as being unlawful; the serving of a sentence beyond its prescribed duration; and the unlawful use of special means of surveillance. In 2012 the list was expanded to include any deprivation of liberty contrary to Article 5 § 1 of the Convention, and any breach of paragraphs 2 to 4 of that Article. By section 2(3), such claims fall to be examined by the civil courts.\n\n36.  In an interpretative decision of 22 April 2005 (тълк. реш. № 3 от 22.04.2005 г. по тълк. гр. д. № 3/2004 г., ВКС, ОСГК), the Supreme Court of Cassation held, inter alia, that the administrative authorities could not incur liability under those provisions for actions taken by them under orders of the investigating or prosecuting authorities. The investigating and prosecuting authorities could not be held liable in respect of such actions or orders either, unless they fell within one of the types of situation exhaustively set out in section 2(1).\n\n37.  However, on 10 February 2014 the Supreme Administrative Court held, contrary to a judgment that it had given on this point in 2010 (реш. № 13496 от 11.11.2010 г. по адм. д. № 3090/2010 г., ВАС, III о.), that the brutal way in which the police had rushed into a person’s home, handcuffed him, even though he had not put up resistance, taken him out in the street in his underpants, woken up his wife and children, and searched the premises in an aggressive manner, were “administrative action” within the meaning of section 1(1), even though the search had taken place in a criminal case. The court noted that it was not deciding whether the search had been duly ordered, but simply whether the police had acted lawfully in carrying it out (see реш. № 1841 от 10.02.2014 г. по адм. д. № 13445/ 2012 г., ВАС, III о.). On remittal, in February 2015 the Pernik Administrative Court found, by reference to, inter alia, Article 3 of the Convention, that the actions of the police in the case before it had been unlawful within the meaning of section 1(1), and awarded the claimant 5,000 Bulgarian levs (BGN) (EUR 2,556) in non-pecuniary damages (see реш. № 44 от 19.02.2015 г. по адм. д. № 127/2014 г., АС-Перник). In July 2016 the Supreme Administrative Court upheld that ruling, but increased the quantum of the award to BGN 10,000 (EUR 5,113) (see реш. № 8948 от 18.07.2016 г. по адм. д. № 7569/2015 г., ВАС, III о.).\n\n37.  However, on 10 February 2014 the Supreme Administrative Court held, contrary to a judgment that it had given on this point in 2010 (реш. № 13496 от 11.11.2010 г. по адм. д. № 3090/2010 г., ВАС, III о.), that the brutal way in which the police had rushed into a person’s home, handcuffed him, even though he had not put up resistance, taken him out in the street in his underpants, woken up his wife and children, and searched the premises in an aggressive manner, were “administrative action” within the meaning of section 1(1), even though the search had taken place in a criminal case. The court noted that it was not deciding whether the search had been duly ordered, but simply whether the police had acted lawfully in carrying it out (see реш. № 1841 от 10.02.2014 г. по адм. д. № 13445/ 2012 г., ВАС, III о.). On remittal, in February 2015 the Pernik Administrative Court found, by reference to, inter alia, Article 3 of the Convention, that the actions of the police in the case before it had been unlawful within the meaning of section 1(1), and awarded the claimant 5,000 Bulgarian levs (BGN) (EUR 2,556) in non-pecuniary damages (see реш. № 44 от 19.02.2015 г. по адм. д. № 127/2014 г., АС-Перник). In July 2016 the Supreme Administrative Court upheld that ruling, but increased the quantum of the award to BGN 10,000 (EUR 5,113) (see реш. № 8948 от 18.07.2016 г. по адм. д. № 7569/2015 г., ВАС, III о.).\n\n38.  In the wake of that judgment, two lower administrative courts gave conflicting rulings on the point resolved by the Supreme Administrative Court. In April 2016 (see реш. № 673 от 08.04.2016 г. по адм. д. № 1517/2015 г., АС-Бургас) the Burgas Administrative Court found the police liable under section 1(1) for the way in which they had conducted a search, whereas in July 2016 (see реш. № 270 от 11.07.2016 г. по адм. д. № 434/2015 г., АС-Перник) the Pernik Administrative Court held that the police could not be liable under that provision as they did not engage in “administrative action” when conducting a search in a criminal case. Neither of those judgments appears to be final.\n\n39.  In February 2013 (see реш. № 2363 от 19.02.2013 г. по адм. д. № 4187/2012 г., ВАС, III о.) the Supreme Administrative Court held that when the police arrest a person and place him or her in police detention they engage in “administrative action”. On that basis, it awarded BGN 2,000 (EUR 1,023) to a person treated roughly by the police in the course of her arrest and subsequent four-hour police detention, even though it made no award in respect of the detention as such, because the detention order had not been quashed in earlier proceedings.\n\n40.  In April 2013 the Supreme Administrative Court held that by needlessly handcuffing in public a person placed under police detention the police had caused damage which could be indemnified under section 1(1) (see реш. № 16059 от 12.04.2013 г. по адм. д. № 15439/ 2012 г., ВАС, III о.). Similarly, in October and December 2013 that court upheld awards of damages to persons who had been unnecessarily handcuffed while in police detention (see реш. № 13685 от 21.10.2013 г. по адм. д. № 13778/2012 г., ВАС, III о., and реш. № 16059 от 04.12.2013 г. по адм. д. № 15439/2012 г., ВАС, III о.).\n\n41.  However, in May 2014 (see реш. № 6728 от 20.05.2014 г. по адм. д. № 15766/2013 г., ВАС, III о.), the Supreme Administrative Court held that the arrest of a witness who was later charged and became an accused was not “administrative action”, because the police officer who had arrested her had done so in his capacity as a criminal investigating authority and in the exercise of powers under the Code of Criminal Procedure.\n\n41.  However, in May 2014 (see реш. № 6728 от 20.05.2014 г. по адм. д. № 15766/2013 г., ВАС, III о.), the Supreme Administrative Court held that the arrest of a witness who was later charged and became an accused was not “administrative action”, because the police officer who had arrested her had done so in his capacity as a criminal investigating authority and in the exercise of powers under the Code of Criminal Procedure.\n\n42.  In 2013 (see опр. № 11 от 13.02.2013 г. по адм. д. № 93/2012 г., ВКС и ВАС, см. петчл. с-в) a joint five-member panel of the Supreme Court of Cassation and the Supreme Administrative Court – the formation which resolves conflicts of jurisdiction between the civil and the administrative courts – held that when retaining items seized in a criminal case the police did not engage in “administrative action”, and that a claim for damages relating to such retention was to be heard by the civil rather than the administrative courts.\n\n2.  Under the Obligations and Contracts Act 1951\n\n43.  The general law of torts is set out in sections 45 to 54 of the Obligations and Contracts Act 1951. By section 45(1), everyone is obliged to make good the damage which he or she has, through his or her fault, caused to another. By section 49, a person who has entrusted another with a job is liable for the damage caused by that other person in the course of or in connection with the job. Legal entities cannot be liable under section 45(1), but can be vicariously liable under section 49 for the tortious conduct of individuals whom they employ (see пост. № 7 от 30 декември 1959 г., ВС, Пл.). Liability under those provisions is premised on the wrongfulness of the impugned conduct (see реш. № 567 от 24.11.1997 г. по гр. д. № 775/1996 г., ВС, петчл. с-в).\n\n44.  In August 2011 the Sofia Court of Appeal dismissed claims under section 49 against a criminal court and the prosecuting authorities in relation to a search and seizure. It held, inter alia, that a civil court could not examine whether a criminal court had duly authorised a search and seizure, or whether the actions of the prosecuting authorities in a criminal case were wrongful (see реш. № 1478 от 12.08.2011 г. по в. гр. д. № 1330/2011 г., САС). The Supreme Court of Cassation refused to examine an appeal on points of law against that judgment (see опр. № 640 от 30.05.2012 г. по гр. д. № 1728/2011 г., ВКС, IV г. о.).\n\n45.  In June 2012 the Supreme Court of Cassation dismissed claims under section 49 against the police and the prosecuting authorities in relation to the seizure of records in a notary’s office in a criminal case. It held that the seizure, having been duly ordered in criminal proceedings, had been necessary. It was therefore not wrongful (see реш. № 222 от 05.06.2012 г. по гр. д. № 967/2011 г., ВКС, IV г. о.).\n\n46.  By contrast, in December 2011 the Supreme Court of Cassation allowed a claim under section 49 in relation to the excessively lengthy retention of a motor car seized in a criminal case. It held that the retention of seized items beyond the time-limits for completing a criminal investigation was wrongful (see реш. № 465 от 20.12.2011 г. по гр. д. № 1794/2010 г., ВКС, IV г. о.).\n\nIII.  RELEVANT COUNCIL OF EUROPE MATERIALS\n\n47.  In an action plan submitted to the Committee of Ministers in April 2015 in connection with the execution of the Court’s judgments in Peev v. Bulgaria (no. 64209/01, 26 July 2007) and Iliya Stefanov v. Bulgaria (no. 65755/01, 22 May 2008), the Government acknowledged that, to comply with those judgments, Bulgaria had to put in place a “procedure whereby a person c[ould] contest [a] search and seizure, air his or her grievances related to the repercussions on the right to respect for private life ... and have the possibility to obtain redress”. The measures being considered included a change in the courts’ case-law or amendments to the 1988 Act (see paragraphs 34 and 35 above).\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION\n\n48.  The applicants complained that the police had searched their house and had arrested the first applicant in a needlessly brutal and public manner, and had then, again needlessly, kept his hands handcuffed behind his back for nearly all the time he was in detention at the police station. They relied on Article 3 of the Convention, which provides:\n\n“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”\n\nA.  The parties’ submissions\n\n49.  The Government submitted that the applicants had not exhausted domestic remedies. They had not attempted to trigger criminal or disciplinary proceedings against the police officers who had taken part in the searches, or brought a claim for damages under section 1(1) of the 1988 Act. In view of the recent case-law of the Supreme Administrative Court in such cases, which pre-dated the searches of the applicants’ house and the photography studio and the first applicant’s arrest, such a claim had to be seen as an effective remedy. The applicants had also not brought a claim for damages under section 49 of the 1951 Act.\n\n50.  The applicants submitted that any attempt to seek the imposition of criminal or disciplinary sanctions on the police officers who had carried out the searches and seizures and arrested the first applicant would have failed. Internal police investigations were normally entrusted to colleagues of those involved, and were hence not effective and impartial. They were usually not duly carried out and often amounted to a whitewash rather than a serious attempt to uncover misconduct. A complaint to the prosecuting authorities would not have led to serious investigative efforts either. Those authorities clearly knew about the incident, and yet had not investigated it. A claim under section 1(1) of the 1988 Act would have been bound to fail, as under the prevailing case-law of the Bulgarian courts, including the Supreme Court of Cassation’s 2005 interpretative decision (cited in paragraph 36 above), the actions of the police in a criminal case were not “administrative” within the meaning of that provision. Unlike in the other cases (cited in paragraph 40 above), here the police had acted on orders by the prosecuting authorities in a pending criminal case. The February 2014 judgment of the Supreme Administrative Court (cited in paragraph 37 above) had been an isolated precedent rather than settled case-law, and ran against the Supreme Court of Cassation’s interpretative decision, which was binding on all courts. Moreover, it had not resulted in a final award by the time the application had been lodged. Lastly, it had assessed the conduct of the police under the domestic rules governing searches rather than by reference to Article 3 of the Convention.\n\nB.  The Court’s assessment\n\n51.  On the basis of the Supreme Court of Cassation’s 2005 interpretative decision cited in paragraph 36 above, in Gutsanovi v. Bulgaria (no. 34529/10, § 94, ECHR 2013 (extracts)) the Court found that a claim for damages under section 1(1) of the 1988 Act (see paragraph 34 above) with respect to rough treatment by the police in carrying out a search and arrest in a criminal case, would have been bound to fail. The Court accordingly rejected the Government’s objection of non-exhaustion of domestic remedies.\n\n51.  On the basis of the Supreme Court of Cassation’s 2005 interpretative decision cited in paragraph 36 above, in Gutsanovi v. Bulgaria (no. 34529/10, § 94, ECHR 2013 (extracts)) the Court found that a claim for damages under section 1(1) of the 1988 Act (see paragraph 34 above) with respect to rough treatment by the police in carrying out a search and arrest in a criminal case, would have been bound to fail. The Court accordingly rejected the Government’s objection of non-exhaustion of domestic remedies.\n\n52.  In three more recent judgments, which likewise concerned heavyhanded searches and arrests, the Court also rejected similar objections by the Government. It noted that the purported change in the Supreme Administrative Court’s case-law under section 1(1) of the 1988 Act in relation to such matters had taken place after the searches or arrests at issue and after the lodging of the applications, whereas the availability of an effective domestic remedy had to be assessed by reference to the time when the application had been lodged (see Slavov and Others v. Bulgaria, no. 58500/10, § 55, 10 November 2015; Govedarski v. Bulgaria, no. 34957/12, § 38, 16 February 2016; and Alexey Petrov v. Bulgaria, no. 30336/10, § 41, 31 March 2016).\n\n53.  By contrast, here the searches and the first applicant’s arrest took place a little over a month after the Supreme Administrative Court’s February 2014 judgment that the police could be liable in damages under section 1(1) of the 1988 Act for the way in which they carry out a search and a related arrest in a criminal case (see paragraphs 12 and 37 above). The applicants lodged their application a little more than seven months after that judgment (see paragraph 1 above). By that time, they could have known of the judgment, which was available on the Supreme Administrative Court’s website and in various commercial legal databases (see, among other authorities, Broca and Texier-Micault v. France, nos. 27928/02 and 31694/02, § 20, 21 October 2003; Scordino v. Italy (no. 1) [GC], no. 36813/97, § 147, ECHR 2006-V; and Valada Matos das Neves v. Portugal, no. 73798/13, §§ 104-06, 29 October 2015).\n\n53.  By contrast, here the searches and the first applicant’s arrest took place a little over a month after the Supreme Administrative Court’s February 2014 judgment that the police could be liable in damages under section 1(1) of the 1988 Act for the way in which they carry out a search and a related arrest in a criminal case (see paragraphs 12 and 37 above). The applicants lodged their application a little more than seven months after that judgment (see paragraph 1 above). By that time, they could have known of the judgment, which was available on the Supreme Administrative Court’s website and in various commercial legal databases (see, among other authorities, Broca and Texier-Micault v. France, nos. 27928/02 and 31694/02, § 20, 21 October 2003; Scordino v. Italy (no. 1) [GC], no. 36813/97, § 147, ECHR 2006-V; and Valada Matos das Neves v. Portugal, no. 73798/13, §§ 104-06, 29 October 2015).\n\n54.  It was thus at least reasonably probable that a claim for damages under section 1(1) of the 1988 Act in relation to the manner in which the police carried out the searches and treated the first applicant in the course of his arrest and subsequent stay in the police station would have succeeded. The existence of an adverse ruling in a somewhat similar case (see paragraph 41 above) does not mean that the applicants should not have attempted such proceedings. Doubts about the prospects of a remedy which appears to offer a reasonable possibility of redress are not a sufficient reason to eschew it (see, among other authorities, Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 74 and 84 in fine, 25 March 2014; Avotiņš v. Latvia [GC], no. 17502/07, § 122, ECHR 2016; and Brusco v. Italy (dec.), no. 69789/01, ECHR 2001-IX). One such situation is when the domestic courts have given conflicting rulings (see Whiteside v. the United Kingdom, no. 20357/92, Commission decision of 7 March 1994, Decisions and Reports 76-A, p. 80), as opposed to a consistent line of adverse precedents (see, among other authorities, Open Door and Dublin Well Woman v. Ireland, 29 October 1992, § 50, Series A no. 246-A; Keegan v. Ireland, 26 May 1994, § 39, Series A no. 290; and Colon v. the Netherlands (dec.), no. 49458/06, § 56, 15 May 2012).\n\n55.  There is no reason to suspect that the Bulgarian courts would not examine such a claim by reference to Article 3 of the Convention. They did so in the case which gave rise to the February 2014 judgment (see paragraph 37 above). It can reasonably be expected that they would do so in a similar case, especially considering that the Convention is part of Bulgarian domestic law (see Neshkov and Others v. Bulgaria, nos. 36925/10, 21487/12, 72893/12, 73196/12, 77718/12 and 9717/13, §§ 95-97, 27 January 2015).\n\n55.  There is no reason to suspect that the Bulgarian courts would not examine such a claim by reference to Article 3 of the Convention. They did so in the case which gave rise to the February 2014 judgment (see paragraph 37 above). It can reasonably be expected that they would do so in a similar case, especially considering that the Convention is part of Bulgarian domestic law (see Neshkov and Others v. Bulgaria, nos. 36925/10, 21487/12, 72893/12, 73196/12, 77718/12 and 9717/13, §§ 95-97, 27 January 2015).\n\n56.  In view of that conclusion, there is no need to examine whether criminal or disciplinary proceedings against the police officers who carried out the searches and the first applicant’s arrest would, in themselves, also have been effective domestic remedies. It should only be noted that such proceedings – which the applicants did not attempt to trigger at any point –could have enabled the establishment of the facts and thus facilitated the use of the above-mentioned civil-law remedy, even if they had not resulted in individual criminal or disciplinary liability (see, mutatis mutandis, Golovan v. Ukraine, no. 41716/06, §§ 74 and 79, 5 July 2012). Nor is it necessary to decide whether a claim for damages under section 49 of the 1951 Act (see paragraphs 43-45 above) would have stood a chance of success.\n\n57.  The complaint must therefore be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.\n\nII.  ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION\n\n58.  The applicants complained that the searches in their house and the photography studio had not been duly circumscribed by the search warrants which had authorised them, had encompassed many items – such as mobile telephones, computers, flash memory drives and memory cards, and later even the first applicant’s email account – which contained personal data, and had been carried out chaotically. They relied on Article 8 of the Convention, which provides:\n\n“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.\n\n2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”\n\nA.  The parties’ submissions\n\n59.  The Government submitted that the searches had been lawful. Unlike in some earlier cases against Bulgaria, they had been authorised beforehand in well-reasoned judicial decisions. The searches had also been necessary. They had taken place in the investigation of cross-border criminal conduct, and been based on a reasonable suspicion of the first and second applicants’ involvement in the forging of identity documents. The searches had been limited to items which might have been used to commit this offence and items which could have shown a link between the first and second applicants and the main suspect, the Turkish national arrested in France. All seized items later deemed irrelevant had been quickly given back to the applicants. The applicants had not complained to the authorities, either during the search or later, that some of the items contained personal information.\n\n60.  As for the search of the first applicant’s email account, he had freely provided his password. There was, moreover, no evidence that he had objected to the search at the time when it had been carried out or later. Lastly, no email messages had been seized.\n\n61.  The applicants submitted that the prior judicial authorisation of the searches had not sufficiently protected them against arbitrariness. The applications by the prosecuting authorities had not borne legible dates or document numbers, and the search warrants had not had document numbers, which raised the suspicion that they had been drawn up later, for the purposes of these proceedings. Moreover, the court’s reasoning had been brief and formulaic. Also, some of the information serving as a basis for the warrants had been obtained by covert surveillance, whereas in Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria (no. 62540/00, 28 June 2007), this Court had found that Bulgarian law did not lay down enough safeguards against the improper use of such surveillance. The interference with the applicants’ rights had therefore been unlawful and disproportionate.\n\n62.  The applicants went on to submit that while the police had not directly ordered the first applicant to provide the password for his email account, he had done so after having been arrested and mistreated, which had caused him to feel vulnerable and had pressured him into complying with the informal urging of the police to do so. The fact that the authorities had not seized any email messages did not mean that they had not searched the account.\n\nB.  The Court’s assessment\n\n1.  Scope of the complaint\n\n63.  In their application, the applicants only complained of the searches of their house and the photography studio, and of the search of the first applicant’s email account (see paragraph 58 above). The Court will accordingly only examine those matters, even though in the course of their operation the police also searched the first applicant himself and his car.\n\n2.  The searches of the applicants’ house and the photography studio\n\n64.  This complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on other grounds. It must therefore be declared admissible.\n\n65.  A search of residential and business premises entailing, as here, the seizure of equipment containing electronic data, is an interference with the “private life”, “home” and “correspondence” of those concerned (see Niemietz v. Germany, 16 December 1992, §§ 29-31, Series A no. 251-B; Buck v. Germany, no. 41604/98, §§ 31-32, ECHR 2005-IV; and Heino v. Finland, no. 56720/09, § 33, 15 February 2011, as regards searches in business premises; Smirnov v. Russia, no. 71362/01, § 36, 7 June 2007, as regards the seizure of equipment containing electronic data from a person’s home; and Sallinen and Others v. Finland, no. 50882/99, § 71, 27 September 2005; Wieser and Bicos Beteiligungen GmbH v. Austria, no. 74336/01, § 45, ECHR 2007-IV; and Prezhdarovi v. Bulgaria, no. 8429/05, § 41, 30 September 2014, as regards the seizure of equipment containing electronic data from business premises).\n\n.  Such interference is in breach of Article 8 of the Convention unless it was “in accordance with the law”, pursued a legitimate aim as defined in the second paragraph of that Article, and was “necessary in a democratic society” to achieve that aim.\n\n.  Such interference is in breach of Article 8 of the Convention unless it was “in accordance with the law”, pursued a legitimate aim as defined in the second paragraph of that Article, and was “necessary in a democratic society” to achieve that aim.\n\n67.  The searches and seizures in the applicants’ house and the photography studio were based on the relevant provisions of the Code of Criminal Procedure of 2005, and were based on judicial warrants (see paragraphs 11 and 26-31 above). It can thus be accepted that the interference was “in accordance with the law”. The question whether the way in which the police carried out the searches was duly circumscribed by the warrants which authorised them will be examined from the perspective of the necessity of the interference (see Robathin v. Austria, no. 30457/06, § 41 in fine, 3 July 2012, and Bagiyeva v. Ukraine, no. 41085/05, § 48, 28 April 2016).\n\n68.  Since the searches and seizures took place in the course of an investigation into the suspected forgery of documents, they served a legitimate aim under Article 8 § 2 of the Convention: the prevention of crime.\n\n.  Whether the interference was “necessary in a democratic society” turns on whether domestic law laid down effective safeguards against abuse or arbitrariness, and on whether those safeguards operated properly in practice (see Vinci Construction and GTM Génie Civil et Services v. France, nos. 63629/10 and 60567/10, § 66, 2 April 2015, with further references).\n\n.  The situation here differed from those in Gutsanovi (cited above, § 221), Slavov and Others (cited above, § 145), Govedarski (cited above, § 82), and Prezhdarovi (cited above, §§ 45-46), in all of which the searches had not been authorised beforehand by a judge. But the fact that a search is based on a warrant issued by a judge does not necessarily amount to a sufficient safeguard. It also matters whether that prior judicial scrutiny was properly carried out (see Vinci Construction and GTM Génie Civil et Services, cited above, § 79): whether the judge duly examined the existence of a reasonable suspicion justifying the search, drawing up the search warrant in a way to keep its impact within reasonable bounds (see Iliya Stefanov, cited above, §§ 39-41, as well as Ernst and Others v. Belgium, no. 33400/96, § 116, 15 July 2003; Van Rossem v. Belgium, no. 41872/98, §§ 45-48, 9 December 2004; Robathin, cited above, §§ 45-47; and Bagiyeva, cited above, § 52), and sought to satisfy herself that a search in the place in respect of which a warrant was sought could yield relevant evidence (see, mutatis mutandis, Keegan v. the United Kingdom, no. 28867/03, §§ 32-35, ECHR 2006-X, and Smirnov, cited above, § 47).\n\n.  The situation here differed from those in Gutsanovi (cited above, § 221), Slavov and Others (cited above, § 145), Govedarski (cited above, § 82), and Prezhdarovi (cited above, §§ 45-46), in all of which the searches had not been authorised beforehand by a judge. But the fact that a search is based on a warrant issued by a judge does not necessarily amount to a sufficient safeguard. It also matters whether that prior judicial scrutiny was properly carried out (see Vinci Construction and GTM Génie Civil et Services, cited above, § 79): whether the judge duly examined the existence of a reasonable suspicion justifying the search, drawing up the search warrant in a way to keep its impact within reasonable bounds (see Iliya Stefanov, cited above, §§ 39-41, as well as Ernst and Others v. Belgium, no. 33400/96, § 116, 15 July 2003; Van Rossem v. Belgium, no. 41872/98, §§ 45-48, 9 December 2004; Robathin, cited above, §§ 45-47; and Bagiyeva, cited above, § 52), and sought to satisfy herself that a search in the place in respect of which a warrant was sought could yield relevant evidence (see, mutatis mutandis, Keegan v. the United Kingdom, no. 28867/03, §§ 32-35, ECHR 2006-X, and Smirnov, cited above, § 47).\n\n71.  It can be accepted that the searches of the applicants’ house and photography studio were based on a reasonable suspicion. The applications by the prosecuting authorities chiefly referred to information from the French authorities that the first applicant had links with a Turkish national suspected of trafficking in forged Bulgarian identity documents, and also referred to intelligence obtained via a wiretap of that person’s mobile telephone (see paragraphs 7, 8 and 10 above). Contrary to the applicants’ arguments, the use of wiretap information does not in itself cast doubt on the existence of a reasonable suspicion. It is true that in Association for European Integration and Human Rights and Ekimdzhiev (cited above, §§ 85-86) the Court found, inter alia, that Bulgarian law, as it stood in 2007, did not contain enough safeguards that the authorities deploying covert surveillance measures, such as wiretaps, would faithfully reproduce the original data in the written record, or lay down proper procedures for preserving the integrity of such data. But, in the wake of that judgment, in 2008 the statute governing covert surveillance was amended in 2008 to bring it into line with the requirements of the Convention (see Lenev v. Bulgaria, no. 41452/07, § 80, 4 December 2012). The Court’s findings in Association for European Integration and Human Rights and Ekimdzhiev (cited above) are therefore of no relevance for the wiretap in this case, which was put in place in 2014. Moreover, the wiretap information was only part of the material used to justify the need for the searches (contrast, mutatis mutandis, C.G. and Others v. Bulgaria, no. 1365/07, §§ 14 and 47-48, 24 April 2008).\n\n71.  It can be accepted that the searches of the applicants’ house and photography studio were based on a reasonable suspicion. The applications by the prosecuting authorities chiefly referred to information from the French authorities that the first applicant had links with a Turkish national suspected of trafficking in forged Bulgarian identity documents, and also referred to intelligence obtained via a wiretap of that person’s mobile telephone (see paragraphs 7, 8 and 10 above). Contrary to the applicants’ arguments, the use of wiretap information does not in itself cast doubt on the existence of a reasonable suspicion. It is true that in Association for European Integration and Human Rights and Ekimdzhiev (cited above, §§ 85-86) the Court found, inter alia, that Bulgarian law, as it stood in 2007, did not contain enough safeguards that the authorities deploying covert surveillance measures, such as wiretaps, would faithfully reproduce the original data in the written record, or lay down proper procedures for preserving the integrity of such data. But, in the wake of that judgment, in 2008 the statute governing covert surveillance was amended in 2008 to bring it into line with the requirements of the Convention (see Lenev v. Bulgaria, no. 41452/07, § 80, 4 December 2012). The Court’s findings in Association for European Integration and Human Rights and Ekimdzhiev (cited above) are therefore of no relevance for the wiretap in this case, which was put in place in 2014. Moreover, the wiretap information was only part of the material used to justify the need for the searches (contrast, mutatis mutandis, C.G. and Others v. Bulgaria, no. 1365/07, §§ 14 and 47-48, 24 April 2008).\n\n72.  The warrants were couched in relatively broad terms. Although limiting the searches to specific premises, they did not describe in detail the items which could be searched for and seized, but instead referred in more general terms to the type of items “relating to the forging of identity documents and others, relevant to the case” (see paragraphs 10 and 11 above), that is, objects which might be used to perform the activities which were the subject of the offence under investigation. The specificity of the items subject to seizure varies from case to case depending on the nature of the offence being investigated (see Sher and Others v. the United Kingdom, no. 5201/11, § 174, ECHR 2015 (extracts)). In this case, the prosecuting authorities and the police, which had to act quickly after the arrest of the first applicant’s alleged accomplice in France (see paragraph 9 above), could not have known in advance what specific items could furnish proof of the forging of identity documents of which the first applicant was a suspect. Although it might have been feasible to frame the warrants in more precise terms, it was sufficient, in the circumstances, that their scope was limited by reference to the nature of the alleged offence, thus circumscribing sufficiently the discretion of the officers who carried out the searches, who only seized items which could be seen as potentially connected with the alleged offence (see paragraphs 14 and 15 above).\n\n73.  It is true that, as recognised by the Government, Bulgarian law did not lay down a procedure whereby the applicants could challenge the searches after they had taken place (see paragraph 47 above). But, since prior judicial control of the searches was available, the absence of such a procedure did not in itself render them disproportionate. In any event, this point is more appropriately dealt with under Article 13 of the Convention (see paragraphs 84-86 below).\n\n74.  There has therefore been no breach of Article 8 of the Convention.\n\n3.  The search of the first applicant’s email account\n\n75.  Email is “correspondence” within the meaning of Article 8 § 1 of the Convention (see Copland v. the United Kingdom, no. 62617/00, § 41, ECHR 2007-I, and M.N. and Others v. San Marino, no. 28005/12, § 52, 7 July 2015). But the search of the first applicant’s email account was not an interference with his rights under this provision. The police were only able to go through the account because the first applicant gave them his password and invited them to do so (see paragraph 18 above). There is no evidence that he did so under overt or implied coercion: that he was made to understand that he had no choice but to allow the police to access the account (contrast, mutatis mutandis, Kučera v. Slovakia, no. 48666/99, § 119, 17 July 2007, and Rachwalski and Ferenc v. Poland, no. 47709/99, § 72, 28 July 2009), or that they would do so anyway (contrast, mutatis mutandis, Saint-Paul Luxembourg S.A. v. Luxembourg, no. 26419/10, § 38, 18 April 2013). The fact that the first applicant had been taken to the police station in handcuffs and was in custody does not in itself alter that conclusion.\n\n76.  It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.\n\nIII.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION\n\n77.  The applicants complained that they did not have an effective domestic remedy in respect of the alleged breaches of Articles 3 and 8 of the Convention. They relied on Article 13 of the Convention, which provides:\n\n“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”\n\nA.  The parties’ submissions\n\n78.  The Government submitted that the complaints under Articles 3 and 8 of the Convention were not arguable, and that Article 13 did not therefore apply. In the alternative, they argued that the applicants had had an effective remedy in respect of the searches and seizures in the form of disciplinary proceedings against the police officers who had carried them out and a claim for damages under section 1(1) of the 1988 Act or section 49 of the 1951 Act. The applicants had not pursued any of those remedies, but it was still open to them to do so.\n\n79.  The applicants referred to their submissions on the exhaustion of domestic remedies with respect to the complaint under Article 3 of the Convention (see paragraph 50 above). They also pointed out that the prosecuting authorities and the Ministry of Internal Affairs had not opened disciplinary proceedings against the police officers who had carried out the searches, even after becoming aware of the applicants’ complaints before the Court.\n\nB.  The Court’s assessment\n\n1.  Article 13 of the Convention in conjunction with Article 3\n\n80.  In paragraphs 51-55 above, the Court found that the applicants had at their disposal a remedy which offered a reasonable chance of success with respect to their complaint under Article 3 of the Convention. In view of the close affinities between Articles 13 and 35 § 1 of the Convention, that finding is equally valid in the context of this complaint (see Slimani v. France, no. 57671/00, § 42, ECHR 2004-IX (extracts), and Dimitrovi v. Bulgaria (dec.), no. 25776/05, § 70, 17 December 2013). To be effective within the meaning of Article 13, a remedy does not need to guarantee a favourable outcome (see Soering v. the United Kingdom, 7 July 1989, § 122, Series A no. 161; Vilvarajah and Others v. the United Kingdom, 30 October 1991, § 122, Series A no. 215; and, more recently, Nationaldemokratische Partei Deutschlands v. Germany (dec.), no. 55977/13, § 23, 4 October 2016).\n\n81.  It follows that the complaint under Article 13 of the Convention in conjunction with Article 3 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.\n\n2.  Article 13 of the Convention in conjunction with Article 8\n\n82.  The complaint Article 8 of the Convention about the search of the first applicant’s email account was declared manifestly ill-founded because the search was not an interference with his rights under this provision (see paragraphs 75 and 76 above). It follows that the first applicant did not have an arguable claim in this regard, and that this part of the complaint under Article 13 of the Convention is inadmissible (see Iliya Stefanov, cited above, §§ 61-62).\n\n82.  The complaint Article 8 of the Convention about the search of the first applicant’s email account was declared manifestly ill-founded because the search was not an interference with his rights under this provision (see paragraphs 75 and 76 above). It follows that the first applicant did not have an arguable claim in this regard, and that this part of the complaint under Article 13 of the Convention is inadmissible (see Iliya Stefanov, cited above, §§ 61-62).\n\n83.  By contrast, although the Court found no breach of Article 8 of the Convention in relation to the searches of the applicants’ house and the photography studio (see paragraphs 70-74 above), the claim that those searches were not necessary in a democratic society can be regarded as arguable. This part of the complaint under Article 13 of the Convention is therefore admissible, and it must be seen whether the applicants had an effective remedy in respect of the searches.\n\n84.  The possibility to seek disciplinary proceedings against the police officers who carried out the searches was not such a remedy (see, mutatis mutandis, Van Droogenbroeck v. Belgium, 24 June 1982, § 51, Series A no. 50). The notion of an effective remedy in this context does not entail the imposing of sanctions on the officials who carried out the searches (see Peev, § 70, and Golovan, § 72, both cited above). It must rather be seen whether the applicants had access to a procedure enabling them to contest the lawfulness of the searches and seizures and obtain appropriate redress if they were unlawfully ordered or executed.\n\n85.  In Iliya Stefanov (cited above, § 59), the Court found that neither the Code of Criminal Procedure of 1974 nor any other provision of Bulgarian law laid down such a procedure. In Gutsanovi (cited above, §§ 234-35), Govedarski (cited above, § 94), Stoyanov and Others v. Bulgaria (no. 55388/10, § 152, 31 March 2016) and Popovi v. Bulgaria (no. 39651/11, § 122, 9 June 2016), the Court found the same with respect to the Code of Criminal Procedure of 2005. Although the Government appear to be considering steps to fill this gap (see paragraphs 47 and 73 above), it continues to exist. The February 2014 judgment of the Supreme Administrative Court that the police may be liable under section 1(1) of the 1988 Act with respect to heavy-handedness in searches (see paragraph 37 above) only partly fills it, as in such proceedings it is not possible to challenge a search as such, or the way in which it has been ordered or authorised. For their part, the civil courts appear reluctant to review the lawfulness of decisions by the prosecuting authorities and criminal courts to order and authorise searches and seizures in criminal proceedings (compare with Saint-Paul Luxembourg S.A., cited above, § 31). They have only imposed liability in damages for the unduly prolonged retention of seized items (see paragraphs 44-46 above).\n\n86.  Thus, as things stood in March 2014 and still stand today, under Bulgarian law it is not possible to challenge a search or a seizure as such (contrast Chappell v. the United Kingdom, 30 March 1989, §§ 21-23, Series A no. 152-A (search in civil proceedings); Buck, cited above, §§ 20 and 46 (search in proceedings relating to a regulatory offence); Keegan v. the United Kingdom, §§ 14-20; Smirnov, §§ 30 and 45 in fine; Robathin, §§ 12 and 50; and Sher and Others, §§ 85-86, 109-12 and 175, all cited above (searches in criminal proceedings); and Société Canal Plus and Others v. France, no. 29408/08, §§ 22-23, 21 December 2010 (search in proceedings conducted by the competition authorities)).\n\n87.  There has therefore been a breach of Article 13 of the Convention.\n\nIV.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION\n\n88.  The applicants complained that under Bulgarian law it was not open to them to bring judicial proceedings to challenge the searches and seizures and obtain damages in relation to them. They relied on Article 6 § 1 of the Convention, which provides, in so far as relevant:\n\n“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing ... by [a] tribunal ...”\n\n89.  The Government submitted that recent case-law showed that the Bulgarian courts examined claims for damages relating to searches, seizures and the retention of seized material. It was also possible to seek judicial review of the prosecuting authorities’ refusal to give back retained items. The applicants had not attempted to use either of those procedures.\n\n90.  The applicants referred to their submissions on the exhaustion of domestic remedies with respect to their complaint under Article 3 of the Convention (see paragraph 50 above).\n\n91.  The complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on other grounds. It must therefore be declared admissible.\n\n92.  But, in view of the findings under Article 13 of the Convention (see paragraphs 85 and 86 above), it is not necessary to examine the merits of this complaint.\n\nV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n93.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n94.  The applicants claimed 10,000 euros (EUR) each in respect of the alleged breaches of their rights under Article 3, Article 6 § 1, Article 8 and Article 13 of the Convention.\n\n95.  The Government left it to the Court to determine the appropriate amount of just satisfaction.\n\n95.  The Government left it to the Court to determine the appropriate amount of just satisfaction.\n\n96.  In this case, an award of just satisfaction can only be based on the breach of Article 13 of the Convention. Ruling on an equitable basis, as required under Article 41 of the Convention, and finding that it would be artificial to distinguish between the non-pecuniary damage suffered by each of the four applicants as a result of this matter, the Court awards them jointly EUR 1,500, plus any tax that may be chargeable.\n\nB.  Costs and expenses\n\n97.  The applicants sought reimbursement of EUR 4,440 incurred in lawyers’ fees for thirty-seven hours of work on the proceedings before the Court, at EUR 120 per hour. They said that they had already paid their legal representatives EUR 1,200 and remained liable for the remainder. The applicants further sought reimbursement of 103.20 Bulgarian levs (BGN) (EUR 52.77) which their legal representatives had spent for postage, EUR 25 which they had spent for office supplies, and EUR 10 which they had spent for photocopying. Lastly, they claimed EUR 159.08 spent on the translation of the observations and claims made on their behalf into French. They requested that any award under this head, except the EUR 1,200 which they had already paid their legal representatives, be made directly payable to their legal representatives’ firm, Ekimdzhiev and Partners. In support of their claim, the applicants submitted a fee agreement with their legal representatives, which said, inter alia, that the applicants had paid BGN 2,347 (EUR 1,200) up front; a time-sheet, which also said that the applicants had paid BGN 2,347 (EUR 1,200) up front; receipts showing that they had spent BGN 48.20 to post their original application; and a contract for translation services between their legal representatives and a translator.\n\n98.  The Government submitted that the claim in respect of lawyers’ fees was excessive, and that there was no evidence that the applicants had actually paid the EUR 1,200 to their lawyers.\n\n99.  According to the Court’s settled case-law, costs and expenses are recoverable under Article 41 of the Convention if it is established that they were actually and necessarily incurred and are reasonable as to quantum.\n\n99.  According to the Court’s settled case-law, costs and expenses are recoverable under Article 41 of the Convention if it is established that they were actually and necessarily incurred and are reasonable as to quantum.\n\n100.  In this case, part of the application was declared inadmissible, which calls for a certain reduction in the award of costs (see, among other authorities, Yordanova and Toshev v. Bulgaria, no. 5126/05, § 85, 2 October 2012). Also, the hourly rate charged by the applicants’ legal representatives is higher than those charged in recent cases against Bulgaria of similar or greater complexity (see Dimitrov and Others v. Bulgaria, no. 77938/11, § 185, 1 July 2014 (EUR 60 per hour); Myumyun v. Bulgaria, no. 67258/13, § 83, 3 November 2015 (EUR 100 per hour); and Ivanova and Cherkezov v. Bulgaria, no. 46577/15, § 86, 21 April 2016 (EUR 80 per hour)). It is therefore not reasonable as to quantum. Having regard to these points and the material in its possession, the Court awards the applicants EUR 2,000, plus any tax that may be chargeable to them, in respect of their legal costs. Since the fee agreement and the time-sheet specified that the applicants had paid their legal representatives the equivalent of EUR 1,200, that sum is to be paid to the applicants, and the remainder of the award, EUR 800, to their legal representatives’ firm, Ekimdzhiev and Partners. As regards the claim for other expenses, the applicants did not submit supporting documents other than a contract for translation services and postal receipts for documents sent to the Court. In those circumstances, the Court awards them EUR 200 in respect of those expenses. This sum is likewise to be paid to the firm of their legal representatives.\n\nC.  Default interest\n\n101.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT\n\n1.  Declares, unanimously, the complaints concerning (a) the interference with the applicants’ private life, home and correspondence resulting from the searches and seizures in their house and the photography studio, (b) the lack of an effective remedy in that respect, and (c) the lack of access to a court in that respect admissible and the remainder of the application inadmissible;\n\n2.  Holds, by five votes to two, that there has been no violation of Article 8 of the Convention with respect to the searches and seizures in the applicants’ house and the photography studio;\n\n3.  Holds, unanimously, that there has been a violation of Article 13 read in conjunction with Article 8 of the Convention owing to the lack of an effective remedy in respect of the searches in the applicants’ house and the photography studio;\n\n4.  Holds, unanimously, that there is no need to examine the complaint under Article 6 § 1 of the Convention;\n\n5.  Holds, unanimously,\n\n(a)  that the respondent State is to pay the applicants, jointly, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n6.  Dismisses, unanimously, the remainder of the applicants’ claim for just satisfaction.\n\nDone in English, and notified in writing on 19 January 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.\n\nIn accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Grozev and Ranzoni is annexed to this judgment.\n\nWhile we agree with all the other findings in the present judgment, we find ourselves unable to follow the majority with respect to its ruling on the applicants’ complaint of a violation of Article 8 as a result of the search of their home. We are of the view that the search warrant was not sufficiently precise in describing the items to be searched for and that this lack of specific description of the items to be seized was not counterbalanced by any subsequent safeguards.\n\nIn reviewing complaints of unlawful searches and seizures under Article 8 of the Convention, the Court has underlined the need for specificity in a search warrant. While the Court has never treated this as a stand-alone requirement but as one of the factors to be taken into consideration when deciding on the proportionality of the interference, it has still given it particular weight. According to the Court, a search warrant must be accompanied by certain limitations, in order to guarantee that the interference which it authorises is not potentially unlimited. The Court has held in this respect that the warrant itself must specify the items being searched for and that this cannot be supplemented by a description of those items in the application for a warrant made by the investigating or prosecuting authorities, unless that application is enclosed with the warrant when it is presented to the person whose premises are to be searched (see Van Rossem v. Belgium, no. 41872/98, § 47).\n\nThe purpose of such a requirement is quite obvious, namely to make it possible to verify subsequently whether the police officers who enforced it had complied with the scope of the authorised search (see Van Rossem, cited above). It is only where the person affected is informed of the items being searched for that he or she is able to check whether the search is being lawfully carried out and to react if it is not. For this reason, a subsequent review of the lawfulness of the search is also an element that the Court will take into account in assessing the lawfulness of the search warrant. A warrant that is too broad in scope can nonetheless be considered valid if there are other sufficient safeguards, including a procedure after the search in which the persons concerned can challenge it (see Robathin v. Austria, no. 30457/06, §§ 47 in fine and 48).\n\nThe sufficiency of the description of the items to be seized will certainly vary from case to case, depending on all the relevant circumstances, such as the place to be searched and the nature of the allegations (see Sher and Others v. the United Kingdom, no. 5201/11, § 174, ECHR 2015 (extracts)). If the case is a large-scale and complex terror investigation, with a significant number of uncertainties, a wide description could well be sufficient (ibid.). However, in a financial fraud investigation, a search warrant granted “in order to investigate and seize any documents that might assist in the investigation” has been found by the Court to be insufficiently precise, as it imposed no limitation of any sort on the police officers carrying out the search (see Van Rossem, cited above).\n\nTurning to the case at hand, we cannot help but note that the search warrant was couched in very broad terms. It referred solely to the crime that was being investigated, namely forgery of identity documents, and did not mention any specific items to be searched for (see paragraphs 10 and 11 of the judgment). The sufficiency of the description certainly has to be judged in the light of the information available to the authorities at the time they obtain the warrant and in the present case it was clear that at the time when the search warrant was requested and granted, the authorities did have quite specific information. The prosecuting authorities and the police were looking for technical equipment and storage devices – computers, hard drives, video cameras, flash memory drives – which could prove that the first applicant, a professional photographer, was forging Bulgarian identity documents. However, this information was not reflected in the search warrant or any other document communicated to the applicants during the search of their home. Furthermore, the search warrant did not refer to proceeds of the alleged crime. Nevertheless, the police also seized cash (see paragraph 15 of the judgment). This fact clearly demonstrates, in our view, that the search warrant was not sufficiently specific and limited in scope.\n\nThe fact that the searched premises were the home of the applicants made it even more important that in its search warrant the domestic court enumerate the items that the investigators were looking for. Such a procedural requirement seems neither excessively burdensome nor unreasonable, and it certainly allows a meaningful and effective subsequent review to be made. Combined with the fact that no subsequent review of the lawfulness of the search (see paragraphs 85 and 86 of the judgment), capable of protecting the applicants against any abuse or arbitrariness, was possible under the national law, the failure to specify the scope of the search warrant leads us to the conclusion that there was a violation of Article 8 of the Convention.","title":""}
{"_id":"passage_509","text":"INTRODUCTION\n\n1.  The case concerns the applicant’s conviction for blasphemous statements made about the Holy Bible.\n\nTHE FACTS\n\n2.  The applicant was born in 1984 and lives in Ciechanów. She was represented by Mr D. Raczkiewicz, a lawyer practising in Warsaw.\n\n3.  The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska and, subsequently, by Mr J. Sobczak, of the Ministry of Foreign Affairs.\n\n4.  The facts of the case, as submitted by the parties, may be summarised as follows. They are to a large extent based on the facts established by the domestic courts.\n\n5.  The applicant is a popular pop singer known as Doda.\n\n6.  On 24 July 2009 the applicant gave an interview for a news website called Dziennik, which was published on 3 August 2009. Part of the interview was subsequently reprinted in the tabloid Super Express. The title of the article was: “Doda: I don’t believe in the Bible.” One of the questions in the interview was as follows: “You say that the Pope is an authority figure for you, you are a religious person, so why you are seeing somebody who desecrates the Bible and conveys anti-Christian sentiment?” In reply, the applicant described her relationship with her then partner, A.D. She then explained that the biblical message did have some value; however, the facts depicted in it were not reflected in scientific discoveries. For instance, in the description of the creation of the world there was no mention of dinosaurs. The applicant believed in a higher power (siła wyższa), she had had a religious upbringing, but had her own views on those matters. She stated that she was more convinced by scientific discoveries, and not by what she described as “the writings of someone wasted from drinking wine and smoking some weed” (napruty winem i palący jakieś zioła). When asked who she meant, the applicant replied “all those guys who wrote those incredible [biblical] stories”. The applicant did not submit to the Court the complete text of the interview she gave.\n\n7.  After publication of the interview, two individuals, R.N and S.K., complained to a public prosecutor that the applicant had committed an offence proscribed by Article 196 of the Criminal Code (see paragraph 21 below). The case was initially discontinued by the Warsaw District Prosecutor but on 14 October 2009 the Warsaw District Court overturned this decision.\n\n8.  On 30 April 2010 the Warsaw Regional Prosecutor issued a bill of indictment against the applicant for offending the religious feelings of the two individuals by insulting the object of their religious worship – the Holy Bible.\n\n9.  During the investigation, the applicant pleaded not guilty and argued that she had not intended to offend anybody. She was a peaceful person who respected everybody’s religion. Her interview should not have been taken seriously, as she had given it in a humorous and detached manner, and had been using the language of young people, which was full of metaphors. She explained that “wasted” meant colourful, with a positive outlook, that by wine she had meant communion wine, and that she had also been referring to healing plants which had been used at that time. Before the court the applicant reiterated that her intention had not been to offend or to spark revolt. She had replied to the journalist’s questions in a sincere, subjective and frivolous manner, and her views were based on historical and scientific television programmes, of which she was a fan.\n\n10.  The court heard R.N and S.K., who reiterated what they had argued before the prosecuting authorities. The journalist who had interviewed the applicant was also heard. She confirmed in particular that the interview had been viewed a record number of times.\n\n11.  On 16 January 2012 the Warsaw District Court convicted the applicant as charged and fined her 5,000 Polish zlotys (approximately 1,160 euros). The court found that the applicant’s case concerned a conflict of two constitutional freedoms: the freedom of conscience and religion guaranteed in Article 53 of the Constitution and the freedom of expression enshrined in Article 54 of the Constitution. The court observed that the legislature had balanced the two conflicting freedoms in Article 196 of the Criminal Code. In its judgment the court stated, inter alia:\n\n“It is impossible to accept that the applicant did not understand the meaning of the words she used, and understood their meaning differently. One cannot agree that she did not intentionally mean to offend and was not aware that her statements would be understood and evaluated in that way ... Her statements should not be understood as falling within the [margins of] freedom of expression. ...\n\nThe meanings given by the applicant to the expressions ‘wasted’ or ‘smoking weed’ should be considered totally absurd, and contrary to logic and basic life experience. Any person with an average [amount of] knowledge and experience can perfectly understand the meaning of those expressions ... The applicant clumsily and mockingly explained the meaning of her statements. Analysing her explanation as a whole, one has to establish that [the statements] were not consistent: when talking of wine she first indicated that she meant communion wine, but afterwards [she said] homemade wine which was allegedly drunk by apostles travelling with Jesus.\n\nThe explanations of the applicant were not supported by the evidence collected.\n\nIn the light of the explanations of the victims R.N. and S.K., it is indisputable that the statements of the applicant offended their religious feelings.”\n\n12.  The court referred to the opinion of the journalist who had interviewed the applicant. The latter considered that the statement in question had been “spontaneous” but at the same time “intentionally aimed at shocking the audience” and “gaining media interest”. The expressions she had used had been chosen for their iconoclastic character in order to raise maximum public interest. The court also relied on an expert opinion which found that the applicant had deliberately used youth slang words and that her way of communicating had been marked by the tendency to shock, hurt and dominate others.\n\n12.  The court referred to the opinion of the journalist who had interviewed the applicant. The latter considered that the statement in question had been “spontaneous” but at the same time “intentionally aimed at shocking the audience” and “gaining media interest”. The expressions she had used had been chosen for their iconoclastic character in order to raise maximum public interest. The court also relied on an expert opinion which found that the applicant had deliberately used youth slang words and that her way of communicating had been marked by the tendency to shock, hurt and dominate others.\n\n13.  The court noted that the applicant’s comments had been made public and they had reached a wide audience. It considered that the question of whether her statements amounted to insult had to be examined taking into account the average person’s sensibility in Poland. It also noted that the Bible, along with the Torah, was considered in the different Christian religions and in Judaism to be inspired by God and was an object of veneration. The court accepted the experts’ opinions that the applicant’s statements had debased the Bible by suggesting that its authors had written it under the influence of alcohol and narcotics. The applicant’s behaviour had gone beyond analysis or criticism and become a tool for hurting other persons. She had expressed her views in a way that offended Christians and Jews and displayed contempt of believers.\n\n14.  The court concluded that the statements made by the applicant had been objectively insulting and could not be considered to have been made for artistic or scientific purposes. The applicant’s actions had been intentional. In sum, her actions had fulfilled the conditions of the offence proscribed by Article 196 of the Criminal Code.\n\n.  The applicant’s lawyers lodged two appeals against the judgment of 16 January 2012. The applicant alleged errors of fact and law and incorrect assessment of evidence. She complained that one of the experts had been a priest and that the courts had wrongly concluded that her intention had been to offend the religious feelings of others. She alleged that the courts had arbitrarily assessed the evidence and should have heard other persons to see whether they had felt offended by her statements. The applicant further complained of a violation of her procedural rights, as one of the hearings had been held in her absence and her lawyer had not been given sufficiently early notice of it. The applicant also contested the manner in which the interview had been approved by her manager. She considered that her actions had not been public and that the interview had been a private conversation taking place in her flat.\n\n16.  On 18 June 2012 the Warsaw Regional Court upheld the first-instance judgment, amending it only by specifying the date of the offence as 24 July 2009. The Regional Court agreed with the lower court as regards the facts and the assessment of the applicant’s guilt. It considered that, as established by the Warsaw District Court, all the conditions of the offence proscribed by Article 196 of the Criminal Code had been fulfilled: the statement had been public, had offended the religious feelings of other persons, had concerned an object of religious worship, and amounted to insult (zniewaga).\n\n17.  The applicant’s lawyer was notified of the judgment on 23 July 2012.\n\n18.  On 22 October 2012, on her behalf, the applicant’s lawyer lodged a constitutional complaint alleging that Article 196 of the Criminal Code was unconstitutional. In particular, it was argued that Article 196 had disproportionately limited the applicant’s right to freedom of expression.\n\n18.  On 22 October 2012, on her behalf, the applicant’s lawyer lodged a constitutional complaint alleging that Article 196 of the Criminal Code was unconstitutional. In particular, it was argued that Article 196 had disproportionately limited the applicant’s right to freedom of expression.\n\n18.  On 22 October 2012, on her behalf, the applicant’s lawyer lodged a constitutional complaint alleging that Article 196 of the Criminal Code was unconstitutional. In particular, it was argued that Article 196 had disproportionately limited the applicant’s right to freedom of expression.\n\n18.  On 22 October 2012, on her behalf, the applicant’s lawyer lodged a constitutional complaint alleging that Article 196 of the Criminal Code was unconstitutional. In particular, it was argued that Article 196 had disproportionately limited the applicant’s right to freedom of expression.\n\n19.  On 6 October 2015 the Constitutional Court gave judgment in the case and found that the provision of the Criminal Code in question was compatible with the Constitution, in particular with Articles 42, 53 and 54. The Constitutional Court analysed the domestic case-law under Article 196 of the Criminal Code, stating that the Supreme Court, for example, had held that the offence of religious insult proscribed by Article 196 was characterised by the “expression of contempt to another person with the intention to humiliate or taunt” (wyrażeniem pogardy, chęcią poniżenia lub wyszydzenia). The assessment of whether behaviour contained such an insult had to be based on objective criteria and take into account the cultural rules and social conventions generally accepted in society. The Constitutional Court assessed in detail whether the provision respected the principles of foreseeability and proportionality in the light of the Court’s case-law. The court stated, inter alia:\n\n“The right to the protection of religious feelings, to which the contested provision refers, concerns both the freedom from behaviour insulting the object of religious worship and the freedom to manifest an individual’s religion. There is also no doubt that the protection of religious feelings, and therefore human emotions associated with an individual’s faith, is also linked to the protection of the inherent and inalienable dignity of human beings, which constitutes a source of freedoms and human and civil rights – Article 30 of the Constitution.\n\n... Under Article 196 of the Criminal Code, what is protected are the religious feelings of other persons directly related to religious freedom and human dignity. The punishment for the offence of offending religious feelings by insulting in public an object of religious worship is therefore meant to counteract such a type of ‘criticism’, which consists in replacing, with reference to freedom of speech, meritorious arguments with insults, which as such cannot be the standard accepted in a democratic State (see the judgment of the Constitutional Court in case no. P 3/06). The insulting of an object of religious worship deliberately offends the religious feelings of other people, and thus also, like other forms of insult, harms their personal dignity. The Constitutional Court maintains the position that in a democratic State, which is to the common good of all citizens, public debate, in which everyone is guaranteed freedom of expression also in the religious sphere, should take place in a civilised and cultural manner, without any detriment to human and civil rights and freedoms (see the judgment of the Constitutional Court in case no. P 12/09). The answer to a rhetorical question of whether the law should prevent the spread in the language of the public debate of phrases that are offensive, aggressive, humiliating, degrading, and that violate human dignity, replacing the authentic exchange of views with insults, is also clear (see the judgment of the Constitutional Court in case no. P 3/06). ...\n\nThe Constitutional Court found ... that the punishment of the offence of offending religious feelings by insulting in public an object of religious worship is, from the point of view of Article 31 § 3 of the Constitution, a necessary restriction on the constitutional freedom of expression protected by Article 54 § 1 of the Constitution, and thus the measures applied are necessary for the protection of the interests to which they are connected. In a democratic State, it is necessary to restrict freedom of expression that insults or offends the religious feelings of others. What needs to be assessed, however, is the manner in which the limits of freedom of expression are defined and the intensity of the restrictions themselves.\n\n... The measure restricting the constitutionally protected freedom of expression employed in pursuance of Article 196 of the Criminal Code cannot be considered disproportionate, meaning not necessary and not leading to the intended purpose (Article 31 § 3 of the Constitution).”\n\nRELEVANT LEGAL FRAMEWORK AND PRACTICE\n\nDOMESTIC LAW\n\nRelevant Constitutional provisions\n\n20.  The relevant provisions of the Constitution of the Republic of Poland provide as follows:\n\nArticle 25 § 2\n\n“Public authorities in the Republic of Poland shall be impartial in matters of religious and philosophical convictions, and shall ensure freedom to express them in public life.”\n\nArticle 30\n\n“The inherent and inalienable dignity of the person shall constitute a source of freedoms and rights of persons and citizens. It shall be inviolable. The respect and protection thereof shall be the obligation of public authorities.”\n\nArticle 31 § 3\n\n“Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic State for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights.”\n\nArticle 53\n\n“1.  Freedom of conscience and religion shall be secured to everyone.\n\n2.  Freedom of religion shall include the freedom to profess or to accept a religion by personal choice as well as to manifest such religion, either individually or collectively, publicly or privately, by worshipping, praying, participating in ceremonies, performing rites or teaching. Freedom of religion shall also include the availability of sanctuaries and other places of worship designed to meet the needs of believers as well as the right of individuals, wherever they may be, to benefit from religious services.\n\n3.  Parents shall have the right to provide their children with a moral and religious upbringing and teaching in accordance with their convictions. The provisions of Article 48 § 1 shall apply as appropriate.\n\n4.  The religion of a church or other legally recognised religious organisation may be taught in schools, but other peoples’ freedom of religion and conscience shall not be infringed thereby.\n\n5.  The freedom to publicly express religion may be limited only by means of statute and only where this is necessary for the defence of State security, public order, health, morals or the freedoms and rights of others.\n\n6.  No one shall be compelled to participate or not to participate in religious practices.\n\n7.  No one may be compelled by organs of public authority to disclose his philosophy of life, religious convictions or beliefs.”\n\nArticle 54 § 1\n\n“Everyone shall be guaranteed freedom to express opinions and to acquire and to disseminate information.”\n\nCriminal Code\n\nCriminal Code\n\n21.  Article 196 of the Criminal Code provides as follows:\n\n“Whoever offends the religious feelings of other persons by publicly insulting an object of religious worship, or a place designated for public religious ceremonies, is liable to pay a fine, have his or her liberty restricted, or be deprived of his or her liberty for a period of up to two years.”\n\n.  Article 256 § 1 of the Criminal Code prohibits hate speech:\n\n“Whoever publicly promotes fascist or other totalitarian State systems or incites to hatred on grounds of national, ethnic, racial or religious differences or on grounds of irreligiousness shall be subject to a fine, or the penalty of limitation or deprivation of liberty for up to two years.”\n\nINTERNATIONAL MATERIAL\n\nUnited Nations standards\n\n23.  Article 20 § 2 of the 1966 United Nations International Covenant on Civil and Political Rights provides:\n\n“Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”\n\n24.  On 16 December 2005 the General Assembly of the United Nations adopted Resolution 60/150 on combating defamation of religions (UN Doc. A/RES/60/509/Add.2 (Part II)), the relevant parts of which read as follows:\n\n“The General Assembly,\n\n...\n\nNoting with concern that defamation of religions is among the causes of social disharmony and leads to violations of human rights,\n\nNoting with deep concern the increasing trend in recent years of statements attacking religions, Islam and Muslims in particular, especially in human rights forums,\n\n1.\tExpresses deep concern at the negative stereotyping of religions and manifestations of intolerance and discrimination in matters of religion or belief still in evidence in some regions of the world;\n\n2.\tStrongly deplores physical attacks and assaults on businesses, cultural centres and places of worship of all religions as well as targeting of religious symbols;\n\n3.\tNotes with deep concern the intensification of the campaign of defamation of religions and the ethnic and religious profiling of Muslim minorities in the aftermath of the tragic events of 11 September 2001;\n\n4.\tExpresses its deep concern that Islam is frequently and wrongly associated with human rights violations and terrorism;\n\n5.\tAlso expresses its deep concern at programmes and agendas pursued by extremist organizations and groups aimed at the defamation of religions, in particular when supported by Governments;\n\n6.\tDeplores the use of the print, audio-visual and electronic media, including the Internet, and any other means to incite acts of violence, xenophobia or related intolerance and discrimination against Islam or any other religion;\n\n7.\tRecognizes that, in the context of the fight against terrorism and the reaction to counter-terrorism measures, defamation of religions becomes an aggravating factor that contributes to the denial of fundamental rights and freedoms of target groups, as well as their economic and social exclusion;\n\n8.\tStresses the need to effectively combat defamation of all religions, Islam and Muslims in particular, especially in human rights forums;\n\n9.\tUrges States to take resolute action to prohibit the dissemination through political institutions and organizations of racist and xenophobic ideas and material aimed at any religion or its followers that constitute incitement to discrimination, hostility or violence;\n\n10.\tAlso urges States to provide, within their respective legal and constitutional systems, adequate protection against acts of hatred, discrimination, intimidation and coercion resulting from defamation of religions, to take all possible measures to promote tolerance and respect for all religions and their value systems and to complement legal systems with intellectual and moral strategies to combat religious hatred and intolerance;\n\n11.\tUrges all States to ensure that all public officials, including members of law enforcement bodies, the military, civil servants and educators, in the course of their official duties, respect different religions and beliefs and do not discriminate on the grounds of religion or belief, and that necessary and appropriate education or training is provided;\n\n12.\tUnderscores the need to combat defamation of religions by strategizing and harmonizing actions at the local, national, regional and international levels through education and awareness-raising;\n\n13.\tUrges States to ensure equal access to education for all, in law and in practice, including access to free primary education for all children, both girls and boys, and access for adults to lifelong learning and education based on respect for human rights, diversity and tolerance, without discrimination of any kind, and to refrain from any legal or other measures leading to racial segregation in access to schooling;\n\n14.\tCalls upon the international community to initiate a global dialogue to promote a culture of tolerance and peace based on respect for human rights and religious diversity, and urges States, non-governmental organizations, religious bodies and the print and electronic media to support and promote such a dialogue;\n\n15.\tCalls upon the United Nations High Commissioner for Human Rights to promote and include human rights aspects in the dialogue among civilizations, inter alia, through:\n\n(a)\tIntegrating them into topical seminars and special debates on the positive contributions of cultures, as well as religious and cultural diversity, including through educational programmes, particularly the World Programme for Human Rights Education proclaimed on 10 December 2004;\n\n(b)\tCollaboration by the Office of the United Nations High Commissioner for Human Rights with other relevant international organizations in holding joint conferences designed to encourage this dialogue and promote understanding of the universality of human rights and their implementation at various levels;\n\n16.\tRequests the Secretary-General to submit a report on the implementation of the present resolution to the General Assembly at its sixty-first session.”\n\n25.  On 27 March 2008 the Human Rights Council adopted at its 40th session Resolution 7/19 on combating defamation of religions, the relevant parts of which read as follows:\n\n“The Human Rights Council,\n\n...\n\n1.  Expresses deep concern at the negative stereotyping of all religions and manifestations of intolerance and discrimination in matters of religion or belief;\n\n...\n\n4.  Expresses its grave concern at the recent serious instances of deliberate stereotyping of religions, their adherents and sacred persons in the media and by political parties and groups in some societies, and at the associated provocation and political exploitation;\n\n...\n\n7.  Strongly deplores physical attacks and assaults on businesses, cultural centres and places of worship of all religions and targeting of religious symbols;\n\n8.  Urges States to take actions to prohibit the dissemination, including through political institutions and organizations, of racist and xenophobic ideas and material aimed at any religion or its followers that constitute incitement to racial and religious hatred, hostility or violence;\n\n9.  Also urges States to provide, within their respective legal and constitutional systems, adequate protection against acts of hatred, discrimination, intimidation and coercion resulting from the defamation of any religion, to take all possible measures to promote tolerance and respect for all religions and their value systems and to complement legal systems with intellectual and moral strategies to combat religious hatred and intolerance;\n\n10.  Emphasizes that respect of religions and their protection from contempt is an essential element conducive for the exercise by all of the right to freedom of thought, conscience and religion;\n\n...\n\n12.  Emphasizes that, as stipulated in international human rights law, everyone has the right to freedom of expression, and that the exercise of this right carries with it special duties and responsibilities, and may therefore be subject to certain restrictions, but only those provided by law and necessary for the respect of the rights or reputations of others, or for the protection of national security or of public order, or of public health or morals;\n\n13.  Reaffirms that general comment No. 15 of the Committee on the Elimination of Racial Discrimination, in which the Committee stipulates that the prohibition of the dissemination of all ideas based upon racial superiority or hatred is compatible with the freedom of opinion and expression, is equally applicable to the question of incitement to religious hatred;\n\n14.  Deplores the use of printed, audio-visual and electronic media, including the Internet, and of any other means to incite acts of violence, xenophobia or related intolerance and discrimination towards Islam or any religion;\n\n15.  Invites the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance to continue to report on all manifestations of defamation of religions, and in particular on the serious implications of Islamophobia, on the enjoyment of all rights to the Council at its ninth session;\n\n16.  Requests the High Commissioner for Human Rights to report on the implementation of the present resolution and to submit a study compiling relevant existing legislations and jurisprudence concerning defamation of and contempt for religions to the Council at its ninth session.”\n\n26.  On 22 March 2013 the Human Rights Council adopted at its 50th session Resolution 22/31 on combating intolerance, negative stereotyping and stigmatization of, and discrimination, incitement to violence and violence against, persons based on religion or belief, the relevant parts of which read as follows:\n\n“The Human Rights Council,\n\n...\n\n1.  Expresses deep concern at the continued serious instances of derogatory stereotyping, negative profiling and stigmatization of persons based on their religion or belief, as well as programmes and agendas pursued by extremists organizations and groups aimed at creating and perpetuating negative stereotypes about religious groups, in particular when condoned by Governments;\n\n2.  Expresses its concern that incidents of religious intolerance, discrimination and related violence, as well as of negative stereotyping of individuals on the basis of religion or belief, continue to rise around the world, and condemns, in this context, any advocacy of religious hatred against individuals that constitutes incitement to discrimination, hostility or violence, and urges States to take effective measures, as set forth in the present resolution, consistent with their obligations under international human rights law, to address and combat such incidents;\n\n3.  Condemns deeply any advocacy of religious hatred that constitutes incitement to discrimination, hostility or violence, whether it involves the use of print, audiovisual or electronic media or any other means;\n\n4.  Welcomes international, regional and national initiatives aimed at promoting interreligious, intercultural and interfaith harmony and combating discrimination against individuals on the basis of religion or belief, in particular the series of experts meetings in the framework of the Istanbul Process, and notes also in this regard the efforts of the Office of the United Nations High Commissioner for Human Rights and the holding of five regional workshops on separate but related issues, including the final workshop in Morocco and its outcome document, the Rabat Plan of Action on the prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence, and the recommendations and conclusions contained therein.\n\n5.  Recognizes that the open, public debate of ideas, as well as interfaith and intercultural dialogue, at the local, national and international levels, can be among the best protections against religious intolerance and can play a positive role in strengthening democracy and combating religious hatred, and convinced that continuing dialogue on these issues can help to overcome existing misperceptions;\n\n6.  Notes the speech given by Secretary-General of the Organization of the Islamic Conference at the fifteenth session of the Human Rights Council, and draws on his call on States to take the following actions to foster a domestic environment of religious tolerance, peace and respect by:\n\n(a)  Encouraging the creation of collaborative networks to build mutual understanding, promoting dialogue and inspiring constructive action towards shared policy goals and the pursuit of tangible outcomes, such as servicing projects in the fields of education, health, conflict prevention, employment, integration and media education;\n\n(b)  Creating an appropriate mechanism within Governments to, inter alia, identify and address potential areas of tension between members of different religious communities, and assisting with conflict prevention and mediation;\n\n(c)  Encouraging the training of government officials in effective outreach strategies;\n\n(d)  Encouraging the efforts of leaders to discuss within their communities the causes of discrimination, and evolving strategies to counter these causes;\n\n(e)  Speaking out against intolerance, including advocacy of religious hatred that constitutes incitement to discrimination, hostility or violence;\n\n(f)  Adopting measures to criminalize incitement to imminent violence based on religion or belief;\n\n(g)  Understanding the need to combat denigration and negative religious stereotyping of persons, as well as incitement to religious hatred, by strategizing and harmonizing actions at the local, national, region and international levels through, inter alia, education and awareness-building;\n\n(h)  Recognizing that the open, constructive and respectful debate of ideas, as well as interfaith and intercultural dialogue at the local, national and international levels, can play a positive role in combating religious hatred, incitement and violence;\n\n7.  Calls upon all States:\n\n(a)  To take effective measures to ensure that public functionaries, in the conduct of their public duties, do not discriminate against an individual on the basis of religion or belief;\n\n(b)  To foster religious freedom and pluralism by promoting the ability of members of all religious communities to manifest their religion, and to contribute openly and on an equal footing to society;\n\n(c)  To encourage the representation and meaningful participation of individuals, irrespective of their religion in all sectors of society;\n\n(d)  To make a strong effort to counter religious profiling, which is understood to be the invidious use of religion as a criterion in conducting questionings, searches and other law enforcement investigative procedures;\n\n8.  Encourages States to consider providing updates on efforts made in this regard as part of ongoing reporting to the Office of the High Commissioner;\n\n9.  Calls upon States to adopt measures and policies to promote full respect for and protection of places of worship and religious sites, cemeteries and shrines, and to take measures in cases where they are vulnerable to vandalism or destruction;\n\n10.  Requests the High Commissioner to prepare and submit to the Human Rights Council, at its twenty-fifth session, a report based upon information provided by States on the efforts and measures taken by them for the implementation of the action plan outlined in paragraphs 6 and 7 above, as well as their views on potential follow-up measures for further improvement of the implementation of that plan;\n\n11.  Calls for strengthened international efforts to foster a global dialogue for the promotion of a culture of tolerance and peace at all levels, based on respect for human rights and diversity of religions and beliefs.”\n\n27.  The UN Human Rights Committee adopted at its 102nd session (1129 July 2011) General Comment No. 34 on Article 19 (Freedoms of opinion and expression), the relevant parts of which read as follows:\n\n“3.  Freedom of expression is a necessary condition for the realization of the principles of transparency and accountability that are, in turn, essential for the promotion and protection of human rights.\n\n...\n\n47.  Defamation laws must be crafted with care to ensure that they comply with paragraph 3, and that they do not serve, in practice, to stifle freedom of expression. All such laws, in particular penal defamation laws, should include such defences as the defence of truth and they should not be applied with regard to those forms of expression that are not, of their nature, subject to verification. At least with regard to comments about public figures, consideration should be given to avoiding penalizing or otherwise rendering unlawful untrue statements that have been published in error but without malice. In any event, a public interest in the subject matter of the criticism should be recognized as a defence. Care should be taken by States parties to avoid excessively punitive measures and penalties. Where relevant, States parties should place reasonable limits on the requirement for a defendant to reimburse the expenses of the successful party. States parties should consider the decriminalization of defamation and, in any case, the application of the criminal law should only be countenanced in the most serious of cases and imprisonment is never an appropriate penalty. It is impermissible for a State party to indict a person for criminal defamation but then not to proceed to trial expeditiously – such a practice has a chilling effect that may unduly restrict the exercise of freedom of expression of the person concerned and others.\n\n48.  Prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant, except in the specific circumstances envisaged in article 20, paragraph 2, of the Covenant. [...] Thus, for instance, it would be impermissible for any such laws to discriminate in favour of or against one or certain religions or belief systems, or their adherents over another, or religious believers over non-believers. Nor would it be permissible for such prohibitions to be used to prevent or punish criticism of religious leaders or commentary on religious doctrine and tenets of faith.\n\n49.  Laws that penalize the expression of opinions about historical facts are incompatible with the obligations that the Covenant imposes on States parties in relation to the respect for freedom of opinion and expression. The Covenant does not permit general prohibition of expressions of an erroneous opinion or an incorrect interpretation of past events. Restrictions on the right of freedom of opinion should never be imposed and, with regard to freedom of expression, they should not go beyond what is permitted in paragraph 3 or required under article 20.”\n\nThe Organization for Security and Cooperation in Europe (OSCE)’s Office for Democratic Institutions and Human Rights (ODIHR)\n\n28.  The final 2019 Report on Hate Crime prepared by OSCE/ODHIR collected contributions from thirty-nine states, complemented by reports on hate incidents from 148 civil society groups, covering 45 participating States. The report gathered data of same 7,000 incidents motivated by bias against different groups, including 3,757 “descriptive incidents”. The overview of the total number of reported incidents indicated that 2,026 of them were motivated by anti-Semitism, 577 motivated by bias against Christians and 511 by bias against Muslims. In respect of Poland the report noted 972 hate crimes recorded by police. Other sources reported 187 incidents in Poland, including fifty-two incidents motivated by anti-Semitism, thirty-five motivated by bias against Christians, and six and against Muslims.\n\nCouncil of Europe\n\nCouncil of Europe\n\n29.  The relevant parts of the Parliamentary Assembly of the Council of Europe (PACE) Recommendation 1805 (2007) on blasphemy, religious insults and hate speech against persons on grounds of their religion provide as follows:\n\n“4.  With regard to blasphemy, religious insults and hate speech against persons on the grounds of their religion, the state is responsible for determining what should count as criminal offences within the limits imposed by the case law of the European Court of Human Rights. In this connection, the Assembly considers that blasphemy, as an insult to a religion, should not be deemed a criminal offence. A distinction should be made between matters relating to moral conscience and those relating to what is lawful, matters which belong to the public domain, and those which belong to the private sphere. Even though today prosecutions in this respect are rare in member states, they are legion in other countries of the world.\n\n...\n\n14.  The Assembly notes that member states have the obligation under Article 9 of the Convention to protect freedom of religion including the freedom to manifest one’s religion. This requires that member states protect such manifestations against disturbances by others. However, these rights may sometimes be subject to certain justified limitations. The challenge facing the authorities is how to strike a fair balance between the interests of individuals as members of a religious community in ensuring respect for their right to manifest their religion or their right to education, and the general public interest or the rights and interests of others.\n\n15.  The Assembly considers that, as far as it is necessary in a democratic society in accordance with Article 10, paragraph 2, of the Convention, national law should only penalise expressions about religious matters which intentionally and severely disturb public order and call for public violence.”\n\n15.  The Assembly considers that, as far as it is necessary in a democratic society in accordance with Article 10, paragraph 2, of the Convention, national law should only penalise expressions about religious matters which intentionally and severely disturb public order and call for public violence.”\n\n30.  The relevant parts of the European Commission for Democracy through Law (Venice Commission) Report on the relationship between Freedom of Expression and Freedom of Religion: the issue of regulation and prosecution of Blasphemy, Religious Insult and Incitement to Religious Hatred (CDL-AD(2008)026) provide as follows:\n\n“89.  As concerns the question of whether or not there is a need for specific supplementary legislation in the area of blasphemy, religious insult and incitement to religious hatred, the Commission finds:\n\na)  That incitement to hatred, including religious hatred, should be the object of criminal sanctions as is the case in almost all European States ...\n\nb)  That it is neither necessary nor desirable to create an offence of religious insult (that is, insult to religious feelings) simpliciter, without the element of incitement to hatred as an essential component.\n\nc)  That the offence of blasphemy should be abolished (which is already the case in most European States) and should not be reintroduced.\n\n90.  As concerns the question of to what extent criminal legislation is adequate and/or effective for the purpose of bringing about the appropriate balance between the right to freedom of expression and the right to respect for one’s beliefs, the Commission reiterates that, in its view, criminal sanctions are only appropriate in respect of incitement to hatred (unless public order offences are appropriate).\n\n91.  Notwithstanding the difficulties with enforcement of criminal legislation in this area, there is a high symbolic value in the pan-European introduction of criminal sanctions against incitement to hatred. It gives strong signals to all parts of society and to all societies that an effective democracy cannot bear behaviours and acts which undermine its core values: pluralism, tolerance, respect for human rights and non‑discrimination. It is essential however that the application of legislation against incitement to hatred be done in a non-discriminatory manner.\n\n92.  In the Commission’s view, instead, criminal sanctions are inappropriate in respect of insult to religious feelings and, even more so, in respect of blasphemy.”\n\nEuropean Union\n\n31.  The relevant part of the European Parliament resolution of 27 February 2014 on the situation of fundamental rights in the European Union (2012) (2013/2078(INI)) provides:\n\n“The European Parliament,\n\n...\n\n35.  Recalls that national laws that criminalise blasphemy restrict freedom of expression concerning religious or other beliefs, that they are often applied to persecute, mistreat, or intimidate persons belonging to religious or other minorities, and that they can have a serious inhibiting effect on freedom of expression and on freedom of religion or belief; recommends that the Member States decriminalise such offences;”\n\nTHE LAW\n\nALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION\n\n32.  The applicant complained that her criminal conviction for offending religious feelings had given rise to a violation of Article 10 of the Convention, which reads as follows:\n\n“1.  Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.\n\n2.  The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”\n\nAdmissibility\n\n33.  The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.\n\nMerits\n\nThe parties’ submissions\n\nThe applicant\n\n34.  The applicant submitted that her conviction and sentence had been an unjustified infringement of her right to freedom of expression. She pointed out that she had been prosecuted upon a bill of indictment lodged by the public prosecutor. This meant that the prosecutor had considered that the public interest had been involved and necessitated her prosecution. The applicant further considered that the sanction imposed on her – a criminal conviction and a fine fifty times the minimum provided by law – had been severe.\n\n35.  She pointed out that the interference in her case had not been proportionate to the legitimate aims pursued and should not have taken place in a democratic society. In particular, the necessity to protect the religious feelings of others invoked by the Government should not be safeguarded at all costs. The applicant considered that the criminal law should not have been employed to protect subjective religious feelings. The provision which penalised such expression with a penalty of up to two years’ imprisonment fell short of the Convention standards.\n\n36.  The applicant’s statements had not been addressed against the Catholic religion or its worshipers. Her opinions had not been intended to violate public order, disturb the peace or insult or offend the religious feelings of others. They did not amount to hate speech. The applicant had expressed her private views on the matter and the form of expression had been adapted to her audience – fans of her music. Finally, there had been nothing in her statements that could qualify as hate speech or otherwise antagonistic to believers.\n\nThe Government\n\n37.  The Government submitted that there had been no violation of Article 10 of the Convention, as the interference with the applicant’s rights had been in accordance with standards as set in the case-law of the Court. In particular, the interference had been prescribed by Article 196 of the Criminal Code. The applicant could easily have known that her statement could lead to prosecution as 90% of the population in Poland was Catholic and religion played a crucial role in the concept of identity to the majority of Poles as part of their culture.\n\n38.  As for the aim pursued by the interference, the Government maintained that it had been the protection of the “rights of others” and their religious feelings. The Government observed that freedom of expression and the right to respect for religious beliefs, enshrined in Articles 10 and 9 of the Convention respectively, should enjoy equal protection.\n\n39.  The Government considered that the applicant’s statements had been meant to shock and had been aimed at gaining broader popularity. They should not be considered as artistic expression and had not contributed to a broader social or cultural debate. Moreover, the proceedings against her had been initiated at the request of two individuals, and not by the authorities of their own motion. The Government reiterated that the overwhelming majority of Poles were Catholic and the Roman Catholic religion played a crucial role in the concept of national identity. Catholics and other religious people had a right not to be insulted on the grounds of their beliefs.\n\nThe interference had been justified by the concern to restore the balance between the competing interests at stake – the rights to impart ideas and the protection of the religious feelings and beliefs of others.\n\n40.  The Government submitted that the domestic courts had carried out a thorough and diligent analysis of the necessity of the impugned measure and had given relevant and sufficient reasons for it. The courts had heard three experts and other witnesses and had carefully balanced the conflicting interests before coming to the conclusion that the religious sensibilities of others had been insulted publicly by the applicant. The impugned interference had therefore been proportionate to the legitimate aim.\n\n41.  With respect to the sanction imposed, the Government considered that it had been the mildest possible under the domestic law and the amount of the fine had been adapted to the applicant’s financial means.\n\nSubmissions by third-party interveners\n\n42.  Article 19 maintained that protecting the feelings of believers through criminal law in cases where there was no incitement to discrimination or violence could not be considered as pursuing a legitimate aim and justified as necessary in a democratic society. The intervener drew attention to opinions of the United Nations Human Rights Committee stating that blasphemy laws are incompatible with the International Covenant on Civil and Political Rights except in specific situations. They cited the UN Working Group on Arbitrary Detention, stating: “while religious insult[s] may offend people and hurt their feelings, they do not directly result in a violation of rights to freedom of religion.”\n\n43.  Article 19 argued that the prohibitions on religious insult were indistinct from more broadly framed prohibitions on blasphemy. The fact that the former seemed to protect the subjective feelings of persons, while the latter protected religions or beliefs in the abstract, had no distinction in practice: proving insult to the individual in these circumstances rested on an evidential finding of insult to the religion itself. In both instances the State found itself in the position of using the criminal law to determine the acceptable boundaries of religious discourse. The intervener also pointed to PACE Recommendation 1805 (2007) in which it was considered that the national law should only penalise expressions concerning religious matters which intentionally and severely disturbed public order and called for public violence.\n\n44.  Ordo Iuris noted that the persons enjoying rights under Article 10 of the Convention had duties and obligations, particularly an obligation to avoid expressions that were gratuitously offensive to others, infringing their rights and not contributing to a public debate. They noted that the States had positive obligations under Article 9 of the Convention to ensure the peaceful coexistence of all religions and those not belonging to a religious group by ensuring religious tolerance. The intervener further pointed out that it was not possible to discern throughout Europe a uniform conception of the significance of religion in society. They referred to the Court’s case-law to demonstrate that in such cases the States enjoyed a wide margin of appreciation in assessing the necessity for the interference.\n\n45.  Ordo Iuris noted that statistics showed that Poland was one of the most religious countries in Europe. The vast majority of Poles believed in God, and some 60% believed that the Bible was the “word of God”. The more religious the society was, the more pressing the need could be to establish some form of liability for gratuitously offensive statements that insulted other people’s feelings. They also argued that Article 196 of the Polish Criminal Code, drafted in a similar way to Article 188 of the Austrian Criminal Code, penalised statements aimed at insulting religious feelings regarding objects or places of religious worship. It did not prohibit critical and controversial statements but guaranteed to believers the right to exercise their freedom of religion.\n\nThe Court’s assessment\n\nGeneral principles\n\n.  The Court reiterates the fundamental principles underlying its judgments relating to Article 10 as set out in, for example, Handyside v. the United Kingdom (7 December 1976, Series A no. 24) and Fressoz and Roire v. France ([GC], no. 29183/95, § 45, ECHR 1999-I). Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. The Court further notes that there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate on questions of public interest (see Baka v. Hungary [GC], no. 20261/12, § 159, ECHR 2016, and Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, § 167, 27 June 2017 (extracts)).\n\n47.  As is recognised in paragraph 2 of Article 10, however, the exercise of the freedom of expression carries with it duties and responsibilities. Among them, in the context of religious beliefs, is the general requirement to ensure the peaceful enjoyment of the rights guaranteed under Article 9 to the holders of such beliefs, including a duty to avoid as far as possible an expression that is, in regard to objects of veneration, gratuitously offensive to others and profane (see Sekmadienis Ltd. v. Lithuania, no. 69317/14, § 74, 30 January 2018, with further references).\n\n48.  The Court reiterates furthermore that, as enshrined in Article 9 of the Convention, freedom of thought, conscience and religion is one of the foundations of a “democratic society” within the meaning of the Convention (see Kokkinakis v. Greece, 25 May 1993, § 31, Series A no. 260A, and Ivanova v. Bulgaria, no. 52435/99, § 77, 12 April 2007). At the same time, the State’s duty of neutrality and impartiality excludes any discretion on its part to determine whether religious beliefs or the means used to express such beliefs are legitimate (see Manoussakis and Others v. Greece, 26 September 1996, § 47, Reports of Judgments and Decisions 1996‑IV; Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 78, ECHR 2000XI; and Fernández Martínez v. Spain [GC], no. 56030/07, § 129, ECHR 2014 (extracts)).\n\n49.  The Court has repeatedly held that, although the essential object of many provisions of the Convention is to protect the individual against arbitrary interference by public authorities, there may in addition be positive obligations inherent in an effective respect of the rights concerned (see Özgür Gündem v. Turkey, no. 23144/93, § 42, ECHR 2000III). States have the positive obligation under Article 9 of the Convention of ensuring the peaceful coexistence of all religions and those not belonging to a religious group by ensuring mutual tolerance (see E.S. v. Austria, no. 38450/12, § 44, 25 October 2018; see also Leyla Şahin v. Turkey [GC], no. , §§ 107-08, ECHR 2005XI, and S.A.S. v. France [GC], no. , §§ 123-28, ECHR 2014 (extracts)). These obligations may require the adoption of measures to ensure respect for freedom of religion even in the relations between individuals (see Siebenhaar v. Germany, no. 18136/02, § 38, 3 February 2011).\n\n50.  While the dividing line between the positive and negative obligations of the State under Article 9 does not lend itself to a precise definition, the applicable principles are nevertheless comparable. In particular, in both cases, account must be taken of the right balance to be struck between the general interest and the interests of the individual, with the State enjoying a margin of appreciation in any event (ibid., § 38; and, mutatis mutandis, Evans v. the United Kingdom [GC], no. 6339/05, §§ 7576, ECHR 2007I; Rommelfanger v. Germany, no. 12242/86, Commission decision of 6 September 1989, Decisions and Reports 62, pp. 151 and 161; and Fuentes Bobo v. Spain, no. 39293/98, § 38, 29 February 2000).\n\n51.  Those who choose to exercise the freedom to manifest their religion under Article 9 of the Convention, irrespective of whether they do so as members of a religious majority or a minority, cannot therefore expect to be exempt from criticism. They must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith (see Otto-Preminger-Institut v. Austria, 20 September 1994, § 47, Series A no. 295A; İ.A. v. Turkey, no. 42571/98, § 28, ECHR 2005VIII; and Aydın Tatlav v. Turkey, no. 50692/99, § 27, 2 May 2006). However, where such expressions go beyond the limits of a critical denial of other people’s religious beliefs and are likely to incite religious intolerance, for example in the event of an improper or even abusive attack on an object of religious veneration, a State may legitimately consider them to be incompatible with respect for the freedom of thought, conscience and religion and take proportionate restrictive measures (see Tagiyev and Huseynov v. Azerbaijan, no. 13274/08, § 37, 5 December 2019; Otto‑Preminger‑Institut, cited above, § 47; and İ.A. v. Turkey, cited above, § 29). Presenting objects of religious worship in a provocative way capable of hurting the feelings of the followers of that religion could be conceived as a malicious violation of the spirit of tolerance, which is one of the bases of a democratic society (see E.S. v. Austria, cited above, § 53). Expressions that seek to spread, incite or justify hatred based on intolerance, including religious intolerance, do not enjoy the protection afforded by Article 10 of the Convention (see, mutatis mutandis, Gündüz v. Turkey, no. 35071/97, § 51, ECHR 2003XI). A State may therefore legitimately consider it necessary to take measures aimed at repressing certain forms of conduct, including the imparting of information and ideas judged incompatible with respect for the freedom of thought, conscience and religion of others (see E.S. v. Austria, cited above, § 45).\n\n52.  The fact that there is no uniform European conception of the requirements of the protection of the rights of others in relation to attacks on their religious convictions means that the Contracting States have a wider margin of appreciation when regulating freedom of expression in connection with matters liable to offend intimate personal convictions within the sphere of morals or religion (see İ.A. v. Turkey, cited above, § 25, with further references; see also Wingrove v. the United Kingdom, 25 November 1996, § 58, Reports 1996V, and Murphy v. Ireland, no. 44179/98, § 67, ECHR 2003‑IX (extracts)). Moreover, in cases involving weighing up the conflicting interests of the exercise of two fundamental freedoms, namely the right of the applicant to impart to the public his or her views on religious doctrine on the one hand, and the right of others to respect for their freedom of thought, conscience and religion on the other, the assessment of the (potential) effects of the impugned statements depends, to a certain degree, on the situation in the country where the statements were made at the time and the context in which they were made. In such cases, the domestic authorities have a wide margin of appreciation, as they are in a better position to evaluate which statements were likely to disturb the religious peace in their country (see E.S. v. Austria, cited above, § 50).\n\n53.  The Court has also emphasised that in democratic societies, in which several religions coexist within one and the same population, it may be necessary to place restrictions on the freedom to manifest one’s religion or beliefs in order to reconcile the interests of the various groups and ensure that everyone’s beliefs are respected (see Kokkinakis, cited above, § 33). The harmonious interaction of persons and groups with varied identities is essential for achieving social cohesion (see, mutatis mutandis, Gorzelik and Others v. Poland [GC], no. 44158/98, § 92, ECHR 2004-I).\n\nApplication of the above principles to the instant case\n\n54.  The Court considers, and this was common ground between the parties, that the criminal conviction giving rise to the instant case amounted to an interference with the applicant’s right to freedom of expression. Such interference constitutes a breach of Article 10 unless it is “prescribed by law”, pursues one or more of the legitimate aims referred to in paragraph 2 and is “necessary in a democratic society” in order to achieve the aim or aims in question.\n\n.  The Court notes that it was undisputed that the interference was “prescribed by law”, the applicant’s conviction being based on Article 196 of the Criminal Code. The Court accepts the Government’s assessment that the impugned interference pursued the aim of protecting religious feelings, which corresponds to protecting the rights of others within the meaning of Article 10 § 2 of the Convention (see E.S., cited above, § 41).\n\n56.  The Court considers that the issue before it involves weighing up the conflicting interests. In so doing, regard must be had to the margin of appreciation left to the national authorities, whose duty it is in a democratic society to consider, within the limits of their jurisdiction, the interests of society as a whole. Accordingly, the Court accepts that the domestic authorities had a wide margin of appreciation in the instant case.\n\n57.  The Court reiterates in this context that while the interview with the applicant contained statements which may have shocked or disturbed some people, the Court has held on several occasions that such views do not in themselves preclude the enjoyment of freedom of expression (see, in particular, De Haes and Gijsels v. Belgium, 24 February 1997, § 46, Reports 1997-I). The Court reiterates that a religious group must tolerate the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith, as long as the statements at issue do not incite to hatred or religious intolerance (see paragraph 51 above).\n\n.  The domestic courts considered that the applicant’s statements had not been part of a debate on a question of public interest and she has not argued otherwise, either before the domestic courts or before the Court. Indeed, the applicant maintained before the domestic authorities that she had directed her statements at a young audience of her music fans, and they had been “sincere, subjective, and frivolous”. There is no indication that she intended to participate in any serious debate on religious matters; rather, she was interested in nurturing the interest of her audience. The questions put by the interviewing journalist to her concerning religion were prompted by the openly anti-religious public stance of her boyfriend at the time. The applicant herself had not engaged in any public discussion about religion prior to that interview and has not since.\n\n59.  Looking at her statements as a whole, the Court observes that the applicant did not develop her arguments and did not base them on any serious sources or a specific doctrine. She said that she based her views on “scientific discoveries,” however, apparently originating from popular television programs. The applicant did not claim to be an expert on the matter, a journalist, or a historian. She had been answering the journalist’s question about her private life, addressing her audience in a language consistent with her style of communication, deliberately frivolous and colourful, with the intention of sparking interest.\n\n60.  The Court notes that the domestic courts failed to assess properly – on the basis of a detailed analysis of the wording of the statements made - whether the impugned statements constituted factual statements or value judgments. The Court further notes that the domestic courts failed to identify and carefully weigh the competing interests at stake. Nor, did they discuss the permissible limits of criticism of religious doctrines under the Convention versus their disparagement. In particular, the domestic courts did not assess whether applicant’s statements had been capable of arousing justified indignation or whether they were of a nature to incite to hatred or otherwise disturb religious peace and tolerance in Poland (see paragraph 49 above).\n\n61.  The Court notes that it was not argued before the domestic courts, or before the Court, that the applicant’s statements amounted to hate speech. In particular, Article 256 of the Criminal Code which expressly prohibits hate speech was not invoked in the case against the applicant. The Court finds that the domestic courts have not established that the applicant’s actions contained elements of violence, or elements susceptible of stirring up or justifying violence, hatred or intolerance of believers (see Mariya Alekhina and Others v. Russia, no. 38004/12, § 227, 17 July 2018).\n\n.  The domestic courts in the instant case did not examine whether the actions in question could have led to any harmful consequences (ibid., § 226). As raised by the applicant in her constitutional complaint, Article 196 of the Criminal Code does not contain an additional criterion that the insult should threaten public order. The Court has previously considered a situation where the domestic law, in addition to insulting the object of religious veneration, required that the circumstances of such behaviour be capable of arousing justified indignation, and thus aimed to protect religious peace and tolerance (compare and contrast E.S., cited above, § 52). In the case at hand, the Constitutional Court clarified on 6 October 2015 that Article 196 of the Criminal Code does not protect an object of religious worship as such, but the religious feelings of persons who have been hurt by the offensive behaviour of the perpetrator. The condition for a criminal offence under Article 196 is that the persons concerned feel offended by the offender’s behaviour. It penalises “the expression of contempt to another person with the intention to humiliate” (see paragraph 19 above). There is thus nothing to suggest that Article 196 of the Criminal Code contains a similar criterion that the insult should threaten public order as in the E.S. case (cited above); rather, it appears that it incriminates all behaviour that is likely to hurt religious feelings.\n\n.  Lastly, the Court notes that the nature and severity of the penalty imposed are also factors to be taken into account when assessing the proportionality of the interference with the freedom of expression guaranteed by Article 10 (see Skałka v. Poland, no. 43425/98, §§ 41-42, 27 May 2003, and Kwiecień v. Poland, no. 51744/99, § 56, 9 January 2007). In this connection, the Court observes that the applicant was convicted in criminal proceedings originating from a bill of indictment lodged by a public prosecutor upon a complaint by two individuals. The criminal proceedings were thus continued even after the applicant had reached a friendly settlement with one of the complainants. The applicant was sentenced to a fine equivalent to 1,160 euros, fifty times the minimum. The Court cannot, therefore, conclude that the criminal sanction imposed on the applicant was insignificant.\n\n64.  In conclusion, the Court finds that in the instant case the domestic courts failed to comprehensively assess the wider context of the applicant’s statements and carefully balance her right to freedom of expression with the rights of others to have their religious feelings protected and religious peace preserved in the society (compare and contrast, ES., cited above, § 57). It has not been demonstrated that the interference in the instant case was required, in accordance with the State’s positive obligations under Article 9 of the Convention, to ensure the peaceful coexistence of religious and non-religious groups and individuals under their jurisdiction by ensuring an atmosphere of mutual tolerance. Moreover, the Court considers that the expressions under examination did not amount to an improper or abusive attack on an object of religious veneration, likely to incite religious intolerance or violating the spirit of tolerance, which is one of the bases of a democratic society (compare and contrast E.S., cited above, § 53).\n\nThe Court thus considers that – despite the wide margin of appreciation - the domestic authorities failed to put forward sufficient reasons capable of justifying the interference with the applicant’s freedom of speech.\n\n65.  Accordingly, there has been a violation of Article 10 of the Convention.\n\nAPPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n66.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nDamage\n\n67.  The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage.\n\n68.  The Government contested the claim.\n\n69.  The Court accepts that the applicant suffered nonpecuniary damage – such as distress and frustration resulting from the conviction – which is not sufficiently compensated by the finding of a violation of the Convention and awards the amount claimed in full.\n\nCosts and expenses\n\n70.  The applicant, who was represented by a lawyer of her choice, made no claim in respect of the costs and expenses incurred before the domestic courts or before the Court.\n\nDefault interest\n\n71.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT,\n\nDeclares, unanimously, the application admissible;\n\nHolds, by 6 votes to 1 that there has been a violation of Article 10 of the Convention;\n\nHolds, by 6 votes to 1,\n\nthat the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 10,000 (ten thousand euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement, in respect of non-pecuniary damage;\n\nthat from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.\n\nDone in English, and notified in writing on 15 September 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.\n\nIn accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:\n\n(a)  Joint concurring opinion of Judges Felici and Ktistakis.\n\n(b)  Dissenting opinion of Judge Wojtyczek.\n\nP.P.C.\nR.D.\n\n1.  We voted in favour of finding a violation of Article 10 of the Convention in this case, but on the basis of reasoning which differs from that of the majority of the Court.\n\n2.  In particular, we disagree with the technique of subordinating one fundamental freedom to another (see paragraphs 52, 55 and 64 of the present judgment). Religious freedom (Article 9) is downgraded to a restriction on or exception to freedom of expression (Article 10) and competes with it. However, no argument can be derived from the European Convention on Human Rights which would support such subordination of one fundamental freedom to another. By contrasting the approach in the present case to that of the Otto-Preminger-Institut v. Austria (20 September 1994, Series A no. 295A) case-law, one notes that a similar reversal of the internal balance of Article 10 was avoided therein: in the crucially important judgment in Open Door and Dublin Well Woman v. Ireland (29 October 1992, Series A no. 246A), the Court refused to include the right to life (Article 2) within the meaning of “protection of the rights of others”. The Court’s case-law does, admittedly, seem consistent with the approach taken by the majority in the present judgment. Nevertheless, the judgments in Otto-Preminger-Institut and Wingrove v. the United Kingdom (25 November 1996, Reports of Judgments and Decisions 1996V) (quoted in paragraphs 51 and 52 of the present judgment, and in paragraphs 44 and 46 of the pertinent E.S. v. Austria judgment (no. 38450/12, § 44, 25 October 2018) are old, dating from 1994 and 1996 respectively, and contain strong dissenting opinions. Both Otto-Preminger-Institute and Wingrove were the subject of much controversy at the relevant time (and the European Commission of Human Rights, for its part, expressed the opinion, by a large majority, that there had been a violation of Article 10 in both cases).\n\n3.  The time has come to reassess this case-law. Which new direction should be taken? One new approach could be to examine all blasphemy-related restrictions on freedom of expression under Article 10 exclusively in terms of the legitimate aim of protecting public order (religious peace). We consider that the following paragraph (no. 15) of PACE Recommendation 1805 (2007) is potentially very important for any such new direction: “national law should only penalise expressions concerning religious matters which intentionally and severely disturb public order and call for public violence” (see paragraph 29 of the judgment).\n\n4.  Turning to the application of this proposed new case-law approach to the present case, it must be noted that there is no real link between the statements made by the applicant and the large number of persons in Poland who could be described as Bible followers. In fact, the interview with the applicant did not severely disturb public order and, of course, did not contain a call for public violence.\n\n5.  In respect of the first aspect, it is to be noted that the interview “had been viewed a record number of times” (see paragraph 10), and that her comments “had reached a wide audience” (see paragraph 13); further, according to the Government, 90% of the population in Poland is Catholic (see paragraph 37). Nevertheless, only two individuals, namely, R.N. and S.K., complained to the public prosecutor (see paragraph 7). Again with reference to the first aspect, had the applicant been the leader of an opposing religious group or an anti-Catholic movement, she could have undermined religious peace through statements of this kind, and the effects of these statements would even be visible long afterwards. But the applicant is a popular pop singer; in addition, she criticised the Bible, perhaps harshly, in 2009 because she wanted to support the scientific approach to the creation of the world (“convinced by scientific discoveries”, see paragraph 6 of the judgment) rather than the religious one.\n\n6.  In respect of the second aspect, the statements made during the interview certainly do not constitute a call for public violence.\n\n7.  In conclusion, we believe that the interference in the instant case was not required, because the expressions under examination did not severely disturb public order, far less constitute a call for public violence (compare and contrast paragraph 64 of the judgment).\n\n1.  I respectfully disagree with the view that there has been a violation of Article 10 in the instant case.\n\n2.  The instant case bears similarities to the cases of Otto-Preminger-Institut v. Austria (20 September 1994, Series A no. 295A) and Wingrove v. the United Kingdom (25 November 1996, Reports of Judgments and Decisions 1996V), as well as to İ.A. v. Turkey (no. 42571/98, ECHR 2005VIII), and E.S. v. Austria (no. 38450/12, 25 October 2018), in which the Court found no violations of Article 10. At the same time, it differs considerably from cases such as Tagiyev and Huseynov v. Azerbaijan, (no. 13274/08, 5 December 2019), where the sanction was clearly disproportionate.\n\nAs in the above-mentioned cases, the issue before the Court involves weighing up the conflicting interests of the exercise of two fundamental freedoms guaranteed under the Convention, namely, on the one hand, the freedom to impart to the public one’s own views and, on the other hand, the right of other persons to respect for their freedom of thought, conscience and religion, as well as their identity (see, for instance, İ.A. v. Turkey, cited above, § 27, and E.S. v. Austria, cited above, § 46). It should be noted here that freedom from insults affecting the religious feelings of the believers is an important element of freedom of conscience and religion (compare İ.A. v. Turkey, §§ 29-30).\n\n3.  The instant case must be placed in a wider social context, characterised by a rapidly growing number of religiophobic acts, of various guises, in Europe. These concern mainly Judaism and Christianity. Religiophobic acts include, in particular, acts of physical aggression against priests, which have led to the death of certain of the persons attacked, frequent verbal aggression (in public places and in the media) against believers, malicious disruption of religious worship, as well as innumerable acts of vandalism directed against places of religious worship, religious symbols and denominational cemeteries throughout Europe. The number of Christianophobic acts, including physical assaults on priests, is increasing particularly speedily in Poland.\n\nThe Organization for Security and Cooperation in Europe has started to collect data about acts motivated by anti-religious hate or prejudice (see paragraph 28). However, as the data collected by the OSCE are far from exhaustive and, in particular, do not cover all European States, they reflect only a small proportion of the religiophobic acts committed throughout Europe.\n\nAgainst this backdrop, religiophobic speech constitutes an indirect incitement to more serious offenses against religious groups or their members, whereas the lack of an adequate reaction from the authorities to hate-motivated or prejudice-motivated acts against religious groups and their members may create an atmosphere of official acquiescence and develop a general feeling of impunity. In any event, the problem of the growing number of hate-motivated or prejudice-motivated acts against religious groups calls for effective steps to be taken at both international and national levels to protect the persons affected.\n\n4.  The impugned comments pertain to the Bible, which is considered by Jews, Karaites and Christians to have been divinely inspired. The Hebrew Bible (Tanakh) lies at the heart of the Jewish faith and is recognised as defining Jewish identity. The Christian Bible plays a central role in Protestantism and defines the identity of various Protestant denominations. It also has special importance for all other Christian groups, including Orthodox Christians and Catholics, who see in it an object of particular veneration as the Holy Scripture.\n\n5.  I note that the impugned formulations touched directly upon religious beliefs (compare and contrast Giniewski v. France, no. 64016/00, § 51, ECHR 2006I) and sacred symbols (compare and contrast Aydın Tatlav v. Turkey, no. 50692/99, § 28, 2 May 2006). They do not consist in the denial of religious beliefs but are offensive and constitute gratuitous attacks upon an object of veneration of numerous religious denominations. As in İ.A. v. Turkey, cited above, “the present case concerns not only comments that offend or shock, or a ‘provocative’ opinion, but also an abusive attack” and “believers may legitimately feel themselves to be the object of unwarranted and offensive attacks” (see İ.A. v. Turkey, cited above, § 29). As in E.S. v. Austria, the applicant’s comments could have aroused justified indignation among them (see E.S. v. Austria, cited above, §§ 52 and 57). Furthermore, in contrast to the situation in E.S. (see § 8 of that judgment), the comments were not proffered at a meeting attended by a small number of persons, but instead reached a very wide audience.\n\nMoreover, the impugned utterances touched upon an essential element of the identity of numerous religious groups and were aimed at ridiculing these groups. They were motivated by prejudice and conveyed a negatively stereotyped image of believers from several denominations, stigmatising specific religious groups as poorly educated persons who believe in superstitions. They could legitimately be perceived by these religious groups as severely impacting the dignity, sense of identity and feelings of self-worth and self-confidence of the members of those groups (compare Aksu v. Turkey [GC], nos. 4149/04 and 41029/04, § 58 ECHR 2012; Király and Dömötör v. Hungary, no. 10851/13, § 41, 17 January 2017; and Behar and Gutman v. Bulgaria, no. 29335/13, § 65, 16 February 2021).\n\n6.  The domestic courts assessed the content and form of the impugned remarks within the general context of the interview, having regard, in particular, the conflicting values at stake as well as the author’s intention and the public interest of the subject matter under discussion (compare and contrast Tagiyev and Huseynov, cited above, § 48). The issue of the permissible limits of criticism of religion was carefully discussed, in particular in the Constitutional Court’s judgment of 6 October 2015 (see paragraph 19 of the judgment).\n\nIn those circumstances, it cannot be claimed that the conclusions reached by the Polish courts were groundless and unjustified. In punishing the applicant for her statements, the authorities acted to preserve religious peace and to prevent individuals (from several religious groups) from feeling that an element of their identity could, with impunity, be the object of gratuitous and offensive verbal attacks, motivated by prejudice and rejection of the groups concerned. I therefore disagree with the view expressed in paragraph 64 that “the expressions under examination did not amount to an improper or abusive attack on an object of religious veneration, likely to incite religious intolerance or violating the spirit of tolerance, which is one of the bases of a democratic society”.\n\n7.  The majority refer to the Council of Europe and European Union soft-law documents defining hate speech or advocating the abolition of the offence of blasphemy (see paragraphs 29-31 of the judgment). The problem with the approach reflected therein is that it does not take sufficient account of the specificity of religion as a social phenomenon and does not offer sufficient protection to religious groups. Aggression directed against the sacrum affects individuals and groups of individuals. The legal issue at stake concerns individuals, not religions or ideologies. Gratuitous insults directed against the sphere of sacrum are a form of verbal aggression against believers, which is usually felt by them as much more offensive and painful than insults targeting the members of a religious group directly. Insulting or mocking the sphere of sacrum is also a tool for promoting exclusion and developing social prejudices against specific religious groups and affects the dignity, sense of identity and feelings of self-worth and self-confidence of the members of these groups. As a result, religious peace and the harmonious co-existence of various beliefs and philosophical convictions may be undermined (compare Gorzelik and Others v. Poland [GC], no. 44158/98, §§ 92-93, ECHR 2004I, and “Orthodox Ohrid Archdiocese (Greek-Orthodox Ohrid Archdiocese of the Peć Patriarchy)” v. the former Yugoslav Republic of Macedonia, no. 3532/07, § 95, 16 November 2017).\n\n8. As stated above, the instant case bears similarities to İ.A. v. Turkey and E.S. v. Austria, in which the Court found no violations of Article 10. In this context, the most recent case-law may create an impression that in cases concerning Islam the Court follows its established approach and seeks to protect religious feelings effectively against anti-religious speech, whereas in cases involving other religions, the approach has evolved and the protection offered to believers against abusive anti-religious speech has weakened.","title":""}
{"_id":"passage_58","text":"PROCEDURE\n\n1.  The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table.\n\n2.  The Russian Government (“the Government”) were given notice of the applications.\n\nTHE FACTS\n\n3.  The list of applicants and the relevant details of the applications are set out in the appended table.\n\n4.  The applicants complained of the inadequate conditions of detention during their transport. They also raised other complaints under the provisions of the Convention.\n\nTHE LAW\n\nJOINDER OF THE APPLICATIONS\n\n5.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.\n\nALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION\n\n6.  The applicants complained principally of the inadequate conditions of detention during their transport. They relied on Article 3 of the Convention, which reads as follows:\n\nArticle 3\n\n“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”\n\n7.  The Court notes that the applicants were detained in poor conditions during transport. The details of the applicants’ transport are indicated in the appended table. The Court refers to the principles established in its caselaw regarding cramped and defective conditions in the detention and transit of prisoners (see, for instance, Khudoyorov v. Russia, no. 6847/02, §§ 11820, ECHR 2005-X (extracts), and Starokadomskiy v. Russia, no. 42239/02, §§ 5360, 31 July 2008). It reiterates in particular that extreme lack of space in a prison cell or overcrowding weighs heavily as an aspect to be taken into account for the purpose of establishing whether the impugned detention conditions were “degrading” from the point of view of Article 3 and may disclose a violation, both alone or taken together with other shortcomings (see Muršić v. Croatia [GC], no. 7334/13, §§ 12241, ECHR 2016, and Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 14959, 10 January 2012).\n\n8.  In the leading cases of Idalov v. Russia [GC], no. 5826/03, §§ 103-08, 22 May 2012, and Tomov and Others v. Russia, nos. 18255/10 and 5 others, 9 April 2019 the Court already found a violation in respect of issues similar to those in the present case.\n\n9.  Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the applicants’ conditions of detention during their transport were inadequate.\n\n10.  These complaints are therefore admissible and disclose a breach of Article 3 of the Convention.\n\nOTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW\n\n11.  In applications nos. 5306/18 and 7021/19, the applicants submitted other complaints which also raised issues under the Convention, given the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its well-established case-law (see Tomov and Others, cited above, §§143-56, concerning the lack of an effective remedy in respect of the complaint about conditions of detention during transport).\n\nREMAINING COMPLAINTS\n\n12.  The applicants also raised other complaints under various Articles of the Convention.\n\n13.  The Court has examined the applications listed in the appended table and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.\n\nIt follows that this part of the applications must be rejected in accordance with Article 35 § 4 of the Convention.\n\nAPPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n14.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\n15.  Regard being had to the documents in its possession and to its caselaw (see, in particular, Pukhachev and Zaretskiy v. Russia, nos. 17494/16 and 29203/16, 16 November 2017), the Court considers it reasonable to award the sums indicated in the appended table.\n\n16.  The Court further considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\nDecides to join the applications;\n\nDeclares the complaints concerning the inadequate conditions of detention during transport and the other complaints under wellestablished case-law of the Court, as set out in the appended table, admissible, and the remainder of the applications inadmissible;\n\nHolds that these complaints disclose a breach of Article 3 of the Convention concerning the inadequate conditions of detention during transport;\n\nHolds that there has been a violation of the Convention as regards the other complaints raised under well-established case-law of the Court (see the appended table);\n\nHolds\n\nthat the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;\n\nthat from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default during the default period plus three percentage points.\n\nDone in English, and notified in writing on 13 October 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_850","text":"PROCEDURE\n\n1.   The present case was referred to the Court by the European Commission of Human Rights (\"the Commission\") and by the Government of the Republic of Austria (\"the Government\") on 14 March and 30 April 1985 respectively, within the three-month period laid down by Article 32 § 1 and Article 47 (art. 32-1, art. 47) of the Convention. The case originated in an application (no. 9120/80) against the , lodged with the Commission under Article 25 (art. 25) on 1 September 1980 by an Austrian citizen, Mr. Alois Unterpertinger.\n\nThe Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby  recognised the compulsory jurisdiction of the Court (Article 46) (art. 46); the Government’s application referred to Article 48 (art. 48). Both sought a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 6 §§ 1 and 3 (d) (art. 6-1, art. 6-3-d).\n\n2.   In response to the enquiry made in accordance with Rule 33 § 3 (d) of the Rules of Court, the applicant stated that he wished to take part in the proceedings pending before the Court and designated the lawyer who would represent him (Rule 30).\n\n3.   The Chamber of seven judges to be constituted included, as ex officio members, Mr. F. Matscher, the elected judge of Austrian nationality (Article 43 of the Convention) (art. 43), and Mr. G. Wiarda, the President of the Court (Rule 21 § 3 (b)). On 27 March 1985, the President drew by lot, in the presence of the Registrar, the names of the five other members, namely Mrs. D. Bindschedler-Robert, Mr. J. Pinheiro Farinha, Mr. E. García de Enterría, Mr. B. Walsh and Sir Vincent Evans (Article 43 in fine of the Convention and Rule 21 § 4) (art. 43). Subsequently, Mr. García de Enterría, Mr. Pinheiro Farinha and Mrs. Bindschedler-Robert, who were unable to take part in the proceedings, were replaced by Mr. W. Ganshof van der Meersch, Mr. C. Russo and Mr. R. Macdonald, substitute judges (Rule 24 § 1).\n\n4.   Having assumed the office of President of the Chamber (Rule 21 § 5), Mr. Wiarda ascertained, through the Deputy Registrar, the views of the Agent of the Government, the Delegate of the Commission and Mr. Unterpertinger’s representative on the need for a written procedure (Rule 37 § 1). On 24 April, he directed that the applicant’s representative should have until 6 June 1985 to submit a memorial and that the Delegate should be entitled to file a reply within two months of the transmission of that memorial to him by the Registrar. On 12 April, the President had granted the applicant’s lawyer leave to use the German language (Rule 27 § 3).\n\n5.   The Registrar received the applicant’s memorial on 10 June.\n\nOn 11 July, the Secretary to the Commission notified the Registrar that the Delegate would submit his observations orally at the hearing.\n\nAt the Delegate’s request, the President directed on 3 December 1985 that one paragraph in the applicant’s memorial should not be published or otherwise made accessible to the public (Rule 55).\n\n6.   Earlier, on 23 October, after consulting - through the Deputy Registrar - the Agent of the Government, the Delegate of the Commission and the applicant’s representative, the President had directed that the oral proceedings should open on 17 February 1986 (Rule 38).\n\nOn 3 February 1986, the Commission supplied to the Registrar certain documents which he had requested on the President’s instructions.\n\n7.   The hearings were held in public in the , , on the appointed day. The Court had held a preparatory meeting immediately beforehand.\n\nThere appeared before the Court:\n\n- for the Government\n\n- for the Commission\n\n- for the applicant\n\nThe Court heard their addresses as well as their replies to its questions. The Government and the applicant produced documents at the hearings.\n\nTHE FACTS\n\n8.   Mr. Unterpertinger, who is an Austrian national born in 1938, lives in Wörgl.\n\nHe complains of criminal proceedings brought against him for causing actual bodily harm to his step-daughter on 14 August 1979 and to his wife on the following 9 September.\n\n1. Police proceedings\n\n9.   The incident on 14 August 1979 was reported to the Wörgl police (Gendarmeriepostenkommando) that day, first by a neighbour at the applicant’s request and then by the applicant himself. According to him, his wife and step-daughter - who had that morning called him a \"convict\" (Zuchthäusler) - attacked him at about midday during a quarrel. In particular, he claimed that his wife had inflicted several head wounds with a paper-knife and gashed his forehead close to his eyebrow. He had needed treatment by a doctor.\n\nHe admitted that he had pushed his wife at the time and had tried unsuccessfully to slap his step-daughter in the face.\n\n10.   On 22 August 1979, the police questioned the applicant’s wife as a \"suspect\" (Verdächtige) and his step-daughter, Miss Tappeiner, as a \"person involved\" (Beteiligte).\n\nMrs. Unterpertinger stated that she had been slapped in the face and beaten by her husband, who had grabbed her daughter by the hair to stop her running away; both of them had then fought back. She had been holding a paper-knife and had, she said, probably struck him with it, but neither she nor her daughter had deliberately caused him any wounds to the head or face.\n\nMiss Tappeiner admitted having called her step-father a \"convict\" that morning, and said that he had responded by slapping her in the face, but without injuring her. During the quarrel at midday, he had hit her mother several times, once in the face. When she herself had tried to escape, he had grabbed her by the hair and scratched her just below the right eye. He had also grabbed her mother by the hair and by the scruff of the neck. The two women had therefore fought back, and she had pulled her step-father’s hair but had not hit him; she had not seen her mother strike him with the paper-knife. Her step-father’s forehead was bleeding, but she had not seen a wound on the back of his head. She added that a doctor she had consulted had issued a certificate in respect of her own injury.\n\n11.   On 28 August 1979, the Wörgl police sent the Kufstein District Court (Bezirksgericht) a report (Strafanzeige) \"concerning Alois Unterpertinger and Rosi Unterpertinger, suspected of causing actual bodily harm (Körperverletzung)\".\n\nAccording to the police, Mrs. Unterpertinger and her daughter had attacked the applicant in the course of a quarrel, during which the former had probably (vermutlich) struck him several times with a paper-knife, causing a laceration on the back of his head and again close to his eyebrow. He himself had allegedly (angeblich) hit his step-daughter in the face and scratched her slightly just below the right eye.\n\nUnder the heading \"Evidence\", the report referred to the statement by the above-mentioned neighbour of the Unterpertingers to the effect that the applicant, whose face was covered in blood, had asked her to alert the police. The applicant had appeared in person at the police station ten minutes later holding a paper-knife; he had explained that his wife had struck him on the head with it several times. Since Mr. Unterpertinger seemed to need first aid, the officer on duty had suggested that he should see a doctor.\n\nThe police went on to say that they had already had to intervene in several quarrels in the household. They added that the three protagonists had given conflicting accounts of the incident on 14 August. Miss Tappeiner, who had been questioned as an informant (Auskunftsperson), had clearly taken her mother’s side.\n\nThe report indicated that the applicant’s injuries had been described as \"slight\" by the doctor.\n\nUnder the heading \"Information given by the suspects\", the police summarised Mr. and Mrs. Unterpertinger’s statements.\n\nThe report was accompanied by several documents, including the statements made by the applicant, his wife and his step-daughter and the certificate issued by the doctor who had examined Miss Tappeiner.\n\n12.   The second incident, which took place on 9 September 1979, was reported to the Wörgl police on 14 September by Mrs. Unterpertinger. She stated that her husband, who was slightly drunk, had kicked her right arm during a quarrel, causing her acute pain. An X-ray at the hospital next day had shown that her right thumb was broken, and this had left her unfit for work for a period of four weeks. She added that she had started divorce proceedings against her husband.\n\nOn 11 September, the hospital in Wörgl had sent the police a report stating that the injury, inflicted by the complainant’s \"own husband\", should be regarded as serious.\n\n13.   The police took a statement from Mr. Unterpertinger on 17 October. He denied injuring his wife on 9 September, saying that her hand had already been bandaged when he had come home. She had actually attempted to hit him on the head with a hairbrush, but had missed and collided with the stair-rail instead. This might have aggravated the thumb injury, but the accusation she had made against him was a complete fabrication.\n\nThe applicant confirmed that divorce proceedings had been pending for some time.\n\n14.   On 20 October, the Wörgl police sent the Kufstein District Court a report \"concerning Alois Unterpertinger, suspected of causing grievous bodily harm\". This stated that the couple had had a quarrel on 9 September, during which Mr. Unterpertinger had kicked his wife’s right arm. It went on to summarise Mrs. Unterpertinger’s and her husband’s statements, which were appended.\n\n2. The investigation (Vorerhebungen)\n\n15.   On an application from the Innsbruck Public Prosecutor’s Department, the Kufstein District Court decided on 9 November 1979 to open an investigation against the applicant in respect of the two incidents. After separating the proceedings against Mrs. Unterpertinger in respect of the first incident (see paragraph 11 above), the District Court acquitted her on 28 January 1980.\n\n16.   On 3 December 1979, Mrs. Unterpertinger appeared before a judge at Kufstein, who told her that, as the wife of the accused (Beschuldigter), she was entitled to refuse to give evidence. In fact, Article 152(1)(1) of the Code of Criminal Procedure provides: \"members of the accused’s family ... shall not be required to give evidence\".\n\nShe replied that she nonetheless wished to do so, and gave an account of the facts in dispute, summarising what she had already told the police and disputing her husband’s version of the incident on 9 September.\n\nSuspected of causing actual bodily harm contrary to Articles 83 et seq. of the Criminal Code, the applicant was questioned on 12 December by a judge of the Innsbruck District Court. He admitted slapping his wife in the face on 14 August. According to him, he had pulled Miss Tappeiner’s hair in order to escape the two women’s attacks and might in so doing have injured her close to her eye; he had also struck her in the face. As regards the second incident, he repeated what he had already said (see paragraph 13 above); he also stated that he had not seen his wife come into contact with the stair-rail and added that he was not sufficiently agile to have been able to kick her thumb.\n\n3. The proceedings at first instance\n\n17.   The case was heard on 10 March 1980 by a judge of the  (Landesgericht), sitting alone.\n\n18.   According to the record of the hearing, the applicant pleaded not guilty. He admitted that he had hit his step-daughter on the head, but not that he had injured her. Nor had he broken his wife’s thumb by kicking it; he had no idea where she had broken it.\n\n19.   The Regional Court then called Mrs. Unterpertinger and Miss Tappeiner. On being told by the court of their right to refuse to give evidence (see paragraph 16 above), they replied that they wished to avail themselves of that right. The court was consequently unable to examine them or to read out the record of Mrs. Unterpertinger’s interview with the judge at Kufstein (Article 252(1) of the Code of Criminal Procedure).\n\nAt the request of the Public Prosecutor’s Department, however, the documents it had mentioned in its application for leave to prosecute (Strafantrag), including the police reports, the accused’s criminal record and two files relating to previous convictions of his, were read out. These documents thus included the various statements made to the police: in Austrian judicial practice these had to be regarded as documents for the purposes of Article 252(2) of the Code of Criminal Procedure (see in particular judgment of 14 November 1974 of the Supreme Court (Oberster Gerichtshof, Österreichische Juristenzeitung 1975, p. 304); this meant that they had to be read out, unless the parties agreed that they should not be.\n\n20.   At the end of the hearing, the Regional Court found the applicant guilty of having committed, on 14 August 1979, the offence (Vergehen) of causing actual bodily harm (Article 83(1) of the Criminal Code) to his step-daughter and, on 9 September 1979, the offence of causing grievous bodily harm (schwere Körperverletzung, Articles 83(1) and 84(1) of the Criminal Code) to his wife. He was sentenced to six months’ imprisonment.\n\nReferring to the \"inquiries made\" and to the defence (Verantwortung) put forward by Mr. Unterpertinger, the court held that the following facts had been established.\n\nDuring the quarrel on 14 August 1979, the applicant had hit his wife several times and had struck his step-daughter in the face, bruising her between the eye and nose and scratching her close to her right eye. His account could not be believed: he had admitted to the judge at Kufstein that he had struck Miss Tappeiner in the face and he had not ruled out the possibility that this might have caused the scratch. The injuries were slight, but his conduct showed that his actions had been deliberate.\n\nOn 9 September, Mr. Unterpertinger had broken his wife’s right thumb by kicking her. Again, his defence did not stand up to examination. In addition, his record showed that he was quite capable of behaving in this way. He and his wife had had frequent quarrels, often ending in assault.\n\nThe court pointed out that Mrs. Unterpertinger - who in the meantime had divorced her husband - and her daughter had refused to give evidence at the trial. It nonetheless found their statements to the police \"sufficiently clear and specific to support a conviction\"; \"there [could be] no doubt as to the truth of these statements\". In this instance too, the applicant had acted deliberately.\n\nThe court found no mitigating circumstances; on the contrary, it saw the applicant’s criminal record as an aggravating circumstance.\n\n4. The appeal proceedings\n\n21.   Mr. Unterpertinger appealed on 9 April 1980.\n\nHe argued that the judgment of 10 March was null and void (Article 281(1)(3) of the Code of Criminal Procedure): in spite of Article 152 of the Code of Criminal Procedure, his former wife and step-daughter, whose statements to the police had formed the sole basis of his conviction, had not been informed at the outset that they were entitled to refuse to give evidence, and had thus been unable to avail themselves of this right.\n\nFurthermore, the  had not taken sufficient account of certain circumstances which made the credibility of Mrs. Unterpertinger and her daughter doubtful. In this connection, the applicant requested that evidence should be taken from several witnesses, including two doctors, a police officer, a neighbour and his own mother, step-daughter and former wife.\n\nFinally, he emphasised that in the past he had always admitted the offences with which he had been charged - as was clear from the files on the earlier proceedings. In this instance, however, he had acted in self-defence during the first incident and with no intention of injuring his step-daughter - if indeed he really had injured her. The  had disregarded his version of the events of 14 August 1979. As for the incident of 9 September 1979, he repeated that his former wife had been having trouble with her right thumb even before that date, as he had mentioned when he was first questioned. He further claimed that he himself had been suffering from a knee injury which would have prevented him from kicking hard enough to break his wife’s thumb. He requested that these points should be investigated further and, in particular, that evidence should be taken from a number of people and an expert opinion (Sachbefund) obtained.\n\nIn conclusion, Mr. Unterpertinger asked the Innsbruck Court of Appeal (Oberlandesgericht) to quash the conviction of 10 March and acquit him. Failing this, he asked it to review his sentence in the light of the degree of his guilt.\n\n22.   The Court of Appeal sat on 4 June 1980.\n\nCounsel for the applicant submitted the grounds of appeal and requested, inter alia, that additional witnesses be called by the court. He added that the fact that his client was not allowed to put questions concerning the statements made to the police by the prosecution witnesses contravened the European Convention on Human Rights. The prosecution sought to have the appeal dismissed.\n\nThereupon, the court decided to re-examine the evidence submitted to the court of first instance and to supplement it (Wiederholung und Ergänzung) by having the file on the divorce proceedings read out and hearing testimony from the wife of Mr. Unterpertinger’s brother. She was unable to say whether the applicant’s former wife had had a bandage on her hand in the autumn or summer of 1979. The applicant waived his right to cross-examine her.\n\nThe court had the documents in the file on the case read out and put several questions to Mr. Unterpertinger, in particular about his knee injury. According to him, he was asked to walk up and down so that the judges could form an idea of his condition.\n\nThe court refused to admit the remaining evidence proffered, as to part, on the ground that the circumstances to which it related were of no importance and, as to the rest, because the applicant had not specified the matters he wished to be investigated further.\n\n23.   The Court of Appeal dismissed the applicant’s appeal immediately after the hearing on 4 June 1980.\n\nWith regard to the ground of nullity on which he had relied (see paragraph 21 above), it noted, on the basis of the Supreme Court’s case-law, that a lawful refusal to give evidence did not prevent the court from having read out witnesses’ statements which had been made to the police (Sicherheitsbehörden) and not during the judicial proceedings proper. It added that the Supreme Court had ruled that the courts were indeed obliged to have such statements read out and to weigh them as evidence.\n\nOtherwise, the Court of Appeal was of the opinion that the evidence it had heard confirmed the findings of the . The victims’ statements to the police were plausible and credible; their account of the incident was logically coherent. The applicant’s previous convictions showed that conduct like that of which he was accused was by no means alien to his nature. Moreover, he had given the police and the investigating judge conflicting versions of what had happened on 9 September 1979. His sister-in-law, who had been called as a witness, had been unable to give any information in this regard. As for his claim that he was not sufficiently agile to have been able to break his wife’s thumb with a kick, this did not stand up to examination either.\n\nExcept for his sister-in-law, it was unnecessary to hear the witnesses the applicant had sought to have called, since he had referred to them in connection with matters that were either of no importance or else extremely vague.\n\nConsequently, Mr. Unterpertinger’s conviction on the two counts against him was justified; he had not been acting in self-defence on 14 August 1979. The sentence imposed was consistent with the degree of his guilt (schuldangemessen).\n\n24.   The applicant served his sentence from 22 September 1980 to 22 March 1981.\n\nPROCEEDINGS BEFORE THE COMMISSION\n\n25.   Before the Commission, to which he applied on 1 September 1980 (application no. 9120/80), Mr. Unterpertinger complained of the proceedings which had led to his conviction and alleged that they had violated Article 6 §§ 1 and 3 (d) (art. 6-1, art. 6-3-d) of the Convention.\n\n26.   The Commission declared the application admissible on 8 July 1983.\n\nIn its report of 11 October 1984 (Article 31) (art. 31), the Commission expressed the opinion that there had been no breach of paragraph 3 (d) of Article 6 (art. 6-3-d) (five votes to five, with the President’s casting vote, Rule 18 § 3 of the Rules of Procedure) or of paragraph 1 (art. 6-1) (five votes to four, with one abstention). The full text of the Commission’s opinion and of the separate opinions contained in the report is reproduced as an annex to the present judgment.\n\nFINAL SUBMISSIONS BY THOSE APPEARING BEFORE THE COURT\n\n27.   At the hearing on 17 February 1986, the Court was requested\n\n- by the Government, \"to hold that in the present case the provisions of Article 6 §§ 3 (d) and 1 (art. 6-3-d, art. 6-1) of the European Convention on Human Rights have not been violated and that therefore the facts underlying the dispute do not reveal any breach by the Republic of Austria of its obligations under the Convention\";\n\n- by the Delegate of the Commission, \"to find, in accordance with the majority of the Commission, no violation of Article 6 (art. 6)\";\n\n- by the applicant, \"to find that the Republic of Austria violated several provisions of the Convention in these criminal proceedings\" and \"to require the Republic of Austria to pay appropriate compensation\".\n\nAS TO THE LAW\n\nI.   ALLEGED VIOLATION OF ARTICLE 6 (art. 6)\n\n28.   The applicant claimed that he had been convicted exclusively on the basis of the statements made to the police by his former wife and step-daughter, which statements had been read out at the hearing. He asserted that because the two women had refused, as close relatives, to give evidence at the trial, he had not had an opportunity to examine them or to have them examined at any stage of the proceedings. Nor, he maintained, had the Court of Appeal given him any chance to put their credibility in doubt, since it had not agreed to hear on this point the persons he had sought to have called as witnesses. He alleged a breach of Article 6 §§ 1 and 3 (d) (art. 6-1, art. 6-3-d) of the Convention, which provide:\n\n\"1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by <a> ... tribunal ....\n\n...\n\n3. Everyone charged with a criminal offence has the following minimum rights:\n\n...\n\n(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;\n\n....\"\n\nThe Government disputed this claim, which was not accepted by the Commission either.\n\n29.   Those appearing before the Court made their submissions firstly in relation to paragraph 3 (d) of Article 6 (art. 6-3-d), and then in relation to paragraph 1 (art. 6-1). The Court recalls that the guarantees contained in paragraph 3 (art. 6-3) are specific aspects of the general concept of a fair trial set forth in paragraph 1 (art. 6-1) (see, as the most recent authority, the Bönisch judgment of 6 May 1985, Series A no. 92, pp. 14-15, § 29). In the circumstances of the instant case, it will consider the applicant’s complaints from the angle of paragraph 1 (art. 6-1) taken together with the principles inherent in paragraph 3 (d) (art. 6-3-d).\n\n30.   When called by the Innsbruck Regional Court, Mrs. Unterpertinger and Miss Tappeiner refused to give evidence, as they were entitled to do by virtue of Article 152(1)(1) of the Austrian Code of Criminal Procedure (see paragraphs 16 and 19 above). This accordingly prevented the trial judge from hearing them as witnesses and prevented the defence - and the prosecution - from examining them during the oral proceedings. As such, the provision manifestly is not incompatible with Article 6 §§ 1 and 3 (d) (art. 6-1, art. 6-3-d) of the Convention: it makes allowance for the special problems that may be entailed by a confrontation between someone \"charged with a criminal offence\" and a witness from his own family and is calculated to protect such a witness by avoiding his being put in a moral dilemma; furthermore, there are comparable provisions in the domestic law of several member States of the Council of Europe.\n\n31.   While the trial court and then the Court of Appeal were thus unable to hear evidence from Mrs. Unterpertinger and Miss Tappeiner - or to acquaint themselves with the statements made by the former to the judge at Kufstein -, they had, on the other hand, been obliged to have the women’s statements to the police read out when the prosecution so requested (see paragraph 19 above).\n\nIn itself, the reading out of statements in this way cannot be regarded as being inconsistent with Article 6 §§ 1 and 3 (d) (art. 6-1, art. 6-3-d) of the Convention, but the use made of them as evidence must nevertheless comply with the rights of the defence, which it is the object and purpose of Article 6 (art. 6) to protect. This is especially so where the person \"charged with a criminal offence\", who has the right under Article 6 § 3 (d) (art. 6-3-d) to \"examine or have examined\" witnesses against him, has not had an opportunity at any stage in the earlier proceedings to question the persons whose statements are read out at the hearing.\n\n32.   In the instant case the police had taken statements from Mrs. Unterpertinger as a \"suspect\" in relation to the incident on 14 August 1979 and then as a complainant in relation to the incident on 9 September 1979; from Miss Tappeiner they had taken a statement as a \"person involved\" in connection with the first incident (see paragraphs 10 and 12 above). By refusing to give evidence in court, they prevented the applicant from examining them or having them examined on their statements. Admittedly, he was able to submit his comments freely during the hearing, but the Court of Appeal refused to admit the evidence he sought to adduce in order to put his former wife’s and step-daughter’s credibility in doubt (see paragraph 21 above).\n\n33.   It is true that the statements made by Mrs. Unterpertinger and Miss Tappeiner were not the only evidence before the courts. They also had before them, inter alia, the police reports, the medical reports appended thereto and the file on the couple’s divorce proceedings (see paragraphs 19 and 22 above); in addition, the Court of Appeal had heard a sister-in-law of Mr. Unterpertinger as a witness.\n\nHowever, it is clear from the judgment of 4 June 1980 that the Court of Appeal based the applicant’s conviction mainly on the statements made by Mrs. Unterpertinger and Miss Tappeiner to the police. It did not treat these simply as items of information but as proof of the truth of the accusations made by the women at the time. Admittedly, it was for the Court of Appeal to assess the material before it as well as the relevance of the evidence which the accused sought to adduce; but Mr. Unterpertinger was nevertheless convicted on the basis of \"testimony\" in respect of which his defence rights were appreciably restricted.\n\nThat being so, the applicant did not have a fair trial and there was a breach of paragraph 1 of Article 6 (art. 6-1) of the Convention, taken together with the principles inherent in paragraph 3 (d) (art. 6-3-d).\n\nII.   APPLICATION OF ARTICLE 50 (art. 50)\n\n34.   Article 50 (art. 50) of the Convention provides:\n\n\"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.\"\n\nIn his memorial, Mr. Unterpertinger claimed 150,000 Austrian schillings (ATS) as compensation for loss of liberty and 28,000 ATS in respect of loss of earnings. He also claimed 33,578.15 ATS for costs and expenses referable to the proceedings before the Convention institutions. In respect of all these claims, he sought a total of 210,000 ATS less 5,470.50 French francs (FF) which the Council of Europe had paid to him by way of legal aid for the proceedings before the Court.\n\nThe Government responded to these claims during the hearings. If the Court were to find that there had been a breach of the Convention, they would agree to meet the costs and expenses on the basis of the schedule submitted. The amount claimed for loss of earnings seemed to them reasonable enough; however, the same was not true of the 150,000 ATS sought in respect of detention, for which the Government could not agree to pay more than 50,000 ATS. In short, they envisaged compensation under all heads of an amount not exceeding some 100,000 ATS.\n\n35.   As regards the loss of earnings and the compensation for detention, the Court recalls that the applicant was convicted as a result of the establishment of guilt in a manner which did not comply with the requirements of Article 6 (art. 6). As a consequence he spent six months in custody, and this caused him to lose earnings of 28,000 ATS. He also suffered non-pecuniary damage on account of his imprisonment, and under this head the Court, deciding the matter on an equitable basis as is required by Article 50 (art. 50), awards him compensation of 100,000 ATS.\n\n36.   As to the costs and expenses referable to the proceedings before the Convention institutions, the Government did not contest that they were both actually and necessarily incurred and that they were reasonable as to quantum; nor did they dispute that the applicant had incurred liability for lawyer’s costs additional to those covered by his legal aid (cf., inter alia, the Airey judgment of 6 February 1981, Series A no. 41, p. 9, § 13). The Court therefore allows the claim in full, amounting to 33,578.15 ATS less 5,470.50 FF.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1. Holds that there has been a violation of Article 6 (art. 6) of the Convention;\n\n2. Holds that the respondent State is to pay to the applicant, as just satisfaction, one hundred and sixty-one thousand five hundred and seventy-eight Austrian schillings and fifteen groschen (161,578.15 ATS) less five thousand four hundred and seventy French francs and fifty centimes (5,470.50 FF).\n\nDone in English and in French, and delivered at a public hearing in the Human Rights Building, , on 24 November 1986.","title":""}
{"_id":"passage_177","text":"PROCEDURE\n\n1.  The case originated in two applications against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table.\n\n2.  The Ukrainian Government (“the Government”) were given notice of the applications.\n\nTHE FACTS\n\n3.  The applicant’s details and information relevant to the applications are set out in the appended table.\n\n4.  The applicant complained of the inadequate conditions of his detention and of the lack of any effective remedy in domestic law. He also raised other complaints under the provisions of the Convention.\n\nTHE LAW\n\nJOINDER OF THE APPLICATIONS\n\n5.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.\n\nALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION\n\n6.  The applicant complained principally of the inadequate conditions of his detention and that he had no effective remedy in this connection. He relied on Articles 3 and 13 of the Convention, which read as follows:\n\nArticle 3\n\n“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”\n\nArticle 13\n\n“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority ...”\n\n7.  The Court notes that the applicant was kept in detention in poor conditions. The details of the applicant’s detention are indicated in the appended table. The Court refers to the principles established in its case law regarding inadequate conditions of detention (see, for instance, Muršić v. Croatia [GC], no. 7334/13, §§ 96-101, ECHR 2016). It reiterates in particular that a serious lack of space in a prison cell weighs heavily as a factor to be taken into account for the purpose of establishing whether the detention conditions described are “degrading” from the point of view of Article 3 and may disclose a violation, both alone or taken together with other shortcomings (see Muršić, cited above, §§ 122-41, and Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 149-59, 10 January 2012).\n\n8.  In the leading cases of Melnik v. Ukraine (no. 72286/01, 28 March 2006) and Sukachov v. Ukraine (no. 14057/17, 30 January 2020), the Court already found a violation in respect of issues similar to those in the present case.\n\n9.  Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the applicant’s conditions of detention were inadequate.\n\n10.  The Court further notes that the applicant did not have at his disposal an effective remedy in respect of these complaints.\n\n11.  These complaints are therefore admissible and disclose a breach of Articles 3 and 13 of the Convention.\n\nOTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW\n\n12.  The applicant submitted other complaints which also raised issues under the Convention, given the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its findings in Kharchenko v. Ukraine (no. 40107/02, §§ 84-87, 10 February 2011), Kotiy v. Ukraine (no. 28718/09, § 55, 5 March 2015), G.B. and Others v. Turkey (no. 4633/15, § 176, 17 October 2019), and Ignatov v. Ukraine (no. 40583/15, §§ 40-47, 15 December 2016).\n\nREMAINING COMPLAINTS\n\n13.  In application no. 11356/17, the applicant also raised other complaints under Article 5 § 4 of the Convention.\n\n14.  The Court has examined these complaints and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, they either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.\n\nIt follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.\n\nAPPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n15.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\n16.  Regard being had to the documents in its possession and to its caselaw (see, in particular, Sukachov, cited above, §§ 165 and 167), the Court considers it reasonable to award the sum indicated in the appended table. It rejects any additional claims for just satisfaction raised by the applicant in application no. 11356/17.\n\n17.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\nDecides to join the applications;\n\nDeclares the complaints concerning the inadequate conditions of detention, the lack of any effective remedy in domestic law and the other complaints under well-established case-law of the Court, as set out in the appended table, admissible and the remainder of application no. 11356/17 inadmissible;\n\nHolds that these complaints disclose a breach of Articles 3 and 13 of the Convention concerning the inadequate conditions of detention and the lack of any effective remedy in domestic law;\n\nHolds that there has been a violation of the Convention as regards the other complaints raised under well-established case-law of the Court (see appended table);\n\nHolds\n\nthat the respondent State is to pay the applicant, within three months, the amount indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;\n\nthat from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\nDismisses the remainder of the applicant’s claims for just satisfaction in application no 11356/17.\n\nDone in English, and notified in writing on 13 January 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_234","text":"PROCEDURE\n\n1.  The case originated in an application (no. 50859/10) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Iraqi nationals (“the applicants”) on 3 September 2010. The President of the Section acceded to the applicants’ request not to have their names disclosed (Rule 47 § 3 of the Rules of Court).\n\n2.  The applicants were represented by Ms M. Bexelius, a lawyer practising in . The Swedish Government (“the Government”) were represented by their Agents, Ms C. Hellner and Ms H. Kristiansson, of the Ministry for Foreign Affairs.\n\n3.  The applicants alleged that their deportation to  would involve a violation of Article 3 of the Convention.\n\n4.  On 21 October 2010 the President of the Section to which the case had been allocated decided to apply Rule 39 of the Rules of Court, indicating to the Government that the applicants should not be deported to Iraq for the duration of the proceedings before the Court.\n\n5.  On 12 September 2011 the application was communicated to the Government.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n6.  The applicants, a married couple and their daughter, were born in 1948, 1953 and 1988 respectively.\n\n7.  The first applicant arrived in  on 26 January 2008 and applied for asylum two days later. The second and third applicants arrived in  on 31 January 2008 and applied for asylum the following day. In support of their applications, the applicants submitted in essence the following. They were Christians and originated from Mosul and . They had lived in a rented house in a predominantly Muslim neighbourhood in  for 13 years. The first applicant had run a shop selling car spare parts. In August 2006 five masked men, claiming to belong to an opposition group, had come to the shop and demanded that the first applicant pay 10,000 U.S. dollars as he was Christian. He had been able to pay only 700750 dollars and had been told that the men would return for the rest of the money. They had threatened to kidnap a member of his family if he failed to pay. The first applicant had never returned to the store, but when his son had gone back after a couple of days he had been kidnapped. The son had managed to flee from the boot of the car where he had been held when when the car had stopped at a traffic light. A few days later, a friend of the applicants had informed them that he had found a threatening message on the door to their shop. Shortly thereafter, the applicants had left the country for . The family also claimed that it had not been possible to practise their religion where they had lived because of fear of terrorists destroying the church. The second and third applicants claimed that they had been forced to wear the veil. Moreover, while the two parents had higher education in economics and administration, their daughter had not been able to study since the family feared that she would be kidnapped as Christian women were often exposed to kidnapping, rape and murder on their way to university.\n\n8.  On 20 September 2008 the Migration Board (Migrationsverket) rejected the applications. The Board held that the situation in  as such, or the fact that the applicants were Christians, did not constitute grounds for asylum. It further considered that the blackmailing and kidnapping had had economic grounds rather than religious ones. Even if the family could be seen as a target because of their beliefs, the Board was of the opinion that the incidents were due to the general security situation in  and not the applicants’ religious affiliation. According to the Board, the other claims – the fear of terrorists and the forced use of the veil – were also connected to the general situation in . The Board further pointed out that, at the time of its decision, more than two years had passed since the alleged incidents had taken place. In any event, it concluded that the incidents were not of such severity or intensity that there would be an individual threat against the applicants if they were to return to .\n\n9.  The applicants appealed, adding to their story that their neighbour in  had informed them that someone had written “Christians are to be killed” and “Your blood should be spilled” on their house in September 2008.\n\n10.  On 18 June 2009 the  (Migrationsdomstolen) upheld the decision of the Board. The court held that, having regard to the several years that had passed since the alleged incidents and to the improved security situation in , the evidence did not suggest that there was an individualised threat against the applicants upon return.\n\n11.  On 4 September 2009 the Migration Court of Appeal (Migrations-överdomstolen) refused the applicants leave to appeal.\n\n12.  Subsequently, the applicants claimed that there were impediments to the enforcement of their deportation order. They stated that they were in a bad condition mentally and that the general situation in  had deteriorated.\n\n13.  On 9 March 2010 the Migration Board decided not to reconsider the case, finding that no new circumstances justifying a reconsideration had been presented. The Board’s decision was upheld by the Migration Court on 16 June 2010.\n\nII.  RELEVANT DOMESTIC LAW\n\n14.  The basic provisions applicable in the present case, concerning the right of aliens to enter and to remain in , are laid down in the Aliens Act (Utlänningslagen, 2005:716).\n\n15.  An alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in  (Chapter 5, section 1 of the Act). The term “refugee” refers to an alien who is outside the country of his or her nationality owing to a well-founded fear of being persecuted on grounds of race, nationality, religious or political beliefs, or on grounds of gender, sexual orientation or other membership of a particular social group and who is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country (Chapter 4, section 1). This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities cannot be expected to offer protection against persecution by private individuals. By “an alien otherwise in need of protection” is meant, inter alia, a person who has left the country of his or her nationality because of a well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 4, section 2).\n\n16.  Moreover, if a residence permit cannot be granted on the above grounds, such a permit may be issued to an alien if, after an overall assessment of his or her situation, there are such particularly distressing circumstances (synnerligen ömmande omständigheter) to allow him or her to remain in Sweden (Chapter 5, section 6). Special consideration should be given, inter alia, to the alien’s health status. According to the preparatory works (Government Bill 2004/05:170, pp. 190-191), life-threatening physical or mental illness for which no treatment can be given in the alien’s home country could constitute a reason for the grant of a residence permit.\n\n17.  As regards the enforcement of a deportation or expulsion order, account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment. According to a special provision on impediments to enforcement, an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 12, section 1). In addition, an alien must not, in principle, be sent to a country where he or she risks persecution (Chapter 12, section 2).\n\n18.  Under certain conditions, an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force. This is the case where new circumstances have emerged which indicate that there are reasonable grounds for believing, inter alia, that an enforcement would put the alien in danger of being subjected to capital or corporal punishment, torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced (Chapter 12, section 18). If a residence permit cannot be granted under this criteria, the Migration Board may instead decide to re-examine the matter. Such a re-examination shall be carried out where it may be assumed, on the basis of new circumstances invoked by the alien, that there are lasting impediments to enforcement of the nature referred to in Chapter 12, sections 1 and 2, and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not having done so. Should the applicable conditions not have been met, the Migration Board shall decide not to grant a re-examination (Chapter 12, section 19).\n\n19.  Matters concerning the right of aliens to enter and remain in  are dealt with by three instances: the Migration Board, the  and the Migration Court of Appeal.\n\nIII.  RELEVANT INFORMATION ABOUT IRAQ\n\nA.  General human rights situation\n\n20.  In its Report on Human Rights in Iraq: 2011, published in May 2012, the Human Rights Office of the United Nations Mission for Iraq (UNAMI) gave, inter alia, the following summary (at pp. vi-vii):\n\n“Levels of violence in  (outside of the Kurdistan Region) remain high, and the number of civilians killed or injured in conflict-related incidents has only slightly decreased compared with figures for 2010. UNAMI figures show that during 2011 some 2,771 civilians were killed and some 7,961 civilians were wounded. Most of the violence was concentrated in and around Baghdad, Ninawa and . Violent incidents also occurred in Anbar and Diyala, while the south around  saw very few such incidents. Despite a decline in the overall number of incidents compared with 2010, those that did occur were often more deadly, with a few such attacks claiming scores of victims. As in 2010, attacks specifically targeting political leaders, government officials and security personnel, as well as of community and religious leaders, and legal, medical and education professionals continued. A destabilising factor in relation to security was the steady withdrawal of remaining  forces (USF-I) – a process completed by 18 December 2011. Shifting relationships between various political blocs, parties and factions, compounded by tribal, ethnic, and religious differences also contributed to a deterioration in the human rights environment.\n\nCivilians continued to suffer from attacks based on their ethnic, religious and other affiliations. There were several large-scale attacks on Shi’a pilgrims and on places of worship. Members of the Christian community were also targeted – as were members of the Turkoman community (particularly around ) and members of other religious and ethnic minorities, such as Yezidi, Shabaks, Sabian Mandaeans, and Manichaeans. Members of sexual minorities also suffered from killings and widespread social and State sanctioned discrimination – with Iraqi security forces and other State institutions failing to protect them.\n\n...\n\nViolence perpetrated against women and girls, including so called ‘honour crimes’, is of serious concern. The Government of Iraq has made no attempt to repeal sections of the Iraqi Criminal Code which permits honour as a mitigating factor in relation to crimes of violence against women. Low awareness of women’s rights and the existence of deep-rooted cultural norms are important factors in perpetuating a culture of violence and disregard for the rights of women.”\n\nIn regard to the Kurdistan region, the report stated (at pp. viii-ix):\n\n“The overall human rights situation in Kurdistan Region continued to improve, although challenges remain, including concerns over the respect for freedom of assembly and freedom of expression and the protection of journalists.\n\n...\n\nThe KRG [Kurdistan Regional Government] introduced some significant legislative reforms, including a landmark domestic violence law which does much to address violence against women and children – however, Female Genital Mutilation (FGM) remains of concern, which the KRG needs to address through social education programmes and legislative reform. There were also reports of honour killings of women, although the exact levels and prevalence of the problem were difficult to ascertain. The KRG previously suspended sections of the Criminal Code which permitted honour as a mitigating factor in relation to murder in domestic contexts. The region has been proactive in addressing issues that confront the full enjoyment by women of their rights with the establishment of the Kurdistan Region High Advisory Committee on Women to recommend legal and social reforms and to coordinate KRG action on these issues.”\n\n21.  In his report of 16 February 2011, the Representative of the (United Nations) Secretary-General on the human rights of internally displaced persons, Mr Walter Kälin, noted the following (at paras. 9-10) after a visit to  in September/October 2010:\n\n”Despite improvements in the overall security situation since 2006, the situation in Iraq is still characterized by continued indiscriminate attacks against civilians, including religious and ethnic minorities, arbitrary arrests, alleged ill-treatment while in detention, and sexual and gender-based violence. Moreover, impunity is reported as being widespread, while access to justice is largely absent due to fear of reprisals, lack of capacity among rule of law institutions, corruption and lack of awareness of accountability mechanisms.\n\nIn the Kurdistan Region of Iraq, while the security situation is considerably better than in the rest of the country, specific concerns have been raised with regard to, inter alia: serious violations of the rights of suspects and detainees by KRG authorities; sexual and gender-based violence; and the impact of anti-terrorism legislation on human rights, including specifically the practice of keeping persons in de facto unlimited administrative detention.”\n\n22.  The UK Border Agency Iraq Operational Guidance Note of December 2011 noted (at paras. 2.3.4 and 2.3.5):\n\n“Violence, albeit still far above what ought to be tolerable, has levelled off in the past two years. Iraqi security forces have taken the lead in several important operations. Recently, they have withstood three noteworthy tests: the departure of close to 100,000  troops since January 2009; the March 2010 parliamentary elections; and, over the past several months, political uncertainty prompted by institutional deadlock. If insurgents remain as weak as they are and find no fresh opportunity to exploit political fractures, security forces operating at less-than-optimal levels still should face no serious difficulty in confronting them.\n\nIt has been reported that although oversight by the MOI [Ministry of Interior] and MOD [Ministry of Defence] has increased, problems continue with all security forces, arising from sectarian divisions, corruption, and unwillingness to serve outside the areas in which personnel were recruited. ...”\n\nB.  The specific situation of Christians\n\n23.  In its 2011 report, UNAMI noted that, while there had been some improvements in terms of security for Iraq’s ethnic and religious groups, their situation continued to be precarious. According to figures provided by the Iraqi Ministry of Human Rights, 14 Christians were killed in targeted attacks during the year. The overall figure for civilians killed in conflictrelated circumstances was 2,781 (at pp. 30 and 2, respectively).\n\n24.  The Minority Rights Group International described the Christians in Iraq thus (Iraq’s Minorities: Participation in Public Life, November 2011, p. 8):\n\n“Iraqi Christians include Armenians, Chaldeans, Assyrians, Syriacs and Protestants. Christians are at particular risk for a number of reasons, including religious ties with the West, perceptions that Christians are better off than most Iraqis, and leadership positions in the pre-2003 government. The fact that Christians, along with Yezidis, continue to trade in alcohol in Iraq (both groups have traditionally sold alcohol in ), has also made them a target in an increasingly strict Islamic environment. Waves of targeted violence, sometimes in response to the community’s lobbying for more inclusive policies (for example, reserved seats in elections) have forced the Christian community to disperse and seek refuge in neighbouring countries and across the world. In 2003, they numbered between 800,000 and 1.4 million; by July 2011, that number had fallen to 500,000, according to USCIRF [United States Commission on International Religious Freedoms].”\n\n25.  On 31 May 2012 the United Nations High Commissioner for Refugees (UNHCR) issued the latest Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Iraq (hereafter “the UNHCR Guidelines”). The situation for members of religious minorities was summarised as follows (at p. 27):\n\n“UNHCR considers that, depending on the particular circumstances of the case, members of minority religious groups in central and southern  are likely to be in need of international refugee protection on the grounds of religion, (imputed) political opinion or membership in a particular social group.\n\nChristian converts are likely to be in need of international refugee protection in the whole country, including the Kurdistan Region.”\n\nExcept for the difficulties for Christian converts, UNHCR gave the following account of the three northern governorates under the control of the KRG (at p. 27):\n\n“In the Kurdistan Region, the rights of religious minorities are generally respected and groups can worship freely without interference. The KRG Ministry of Education funds public schools at the elementary and high school level in the Aramaic language. The curriculum in the Kurdistan Region does not contain religion or Qur’an studies. A significant number of religious minorities, in particular Christians, have sought refuge in the region.”\n\nIn regard to Christians in general, the UNHCR Guidelines stated (at pp. 27-28):\n\n“The number of Iraqi Christians (who belong to a number of different branches) has been drastically reduced since 2003, with significant displacement inside and outside the country. Most Christians are located in Baghdad, in and around Mosul (Ninewa Plain), Kirkuk and Basrah. An estimated thirty per cent reside in the northern governorates of Dahuk, Erbil and Sulaymaniyah.\n\nSince the fall of the former regime in 2003, armed Sunni groups have targeted Christians and their places of worship. Attacks are commonly motivated by religion, (imputed) political opinion and/or (perceived) wealth. An attack by Islamic State of Iraq/Al-Qa’eda in Iraq on 31 October 2010 on the Our Lady of Salvation Catholic Cathedral in Baghdad left more than 50 Christians, including two priests, and seven policemen dead, and triggered an exodus of more than 1,300 Christian families from Baghdad, Mosul and Basrah to the Kurdistan Region, other areas of Ninewa Governorate and abroad. In fact, more Christians were displaced in 2010 than any other year since 2003. After the October 2010 attack, threats and violence against Christians further increased and in the following months, persons of Christian faith were specifically targeted in their homes or workplaces.\n\nIn 2011 and early 2012, Christians reportedly continued to be subjected to threats, kidnappings, attacks on their homes and assassination. Christians have also been kidnapped against ransom; however, even in criminal cases, consideration should be given to the victim’s presumed vulnerability as a member of a religious minority or his/her (perceived) social status. In 2011, churches were repeatedly subject to (attempted) bombings, often coordinated, including in Baghdad, Mosul and Kirkuk. Extremist groups have also targeted Christians for being associated with the sale of alcohol.\n\nIn the three northern governorates of Sulaymaniyah, Erbil and Dahuk, the rights of Christians are generally respected and a significant number have sought refuge in the region: in particular, in the Governorate of Dahuk, from where many originate, and the Christian town of Ainkawa, near the city of Erbil. In early December 2011, however, a mob allegedly shouting anti-Christian slogans reportedly attacked mainly Christian and Yazidi-owned liquor shops and businesses in and near the town of Zakho (Dahuk). The attacks were allegedly triggered by an inflammatory Friday prayer sermon condemining “un-Islamic” businesses. Reportedly, up to 30 liquor shops, hotels and a massage parlour were vandalized or burned down. An attempt to attack the Christian quarter in Zakho was reportedly prevented by the security forces. Affected shop owners reportedly found leaflets on the shop walls, threatening them if they were to reopen the shops. Motives for the violence remain unclear. In 2011 several kidnappings of Christians were reported in Ainkawa, spreading fear among the community and resulting in internally displaced Christian families fleeing abroad.”\n\nThe report went on to examine the particular circumstances for Christian converts (at pp. 28-29):\n\n“The Constitution of Iraq requires the Iraqi State to uphold both freedom of religion and the principles of Islam, which, according to many Islamic scholars, includes capital punishment for leaving Islam. Iraqi Penal Law does not prohibit conversion from Islam to Christianity (or any other religion); however, Iraq’s Personal Status Law does not provide for the legal recognition of a change in one’s religious status. These apparent contradictions have not yet been tested in court and, as a result, the legal situation of converts remains unclear.\n\nA convert would not be able to have his/her conversion recognized by law, meaning that he/she has no legal means to register the change in religious status and his/her identity card will still identify its holder as “Muslim”. As a result, children of converts may be without an identification card, unless their parents register them as Muslims. Children of converts cannot be enrolled in Christian schools and are obliged to participate in mandatory Islamic religion classes in public schools. A female convert cannot marry a Christian man, as she would still be considered Muslim by law. A convert may also have his/her marriage voided as under Shari’a Law, as an “apostate” cannot marry or remain married to a Muslim and will be excluded from inheritance rights.\n\nGiven the widespread animosity towards converts from Islam and the general climate of religious intolerance, the conversion of a Muslim to Christianity would likely result in ostracism and/or violence at the hands of the convert’s community, tribe or family. Many, including (Sunni and Shi’ite) religious and political leaders, reportedly believe that apostasy from Islam is punishable by death, or even see the killing of apostates as a religious duty. Additionally, Christian converts risk being suspected as working with the MNF-I [Multi-National Force – Iraq]/USF-I or more generally the “West”, which in the opinion of some has fought a “holy war” against Iraq.\n\nConverts and children of converts may face harassment at their place of employment, or at school. The reporting of harassment to the authorities, may, according to some observers, result in further harassment or violence at the hands of government officials and police.”\n\n26.  The UK Border Agency Iraq Operational Guidance Note concluded the following with regard to Christians (at para. 3.10.13/3.10.21):\n\n”The authorities in central and southern  are generally unable to provide effective protection to Christians or other religious minorities. The Kurdistan Regional government currently allows Iraqi Christians from central and southern  to settle into its three governorates. ...\n\nChristian converts are unlikely to be provided with effective protection by the central and southern Iraqi authorities or by the authorities of the Kurdistan Region of Iraq. ...”\n\n27.  In its International Religious Freedom Report for 2012, published on 20 May 2013, the United States Department of State summarised the religious situation in Iraq thus:\n\n“The constitution provides for religious freedom and the government generally respected religious freedom in practice. The trend in the government’s respect for religious freedom did not change significantly during the year. The constitution recognizes Islam as the official religion, mandates that Islam be considered a source of legislation, and states that no law may be enacted that contradicts the established provisions of Islam. However, it also states that no law may contradict principles of democracy or the rights and basic freedoms stipulated in the constitution. The constitution guarantees freedom from intellectual, political, and religious coercion. Some apparent contradictions between the constitution and other legal provisions were tested in court during the year; the courts upheld full legal protection for religious freedom in those cases. Other contradictions remain untested. Officials sometimes misused their authority to limit freedom for religious groups other than their own. However, the government continued to call for tolerance and acceptance of all religious minorities, provided security for places of worship such as churches, mosques, shrines, and religious pilgrimage sites and routes, and funded the construction and renovation of places of worship for some religious minorities. Al-Qaeda in Iraq (AQI) and other terrorist and illegally armed groups commited violent attacks that restricted the ability of all believers to practice their religion.\n\nThere were reports of societal abuses and discrimination based on religious affiliation, belief, or practice. Sectarian violence occurred throughout the country, although to a lesser extent in the Iraqi Kurdistan Region (IKR), and restricted religious freedom. No reliable statistics on religiously motivated violence were available. The overwhelming majority of mass casualty terrorist attacks targeted Muslims. A combination of sectarian hiring practices, corruption, targeted attacks, and the uneven application of the law had a detrimental economic effect on minority non-Muslim communities, and contributed to the departure of non-Muslims from the country.”\n\n28.  Designating  as a “country of particular concern” for the sixth year running, the United States Commission on International Religious Freedoms, in its 2013 Annual Report, published on 30 April 2013, made the following findings:\n\n“Over the last several years the Iraqi government has made efforts to increase security for religious sites and worshippers, provide a stronger voice for Iraq’s smallest minorities in parliament, and revise secondary school textbooks to portray minorities in a more positive light. Nevertheless, the government of Iraq continues to tolerate systematic, ongoing, and egregious religious freedom violations, including violent religiously-motivated attacks. Violence against Iraqi civilians continued in 2012 at approximately the same level as in 2011. In addition, the government took actions that increased, rather than reduced, Sunni-Shi’i and Arab-Kurdish tensions, threatening the country’s already fragile stability and further exacerbating the poor religious freedom environment.\n\n...\n\nShi’i Muslims experienced the worst attacks of any religious community during the reporting period, including against pilgrims participating in celebrations on or around important religious holidays. The government has proven unable to stop religiously-motivated attacks from occurring and lacks the will or capacity to investigate attacks and bring perpetrators to justice. This has created a climate of impunity, which in turn exacerbates a perpetual sense of fear for all religious communities, particularly the smallest ones. Large percentages of the country’s smallest religious minorities – which include Chaldo-Assyrian and other Christians, Sabean Mandaeans, and Yezidis – have fled the country in recent years, threatening these communities’ continued existence in Iraq. The diminished numbers that remain face official discrimination, marginalization, and neglect, particularly in areas of northern Iraq over which the Iraqi government and the Kurdistan Regional Government (KRG) dispute control. Religious freedom abuses continue towards women and individuals who do not conform to strict interpretations of religious norms or attacks on businesses viewed as “un-Islamic”. However, in a positive development, the Iraqi parliament shelved a problematic draft Information Crimes law that would have restricted the freedoms of religion and expression. Additionally the KRG parliament rejected a draft law to “protect sanctities,” which, if adopted, would violate these same freedoms. However, there are reports that KRG officials may still pursue legal action against the media for offending religion, Kurdish history, or national symbols.”\n\nIt further noted the following:\n\n“Many of the non-Muslim minorities internally displaced by violence have gone to the north of the country, mainly to Nineveh governorate and the territory of the KRG, which is comprised of three other governorates. Northern Iraq, particularly the Nineveh Plains area of Nineveh governorate, is the historic homeland of Iraq’s Christian community, and the Yezidi community is indigenous to Nineveh and the KRG governorate of Dahuk. The three KRG governorates are relatively secure, but Nineveh governorate, particularly in and around its capital Mosul, remains extremely dangerous, and control over this ethnically and religiously mixed area is disputed between the KRG and the central Iraqi government.\n\nReligious and ethnic minorities in these areas, including non-Muslims and ethnic Shabak and Turkomen, have accused Kurdish forces and officials of engaging in systematic abuses and discrimination against them to further Kurdish territorial claims. These accusations include reports of Kurdish officials interfering with minorities’ voting rights; encroaching on, seizing, and refusing to return minority land; conditioning the provision of services and assistance to minority communities on support for Kurdish expansion; forcing minorities to identify themselves as either Arabs or Kurds; and impeding the formation of local minority police forces. The minorities also accuse both Arab and Kurdish officials of ignoring these vulnerable communities as they focus on their fight for territorial control.”\n\nC.  Possibility of internal relocation to the Kurdistan Region\n\n29.  The Representative of the UN Secretary-General stated in the above-mentioned report of 16 February 2011 (at para. 65):\n\n”In the Kurdistan Region of Iraq, the Representative acknowledges that KRG has received and provided safety to IDPs [internally displaced persons] from all over Iraq regardless of their origin, particularly in the aftermath of the sectarian violence in the country 2006. Stronger coordination and cooperation mechanisms between the Central Government and KRG are necessary however, to address the situation of IDPs in this region, including vulnerable groups, as well as a number of administrative and financial assistance issues, such as difficulties in transferring PDS cards [Public Distribution System food ration cards] and receiving pensions, which are adversely affecting the rights and standard of living of IDPs. As well, while improved social, security, and economic conditions prevail in this region, continued cross border attacks continue to cause periodic displacement of its border populations. The Representative believes that stronger cooperation between the Government of Iraq and KRG, as well as concerted diplomatic efforts and border dialogues with relevant neighbouring countries, must be undertaken in order to prevent and raise awareness of the impact of cross-border attacks on civilian populations.”\n\n30.  The UNHCR Guidelines contain the following observations (at pp. 48-51):\n\n”A large number of persons from the central governorates have found refuge in the three northern governorates since 2006. Commensurate with the sharp decrease in new displacements generally, the flow of new arrivals has decreased significantly; however, only a few of those previously displaced have to date returned to their places of origin. The influx of IDPs has had an important impact on the host communities, including increasing housing and rental prices, additional pressure on already strained public services and concerns about security and demographic shifts. At the same time, the three northern governorates have also benefited from the migration of professionals bringing skills and disposable incomes that boost the local economy. Unskilled IDPs have provided a source of affordable labour for the construction industry.\n\nThe KRG authorities continue to implement stringent controls on the presence of persons not originating from the Kurdistan Region. Depending on the applicant, particularly his/her ethnic and political profile, he/she may not be allowed to relocate to or take up legal residence in the three northern governorates for security, political or demographic reasons. Others may be able to enter and legalize their stay, but may fear continued persecution as they may still be within reach of the actors of persecution or face undue hardship. Therefore, despite the hospitable attitude of the KRG authorities towards a considerable number of IDPs, the availability of an IFA/IRA [internal flight/relocation alternative] must be carefully assessed on a case-by-case basis ...\n\n...\n\nSince the fall of the former regime, the KRG authorities are very vigilant about who enters the Kurdistan Region and have introduced strict security measures at their checkpoints. However, there are no official and publicly accessible regulations concerning procedures and practices at the entry checkpoints into the Kurdistan Region. An ad hoc and often inconsistent approach can be expected in terms of who is granted access, varying not only from governorate to governorate, but also from checkpoint to checkpoint. The approach at a particular checkpoint may be influenced by several factors including the overall security situation, the particular checkpoint and its staff, the instructions issued on that day and the particular governorate where the checkpoint is situated. UNHCR has repeatedly sought to obtain information and clarification from the KRG authorities on checkpoint practices and entry/residence in the Kurdistan Region, without success. Therefore, persons seeking to relocate to the Kurdistan Region depend on informal information with regard to entry procedures.\n\nIndividuals/families wishing to enter the Kurdistan Region can seek to obtain a tourist, work or residence card. The tourist card, which is commonly given to persons from central and southern Iraq who seek to enter the Kurdistan Region, allows the holder to stay for up to 30 days. Depending on the person’s profile, but also the checkpoint and the officer in charge, persons seeking to enter as tourists may be required to produce a sponsor. Arabs, Turkmen and Kurds from the disputed areas are usually requested to have a sponsor, while Kurds (not from the disputed areas) and Christians are able to enter without a sponsor.\n\nAlternatively, persons who have a proof of employment (letter of appointment) can obtain a work card, which is valid for 10-15 days and is, in principle, renewable. Persons seeking to stay more than 30 days should in principle obtain a residence card. Long-term stays always require a sponsor. UNHCR is not aware of any IDPs who have received the residence card.\n\nThe sponsorship process lacks clarity and there is no uniform procedure in place. In some cases, the sponsor is required to be physically present at the checkpoint to secure the person’s entry. In other cases, it seems to suffice that a person seeking to relocate to the Kurdistan Region produces a letter notarized by a court clerk attesting to the person’s connection to the sponsor. In some cases, the officer at the checkpoint will simply make a phone call to the sponsor to verify the acquaintance. Iraqis without sufficiently strong ties to the Kurdistan Region and who, therefore, are unable to find a sponsor, may be denied entry into the Kurdistan Region. There are reportedly also different requirements as to the nature of the sponsor.\n\nUNHCR is aware of individuals who have been refused entry into the Kurdistan Region. Arabs, Turkmen and certain profiles of Kurds will likely face extensive questioning and may be denied entry at the checkpoint, mostly due to security concerns. In particular, single Arab males, including minors, are likely either to be denied entry into the Kurdistan Region or to be allowed entry only after a lengthy administrative procedure and heavy interrogation. Checkpoints reportedly maintain “blacklists” of individuals banned from entering the Kurdistan Region, including those considered a security risk, but also those who have previously overstayed or did not renew their residence permits. Christians, especially those who fled due to targeted attacks, reportedly do not face difficulties in entering the Kurdistan Region.\n\nPersons not originating from one of the three northern governorates intending to remain in the Kurdistan Region for more than 30 days must approach the neighbourhood security station (Asayish) in the area of relocation to obtain a permit to stay (“information card” or karti zaniyari). As with the entry procedures, there are no official rules or regulations concerning the issuance of information cards. Generally, in all three governorates, a sponsor is required in order to obtain the information card. This means that those that were able to enter without a sponsor are, at this stage, obliged to find a sponsor. Families, provided they have a sponsor from the governorate concerned and the necessary personal documentation, are usually able to secure the information card. Single people apparently face more difficulties. Persons who do not have a sponsor will not be able to regularize their continued stay and may be forced to leave.\n\nPersons fleeing persecution at the hands of the KRG or the ruling parties will almost always not be able to find protection in another part of the Kurdistan Region. Persons fleeing persecution at the hands of non-state actors (e.g. family/tribe in the case of fear from “honour killing” or blood feud) may still be within reach of their persecutors. The same applies for persons fearing persecution by armed Islamist groups.”\n\n31.  As regards the acquisition of identity documents, the UK Border Agency maintained (Iraq Operational Guidance Note, para. 2.4.5):\n\n“It is not necessary for an individual to return to their registered place of residence to transfer documents to a new area of . It is possible for example to apply at a registration office in Baghdad, to have documents transferred from elsewhere in . However the MoDM [Ministry of Displacement and Migration] have said that in practice this does not happen because it is now safe enough for someone to return to their registered place of residence to arrange to transfer documents. The processes and procedures were the same throughout governorates across south and central .”\n\nDisagreeing with the UNHCR as to the possibility of internal relocation for Iraqi asylum seekers, the Border Agency further stated (para. 2.4.14):\n\n“We do not however accept UNHCR’s conclusions on internal relocation from the central governorates and consider that there is likely to be considerable scope for internal relocation that achieves both safety and reasonableness in all the circumstances. We consider UNHCR’s position is tied in with general policy considerations (e.g. about managing the rates of return) deriving from their general and Iraq-specific remit; we do not consider that in the light of the evidence taken as a whole that mere civilian returnees are at real risk of persecution under the Refugee Convention or of serious harm under either the [EU] Qualification Directive or Article 3 [of the European Convention on Human Rights] currently.”\n\n32.  SR (Iraqi/Arab Christian: relocation to KRG)  CG [2009] UKAIT 00038 is a country guidance determination delivered by the UK Upper Tribunal (Immigration and Asylum Chamber) on 31 July 2009. In the headnote, the Upper Tribunal stated:\n\n“An Iraqi Arab Christian at risk in his home area and throughout central and southern Iraq is likely to be able to obtain the documentation needed by a person wishing to relocate within Iraq, and is likely to be able to relocate to the KRG with the assistance of a sponsor, in particular, on the basis of the latest statistics available, in Erbil or Dohuk.”\n\n33.  In a later country guidance case, MK (documents – relocation)  CG [2012] UKUT 00126 (IAC), determined on 25 April 2012, the Upper Tribunal concluded, among other things, the following (at para. 88):\n\n“Entry into and residence in the KRG can be effected by any Iraqi national with a CSID [Civil Status ID], INC [Iraqi Nationality Certificate] and PDS, after registration with the Asayish (local security office). An Arab may need a sponsor; a Kurd will not.\n\nLiving conditions in the KRG for a person who has relocated there are not without difficulties, but there are jobs, and there is access to free health care facilities, education, rented accommodation and financial and other support from UNHCR.”\n\n34.  The findings in MK were endorced in a recent country guidance determination, HM and others (Article 15(c))  CG [2012] UKUT 00409 (IAC), of 13 November 2012. Having particular regard to the Danish/UK report extensively quoted below (at § 35), the Upper Tribunal stated (at para. 348):\n\n”Taking the evidence as a whole, we consider that if anything, it tends to show that no-one needs a sponsor, rather than, as was concluded in MK, that a Kurd will not and an Arab may. By needing a sponsor we refer not only to entry but also to residence in the KRG. ...”\n\nOn the issue of identity documents, it further noted (at para. 358):\n\n”... [In MK] the Tribunal commented that there was nothing to show that it was, or perhaps ever had been, the case that a central register in Baghdad had been kept. [F]urther evidence [now presented] requires us to modify that position. Given the current state of the evidence in this regard, we consider that we can add to the guidance in MK by noting the existence of the Central Archive retaining civil identity records on microfiche, providing a further way in which a person can identify themselves and obtain a copy of their CSID, whether from abroad or within Iraq.”\n\n35.  The Finnish Immigration Service and the Swiss Federal Office for Migration published on 1 February 2012 the Report on Joint Finnish-Swiss Fact-Finding Mission to Amman and the Kurdish Regional Government (KRG) Area, May 10-22, 2011 (“the Finnish/Swiss report”). In summarising the situation (at p. 3), it noted, among other things, the following:\n\n”At the time of the FFM [Fact-Finding Mission], there seemed to be little discrimination against ethnic or religious minorities. The flight of Christians from Central Iraq to the KRG area has continued since the bomb attack on a church in  in October 2010. Internally displaced persons (IDPs) and refugees are better off in the KRG area than in the rest of  and generally felt safe in the region at the time of the FFM. At the same time, some suffer from poverty, remain unregistered, and lack access to proper housing, education, health care, and employment.”\n\nIn more detail on the circumstances of Christians in the Kurdistan Region, the report stated as follows (at p. 53):\n\n”According to several interviewed sources, Christians are – as a rule – welcome to settle in the KRG area. Freedom of belief is guaranteed, but there are restrictions in Islamic law that apply to everyone, Christians included. Some Islamic laws can be somewhat discriminative against Christians. The main problems Christians encounter in the KRG area are not necessarily on the level of legislation but in the application of the law and in daily life. Christian IDPs from Central Iraq (mainly Mosul and Baghdad) can face problems due to their lack of Kurdish language skills and have difficulties in finding decent jobs in the KRG region. At the same time, Christians do get assistance from the KRG.\n\nAccording to Harikar NGO [the UNHCR Protection and Assistance Centre partner in Dohuk], there is no discrimination against Christians in the Dohuk governorate. On the contrary, President Barzani has invited Christians to the KRG region, for instance, after a bus attack in Mosul in May 2010 and after the attack on Sayidat al-Najat Church in Baghdad in October 2010. Also, about 95% of the Christian villages in the area have been built for them by local authorities. According to the ADM [Assyrian Democratic Movement], however, this is not sufficient. The party mentioned to the fact-finding mission that there is not enough space in the KRG area for all the emigrants or enough places for the estimated 10,000 Christian students from Mosul and Baghdad in the universities. In addition to the limited capacity in KRG universities, which has essentially deprived them of the opportunity to study in the area, students also face problems with registration procedures and the local language.”\n\nOn the subject of entry procedures at the KRG area border, it gave the following account (at pp. 59-60):\n\n“The fact-finding mission learned that there have been no relevant, recent changes to KRG entry and screening procedures. UNHCR Iraq in Erbil indicated that there are no government statistics available on who has entered the KRG area and who has been denied access. There are four main entry checkpoints to the KRG area, which are controlled by the KRG Security Protection Agency. The checkpoints apply basically the same entry procedures.\n\nAt the same time, some international organizations, NGOs, and the UNHCR claimed that the guidelines on entry practices are not consistent between the three northern governorates of the KRG or between checkpoints leading to a single governorate. There are also no published instructions or regulations on entry procedures, as these would be against the Iraqi Constitution. According to the UNHCR, entry often depends on the commander on duty and the commander’s daily instructions at the checkpoint. The procedures can be tightened or relaxed according to the current security situation in the area.\n\nSeveral NGOs and the UNHCR have surveyed IDPs at different times concerning entry procedures to the KRG region at different checkpoints. A comparison of the results shows differences in entry practices between governorates and time periods. For instance, the surveys show that the need for a sponsor / guarantor has essentially ceased at a Dohuk governorate entry checkpoint, but that even at one checkpoint congruency can lack at different times.\n\n...\n\nPeople who are denied entry to the KRG area are often not of Kurdish ethnicity. Kurds and Christians are generally allowed entry, whereas single male Sunni Arabs without a sponsor in the KRG area are refused. The UNHCR noted that female Arabs have also had trouble entering the KRG area. Single females are also at higher risk of harassment by authorities. However, a source mentioned that Arabs from Central and Southern Iraq who invest in the KRG area are welcomed to the region. According to another source, IDPs with money are able to move to Erbil and start a business.\n\nAnyone wishing to enter the KRG area who does not originate from the region typically needs to know someone there (a so-called sponsor / guarantor) or have a letter of reference from an employer in the KRG area. A sponsor is needed if the person wants to stay in the KRG area for more than 10 days or wants to register and seek residency in the region. If someone enters the KRG area and subsequently commits a crime, his or her sponsor will be punished and may even face a prison sentence.\n\nA member of the immediate family or some other relative often acts as the sponsor. An institution such as an university can also act as a sponsor. The fact-finding mission received conflicting information during interviews on whether or not a church can act as a sponsor. The policy applied to Christians was said to have been relaxed after the bomb attack at a church in Baghdad in October 2010. Christians may currently be able to nominate senior clerics as sponsors. The fact-finding mission heard that it is easier for Kurds originating outside the KRG area than for persons of other ethnicities to find a sponsor in the region.”\n\n36.  Published in March 2012, the Joint Report of the Danish Immigration Service / UK Border Agency Fact Finding Mission to Erbil and Dahuk, Kurdistan Region of Iraq (KRI), conducted 11 to 22 November 2011 (“the Danish/UK report”) gave the following information:\n\n“1.02  According to the Director of an international NGO in Erbil, all Iraqis irrespective of ethnic origin or religious orientation are free to enter KRI through the KRG external checkpoints by presenting their Iraqi Civil ID Card [and] there were thousands of persons of Arab origin living in KRI, many living with their families, whilst others had come to KRI for work, including individuals.\n\n...\n\n1.08  [The Director of the Bureau of Migration and Displacement (BMD) of the Ministry of Interior in Erbil explained that at] present approximately 40,000 IDP families from [southern and central] Iraq and the disputed areas reside in all three governorates of KRI, i.e. Erbil, Suleimaniyah and Dohuk governorates.\n\n...\n\n1.10  ... [The Director of BMD stated that] there are large numbers of IDPs from religious minority communities in [southern and central] Iraq and the disputed areas. These are mostly Christians and Saebaens who were displaced following sectarian violence.\n\n...\n\n2.04  [The Head of the Private Bureau of General Security (Asayish)] explained that it was important the KRG authorities knew who was entering KRI and therefore the Asayish had good levels of cooperation with Iraqi intelligence, sharing details of persons who they were required to arrest and stop. In addition the Asayish maintained their own classified information on terrorist groups, such as Ansar-e-Islam or Al Qaeda in Iraq. [He] explained there were two security lists in operation, the “black list”, which included persons who had an arrest warrant outstanding for their detention and a second list, i.e. the “stop list”.\n\n...\n\n2.16  According to [the Head of Asayish,] at KRG external checkpoints, documents would be required to prove the identity of a person[. T]his could include their Civil ID Card, Nationality Card, passport or, if they worked for a government department, their departmental ID card. However[, he] further explained that a person would not necessarily be denied entry into KRI because he or she lacked some identification documents, as the system is computerised. Muhammed Saleem Mizuree went on to explain that a person already on their database system would be logged with their photo and name recorded onto the system. Consequently such a person could even enter KRI with only a driving licence or a similar document which proved the individual’s identity and Iraqi citizenship.\n\n...\n\n2.28  [The General Manager of Kurdistan checkpoints in the Kurdistan Regional Security Protection Agency, KRG Ministry of Interior, Erbil] explained [that] after a person had finished providing information about their identity to Asayish at the KRG external checkpoint, they would then undergo a second procedure at the checkpoint to apply for the appropriate entry card. There existed three entry cards: a Tourism Card, a Work Card, and an Information Card/Residency Card for those seeking to reside in KRI. Once the relevant card had been issued, the person would then be free to travel throughout KRI, including travel between the three KRI governorates, without being required to show any further form of documentation. [He] stated that this procedure made it easy for anyone to move freely within KRI.\n\n...\n\n2.30  During a visit by the delegation to the Mosul-Erbil checkpoint, ... [w]hen asked what would happen if a person did not have an address or know anyone in KRI, [the major who had overall operational responsibility for the checkpoint] explained that such a person would still be allowed to enter and the majority of those coming into KRI were migrant workers in search of employment with no reference in KRI.\n\n2.31  PAO [Public Aid Organisation, the UNHCR Protection and Assistance Centre partner in Erbil] outlined the entry procedures at the KRG external checkpoints and noted that persons seeking to enter the KRI would be questioned and asked to provide their identification, usually a Civil ID Card or Nationality Card, after which they would obtain one of three cards for entry – a Tourism Card, valid for 1 day or up to 1 month and which was renewable; a Work Card valid for 10 – 15 days which was also renewable; or an Information Card/Residency Card for those seeking to reside in KRI. PAO did not know how long this card, issued at the checkpoint, would be valid for.\n\n...\n\n3.05  The Director of an international NGO in Erbil explained that whenever there are specific security concerns and/or threats of terrorist attacks the security and entry procedures will be adapted to the situation. Such procedures only related to security concerns and not to any other factor and these procedures are normal even in Europe.\n\n3.06  When asked if there would be variations in applied entry procedures at KRG checkpoints, an international organization (A) stated that such variations are only related to security concerns and precautions and nothing else.\n\n3.07  According to Harikar NGO, all entry procedures are only related to security considerations and nothing else. Harikar NGO emphasized that its cooperation with the Asayish is good and that the Asayish comply with the law, including the procedures applied at KRG checkpoints. Harikar NGO has not noticed any irregularities or arbitrary practices at the checkpoints.\n\n3.08  [The Head of Asayish] clarified that the policy requiring a person to provide a reference at the KRG external checkpoint, i.e. before entry, existed when the security situation was more precarious, but was abandoned around two or three years ago. However[, he] added there may still be some instances in which a person was asked by Asayish at the checkpoint to make a telephone call to somebody they knew, to verify their identity.\n\n3.09  During a tour of the Mosul-Erbil checkpoint [the major who had overall operational responsibility for the checkpoint] explained that there was no longer a requirement for a reference to be present at the KRG external checkpoint and [that] this procedure was abolished around four years ago.\n\n...\n\n3.11  The Director of an international NGO in Erbil explained that the former requirement that a reference should be present at the KRG checkpoint in order for a person to enter KRI has been abolished.\n\n3.12  Harikar NGO stated that there is no requirement for a reference to be present at a KRG checkpoint in order for an Iraqi from outside KRI to enter.\n\n...\n\n4.01  [The Head of Asayish] explained that individuals not from KRI may be asked by the Asayish at the checkpoint to telephone an acquaintance in KRI, to verify their identity. When asked if an individual, not from KRI, and who knew no one in KRI would be able to pass through the KRG external checkpoint, [he] explained that this would depend on the individual and the circumstances of the case, but in some instances such a person would be viewed with suspicion. [He] confirmed however [that] such cases were very rare. Less than 30 persons per month across all the KRG external checkpoints, in all three governorates, may be denied entry purely on the grounds that they were considered suspicious for some reason; this included persons who had given inconsistent information when questioned. [He] clarified [that] this figure of “less than 30 cases per month” did not include persons denied entry because they did not have appropriate documentation, and only related to those who were denied entry because they were deemed suspicious for some reason.\n\n...\n\n4.34  When asked how persons without genuine identity documents would be treated by the KRG authorities when seeking to enter KRI, an international organization (B) explained that a Kurd without personal ID documents may be treated more sympathetically and be permitted entry because they would normally know someone in KRI who could identify him or her or they would have a known family/clan name which was recognised. With regard to Christians, the entry arrangements were significantly easier and such persons may even be able to enter KRI without providing any documentation at all. This was because Christians were not considered a terrorist threat to the region – the KRG authorities were very lenient towards Christians. However, the international organization (B) concluded that a person of Arab origin without genuine documents to identify themselves would not be permitted entry.\n\n...\n\n4.41  According to the Director of an international NGO in Erbil, all Iraqis irrespective of ethnic origin or religious orientation are free to enter KRI through the KRG external checkpoints by presenting their Iraqi Civil ID Card. The Director added that Iraqi Turkmen, Christians and Faili Kurds normally enter through these checkpoints without any difficulties. On the other hand Iraqis of Arab origin would normally be required to undergo greater scrutiny, requested to present their Civil ID Card at the checkpoint and explain the nature and intention of their visit to KRI. However, this procedure was unproblematic and did not require that a reference should be present at the checkpoint. According to [the Director] all persons would be required to routinely show their Civil ID Card at the entry checkpoint and persons of Arab origin faced no problems in staying in the KRI. However the same source clarified that persons of Arab origin would normally have their Civil ID Card photocopied as an extra security precaution. The Director emphasized that persons of Arab origin do not need a reference to be present at the checkpoint.\n\n...\n\n4.44  On the subject of entry procedures at KRG external checkpoints, PAO Erbil clarified that the situation for Christians entering through [Government of Iraq]/KRG checkpoints was one of “positive discrimination” and that such groups experienced no difficulties, neither in entrance nor in obtaining [an] Information Card which is an ID issued for all IDPs. Even if they don’t have [a] sponsor, which is one of the requirements of obtaining this ID, the Ainkawa [a district within Erbil] Churches are taking the responsibility and became their sponsors.\n\n....\n\n8.19  [The Head of Asayish] explained [that] persons displaced by violence coming to KRI from the rest of Iraq would be required to apply for an Information Card at their neighbourhood Asayish in the same way as any other person applying for this card and there existed no special procedure to assist them. [He] however went on to clarify that for Christians there existed special procedures, which meant such persons were not obliged to apply for an Information Card at the Asayish. [He] explained this was because the Christians community was at particular risk from terrorist groups in [southern and central] Iraq and the disputed areas and the terrorist threat posed from Christians was considered to be non-existent.”\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION\n\n37.  The applicants complained that their return to  would involve a violation of Article 3 of the Convention. This provision reads as follows:\n\n“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”\n\nA.  Admissibility\n\n38.  The respondent Government claimed that the application was inadmissible for failure to comply with the six-month rule in Article 35 § 1 of the Convention, as the final decision in the domestic proceedings had been taken on 4 September 2009, twelve months before the applicants initiated the present proceedings.\n\n39.  The applicants contested this argument.\n\n40.  The Court dealt with this issue recently in two cases against , P.Z. and Others and B.Z. (nos. 68194/10 and 74352/11, decisions of 29 May 2012), in which it found as follows (§§ 34 and 32, respectively):\n\n“While ... the date of the final domestic decision providing an effective remedy is normally the starting-point for the calculation of the period of six months, the Court reiterates ... that the responsibility of a sending State under Article 2 or 3 of the Convention is, as a rule, incurred only at the time when the measure is taken to remove the individual concerned from its territory. Specific provisions of the Convention should be interpreted and understood in the context of other provisions as well as the issues relevant in a particular type of case. The Court therefore finds that the considerations relevant in determing the date of the sending State’s responsibility must be applicable also in the context of the six-month rule. In other words, the date of the State’s responsibility under Article 2 or 3 corresponds to the date when the six-month period under Article 35 § 1 starts to run for the applicant. If a decision ordering a removal has not been enforced and the individual remains on the territory of the State wishing to remove him or her ... the six-month period has not yet started to run.”\n\n41.  The Court sees no reason to find otherwise in the present case. The Government’s objection under Article 35 § 1 must accordingly be rejected.\n\n42.  No other ground for declaring the application inadmissible has been invoked or established. It must therefore be declared admissible.\n\nB.  Merits\n\n1.  The submissions of the parties\n\n(a)  The applicants\n\n43.  The applicants claimed that, should they be returned to Baghdad or other parts of central or southern , they would face a real risk of being killed or subjected to abduction, threats, physical and mental violence, harassment and discrimination by Islamic extremist groups as well as other individuals because of their Christian beliefs and practices. In addition, the female applicants also claimed that they would be at risk of sexual violence and gender discrimination amounting to treatment contrary to Article 3, on the basis of their gender alone or on the basis of their gender together with their religious beliefs. The applicants asserted that these risks were not due to a general situation of violence in , but to their belonging to a vulnerable minority.\n\n44.  Moreover, they maintained that the incidents to which they had been subjected before leaving  attested to their being at real risk upon return. In this respect, they noted that the Government had not questioned their credibility. In their view, it was very plausible that the family’s Christianity had been the main reason for targeting them, even if the first applicant’s business had been a contributing factor. They would be recognised upon return, as Islamist groups allegedly kept track on inhabitants and because they had lived in the same place for 13 years and were thus known in the neighbourhood. In these circumstances, it was highly probable that the threatening writings on the house where they had lived constituted a reminder and warning aimed directly at them.\n\n45.  The applicants further stated that available country-of-origin information showed that Christians in  had, for several years, been subjected to discrimination, harassment, kidnapping, attacks and other forms of serious violence, against which local authorities were generally unable to afford effective protection. They maintained that the Migration Board and the courts in the domestic proceedings as well as the Government in their observations in the present case had failed to take proper account of such relevant and objective information.\n\n46.  As regards internal relocation, the applicants submitted that they were likely to suffer inhuman or degrading treatment in the Kurdistan Region. They pointed out that they had no links with the region, that their financial situation was poor, that two of them were elderly and in relatively bad health and that none of them spoke Kurdish. They also maintained that the security situation for Christians was deteriorating in the Kurdistan Region. In any event, not being able to settle there, they would end up in Baghdad or other parts of central or southern . As to the first and second applicants’ health status, they submitted two medical certificates to the Court, issued in April and May 2012, which stated that the first applicant suffered from hypertension, a benign tumour of the adrenal gland and low levels of blood potassium and that the second applicant’s diagnosis included hypertension and depression.\n\n47.  Finally, the applicants objected to what they considered to be the Government’s contention, that the Court should focus on the procedural soundness of the domestic asylum proceedings and not make its own conclusions on the substantive questions in the case. Instead, the applicants asserted, it was for the Court to determine itself whether there were substantial grounds for believing that the applicants would face a real risk of treatment contrary to Article 3, having regard to all the information before it, including the evidence found in various national and international reports on .\n\n(b)  The Government\n\n48.  The Government acknowledged that country-of-origin information showed that the general security situation in the southern and central parts of  was still serious and that Christians made up one of the more exposed groups. However, they maintained that there was no general need of protection for all Christians from Iraq and, consequently, that assessments of protection needs should be made on an individual basis.\n\n49.  As to the applicants’ personal risks, the Government pointed out that the threats against them had occurred in August 2006, more than six years ago, and asserted that they had only partly been due to the family’s religious beliefs, the other part being of an economic nature based on the first applicant’s now discontinued business activities. In the Government’s view, the applicants had not shown that the threats against them were still valid. Furthermore, it was not certain that the threats written on the applicant’s house more than two years after their departure were directed against them personally.\n\n50.  In any event, referring to international reports on  as well as information obtained from the Migration Board, the Government contended that there was an internal flight alternative for the applicants in the three northern governorates of the Kurdistan Region. Allegedly, they would be able to enter without any restrictions or sponsor requirements into this region, which had been identified as the safest and most stable in , and they would be able to settle there, with access to the same public services as other residents. In fact, there was nothing in the applicants’ story that suggested the existence of a threat against them in other parts of Iraq than . Moreover, the first and second applicants both had high levels of education and would be able to work and provide for themselves, even in an area of  where they lacked a social network. Their health status did not indicate that they were unfit for work or otherwise affected in their ability to relocate within .\n\n51.  The Government further asserted that the Migration Board and the courts had provided the applicants with effective guarantees against arbitrary refoulement and had made thorough assessments, adequately and sufficiently supported by national and international source materials. In the proceedings, the applicants had been given many opportunities to present their case, through interviews conducted by the Board with an interpreter present and by being invited to submit written submissions, at all stages assisted by legal counsel. Moreover, having regard to the expertise held by the migration bodies, the Government maintained that significant weight should be given to their findings.\n\n2.  The Court’s assessment\n\n(a)  General principles\n\n52.  The Court reiterates that Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens (see, for example, Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A no. 94, p. 34, § 67; Boujlifa v. France, judgment of 21 October 1997, Reports 1997VI, p. 2264, § 42; and Üner v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006-XII). However, the expulsion of an alien by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person in question, if deported, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country. In these circumstances, Article 3 implies the obligation not to deport the person in question to that country (see, among other authorities, Saadi v. Italy [GC], no. 37201/06, §§ 124-125, ECHR 2008-...).\n\n53.  The assessment of whether there are substantial grounds for believing that the applicant faces such a real risk inevitably requires that the Court assesses the conditions in the receiving country against the standards of Article 3 of the Convention (Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 67, ECHR 2005-I). These standards imply that the ill-treatment the applicant alleges he will face if returned must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this is relative, depending on all the circumstances of the case (Hilal v. the United Kingdom, no. 45276/99, § 60, ECHR 2001-II). Owing to the absolute character of the right guaranteed, Article 3 of the Convention may also apply where the danger emanates from persons or groups of persons who are not public officials. However, it must be shown that the risk is real and that the authorities of the receiving State are not able to obviate the risk by providing appropriate protection (H.L.R. v. France, judgment of 29 April 1997, Reports 1997-III, § 40).\n\n54.  The assessment of the existence of a real risk must necessarily be a rigorous one (Chahal v. the United Kingdom, judgment of 15 November 1996, Reports 1996-V, § 96; and Saadi v. Italy, cited above, § 128). It is in principle for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he would be exposed to a real risk of being subjected to treatment contrary to Article 3. In this respect, the Court acknowledges that, owing to the special situation in which asylum seekers often find themselves, it is frequently necessary to give them the benefit of the doubt when it comes to assessing the credibility of their statements and the documents submitted in support thereof. However, when information is presented which gives strong reasons to question the veracity of an asylum seeker’s submissions, the individual must provide a satisfactory explanation for the alleged discrepancies (see, among other authorities, Collins and Akaziebie v. Sweden (dec.), no. 23944/05, 8 March 2007; and Hakizimana v. Sweden (dec.), no. 37913/05, 27 March 2008).\n\n55.  In cases concerning the expulsion of asylum seekers, the Court does not itself examine the actual asylum applications or verify how the States honour their obligations under the Geneva Convention relating to the status of refugees. It must be satisfied, though, that the assessment made by the authorities of the Contracting State is adequate and sufficiently supported by domestic materials as well as by materials originating from other reliable and objective sources such as, for instance, other contracting or non-contracting states, agencies of the United Nations and reputable non-governmental organisations (NA. v. the United Kingdom, no. 25904/07, § 119, 17 July 2008).\n\n(b)  The general situation in\n\n56.  The Court notes that a general situation of violence will not normally in itself entail a violation of Article 3 in the event of an expulsion (H.L.R. v. France, cited above, § 41). However, the Court has never excluded the possibility that the general situation of violence in a country of destination may be of a sufficient level of intensity as to entail that any removal to it would necessarily breach Article 3 of the Convention. Nevertheless, the Court would adopt such an approach only in the most extreme cases of general violence, where there is a real risk of ill-treatment simply by virtue of an individual being exposed to such violence on return (NA. v. the United Kingdom, cited above, § 115).\n\n57.  While the international reports on  attest to a continued difficult situation, including indiscriminate and deadly attacks by violent groups, discrimination as well as heavy-handed treatment by authorities, it appears that the overall situation is slowly improving. In the case of F.H. v. Sweden (no. 32621/06, § 93, 20 January 2009), the Court, having at its disposal information material up to and including the year 2008, concluded that the general situation in Iraq was not so serious as to cause, by itself, a violation of Article 3 of the Convention in the event of a person’s return to that country. Taking into account the international and national reports available today, the Court sees no reason to alter the position taken in this respect four years ago.\n\n58.  However, the applicants are not in essence claiming that the general circumstances pertaining in Iraq would on their own preclude their return to that country, but that this situation together with, primarily, the fact that they are Christians would put them at real risk of being subjected to treatment prohibited by Article 3.\n\n(c)  The situation of Christians in\n\n59.  In the mentioned case of F.H. v. Sweden, following its conclusion that the general situation in  was not sufficient to preclude all returns to the country, the Court had occasion to examine the risks facing the applicant on account of his being Christian. It concluded then that he would not face a real risk of persecution or ill-treatment on the basis of his religious affiliation alone. In so doing, the Court had regard to the occurrence of attacks against Christians, some of them deadly, but found that they had been carried out by individuals rather than organised groups and that the applicant would be able to seek protection from the Iraqi authorities who would be willing and able to help him (§ 97 of the judgment).\n\n60.  During the subsequent four years, attacks on Christians have continued, including the attack on 31 October 2010 on the Catholic church Our Lady of Salvation in , claiming more than 50 victims. The available evidence rather suggests that, in comparison with 2008/09, such violence has escalated. While still the great majority of civilians killed in  are Muslims, a high number of attacks have been recorded in recent years which appear to have specifically targeted Christians and been conducted by organised extremist groups. As noted by the UNHCR (see § 25 above) and others, Christians form a vulnerable minority in the southern and central parts of Iraq, either directly because of their faith or because of their perceived wealth or connections with foreign forces and countries or the practice of some of them to sell alcohol. The UK Border Agency concluded in December 2011 that the authorities in these parts of the country were generally unable to protect Christians and other religious minorities (§ 26 above).\n\n61.  The question arises whether the vulnerability of the Christian group and the risks which the individuals face on account of their faith make it impossible to return members of this group to Iraq without violating their rights under Article 3. The Court considers, however, that it need not determine this issue, as there is an internal relocation alternative available to them in the Kurdistan Region. This will be examined in the following.\n\n(d)  The possibility of relocation to the Kurdistan Region\n\n62.  The Court reiterates that Article 3 does not, as such, preclude Contracting States from placing reliance on the existence of an internal flight or relocation alternative in their assessment of an individual’s claim that a return to the country of origin would expose him or her to a real risk of being subjected to treatment proscribed by that provision. However, the Court has held that reliance on such an alternative does not affect the responsibility of the expelling  to ensure that the applicant is not, as a result of its decision to expel, exposed to treatment contrary to Article 3. Therefore, as a precondition of relying on an internal flight or relocation alternative, certain guarantees have to be in place: the person to be expelled must be able to travel to the area concerned, gain admittance and settle there, failing which an issue under Article 3 may arise, the more so if in the absence of such guarantees there is a possibility of his or her ending up in a part of the country of origin where there is a real risk of illtreatment (Sufi and Elmi v. the United Kingdom, nos. 8319/07 and 11449/07, § 266, 28 June 2011, with further references).\n\n63.  The three northern governorates – Dahuk, Erbil and Sulaymaniyah – forming the Kurdistan Region of Iraq, or KRI, are, according to international sources, a relatively safe area. While there have been incidents of violence and threats, the rights of Christians are generally considered to be respected. As noted by various sources, large numbers of Christians have travelled to the Kurdistan Region and found refuge there.\n\n64.  As regards the possibility of entering the KRI, some sources state that the border checks are often inconsistent, varying not only from governorate to governorate but also from checkpoint to checkpoint (see the UNHCR Guidelines, at § 30 above, and the Finnish/Swiss report, which appears to rely heavily on the UNHCR’s conclusions in this respect, at § 35 above). However, the difficulties faced by some at the KRI checkpoints do not seem to be relevant for Christians. This has been noted by, among others, the UNHCR. Rather, members of the Christian group are given preferential treatment as compared to others wishing to enter the Kurdistan Region. As stated by a representative of an international organisation and the head of Asaysih, the KRI general security authority, to investigators of the Danish/UK fact-finding mission, this is because Christians are at particular risk of terrorist attacks in southern and central Iraq and as the Christians are not considered to pose any terrorist threat themselves (see § 36 above, at 4.34 and 8.19).\n\n65.  Moreover, while Christians may be able to enter the three northern governorates without providing any documentation at all (see Danish/UK report, § 36 above, at 4.34), in any event there does not seem to be any difficulty to obtain identity documents in case old ones have been lost. As concluded by the UK Border Agency (§ 31 above) and the UK Upper Tribunal in the recent country guidance case of HM and others (§ 34 above), it is possible for an individual to obtain identity documents from a central register in Baghdad, which retains identity records on microfiche, whether he or she is applying from abroad or within Iraq. In regard to the need for a sponsor resident in the Kurdistan Region, the Upper Tribunal further concluded, in the case mentioned above, that no-one was required to have a sponsor, whether for their entry into or for their continued residence in the KRI. It appears that the UNHCR is of the same opinion as regards entry, although its statement in the Guidelines directly concerns only the requirements of a tourist (§ 30 above). The Finnish/Swiss report states that Christians may be able to nominate senior clerics as sponsors (§ 35 above); thus, they do not have to have a personal acquaintance to vouch for them.\n\n66.  Internal relocation inevitably involves certain hardship. Various sources have attested that people who relocate to the Kurdistan Region may face difficulties, for instance, in finding proper jobs and housing there, not the least if they do not speak Kurdish. Nevertheless, the evidence before the Court suggests that there are jobs available and that settlers have access to health care as well as financial and other support from the UNHCR and local authorities. In any event, there is no indication that the general living conditions in the KRI for a Christian settler would be unreasonable or in any way amount to treatment prohibited by Article 3. Nor is there a real risk of his or her ending up in the other parts of .\n\n67.  In conclusion, therefore, the Court considers that relocation to the Kurdistan Region is a viable alternative for a Christian fearing persecution or ill-treatment in other parts of . The reliance by a Contracting State on such an alternative would thus not, in general, give rise to an issue under Article 3.\n\n(e)  The particular circumstances of the applicants\n\n68.  It remains for the Court to determine whether, despite what has been stated above, the personal circumstances of the three applicants would make it unreasonable for them to settle in the Kurdistan Region. In this respect, the Court first notes that the applicants’ accounts were examined by the Migration Board and the , which both gave extensive reasons for their decisions that they were not in need of protection in . The applicants were able to present the arguments they wished with the assistance of legal counsel and language interpretation.\n\n69.  As regards the incidents to which the applicants were subjected in Iraq, the Court notes that they all occurred in . While they have claimed that they would risk ill-treatment also in the Kurdistan Region, where the situations for Christians are allegedly deteriorating, these claims have not been substantiated and are not supported by the information on the KRI available to the Court.\n\n70.  The first and second applicants have also pointed out that they are elderly and in bad health. However, the medical certificates submitted during the proceedings before the Court do not suggest that they have such medical problems that they could not return to Iraq, nor are they of such an advanced age that that it of itself would render their deportation unreasonable.\n\n71.  Moreover, the second and third applicants have maintained that they, as women, would face a risk of sexual violence and gender discrimination in . In this respect, the Court finds that, notwithstanding the fact that women in  undoubtedly are in an unfavoured position as compared to men, the applicants’ submissions and the available country-of-origin information do not indicate that they are at real risk of gender-related ill-treatment upon return which could involve a violation of Article 3.\n\n72.  The Court finally considers that also the other allegations of the applicants – that they are poor and have no links to the Kurdistan Region – fail to show that they would be subjected to ill-treatment upon return.\n\n(f)  Conclusion\n\n73.  Having regard to the above, the Court concludes that, although the applicants, as Christians, belong to a vulnerable minority and irrespective of whether they can be said to face, as members of that group, a real risk of treatment proscribed by Article 3 of the Convention in the southern and central parts of Iraq, they may reasonably relocate to the Kurdistan Region, where they will not face such a risk. Neither the general situation in that region, including that of the Christian minority, nor any of the applicants’ personal circumstances indicate the existence of said risk.\n\nConsequently, their deportation to Iraq would not involve a violation of Article 3.\n\nII.  RULE 39 OF THE RULES OF COURT\n\n74.  The Court recalls that, in accordance with Article 44 § 2 of the Convention, the present judgment will not become final until (a) the parties declare that they will not request that the case be referred to the Grand Chamber; or (b) three months after the date of the judgment, if reference of the case to the Grand Chamber has not been requested; or (c) the Panel of the Grand Chamber rejects any request to refer under Article 43 of the Convention.\n\n75.  It considers that the indication made to the Government under Rule 39 of the Rules of Court (see § 4 above) must continue in force until the present judgment becomes final or until the Court takes a further decision in this connection (see operative part).\n\nFOR THESE REASONS, THE COURT\n\n1.  Declares, by a majority, the application admissible;\n\n2.  Holds by five votes to two that the implementation of the deportation order against the applicants would not give rise to a violation of Article 3 of the Convention;\n\n3.  Decides unanimously to continue to indicate to the Government under Rule 39 of the Rules of Court that it is desirable in the interests of the proper conduct of the proceedings not to deport the applicants until such time as the present judgment becomes final or until further order.\n\nDone in English, and notified in writing on 27 June 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.\n\nIn accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:\n\n(a)  partly concurring, partly dissenting opinion of Judge Lemmens;\n\n(b)  separate opinion of Judge Power-Forde joined by Judge Zupančič.\n\nPARTLY CONCURRING, PARTLY DISSENTING OPINION OF JUDGE LEMMENS\n\nI voted with my colleagues in finding that there would be no violation of Article 3 of the Convention if the deportation order were implemented.\n\nIn my opinion, however, it was not necessary to discuss the merits of the application as it should have been declared inadmissible for failure to comply with the six-month rule.\n\nEach of the applicants filed an asylum request. When the Migration Board rejected their requests, it decided at the same time that the applicants had to be deported to Iraq (or to another country willing to receive them). The risk of ill-treatment that the applicants allegedly run stems from the deportation orders. These orders became enforceable when the Migration Court of Appeal decided, on 4 September 2009, to refuse leave to appeal against the Migration Court’s judgment upholding the rejection of the asylum requests. In my opinion, the Government were right in arguing that the six-month time-limit started to run from that date. As a result, the application, which was lodged on 3 September 2010, should have been declared inadmissible.\n\nIt is true that the Court rejected a similar objection raised by the same Government in two decisions of 29 May 2012, quoted in paragraph 40 of the judgment (P.Z. and Others v. Sweden, no. 68194/10, and B.Z. v. Sweden, no. 74352/11; see also, implicitly, as indicated by the applicants, N. v. Sweden, no. 23505/09, §§ 1, 14 and 39, 20 July 2010). With all due respect, however, I must confess that I am not convinced by the reasoning in those decisions. In particular, while I agree that the (actual, not potential) responsibility of a sending State under Article 3 of the Convention is “incurred only at the time when the measure is taken to remove the individual concerned”, I do not see why it follows from this that the sixmonth period for lodging an application with the Court does not start to run until the actual deportation. It may well be that the sending State does not immediately enforce an enforceable deportation order, for a variety of imaginable reasons, and thus tolerates a person remaining for some time in the country. As long as this tolerance exists, the alleged violation is only a potential one. However, the person concerned can already complain about such a potential violation. I do not see why a person making use of that possibility should not respect the six-month rule. It would seem to me that the six-month period in such a situation starts to run from the moment when the decision that gives rise to the alleged potential violation becomes final, that is, from the moment when the deportation order becomes enforceable.\n\nIn the present case the applicants lodged their application after their request for re-examination of the matter was rejected by the Migration Board (on 9 March 2010) and after that decision was upheld by the Migration Court (on 16 June 2010) (see paragraphs 12-13). I note incidentally that they did not appeal against the latter judgment, but will not draw any conclusions from this. The question arises whether a new period of six months started to run from the date of delivery of the judgment of the Migration Court.\n\nAccording to the relevant provisions of domestic law, the Migration Board will decide to re-examine the matter if new circumstances are invoked by the alien. If that does not apply, as was found in the case of the applicants, the Migration Board will not re-examine the matter (see Chapter 12, Section 19, of the Aliens Act, quoted in paragraph 18).\n\nIn my opinion, the rejection of a request for re-examination based on new circumstances does not cause a new six-month period to start to run, at least not in respect of the circumstances already invoked in the initial proceedings. In the present case, the applicants complain about a potential violation of Article 3 of the Convention on the basis of circumstances invoked in the initial proceedings, which ended with the Migration Court of Appeal’s decision of 4 September 2009. In these circumstances it does not seem to me that their attempt to obtain a re-examination of their case brings their application, lodged on 3 September 2010, within the six-month timelimit.\n\nThis important lead judgment concerns the application of the Court’s jurisprudence on internal flight relocation to the forced return of a specific category of failed asylum seekers to Iraq. More particularly, it raises the question as to the quality of the guarantees that must be in place before such persons may be deported back to their country of origin. There is a critical lacuna in the majority’s judgment that prevents me from joining them in finding that the implementation of deportation orders made in respect of the applicants would not give rise to a violation under Article 3 of the Convention.\n\nThe applicants are not just failed asylum seekers being returned to a country from which they have fled because of the dangers of war. They are persons who belong to a particular group that is, specifically, targeted in their home country because they exercise their fundamental right to freedom of religion and belief.\n\nIn F.H. v. Sweden I disagreed with the majority’s view that the general situation in Iraq, as of 2009, was not so serious as to prevent forcible expulsion. At that time, I gave significant weight to the view of the UNHCR that Iraqis were to be presumed to have international protection needs and that they should be considered to be refugees ‘on a prima facie basis’.\n\nIt is clear that matters have moved forward since that date. On 21 May 2012 the UNHCR issued new Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Iraq. That Agency has modified its position since 2009 and its current recommendation is that all claims be assessed on their individual merits, on a case-by-case basis, and in the light of up to date information.\n\nThere are two aspects of the 2012 Guidelines that are of particular relevance in the instant case. The first is that Iraqi asylum seekers with certain profiles and depending on their particular circumstances “are likely to be in need of international refugee protection”. Such profiles include “individuals with religion based claims” and “certain professionals”. The second is the UNHCR’s view that internal flight options are “often not available in Iraq” due to serious risks faced by Iraqis throughout the country, including, threats to safety and security, accessibility problems and lack of livelihood opportunities.\n\nNotwithstanding the fact that, as of late, the general situation in Iraq is deteriorating steadily, I can agree with the majority that, in principle, it is not of sufficient gravity, in itself, to prevent the return of failed asylum seekers to Iraq (§ 57).\n\nFurther, and notwithstanding the fact that attacks and violence against Christians have increased since October 2010 resulting in their massive displacement within Iraq, I can also accept that, in principle, the alternative relocation and settlement of Christians within the Kurdish Region, would not, in itself, violate Article 3.\n\nMy disagreement with the majority lies in its application of the Court’s jurisprudence on internal flight relocation to the facts of the instant case. More particularly, I cannot overlook its failure to test whether the necessary guarantees required by the Court are de facto in place prior to the applicants’ forced return to Iraq.\n\nThe Court’s case-law on internal flight relocation is clear. The relevant principles are articulated in Salah Sheek v. the Netherlands and have been confirmed, more recently, in Sufi and Elmi v. the United Kingdom. The Court considers that, as a precondition for relying on an internal flight alternative, certain guarantees have to be in place. These include: (i) that the person to be expelled must be able to travel safely to the area concerned; (ii) that the person concerned must be able to gain admittance to the area concerned; and (iii) that the person concerned must be able to settle in the area concerned.\n\nTo require that ‘guarantees’ are in place before deportations on the basis of an internal flight option can proceed is to set a high threshold of evidence in terms of the returnee’s future safety. Likelihoods, chances or positive indications are not enough. This is rightly so given the seriousness of what is at issue in sanctioning the forced return of persons with an unquestionable history of persecution in their home country to a different region thereof. It is entirely appropriate that the Court has set the bar at the level of ‘guarantee’. Safe transit to, actual admittance into and the ability to settle within the relocated area must be ‘guaranteed’ as a precondition for reliance upon internal flight options.\n\nFurthermore, such guarantees must be in place at the point when the assessment of risk under Article 3 is being made by the Court. If they are not, then an issue under Article 3 may arise, “the more so if in the absence of such guarantees there is a possibility of the expellee ending up in a part of the country of origin where he or she may be subjected to ill-treatment”.\n\nHaving identified the necessary guarantees, the Court in Salah Sheekh and Sufi and Elmi went on to test whether they were, in fact, established in each case. Thus, it considered, in detail, the risks involved in transit to the relatively ‘safe places’ of Somaliland and Puntland or other parts of central or southern Somalia. It also examined the likelihood of the applicants being allowed or enabled to stay in the ‘safe territory’ and it examined, specifically, the humanitarian conditions in the IDP camps in assessing a returnee’s ability to cater for his most basic needs, his vulnerability to ill-treatment and the prospects of his situation improving within a reasonable time. Despite the positive indications of ‘relative safety’ relied upon by the Dutch and British governments, it was the absence of the requisite guarantees that led the Court in both cases to reject proposals to deport the applicants on the basis of internal flight options, finding that, to do so in the absence of such guarantees would violate Article 3.\n\nThe majority’s approach to the application of the relevant principles in the instant case stands in marked contrast to the Court’s approach in these earlier cases. In § 62 it recites the relevant principles and notes the guarantees that are required to be in place. Having done so, however, it fails to apply those principles by testing whether, in the circumstances of the instant case, the prerequisite guarantees are de facto in place.\n\nOn the required guarantee of ‘safe travel’, for example, there is no mention anywhere in the judgment as to how the Government proposes to have the applicants travel to the area concerned. A relevant question arises as to whether the Respondent State is required to arrange for deportation directly to the relocation area, or, alternatively, to send the applicants to a destination from where they can move to the safe area themselves without prohibitive risk or hardship. Since this question remains unaddressed and therefore unanswered in the judgment, there is no possibility for this Court to consider, as it did in Salah Sheekh and Sufi and Elmi, any of the risks involved in the applicants’ transit to the Kurdistan region.\n\nA consideration of the transit risks is all the more important having regard to the recent escalation in violence in Iraq which comes one year after the UNHCR had already observed that:-\n\nThe omission in the Judgment of any consideration of the means and routes to be deployed by the State in deporting the applicants to the Kurdistan Region means that the first prerequisite guarantee that the applicants can, in fact, travel safely to the area concerned has not been established.\n\nAs to the existence of the other necessary guarantees, I cannot but conclude that there remains some doubt as to whether they have been met in this case. In Salah Sheekh v. the Netherlands the Government had provided information that Somalis were free to enter and leave the country as State borders were subject to very few controls. The Court accepted that the Government may well succeed in removing the applicant to the relatively safe territory of either Somaliland or Puntland but it went on to observe that\n\nI accept that Christians are regarded as not posing any terrorist threat to the Kurdish region and that, in general, there is an hospitable attitude adopted by the Kurdish authorities towards a considerable number of IDPs, including, Christians. However, one cannot fail to take cognisance of the UNHCR’s finding that:-\n\nand that\n\nThat being so and, in the absence of any reliable monitoring of the fate of deported rejected asylum seekers, there must remain some doubt as to whether the applicants will be ‘guaranteed’ admittance into the Kurdish Region given the myriad uncertainties that abound. Quite simply, there is no agreement in the reports relied upon by the majority on this and on a number of important issues that will, inevitably, affect the lives of the applicants.\n\nEven if one could accept the likelihood that the applicants would gain admittance to the Kurdish Region, the Government has no way of verifying whether the applicants could remain and settle in this place. These doubts as to the requisite guarantees arise prior to any consideration of the humanitarian conditions in which the applicants will be expected to live. Clearly, they will face hardship and difficulty in accessing food rations, housing, education and employment. The recent influx of Syrian refuges into the northern area of Iraq cannot but exacerbate these problems.\n\nIt is, primarily, the absence of the requisite guarantee as to safe transit that prevents me from voting with the majority in this case although doubts as to the other necessary guarantees only serve to compound the problem. It falls to the Government to satisfy the Court that the applicants will not be at risk of treatment that violates Article 3 by reason of their decision to deport them back to Iraq. Absent any information as to how the applicants are to reach the Kurdish Region there is a critical lacuna in the majority’s judgment which needs to be addressed in order to ensure that internal flight relocation can, indeed, be used.\n\nConsequently, whilst I do not exclude that, in principle, internal relocation alternatives for Iraqi Christians may raise no issue under Article 3, I am not satisfied that, in the instant case, the requisite guarantees that are required by the Court have been provided. Consequently, in my view, this case raises a serious question concerning the application of the Convention and, in particular, the quality of the guarantees that must exist as a precondition for a State’s reliance upon internal flight relocation as a means of circumventing the absolute nature of the prohibition contained in Article 3 of the Convention. This serious issue is one of general importance as it affects significant numbers of a vulnerable religious minority who are being forcibly returned to a country in which they are specifically targeted as the subjects of violent attack on the basis of their religious beliefs.\n\nConsequently, whilst I do not exclude that, in principle, internal relocation alternatives for Iraqi Christians may raise no issue under Article 3, I am not satisfied that, in the instant case, the requisite guarantees that are required by the Court have been provided. Consequently, in my view, this case raises a serious question concerning the application of the Convention and, in particular, the quality of the guarantees that must exist as a precondition for a State’s reliance upon internal flight relocation as a means of circumventing the absolute nature of the prohibition contained in Article 3 of the Convention. This serious issue is one of general importance as it affects significant numbers of a vulnerable religious minority who are being forcibly returned to a country in which they are specifically targeted as the subjects of violent attack on the basis of their religious beliefs.","title":""}
{"_id":"passage_65","text":"PROCEDURE\n\n1.  The case originated in an application (no. 59857/00) against the  lodged with the European Commission of Human Rights (“the Commission”) on 21 May 1998 under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Juliusz Bennich-Zalewski (“the applicant”).\n\n2.  The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. The applicant was represented by Ms A. Zemke-Górecka, a lawyer practising in .\n\n3.   The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).\n\n4.  The applicant alleged, in particular, that the length of administrative proceedings which he had instituted in 1991 was unreasonable and contrary to Article 6 of the Convention. He also complained under Article 1 of Protocol No. 1 of the Convention that he had been unable to obtain effective enjoyment of his property rights confirmed by a judicial decision given in 2001.\n\n5.  On 28 November 2005 the President of the Section decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it was decided to examine the merits of the application at the same time as its admissibility.\n\nTHE FACTS\n\nI.\tTHE CIRCUMSTANCES OF THE CASE\n\n6.  The applicant was born in 1966 and lives in .\n\n1.  Administrative proceedings\n\n(a)  Proceedings in which the applicant sought to have the expropriation decision declared null and void\n\n7.  In 1945 a factory owned by the applicant’s legal predecessor was de facto taken over by the State in the context of a countrywide campaign of nationalisation of industry. It was subsequently run by a Stateowned enterprise.\n\n8.  Pursuant to a decision given on 5 July 1966, the Ministry of Infrastructure stated that the factory and the land on which it was situated had become the property of the State under the provisions of the 1958 Act on Regulation of Legal Status of Properties Managed by the State.\n\n9.  In 1991 the applicant’s mother lodged an application with the Ministry of Industry to have the expropriation decision declared null and void under Article 156 of the Code of Administrative Procedure.\n\n10.  In March 1994 the applicant’s mother died. The applicant joined the proceedings as her legal successor.\n\n11.  In 1996 the Ministry found that it lacked competence to deal with the case and referred it to the Ministry of Construction. In January 1997 the case was referred to the Ministry of Housing as the Ministry of Construction had ceased to exist. In October 1997 that Ministry forwarded the case file to the Ministry of Internal Affairs for a decision.\n\n12.  On 27 October 1997 the applicant complained to the  about the failure of the administration to rule on his 1991 application.\n\n13.  On 18 January 1997 the Minister of Internal Affairs declared that he was competent to deal with the case.\n\n14.  On 22 January 1999 the , having examined the applicant’s complaint, ordered the Minister of Internal Affairs to issue a decision concerning the case within one month from the date of the service of its judgment.\n\n15.  On 27 July 1999 the Minister of Internal Affairs, having gathered various documents concerning the legal status of the property, declared that the 1966 expropriation decision was null and void as it had been given in flagrant breach of the laws applicable to properties de facto taken over by the State.\n\n16.  On an unspecified date before August 1999 the State-owned enterprise was transformed into an independent public company, Izolacja, the structure and functioning of which were governed by the provisions of the Commercial Code. The State however retained a minority shareholding in the company. In August 1999 the Izolacja company, which was running the factory as the legal successor of the former State-owned enterprise, requested that the case be reexamined. Subsequently, the Ministry summoned the parties to submit their further pleadings and documents.\n\n17.  On 17 April 2000 the Minister, having re-examined the case, upheld its previous decision and declared that the expropriation decision was null and void.\n\n18.  The public company in possession of the factory requested that the enforcement of this decision be stayed pending the outcome of the proceedings in which it had appealed against the decision of the Minister to the . On 12 September 2000 the  allowed this request. On 16 November 2000 the applicant’s request to have this decision set aside was dismissed by the same court.\n\n19.  On 12 January 2001 the  upheld the decision of 17 April 2000.\n\n(b)  Proceedings in which the applicant challenged the transfer of ownership from the State Treasury\n\n20.  On 30 November 1992 the Kalisz Governor gave a decision to the effect that from 5 December of that year the ownership of the factory and the right of perpetual use of the land on which it was situated was to be vested in the Izolacja company. On an unspecified later date this hitherto Stateowned company changed its status and became an independent public company governed by the Commercial Code and in which the State was a minority shareholder (see also paragraph 16 above).\n\n21.  In February 1997 the applicant instituted proceedings in which he sought to have that decision declared null and void.\n\n22.  On 7 April 1997 the Kalisz Governor stayed those proceedings, pending the outcome of the administrative proceedings described above.\n\n23.  The proceedings were resumed on 11 September 2000.\n\n24.  On 17 October 2001 the President of the Office for Housing Matters declared that the 1992 decision was null and void. The company requested that the case be reexamined.\n\n25.  On 11 January 2002 the President of the Office for Housing Matters, having reconsidered the case, upheld his earlier decision.\n\n2. Events after the expropriation decision was declared null and void\n\n(a)\tProceedings for repossession of the production hall\n\n26.  In 1997 the applicant instituted civil proceedings before the , seeking recovery of possession of the production hall of the factory.\n\n27.  On 19 February 1998 the court stayed the proceedings pending the outcome of the administrative case, holding that the outcome of the administrative proceedings in which the lawfulness of the 1966 decision was being examined (see paragraphs 7-19 above) was decisive for any decisions to be taken by a civil court. The applicant appealed. On 1 April 1998 his appeal was dismissed by the Łódź Court of Appeal. The proceedings were later resumed. At a hearing held on 24 October 2000 the court stayed the proceedings again. On 24 April 2001 the court resumed the proceedings. On 22 January 2002 the court, having regard to the parties’ concordant request, stayed the proceedings, with a view to the possibility that they might settle the case.\n\n27.  On 19 February 1998 the court stayed the proceedings pending the outcome of the administrative case, holding that the outcome of the administrative proceedings in which the lawfulness of the 1966 decision was being examined (see paragraphs 7-19 above) was decisive for any decisions to be taken by a civil court. The applicant appealed. On 1 April 1998 his appeal was dismissed by the Łódź Court of Appeal. The proceedings were later resumed. At a hearing held on 24 October 2000 the court stayed the proceedings again. On 24 April 2001 the court resumed the proceedings. On 22 January 2002 the court, having regard to the parties’ concordant request, stayed the proceedings, with a view to the possibility that they might settle the case.\n\n28.  On 1 September 2003 the applicant and other successors of the factory’s former owner submitted a settlement offer to the defendant company. The proceedings were resumed on 9 October 2003 at the defendant’s request.\n\n28.  On 1 September 2003 the applicant and other successors of the factory’s former owner submitted a settlement offer to the defendant company. The proceedings were resumed on 9 October 2003 at the defendant’s request.\n\n29.  On 7 July 2004 the court adopted a judgment by which it ordered the defendant company to clear the production hall and return it to the applicant. On 1 and 3 September 2004 respectively the defendant company and the applicant appealed against that judgment.\n\n30.  On 22 December 2004 the Łódź Court of Appeal quashed the judgment and remitted the case. On 18 August 2005 the defendant company informed the court that on 10 August 2005 it had concluded an agreement with the applicant concerning the settlement of arrears in the payment of compensation for noncontractual use of the property for the period from May 2002 to August 2005. They had agreed that the defendant company would pay the applicant 177,040 Polish zlotys (PLN) in three instalments. In addition, the parties concluded a lease contract valid until 31 December 2007. As the applicant refused to withdraw his case in so far as it concerned the claim for repossession of the production hall, the proceedings were continued. They are currently pending.\n\n(b)\tThe proceedings against the Izolacja company for payment\n\n31.  On 10 February 2001 a lawyer representing nine legal successors of the former owner, including the applicant, called on the Izolacja company to pay PLN 18,000 per month for using their property without a contractual basis. On 13 November 2001 the applicant, together with six other legal successors, brought a civil action against the company in the Jarocin District Court, demanding payment for noncontractual use of the property in February 2001.\n\n31.  On 10 February 2001 a lawyer representing nine legal successors of the former owner, including the applicant, called on the Izolacja company to pay PLN 18,000 per month for using their property without a contractual basis. On 13 November 2001 the applicant, together with six other legal successors, brought a civil action against the company in the Jarocin District Court, demanding payment for noncontractual use of the property in February 2001.\n\n32.  On 12 February 2003 the Jarocin District Court gave judgment. It ordered the defendant company to pay PLN 11,025 plus default interest to the legal successors of the former owner in damages for the use of the property in February 2001. The court observed that the company had been in possession of the factory in bad faith at least since the judgment of the  given in January 2001 (see paragraph 19 above). This judgment was upheld on 25 June 2003 by the .\n\n33.  Subsequently, the applicant brought civil actions in the Jarocin District Court, seeking compensation from the Izolacja company for noncontractual use of the property during the following periods: March and April 2001, May and June 2001, July and August 2001, and a number of further similar actions covering the period from May 2002 until March 2005.\n\n34.  The Jarocin District Court joined his two first actions and allowed the applicant’s claim on 14 January 2004. Its judgment was upheld on 24 September 2004 by the .\n\n35.  The parties concluded an outofcourt settlement in respect of the third action and the civil proceedings were discontinued. The remaining actions were joined and transferred to the Warsaw-Praga District Court, before which they are currently pending.\n\n36.  On 14 October 2004 the applicant brought another civil action in the Jarocin District Court, seeking compensation for the company’s effective enjoyment of ownership from 6 May 1992 to 5 January 2001.\n\n37.  On 20 December 2004 his action was dismissed. The court, bearing in mind the presumption of lawfulness of final administrative decisions, considered that in that period the defendant company had been holding the property in question as an independent possessor in good faith. Hence, it was not obliged to pay. This judgment was upheld by the  on 6 May 2005.\n\n38.  On 17 April 2003 the applicant requested the Ministry of Internal Affairs to pay him damages for the period during which the Stateowned factory had been using his property. He relied on Article 160 of the Code of Administrative Procedure in connection with the decision of 17 April 2000 declaring the 1966 expropriation decision null and void.\n\n39.  On 31 March 2004 the Minister for Infrastructure refused to grant compensation to the applicant and the other legal successors. He considered that they had not proved that they had sustained damage as a result of the 1966 expropriation decision, and that no link between the alleged damage and the decision had been shown.\n\n40.  On 14 May 2004 the applicant brought a civil action in the Warsaw District Court against the State Treasury, seeking compensation for the damage resulting from the unlawful expropriation decision issued in 1966. He based his claim on Article 417 of the Civil Code. The applicant specified that the damage should be assessed as the difference in the value of the enterprise between 1945 and 2004. He also claimed one-quarter of the profits which the enterprise had made between 1945 and 2003.\n\n41.  On 28 February 2005 the Warsaw-Śródmieście District Court dismissed the applicant’s action. It was of the view that the applicant had failed to show that he had suffered damage. It noted that it was open to him to bring a claim for repossession against the company. The only damage that could be examined was the alleged difference in the value of the property on the date when it had been taken over by the State Treasury and the date on which the unlawfulness of the expropriation decision had been recognised. However, it transpired from the evidence submitted by the applicant that the buildings on the property had been modernised by the company. Hence, the value of the property had in fact increased.\n\n42.  On 11 April 2005 the judgment, together with its reasoning, was served on the applicant. The applicant did not appeal and on 26 April 2005 the judgment became final.\n\nThe factory remains in the possession of the Izolacja company and monthly rent for the lease is paid to the applicant.\n\nII.  RELEVANT DOMESTIC LAW\n\nA.\tAdministrative proceedings by which a final administrative decision can be challenged\n\n43.  Under Polish law no provisions have been enacted allowing specifically for the redressing of wrongs committed in connection with expropriations effected in the context of agrarian reform. Therefore, no specific legal framework is available, enacted with the purpose of mitigating the effects of certain infringements of property rights.\n\n44.  However, it is open to persons whose property was expropriated or their legal successors, to institute, under Article 156 of the Code of Administrative Procedure, administrative proceedings in order to claim that the expropriation decisions should be declared null and void as having been issued contrary to law. In particular, a final administrative decision can be declared null and void at any time if it was issued without a legal basis, or in flagrant violation of law.\n\n45.  If the flaw that taints the challenged decision is of a substantive character, i.e. if the decision had been given without a legal basis or in flagrant violation of law, the administrative authority shall declare it null and void.\n\n46.  Decisions flawed as a result of lesser procedural shortcomings, listed under items 1, 3, 4 and 7 of Article 156 § 1, such as those given by an authority which lacked competence to issue a decision in a given case, or in a case which had already been decided or addressed to a person not being a party to the proceedings, can only be declared null and void if less than ten years have elapsed from the date on which such decisions were given. In respect of such decisions it is only possible to declare that they were issued contrary to law; the decisions themselves remain valid.\n\n47.  A decision to declare the old decision null and void, or a refusal to do so, may ultimately be appealed to the .\n\nB.\tCompensation proceedings for damage arising out of an unlawful administrative decision\n\n48.  Article 160 of the Code of Administrative Procedure, as applicable at the material time, read in its relevant part:\n\n\"A person who has suffered a loss on account of the issuing of a decision in a manner contrary to Article 156 § 1 or on account of the annulment of such a decision shall have a claim for compensation for actual loss, unless he has been responsible for the circumstances mentioned in this provision.\"\n\n49.  An administrative decision in respect of the compensation claim could be appealed against in a civil court.\n\nC.\tLength of administrative proceedings\n\n1.\tBefore 30 June 1995\n\n50.  Under Article 35 of the Code of Administrative Procedure of 1960, the administration was obliged to deal with cases without undue delay. Simple cases should be dealt without any delay. In cases requiring some enquiry a first-instance decision should be given in no more than one month. In particularly complex cases decisions should be taken within two months.\n\n51.  If the decision had not been given within those time limits, a complaint under Article 37 of the Code could be filed with the higherinstance authority, which should fix an additional time limit, establish the persons responsible for the failure to deal with the case within the timelimits, and, if need be, arrange for preventive measures to be adopted in order to prevent further delays.\n\n2.\tFrom 30 June 1995 until 1 February 2004\n\n52.  In 1995 the Supreme Administrative Court Act was adopted, which entered into force on 1 October 1995. It created further procedures in which a complaint about the administration’s failure to act could be raised.\n\n53.  Under Article 17 of that Act, that court was competent to examine complaints about the administration’s inactivity in administrative proceedings in cases referred to in Article 16 of the Act.\n\n54.  Pursuant to Article 26 of the Act, if a complaint about the inactivity of an administrative authority was well-founded, the court should oblige the competent authority to give a decision, or to carry out the factual act, or to confer or acknowledge an individual entitlement, right or obligation.\n\n55.  On 1 January 2004 the Law on Administrative Courts came into force, which replaced the 1995 Act and established a two-tiered system of appeals against administrative decisions to administrative courts.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION\n\n56.  The applicant alleged a violation of Article 6 § 1 of the Convention, arguing that the administrative proceedings in which he had sought to have the expropriation decision given in 1966 declared null and void had been excessively lengthy.\n\n57.  The relevant provisions of Article 6 § 1 read:\n\n“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time by an independent and impartial tribunal ...”\n\nA.  Admissibility\n\n58.  The Government submitted that after 1 October 1995, the date on which the Supreme Administrative Court Act 1995 had entered into force, the applicant could have lodged a complaint with that court about the failure of the ministries dealing with his case to give a decision. They averred that he had not availed himself of this remedy.\n\n59.  The Court notes that on 27 October 1997 the applicant complained to the  about the failure of the administrative authorities to rule on his 1991 application. A relevant judgment was given by that court on 22 January 1999 (see paragraph 14 above).\n\n60.  Therefore, the Court considers that the applicant has exhausted domestic remedies as required by Article 35 § 1 of the Convention.\n\n61.  It follows that the Government’s preliminary objection must be dismissed. The Court notes that this complaint is not manifestly illfounded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n1.  Period to be taken into consideration\n\n62.  The Court notes that the proceedings began in 1991 and ended on 12 January 2001, when the  gave its judgment (see paragraph 19 above). They therefore lasted ten years, of which seven years and eight months fall within the Court’s temporal jurisdiction,  having recognised the right of individual petition as from 1 May 1993. Given its jurisdiction ratione temporis, the Court can only consider the period which has elapsed since 1 May 1993, although it will have regard to the stage reached in the proceedings on that date (see, among other authorities, Zwierzyński v. Poland, no. 30210/96, § 123, ECHR 2000-XI).\n\n2.  Reasonableness of the length of the proceedings\n\n63.  The Government argued that the case had been complex as to both the facts and the law; that what had been at stake for the applicant had been of a purely pecuniary character; and that the authorities had shown appropriate diligence when dealing with the case.  The applicant disagreed.\n\n64.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII, and Beller v. Poland, no. 51837/99, § 67, 1 February 2005).\n\n65.  The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above).\n\n66.  Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. The Court further notes that the proceedings, instituted on an unspecified date in 1991, remained practically dormant from 1991 to 1997, when the applicant availed himself of the procedure provided for by the Code of Administrative Procedure and complained to the Supreme Administrative Court about the failure of the administration to rule on his application. That court, by its judgment of 22 January 1999, obliged the administrative authorities to give a decision within two months. This judgment was not complied with as the relevant administrative decision was ultimately given on 27 July 1999.\n\n67.  Having regard to its caselaw on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.\n\n68.  There has accordingly been a breach of Article 6 § 1.\n\nII.\tOTHER ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE CONVENTION\n\n69.  The applicant further complained that he had been deprived of the right of access to a court in that in 1998 the civil court had stayed the civil proceedings in which he had sought recovery of possession of the factory pending the outcome of the administrative case.\n\n70.  The Court is of the view that the fact that the civil court stayed the proceedings pending the outcome of the administrative case, which was aimed at the determination of the ownership of the property and was therefore of crucial relevance to the outcome of the civil case, does not amount to a breach of the right of access to a court. It further observes that the civil proceedings were resumed after the  had given its judgment on 12 January 2001.\n\n71.  It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.\n\nIII.  ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION\n\n72.  The applicant complained that despite the fact that in 2001 he had obtained a judgment by which the expropriation decision had been declared null and void, the State had not taken sufficient steps to enable him to obtain effective enjoyment of his property rights in respect of the property concerned. He relied on Article 1 of Protocol No. 1 to the Convention, which reads:\n\n“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.\n\nThe preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”\n\nA.  Admissibility\n\n1. Incompatibility ratione temporis with the provisions of the Convention\n\n73.  The Government submitted that the alleged violation of the applicant’s property rights had originated in the decisions given in 1966 and 1992. The application was therefore incompatible ratione temporis with the provisions of the Convention because the alleged violation had taken place before 10 October 1994, the date on which  had ratified Protocol No. 1 to the Convention. The applicant disagreed.\n\n74.  The Court’s jurisdiction ratione temporis covers only the period after the date of ratification of the Convention or its Protocols by the respondent State. From the ratification date onwards, all the State’s alleged acts and omissions must conform to the Convention or its Protocols and subsequent facts fall within the Court’s jurisdiction even where they are merely extensions of an already existing situation (see, for example, Almeida Garrett, Mascarenhas Falcão and Others v. Portugal, nos. 29813/96 and 30229/96, § 43, ECHR 2000-I). Accordingly, the Court is competent to examine the facts of the present case as to their compatibility with the Convention only in so far as they occurred after 10 October 1994, the date of ratification of Protocol No. 1 by . It may, however, have regard to the facts prior to ratification inasmuch as they could be considered to have created a situation extending beyond that date or may be relevant for the understanding of facts occurring after that date (see HuttenCzapska v. Poland [GC], no. 35014/97, §§ 147-153, ECHR 2006-...).\n\n75.  The Court further observes that the applicant’s complaint is not directed against the 1966 expropriation decision as such, nor against the 1992 decision to transfer the ownership from the State Treasury to the Izolacja company. It rather relates to the applicant’s alleged difficulties in obtaining practical recognition of the legal effects of the decision of 1999, confirmed in 2001 by the , that the expropriation had been unlawful. The Government’s plea of inadmissibility on the ground of lack of jurisdiction ratione temporis must accordingly be dismissed.\n\n2. Incompatibility ratione personae with the provisions of the Convention\n\n76.  The Government submitted that the applicant could not claim to be a victim of a breach of the Convention since he had already obtained satisfaction within the domestic system. He had obtained full redress for any delay in having the possession of the property restored to him by the Izolacja company. Under the lease contract which he had concluded with that company, he had recovered independent possession of the property on 1 September 2005 and had agreed to grant dependent possession to the Izolacja company. Additionally, he had obtained compensation for the period after January 2001 during which he had been deprived of the use of his property.\n\nThe applicant disagreed.\n\n77.  The Court considers that the Government’s objection is closely linked to the substance of the applicant’s complaint under Article 1 of Protocol No. 1 to the Convention. Its examination should therefore be joined to the merits of the case.\n\n3. Exhaustion of domestic remedies\n\n3. Exhaustion of domestic remedies\n\n78.  The Government argued that the applicant had failed to exhaust the relevant domestic remedies. He had not brought a civil action against the Izolacja company for repossession of the entire property. He had only sought repossession in respect of the production hall. The applicant had not brought an action for compensation in respect of the period starting from 1 April 2005. He had never sought reimbursement from the company of the taxes due for the real estate. He had not instituted proceedings to have the ownership entry in the relevant land register updated, following the judgment of January 2001, as the applicable laws obliged him to do. Likewise, the applicant had failed to appeal against the judgment of 28 February 2005 dismissing his action for compensation against the State Treasury for damage allegedly sustained between 1945 and 2003 (see paragraph 42 above). It was also open to him to claim compensation from the State Treasury under Article 417 of the Civil Code for the alleged damage, if any, caused to him by the fact that he had not been able to recover possession of his property after January 2001.\n\nAs to the administrative remedies, the applicant had failed to institute proceedings under Article 160 of the Code of Administrative Procedure as applicable at the material time, which made it possible to seek compensation for damage caused by the administrative decision which had subsequently been declared null and void.\n\n79.  The applicant disagreed. He submitted that the legal avenues indicated by the Government had been timeconsuming, costly and had not offered any guarantee that all his claims arising from the unlawful expropriation would be satisfied. As a result, the burden of ensuring that the legal effects of the expropriation decision were eradicated in practice had fallen entirely on the applicant.\n\n80.  The Court notes that insofar as the applicant complains about the fact that he did not receive compensation from the State Treasury for the period during which the Stateowned company had been using his property, he failed to appeal against the judgment of the Warsaw-Sródmieście District Court of 28 February 2005 (see paragraphs 38-42 above). It has not been argued or shown that under the applicable domestic law an appeal would not have offered reasonable prospects of success. However, in the circumstances of the applicant’s case the Court considers that it does not have to decide on this issue at this stage for the following reasons.\n\nThe essence of the applicant’s grievance is the failure of the domestic legal system to secure his enjoyment of his rights which were ultimately vindicated by the ’s judgment of 12 January 2001. Whether that contention is borne out by the facts is a question to be resolved on the merits, taking into account the means of redress available to the applicant, the scope of the State’s obligations in this context and the response given at the domestic level to the applicant’s use of remedies. These matters are more appropriately addressed in an overall analysis. Accordingly, and as with the Government’s challenge to the applicant’s victim status, the issues raised by their non-exhaustion arguments should be joined to the merits of the case.\n\n81.  In conclusion, the Court notes that this complaint is not manifestly illfounded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\n81.  In conclusion, the Court notes that this complaint is not manifestly illfounded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n1.\tThe parties’ submissions\n\n82.  The Government submitted that the relevant administrative decisions and the judgment of the  in the applicant’s case did not impose any obligations on the public authorities, such as an obligation to physically deliver the property to the owners. The only, albeit essential, result of the administrative decision adopted by the Minister for Internal Affairs on 17 April 2000, which was later upheld by the , had been to declare that the expropriation decision was null and void. This decision had had a declaratory character. It had not imposed on the State any obligations to take any practical steps in respect of the property concerned. Nor had it lent itself to any active enforcement measures to be taken under the provisions governing administrative enforcement procedure (“the 1966 Act”). This Act applied only to measures aiming to ensure implementation of public-law obligations by way of concrete steps to be pursued by the administrative authorities.\n\n83.  The Government further submitted that on no occasion had the public authorities refused to comply with the judgment of 12 January 2001. Following this judgment, the administrative decision declaring the expropriation null and void had become final and had produced immediate effects on the civil rights and obligations of the persons concerned. In particular, the applicant and other legal successors had regained the unchallenged ownership of the property. By the same token, the State Treasury and the defendant company had lost their ownership. Since then the applicant’s legal title to the property had been recognised by all domestic authorities. The courts, in their civil judgments concerning various cases brought by the applicant after 12 January 2001 in connection with the property, had accepted his ownership as a given.\n\n83.  The Government further submitted that on no occasion had the public authorities refused to comply with the judgment of 12 January 2001. Following this judgment, the administrative decision declaring the expropriation null and void had become final and had produced immediate effects on the civil rights and obligations of the persons concerned. In particular, the applicant and other legal successors had regained the unchallenged ownership of the property. By the same token, the State Treasury and the defendant company had lost their ownership. Since then the applicant’s legal title to the property had been recognised by all domestic authorities. The courts, in their civil judgments concerning various cases brought by the applicant after 12 January 2001 in connection with the property, had accepted his ownership as a given.\n\n84.  On the strength of this judgment all third parties had been obliged to respect his ownership and not interfere with it. The rights and obligations stemming from the applicant’s ownership had clearly been of a civil character and the civil courts had had jurisdiction to resolve any disputes arising in connection with their exercise. No legal provision had reserved the competence to deal with such disputes to the administrative authorities.\n\n85.  The State Treasury, which under the 1966 decision had been regarded as the owner until 2001, had not been a party to the civil-law disputes between the applicant and Izolacja company. From August 1999 at the latest Izolacja, a public company, had been a legal entity separate from the State Treasury and the latter had not been liable in respect of any obligations contracted by the former. The State Treasury had not had in this connection any legal means at its disposal to influence the outcome of the civil proceedings between the applicant and the company. The State Treasury had possessed shares in the company, but as it was a minority shareholder, even its indirect influence on the company’s organs, through the normal voting mechanisms applicable to public companies, had not offered any certainty of success.\n\n86.  The applicant stressed that as a result of the judgment of January 2001 the expropriation decision had ultimately become null and void. However, no administrative procedure had been available for ensuring compliance with that judgment. The judgment should have automatically restored physical possession of the factory to the applicant. Notwithstanding, it had fallen entirely to the applicant to pursue legal remedies capable of improving his situation and to ensure that possession of the factory was indeed restored to him. This had made it necessary for him to bear considerable legal costs, if only in court fees. Such an obligation had imposed on the applicant a considerable burden from which he should have been released by the active efforts of the public authorities, not by his own efforts.\n\n87.  The applicant further stressed that in 1992 the authorities had issued a decision to transfer the ownership from the State Treasury to the company, even though they had been aware that the administrative proceedings in which he had sought to have the legal title to the property restored to him were already pending. This was contrary to the principle that in administrative proceedings the State should act in such a way as to strengthen the citizen’s confidence in the fairness of such proceedings.\n\n2.\tThe Court’s assessment\n\na. \tGeneral principles\n\n88.  The Court first reiterates that Article 1 of Protocol No. 1 contains three distinct rules. They have been described thus (in James and Others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98, pp. 2930, § 37; see also,  31524/96, § 51, ECHR 2000-VI):\n\n“The first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions; the third rule, stated in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest ... The three rules are not, however, ‘distinct’ in the sense of being unconnected. The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule.”\n\nb. Whether there was a possession\n\n89.  The Court points out that the concept of “possessions” in Article 1 of Protocol No. 1 has an autonomous meaning (see Beyeler v. Italy [GC], no. 33202/96, § 100, ECHR 2000-I). Consequently, the issue that needs to be examined first is whether the circumstances of the case, considered as a whole, conferred on the applicant a substantive interest protected by Article 1 of Protocol No. 1.\n\n90.  In this connection, the Court notes that the applicant’s complaint is focused on the inability to enjoy what he perceives as his rights protected by Article 1 of Protocol No. 1. This inability has resulted from the fact that after the judgment of the  given on 12 January 2001, he had to take further proceedings in order to be able to effectively enjoy his rights originating in this judgment (see paragraph 86 above).\n\nThe Court notes that the  declared the expropriation decision null and void. Under the provisions of the Polish law such a decision gives rise, on the part of former owners or their legal successors, to a right to have the property restored to him or her, or, failing that, to a right to compensation. Hence, the decision to set aside the final expropriation decision had consequences for the applicant which should be regarded as conferring on him a proprietary interest falling within the ambit of possessions within the meaning of Article 1 of Protocol No. 1 to the Convention.\n\nc. Compliance with the requirements of Article 1 of Protocol No. 1 to the Convention\n\n91.  The Court reiterates that by virtue of Article 1 of the Convention, each Contracting Party “shall secure to everyone within [its] jurisdiction the rights and freedoms defined in ... [the] Convention”. The obligation to secure the effective exercise of the rights defined in that instrument may result in positive obligations for the State (see, among other authorities, X and Y v. Netherlands, judgment of 26 March 1985, Series A no. 91, p. 11, §§ 22-23). In such circumstances, the State cannot simply remain passive and “there is ... no room to distinguish between acts and omissions” (see, mutatis mutandis, Airey v. Ireland, judgment of 9 October 1979, Series A no. 32, p. 14, § 25).\n\n92.  As regards the right guaranteed by Article 1 of Protocol No. 1, such positive obligations may entail certain measures necessary to protect the right to property (see, among other authorities and mutatis mutandis, López Ostra v. Spain, judgment of 9 December 1994, Series A no. 303-C, p. 55, § 55), even in cases involving litigation between private individuals or companies (see Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 83, ECHR 2007... and Sovtransavto Holding v. , no. 48553/99, § 96, ECHR 2002-VII).\n\n93. The Court observes that the applicant’s complaint does not relate to a simple failure on the part of the State to conduct enforcement proceedings in respect of a final judicial decision given against it in the applicant’s favour (in respect of which obligation, see Prodan v. Moldova, no. 49806/99, ECHR 2004III (extracts) and Lupacescu and Others v. Moldova, nos. 3417/02, 5994/02, 28365/02, 5742/03, 8693/03, 31976/03, 13681/03, and 32759/03, 21 March 2006). Rather, it is tantamount to saying that it was left to him to take such measures as would have made it possible for him to fully enjoy the economic advantages arising out of his rights originating in the judgment of the  given in 2001.\n\nThe Court notes that the property in question, a factory, was not held by any public authority either when the judgment of the Supreme Administrative Court was given in 2001, or at any later time (contrast Zwierzyński v. Poland, cited above, § 67, ECHR 2001VI). It was held by the Izolacja company, the legal successor of the former Stateowned enterprise which had previously owned and run the factory. Even if the State retained a minority of the shares in the company, it nevertheless enjoyed, as pointed out by the Government (see paragraph 85 above), complete operational and financial autonomy and was governed by the provisions of the Commercial Code (see paragraphs 16 and 28 above).\n\n94.  The Court observes that the status of the company has a bearing on the nature of the State’s obligations under Article 1 of Protocol No. 1. In particular, having regard to the institutional and operational independence of the Izolacja company from the State, the latter must be taken to be absolved from responsibility under the Convention for that company’s acts and omissions. For the Court, the State’s obligation in the circumstances of this case is confined to ensuring an effective enforcement of the decision declaring the expropriation null and void, by having in place a legal framework making it possible for the applicant to recover possession of his property and to settle claims arising between him and the private-law entity, the Izolacja company, which was in possession of the property at the time of the impugned decision (see, mutatis mutandis, Sovtransavto Holding v. Ukraine, cited above, § 96).\n\n95.  In this context, the Court acknowledges that difficult legal issues may arise in connection with legal proceedings pursued in order to remedy infringements of the right to the peaceful enjoyment of possessions committed in the past by the communist authorities (Jahn and Others v. Germany [GC], nos. 46720/99, 72203/01 and 72552/01, ECHR 2005VI, mutatis mutandis).\n\n96.  It observes that in the situation concerned in the present case, after a Stateowned enterprise had been running the factory for a long period of time and incurring expenditure to maintain it, a complex legal situation involving reciprocal claims arose between the applicant as the former owner and the Izolacja company which is the legal successor of this enterprise. The Court notes that under domestic law, it was open to the applicant to have recourse to various types of proceedings in order to have the 2001 judgment implemented in practice and, in particular, to have these complex claims and counterclaims determined by the courts. The applicant had recourse to them, firstly by instituting several sets of proceedings in which he sought damages from the enterprise for the use of the property after the expropriation decision had been declared null and void in 2001. The courts ruled in his favour in two of these sets of proceedings and awarded damages to him. The Court further notes that the applicant also successfully instituted proceedings in which he sought to have possession of the factory returned to him. Furthermore, it was open to him to claim damages for the period during which the State Treasury had been using his property. The first-instance court dismissed his claim. It was open to the applicant to lodge an appeal, but he failed to do so (see paragraphs 38- 42 above).\n\nIt is further to be observed that there was no impediment under domestic law to the negotiation of private contractual arrangements between the applicant and the Izolacja company regarding the lease of the property to the latter. In fact such a contract was successfully concluded between the parties (see paragraph 30 above).\n\n97.  Hence, the domestic law provided an effective framework of a judicial character by which the applicant could seek to have the economic value of his rights arising out of the ’s judgment of 12 January 2001 recognised in practice.\n\n98.  Having regard to the circumstances of the case seen as a whole, the Court is of the view that the State has not failed to comply with its obligation to secure to the applicant the effective enjoyment of his rights guaranteed by Article 1 of Protocol No. 1 to the Convention. On that account, the Court finds that it unnecessary to rule on the Government’s preliminary objections relating to victim status and nonexhaustion of domestic remedies (see paragraph 80 above, in fine)\n\nTherefore, there has been no violation of Article 1 of that provision.\n\nIV.  OTHER ALLEGED VIOLATIONS OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION\n\n99.  The applicant complained that the length of the proceedings in which he had sought to have the expropriation decision declared null and void amounted to a breach of Article 1 of Protocol No. 1.\n\n100.  The applicant complained that he could not seek compensation for the damage he had suffered as a result of the protracted length of the restitution proceedings.\n\n101.  The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.\n\n102.  The Court considers that this complaint under Article 1 of Protocol No. 1 complaint does not give rise to any issue separate from the one which has already been examined under Article 6 of the Convention (see, for example, Zanghì v. Italy, judgment of 19 February 1991, Series A no. 194C, § 23, and Di Pede v. Italy, judgment of 26 September 1996, Reports of Judgments and Decisions 1996IV, p. 17, § 35).\n\nV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n103.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n104.  The applicant claimed 50,000 Polish zlotys (PLN) in respect of the pecuniary and nonpecuniary damage resulting from the breach of Article 6 § 1 of the Convention. He further claimed PLN 271,800 for pecuniary damage and PLN 40,000 for nonpecuniary damage in connection with the breach of Article 1 of Protocol No. 1 to the Convention.\n\n105.  The Government contested the claim for pecuniary damage as being exorbitant.\n\n106.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore dismisses this claim. On the other hand, it awards the applicant 3,500 euros (EUR) in respect of the nonpecuniary damage sustained in connection with the violation of the right to a hearing within a reasonable time.\n\nB.  Costs and expenses\n\n107.  The applicant also claimed EUR 3,400, referring to relevant invoices he submitted, for the costs and expenses incurred before the Court.\n\n108.  The Government did not express an opinion on the matter.\n\n109.  According to the Court’s caselaw, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court awards the applicant’s claim in full.\n\nC.  Default interest\n\n110.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.\tJoins to the merits the Government’s preliminary objections concerning non-exhaustion of domestic remedies and the applicant’s victim status in respect of the complaint under Article 1 of Protocol No. 1 to the Convention and dismisses the remaining objection;\n\n2.  Declares the complaints concerning the excessive length of administrative proceedings and the alleged failure to secure the applicant’s right to the peaceful enjoyment of his possessions as confirmed by the judgment of the Supreme Administrative Court of 12 January 2001 admissible, and the remainder of the application inadmissible;\n\n3.  Holds that there has been a violation of Article 6 § 1 of the Convention;\n\n4.  Holds that there has been no violation of Article 1 of Protocol No. 1 of the Convention and finds that it is not necessary to rule on the Government’s above-mentioned preliminary objections;\n\n5.\tHolds that there is no need to examine separately the complaint concerning the length of the proceedings under Article 1 of Protocol No. 1 to the Convention;\n\n6.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 3,500 (three thousand five hundred euros) in respect of non-pecuniary damage and EUR 3,400 (three thousand four hundred euros) in respect of costs and expenses, to be converted into Polish zlotys at the rate applicable at the date of settlement, plus any tax that may be chargeable;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n7.  Dismisses the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 22 April 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_607","text":"PROCEDURE\n\n1.  The case originated in an application (no. 34616/02) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Russian nationals, Ms Lyudmila Vitalyevna Bezrukova (“the first applicant”) and Ms Irina Sergeyevna Bezrukova (“the second applicant”), on 9 September 2002. The first and second applicants are together referred to as “the applicants”.\n\n2.  The applicant was represented by Mr V. Shakhlarov, a lawyer practising in . The Russian Government (“the Government”) were represented by Mr P. Laptev and Mr G. Matyushkin, the successive Representatives of the  at the European Court of Human Rights.\n\n3.  The applicants alleged, in particular, that the final and enforceable domestic judgment in their favour had not been enforced in a timely manner and that the time-limit for appealing against that judgment had been extended, thus allowing its subsequent quashing.\n\n4.  On 15 September 2005 the application was communicated to the Government. It was also decided to consider the admissibility and merits of the case together.\n\n5.  On 24 November 2009, in view of the developments in the case, the Government was invited to submit additional observations pursuant to Rule 54 § 2 (c) of the Rules of Court. The applicants submitted their observations in reply.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n6.  The first applicant was born in 1950. The second applicant is the first applicant’s daughter, born in 1976. They live in .\n\nA.  The applicants’ lawsuit against the SBS-AGRO Bank\n\n7.   In July and August 1998 the applicants made various monetary deposits with the  branch of the SBS-Agro Bank (“СБС-Агро”). In September 1998, during a financial crisis in  and rapid currency devaluation, they requested the bank to refund the capital with interest, but the bank refused. On 4 August 1999 the Zheleznodorozhniy District Court of Voronezh (“the District Court”) allowed the applicants’ claim against the bank. The first and second applicant were awarded 24,490 and 32,931  dollars (USD) respectively.\n\n8.  The bailiffs started enforcement proceedings on 22 August 2000. Meanwhile, the bank became insolvent. On 10 July 2001 the enforcement proceedings were discontinued. The judgment of 4 August 1999 remained unenforced.\n\nB.  The applicants’ lawsuit against the ARKO and the Central Bank\n\n9.  On 16 August and 15 September 1999 the Central Bank of  (“the Central Bank”) declared a moratorium until 17 November 1999 on the execution of all creditors’ demands against the SBS-Agro Bank (“the bank”). The moratorium was later prolonged. On 16 November 1999 the management of the bank was taken over temporarily by the “Agency on Restructuring of Lending Agencies” (“ARKO”), set up by the State in accordance with the Law on Restructuring of Lending Agencies.\n\n10.  On 9 November 2001 the applicants sued the Central Bank and the ARKO for damages on the ground that the bank remained under the ARKO’s effective control since 16 November 1999. The District Court held a hearing in the applicants’ case on 5 December 2001. The ARKO filed written observations but was not represented at the hearing. The Central Bank did not file observations, nor was it represented at the hearing. In its judgment delivered on the same date the District Court noted that the bank was being managed by the ARKO at the material time and found the latter responsible for the bank’s obligations, including its debt owed to the applicants. It held that the ARKO was to pay the first and second applicants USD 24,490 and USD 32,931 respectively.\n\n11.  The  (“the ”) allowed the ARKO’s appeal on 12 March 2002 and set aside the District Court’s judgment of 5 December 2001.\n\n12.  Following another remittal, on 20 December 2004 the District Court again found for the applicants, in terms similar to those of its judgment of 5 December 2001. The applicants were awarded the same amounts, payable by the ARKO. The judgment also held that the ARKO had to pay an amount of USD 20,841.68 to another plaintiff, Mr Kravchenko. The judgment specified that it was subject to appeal before the  within ten days.\n\n13.  The ARKO lodged an appeal against the judgment of 20 December 2004. The Central Bank joined the appellate proceedings. On 25 February 2005 the ARKO was closed.\n\n14.  On 19 July 2005 the  heard the ARKO’s appeal against the District Court’s judgment of 20 December 2004. The representative of the Central Bank took part in the hearing as a codefendant. The  observed that the ARKO had been closed and discontinued the appellate proceedings. The District Court’s judgment of 20 December 2004 in the applicants’ favour accordingly became binding and enforceable.\n\n15.  On 2 August 2005 the District Court issued a writ of execution in respect of its judgment of 20 December 2004, which had acquired legal force on 19 July 2005.\n\n16.  On 6 December 2005 the Central Bank lodged an appeal with the  against the judgment of 20 December 2004. They also requested that the ten-day time-limit for appeal be extended on the ground that they had been deprived of the opportunity to have the lawfulness of the judgment of 20 December 2004 reviewed by the .\n\n17.  On 2 March 2006 the  extended the time-limit for appeal as requested by the Central Bank. It noted that the Central Bank “had joined” the ARKO’s appeal against the judgment of 20 December 2004 which had been dismissed without being considered on its merits. The  concluded that the Central Bank had been deprived of its statutory right to appeal against the judgment of 20 December 2004.\n\n18.  On 9 March 2006 the  considered the Central Bank’s appeal against the District Court’s judgment of 20 December 2004. It heard the same representative of the Central Bank who took part in the hearing held by the same court on 19 July 2005 to consider the ARKO’s appeal which was then joined by the Central Bank. The court observed that both the ARKO and the Central Bank were co-defendants in the case and that the ARKO had been closed. The  concluded that its earlier decision of 19 July 2005 was based on an incorrect application of the relevant legal provisions, set aside the judgment of 20 December 2004 in the applicants’ favour and discontinued the proceedings.\n\nC.  The Court’s judgment in the case of Kravchenko and subsequent developments\n\n19.  On 2 April 2009 the European Court of Human Rights delivered a judgment in respect of Mr Kravchenko (Kravchenko v. Russia, no. 34615/02, 2 April 2009), who was at a certain stage the applicants’ coplaintiff in the domestic proceedings (see paragraph 12 above). In February 2002 he had obtained a separate judgment awarding him an amount of 30,919.40 Russian roubles (RUB), payable by the ARKO (see Kravchenko, cited above, §§ 44-49). The Court found a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 in that the  had quashed in May 2002 the binding and enforceable judgment in Mr Kravchenko’s favour by way of supervisory review.\n\n20.  Following the Court’s judgment of 2 April 2009, the applicants lodged an application for review of the ’s judgment of 9 March 2006, relying on Articles 392-394 of the Code of Civil Procedure. On 15 June 2011 the Presidium of the  dismissed their application.\n\nII.  RELEVANT DOMESTIC LAW\n\n21.  Under the Russian Code of Civil Procedure (“the CCP”), a competent court may extend an expired time-limit for procedural actions, such as lodging an appeal, if the court finds that a party has a valid excuse for failure to comply with that time-limit (Article 112).\n\n22.  An appellate court shall set aside the judgments and discontinue the proceedings if a legal entity which is a party to the proceedings has been liquidated (Article 365 in conjunction with Article 220 of the CCP).\n\n23.  A final judgement in a case may be reviewed, inter alia, on the ground that the European Court of Human Rights found a violation of the Convention on account of the domestic judicial proceedings or decisions taken in that case (Article 392 of the CCP). Articles 393-394 set out a procedure for reopening of domestic judicial proceedings in any such case.\n\n24.  The ARKO was a State corporation (Article 28 of the Law No. 144FZ of 8 July 1999 on Restructuring of Lending Agencies), that is, a non-commercial organisation established by the Russian State in order to exercise certain social, administrative or other socially beneficial functions (Article 7.1 of the Law No. 7-FZ of 12 January 1996 on NonCommercial Organisations, as amended by the Law No. 144-FZ of 8 July 1999).\n\nTHE LAW\n\nI.   ALLEGED VIOLATION OF THE CONVENTION ON ACCOUNT OF THE NON-ENFORCEMENT AND QUASHING OF THE JUDGMENT OF 20 DECEMBER 2004\n\n25.  The applicants complained under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 of the unjustified extension of the timelimit for appeal which led to the quashing of the binding and enforceable judgment of 20 December 2004 in their favour. They also complained under the same provisions of the authorities’ failure to enforce that judgment in a timely manner. The respective provisions, in so far as relevant, read as follows:\n\n“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...\n\nEvery natural or legal person is entitled to the peaceful enjoyment of his possessions”\n\nA.  The parties’ submissions\n\n26.  The Government contended that the relevant procedure had fully complied with the requirements of both Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. They emphasised that the Central Bank had duly joined the appeal initially lodged by the ARKO. The closing of the ARKO, in the Government’s submission, should have, under the applicable procedural rules, led to the setting aside of the District Court’s judgment and the discontinuation of the proceedings as a whole and not simply the discontinuation of the appellate proceedings effectively leading to the District Court’s judgment against a now non-existent ARKO acquiring binding force.\n\n27.  In their additional observations, the Government extensively relied on the Court’s decision in the Shestakov case (Shestakov v. Russia (dec.), no. 48757/99, 18 June 2002), arguing that the applicants’ situation as creditors of the SBS-Agro Bank was very similar and their complaints should likewise be declared ill-founded. They insisted inter alia that the State was unable to pay the SBS-Agro bank’s debts to its creditors in the context of the acute financial crisis starting from August 1998. The Government concluded that the District Court’s judgment of 20 December 2004 in the applicants’ favour had been flawed and rightly quashed on appeal. The applicants’ complaints under the Convention should, therefore, be rejected as should have been those brought by other applicants in two previous cases (Kravchenko, cited above, and Margushin v. Russia, no. 11989/03, 1 April 2010). They emphasised, finally, that the domestic judgment at issue in the present case was quashed by way of ordinary appeal and not through supervisory review as in Kravchenko and Margushin.\n\n28.  The applicants disagreed with the Government’s interpretation of the Court’s decision in Shestakov. They argued that the situation of the latter applicant was quite different and so was the domestic judgment delivered in his favour. They insisted that the Court’s position in Kravchenko should be followed in the present case and regretted that the  had failed to grant their application for review following the Kravchenko judgment.\n\nB.  The Court’s assessment\n\n1.  Admissibility\n\n29.  The Court considers that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible.\n\n2.  Merits\n\n30.  At the outset, the Court will distinguish the Convention issue at stake in the present case from that raised in the Shestakov case relied upon by the Government. While the original facts relating to the SBS-Agro Bank’s failure to pay back the applicants’ deposits during the financial crisis of 1998 were similar, the issue brought by the applicants before the Court in the present case is different. In Shestakov the central issue was the State’s failure to discharge its positive obligations to assist in enforcement of a domestic judgment in the applicant’s favour against a private debtor. In the present case the applicants complained of a breach of the legal certainty requirement on account of the quashing of the final judgment in their favour a long time after the expiry of the statutory time-limit for appeal.\n\n31.  The Court reiterates that the principles insisting that a final judicial decision must not be called into question and should be enforced represent two aspects of the same general concept, namely the right to a court (see Kondrashov and Others v. Russia, nos. 2068/03 et al., § 27, 8 January 2009). This does not mean, however, that those respective issues are identical or necessarily overlapping. Indeed, the Court’s finding that the State has done what it could and should to assist in enforcement of a final judgment in favour of one creditor as in Shestakov (cited above), did not lead it to conclude that the quashing of another final judgment in favour of another creditor by way of supervisory review complied with the legal certainty requirement (see Kravchenko, cited above). The Court observes that the issue raised by the present case is similar to the latter as the applicants’ reliance on a final judgment was allegedly frustrated by its quashing, which they found to be abusive. This issue must be considered by the Court on its merits and cannot be discarded on account of the findings made in the context of the enforcement proceedings in the Shestakov case.\n\n32.  The right to a fair hearing before a tribunal as guaranteed by Article 6 § 1 of the Convention must be interpreted in the light of the Preamble to the Convention, which declares, among other things, the rule of law to be part of the common heritage of the Contracting States. One of the fundamental aspects of the rule of law is the principle of legal certainty, which requires, inter alia, that where the courts have finally determined an issue, their ruling should not be called into question (see Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999VII). A departure from that principle is justified only when made necessary by circumstances of a substantial and compelling character, such as correction of fundamental defects or miscarriage of justice (see, among numerous authorities, Ryabykh v. Russia, no. 52854/99, § 52, ECHR 2003-IX, and Margushin, cited above, § 31).\n\n33.  In previous cases against  the Court has upheld the principle of legal certainty in so far as legal procedures of supervisory review (see Ryabykh, cited above) and reconsideration owing to newly discovered circumstances (see Pravednaya v. Russia, no. 69529/01, 18 November 2004) were concerned. Furthermore, the Court has considered it appropriate to follow the same logic when this fundamental principle was undermined through other procedural mechanisms, such as the extension of the time-limit for an appeal. Thus, the Court found a violation of Article 6 in a case against Ukraine as the time-limit for an appeal was extended after a considerable lapse of time without any need for correction of serious judicial errors, but merely for the purpose of a rehearing and a fresh decision of the case (see Ponomaryov v. Ukraine, no. 3236/03, §§ 4142, 3 April 2008).\n\n34.  The Court has no doubt that it is reasonable to provide for a possibility of extending procedural time-limits, including the time-limits for lodging an appeal, and notes that the legal systems of the States parties contain special provisions to that effect. While the extension of the timelimit for an appeal remains primarily within the domestic courts’ discretion, they should, in the Court’s view, verify whether the reasons for any such extension justify the interference with the principle of res judicata, especially when the domestic legislation does not limit the courts’ discretion either on the length or the grounds for the renewal of the time-limits (ibid., § 41).\n\n35.  The Court notes that Russian law does not contain any prohibitive limit in this respect (see paragraph 18 above). In these circumstances, an allegation of abusive extension of the time-limit for an appeal against a final judgment calls for close supervision by the Court. Its task is thus to assess the particular circumstances of the case at hand and the manner in which the pertinent domestic regulations were actually applied (see Ashingdane v. the United Kingdom, 28 May 1985, § 57, Series A no. 93).\n\n36.  Furthermore, the Court considers that, as in the case of quashing by way of supervisory review, a successful litigant’s legitimate reliance on res judicata may be frustrated in a very similar manner by waiving the timelimits for appeal (see, mutatis mutandis, Kulkov and Others v. Russia, nos. 25114/03 et al., § 27, 8 January 2009). Such departures from the principle of legal certainty are justified only when made necessary by circumstances of a substantial and compelling character (see Salov v. Ukraine, no. 65518/01, § 93, ECHR 2005-VIII; Protsenko v. Russia, no. 13151/04, § 26, 31 July 2008; and Kravchenko v. Russia, cited above, § 45). In particular, legal certainty can be set aside not for the sake of legal purism but in order to rectify “an error of fundamental importance to the judicial system” (Sutyazhnik v. Russia, no. 8269/02, § 38, 23 July 2009).\n\n37.  Turning to the circumstances of the present case, the Court observes at the outset that the District Court’s judgment of 20 December 2004 in the applicants’ favour became final on 19 July 2005 following the ’s decision to discontinue the appeal proceedings (see paragraph 14 above). However, on 2 March 2006 the  granted the Central Bank’s application for extension of the statutory timelimit for appeal and on 9 March 2006 quashed the judgment (see paragraphs 17 and 18 above).\n\n38.  The Court observes that the Central Bank had previously “joined” the appeal lodged by the defendant ARKO against the District Court’s judgment of 20 December 2004 in the applicants’ favour and that the representative of the Central Bank had attended the appellate hearing of 19 July 2005. However, there is no indication that the Central Bank’s representative raised at that time any objection against the ’s decision to discontinue the appellate proceedings on the ground that the ARKO had been closed. It was only four months later that the Central Bank came back to the same court and challenged the final judgment of 20 December 2004. The Court finds no explanation for this behaviour, noting especially that the Central Bank was constantly involved in the proceedings as a co-defendant (see, mutatis mutandis, Margushin, cited above, § 34).\n\n39.  Moreover, the Court notes that the  granted the request for extension of the time-limit by reference to the Central Bank’s initial intention to “join” the appeal lodged by the ARKO and the ensuing failure to lodge its own appeal against the judgment within the statutory timelimit. The Government on their part argued that the ’s decision to discontinue the appeal proceedings should never have led to the upholding of the judgment of 20 December 2004 in the applicants’ favour as the respondent agency had been closed by the time of the appeal hearing (see paragraph 26 above). However, even assuming that the ’s judgment contained an error, the Court does not discern in the above explanations any circumstance of substantial and compelling character which would justify the ’s extension of the timelimit for appeal and the subsequent quashing of the final judgment in the applicants’ favour.\n\n40.  First, the Court does not find that the procedural reasons referred to by the  and by the Government were of a fundamental nature. It considers it unfair that possible procedural errors by the Central Bank or the  itself were corrected solely to the applicants’ detriment a long time after the judgment in their favour became final.\n\n41.  Second, the mere fact that the judicial award was payable by the ARKO which was later closed, does not necessarily relieve the State of its responsibility to enforce that judgment, given both the ARKO’s status as a State corporation (see paragraph 24 above) and the role of co-defendant played by the Central Bank in the proceedings at issue. The Court notes in this connection that the applicants consistently directed their action against both the ARKO and the Central Bank in view of the latter’s implication in the matters concerned and that the  consistently associated the Central Bank to the proceedings as a co-defendant. At the same time, the domestic courts have never clarified the Central Bank’s responsibility, either direct or subsidiary, in respect of the applicants’ grievances. This issue became crucial after the closing of the ARKO on 25 February 2005 but still remained unresolved by the .\n\n42.  In this context the Court considers that the applicants could reasonably rely on the final judgment in their favour and expect that the judgment debt would be honoured even after the closing of the ARKO. This attitude is also in line with the Court’s constant view that the closure of a respondent State organ does not, in principle, absolve the State of the obligation to pay its debts under a binding and enforceable judgment, especially taking into account that changing needs force the State to make frequent changes in its organisational structure, including by forming new organs and closing old ones (mutatis mutandis, Nikitina v. Russia, no. 47486/07, § 19, 15 July 2010). The Court cannot, therefore, accept the argument that the closure of the ARKO constituted in itself a circumstance justifying the departure from the principle of legal certainty in the applicants’ case.\n\n43.  Finally, as regards the Government’s argument concerning the objective obstacles to payment of the Bank’s debts in the context of a largescale financial crisis, the Court does not put it into question that a comprehensive solution for repayment of debts to the creditors was needed. However, this could not prevent the applicants from bringing their claims to domestic courts and it was open to the authorities including the Central Bank to defend their position in court proceedings before the judgment became final and enforceable. As to the need to correct judicial errors and to ensure a uniform application of the domestic law, the Court considers that these must not be achieved at any cost and notably with disregard for the applicants’ legitimate reliance on res judicata. The authorities must strike a fair balance between the interests of the applicants and the need to ensure the proper administration of justice (see Nikitin v. , no. 50178/99, § 59, ECHR 2004VIII, and Kulkov and Others, cited above, § 27).\n\n44.  In view of the foregoing, the Court concludes that by extending the time-limit for the Central Bank’s appeal against the District Court’s judgment of 20 December 2004 the Regional Court infringed the principle of legal certainty and the applicants’ right to court under Article 6 § 1 of the Convention.\n\n45.  Turning to Article 1 of Protocol No. 1, the Court reiterates that a judgment debt may be regarded as a “possession” for the purposes of that provision and that setting such a judgment aside in violation of Article 6 may also constitute an interference with the judgment beneficiary’s right to the peaceful enjoyment of his possession (see Ryabykh, cited above, § 61). As the Court has already found that the applicants were arbitrarily deprived of their right to court (see paragraph 44 above), it follows that there has also been a violation of Article 1 of Protocol No. 1 in that respect (see Margushin, cited above, § 40).\n\n46.  To sum up, the Court concludes that the extension of the time-limit for an appeal against the final judgment in the applicants’ favour and the subsequent quashing of that judgment by the  violated Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.\n\n47.  Having regard to that finding, the Court does not find it necessary to examine separately the issue of non-enforcement of the judgment of 20 December 2004 by the authorities (see Boris Vasilyev v. Russia, no. 30671/03, §§ 41-42, 15 February 2007; Sobelin and Others v. Russia, nos. 30672/03 et al., §§ 67-68, 3 May 2007; Kulkov and Others, cited above, § 35; and Kazakevich and 9 other “Army Pensioners” cases v. Russia, nos. 14290/03 et al., § 32, 14 January 2010).\n\nII.  ALLEGED VIOLATION OF THE CONVENTION ON ACCOUNT OF THE NON-ENFORCEMENT OF THE JUDGMENT OF 4 AUGUST 1999\n\n48.  The applicants complained under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 that there had been no full and timely enforcement of the District Court’s judgment of 4 August 1999.\n\n49.  The Court observes that the judgment in issue was rendered in the applicants’ favour against a commercial bank which was declared insolvent and that the enforcement proceedings were discontinued on 10 July 2001. The application was lodged with the Court on 9 September 2002, that is more than six months after those events. The complaint is therefore inadmissible pursuant to Article 35 § 4 of the Convention.\n\nIII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n50.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n51.  The applicants claimed repayment of the judgment debts they had legitimately expected to receive before the judgment in their favour was quashed, i.e. the amounts of 24,490  dollars (USD) and USD 32,931 respectively. They further claimed 583,548.24 Russian roubles (RUB) and RUB 784,680.56 respectively representing interest on the judgment debts (lucrum cessans) for the period from 5 December 2001 to 29 July 2011. They also claimed 5,000 euros (EUR) each for nonpecuniary damage.\n\n52.  The Government submitted that the applicants’ claims were excessive and ill-founded. They contested the method of calculation of interest on the judgment debts, including the rate applied by the applicants and the period of time for which interest was due. As regards non-pecuniary damage, the Government argued that in any event the Court should not grant more than EUR 2,000, an amount awarded in the Kravchenko case.\n\n53.  The Court notes that in the present case it has found a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in that the final judgment in the applicants’ favour had been quashed in breach of the legal certainty requirement and that the applicants had not been able to receive the judicial awards as a result of the quashing of that judgment. The most appropriate form of redress in respect of a violation of Article 6 is to ensure that the applicant is put, as far as possible, in the position he would have been had the requirements of Article 6 not been disregarded (see Piersack v. Belgium (Article 50), judgment of 26 October 1984, Series A no. 85, p. 16, § 12, and, mutatis mutandis, Gençel v. Turkey, no. 53431/99, § 27, 23 October 2003). The Court finds that in the present case this principle applies as well, having regard to the nature of the violations found (see Kravchenko, cited above, § 56). The Court therefore considers it appropriate to award the applicants the amounts which they would have received, had the final judgment of 20 December 2004 not been quashed, i.e. USD 24,490 and USD 32,931 respectively.\n\n54.  As to the claim concerning interest on the judgment debts, the Court, like the Government, has doubts as to the method of calculation used by the applicants. They did not provide sufficient factual elements to substantiate their approach. The Court further notes that the depreciation of the judgment debt over the relevant period was limited since the awards were made in the  currency which was not affected by inflation at the same rate as the Russian national currency. In these circumstances the Court dismisses the applicants’ claim for interest.\n\n55.  The Court further considers that the applicants must have suffered distress and frustration resulting from the quashing of the final judgment in breach of the legal certainty requirement. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards EUR 2,000 to each applicant in respect of non-pecuniary damage, plus any tax that may be chargeable on those amounts.\n\nB.  Costs and expenses\n\n56.  The applicants claimed RUB 35,000 for legal costs and attached the lawyer’s bill in support of their claims. The Government did not dispute the amount paid to the lawyer and considered that it could be granted, should the Court find a violation of the Convention. The Court therefore awards the applicants EUR 880 for costs and expenses.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Declares the complaints concerning the quashing of the judgment of 20 December 2004 in the applicants’ favour after the extension of the time-limit for appeal and the nonenforcement of that judgment admissible and the remainder of the application inadmissible;\n\n2.  Holds that there has been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 on account of the quashing of the judgment in the applicants’ favour;\n\n3.  Holds that it is not necessary to examine separately the issue of nonenforcement of that judgment;\n\n4.  Holds that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention:\n\n(a)  the awards made by the domestic court in the applicants’ favour, that is USD 24,490 (twenty-four thousand four hundred and ninety United States dollars) to the first applicant and USD 32,931 (thirty-two thousand nine hundred and thirty-one  dollars) to the second applicant in respect of pecuniary damage;\n\n(b)  EUR 2,000 (two thousand euros) to each applicant in respect of nonpecuniary damage, to be converted into Russian roubles at the rate applicable at the date of the settlement, plus any tax that may be chargeable to the applicants on that amount;\n\n(c)  EUR 880 (eight hundred and eighty euros) jointly to both applicants in respect of costs and expenses, to be converted into Russian roubles at the rate applicable at the date of the settlement, plus any tax that may be chargeable on that amount;\n\n(d)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n5.  Dismisses the remainder of the applicants’ claim for just satisfaction.\n\nDone in English, and notified in writing on 10 May 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_546","text":"PROCEDURE\n\n1.  The case originated in an application (no. 39534/07) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an association registered in Austria, the Österreichische Vereinigung zur Erhaltung, Stärkung und Schaffung eines wirtschaftlich gesunden land- und forstwirtschaftlichen Grundbesitzes (“the applicant association”), on 24 August 2007.\n\n2.  The applicant association was represented by Mr R. Mutenthaler, a lawyer practising in Ybbs. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs.\n\n3.  The applicant association alleged that the refusal of the Tyrol Real Property Transactions Commission to grant it access to all its decisions issued since January 2000 amounted to a violation of its right to receive information.\n\n4.  On 10 March 2010 the application was communicated to the Government.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n5.  The applicant is a registered association which has its seat in Vienna. Its aim is to research and study past and present transfers of ownership of agricultural and forest land in order to reach conclusions as to the impact of such transfers on society. The applicant association also gives opinions on draft laws falling within its field of interest.\n\n6.  In essence, agricultural and forest land transactions require approval by local and regional authorities. The latter are called Regional Real Property Transactions Commissions (Landes-Grundverkehrs-kommissionen). The aim of this requirement, laid down in the Real Property Transactions Acts of the Länder, is to preserve land for agricultural use and forestry and, in some of the regions including Tyrol, to avoid the proliferation of second homes. The applicant association states that it is sent all decisions issued by the Regional Real Property Transactions Commissions with the exception of the one for Tyrol. In the decisions it receives, the names of parties and other sensitive data are usually anonymised.\n\n7.  On 26 April 2005 the association asked the Tyrol Real Property Transactions Commission (“the Commission”) to provide, by mail, all decisions issued since 1 January 2005 in anonymised form, the costs thereof to be reimbursed. By letter of 12 July 2005 the Commission replied that it could not comply with the request owing to lack of time and personnel.\n\n8.  On 18 July 2005 the applicant association submitted a further request, this time requesting the provision, by mail, of all decisions issued since 1 January 2000 in anonymised form. In the event of refusal of the application, it demanded a formal decision in accordance with the Tyrol Access to Information Act (Tiroler Auskunftspflichtgesetz - “the Information Act”). The applicant association argued that since the Commission’s decisions concerned “civil rights” within the meaning of Article 6 of the Convention, the decisions should be either publicly announced or made public by other appropriate means.\n\n9.  In its decision of 10 October 2005 the Commission rejected the request, holding that the transmission of anonymised copies of its decisions did not constitute information within the meaning of section 1(2) of the Information Act, which defines information as “existing knowledge on matters known to the authority at the time it provides the information”. Moreover, even if the request were to fall within the scope of that provision, the Information Act stated that pursuant to section 3(1) subparagraph (c) there was no duty to provide the information if doing so would require so many resources that the functioning of the authority would be affected. The decision stated that complaints could be lodged with the Constitutional Court (Verfassungsgerichtshof) and the Administrative Court (Verwaltungsgerichtshof).\n\n10.  The applicant association complained to both the Constitutional Court and the Administrative Court. It relied on Article 10 of the Convention.\n\n11.  In its submissions in reply to the applicant association’s complaint to the Constitutional Court and the Administrative Court, the Commission maintained that its decisions did not constitute information within the meaning of the Information Act. It argued that a decision contained the facts of the case and the legal conclusions the authority had drawn from them. Legal arguments could be discussed and decisions could be challenged and set aside if the legal conclusions were found to be wrong. Therefore, giving someone access to a decision was comparable to giving someone legal advice, as opposed to providing information as defined in the Information Act.\n\n12.  On 21 September 2006 the Administrative Court declared that it did not have jurisdiction to deal with the case and rejected the applicant association’s complaint. The Administrative Court held that it was only competent to deal with complaints against decisions regarding transfers of building plots and not with complaints brought against the Commission’s decisions on transfers of agricultural or forest land. As the applicant association had not claimed to have been party to the transfer of a building plot, it could not base its complaint on that status. Neither did the Information Act contain any rule stating that complaints about decisions by the Commission pursuant to the Information Act were to be lodged with the Administrative Court. Therefore the matter was excluded from the Administrative Court’s jurisdiction. Consequently, the statement in the Commission’s decision that a complaint could be lodged with the Administrative Court was not correct.\n\n13.  On 27 February 2007 the Constitutional Court declined to deal with the case for lack of prospects of success from the perspective of constitutional law, and also because the matter was not excluded from the Administrative Court’s jurisdiction. The decision was served on the association’s representative on 4 April 2007.\n\n14.  After the Government had been notified of the present application, the applicant association, relying on the Government’s argument in respect of exhaustion of domestic remedies (see paragraph 26 below), lodged an application under Article 138 of the Federal Constitution seeking a ruling from the Constitutional Court on the negative conflict of jurisdiction between it and the Administrative Court.\n\n15.  On 2 December 2011 the Constitutional Court issued a decision stating that it was competent to rule on the applicant association’s complaint against the Commission’s decision of 10 October 2005. Consequently, it set aside its own decision of 27 February 2007 and awarded the applicant association reimbursement of the costs of the proceedings.\n\n15.  On 2 December 2011 the Constitutional Court issued a decision stating that it was competent to rule on the applicant association’s complaint against the Commission’s decision of 10 October 2005. Consequently, it set aside its own decision of 27 February 2007 and awarded the applicant association reimbursement of the costs of the proceedings.\n\n16.  In a further decision of 2 December 2011, the Constitutional Court ruled on the merits of the applicant association’s complaint. Referring to the Court’s case-law and its own case-law, it held in particular that whilst the right to receive information enshrined in Article 10 of the Convention prohibited States from restricting the receipt of information that others wished to or might be willing to impart, it did not – by contrast – impose a positive obligation on States to collect and disseminate information of their own motion. The Constitutional Court added that, in accordance with its established case-law, Article 10 did not require the State to grant access to information or to make information available of its own motion. Consequently, the Commission’s refusal to transmit anonymised copies of all decisions issued during a specific period of time to the applicant association did not constitute an interference with the latter’s right under Article 10 of the Convention.\n\n17.  As to the applicant association’s argument that the Commission’s decision was arbitrary as it had failed to provide reasons, the Constitutional Court referred to the explanatory report on the Information Act and endorsed the Commission’s view that the applicant association’s request was not merely a question of obtaining information about one or more specific issues, but would require the Commission to compile – of its own motion – all decisions issued over a period of some years, to anonymise them, and to send paper copies thereof to the applicant association. The Commission had therefore rightly taken the view that the applicant association’s request did not fall within the scope of section 1 of the Information Act. Moreover, the Commission had also dealt with the merits of the request in that it had concluded that the provision of information could be refused pursuant to section 3(1) subparagraph (c) of the Information Act as it would require investigations, calculations or preparations considerably impinging on the fulfilment of its other tasks.\n\n18.  Lastly, the Constitutional Court observed that the applicant association could be implicitly relying also on Article 6 of the Convention. It noted that neither the Court’s case-law in respect of public access to court decisions nor its own case-law guaranteed the right to obtain anonymised copies of all decisions issued by the Commission over a lengthy period. According to the Constitutional Court’s case-law, access had to be given to the judgments delivered by the highest courts which dealt with cases raising important legal issues. However, this did not apply to all the Commission’s decisions.\n\nII.  RELEVANT DOMESTIC LAW AND PRACTICE\n\nA.  The Information Act\n\n19.  The Information Act (Regional Law Gazette 4/1989) regulates the duty of the authority to provide information:\n\nSection 1 provides as follows:\n\n“(1)  The authority of the Land, municipalities, municipal associations and any other self-governing bodies regulated by regional law are under an obligation to provide anyone with information about their sphere of competence unless provided otherwise in section 3.\n\n(2)  Information is the notification of existing knowledge on matters known to the authority at the time it provides the information.”\n\nSection 2, in so far as relevant, provides as follows:\n\n“(1)  Anyone may require authorities of the Land, municipalities, municipal associations and any other self-governing bodies regulated by regional law to provide information orally, in writing, or by phone, telex or telegraph. ...”\n\nSection 3, in so far as relevant, provides as follows:\n\n“(1)  No information shall be provided if the provision of such information is contradictory to a statutory duty of confidentiality.\n\n(2)  There is no duty to provide information if\n\n...\n\n(c)  the provision of information would require investigations, calculations or preparations considerably impinging on the proper fulfilment of the authority’s other tasks...”\n\nB.  The Tyrol Real Property Transactions Act\n\n20.  The aim of the Tyrol Real Property Transactions Act as in force at the material time (Regional Law Gazette 61/1996 as amended by Regional Law Gazette 75/1999), was to preserve land for agricultural and forestry use and to avoid the proliferation of second homes.\n\n21.  Contracts concerning the transfer of ownership and certain other rights relating to agricultural or forest land therefore required approval by local real property transactions authorities. Appeals against their decisions could be lodged with the Commission either by the parties if they considered the decision had violated their rights or by the Regional Real Property Transactions Referee (Grundverkehrsreferent) if he considered that the decision ran contrary to the public interest. A complaint could be lodged with the Constitutional Court against decisions of the Commission relating to the transfer of agricultural and forest land. If approval was declined, the transfer of land was null and void.\n\n22.  The Regional Real Property Transactions Commission was composed of nine members and substitute members, who were appointed for five years and were not bound in the exercise of their functions by any instructions. As a rule the Commission held oral hearings in public.\n\n23.  An annual report on “The situation of real property transfers in Tyrol” published by the Regional Government includes a report containing general information on the Commission’s activities. It can be seen from these reports that in the period from 2000 to 2005, between 119 and 160 appeals per year were lodged with the Commission, the majority of which concerned transfers of agricultural and forest land. It can also be seen that the Commission issued\n\n- 86 decisions in 2000;\n\n- 65 decisions in 2001;\n\n- 106 decisions in 2002;\n\n- 109 decisions in 2003;\n\n- 109 decisions in 2004; and\n\n- 105 decisions in 2005.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION\n\n24.  The applicant association complained that its right to receive information had been violated as it was refused access to the decisions of the Tyrol Real Property Transactions Commission. The applicant association relied on Article 10, which reads as follows:\n\n“1.  Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...\n\n2.  The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”\n\n25.  The Government contested that argument.\n\nA.  Admissibility\n\nA.  Admissibility\n\n26.  The Government had initially argued that the applicant association had not exhausted domestic remedies since it had failed to make use of an application under Article 138 § 1(b) of the Federal Constitution in order to resolve the negative conflict of jurisdiction which resulted from the Administrative Court’s decision of 21 September 2006 and the Constitutional Court’s decision of 27 February 2007. As the applicant association subsequently requested that the Constitutional Court rule on that conflict of jurisdiction and obtained a decision by the Constitutional Court on the merits on 2 December 2011 (see paragraph 16 above), the Government withdrew their objection based on the non-exhaustion of domestic remedies.\n\n27.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n1.  The parties’ submissions\n\n28.  The applicant association asserted that Article 10 of the Convention required States, to a certain extent, to make information available to the public. In its view the decisions of judicial bodies such as the Commission should be publicly accessible. Given the possibilities of electronic data processing, the authorities could easily create an online information system providing access to the decisions of the Commission, while making provision for the protection of confidential data where necessary. Such a system, namely the Federal Legal Information System (Rechtsinformations-system des Bundes), existed at federal level and made decisions of the highest courts and various other courts and authorities available. Where such a system did not exist, the State should at least provide anonymised paper copies of decisions upon request. Regarding the Government’s argument that Austrian administrative law did not make provision for unrestricted access to files, the applicant association submitted that it had not requested access to files but rather the provision of decisions in anonymised form.\n\n29.  In the applicant association’s view, such interference with its right to receive information could not be justified. It asserted that interests in the rule of law and due process argued in favour of making decisions by judicial authorities available to the public, while the interests of confidentiality could be protected by anonymising them. In response to the Government’s argument that granting the request would have demanded considerable effort, the applicant association criticised the fact that the Commission had not provided any figures indicating the number of decisions to be made available or the actual amount of time needed to provide anonymised copies.\n\n30.  The Government argued that the Commission’s refusal to provide anonymised paper copies of all decisions issued since 1 January 2000 could not be regarded as an interference with the applicant association’s rights under Article 10. According to the Court’s case-law, Article 10 of the Convention prohibited Contracting States from interfering with the receipt of information that someone wished to impart. However, it did not impose a positive obligation on the State to collect and disseminate information itself. Although the State had to set up its information system in such a way that an individual could obtain generally accessible information, it was not obliged to provide access to confidential information.\n\n31.  Access to files containing decisions issued in administrative proceedings was usually given only to parties with a special legal interest in the specific case. The applicant association could not claim to have a special interest in all decisions issued by the Commission over a lengthy period. Thus, the refusal to provide anonymised copies of all decisions issued since 1 January 2000 did not constitute an interference with its rights under Article 10 of the Convention. Moreover, a right to be provided with all decisions issued by the Commission over a lengthy period could not be inferred from Article 6 of the Convention either.\n\n32.  In the alternative, assuming that there had in fact been an interference with the applicant association’s rights under Article 10, the Government asserted that such interference had been justified. They pointed out in particular that it served legitimate aims: it protected the rights of others – namely their interest in non-disclosure of the contents of proceedings affecting them personally, which might for instance include personal data concerning the location and price of land that had been purchased – and prevented the disclosure of confidential information. Moreover, it served to preserve the proper functioning of the authority concerned. Had the applicant association’s request been granted, compliance with it would have required substantial resources to anonymise numerous decisions issued over a number of years and would thus have jeopardised the fulfillment of the Commission’s main tasks. A weighing up of interests showed that this latter interest had to prevail over the applicant association’s interest in obtaining access to all these decisions in anonymised form. Consequently, the interference had also been proportionate.\n\n2.  The Court’s assessment\n\n(a)  Whether there has been an interference\n\n33.  The Court has consistently recognised that the public has a right to receive information of general interest. Its case-law in this field has been developed in relation to press freedom, the purpose of which is to impart information and ideas on such matters. The Court has emphasised that the most careful scrutiny on its part is called for when measures taken by the national authorities may potentially discourage the participation of the press, one of society’s “watchdogs”, in the public debate on matters of legitimate public concern (see Társaság a Szabadságjogokért v. Hungary, no. 37374/05, § 26, 14 April 2009, with references to Observer and Guardian v. the United Kingdom, 26 November 1991, § 59, Series A no. 216; Thorgeir Thorgeirson v. Iceland, 25 June 1992, § 63, Series A no. 239; Jersild v. Denmark, 23 September 1994, § 35, Series A no. 298; and Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 64, ECHR 1999-III).\n\n34.  Furthermore, the Court has held that the gathering of information is an essential preparatory step in journalism and an inherent, protected part of press freedom (see Dammann v. Switzerland (no. 77551/01, § 52, 25 April 2006). However, the function of creating forums for public debate is not limited to the press. That function may also be exercised by non-governmental organisations, the activities of which are an essential element of informed public debate. The Court has therefore accepted that non-governmental organisations, like the press, may be characterised as social “watchdogs”. In that connection their activities warrant similar Convention protection to that afforded to the press (see Társaság a Szabadságjogokért, cited above, § 27, and Animal Defenders International v. the  [GC], no. 48876/08, § 103, 22 April 2013).\n\n35.  The applicant association is a non-governmental organisation the aim of which is to research the impact of transfers of ownership of agricultural and forest land on society. It also contributes to the legislative process by submitting comments on draft laws falling within its field of expertise. In the present case it wished to obtain information about the decisions of the Commission, that is to say the appellate authority approving or refusing transfers of agricultural and forest land under the Tyrol Real Property Transactions Act. The aims pursued by that Act – namely preserving land for agricultural and forestry use and avoiding the proliferation of second homes – are subjects of general interest.\n\n36.  The applicant association was therefore involved in the legitimate gathering of information of public interest. Its aim was to carry out research and to submit comments on draft laws, thereby contributing to public debate. Consequently, there has been an interference with the applicant association’s right to receive and to impart information as enshrined in Article 10 § 1 of the Convention (see Társaság a Szabadságjogokért, cited above, § 28; see also Kenedi v. , no. 31475/05, § 43, 26 May 2009).\n\n(b)  Whether the interference was justified\n\n37.  The Court reiterates that an interference with an applicant’s rights under Article 10 § 1 will infringe the Convention if it does not meet the requirements of paragraph 2 of Article 10. It should therefore be determined whether it was “prescribed by law”, whether it pursued one or more of the legitimate aims set out in that paragraph, and whether it was “necessary in a democratic society” in order to achieve those aims.\n\n38.  In dismissing the applicant association’s request, the Commission relied on sections 1 and 3(1) subparagraph (c) of the Information Act. The Court is thus satisfied that the interference at issue was “prescribed by law” within the meaning of Article 10 § 2 of the Convention.\n\n39.  The Government argued that the interference served legitimate aims, namely the protection of the rights of others and the non-disclosure of confidential information. The applicant association argued that these interests could have been protected by anonymising the copies of the decision. The Court considers that the interference in question can be seen as having pursued the legitimate aim of the protection of the rights of others.\n\n40.  The Court must examine whether the interference was also “necessary” within the meaning of Article 10 § 2. In respect of the general principles concerning the necessity of an interference with the right to freedom of expression, the Court refers to its recent judgment in the case of Animal Defenders International (cited above, § 100).\n\n41.  In the specific context of access to information, the Court has held that the right to receive information basically prohibits a Government from preventing a person from receiving information that others wished or were willing to impart (see Leander v. Sweden, 26 March 1987, § 74, Series A no. 116). Furthermore, it has held that the right to receive information cannot be construed as imposing on a State positive obligations to collect and disseminate information of its own motion (see Guerra and Others v. Italy, 19 February 1998, § 53, Reports of Judgments and Decisions 1998I). However, in Társaság a Szabadságjogokért – which concerned a request for access to information by a non-governmental organisation for the purposes of contributing to public debate – the Court noted that it had recently advanced towards a broader interpretation of the notion of the “freedom to receive information” and thereby towards the recognition of a right of access to information (cited above, § 35). Furthermore it drew a parallel to its case-law concerning the freedom of the press, stating that the most careful scrutiny was called for when authorities enjoying an information monopoly interfered with the exercise of the function of a social watchdog (ibid., § 36, with reference to Chauvy and Others v. France, no. 64915/01, § 66, ECHR 2004VI).\n\n42.  In the present case the applicant association requested paper copies of all decisions issued by the Commission from 1 January 2000 to mid-2005. It argued in essence that the State had an obligation either to publish all decisions of the Commission in an electronic database or to provide it with anonymised paper copies upon request. The Court does not consider that a general obligation of this scope can be inferred from its case-law under Article 10. However, its task in the present case is to examine whether the reasons given by the domestic authorities for refusing the applicant association’s request were “relevant and sufficient” in the specific circumstances of the case and whether the interference was proportionate to the legitimate aim pursued.\n\n43.  Both the Commission and the Constitutional Court relied on a two-fold argument. Firstly, they considered that the applicant association’s request did not fall within the scope of the Information Act. Secondly, they argued that, even if it did, the request could be refused on the grounds that its fulfilment would require substantial resources which would jeopardise the fulfilment of the Commission’s other tasks. The Constitutional Court noted in particular that the applicant association’s request was not concerned with obtaining information on one or more specific issues but would have required the Commission to compile, of its own motion, all decisions issued over a period of some years, to anonymise them and to send paper copies thereof to the applicant association. The Government also relied on this line of argument.\n\n44.  The Court observes that there is a difference between the present case and Társaság a Szabadságjogokért, which concerned a request by a non-governmental organisation to be given access to a particular document – a constitutional complaint for the review of certain provisions of the Criminal Code – lodged by a member of parliament. In reaching its conclusion that the refusal of access was in breach of Article 10, the Court had regard to the fact that the information sought was “ready and available” and did not necessitate the collection of any data by the Government (see Társaság a Szabadságjogokért cited above, § 36). However, in assessing whether the interference complained of in the present case was “necessary” within the meaning of Article 10 § 2, the Court must consider all the circumstances of the case.\n\n45.  The Court notes that the applicant association, by requesting anonymised copies of the Commission’s decisions, accepted that the decisions at issue contained personal data which would have to be removed before the decisions could be made available. It also understood that the production and mailing of the requested copies involved a certain cost, which it proposed to reimburse. Nevertheless, the applicant association’s request met with an unconditional refusal.\n\n46.  Given that the Commission is a public authority deciding disputes over “civil rights” within the meaning of Article 6 of the Convention (see, Eisenstecken v. Austria, no. 29477/95, § 20, ECHR 2000X, with further references), which are, moreover, of considerable public interest, the Court finds it striking that none of the Commission’s decisions was published, whether in an electronic database or in any other form. Consequently, much of the anticipated difficulty referred to by the Commission as a reason for its refusal to provide the applicant association with copies of numerous decisions given over a lengthy period was generated by its own choice not to publish any of its decisions. In this context the Court notes the applicant association’s submission - which has not been disputed by the Government - that it receives anonymised copies of decisions from all other Regional Real Property Commissions without any particular difficulties.\n\n47.  In sum, the Court finds that the reasons relied on by the domestic authorities in refusing the applicant association’s request for access to the Commission’s decisions - though “relevant” - were not “sufficient”. While it is not for the Court to establish in which manner the Commission could and should have granted the applicant association access to its decisions, it finds that a complete refusal to give it access to any of its decisions was disproportionate. The Commission, which, by its own choice, held an information monopoly in respect of its decisions, thus made it impossible for the applicant association to carry out its research in respect of one of the nine Austrian Länder, namely Tyrol, and to participate in a meaningful manner in the legislative process concerning amendments of real property transaction law in Tyrol. The Court therefore concludes that the interference with the applicant association’s right to freedom of expression cannot be regarded as having been necessary in a democratic society.\n\n48.  There has accordingly been a violation of Article 10 of the Convention.\n\nII.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION\n\n49.  The applicant association complained that it did not have an effective remedy in respect of its complaint under Article 10. It relied on Article 13 of the Convention, which reads as follows:\n\n“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”\n\n50.  The Government contested that argument.\n\n51.  The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.\n\n52.  The applicant association asserted that, in their respective decisions of 21 September 2006 and 27 February 2007, the Administrative Court and the Constitutional Court had refused to examine the merits of its complaint concerning the Commission’s refusal to provide it with copies of all decisions issued over a specified period of time.\n\n53.  The Government submitted that a complaint to the Constitutional Court constituted an effective remedy. Even a refusal to deal with a complaint entailed a summary examination of the subject matter. Moreover, in the present case the applicant association had had the possibility of challenging the Constitutional Court’s refusal to deal with the case by lodging an application under Article 138 of the Federal Constitution in order to resolve the negative conflict of jurisdiction between the Administrative Court and the Constitutional Court.\n\n54.  As the Court has held on many occasions, Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. The effect of Article 13 is thus to require provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief. The scope of the Contracting States’ obligations under Article 13 varies depending on the nature of the applicant’s complaint; however, the remedy required by Article 13 must be “effective” in practice as well as in law. The “effectiveness” of a “remedy” within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant (see, for instance, Kudła v. Poland, no. 30210/96, § 157, ECHR 2000-XI).\n\n55.  The Court therefore has to examine whether Austrian law afforded the applicant association the possibility of complaining about the alleged violation of its right to freedom of expression and whether this remedy was “effective” in the sense that it could have afforded appropriate redress for the alleged violation.\n\n56.  The Court observes that the Administrative Court held that it was not competent to deal with the applicant association’s complaint. The Constitutional Court in its turn also refused to deal with the case, making the assumption that the case was not excluded from the Administrative Court’s jurisdiction. However, the applicant association had the possibility of bringing an application under Article 138 of the Federal Constitution which allowed this negative conflict of jurisdiction to be resolved. It made use of this option, with the result that the Constitutional Court set aside its previous decision and ruled on the merits of the applicant association’s complaint under Article 10. The fact that the outcome was not favourable for the applicant association does not detract from the effectiveness of the remedy.\n\n57.  The Court is therefore satisfied that the applicant association had an effective remedy at its disposal in respect of its complaint under Article 10. Consequently, there has been no violation of Article 13 of the Convention.\n\nIII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n58.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Costs and expenses\n\n59.  Whereas the applicant association did not claim compensation for pecuniary or non-pecuniary damage, in its observations of 27 August 2010, it claimed a total of 5,579.66 euros (EUR) for the costs and expenses incurred in the domestic proceedings, comprising EUR 80 for expenses incurred before the Commission, EUR 2,940.78 for costs and expenses incurred before the Administrative Court and EUR 2,558.88 for costs and expenses incurred in the first set of proceedings before the Constitutional Court. The applicant association also claimed costs for a further set of proceedings to be conducted before the Constitutional Court - under Article 138 of the Federal Constitution - unless such costs were to be reimbursed by the Constitutional Court.\n\n60.  In respect of the Convention proceedings, the applicant association claimed “adequate compensation for the cost of representation” without specifying an amount.\n\n61.  The Government observed that the applicant association had failed to substantiate the expenses it claimed to have incurred before the Commission. They noted the claim for reimbursement of costs and expenses incurred before the Administrative Court and for the first set of proceedings before the Constitutional Court, without making any further comment. Moreover, they observed that the costs of a possible further set of proceedings before the Constitutional Court had not yet been actually incurred.\n\n62.  Lastly, the Government submitted that the applicant association had failed to substantiate the costs claimed in respect of the Convention proceedings, as required. They observed that the applicant’s submissions before the Court were in any event largely similar to those already made before the domestic authorities.\n\n63.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, taking into account the documents in its possession and the above criteria, the Court awards a total amount of EUR 5,499.66 for the costs incurred in the proceedings before the Administrative Court and the first set of proceedings before the Constitutional Court. It notes that in the second set of proceedings before the Constitutional Court, the applicant association was awarded reimbursement of its costs and has not made any further claims in that respect in the proceedings before the Court. Furthermore, the Court dismisses the remainder of the claim for costs and expenses in the domestic proceedings and considers it reasonable to award the sum of EUR 2,000 for the proceedings before the Court.\n\n64.  Consequently, the Court, rounding up the amount, awards a total of EUR 7,500 under the head of costs and expenses.\n\nB.  Default interest\n\n65.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT\n\n1.  Declares, unanimously, the application admissible;\n\n2.  Holds, by six votes to one, that there has been a violation of Article 10 of the Convention;\n\n3.  Holds, unanimously, that there has been no violation of Article 13 of the Convention;\n\n4.  Holds, unanimously,\n\n(a)  that the respondent State is to pay the applicant association, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n5.  Dismisses, unanimously, the remainder of the applicant association’s claim for just satisfaction.\n\nDone in English, and notified in writing on 28 November 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.\n\nIn accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Møse is annexed to this judgment.\n\n1.  I agree that for the reasons set out in the judgment there was no violation of Article 13 but cannot follow my colleagues in finding that Article 10 has been violated (see paragraphs 37 to 48 of the judgment).\n\n2.  The general principles concerning freedom of expression are well known and have been summarised, for instance, in Mouvement raëlien Suisse v. Switzerland [GC], no. 16354/06, § 48, 13 July 2012. It is also common ground that the press exercises a vital role of “public watchdog” in imparting information of serious public concern. When measures are taken or sanctions imposed by national authorities in such matters, the most careful scrutiny on the part of the Court is called for (see, among many authorities, Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, §§ 59 and 64, ECHR 1999-III).\n\n3.  The Grand Chamber has accepted that when a non-governmental organisation (NGO) draws attention to matters of public interest, it is exercising a public watchdog role of similar importance to that of the press (see Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 103, 22 April 2013). I agree with this point of departure. However, whether there is a violation or not depends on a concrete assessment. In Animal Defenders, which concerned the prohibition of paid political advertising on radio and television, the majority did not find a breach of Article 10.\n\n4.  At Chamber level, an NGO’s role as a watchdog was raised in Vides Aizsardzibas Klubs v. Latvia, no. 57829/00, § 42, 27 May 2004; Steel and Morris v. the United Kingdom, no. 68416/01, § 89, ECHR 2005-II; and Riolo v. Italy, no. 42211/07, § 63, 17 July 2008 (which related to a researcher in political science writing a newspaper article). The facts in those cases are very different from the present case.\n\n5.  As regards access to information, I agree with the initial recapitulation of relevant case law in paragraph 41 of the judgment, including the references to Leander v. Sweden, 26 March 1987, § 74, Series A no. 116, and Guerra and Others v. Italy, 19 February 1998, § 53, Reports of Judgments and Decisions 1998I. The majority then refer to Társaság a Szabadságjogokért v. Hungary, no. 37374/05, 14 April 2009, which concerned access to information by an NGO. In my view, that case does not support a finding of a violation in the present case (see paragraphs 7-8 below).\n\n6.  In paragraphs 34-36 of the judgment, reference is made to Dammann v. Switzerland, no. 77551/01, § 52, 25 April 2006; the case of Társaság a Szabadságjogokért, cited above, §§ 26 and 27; and Kenedi v. Hungary, no. 31475/05, § 43, 26 May 2009. The first judgment concerns the conviction of a journalist who had taken certain preparatory steps to obtain information in alleged breach of the Swiss penal code, and is clearly distinguishable from the present case. Nor is the third judgment comparable: the applicant – a historian – had obtained a court judgment granting him access to certain documents deposited with the Ministry of the Interior. In spite of subsequent court decisions in line with the original judgment, the authorities obstructed his access.\n\n7.  As mentioned by the majority (see paragraph 44 of the judgment), the case of Társaság a Szabadságjogokért, cited above, concerned a request by an NGO to be given access to a particular document – a constitutional complaint. The Court found that the refusal of access was in breach of Article 10, taking into account that the information sought was “ready and available” and did not require the collection of any data by the Government (ibid., § 36, with reference to Guerra and Others, cited above, § 53). Moreover, the Court held in that case that private data protection considerations could not justify the interference (ibid., § 37).\n\n8.  By contrast, the request made by the applicant association in the present case required the provision of anonymised paper copies of all decisions by the Tyrol Real Property Commission issued over a period of more than five years. The decisions were not in a state to be sent. It appears that the applicant association itself, by requesting anonymised copies, understood that the decisions concerned contained personal data which would have to be removed before they could be made available. The Commission refused the request on the grounds that its fulfilment, even if it were accepted that it fell within the scope of the Information Act, would require substantial resources which would jeopardise the fulfilment of the Commission’s other tasks. The Constitutional Court endorsed this line of argument, finding that the Commission would have to compile all the decisions, anonymise them and send paper copies to the applicant association.\n\n9.  It is noteworthy that according to the annual report published by the Regional Government, the Commission issued between 65 and 109 decisions per year in the relevant period from 2000 to 2005 (see paragraph 23 of the judgment). The applicant association’s request therefore related to several hundred decisions. In my view, there was thus no arbitrariness in the argument that complying with the applicant association’s request would have had a negative impact on the fulfillment of the Commission’s tasks. I therefore accept that the reasons given for the refusal of the applicant association’s request were relevant and sufficient.\n\n10.  Lastly, it should be noted that the applicant association is not left completely without any possibility to obtain information about the Commission’s decisions. A certain amount of information is available in the Regional Government’s annual report. Moreover, the Commission is not an authority of last resort. A complaint against its decisions can be lodged with the Constitutional Court and a collection of the latter’s decisions – which, as a rule, contain a summary of the challenged decision – is published in an online database, the Federal Legal Information System. Consequently, the interference with the applicant association’s right under Article 10 was also proportionate.\n\n11.  In my view, these considerations lead to the conclusion that the domestic authorities did not overstep their margin of appreciation when refusing the applicant association’s request. The fact that all other Regional Real Property Commissions sent out anonymised copies is not sufficient to alter that conclusion.\n\n12.  There has accordingly been no violation of Article 10 of the Convention.\n\n12.  There has accordingly been no violation of Article 10 of the Convention.","title":""}
{"_id":"passage_480","text":"PROCEDURE\n\n1.  The case originated in an application (no. 35142/15) against the Slovak Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by fifty-one Slovak nationals, whose details are set out in the appendix (“the applicants”), on 9 July 2015.\n\n2.  The applicants were represented by Ms O. Szabó, a lawyer practising in Patince. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková.\n\n3.  The applicants alleged, in particular, that their restitution claim, which had been examined in administrative and thereafter judicial proceedings, had not been decided on within a reasonable time and that they had had no effective remedy at their disposal in that respect, in violation of their rights under Article 6 § 1 and Article 13 of the Convention.\n\n4.  On 17 May 2016 the above complaints were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\nA.  Restitution proceedings\n\n5.  On 23 December 2004 the applicants and 126 others lodged a claim with the Komárno Land Office, an authority that is now part of the Komárno District Office (“the Land Office”), for restitution of land under the Restoration of Land Ownership Act (Law no. 503/2003 Coll., as amended).\n\n6.  On 27 May 2010 the Land Office dismissed the claim on the grounds that all the claimants lacked standing to bring it.\n\n7.  On 21 November 2011 the Nitra Regional Court upheld that decision following an administrative-law appeal by the claimants, lodged on their behalf by four individuals.\n\n8.  However, following an appeal lodged by the claimants with the Supreme Court, on 29 January 2014 that court quashed the Regional Court’s judgment and remitted the case to it on the grounds that the latter had failed to establish the representatives’ authority to act on behalf of all the claimants. The proceedings before the Regional Court had been conducted merely in the presence of the designated representatives and the court had failed to summon the claimants in person and to have its judgment served on them. It had thereby breached the claimants’ right of access to a court.\n\n9.  Accordingly, it became incumbent on the Regional Court to determine anew the claimants’ administrative-law appeal against the decision of the Land Office of 27 May 2010. In those proceedings, the court invited the claimants to clarify issues concerning their legal representation with a view to ensuring that they would be represented by a common representative.\n\n10.  In a decision of 4 December 2014 the Regional Court issued several rulings. In so far as relevant for the present application, it ruled that the claimants would all be jointly represented by a lawyer who had up until then represented only some of them.\n\n11.  On 25 May 2016 the Supreme Court upheld the decision of 4 December 2014 following an appeal lodged by the claimants.\n\n12.  The proceedings are still pending before the Regional Court.\n\nB.  Constitutional proceedings\n\nB.  Constitutional proceedings\n\n13.  Meanwhile, on 21 January 2015 the Constitutional Court had rejected a complaint lodged by the applicants about the length of the proceedings in their claim, in so far as they had taken place before the Land Office and the Regional Court. The Constitutional Court held that the length of the administrative proceedings before the Land Office and of the judicialreview proceedings held before the Regional Court could not be considered together.\n\nHaving split the complaint into those two segments, the Constitutional Court rejected the complaint concerning the administrative proceedings on the grounds of non-exhaustion of ordinary remedies. In particular, it noted that the applicants had failed to challenge the alleged inactivity of the Land Office under Article 250t § 1 of the Code of Civil Procedure (CCP) (see paragraphs 19 et seq. in “Relevant domestic law and practice” below).\n\nAs regards the judicial-review proceedings, the Constitutional Court dismissed the complaint as manifestly ill-founded. It noted that those proceedings as a whole had lasted some four and a half years. However, the case had been pending on appeal before the Supreme Court for about two years of that period. Although the length of the appellate proceedings had been unsatisfactory, as such it had not been complained of by the applicants, who had limited their compliant to the proceedings before the Regional Court. In addition, the Constitutional Court observed that the proceedings had been procedurally complex on account of the number of claimants. In sum, despite the fact that its judgment had been quashed as flawed, the length of the proceedings before the Regional Court had not been excessive.\n\nII.  RELEVANT DOMESTIC LAW AND PRACTICE\n\nA.  Constitution (Constitutional Law no. 460/1992 Coll., as amended)\n\n14.  The relevant part of Article 48 § 2 provides:\n\n“Everyone shall have the right to have his matter ... heard without undue delay ...”\n\n15.  Article 127 reads as follows:\n\n“1.  The Constitutional Court shall decide on complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court.\n\n2.  If the Constitutional Court finds a complaint justified, it shall deliver a decision stating that a person’s rights or freedoms as set out in paragraph 1 have been violated by a final decision, specific measure or other act and shall quash such decision, measure or act. If the violation that has been found is the result of a failure to act, the Constitutional Court may order [the authority] which has violated the rights or freedoms to take the necessary action. At the same time it may remit the case to the authority concerned for further proceedings, order such authority to refrain from violating the fundamental rights and freedoms ... or, where appropriate, order those who have violated the rights or freedoms set out in paragraph 1 to restore the situation to that existing prior to the violation.\n\n3.  In its decision on a complaint the Constitutional Court may award appropriate financial compensation to the person whose rights under paragraph 1 have been violated.”\n\nB.  Constitutional Court Act (Law no. 38/1993 Coll., as amended)\n\n16.  The relevant part of section 53 reads:\n\n“1.  A[n] [individual] complaint [under Article 127 of the Constitution] is not admissible if the complainant has not exhausted legal remedies or other legal means, which a statute effectively provides to [the complainant] with a view to protecting [the complainant’s] fundamental rights or freedoms, and which the complainant is entitled to use under special statute.\n\n2.  The Constitutional Court shall not declare a[n] [individual] complaint inadmissible even if the condition under subsection 1 has not been fulfilled, if the complainant establishes that [he or she] has not fulfilled this condition for reasons worthy of particular consideration.”\n\nC.  Statement of the Vice-President of the Constitutional Court\n\nC.  Statement of the Vice-President of the Constitutional Court\n\n17.  On 15 June 2016 the Vice-President of the Constitutional Court issued a written statement in response to a request by the Government Agent concerning the admissibility and merits of the present case. He stated that he leaned towards the Constitutional Court’s decision in the present case. In particular, he noted that jurisdiction to deal with alleged delays in administrative proceedings was vested in administrative tribunals under Article 250t of the CCP. This excluded the jurisdiction of the Constitutional Court in relation to the length of administrative proceedings as such. However, if an administrative tribunal’s decision concerning the length of administrative proceedings was considered to be arbitrary, the Constitutional Court could still review it under Article 127 of the Constitution for compliance with the requirement of fairness. Moreover, as an action under Article 250t of the CCP had no compensatory effect, it could have been complemented by compensation claims under the State Liability Act.\n\nD.  Code of Civil Procedure\n\n18.  At the relevant time, the rules of procedure for the administrative judiciary were embodied in the 1963 Code of Civil Procedure (Law no. 99/1963 Coll., as amended), in particular its Chapter (Časť) 5. Under those rules, by virtue of an amendment that entered into force on 1 January 2003, administrative tribunals had jurisdiction, inter alia, to examine complaints concerning the inactivity of public administrative authorities (Section (Hlava) 4 – konanie proti nečinnosti orgánu verejnej správy).\n\n18.  At the relevant time, the rules of procedure for the administrative judiciary were embodied in the 1963 Code of Civil Procedure (Law no. 99/1963 Coll., as amended), in particular its Chapter (Časť) 5. Under those rules, by virtue of an amendment that entered into force on 1 January 2003, administrative tribunals had jurisdiction, inter alia, to examine complaints concerning the inactivity of public administrative authorities (Section (Hlava) 4 – konanie proti nečinnosti orgánu verejnej správy).\n\n18.  At the relevant time, the rules of procedure for the administrative judiciary were embodied in the 1963 Code of Civil Procedure (Law no. 99/1963 Coll., as amended), in particular its Chapter (Časť) 5. Under those rules, by virtue of an amendment that entered into force on 1 January 2003, administrative tribunals had jurisdiction, inter alia, to examine complaints concerning the inactivity of public administrative authorities (Section (Hlava) 4 – konanie proti nečinnosti orgánu verejnej správy).\n\n19.  Under Article 250t § 1, any natural or legal person alleging that a public administrative authority was not dealing with a matter in a timely fashion, in breach of the law and without a weighty reason, could apply to an administrative tribunal for an order instructing the authority concerned to proceed with the matter and to decide on it. However, such a remedy could be pursued only after the exhaustion of all ordinary remedies available, in accordance with the relevant legislation.\n\n20.  If an action under Article 250t § 1 was allowed, under paragraph 4 of that Article the administrative tribunal would define an appropriate timelimit, not longer than three months, within which the defendant authority had to take a decision. This time-limit could be extended at the request of the authority concerned.\n\n21.  In the event of failure by the authority in question to abide by the time-limit, subject to a repeated request by the party concerned, the administrative tribunal had the power to impose, even repeatedly, a fine of up to 3,280 euros (EUR) on that authority (Article 250u).\n\nE.  Practice in respect of actions brought under Article 250t § 1 of the CCP\n\nE.  Practice in respect of actions brought under Article 250t § 1 of the CCP\n\n22.  In a case that gave rise to an order of the Bratislava Regional Court of 11 April 2013 (file no. 1S 38/13), the underlying administrative proceedings concerned a restitution claim lodged in 1992.\n\nThe claimant brought an action before the Regional Court under Article 250t § 1 of the CCP, complaining of unjustified delays in the administrative proceedings.\n\nOn 11 April 2013 the Regional Court allowed the action and ordered the administrative authority dealing with the restitution claim to decide on the matter within sixty days.\n\n23.  On 21 August 2014 the claimant lodged a fresh action under Article 250t § 1 of the CCP arguing that the administrative authority had failed to abide by the order of 11 April 2013.\n\nOn 27 May 2015 the Regional Court issued a fresh order to the administrative authority to proceed with the matter and to decide on it within three months. At the same time, it imposed a fine on that authority of EUR 1,000.\n\nOn 11 September 2015 the administrative authority dismissed part of the restitution claim.\n\nOn 19 October 2015 it stayed its examination of the remainder of the claim, inviting a number of institutions to submit relevant documentation, which they did by the end of 2015.\n\nAs of November 2016 the examination of the remainder of the claim was on-going.\n\nF.  State Liability Act\n\n24.  State liability for damage is regulated by the State Liability Act (Law no. 514/2003 Coll., as amended). Its section 3(1)(d) provides that the State is liable for damage which has been caused by maladministration (nesprávny úradný postup).\n\n24.  State liability for damage is regulated by the State Liability Act (Law no. 514/2003 Coll., as amended). Its section 3(1)(d) provides that the State is liable for damage which has been caused by maladministration (nesprávny úradný postup).\n\n25.  Section 9, which deals with compensation for damage caused by maladministration, provides:\n\n“1.  The State shall be liable for damage caused by maladministration. Maladministration includes a public authority’s failure to take action or issue a decision within the statutory time-limit, general inactivity in the exercise of public authority, unjustified delays in proceedings, or other unlawful interference with the rights and legally recognised interests of individuals and legal entities.\n\n2.  The right to compensation for damage caused by maladministration is vested in the person who sustained the damage.”\n\n26.  Section 17 defines the manner and extent of compensation for damage. It provides in its relevant part:\n\n“1.  Damage and lost profit shall be compensated for, unless special legislation provides otherwise.\n\n2.  In the event that the finding of a violation of a right alone is not adequate compensation in view of the loss caused by the unlawful official action or wrongful official conduct, monetary compensation shall also be awarded for non-pecuniary damage, if it is not possible to compensate for it otherwise.”\n\nG.  Practice in respect of actions brought under the State Liability Act\n\nG.  Practice in respect of actions brought under the State Liability Act\n\n27.  In a judgment of 12 November 2013 the Bratislava Regional Court examined appeal no. 5Co 152/2013 in a case, at the heart of which was the length of administrative proceedings for the issuance of a construction permit.\n\n27.  In a judgment of 12 November 2013 the Bratislava Regional Court examined appeal no. 5Co 152/2013 in a case, at the heart of which was the length of administrative proceedings for the issuance of a construction permit.\n\n28.  Following an action brought on 19 March 2004 under Article 250t § 1 of the CCP by the person seeking the permit (“the builder”), the Žilina Regional Court issued a decision on 24 January 2008 finding that there had been unjustified delays in the administrative proceedings and ordering the planning authority to proceed and decide on the matter within thirty days.\n\n29.  Relying on that judgment, the builder argued that the unjustified delays in the administrative proceedings amounted to maladministration within the meaning of section 9 of the State Liability Act. At the same time, he pointed out that it had taken more than three years and ten months for his action under Article 250t § 1 of the CCP to be determined, and argued that the length of the proceedings on that action alone had amounted to maladministration.\n\n30.  In the aforementioned judgment of 12 November 2013 the Bratislava Regional Court upheld the first-instance judgment dismissing those claims. In doing so, it fully endorsed the conclusions of the first-instance court, including that:\n\n-  in view of all the circumstances, including the judgment 24 January 2008, there had been maladministration on the part of the planning authority;\n\n-  no financial compensation in respect of non-pecuniary damage caused by that maladministration was called for, since the proceedings in respect of the construction permit were still pending and the planning authority could still redress any non-pecuniary damage sustained by the builder by issuing the construction permit he was seeking;\n\n-  although the proceedings in the action under Article 250t § 1 of the CCP had lasted nearly four years, there were no statutory time-limits for their completion. Accordingly, there could not have been any maladministration on account of their length. Moreover, the builder could have challenged their length by way of a complaint under Article 127 of the Constitution, which excluded jurisdiction of the ordinary courts in the matter under the State Liability Act;\n\n-  furthermore, as the administrative tribunal dealing with the builder’s action under Article 250t § 1 of the CCP had no power to deal with the merits of his request for a construction permit, and as he had failed to seek judicial enforcement of the decision of 24 January 2008, the State was not liable for any non-pecuniary damage allegedly caused by the length of the proceedings in the action under Article 250t § 1 of the CCP.\n\nTHE LAW\n\nI.  THE APPLICANTS T. CSENTEOVÁ, J. KÓSOVÁ, L. MOLNÁR, I. OLLÉ, K. SZABÓ, K.SZÉPE, M. TÁNCZOSOVÁ AND M. VERMESOVÁ\n\n31.  In submissions of 29 May, 26 June, 9 July and 26 August 2018 the applicants’ lawyer informed the Court that the applicants Ms Csentenová, Ms Kósová, Messrs Molnár, Ollé, Szabó and Szépe, Ms Tánczosová and Ms Vermesová had died in the course of the Court’s proceedings and submitted further information in that respect as follows.\n\nThe heirs of Ms Csentenová did not wish to continue the relevant part of the application, whereas the heir of Mr Koloman Szépe, Mr Anton Szépe, did. The lawyer submitted a copy of a certificate of inheritance dated 15 November 2016 certifying that Mr A. Szépe, Mr K. Szépe’s brother, was the latter’s only heir.\n\nAs to the heirs of Ms Kósová, Mr Pavol Kóša - her son - expressed the wish to continue the respective part of the application, while the position of Mr Štefan Paál, was unknown. The children and heirs of Ms Vermesová, Ms Teréz Vermes and Messrs István Vermes and Vilmos Vermes, expressed a wish to pursue the application in her stead. In that respect, copies of certificates of 30 January 2017 and 6 June 2018 were submitted indicating that the persons mentioned were the respective heirs of Ms Kósová and Ms Vermesová.\n\nOf the heirs of Mr Molnár, Ms Emília Nagyová and Mr Imrich Molnár expressed the wish to continue the respective part of the application, while the position of Ms Mária Molnárová was unknown. To that end, a copy of a part of a decision of the Komárno District Court of 18 December 2017 was submitted showing that they were the heirs of Mr Molnár.\n\nAs regards Mr Ollé, his heirs, Ms Jolana Olléová, Ms Klára Lőrincz, Ms Marta Vargová and Mr Róbert Ollé expressed the wish to continue the respective part of the application. In that respect, a copy of a part of a decision of the District Court of 30 May 2018 was submitted showing that they were the heirs of Mr Ollé.\n\nThe heirs of Mr Szabó, Ms Alžbeta Szabóová and Mr Koloman Szabó also expressed the wish to continue the proceedings in his stead. In support of that claim, a copy of a part of a decision of the District Court of 25 June 2018 was submitted indicating that they were the heirs of Mr Szabó.\n\nLastly, the childrena and heirs of Ms Tánczosová, Mr Peter Tánczos and Ms Annamária Hencz, likewise submitted that they were interested to continue the proceedings in her stead, relying on a certificate by a public notary identifying them as the heirs of Ms Tánczosová.\n\n32.  The Government for their part proposed first of all that the part of the application brought by Ms Csentenová be struck out of the Court’s list.\n\nMoreover, they submitted that they had no objection to (i) Mr Pavol Kóša, (ii) Ms Emília Nagyová and Mr Imrich Molnár, (iii) Ms Jolana Olléová, Ms Klára Lőrincz, Ms Marta Vargová and Mr Róbert Ollé, (iv) Ms Alžbeta Szabóová and Mr Koloman Szabó, (v) Mr Anton Szépe, (vi) Mr Peter Tánczos and Ms Annamária Hencz, and (vii) Ms Teréz Vermes and Messrs István Vermes and Vilmos Vermes continuing the proceedings in place of (i) Ms Juliana Kósová, (ii) Mr Ladislav Molnár, (iii) Mr Imrich Ollé, (iv) Mr Koloman Szabó, (v) Mr Koloman Szépe, (vi) Ms Mária Tánczosová, and (vii) Ms Margita Vermesová, respectively, provided that the former were the heirs of and succeeded the latter in the impugned domestic proceedings.\n\n33.  The Court reiterates that it has been its practice to strike applications out of the list of cases in the absence of any heir or close relative who has expressed a wish to pursue the application (see, for example, Silášová and Others v. Slovakia (revision), no. 36140/10, § 9, 30 January 2018, with further references). Moreover, it finds no special circumstances relating to respect for human rights as defined in the Convention and its Protocols which require it to continue the examination of the application in respect of Ms Csentenová. The application should therefore be struck out of the Court’s list of cases in so far as it relates to this applicant.\n\n34.  As Mr Anton Szépe is the sole heir of the late applicant Mr Koloman Szépe, the Court considers that he has a legitimate interest to continue the present proceedings in his late brother’s stead (see, for example, Bittó and Others v. Slovakia (just satisfaction), no. 30255/09, § 7, 7 July 2015, with further references). The same applies accordingly to (i) Mr Pavol Kóša, (ii) Ms Emília Nagyová and Mr Imrich Molnár, (iii) Ms Jolana Olléová, Ms Klára Lőrincz, Ms Marta Vargová and Mr Róbert Ollé, (iv) Ms Alžbeta Szabóová and Mr Koloman Szabó, (v) Peter Tánczos and Ms Annamária Hencz, and (vi) Ms Teréz Vermes and Messrs István Vermes and Vilmos Vermes,\n\nAs no submission has been made indicating any interest in continuation of the relevant part of the proceedings by or on behalf of Mr Paál and Ms Mária Molnárová, no ruling concerning their standing is called for.\n\nII.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION, ALONE AND IN CONJUNCTION WITH ARTICLE 13 OF THE CONVENTION\n\n35.  The applicants complained that the length of the proceedings on their restitution claim had been excessive and that they had had no effective remedy at their disposal in that respect, contrary to the requirements of Article 6 § 1 and Article 13 of the Convention.\n\nThe relevant part of Article 6 § 1 provides:\n\n“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”\n\nArticle 13 provides:\n\n“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”\n\nA.  Admissibility\n\n1.  The parties’ submissions\n\n36.  As to the complaint under Article 6 § 1 of the Convention, the Government pointed out that the proceedings on the applicants’ claim consisted of a phase before an administrative authority and a phase before the courts. Relying on the Constitutional Court’s findings in its decision of 21 January 2015, they considered that the examination of the length of those proceedings had to be divided into those two phases.\n\n36.  As to the complaint under Article 6 § 1 of the Convention, the Government pointed out that the proceedings on the applicants’ claim consisted of a phase before an administrative authority and a phase before the courts. Relying on the Constitutional Court’s findings in its decision of 21 January 2015, they considered that the examination of the length of those proceedings had to be divided into those two phases.\n\n37.  In particular, as regards the administrative phase of the proceedings, the applicants should have brought an action for acceleration of the proceedings under Article 250t § 1 of the CCP.\n\nRelying on the judgment of the Bratislava Regional Court in an unrelated case (see paragraph 27 above), the Government further argued that any finding by an administrative tribunal of unjustified delays in the administrative proceedings could then have served as a basis for a claim for compensation in respect of pecuniary and non-pecuniary damage under the State Liability Act (see paragraph 25 above).\n\nBy not having made use of those remedies, as regards the administrative phase of the proceedings, the applicants had failed to meet the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention.\n\n38.  As to the part of proceedings on the applicants’ restitution claim which had taken place before the courts, the Government referred to the findings of the Constitutional Court and argued that the relevant part of the length-of-proceedings complaint was manifestly illfounded.\n\n39.  In relation to the applicants’ complaint under Article 13 of the Convention, the Government pointed to the remedies at the applicants’ disposal as mentioned above. Should they not have been successful, the applicants could also have resorted to subsidiary protection by the Constitutional Court under Article 127 of the Constitution. In so far as the Constitutional Court had made protection of the applicants’ right to a hearing without undue delay in the administrative proceedings dependent on their first having challenged the alleged delays in those proceedings by way of an action for their acceleration under Article 250t § 1 of the CCP, the Government sought to distinguish the present case from that of Ištván and Ištvánová v. Slovakia (no. 30189/07, 12 June 2012). In that case, the Constitutional Court had made protection of the right of Mr Ištván and Mrs Ištvánová to a hearing within a reasonable time in judicial proceedings dependent on their first having enabled the president of the court concerned to redress the alleged delays in those proceedings in response to a complaint by Mr Ištván and Mrs Ištvánová under the Courts Act (Law no. 757/2004 Coll., as amended). In the Government’s view, the difference between Ištván and Ištvánová and the present case lay in the fact that an action under Article 250t § 1 of the CCP had been accepted by the Court as an effective remedy for the purposes of Article 35 § 1 of the Convention (see Csepyová v. Slovakia (dec.), no. 67199/01, 8 April 2003), whereas a complaint under the Courts Act had not. The Government concluded that the remedies available to the applicants comprised preventive as well as compensatory elements, the aggregate of which met the requirements of Article 13 of the Convention.\n\n40.  In response, the applicants maintained their complaints, submitting that the length of the proceedings should be seen as including the administrative phase, and that not even the arguable complexity of the proceedings could justify their length, which was in no way attributable to them.\n\n2.  The Court’s assessment\n\n2.  The Court’s assessment\n\n41.  The Court notes that the applicants’ standing to pursue the present application and the applicability of Article 6 § 1 of the Convention to the proceedings on their restitution claim, including the part taking place before the Land Office, have not been disputed. The applicability of Article 6 § 1 of the Convention was established by the Court in the past in a similar context (see Csepyová, cited above, and Schmidtová v. the Czech Republic, no. 48568/99, §§ 54-57, 22 July 2003).\n\n41.  The Court notes that the applicants’ standing to pursue the present application and the applicability of Article 6 § 1 of the Convention to the proceedings on their restitution claim, including the part taking place before the Land Office, have not been disputed. The applicability of Article 6 § 1 of the Convention was established by the Court in the past in a similar context (see Csepyová, cited above, and Schmidtová v. the Czech Republic, no. 48568/99, §§ 54-57, 22 July 2003).\n\n42.  As to the Government’s objection of non-exhaustion of domestic remedies, the Court further notes that it is limited to the part of the applicants’ complaint which concerns the administrative phase of the proceedings. In that connection, it reiterates that the purpose of Article 35 § 1, which sets out the rule on exhaustion of domestic remedies, is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court. The rule in Article 35 § 1 is based on the assumption, reflected in Article 13 (with which it has a close affinity), that there is an effective domestic remedy available in respect of the alleged breach of an individual’s Convention rights (see, for example, Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000XI, with further references).\n\n43.  In view of the closely interconnected nature of the Government’s non-exhaustion plea with regard to the complaint under Article 6 § 1 of the Convention and considerations as to the merits of the applicants’ complaint under Article 13 of the Convention, the Court considers that this objection should be joined to the merits of the complaint under the latter provision (see Antoni v. the Czech Republic, no. 18010/06, § 26, 25 November 2010).\n\n44.  Regarding the question of the beginning of the proceedings, the Court further reiterates that when under the national legislation an applicant has to exhaust a preliminary administrative procedure before having recourse to a court, the proceedings before the administrative authorities are to be included when calculating the overall length of the proceedings for the purposes of Article 6 of the Convention (see, for example, Kiurkchian v. Bulgaria, no. 44626/98, § 51, 24 March 2005).\n\n45.  The period to be taken into consideration for the purposes of Article 6 § 1 of the Convention accordingly began on 23 December 2004 and has not yet ended. It has thus lasted more than thirteen years and three months for the proceedings before the Land Office and two levels of jurisdiction.\n\n46.  The Court notes that the length-of-proceedings complaint is not manifestly illfounded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. For similar reasons, it finds the complaint arguable for the purposes of Article 13 of the Convention (see Boyle and Rice v. the United Kingdom, 27 April 1988, § 52, Series A no. 131).\n\nThe application must therefore be declared admissible.\n\nB.  Merits\n\n47.  The parties have made no separate submissions on the merits.\n\n1.  Article 13 in conjunction with Article 6 § 1 of the Convention\n\n48.  The Court reiterates that Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief. The scope of the Contracting States’ obligations under Article 13 varies depending on the nature of the applicant’s complaint; however, the remedy required by Article 13 must be “effective” in practice as well as in law. The “effectiveness” of a “remedy” within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant. Nor does the “authority” referred to in that provision necessarily have to be a judicial authority; but if it is not, its powers and the guarantees which it affords are relevant in determining whether the remedy before it is effective. Also, even if a single remedy does not by itself entirely satisfy the requirements of Article 13, the aggregate of remedies provided for under domestic law may do so (see Kudła, cited above, § 157).\n\n49.  Although the Contracting States are afforded some discretion as to the manner in which they provide the relief required by Article 13 and conform to their Convention obligation under that provision (see, for example, Kaya v. Turkey, 19 February 1998, § 106, Reports of Judgments and Decisions 1998I), a remedy available to a litigant at domestic level for raising a complaint about the length of proceedings is “effective”, within the meaning of Articles 13 and 35 § 1 of the Convention, only if it is capable of covering all stages of the proceedings complained of and thus, in the same way as a decision given by the Court, of taking into account their overall length (see, for example, Počuča v. Croatia, no. 38550/02, § 35, 29 June 2006, with further references).\n\n50.  Furthermore, remedies available to a litigant at domestic level for raising a complaint about the length of proceedings are “effective” within the meaning of Article 13 of the Convention if they prevent the alleged violation or its continuation, or provide adequate redress for any violation that has already occurred. A remedy is therefore effective if it can be used either to expedite a decision by the courts dealing with the case, or to provide the litigant with adequate redress for delays that have already occurred (see Mifsud v. France (dec.) [GC], no. 57220/00, § 17, ECHR 2002-VIII). While a preventive measure is preferable, if a lengthofproceedings violation has already occurred, a remedy designed only to expedite the proceedings may not be adequate, and compensation or another form of redress may be called for (see Cocchiarella v. Italy [GC], no. 64886/01, §§ 74-77, ECHR 2006V).\n\n51.  The Court notes that the proceedings the length of which is under review in the present case concerned a restitution claim pursued by the applicants. Such claims are primarily conducted before an administrative authority, which may, as in the present case, be followed by proceedings before an administrative tribunal. As established by the Constitutional Court in its decision of 21 January 2015 (see paragraph 13 above), there is no single remedy in Slovakia with regard to the length of proceedings conducted in such a regime, the remedial mechanism available consisting of several components.\n\n52.  In particular, as regards the phase of the proceedings before the administrative tribunals, the single remedy to be used remains a complaint under Article 127 of the Constitution. On the specific facts of the present case, the Constitutional Court did indeed review the length of that phase of the proceedings, albeit specifically excluding from its examination the other phase of the proceedings, which had taken place before the Land Office. It did so despite the fact that the formulation and construction of the applicants’ constitutional complaint enabled it to examine the length of the proceedings before the Land Office and the Regional Court as a whole (see Šidlová v. Slovakia, no. 50224/99, § 53, 26 September 2006).\n\n53.  As to the administrative phase of the proceedings, the position taken by the Constitutional Court was that the applicants should have sought acceleration of those proceedings by way of an action under Article 250t § 1 of the CCP and that as administrative tribunals had jurisdiction in that matter, it fell outside the jurisdiction of the Constitutional Court.\n\n54.  The Court observes that an action under Article 250t § 1 of the CCP has no compensatory potential and that, as the Government themselves have argued in reliance on a judgment of the Bratislava Regional Court of 12 November 2013 (see paragraphs 27 and 37 above), a finding of unjustified delays in the underlying administrative proceedings by an administrative tribunal in response to such an action may serve as a basis for a claim for damages under the State Liability Act against the administrative authority responsible for those delays.\n\n55.  However, at the same time, the Court notes that in the very judgment relied on by the Government, the Bratislava Regional Court endorsed the view that there was no room under the State Liability Act for a claim for compensation in respect of non-pecuniary damage allegedly caused by the excessive length of the underlying administrative proceedings, because it was still open to the administrative authority being sued for damages before the Regional Court to grant the claim that the plaintiff was pursuing in those administrative proceedings. The Court considers that in such circumstances it cannot be said that a compensatory remedy existed in respect of length of the proceedings.\n\n56.  Furthermore, the Court finds it noteworthy that, although the applicants in the present case had made no use of the remedy under the State Liability Act prior to lodging a constitutional complaint, in its decision of 21 January 2015 the Constitutional Court did not reproach them for failing to exhaust remedies on that account, as required under section 53 of the Constitutional Court Act. Similarly, there is no explanation of the relationship between the remedy under the State Liability Act and a complaint under Article 127 of the Constitution in the statement of the Vice-President of the Constitutional Court (see paragraph 17 above). It thus remains the case that the functional relationship between the remedy under the State Liability Act and that under Article 127 of the Constitution is equivocal (see, mutatis mutandis, Horváth v. Slovakia, no. 5515/09, §§ 74 and 75, 27 November 2012).\n\n57.  The relationship between the various components of the remedial mechanism in relation to a lengthy administrative phase of the proceedings was thus in part unclear. The Court considers that such a cumulation of remedies, which by extension leads to multiplication of judicial proceedings, by its nature, raises general doubts about its overall effectiveness.\n\n58.  The Court also finds that these doubts are amplified by the fact that the division of the examination of the length of proceedings into their administrative and judicial segments is as such at odds with the Court’s approach to examining the overall length of the proceedings (see Bako v. Slovakia (dec.), no. 60227/00, 15 March 2005). In this context, the Court would emphasise the specific nature of the problem of lengthy proceedings, in that it does not consist of a series of static events but rather of one progressively developing occurrence, the gravity of which progressively increases over time.\n\n59.  Furthermore, the Court notes that although the remedies under Article 250t of the CCP and the State Liability Act have now been a part of the Slovakian legal order for quite some time, they appear to have been scarcely used in practice, making it difficult to demonstrate their actual effectiveness.\n\n60.  On the contrary, the known examples (see paragraphs 22 et seq. above) appear rather to suggest that even repeated recourse to an action under Article 250t of the CCP produces no real acceleration of administrative proceedings, or that the proceedings in such an action may themselves take a considerable time (see paragraph 28 above).\n\n61.  By the same token, as has already been noted above, the known example of the use of the remedy under the State Liability Act in a situation similar to that of the present case rather demonstrates the limits of its effectiveness.\n\n62.  At this juncture, the Court observes that the Government have not identified any other examples of the use of those remedies to show how they function and, more importantly, to demonstrate their effectiveness (see, a contrario, Pallanich v. Austria, no. 30160/96, § 30, 30 January 2001).\n\n63.  In view of these considerations, and to the extent that the Government’s argument has been substantiated, the Court finds the sum of remedies proposed by them in relation to the length of the administrative phase of the proceedings ineffective for the purposes of Article 13 of the Convention.\n\n64.  In its decision in Csepyová (cited above) the Court accepted an action for acceleration of administrative proceedings under Part 5 of the CCP as an effective remedy for the purposes of Article 35 § 1 of the Convention. The Court notes, however, that the situation assessed in the present case is different from that in Csepyová in two respects. First, in the present case the proceedings brought by the applicants comprised not only an administrative phase, but also a judicial phase. Consequently, the Court’s assessment of the effectiveness of that remedy and others in the present case is made with reference to such two-tier proceedings as a whole. Secondly, unlike in Csepyová, in the present case the absence of established practice demonstrating the effectiveness of an action under Article 250t of the CCP despite its longterm existence, combined with examples of its failure, cannot but be seen as indicative of its actual ineffectiveness.\n\n65.  As to the Government’s argument comparing the present case to that of Ištván and Ištvánová (cited above), the Court notes first of all that in that case it did not examine whether a complaint under the Courts Act was an effective remedy within the meaning of Article 35 § 1 of the Convention as such. Its examination focused rather on the overall effectiveness of the combination of remedies available to Mr Ištván and Ms Ištvánová and on whether they had complied with the exhaustion requirement under Article 35 § 1 of the Convention in view of how they had made use of those remedies. The central theme of that assessment was that the availability of redress under Article 127 of the Constitution for Mr Ištván and Ms Ištvánová had been dependent on their making a complaint under the Courts Act (see in particular paragraphs 77, 84, 85 and 91 of that judgment).\n\n66.  The situation in the present case is, however, structurally different, in that the Constitutional Court denied the applicants a remedy under Article 127 of the Constitution in relation to the administrative phase of the proceedings, holding that they should bring an action under Article 250t of the CCP, and refused to view the proceedings as a whole, which is combined with the Government’s argument that the applicants had at their disposal an action under the State Liability Act.\n\nThe problem is accordingly two-fold. As has been established above, the remedies under Article 250t of the CCP and the State Liability Act in relation to the administrative phase of the proceedings are inefficient. In addition, the length of the proceedings has never been examined as a whole.\n\n67.  The Court concludes that the applicants have not had at their disposal an effective remedy in relation to their length-of-proceedings complaint.\n\nThere has accordingly been a violation of Article 13, in conjunction with Article 6 § 1 of the Convention, and the Government’s non-exhaustion objection in relation to the applicants’ complaint under the latter provision must be dismissed.\n\n2.  Article 6 § 1 of the Convention\n\n68.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities, and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).\n\n69.  The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above).\n\n70.  Having examined all the material submitted to it, the Court notes that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, and despite the procedural complexity of the present case which is due to the number of restitution claimants, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.\n\nThere has accordingly been a breach of Article 6 § 1 on that account.\n\nIII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n71.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n72.  The applicants jointly claimed 871,510 euros (EUR) in respect of pecuniary damage, this amount representing their estimate of the value of the land and buildings that were at stake for them at the domestic level. In addition, they claimed EUR 30,000 each in respect of non-pecuniary damage.\n\n73.  The Government contested the former claim as having no causal connection to the alleged violations and the latter as being excessive.\n\n74.  The Court does not discern any causal link between the violations found and the pecuniary damage alleged; it therefore rejects this claim.\n\nOn the other hand, it awards each of the applicants, whose application has not been struck out of the Court’s list (see paragraph 33 above), EUR 6,200, plus any tax that may be chargeable, in respect of nonpecuniary damage, payable in accordance with the domestic inheritance procedures. If more than one person continues the application instead of a late applicant, this amount is to be paid to them jointly.\n\nB.  Costs and expenses\n\n75.  The applicants also made a claim in respect of legal costs. While they were unable to specify the amount of their claim in relation to the period prior to 2014, when their current legal representative took over the case, they left that part of their claim to the Court’s discretion. As to the period from 2014, they jointly claimed EUR 276,191.77. This amount was calculated on the basis of the number of “acts of legal assistance” rendered and the value of such an “act” established under the calculation formula applicable at national level, taking into account what they considered to be the value of what was at stake for them at the domestic level.\n\n76.  The Government objected that the claim was unsupported by any evidence.\n\n77.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see, for example, Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI). Furthermore, Rule 60 § 2 of the Rules of Court provides that itemised particulars of any claim made under Article 41 of the Convention must be submitted, together with the relevant supporting documents or vouchers, failing which the Court may reject the claim in whole or in part.\n\n78.  In the instant case, the Court observes that the applicants have not substantiated their claim by any relevant supporting documents establishing that they were under an obligation to pay for the cost of legal services or have actually paid for them. Accordingly, the Court decides not to award any sum under this head (see Ištván and Ištvánová, cited above, § 122).\n\nC.  Default interest\n\n79.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT\n\n1.  Decides, unanimously, to strike the application out of its list of cases in so far as brought by the applicant Ms Terézia Csenteová;\n\n2.  Holds, unanimously, that (i) Mr Pavol Kóša, (ii) Ms Emília Nagyová and Mr Imrich Molnár, (iii) Ms Jolana Olléová, Ms Klára Lőrincz, Ms Marta Vargová and Mr Róbert Ollé, (iv) Ms Alžbeta Szabóová and Mr Koloman Szabó, (v) Mr Anton Szépe, (vi) Mr Peter Tánczos and Ms Annamária Hencz, and (vii) Ms Teréz Vermes and Messrs István Vermes and Vilmos Vermes have standing to continue the present proceedings instead of, respectively, (i) Ms Juliana Kósová, (ii) Mr Ladislav Molnár, (iii) Mr Imrich Ollé, (iv) Mr Koloman Szabó, (v) Mr Koloman Szépe, (vi) Ms Mária Tánczosová, and (vii) Ms Margita Vermesová;\n\n3.  Joins, unanimously, to the merits of the complaint under Article 13 of the Convention the Government’s non-exhaustion objection in relation to the complaint under Article 6 § 1 of the Convention and rejects it;\n\n4.  Declares, unanimously, the application admissible;\n\n5.  Holds, unanimously, that there has been a violation of Article 13, in conjunction with Article 6 § 1 of the Convention;\n\n6.  Holds, unanimously, that there has been a violation of Article 6 § 1 of the Convention;\n\n7.  Holds, by four votes to three,\n\n(a)  that the respondent State is to pay each of the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 6,200 (six thousand two hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;\n\n(b)  that from the expiry of the above-mentioned three months until settlement, simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;\n\n8.  Dismisses, unanimously, the remainder of the applicants’ claim for just satisfaction.\n\nDone in English, and notified in writing on 31 August 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.\n\nIn accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Jäderblom, Lubarda and Poláčková is annexed to this judgment.\n\nTo our regret, we have been unable to vote with the majority on the question of the amount of the just satisfaction awarded in respect of nonpecuniary damage in this case and in the case of Engelhard v. Slovakia (no. 12085/16).\n\nBoth cases are essentially the same in that they involve an aspect that is purely individual (the length of the applicants’ proceedings from the point of view of Article 6 § 1 of the Convention) and an aspect that has additional systemic features (the lack of an effective remedy from the point of view of Article 13 of the Convention).\n\nUnder Article 41 of the Convention, subject to other conditions, the Court affords just satisfaction to the injured party “if necessary”.\n\nIn our opinion, the systemic aspect of both cases is sufficiently addressed by the finding of a violation. We therefore consider the amount awarded in just satisfaction unnecessarily high, both in absolute and relative terms.\n\nList of applicants\n\n1.  Mr Zoltán Balogh was born in 1961 and lives in Kolárovo\n\n2.  Ms Mária Bezúrová was born in 1940 and lives in Kolárovo\n\n3.  Ms Terézia Csenteová was born in 1921, died in 2016, and lived in Kolárovo\n\n4.  Ms Cecília Csontosová was born in 1943 and lives in Kolárovo\n\n5.  Ms Mária Csontosová was born in 1938 and lives in Kolárovo\n\n6.  Ms Edita Donková was born in 1958 and lives in Kolárovo\n\n7.  Ms Katarína Erdélyiová was born in 1944 and lives in Komárno\n\n8.  Mr Ján Fekete was born in 1942 and lives in Kolárovo\n\n9.  Mr Jozef Fekete was born in 1958 and lives in Kolárovo\n\n10.  Mr Imrich Fekete was born in 1946 and lives in Zemné\n\n11.  Ms Magdaléna Feketeová was born in 1960 and lives in Kolárovo\n\n12.  Ms Edita Fördősová was born in 1959 and lives in Kolárovo\n\n13.  Mr Štefan Gőgh was born in 1933 and lives in Kolárovo\n\n14.  Mr Vojtech Gőgh was born in 1944 and lives in Kolárovo\n\n15.  Ms Margita Hegyiová was born in 1933 and lives in Kolárovo\n\n16.  Mr Alexander Horváth was born in 1947 and lives in Kolárovo\n\n17.  Ms Terézia Horváthová was born in 1937 and lives in Kolárovo\n\n18.  Ms Serena Jirková was born in 1931and lives in Hurbanovo\n\n19.  Ms Alžbeta Kériová was born in 1949 and lives in Kolárovo\n\n20.  Ms Irena Kissová was born in 1942 and lives in Komoča\n\n21.  Ms Juliana Kósová was born in 1933, died in 2016, and lived in Kolárovo\n\n22.  Ms Mária Mészárosová was born in 1948 and lives in Kolárovo\n\n23.  Mr Ladislav Molnár was born in 1932, died in 2017, and lived in Kolárovo\n\n24.  Ms Mária Molnárová was born in 1940 and lives in Kolárovo\n\n25.  Ms Helena Morovičová was born in 1951 and lives in Kolárovo\n\n26.  Mr Alexander Nagy was born in 1958 and lives in Kolárovo\n\n27.  Ms Terézia Nagyová was born in 1939 and lives in Kolárovo\n\n28.  Mr Imrich Ollé was born in 1941, died in 2018, and lived in Kolárovo\n\n29.  Mr Imrich Őszi was born in 1928 and lives in Kolárovo\n\n30.  Ms Margita Švajdová was born in 1951 and lives in Nové Zámky\n\n31.  Mr Koloman Szabó was born in 1941, died in 2017, and lived in Kolárovo\n\n32.  Ms Alžbeta Szabóová was born in 1940 and lives in Kolárovo\n\n33.  Ms Magdaléna Szabóová was born in 1959 and lives in Kolárovo\n\n34.  Ms Margita Szabóová was born in 1939 and lives in Kolárovo\n\n35.  Mr František Szépe was born in 1952 and lives in Kolárovo\n\n36.  Mr Koloman Szépe was born in 1958, died in 2016, and lived in Kolárovo\n\n37.  Mr Ladislav Szépe was born in 1953 and lives in Kolárovo\n\n38.  Mr Peter Tánczos was born in 1955 and lives in Kolárovo\n\n39.  Mr Tibor Tánczos was born in 1953 and lives in Kolárovo\n\n40.  Ms Katarína Tánczosová was born in 1958 and lives in Kolárovo\n\n41.  Ms Mária Tánczosová was born in 1935, died in 2018, and lived in Kolárovo\n\n42.  Ms Terézia Tánczosová was born in 1930 and lives in Kolárovo\n\n43.  Mr Jozef Telekes was born in 1980 and lives in Kolárovo\n\n44.  Ms Alžbeta Telekesová was born in 1974 and lives in Kolárovo\n\n45.  Ms Zuzana Telekesová was born in 1977 and lives in Kolárovo\n\n46.  Mr Ján Tóth was born in 1948 and lives in Kolárovo\n\n47.  Ms Rozália Tóthová was born in 1954 and lives in Kolárovo\n\n48.  Mr Alexander Varga was born in 1953 and lives in Kolárovo\n\n49.  Ms Margita Vermesová was born in 1937, died in 2018, and lived in Zemianska Olča\n\n50.  Mr Arpád Nagy was born in 1967and lives in Kolárovo\n\n51.  Ms Alžbeta Forróová was born in 1962 and lives in Kolárovo\n\n51.  Ms Alžbeta Forróová was born in 1962 and lives in Kolárovo","title":""}
{"_id":"passage_668","text":"INTRODUCTION\n\n1.  The application concerned the applicant’s conviction under section 114j of the Penal Code, read with Executive Order no. 1200 of 28 September 2016 Prohibiting the Entry into or Stay in Certain Conflict Zones (hereinafter “the Executive Order” or “the 2016 Executive Order”), for having entered and taken up residence in the al-Raqqa district in the Raqqa province of Syria without permission from the police and without any legitimate purpose. The applicant was sentenced to imprisonment for six months.\n\n2.  While in Syria, he had engaged in armed combat against the terrorist organisation Islamic State (“IS”) for the Kurdish People’s Defence Units movement (“the YPG”) on several occasions.\n\n3.  Before the Court the applicant complained that his conviction and sentence had been in breach of Article 7 of the Convention and of Article 2 of Protocol No. 4 to the Convention.\n\nTHE FACTS\n\n4.  The applicant was born in 1978 and lives in Aarhus. He had been granted legal aid. He was represented by Mr Bjørn Elmquist, a lawyer practising in Copenhagen.\n\n5.  The Government were represented by their Agent, Mr Michael Braad, from the Ministry of Foreign Affairs, and their coAgent, Ms Nina HolstChristensen, from the Ministry of Justice.\n\n6.  The facts of the case may be summarised as follows.\n\n7.  In March 2017 the applicant gave various interviews to an online newspaper and other media, stating amongst other things that he had been on the front line in the village of Tal Saman about 30 km north of Raqqa one morning in early January 2017. Believing that the village was the same as Tal Elsamen, which is located in the al-Raqqa District in the Raqqa Province of Syria, the police initiated an investigation in respect of the applicant.\n\n.  On 1 February 2019 the applicant was charged with breaching section 114j(1), read with section 114j(3), of the Penal Code and section 1(1)(i) of Executive Order No. 1200 of 28 September 2016 Prohibiting the Entry into and Stay in Certain Conflict Zones (hereinafter “the Executive Order” or “the 2016 Executive Order”), in that during the period from about 3 November 2016 to about 17 March 2017 he had stayed in the town of Ayn Issa (also spelled Ein Issa) in Syria without permission from the police or a meritorious purpose. He was accused of travelling on up to twenty-five occasions from that location to the al-Raqqa District in the Raqqa Province and staying there, including around the village of Tal Elsamen, and of taking part in the armed conflict against IS on several occasions, on the side of the YPG.\n\n.  Before the District Court (Retten i Aarhus) the applicant pleaded not guilty. He stated that he had left Denmark on 22 August 2016 and had entered Syria on 30 September 2016. He had left Iraq on 7 April 2017 and had entered Denmark again on 8 April 2017. The purpose of his journey was to support the revolution as he had considered the Kurdish area to be an autonomous zone. He had established contact with the YPG, which had helped him reach Syria, where he had wanted to take part in battles fought by the YPG. On his arrival in Syria, he had been taken to a training camp, where he had been given classes and training in matters such as handling weapons. At his own request, he had become part of a unit with heavy weapons. The unit had been stationed in the town of Ayn Issa, the front line being one or two kilometres outside the town. Two days after his arrival, an operation had been launched against Raqqa, and the front line had moved towards Raqqa. The applicant had followed the front line and had taken a few detours back to Ayn Issa. The applicant stated that he could easily have passed through the district border twenty-five times. He had been shot at seven or eight times during his stay, and on one single occasion he had returned fire. The applicant also stated that he had not been aware of the existence of section 114j of the Penal Code. The thought that his actions might be criminal had occurred to him, but he had not examined it any further, and moreover it had not had any impact on his decision.\n\n.  On 4 June 2018 the District Court found the applicant guilty as charged and sentenced him to six months’ imprisonment.\n\n.  On appeal to the High Court (Vestre Landsret), the applicant testified in addition that he had taken a photograph of a map drawn on a wall by the leader of the applicant’s combat unit as an attempt to explain where they were in Tal Elsamen, in comparison to where IS was.\n\n.  On 12 November 2018 the High Court upheld the District Court judgment. The High Court found it established that the applicant had intentionally entered and remained in the prohibited zone of the al-Raqqa District in the Raqqa Province of Syria without permission from the police and without any legitimate purpose. The Executive Order included a map, and since it was apparent from both the name of the area and the map which areas were off limits in terms of entry and stay, the High Court found that the prohibition was sufficiently clearly described. The High Court also found that the restriction on the applicant’s freedom of movement did not constitute a violation of his rights under Article 2 of Protocol No. 4 to the Convention.\n\n.  Having obtained leave to appeal, the applicant brought the case before the Supreme Court (Højesteret), where the issues to be determined were whether the acts were punishable under section 114j of the Penal Code; whether the prohibition in section 114j was described in a manner that was sufficiently clear for him to be sentenced and was in compliance with Article 7 of the Convention; whether his conviction was contrary to Article 2 of Protocol No. 4 to the Convention; and whether he should be acquitted because permission was no longer required to enter or stay in the area in question. It was not disputed that the applicant’s acts were subject to Danish criminal jurisdiction.\n\n.  By a judgment of 27 August 2019, the Supreme Court found against the applicant. It was satisfied that the applicant’s entry into and stay in the al-Raqqa District fell within the scope of the wording of section 114j(1), read with section 114j(3), of the Penal Code, read with section 1(1)(i) of the Executive Order. Situations like the one at hand, where the relevant person had fought against a terrorist organisation, also fell within the scope of the provisions in question. That finding followed from the wording of and the preparatory notes on section 114j of the Penal Code, including the meritorious purposes set out under section 114j(4).\n\n.  The Supreme Court considered that the applicant’s conviction did not contravene Article 7 of the Convention since the provisions were accessible and foreseeable and section 1(1)(i) of the Executive Order set out clearly that it was unlawful to enter and stay in the al-Raqqa District without permission.\n\n.  Moreover, in respect of Article 2 of Protocol No. 4 to the Convention, the Supreme Court found that the scheme set out in section 114j of the Penal Code was justified by significant considerations of general importance, that is, national security, public safety and the prevention of crime, and that the prohibition on entry into and stay in the al-Raqqa District did not go beyond what was necessary to achieve the intended aim. The Supreme Court emphasised the area was of limited size, and that it would have been possible for the applicant to obtain permission to travel to and stay in the area if his visit had served a meritorious purpose under section 114j(4) of the Penal Code.\n\n.  The Supreme Court considered whether the applicant could be acquitted by virtue of section 3(1) of the Penal Code because the requirement for permission to enter or stay in the al-Raqqa District had subsequently been repealed by Executive Order no. 708 of 6 July 2019 (“the 2019 Executive Order”). The Supreme Court observed in this context that the new statutory regulation had not revised the scope of the sanctions set out in section 114j of the Penal Code, and that the 2019 Executive Order did not redefine the culpability of persons who breached the prohibition on entry into and stay in the prohibited zones listed in the 2016 Executive Order without permission. On that basis, and with reference to an information letter of 8 July 2019 from the Minister of Justice to the Danish Parliament (Folketinget) and to a press release issued on 26 April 2019, the Supreme Court found that the repeal of the 2016 Executive Order was attributable to extrinsic circumstances resulting from specific changes in the situation in Syria. Those changes had occurred after the time of the offence and were therefore irrelevant to the issue of guilt, and the applicant’s actions had to be adjudicated on the basis of the criminal law applicable at the time of the offence, in accordance with the second sentence of section 3(1) of the Penal Code.\n\n.  The Supreme Court had regard to the case-law of the Court and observed in that connection that neither Article 7 of the Convention nor the third sentence of Article 49 § 1 of the Charter of Fundamental Rights of the European Union, were the Charter to apply to the case (see Article 51 § 1), could be deemed to prevent the punishment of the applicant for breaching section 114j of the Penal Code.\n\n.  The Supreme Court upheld the applicant’s sentence of six months’ imprisonment and refused to consider it a mitigating circumstance that the applicant had taken part in the armed conflict against IS during his stays in the al-Raqqa District. Moreover, it found that punishment of the applicant would not be contrary to Article 7 of Convention\n\n.  A minority of two judges found that the applicant should be given a suspended sentence of imprisonment for a term of three months. They found that it could be inferred from the preparatory notes that the insertion of section 114j in the Penal Code did not serve the independent purpose of introducing sanctions for participating in armed conflicts in zones subject to a prohibition on entry and stay when such participation involved activities against a terrorist organisation, but that the provision was necessary for evidential reasons for the purpose of combating terrorism. The minority referred to the fact that the applicant had only been sentenced for breaching the prohibition on entry into and stay in the al-Raqqa District, where he had taken part in the YPG’s armed conflict against IS, and that according to the information available, the YPG, which was not a terrorist organisation, played a crucial role in the military efforts to combat IS.\n\nRELEVANT LEGAL FRAMEWORK AND PRACTICE\n\nThe Penal Code\n\n21.  The relevant provisions of the Penal Code, as applicable at the time of the offence, read as follows:\n\nSection 3\n\n“(1) If the criminal legislation in force at the time of the adjudication of a criminal act differs from the legislation in force when the act was committed, the issues of criminality and penalty must be decided under the most recent statute, provided always that the decision may not result in a more severe sentence than the sentence imposable under the former statute. If the statute no longer applies on account of extrinsic circumstances irrelevant to the issue of guilt, the criminal act must be adjudicated under the former statute.”\n\nSection 114e\n\n“Imprisonment for a term not exceeding six years shall be imposed on any person who otherwise facilitates the activities of a person, a group or an association committing or intending to commit an act falling within section 114, 114a, 114b, 114c or 114d [those provisions criminalise terrorism (section 114), offences considered terrorist acts under the Council of Europe Convention on the Prevention of Terrorism which do not already fall within section 114 (section 114a), the financing of terrorism (section 114b), recruitment for terrorism (section 114c) and instruction in terrorism (section 114d)]. If the relevant person is a member of the armed forces, the sentence may be increased to imprisonment for a term not exceeding ten years, or in particularly aggravating circumstances to imprisonment for a term not exceeding sixteen years. Situations in which the relevant person has participated in combat shall be considered particularly aggravating circumstances.”\n\nSection 114j\n\n“(1) Any person who is a Danish national or habitually resident within the Danish State and who enters or stays in an area as referred to in subsection (3) without permission shall be liable to imprisonment for a term not exceeding six years, but see subsection (2).\n\n(2) Subsection (1) shall not apply to any entry and stay for the purpose of exercising a public function or office with a Danish, foreign or international organisation.\n\n(3) Following negotiation with the Minister for Foreign Affairs and the Minister of Defence, the Minister of Justice may lay down rules determining that an area in which a group or an association as referred to in section 114e is a party to an armed conflict will fall within subsection (1). By a parliamentary resolution, Parliament may repeal rules laid down by the Minister of Justice under the first sentence of this subsection.\n\n(4) The Minister of Justice or the person so authorised by the Minister may permit a person, upon application, to enter or stay in an area as referred to in subsection (1) if the entry or stay serves a meritorious purpose. A permission can comprise a group of persons involved in a particular activity or organisation, etc.\n\n(5) The Minister of Justice may lay down detailed rules on the submission of applications under subsection (4), including the time-limit for applications. The Minister of Justice may specify in that connection that decisions made pursuant to subsection (4) cannot be brought before a higher administrative authority.”\n\n.  Section 114j was inserted into the Penal Code by Act no. 642 of 8 June 2016. The following appears from the general notes on the Bill (see Bill no. L 187 of 4 May 2016 as promulgated on page 2 of Supplement A to the Official Report on Parliamentary Proceedings (Folketingstidende) for 201516 on Bill no. 187 as introduced):\n\n“1. Introduction\n\nThe purpose of the Bill is mainly to strengthen the safeguards of the criminal law for preventing participation in armed conflicts abroad for terrorist groups by the introduction of more severe sentences and a new power to prohibit the entry into and stay in certain conflict zones without prior permission. Moreover, it is proposed to insert a new criminal law provision on the receipt of financial support from a terrorist organisation.\n\nIt is the assessment of the Danish Security and Intelligence Service (Politiets Efterretningstjeneste) that persons returning to Denmark after having participated in combat operations in Syria and Iraq constitute a particular terrorist threat to Denmark. The Government therefore wants to tighten its control of foreign fighters who consider leaving Denmark to join armed conflicts like those in Syria and Iraq. The general purpose of the Bill is to increase the consequences for those going abroad and to strengthen the powers of the authorities to prosecute returning foreign fighters.\n\nThe Bill contains the following three main elements:\n\n...\n\nSecondly, it is proposed to introduce a power to impose, by an administrative decision, a ban prohibiting Danish nationals and foreigners resident in Denmark from entering and staying in an area in which a terrorist organisation is a party to an armed conflict unless they have permission from the Danish authorities. However, it is proposed that a person exercising a public function or office with a Danish, foreign or international organisation will be able to enter and stay in such area without prior permission. Any entry and stay for other purposes will require prior permission, which can be given upon application if the entry or stay serves a meritorious purpose. There will be a power to grant individual permission to particular persons and collective permission to a group of persons defined by their affiliation with a particular enterprise, organisation or the like. It is proposed that breaches of such prohibitions on entry and stay will be punishable by a fine or imprisonment for a term not exceeding six years.\n\nThe purpose of this proposal is to make it easier to punish individuals who enter or stay in a conflict zone to take part in an armed conflict, siding with a terrorist organisation or a similar party. As is the case today, it will not be necessary to prove that the relevant persons have violated the Penal Code provisions on terrorism or the provision on treason by enrolling with hostile armed forces. It will be sufficient that it can be proved that the relevant person entered or stayed in the designated zone without permission.”\n\n.  The following appears in the specific notes on section 114j of the Penal Code (see pages 23 et seq. of Supplement A to the Official Report on Parliamentary Proceedings for 2015-16 on Bill no. 187 as introduced):\n\n“... It is proposed that the minimum and maximum penalties for breaching the prohibition on entry and stay will be a fine or imprisonment for a term not exceeding six years.\n\nIt will be a breach of the prohibition whenever a person enters or stays without permission for a main purpose other than that specified in the permission or after expiry of the permission.\n\nOnly intentional violations of the prohibition are punishable offences: see section 19 of the Penal Code. However, ignorance of the criminal law provision does not preclude intent. For this reason, no intent is required to be found guilty of entering and staying in a zone subject to the requirement of prior permission. On the other hand, intent is required to be found guilty of entering or staying in a zone that has been so designated. No one can therefore be sentenced for unintentionally entering or staying in the zone. ...\n\nThe sanction for breaching the prohibition on entry and stay would normally be a short prison sentence measured in months where it was a first offence. If there were mitigating circumstances, including when a person presented proof of a meritorious purpose for his or her entry or stay, it would normally be possible to impose a sanction in the form of a fine.\n\nSentences are still to be determined by the courts based on a specific assessment in the individual case taking into account all circumstances of the case, and the level of the individual sanction can therefore be increased or decreased if there are aggravating or mitigating circumstances: see in this respect the general rules in Part 10 of the Penal Code on sentencing.\n\nIt is proposed by subsection (2) that no prohibition on entry and stay as mentioned in subsection (1) will apply to entry or stay for the purpose of exercising a public function or office with a Danish, foreign or international organisation. This exemption also extends to any entry and stay while serving in Danish or foreign governmental armed forces or in international armed forces.\n\nThe situations mentioned in subsection (2) fall entirely outside the scope of the prohibition on entry and stay mentioned in subsection (1). Accordingly, no permission is required in order to enter and stay for the purpose of exercising a public function or office.\n\nA prohibition on entry and stay under subsection (1) applies to the zones listed in subsection (3).\n\nAccording to the proposed wording of subsection (3), the Minister of Justice has the authority, following negotiation with the Minister of Foreign Affairs and the Minister of Defence, to lay down by executive order the zones that will be subject to a prohibition on entry and stay under subsection (1). The provision is to be understood in the sense that it is only possible to prohibit entry into and stay in zones outside the territory of the Danish State.\n\nAn area can be included in the list of zones subject to the prohibition on entry and stay if a group or an association committing or intending to commit acts falling within section 114, 114a, 114b, 114c or 114d is a party to an armed conflict in the designated zone. The references to an armed conflict and a party to an armed conflict must be understood in accordance with international humanitarian law.\n\nWhere this condition has been met, the Government has wide discretionary powers to determine which zones are to be subject to a prohibition on entry and stay under the proposed subsection (1). When such a decision is made, regard must be had to security and to foreign and security policy, including relations with foreign powers and international institutions.\n\nThe Government is not obliged to determine that an area in which the relevant condition has been met must be subject to a prohibition on entry and stay.\n\n...\n\nIt is proposed by the first sentence of subsection (4) that the Minister of Justice or the person so authorised by the Minister must permit a person, upon application, to enter and stay in an area subject to a prohibition under subsection (1) if the entry or stay serves a meritorious purpose.\n\n...\n\nMeritorious purposes are generally to be taken to mean purposes which are not related to the armed conflict and which are deemed to be reasonable activities despite the ongoing armed conflict. Any entry and stay to perform journalistic activities, offer humanitarian aid, visit close family members or pursue existing business activities would normally serve meritorious purposes.\n\nAny entry and stay to perform journalistic activities or offer humanitarian aid would normally also serve a meritorious purpose even when the journalistic activities or humanitarian aid are related to the armed conflict. The same applies to any entry and stay for the purposes of studies or research related to the armed conflict.\n\nNo entry and stay to undertake business activities relating to supplies to the warring parties or to visit a family member currently participating in the armed conflict would serve a meritorious purpose. However, entry and stay to visit a family member who has previously taken part or is expected subsequently to take in the armed conflict, but is not currently participating in the armed conflict, would serve a meritorious purpose, regardless of whether the family member is on leave or the like or has been hospitalised due to injuries.\n\nNo entry and stay to take part in the armed conflict or to support either party to the armed conflict would serve a meritorious purpose under subsection (4).”\n\n.  As regards compatibility with human rights, the following appears in the Bill (see pages 16 et seq. of Supplement A to the Official Report on Parliamentary Proceedings for 2015-16 on Bill No. 187 as introduced):\n\n“6. Compatibility with human rights\n\nDepending on the circumstances, the scheme proposed in section 114j, under which any Danish national or person habitually resident in Denmark who enters or stays without permission in certain zones defined by the Minister of Justice can be punished with imprisonment for a term not exceeding six years, may interfere with rights guaranteed by the Convention.\n\nThe main rights at stake are those granted by Article 2 of Protocol No. 4 to the Convention on the liberty of movement and freedom to choose one’s residence, Article 8 of the Convention on the right to respect for private and family life and Article 10 of the Convention on the freedom of expression.\n\nIf discretionary powers have been granted to the authorities by the legislation of a State party, whether in full or in part, the European Court of Human Rights would normally not perform an abstract review of whether the legislation complies with the Convention. The decisive factor is how the legislation is applied in practice.\n\nIt follows from Article 2 of Protocol No. 4 to the Convention that everyone lawfully resident within the territory of a State has, within that territory, the right to liberty of movement and freedom to choose his residence and that everyone is free to leave any country, including his own. It follows from the case-law of the European Court of Human Rights that the provision also creates a right to go to a country of one’s own choice provided that one is allowed entry, see, inter alia, judgment of 20 February 1995, Peltonen v. Finland.\n\n...\n\nHowever, the protection afforded by those provisions is not absolute. It is possible to interfere with the above-mentioned rights if the interference is prescribed by law and is necessary in a democratic society (that is, the interference meets the requirement of proportionality) and serves a specific meritorious purpose, including national security, public safety and the prevention of crime: see Article 2 § 3 of Protocol No. 4 to the Convention and Article 8 § 2 and Article 10 § 2 of the Convention.\n\nThe proposed scheme prohibiting such entry and stay is inserted into the Penal Code, and, as mentioned in clause 1 above, the purpose of the scheme is to strengthen the safeguards of the criminal law for preventing individuals from taking part in armed conflicts abroad, by increasing the consequences for those going abroad and strengthening the powers of the authorities to prosecute returning foreign fighters. The proposed prohibition on entry and stay is thus intended to make it easier to punish individuals who enter or stay in a conflict zone in order to take part in an armed conflict, siding with a terrorist organisation or a similar party, as it will be sufficient to prove that the relevant person entered or stayed in a designated zone without permission.\n\nAs to the background to the scheme, it appears from clause 1 above that it is the assessment of the Danish Security and Intelligence Service that persons returning to Denmark after having participated in combat operations in Syria or Iraq constitute a particular terrorist threat to Denmark. The Government therefore wants to tighten its control of foreign fighters who consider leaving Denmark to join armed conflicts like the ones in Syria and Iraq.\n\nThe Minister of Justice has the authority, following negotiation with the Minister of Foreign Affairs and the Minister of Defence, to lay down rules determining which zones will be subject to such prohibitions on entry and stay.\n\nAn area can be designated as a conflict zone subject to the prohibition of entry and stay if a group or association committing or intending to commit acts falling within section 114, 114a, 114b, 114c or 114d of the Penal Code is a party to an armed conflict in the designated zone. The proposed provision thus restricts what areas can be designated as zones subject to the prohibition of entry and stay.\n\nWhen the above condition has been met, the Government has wide discretionary powers to determine the zones subject to such prohibition. In this connection, security issues, relations with foreign powers and international institutions and similar factors may be taken into account.\n\nProhibited zones will be listed in an executive order, which makes information on the geographical scope of the prohibition on entry and stay available to each individual citizen.\n\nAny decision allowing a person to enter and stay in a zone subject to the prohibition of entry and stay is made based on an individual and specific assessment.\n\n...\n\nPermission must be granted if the entry or stay serves a meritorious purpose. According to the explanatory notes to the Bill, meritorious purposes are generally to be taken to mean purposes which are not related to the armed conflict and which are deemed to be reasonable activities despite the ongoing armed conflict. Any entry and stay to perform journalistic activities, offer humanitarian aid, visit close family members or pursue existing business activities would normally constitute meritorious purposes. It also appears that journalistic or humanitarian activities and studies or research related to the armed conflict would constitute meritorious purposes.\n\nIt should be pointed out that the proposed provision explicitly states that the prohibition on entry and stay does not apply to entry and stay for the purpose of exercising a public function or office with a Danish, foreign or international organisation. Therefore, it is not necessary to apply for prior permission to enter or stay for such purposes.\n\n...\n\nThe proposed scheme is thus justified by significant considerations of general importance, that is, national security, public safety and the prevention of crime, and does not go beyond what is necessary to achieve the intended aim according to the Ministry of Justice.\n\nAgainst this background, the Ministry of Justice finds that the proposed scheme is not contrary to the European Convention on Human Rights.”\n\nExecutive Order no. 1200 of 28 September 2016 Prohibiting the Entry into or Stay in Certain Conflict Zones\n\n.  The relevant provisions of the 2016 Executive Order read as follows:\n\nSection 1\n\n“(1) Permission is required under the rules of this Executive Order (see section 114j(3) of the Penal Code) to enter or stay in the following areas (see also attachment 1 [map of the area]):-\n\n(i) the al-Bab District in the Aleppo Province, the al-Thawrah District and the al-Raqqa District in the Raqqa Province and the Deir al-Zour Province of Syria;\n\n(ii) the Mosul District in the Nineveh Province of Iraq.\n\n(2) Danish nationals and persons habitually resident within the Danish State must obtain permission unless the purpose of their entry or stay is to exercise a public function or office with a Danish, foreign or international organisation.”\n\nExecutive Order no. 708 of 6 July 2019 Prohibiting the Entry into and Stay in Certain Conflict Zones\n\n.  The relevant provisions of the 2019 Executive Order read as follows:\n\nSection 1\n\n“(1) Permission is required under the rules of this Executive Order (see section 114j(3) of the Penal Code) to enter or stay in the following areas (see also Attachment 1):-\n\nthe Dayr al-Zawr Province of Syria (see also item 2 of Attachment 1);\n\nthe Idlib Province of Syria (see also item 3 of Attachment 1).\n\n(2) Danish nationals and persons habitually resident within the Danish State must obtain permission unless the purpose of their entry or stay is to exercise a public function or office with a Danish, foreign or international organisation.”\n\n.  The press release of 26 April 2019 from the Minister of Justice stated as follows:\n\n“The situation in Syria and Iraq has changed since the previous Government introduced a prohibition on entry into and stay in certain parts of the countries. The terrorist organisation ISIL no longer controls any territory in Syria and Iraq. The number of western foreign fighters in those territories has also changed. For those reasons, the Government now wants to repeal the prohibition on entry into and stay in Iraq and update the list of areas designated as prohibited zones in Syria.\n\n... Persons who have already stayed illegally in the areas previously designated as prohibited zones can still be punished. ...\n\nFormer prohibited zones that will no longer be subject to prohibition of entry and stay:\n\n... the al-Raqqa District in the Raqqa Province of Syria. ...”\n\n.  In the information letter of 8 July 2019, the Minister of Justice wrote the following to the Danish Parliament:\n\n“The situation in Syria and Iraq has developed since the [2016] Executive Order was made, so it is expedient to update the geographical scope of its application. For this reason, the Ministry of Justice has drafted, in consultation with the Ministry of Defence and the Ministry of Foreign Affairs, the appended proposal for an [2019] executive order with an updated list of areas designated as zones subject to the prohibition of entry and stay; see section 1 of the proposed executive order.\n\nAs a consequence of the update:\n\n... the al-Raqqa District in the Raqqa Province of Syria ... is removed from the list of zones subject to the prohibition.\n\nI expect to issue the executive order within a few days, and it will come into force two days later. It is observed as a matter of form that persons staying illegally in an area designated as a zone falling within the scope of the current Executive Order, but not included in the scope of the new executive order, can still be punished for staying illegally in the zone that was previously subject to a prohibition.”\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION\n\n29.  The applicant complained that his conviction and sentence had been in breach of Article 7 of the Convention, which reads as follows:\n\n“1.  No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.\n\n2.  This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”\n\nA.  Admissibility\n\n30.  The Government submitted that the case should be declared inadmissible as manifestly ill-founded.\n\n31.  The applicant disagreed.\n\n32.  The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.\n\nB.  Merits\n\nThe parties’ submissions\n\n33.  The applicant maintained, among other things, that the law lacked foreseeability. Section 114j of the Penal Code did not apply in a situation like the present one, where he had joined a foreign allied organisation, namely the YPG, and fought against a terrorist organisation. Moreover, the Executive Order and the map attached was too vague and lacking in detail so that it was impossible to ascertain which zones were subject to the prohibition on entry and stay.\n\n.  Furthermore, the 2019 Executive Order, under which permission was no longer required to enter and stay in the al-Raqqa district in Syria, should have been applied in his case, leading to his acquittal.\n\n35.  The Government submitted that the applicant’s conviction had had a sufficient legal basis in domestic law, which had been accessible and foreseeable as to its effects. They referred to the wording of section 114j(1) and (3) of the Penal Code and section 1(1)(i) of the 2016 Executive Order, its illustrative map, the preparatory notes, and the findings of the domestic courts.\n\n36.  Moreover, they emphasised that the al-Raqqa district had no longer been included in the 2019 Executive Order because IS no longer controlled any area in Syria. However, there had been no redefinition of the culpability of persons who had already violated the prohibition on entry into and stay in the prohibited zones listed. The repeal of the Executive Order was thus relevant only to extrinsic circumstances that had occurred after the time of the offence.\n\nThe Court’s assessment\n\nWhether the applicant’s conviction was in accordance with the law\n\n.\n\n38.  It is a logical consequence of the principle that laws must be of general application that the wording of statutes is not always precise. One of the standard techniques of regulation by rules is to use general categorisations as opposed to exhaustive lists. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice (see Kokkinakis v. Greece, 25 May 1993, § 40, Series A no. 260A; Del Río Prada, cited above, § 92; and Advisory opinion P16-2021-001, cited above, § 67). When the legislative technique of categorisation is used, there will often be grey areas at the fringes of the definition. This penumbra of doubt in relation to borderline facts does not in itself make a provision incompatible with Article 7, provided that it proves to be sufficiently clear in the large majority of cases (see Cantoni v. France, 15 November 1996, § 32, Reports of Judgments and Decisions 1996V).\n\n39.  The Court reiterates its settled case-law to the effect that it is primarily for the national authorities to interpret and apply domestic law (see, inter alia, Del Río Prada, cited above, § 105 and Jorgic v. Germany, no. 74613/01, § 102, ECHR 2007-III.) However, when a Convention right itself, Article 7 in the present case, requires that there was a legal basis for a conviction and sentence, the Court’s powers of review encompass an examination of whether the result reached by the domestic courts was compatible with Article 7 of the Convention, even if there were differences between the legal approach and reasoning of this Court and the relevant domestic decisions. To accord a lesser power of review to this Court would render Article 7 devoid of its purpose (see, for example, Vasiliauskas v. Lithuania, cited above, §§ 160161).\n\n40.  The Court notes that all the judicial bodies, namely the District Court, the High Court and the Supreme Court, found that the law was sufficiently clearly set out in section 114j(1), read with section 114j(3), of the Penal Code and section 1(1)(i) of the 2016 Executive Order.\n\n.  They examined the wording of section 114j and the preparatory notes, according to which the overall purpose of section 114j of the Penal Code was to make it a criminal offence to enter or stay in an area with an armed conflict to which a group or an association as mentioned in section 114e was a party. The purpose of the entry or stay was therefore irrelevant. It was therefore also the intention to make it a criminal offence where the relevant person had fought against a terrorist organisation. This was clearly expressed in the notes on the scheme of permissions set out in section 114j(4), which said that no entry and stay to take part in an armed conflict or to support either party (emphasis added) to the armed conflict would serve a meritorious purpose that could justify the grant of permission to enter and stay in a prohibited zone (see paragraph 23 above).\n\n.  They also found that it was sufficiently clear from section 1(1)(i) of the 2016 Executive Order, including the attached map, that it was unlawful to enter and stay in the al-Raqqa District without permission (see paragraphs 12 and 15 above).\n\n.  Having regard to the above, the Court cannot find any grounds on which to criticise the domestic courts’ finding in this respect (see paragraph 40 above). It is satisfied, having regard to the wording of section 114j and the preparatory notes, that the offence was clearly defined in the law and fulfilled the requirements notably of accessibility and foreseeability (see, for example, Jorgic v. Germany, cited above, § 100). It follows that there has been no violation of Article 7 regarding this complaint.\n\nWhether the applicant should have been acquitted because the 2019 Executive Order no longer included the al-Raqqa District\n\nWhether the applicant should have been acquitted because the 2019 Executive Order no longer included the al-Raqqa District\n\n47.  The Supreme Court examined whether, by virtue of section 3(1) of the Penal Code, the applicant should be acquitted, since under the 2019 Executive Order, which came into force on 11 July 2019, there was no longer any prohibition on entering or staying in the al-Raqqa District of Syria without permission. It followed from section 3(1) that where the criminal legislation in force at the time of the adjudication of a criminal act differed from the legislation in force when the act had been committed, the issue of criminality had to be decided under the most recent statute, provided that the decision did not result in a more severe sentence than the sentence imposable under the former statute. If the statute no longer applied as a result of extrinsic circumstances irrelevant to the issue of guilt, the criminal act had to be adjudicated under the former statute.\n\n.  The Supreme Court noted that the Minister of Justice, in a press release and an information letter to the Danish Parliament, dated respectively April and July 2019 (see paragraphs 27 and 28 above), had stated that the situation in Syria had developed since the 2016 Executive Order had been made, so it had been expedient to update the geographical scope of application of the Order. The terrorist organisation IS no longer controlled any territory in Syria, and the number of western foreign fighters there had also changed.\n\n.  The Supreme Court also observed that the 2019 Executive Order did not revise the scope of the sanctions set out in section 114j of the Penal Code. Moreover, in the opinion of the Supreme Court the 2019 Executive Order did not redefine the culpability of persons who had violated the prohibition on entry into and stay in the prohibited zones listed in the 2016 Executive Order without permission. The repeal of the 2016 Executive Order was attributable only to extrinsic circumstances resulting from specific changes in the situation in Syria that had occurred after the time of the offence and were thus irrelevant to the issue of guilt.\n\n.  In conclusion, the Supreme Court found that the applicant’s actions had to be adjudicated on the basis of the criminal law applicable at the time of the offence (see the second sentence of section 3(1) of the Penal Code).\n\n.  Moreover, having regard to the case-law of the Court, it found that punishment of the applicant would not be contrary to Article 7 of Convention.\n\n52.  The Court observes that the present case significantly differs from its previous case-law on the principle of the retroactivity of the more lenient criminal law. It recalls that it has found a violation in cases where the criminal law or the criminal procedure were amended (see, among others, Scoppola cited above and Sinan Çetinkaya and Ağyar Çetinkaya v. Turkey, no. 74536/10, 24 May 2022), or where the domestic courts subsequently exercised their judicial discretion in an expansive manner by adopting an interpretation that was inconsistent with both prevailing national jurisprudence and the essence of the offence as defined by the national law (see, for example, Parmak and Bakır, cited above). In the present case, however, the Penal Code and procedure remained unchanged. The amendment in the 2019 Executive Order only related to changed factual circumstances that had occurred after the time of the offence, resulting from specific changes in the situation in Syria. It was thus unrelated to the assessment of the criminal act committed in 2016/2017 (see paragraph 17 above).\n\n53.  In the light of the above considerations the Court sees no reason to call into question the Supreme Courts’ finding that the applicant’s actions had to be adjudicated on the basis of the criminal law applicable at the time of the offence, in accordance with the second sentence of section 3(1) of the Penal Code.\n\n54.  It follows that there has been no violation of Article 7 regarding this complaint.\n\nII.   ALLEGED VIOLATION OF ARTICLE 2 of Protocol No. 4 to \tthe Convention\n\n55.  The applicant also complained that his conviction breached Article 2 of Protocol No. 4 to the Convention, which reads as follows:\n\n“1.  Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.\n\n2.  Everyone shall be free to leave any country, including his own.\n\n3.  No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.\n\n4.  The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.”\n\nA.  Admissibility\n\n.  The Government submitted that the application should be declared inadmissible as manifestly ill-founded.\n\n57.  The applicant disagreed.\n\n58.  The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.\n\nB.  Merits\n\n59.  The applicant maintained that the restriction on his entry into and stay in the al-Raqqa District had not been in accordance with the law, or necessary in a democratic society. He emphasised in that connection that he had not been siding with a terrorist organisation or a similar party. On the contrary, he had wanted to contribute actively to the protection of democracy, including against terrorist attacks. In his view, foreign fighters who were against terrorists were not covered by section 114j of the Penal Code, and there were no substantial arguments for including them either.\n\n.  The Government maintained that the interference had been prescribed by law and had pursued the legitimate aims of national security, public safety and prevention of crime. It was clear from the preparatory notes to section 114j that the purpose had been to make it easier to punish individuals who entered or stayed in a conflict zone in order to take part in armed conflict, siding with for example a terrorist organisation, as it would be sufficient to prove that the relevant person had entered or stayed in a designated zone without permission. It was not decisive which party to the armed conflict the relevant person had joined. Moreover, the interference had been necessary in a democratic society and proportionate to the aim pursued. They referred notably to the reasons advanced by the Supreme Court.\n\n61.  The Court reiterates that Article 2 of Protocol No. 4 guarantees that everyone shall be free to leave any country, including his own. The provision does not directly address restrictions on going to certain areas in other countries. Nevertheless, it implies the right to travel to any country of the person’s choice to which he or she may be admitted (see, inter alia, Baumann v. France, no. 33592/96, § 61, ECHR 2001-V, and Khlyustov v. Russia, no. 28975/05, § 64, 11 July 2013).\n\n62.  In the present case the applicant was free to leave Denmark. However, in the context of preventing participation in armed conflicts abroad, under section 114j (1) read with section 114j (3) of the Penal Code, and section 1 (1) of the 2016 Executive Order, he was, as a Danish national, prohibited from entering and staying in the al-Raqqa district in Syria without permission by the Danish State. Proceeding on the assumption that such a restriction falls under Article 2 of Protocol No. 4, it must therefore be examined whether the interference was “in accordance with law”, pursued one or more of the legitimate aims set out in Article 2 § 3 of Protocol No. 4 and was “necessary in a democratic society” to achieve such an aim (see Nalbantski v. Bulgaria, no. 30943/04, § 61, 10 February 2011; Stamose v. Bulgaria, no. 29713/05, § 30, ECHR 2012; Kerimli v. Azerbaijan, no. 3967/09, § 45, 16 July 2015; and De Tommaso v. Italy [GC], no. , § 105, 23 February 2017).\n\n62.  In the present case the applicant was free to leave Denmark. However, in the context of preventing participation in armed conflicts abroad, under section 114j (1) read with section 114j (3) of the Penal Code, and section 1 (1) of the 2016 Executive Order, he was, as a Danish national, prohibited from entering and staying in the al-Raqqa district in Syria without permission by the Danish State. Proceeding on the assumption that such a restriction falls under Article 2 of Protocol No. 4, it must therefore be examined whether the interference was “in accordance with law”, pursued one or more of the legitimate aims set out in Article 2 § 3 of Protocol No. 4 and was “necessary in a democratic society” to achieve such an aim (see Nalbantski v. Bulgaria, no. 30943/04, § 61, 10 February 2011; Stamose v. Bulgaria, no. 29713/05, § 30, ECHR 2012; Kerimli v. Azerbaijan, no. 3967/09, § 45, 16 July 2015; and De Tommaso v. Italy [GC], no. , § 105, 23 February 2017).\n\n63.  In respect of lawfulness, the Court refers to its findings under Article 7 of the Convention (see paragraphs 40 to 44 above; see also, for example, Baldassi and Others v. France, nos. 15271/16 and 6 others, §§ 41 and 59, 11 June 2020).\n\n63.  In respect of lawfulness, the Court refers to its findings under Article 7 of the Convention (see paragraphs 40 to 44 above; see also, for example, Baldassi and Others v. France, nos. 15271/16 and 6 others, §§ 41 and 59, 11 June 2020).\n\n64.  Having regard to the preparatory notes to section 114j (see paragraphs 22 to 24 above) and the findings of the domestic courts, the Court is also convinced that the interference pursued the legitimate aims of national security, public safety and prevention of crime.\n\n.  The Supreme Court carefully examined the case under Article 2 of Protocol No. 4 and, after carrying out the requisite balancing exercise in the light of the Convention principles, found that the restriction on the applicant’s freedom of movement had been proportionate, notably since the al-Raqqa district was of a limited size and the applicant could have obtained permission to enter and stay there if he had had a meritorious purpose (see paragraph 16 above).\n\n.  The Court considers that the quality of the judicial review of the disputed general measure and its application in the present case militates in favour of a wide margin of appreciation (see, mutatis mutandis, Lings v. Denmark, no. 15136/20, § 58, 12 April 2022).\n\n.  In addition, the Court notes that the restriction only concerned areas in which a terrorist organisation was a party to an ongoing armed conflict. Moreover, the prohibition on entry and stay without permission was not absolute as persons performing a public function or office with a Danish, foreign or international organisation were explicitly exempted from the provision. Furthermore, the relevant zones were revised carefully on an ongoing basis, and the al-Raqqa district was therefore not included in the subsequent 2019 Executive Order. Lastly, the restriction served the purpose of ensuring that persons who were Danish nationals or habitually resident within the Danish State did not independently join any of the parties to the ongoing armed conflict and posed a threat to the society upon their return to Denmark (see paragraph 22 above).\n\n.  In these circumstances, the Court is satisfied that the interference with the applicant’s right to freedom of movement struck a fair balance between the public interest and the rights of the individual, and that it was necessary in a democratic society.\n\n69.  Accordingly, there has been no violation of Article 2 of Protocol No. 4 to the Convention.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\nDeclares the application admissible;\n\nHolds that there has been no violation of Article 7 of the Convention;\n\nHolds that there has been no violation of Article 2 of Protocol No. 4 to the Convention.\n\nDone in English, and notified in writing on 18 October 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_824","text":"PROCEDURE\n\n1.  The case originated in an application (no. 36983/97) against the Kingdom of the  lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a  national, Mr Pieter Jelle Haas (“the applicant”), on 20 December 1995.\n\n2.  The applicant, who had been granted legal aid, was represented by Mr A.W.M. Willems, a lawyer practising in . The  Government (“the Government”) were represented by their Agent,\nMr R.A.A. Böcker, of the Netherlands Ministry of Foreign Affairs.\n\n3.  The applicant alleged a violation of Articles 14 and 8 of the Convention taken together in that, as an unrecognised “illegitimate” child, he was not able to inherit from his father.\n\n4.  The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).\n\n5.  The application was initially allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court).\n\n6.  On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Second Section. Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.\n\n7.  By a decision of 18 June 2002, the Chamber declared the application admissible.\n\n8.  The Government, but not the applicant, filed observations on the merits (Rule 59 § 1).\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n9.  The applicant, who was born in 1964, states that he was born from a relationship between his mother and a certain P., a civil law notary (notaris). Although his mother had wanted to marry, P. had not; neither had the two ever lived together. P. had not recognised (erkenning) the applicant. Nevertheless, he made regular payments towards the applicant's care and upbringing, gave the applicant presents for his birthday, visited him and, together with the applicant's mother, went on day trips with him. The applicant called P. “Daddy”.\n\n10.  P. died on 19 August 1992 without leaving a will. His body was cremated. A nephew, K., was identified as his sole heir.\n\n11.  The applicant brought civil proceedings against K., seeking an order that K. hand over P.'s estate. The applicant argued that he had had “family life” with P. within the meaning of Article 8 of the Convention, and that the  legal provisions relating to the position of “illegitimate” and unrecognised children infringed Article 14.\n\n12.  The  (arrondissementsrechtbank) rejected the applicant's claim by a judgment of 23 December 1993. It considered that the difference contained in  legislation on succession between children with and children without legally recognised family relationships (familierechtelijke betrekkingen) did not constitute an unjustified interference in the “family life” of “illegitimate” unrecognised children. In view of the rights and interests of third parties in relation to an inheritance, legal certainty required that only persons with a demonstrable legal family connection with the deceased be able to inherit. An “interference” with any “family life” the applicant might have had with P. was thus “in accordance with the law” and “necessary in a democratic society”. In the light of these considerations, the  did not find it necessary to determine whether or not P. was the applicant's biological father.\n\n13.  The applicant appealed to the Arnhem Court of Appeal (gerechtshof), complaining of the Regional Court's interpretation of Articles 8 and 14 of the Convention, as well as of the fact that the Regional Court had declined to rule on the issue of paternity.\n\n14.  Four witnesses were heard before the Court of Appeal: the applicant, his mother, a friend of his mother and the person who had been the applicant's co-guardian (toeziend voogd). The latter two stated that they were convinced that P. was the applicant's biological father and that he had never denied this fact to them but had, on the contrary, assured them that the applicant would be well provided for. The applicant's mother stated that she had not known any man other than P. until nine years after the applicant's birth, and that P. had referred to the applicant in public as “my son” or “my little boy”. In reply to K.'s argument that he had not been aware of the applicant's existence, the applicant stated that K.'s mother, who was a sister of P., had been so aware and had met the applicant.\n\n15.  In the proceedings before the Court of Appeal the applicant also submitted a number of photographs showing himself in the company of P. and his mother.\n\n16.  On 20 June 1995 the Court of Appeal gave judgment, dismissing the appeal. While it acknowledged that a situation where a court was unable to determine a case like the present one led to an unsatisfactory outcome for the applicant, the Court of Appeal saw no possibility of departing from the recent case-law of the Supreme Court (Hoge Raad) to the effect that it went beyond the jurisprudential task of the judiciary to determine the consequences of the possible incompatibility of Netherlands law with Article 14 of the Convention taken in conjunction with Article 8 (judgment of 24 February 1995, reported in Nederlandse Jurisprudentie (Netherlands Law Reports – “NJ”) 1995, no. 468).\n\n17.  The applicant lodged an appeal on points of law (cassatie) with the Supreme Court, which was dismissed on 17 January 1997. The Supreme Court held that, although an inability to inherit based solely on the ground of illegitimacy would be contrary to Article 8 taken in conjunction with Article 14, objective and reasonable grounds could exist to justify other kinds of restrictions on the intestate succession of “illegitimate” children. It then noted that in 1982 a law had come into force aimed at bringing the position of “illegitimate” recognised children into line with the requirements enunciated by the Court in Marckx v. Belgium (judgment of 13 June 1979, Series A no. 31). During the debate on the bill in Parliament, the then Minister of Justice had declared that the question of the position of “illegitimate” unrecognised children in relation to their biological fathers was a valid one, but that it fell to be dealt with in the planned reform of the law of succession.\n\n18.  Since then a number of attempts had been made to bring about this reform and, at the time of the Supreme Court's examination of the present case, a bill was before Parliament. It thus appeared that the legislature was of the view that a reform of the law of succession required the making of important political choices and that the legislative process had not yet come to an end. From this, the Supreme Court concluded in the first place that the absence in Netherlands law at the time of a rule making “illegitimate” unrecognised children the heirs of their biological fathers was not based solely on illegitimacy but on the difficulty, inherent in a reform of legislation, of reaching a sound balance between all the interests involved in the law of succession. Secondly, it followed that the choices to be made fell beyond the scope of the judiciary's jurisprudential tasks and that it was not possible to anticipate legislative developments by judgment. The judgment of the Supreme Court was published in NJ 1997, no. 483, with a critical annotation by a learned author.\n\nII.  Relevant domestic law\n\n19.  Under Article 4:879 § 1 of the Civil Code (Burgerlijk Wetboek –“CC”), only those persons who have a legally recognised family relationship (familierechtelijke betrekking) with a person who has died intestate may inherit from that person.\n\n20.  Legally recognised family relationships between a father and a child exist where a child is born to a married couple or if it is born within 307 days following the dissolution of the marriage (Article 1:197 of the CC). An “illegitimate” child will have a legally recognised family relationship with its father (who does not have to be the biological father) if it has been recognised (erkenning) by the father, either before or after its birth (Article 1:222 of the CC).\n\n21.  Moreover, according to Article 1:215 of the CC, a legally recognised family relationship will also come into existence with the granting of letters of legitimation if it is established that the father, having died before the child was born and without having recognised it, was aware of the pregnancy and had intended to marry the mother.\n\n22.  According to the rules of intestacy, if a deceased does not leave any children with whom he has a legally recognised family relationship or a spouse, his parents and siblings (or their descendants) will inherit from him (Article 4:901 of the CC). If there are such children or a spouse, the parents and siblings are excluded from the inheritance (Articles 4:899 and 4:899a of the CC).\n\n23.  Within one year of the death of the father, a minor child with whom the late father had no legally recognised family relationship may request that an obligation be imposed on the father's heirs to make a lump sum available for his care and upbringing. In the determination of this amount, the court dealing with the request may not exceed the legally reserved portion of the estate (wettelijk erfdeel) to which the child would have been entitled had he had a legally recognised family relationship with his father (Article 1:406 § 5 of the CC).\n\n24.  This is an elaboration of the principle enunciated in Article 1:394 §1 of the CC that, where there is no legally recognised family relationship between a father and his child, the former is only bound to provide maintenance (levensonderhoud) for the child until it has come of age. The legally reserved portion of an estate is that part of a person's estate which will be attributed, according to the rules of intestacy, to the heirs who are direct descendants or ascendants, and which the testator is unable to dispose of by way of donation when alive, or by will.\n\n25.  On 20 March 1996 a bill was presented in Parliament aimed at amending, inter alia, the law of descent (afstammingsrecht; Tweede Kamer (Lower House) 1995-1996, 24 649, nos. 1-2), and on 1 April 1998 a change to the Civil Code came into force. It introduced a judicial declaration of paternity (gerechtelijke vaststelling van vaderschap, Article 1:207 of the CC) which may be requested by the mother or the child. A declaration of paternity has retroactive force to the time of the child's birth, but it does not adversely affect any rights acquired in good faith by third parties.\n\n26.  According to the explanatory memorandum to the bill, the possibility of having paternity determined judicially exists in all neighbouring countries. The absence of this possibility could be in conflict with Article 8 of the Convention taken in conjunction with Article 14, since it could lead to a situation where a child was deprived of a father if the latter were unwilling to recognise it. It was felt that this defect could not be remedied by the fact that a request for determination of a parental maintenance contribution could be made against the father pursuant to Article 1:394 § 1 of the CC.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLES 14 AND 8 OF THE CONVENTION TAKEN TOGETHER\n\n27.  The applicant complained that, unlike “legitimate” or recognised “illegitimate” children, he was unable to inherit from his father.\n\n28.  The relevant parts of Article 8 of the Convention provide:\n\n“1.  Everyone has the right to respect for his private and family life ...\n\n2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the protection of the rights and freedoms of others.”\n\nThe relevant part of Article 14 of the Convention provides:\n\n“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as ... birth or other status.”\n\n29.  The Government denied that there had been a violation of these provisions.\n\n30.  The applicant submitted no argument after the application was declared admissible. In his observations submitted at the admissibility stage, he claimed, referring to the available factual evidence (see paragraph 14 above), that he was without doubt the late P.'s son.\n\n31.  The applicant further pointed to the new legislation allowing the establishment of paternity irrespective of the will of the biological father, with the attendant consequences on inheritance cases, as evidence of altered views on such matters. Taken together with the factual relationship between P., on the one hand, and the applicant and his mother, on the other, this necessarily meant that “family life” in the sense of Article 8 of the Convention existed between P. and the applicant.\n\n32.  Moreover, if the child intended to establish “family life” but the father did not, the former's intentions were more worthy of protection than the latter's. In any case, for the purpose of establishing inheritance rights, biological fatherhood ought to be considered sufficient; it ought not to be required in addition that the father and the child must also have had “effective family life”.\n\n33.  Proceeding on the basis that the case came within the ambit of Article 8 of the Convention, the applicant claimed to be the victim of a difference in treatment between “illegitimate” offspring who had been recognised by their father, and who consequently had recognised family ties with him which enabled them to inherit upon intestacy, and “illegitimate” offspring who had not been so recognised and who therefore did not have such ties.\n\n34.  The difference in treatment could not, in the applicant's submission, be justified in his case. He noted in this respect that he was competing for the inheritance not with the wife of the deceased or with a “legitimate” or recognised “illegitimate” sibling, but with a nephew of P. – a person whose relationship with the deceased was (as he presumed) more remote, not closer, than his.\n\n35.  The Government denied that a relationship amounting to “family life” existed between the applicant and the late P. First of all, they did not consider themselves to be in a position to confirm that P. was the applicant's biological father: as the domestic courts had failed to resolve this issue, it remained in dispute. DNA testing would have been possible in theory. However, P.'s body had been cremated and he had left no known offspring. Consequently, the only person whose DNA could usefully be compared with that of the applicant would be K., who was too distant a relative, if relative he was, for the outcome of such a test to be conclusive.\n\n36.  In the Government's view, other circumstances did not bear out the existence of “family life” either. P. had never lived with the applicant and his mother. Moreover, P. had never wished to establish “family life” with the applicant. This was borne out by P.'s consistent refusal until his death, twenty-eight years after the applicant was born, to recognise the applicant as his son, whatever his reason for such refusal may have been. On this point there was a distinction between the present case and that of Camp and Bourimi v. the Netherlands (no. 28369/95, ECHR 2000-X).\n\n37.  The existence of “family life” between P. and the applicant sufficient to bring the case within the ambit of Article 8 could therefore not be established.\n\n38.  In any event, even assuming that the case came within the ambit of Article 8 and that consequently Article 14 could apply, there was “objective and reasonable justification” for the difference in treatment. The difference was between offspring who did not have legal family ties with their natural fathers and those who – demonstrably – did. It prevented the imposition of legal family ties on unwilling parties and served the interest of legal certainty in matters of inheritance. It could thus reasonably be considered “necessary in a democratic society” in pursuit of the “legitimate aim” of protecting “the rights of others”.\n\n39.  It made no difference, in the Government's submission, that the legislature had subsequently changed its mind and enacted legislation making possible the establishment of a man's paternity of an unrecognised “illegitimate” child against his will. This development had been occasioned by more recent technical and legal developments which were not relevant to the applicant's case.\n\n40.  The Court will examine this case, like that of Camp and Bourimi, cited above, under Article 14 taken in conjunction with Article 8.\n\n41.  It observes in this connection that it has consistently held that Article 14 of the Convention complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (see, among many other authorities, Camp and Bourimi, cited above, and Van Raalte v. the Netherlands, judgment of 21 February 1997, Reports of Judgments and Decisions 1997-I, p. 184, § 33).\n\n42.  The Court notes at the outset that in Camp and Bourimi, cited above, it was not disputed that the applicant was Mr Bourimi's child. Furthermore, it was established that Mr Bourimi had wanted to recognise the applicant as his child. Moreover, legal family ties were established between the child and the deceased by means of letters of legitimation. In the instant case, the Court observes, firstly, that on the applicant's own admission he had never lived with P. Any sporadic contacts which he allegedly had with the deceased and any alleged fatherly acts on P.'s part towards him could not be construed as “family life”. Secondly, it has never been the applicant's intention to have his claim to be P.'s son accepted in order to provide him with the emotional security of knowing that he is part of a family, even less so to enable him to create ties with P.'s surviving family circle or to resolve any doubts he may have about his own personal identity – he is convinced in his own mind that he is the unrecognised illegitimate son of P.\n\n43.  In the Court's opinion, the facts of the case cannot be accommodated within the ambit of Article 8 of the Convention, whether seen in terms of “family life” or “private life”. The applicant is essentially complaining about the refusal of the courts to examine and recognise his claim to the estate of P. over that of K. The applicant brought a civil action against K. and sought to persuade the courts of the merits of his claim to be the unrecognised illegitimate son of the deceased. In reality, the courts were faced, not with an issue of “family life” within the meaning of Article 8 or an issue of “private life” seen in terms of personal identity, but with a question of evidence going to the issue of whether legal family ties between the applicant and the deceased should be recognised. The fact that the courts were reluctant to rule on the elements adduced by the applicant cannot be considered in the circumstances as raising an issue which falls within the scope of Article 8. In particular, an applicant cannot derive from Article 8 a right to be recognised as the heir of a deceased person for inheritance purposes. Admittedly, and as the Court held in Marckx, cited above, matters of intestate succession between near relatives prove to be intimately connected with family life (pp. 23-24, §§ 52-54). However, it would be stretching the notion of family life too far to hold in the circumstances of the instant case that its subject matter fell within the scope of that notion.\n\n44.  The Court would note in conclusion that the possibility of seeking a judicial declaration of paternity (Article 1:207 of the Civil Code) is now open to the applicant (see paragraph 25 above).\n\n45.  In the light of these considerations, the Court concludes that Article 8 is not applicable in the instant case. Article 14 cannot therefore be relied on.\n\nII.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION\n\n46.  The Court, of its own motion, asked the parties to address the questions raised by the case under Article 13 of the Convention, which provides as follows:\n\n“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”\n\n47.  The applicant was of the opinion that the domestic courts had denied him an effective remedy. They had not even established the facts. Thus, far from deciding the substance of his case, they had ruled that the legislature would have to step in before claims such as his could be decided on the merits. The Government, for their part, argued that there had been no violation of this provision, since the applicant had not been prevented from presenting his complaints before the domestic courts.\n\n48.  In view of its above conclusion on the applicant's complaints under Articles 8 and 14 of the Convention, the Court finds that Article 13 is also not applicable in this case.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\nHolds that Articles 8, 14 and 13 of the Convention do not apply in the present case.\n\nDone in English, and notified in writing on 13 January 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.\n\nIn accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the concurring opinion of Mr Loucaides is annexed to this judgment.\n\nI agree with the majority that Articles 8, 14 and 13 of the Convention are not applicable in this case. However, my decision rests on the conclusion, on the basis of the material before the Court, that the applicant has not made his case.\n\nThe applicant argues that he is the unrecognised illegitimate child of P. and complains that he has been the victim of unjustified treatment under the  law inasmuch as, unlike “legitimate” or recognised “illegitimate” children, he was unable to inherit from his putative father, P. The complaints of the applicant are based on the presumption that he was in fact P.'s child. However, the evidence of that is in my opinion not strong enough to substantiate the applicant's allegation.\n\nThe available evidence, which the applicant relied on only after the death of P., appears to consist of the following:\n\n(a)  The statement of the applicant's mother, who went on to say that she had not known any man other than P. until nine years after the applicant's birth and that P. referred to the applicant in public as “my son” or “my little boy”.\n\n(b)  The fact, as stated, that P. made regular payments towards the applicant's care and upbringing, gave the applicant presents for his birthday, visited him and, together with the applicant's mother, went on day trips with him. The applicant called P. “Daddy”.\n\n(c)  A statement made before the Court of Appeal by a friend of the applicant's mother, and the person who has been the applicant's\nco-guardian, to the effect that they were convinced that P. was the applicant's biological father and that P. had never denied this fact but had, on the contrary, assured them that the applicant would be well provided for.\n\nThis evidence is not sufficient to convince me that the applicant is P.'s child. In this respect I also took into account the following facts of the case:\n\n(a)  P. never lived together with the mother of the applicant and never recognised the applicant as his child.\n\n(b)  During P's lifetime, the applicant never secured any written statement or even a clear and unambiguous admission from P. that he was in fact his father. While it may be so that P. called the applicant “my son” and “my little boy”, at this remove and taken out of context such apparent expressions of endearment cannot be persuasive.\n\n(c)  The applicant formally raised the question of his being P.'s son for the first time through civil proceedings against K., P.'s undisputed nephew, who inherited his estate. Through these proceedings he was claiming inheritance rights. However, it is not apparent that the applicant ever sought to establish family ties of any kind while P. was alive.\n\nIn the circumstances, I find that the premise on which the applicant's complaints are based, namely that he was the child of P., is not established. Therefore the application ought to have been declared inadmissible, even though this would have amounted to a reversal of the previous decision by which the application was declared admissible. This course of action is made possible by Article 35 § 4 of the Convention, which provides that “The Court shall reject any application which it considers inadmissible under this Article. It may do so at any stage of the proceedings” (emphasis added; see, for example, Medeanu v. Romania (dec.), no. 29958/96, 8 April 2003).","title":""}
{"_id":"passage_434","text":"PROCEDURE\n\n1.  The case originated in an application (no. 37406/03) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Vyacheslav Alekseyevich Dyundin (“the applicant”), on 18 October 2003.\n\n2.  The applicant was represented by Ms A. Soboleva and Mr V. Monakhov, lawyers practising in . The Russian Government (“the Government”) were represented by Mr P. Laptev, former Representative of the  at the European Court of Human Rights.\n\n3.  The applicant alleged, in particular, a violation of his right to freedom of expression.\n\n4.  On 13 December 2005 the Court decided to communicate the complaint to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n5.  The applicant was born in 1952 and lives in the town of  in the Orenburg Region. He is a journalist.\n\nA.  The publication\n\n6.  On 21 August 2002 the applicant published an article in issue no. 128\\382 of the Orskiy Vestnik newspaper. The article appeared under the headline ‘Tortured suspects confessed to the theft they had not committed’ (“Под пыткой подозреваемые сознались в краже, которой не совершали”). It concerned an investigation into the theft of property of a private company. The company director had identified three of his former employees as prime suspects. Mr S., one of those three, had gone to the Leninskiy District police station of his own will to clear himself of suspicion. The story then switched to a first-person narrative by Mr S., which was preceded by the author’s statement, in bold and in italics: “I switched on the dictaphone recording of S[.]’s story”.\n\n7.  Mr S. said that he had been detained overnight at the Leninskiy District police station. The following morning he had been brought to an office where five police officers had been present; Mr G. had been among them. Mr S. continued as follows:\n\n“It was a Saturday. They [the police officers] planned to go to a wedding party after lunch; they reeked of fresh alcohol, it looked like they had already been drinking. They discussed how to torture me - using a crow-bar or otherwise? They tied me to a chair, my legs fastened to the chair legs and my arms cuffed behind the chair back. At first they punched me in the chest with their fists, it hurt. I was in a state of shock. Then, a sudden, stunning blow to the neck... I could not see who delivered the blow and with what object. Someone said: ‘What now? The crow-bar?’ G[.] says: ‘Well, but do not stain my table’. And he took all the magazines off the table. One of them, who squinted a bit, took out a tool that looked like a tyre lever. I do not know how they wanted to torture me. G[.] says: ‘No, let’s try a gas mask first’. They put a gas mask on me... I could not breathe in or out, I felt faint and my head shook...” (emphasis added, see below).\n\n8.  The article further continued to relate Mr S.’s story as told by him. After a while Mr S. had signalled his readiness to confess. He had been taken to the office next door, where a young man in civilian clothes had written down his statements. Thereafter, Mr S. had been locked in the basement cell of the police station.\n\nSwitching back to author’s speech, the applicant introduced Mr M., a friend of Mr S., who had gone to the police station to confirm Mr S.’s alibi. With the words “Let us give [M.] the floor”, the story continued as narrated by Mr M.:\n\n“At the Leninskiy District police station they took me into office no. 18 on the second floor. The interview was conducted by the investigator G[.], a tall athletic man with red hair.\n\n– Where is the snatch?\n\n– What snatch?\n\n– ...Your friends have already confessed. You are the ‘weak link’. You are an ‘MDP’ – a morally degraded person...\n\nHe began beating me. Every word was followed by a blow...\n\n– Where is the loot? You will tell me! I am a paratrooper. I used to crush people like you and I will do the same to you! Ever heard about disappearances? You will be one of them if you do not give back the loot!\n\n...I heard that if the police accidentally break the leg or arm [of a detainee], operational officers have to finish the victim off and secretly bury him so as to hide the traces of torture...\n\nG[.] says: ‘Stop talking like a parrot. Counsel, counsel... Counsel will be at trial, but now you are under pre-trial investigation. Take him to the cell where the faggots are! They are hungry, let them explain to him what he is.’ But he did not hit me. Just banged his fist on the table. As if they started to realise that they had made a mistake and were at a loss what to do next.” (emphasis added, see below).\n\n9.  In the conclusion the applicant quoted from a medical report which noted multiple bruises and abrasions on Mr S.’s body. He criticised the passive attitude of supervising prosecutors who had refused to initiate a criminal case against Mr G. and the other police officers, and noted that the prosecutors’ refusals were being appealed against to a court. The real perpetrator had later been identified and convicted of the theft.\n\nB.  Civil action for defamation\n\n10.  The senior operational officer of the Leninskiy District police station, Mr G. sued the applicant and the newspaper’s founder for defamation before the Leninskiy District Court of Orsk. Considering that the extracts in bold above were untrue and damaging to his honour, dignity and professional reputation, he sought compensation for non-pecuniary damage and legal costs. He denied that he had ever used violence against Mr S. or Mr M.\n\n11.  The applicant maintained that the contested extracts had been a verbatim reproduction of the personal stories of Mr S. and Mr M. and represented their value judgments on these events. He had acted in good faith and verified that neither Mr S. nor Mr M. had a reason to slander or denigrate Mr G. The extracts either did not refer to Mr G. personally (such as “they reeked of fresh alcohol...”) or did not contain any information damaging to his reputation (such as the statement about him being a paratrooper). The applicant produced in evidence a dictaphone recording of his conversation with Mr S., when Mr M. had been also present. He also relied on the medical report noting Mr S.’s injuries, on the records of the confessions made by Mr S. and Mr M. at the Leninskiy District police station, and on their complaints about ill-treatment lodged with the prosecutor’s office.\n\n12.  The District Court took oral evidence from Mr S. and Mr M. Mr S. confirmed the accuracy of the story as reproduced in the article. Responding to questions from both parties, he testified that police officers but not Mr G. had reeked of alcohol, that he had been tied to a chair, that Mr G. had indeed warned them against staining his table, that Mr G. had not used violence against him but had been “merely present”. Mr M. also confirmed his story as narrated in the article.\n\n12.  The District Court took oral evidence from Mr S. and Mr M. Mr S. confirmed the accuracy of the story as reproduced in the article. Responding to questions from both parties, he testified that police officers but not Mr G. had reeked of alcohol, that he had been tied to a chair, that Mr G. had indeed warned them against staining his table, that Mr G. had not used violence against him but had been “merely present”. Mr M. also confirmed his story as narrated in the article.\n\n13.  On 29 April 2003 the Leninskiy District Court of Orsk granted Mr G.’s action in part. It noted firstly that the applicant and the newspaper could not claim an exemption from liability for defamation on the ground that they had merely reproduced statements made by others, because no such exemption was provided for in the Mass Media Act. Accordingly, they were required to prove the accuracy of the contested statements. However, in the District Court’s view, neither the medical reports noting injuries on Mr M.’s and Mr S.’s bodies, nor their interview records, nor their oral testimony could be considered relevant evidence or proof of the truthfulness of the allegations that Mr G. had tortured them or made intimidating remarks.\n\nFurthermore,\n\n“...it follows from S[.]’s oral testimony that G[.] had not been in an inebriated state during the interview, that he had not suggested using a gas mask, that he had not resorted to physical violence and that S[.] had not told [the applicant] about that. A comparison of the dictaphone recording of S[.]’s story with the narrative in the article leads to the conclusion that the events were retold in the article in a different chronological order and that the author creatively rewrote S.’s statements, increasing the emotional intensity and emphasising G[.]’s leading part in the use of violence towards the detainees.”\n\n14.  The District Court, however, accepted that the statement about Mr G.’s being a paratrooper was not damaging to his reputation and that Mr M.’s statement about the victims being “finished off” by the police did not concern Mr G. personally. The remaining extracts were found damaging to his reputation and liable to rectification.\n\n15.  The District Court awarded Mr G. 2,000 Russian roubles (about 70 euros) and legal costs against the applicant.\n\n16.  On 31 July 2003 the , on an appeal by the applicant and the newspaper, upheld the judgment.\n\nII.  RELEVANT DOMESTIC LAW\n\n17.  Article 152 of the Civil Code provides that an individual may apply to a court with a request for the rectification of “statements” (“сведения”) that are damaging to his or her honour, dignity or professional reputation if the person who disseminated such statements does not prove their truthfulness. The aggrieved person may also claim compensation for losses and non-pecuniary damage sustained as a result of the dissemination of such statements.\n\n17.  Article 152 of the Civil Code provides that an individual may apply to a court with a request for the rectification of “statements” (“сведения”) that are damaging to his or her honour, dignity or professional reputation if the person who disseminated such statements does not prove their truthfulness. The aggrieved person may also claim compensation for losses and non-pecuniary damage sustained as a result of the dissemination of such statements.\n\n18.  Article 1100 provides that compensation for non-pecuniary damage is payable irrespective of the tortfeasor’s fault if damages were sustained through dissemination of information damaging dignity, honour or reputation.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION\n\n19.  The applicant complained of a violation of his right to freedom of expression provided in Article 10 of the Convention, which reads as follows:\n\n“1.  Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.\n\n2.  The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”\n\nA.  Admissibility\n\n20.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n1.  Submissions by the parties\n\n21.  The Government submitted that the applicant had been found civilly liable for deliberately imparting false information damaging another person’s dignity, honour and reputation. In particular, he had written and published an article accusing police officer Mr G. of serious criminal offences, namely abuse of power and ill-treatment of detainees. The prosecutor’s office had conducted an inquiry and had refused to initiate criminal proceedings against Mr G. The domestic courts had therefore correctly concluded that the information imparted by the applicant had been false.\n\n22.  Referring to the decision in the case of Chernysheva v. Russia (no. 77062/01, 10 June 2004), the Government argued that Article 10 of the Convention did not guarantee wholly unrestricted freedom of expression. The exercise of that freedom carried with it “duties and responsibilities”, which also applied to the press. Those “duties and responsibilities” were liable to assume significance when, as in the present case, there was a question of attacking the reputation of a named individual. The applicant had failed in his duty to verify the veracity of the imparted information. Accordingly, the interference with his right to freedom of expression had been justified. The fine imposed on the applicant had been reasonable and proportionate to the legitimate aim of protecting Mr G.’s reputation.\n\n23.  The applicant insisted that he had checked the accuracy of facts with a reasonable degree of care, as might be required from a journalist. He had obtained and submitted to the domestic courts medical reports noting Mr S.’s injuries, the records of the confessions made by Mr S. and Mr M. at the police station and copies of Mr S.’s and Mr M.’s complaints about ill-treatment. Mr S. and Mr M. had confirmed the accuracy of the information contained in the article. However, the domestic courts had dismissed that evidence as untrustworthy without explaining the reasons for that finding. The fact that the authorities had refused to initiate criminal proceedings in respect of the allegations of ill-treatment had not, in itself, proved that the information published by the applicant had been untrue. The applicant had mentioned in his article that the authorities had refused to initiate criminal proceedings and had criticised them for that. The purpose of the article had been to denounce the authorities’ failure to investigate the allegations of police brutality. The applicant maintained that there existed a sufficient factual basis for his statement. Although he had failed to prove in court that his description of the events at the police station had been true in all its particulars, he was still under the protection of Article 10 of the Convention. Even harsh criticism in strong, polemical language published “on a slim factual basis” was protected under Article 10 (see Dichand and Others v. , no. 29271/95, § 52, 26 February 2002).\n\n24.  The applicant submitted that strict liability established by domestic law in cases of disseminating information damaging dignity, honour or reputation (see paragraph 18 above) was contrary to Article 10 of the Convention. In the applicant’s opinion a journalist was liable to pay compensation in respect of non-pecuniary damage only if he had acted with malice and his fault had been established by a court. In cases where a journalist had defamed a public official unintentionally, only rectification and pecuniary damages should be available to the plaintiff. The applicant further argued that a journalist could not be required to prove the veracity of his every allegation according to the “beyond reasonable doubt” standard applied in criminal law. A journalist who published an article about police brutality might not be reasonably required to act as a prosecutor and collect the evidence of guilt in a criminal case. His role was to urge the prosecution authorities to initiate criminal proceedings by making public the facts of ill-treatment and by drawing attention to them.\n\n2.  The Court’s assessment\n\n(a) General principles\n\n25.  According to the Court’s well-established case-law, freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness, without which there is no “democratic society” (see Handyside v. the United Kingdom, judgment of 7 December 1976, Series A no. 24, p. 23, § 49, and Jersild v. Denmark, judgment of 23 September 1994, Series A no. 298, p. 26, § 37).\n\n25.  According to the Court’s well-established case-law, freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness, without which there is no “democratic society” (see Handyside v. the United Kingdom, judgment of 7 December 1976, Series A no. 24, p. 23, § 49, and Jersild v. Denmark, judgment of 23 September 1994, Series A no. 298, p. 26, § 37).\n\n26.  The Court reiterates that there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or debates on questions of public interest (see Sürek v.  (no. 1) [GC], no. 26682/95, § 61, ECHR 1999-IV). Moreover, although it cannot be said that civil servants knowingly lay themselves open to close scrutiny of their every word and deed to the extent politicians do, civil servants acting in an official capacity are, like politicians, subject to wider limits of acceptable criticism than private individuals (see Thoma v. , no. 38432/97, § 47, ECHR 2001III).\n\n26.  The Court reiterates that there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or debates on questions of public interest (see Sürek v.  (no. 1) [GC], no. 26682/95, § 61, ECHR 1999-IV). Moreover, although it cannot be said that civil servants knowingly lay themselves open to close scrutiny of their every word and deed to the extent politicians do, civil servants acting in an official capacity are, like politicians, subject to wider limits of acceptable criticism than private individuals (see Thoma v. , no. 38432/97, § 47, ECHR 2001III).\n\n26.  The Court reiterates that there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or debates on questions of public interest (see Sürek v.  (no. 1) [GC], no. 26682/95, § 61, ECHR 1999-IV). Moreover, although it cannot be said that civil servants knowingly lay themselves open to close scrutiny of their every word and deed to the extent politicians do, civil servants acting in an official capacity are, like politicians, subject to wider limits of acceptable criticism than private individuals (see Thoma v. , no. 38432/97, § 47, ECHR 2001III).\n\n27.  The press fulfils an essential function in a democratic society. Although it must not overstep certain bounds, particularly as regards the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest (see De Haes and Gijsels v. Belgium, judgment of 24 February 1997, Reports of Judgments and Decisions 1997I, pp. 233-34, § 37, and Bladet Tromsø and Stensaas v.  [GC], no. 21980/93, § 59, ECHR 1999III). Not only does it have the task of imparting such information and ideas: the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of “public watchdog” (see Thorgeir Thorgeirson v. Iceland, judgment of 25 June 1992, Series A no. 239, p. 28, § 63). Journalistic freedom covers possible recourse to a degree of exaggeration, or even provocation (see Prager and Oberschlick v. Austria (no. 1), judgment of 26 April 1995, Series A no. 313, p. 19, § 38). This freedom is subject to the exceptions set out in Article 10 § 2, which must, however, be construed strictly. The need for any restrictions must be established convincingly.\n\n28.  Article 10 of the Convention protects journalists’ right to divulge information on issues of general interest provided that they are acting in good faith and on an accurate factual basis and provide “reliable and precise” information in accordance with the ethics of journalism. Under the terms of paragraph 2 of Article 10 of the Convention, freedom of expression carries with it “duties and responsibilities”, which also apply to the media even with respect to matters of serious public concern. Moreover, these “duties and responsibilities” are liable to assume significance when there is a question of attacking the reputation of a named individual and infringing the “rights of others”. Thus, special grounds are required before the media can be dispensed from their ordinary obligation to verify factual statements that are defamatory of private individuals. Whether such grounds exist depends in particular on the nature and degree of the defamation in question and the extent to which the media can reasonably regard their sources as reliable with respect to the allegations (see Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 67, ECHR 2007..., and Pedersen and Baadsgaard v.  [GC], no. 49017/99, § 78, ECHR 2004XI).\n\n28.  Article 10 of the Convention protects journalists’ right to divulge information on issues of general interest provided that they are acting in good faith and on an accurate factual basis and provide “reliable and precise” information in accordance with the ethics of journalism. Under the terms of paragraph 2 of Article 10 of the Convention, freedom of expression carries with it “duties and responsibilities”, which also apply to the media even with respect to matters of serious public concern. Moreover, these “duties and responsibilities” are liable to assume significance when there is a question of attacking the reputation of a named individual and infringing the “rights of others”. Thus, special grounds are required before the media can be dispensed from their ordinary obligation to verify factual statements that are defamatory of private individuals. Whether such grounds exist depends in particular on the nature and degree of the defamation in question and the extent to which the media can reasonably regard their sources as reliable with respect to the allegations (see Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 67, ECHR 2007..., and Pedersen and Baadsgaard v.  [GC], no. 49017/99, § 78, ECHR 2004XI).\n\n29.  In cases of publications based on interviews a distinction needs to be made according to whether the statements emanate from the journalist or are quotations from others, since punishment of a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so (see Pedersen and Baadsgaard, cited above, § 77; Thorgeir Thorgeirson, cited above, § 65; and Jersild, cited above, § 35).\n\n(b)  Application to the present case\n\n30.  The Court notes the applicant was found civilly liable for publishing an interview with two former suspects in a theft case who alleged that the police had beaten them to extract confessions. The interview was followed by the applicant’s comment denouncing the authorities’ failure to investigate the allegations of ill-treatment and bring those responsible to justice.\n\n31.  It is common ground between the parties that the judgments pronounced in the defamation action constituted an “interference” with the applicant’s right to freedom of expression as protected by Article 10 § 1. It is not contested that the interference was “prescribed by law”, notably Article 152 of the Civil Code, and “pursued a legitimate aim”, that of protecting the reputation or rights of others, for the purposes of Article 10 § 2. The dispute in the case relates to whether the interference was “necessary in a democratic society”.\n\n32.  The test of necessity in a democratic society requires the Court to determine whether the “interference” complained of corresponded to a “pressing social need”, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it were relevant and sufficient. In assessing whether such a “need” exists and what measures should be adopted to deal with it, the national authorities are left a certain margin of appreciation. This margin of appreciation is not however unlimited, but goes hand in hand with a European supervision by the Court, whose task it is to give a final ruling on whether a restriction is reconcilable with freedom of expression as protected by Article 10. The Court’s task in exercising its supervisory function is not to take the place of the national authorities, but rather to review under Article 10, in the light of the case as a whole, the decisions they have taken pursuant to their margin of appreciation. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see, among many others, Krasulya v. , no. 12365/03, § 34, 22 February 2007, and Grinberg v. , no. 23472/03, § 27, 21 July 2005).\n\n33.  In the present case the applicant expressed his views by having them published in a newspaper. He was found civilly liable for his publication, therefore the impugned interference must be seen in the context of the essential role of the press in ensuring the proper functioning of a democratic society (see Lingens v. Austria, judgment of 8 July 1986, Series A no. 103, § 41, and Sürek (no. 1), cited above, § 59). The allegations of police brutality were obviously a matter of great public concern and the applicant was entitled to bring them to the public’s attention through the press. However, there is no evidence in the domestic judgments that the courts performed a balancing exercise between the need to protect the policemen’s reputation and journalists’ right to divulge information on issues of general interest. They confined their analysis to the discussion of the damage to the plaintiff’s reputation without giving any consideration to the applicant’s journalistic freedom or to the fact that the plaintiff was a civil servant acting in an official capacity and was accordingly subject to wider limits of acceptable criticism than private individuals (see case-law cited in paragraph 26 above). The Court therefore considers that the Russian courts failed to recognise that the present case involved a conflict between the right to freedom of expression and the protection of reputation (see, for similar reasoning, Kwiecień v. , no. 51744/99, § 52, ECHR 2007...).\n\n34.  Turning now to the contents of the article published by the applicant, the Court notes that a prominent feature of it was the interview with two alleged victims of police brutality, Mr S. and Mr M. Parts of the interview were found to have been defamatory by the domestic courts. In so finding, the Russian courts failed to distinguish between the author’s own speech and his quotation of others, treating as irrelevant the fact that the impugned statements did not emanate from the applicant but were clearly identified as those proffered by other persons (see paragraph 13 above). The domestic courts did not advance any justification for punishment of the applicant for assisting in the dissemination of statements made by another person in an interview, although they were required to give particularly strong reasons for doing so (see case-law cited in paragraph 29 above).\n\n35.  The Court further observes that the Russian courts characterised the contested extracts as statements of fact and found the applicant liable for his failure to show their veracity. The Court accepts that the article contained serious factual allegations against the police and that those allegations were susceptible of proof. However, the Court considers that in the context of the balancing exercise under Article 10, in particular where the reporting by a journalist of statements made by third parties is concerned, the relevant test is not whether the journalist can prove the veracity of the statements but whether a sufficiently accurate and reliable factual basis proportionate to the nature and degree of the allegation can be established (see Pedersen and Baadsgaard, cited above, § 78). In that respect, it notes that the applicant submitted documentary evidence, including a dictaphone recording of his conversation with Mr S. and Mr M., the medical report noting Mr S.’s injuries, the records of the confessions made by Mr S. and Mr M. at the police station and copies of their complaints of ill-treatment. He also called Mr S. and Mr M. to the witness stand to confirm that the article reproduced their statements accurately without distorting or exaggerating them. The evidence produced by the applicant showed that Mr M. and Mr S. had been indeed questioned by the police officers of the Leninskiy District police station and confessed to the theft, that they had sustained injuries while in police custody, and had complained to the domestic authorities that they had been ill-treated. It also demonstrated that despite their confessions Mr M. and Mr S. had never been charged and that another person had ultimately been convicted of the theft.\n\n36.  The domestic courts found that the materials submitted by the applicant were not relevant evidence of ill-treatment, without explaining the reasons for that finding (see paragraph 13 above). It transpires from the Government’s submissions that the courts attached such preponderant weight to the findings of the prosecutor’s inquiry into Mr S.’s and Mr M.’s allegations of ill-treatment and the refusal to initiate criminal proceedings against the policemen that no evidence produced by the applicant could have convinced them of the veracity of the statements published by him. The Court recalls in this respect that the standard of proof for establishing the well-foundedness of a criminal charge by a competent authority can hardly be compared to that which ought to be observed by a journalist when expressing his opinion on a matter of public concern (see Karman v. , no. 29372/02, § 42, 14 December 2006, and Unabhängige Initiative Informationsvielfalt v. , no. 28525/95, § 46, ECHR 2002I). The Court is therefore not satisfied that the Russian courts gave relevant and sufficient reasons for dismissing the evidence produced by the applicant or based their decisions on an acceptable assessment of relevant facts. In the Court’s view, the body of evidence available provided sufficient factual basis for the allegation of police brutality. The Court is also unable to accept the Government’s argument that it was not permissible for the applicant to publish the allegations of ill-treatment after the authorities had refused to initiate criminal proceedings against the police officers. The applicant mentioned in his article that the prosecutor’s office had refused to open an investigation into the claims of ill-treatment made by Mr S. and Mr M. He criticised the authorities for their passive attitude to the credible allegations of mistreatment of criminal suspects, thereby expressing his opinion on a matter of public concern.\n\n37.  Finally, the domestic courts found fault with the applicant for creatively rewriting Mr S.’s statements, increasing the emotional intensity and emphasising certain aspects. The Court observes that in their oral submissions at the hearing Mr S. and Mr M. confirmed the accuracy of the story as reproduced in the article. The Court is therefore convinced that the applicant recounted the facts faithfully without distorting them. Although it is true that the applicant did not publish the interview in its entirety, omitting some parts and laying emphasis on the others with the aim of intensifying the emotional impact of the publication, there is no indication that he went beyond the generally acceptable degree of exaggeration or provocation (see the case-law cited in paragraph 27 above).\n\n38.  In the light of the above considerations and taking into account the role of journalists and the press in imparting information and ideas on matters of public concern, the Court finds that the applicant’s publication was fair comment on a matter of public concern resting on a sufficient factual basis and that it did not exceed the acceptable limits of criticism. The judgments in the defamation action against the applicant gave rise to a breach of his right to freedom of expression since, by omitting to perform a balancing exercise between the need to protect the plaintiff’s reputation and the applicant’s right to divulge information on issues of general interests, by refusing to distinguish between the applicant’s own speech and his quotation of statements made by others during an interview, and by failing to make an acceptable assessment of the relevant facts, the Russian courts did not apply standards which were in conformity with the principles embodied in Article 10 and did not adduce “relevant” and “sufficient” reasons justifying the interference at issue. The Court therefore considers that the domestic courts overstepped the narrow margin of appreciation afforded to them with regard to restrictions on debates on matters of public interest and that the interference was not “necessary in a democratic society”.\n\nThere has therefore been a violation of Article 10 of the Convention.\n\nII.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION\n\n39.  The applicant complained that the defamation proceedings had been unfair. He relied on Article 6 of the Convention, the relevant part of which reads as follows:\n\n“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”\n\n40.  It is not the Court’s function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see, among many other authorities, Čekić and Others v.  (dec.), no. 15085/02, 9 October 2003). Having regard to the facts as submitted, the Court has not found any reason to believe that the proceedings did not comply with the fairness requirement of Article 6 of the Convention. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.\n\nIII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n41.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n42.  The applicant claimed 59 euros (EUR) in respect of pecuniary damage, representing the amount paid by him to the plaintiff in the defamation action. He also claimed EUR 1,000 in respect of non-pecuniary damage.\n\n43.  The Government accepted the claim in respect of pecuniary damage. They considered that the claim in respect of non-pecuniary damage was excessive. In their view, a finding of a violation would constitute sufficient just satisfaction.\n\n44.  The Court reiterates that under its case-law a sum paid as reparation for damage is only recoverable if a causal link between the violation of the Convention and the damage sustained is established. Thus, in the present case, the sums which the applicant had to pay to the plaintiff in the defamation action may be taken into account (compare Thoma, cited above, § 71). The Court therefore awards EUR 59 to the applicant in respect of pecuniary damage, plus any tax that may be chargeable.\n\n45.  As regards non-pecuniary damage, the Court considers that the applicant has suffered non-pecuniary damage as a result of the domestic courts’ judgments, which were incompatible with the Convention principles. The damage cannot be sufficiently compensated by a finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 1,000, plus any tax that may be chargeable on that amount.\n\nB.  Costs and expenses\n\n46.  Relying on the lawyers’ timesheets, the applicant claimed EUR 1,100 for his representation. His representatives had spent 22 hours in the preparation of the observations and just satisfaction claims. It was agreed between the applicant and his representatives that their work would be remunerated at the rate of EUR 50 per hour.\n\n47.  The Government considered the costs and expenses claimed by the applicant to be unnecessary and unreasonable as to quantum. The case was not complicated and it was not necessary to retain two lawyers. Moreover, the applicant had not produced the legal fee agreement or documents showing that he had indeed paid the legal fee.\n\n48.  According to the Court’s case-law, an applicant is entitled to reimbursement of his costs and expenses in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,100, plus any tax that may be chargeable to the applicant on that amount.\n\nC.  Default interest\n\n49.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Declares the complaint concerning the alleged unjustified interference with the right to freedom of expression admissible and the remainder of the application inadmissible;\n\n2.  Holds that there has been a violation of Article 10 of the Convention;\n\n3.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Russian roubles at the rate applicable at the date of settlement:\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.\n\nDone in English, and notified in writing on 14 October 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_575","text":"PROCEDURE\n\n1.  The case originated in an application (no. 22592/02) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian national, Mrs Zoltánné Molnár (“the applicant”), on 6 May 2002.\n\n2.  The Hungarian Government (“the Government”) were represented by their Agent, Mr L. Höltzl, Deputy State-Secretary, Ministry of Justice.\n\n3.  On 28 April 2003 the Court decided to communicate the complaint concerning the length of the proceedings. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time.\n\nTHE FACTS\n\n4.  The applicant is a member of the Roma ethnic minority, who was born in 1943 and lives in .\n\n5.  On 3 October 1996 the applicant brought an action requesting that a flat which she had purchased from a third person, Mrs I.S., be vacated.\n\n6.  In the meantime, Mrs I.S. brought an action before the same court challenging the validity of the contract of sale.\n\n7.  On 2 April 1997 the Pest Central District Court suspended the proceedings relating to the applicant's action pending the outcome of the dispute over the validity of the contract of sale.\n\n8.  In the proceedings instituted by Mrs I.S., the Pest Central District Court held six hearings until 12 January 1999, when it dismissed the plaintiff's action. On 28 October 1999 the  quashed the District Court's decision and remitted the case to first instance. Following five hearings, on 6 February 2001 the District Court dismissed Mrs I.S.'s action. This judgment was finally confirmed by the  on 13 September 2001.\n\n9.  On the applicant's request, on 2 May 2002 the District Court held a hearing in the case concerning the evacuation of the flat in question. With an order, the court again suspended the proceedings until the applicant's ownership had been registered by the Budapest Land Registry.\n\n10.  The applicant appealed against this order on 15 May 2002, submitting that the original copy of the contract of sale could not be located at the Land Registry with the result that the applicant's ownership of the flat could not be registered.\n\n11.  On 29 May 2002 the Budapest Land Registry informed the District Court that the original copy of the contract had been sent to the District Court in the context of the case terminated on 13 September 2001. It requested the court to return the contract to it.\n\n12.  On 9 July 2002 the  dismissed the applicant's appeal of 15 May 2002, holding that the registration of her ownership had to be dealt with as a preliminary question.\n\n13.  On 4 September 2002 the Land Registry informed the applicant that the District Court had not replied to its request to date.\n\n14.  On 17 September 2002 the applicant also requested the District Court to return the contract in question to the Land Registry.\n\n15.  In February 2004 the applicant was informed that the contract in question had been found at the court. The proceedings are apparently either still suspended or pending.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION\n\n16.  The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, provided in Article 6 § 1 of the Convention, which reads as follows:\n\n“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”\n\n17.  The Government contested that argument.\n\n18.  The period to be taken into consideration began on 3 October 1996 and has not yet ended. It has thus lasted almost eight years to date.\n\nA.  Admissibility\n\n19.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n20.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).\n\n21.  The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above).\n\n22.  Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.\n\nThere has accordingly been a breach of Article 6 § 1.\n\nII.  ALLEGED VIOLATIONS OF ARTICLES 6 § 1, 13 AND 14 OF THE CONVENTION CONCERNING THE FAIRNESS OF THE PROCEEDINGS\n\nAdmissibility\n\n23.  The applicant also complained that the proceedings were unfair. She invoked Articles 6 § 1, 13 and 14 of the Convention.\n\nThe Court notes that the proceedings are still pending. This part of the application must therefore be rejected as being premature, pursuant to Article 35 §§ 1 and 4 of the Convention.\n\nIII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n24.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n25.  The applicant claimed 11,520 euros (EUR) in respect of pecuniary damage for the rent he has been paying and EUR 40,570 for non-pecuniary damage.\n\n26.  The Government contested these claims.\n\n27.  As regards the rent payments, the Court considers that since the applicant is entitled to recover them from the tenant in civil proceedings before the domestic courts, no award should be made under this head. However, it awards the applicant EUR 6,000 in respect of non-pecuniary damage.\n\nB.  Costs and expenses\n\n28.  The applicant also claimed EUR 392 for the costs and expenses incurred before the domestic courts and for those incurred before the Court.\n\n29.  The Government contested the claim.\n\n30.  According to the Court's case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers that the sum claimed should be awarded in full.\n\nC.  Default interest\n\n31.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Declares the complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible;\n\n2.  Holds that there has been a violation of Article 6 § 1 of the Convention concerning the length of the proceedings;\n\n3.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 6,392 (six thousand three hundred and ninety-two euros) in respect of non-pecuniary damage and costs and expenses, converted into the national currency of the respondent State at the rate at the date of settlement, plus any tax that may be chargeable;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n4.  Dismisses the remainder of the applicant's claim for just satisfaction.\n\nDone in English, and notified in writing on 5 October 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_349","text":"PROCEDURE\n\n1.  The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table.\n\n2.  The applications were communicated to the Russian Government (“the Government”).\n\nTHE FACTS\n\n3.  The list of applicants and the relevant details of the applications are set out in the appended table.\n\n4.  The applicants complained of the inadequate conditions of their detention. They also raised other complaints under the provisions of the Convention.\n\nTHE LAW\n\nI.  JOINDER OF THE APPLICATIONS\n\n5.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.\n\nII. THE GOVERNMENT’S REQUEST TO STRIKE OUT THE APPLICATIONS UNDER ARTICLE 37 § 1 OF THE CONVENTION\n\n6.  The Government submitted unilateral declarations which did not offer a sufficient basis for finding that respect for human rights as defined in the Convention does not require the Court to continue the examination of the cases (Article 37 § 1 in fine). The Court rejects the Government’s request to strike the applications out and will accordingly pursue its examination of the merits of the cases (see Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, § 75, ECHR 2003-VI).\n\nIII.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION\n\n7.  The applicants complained principally of the inadequate conditions of their detention. They relied on Article 3 of the Convention, which reads as follows:\n\n“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”\n\n8.  The Court notes that the applicants were kept in detention in poor conditions. The details of the applicants’ detention are indicated in the appended table. The Court refers to the principles established in its caselaw regarding inadequate conditions of detention (see, for instance, Muršić v. Croatia [GC], no. 7334/13, §§ 96101, ECHR 2016). It reiterates in particular that a serious lack of space in a prison cell weighs heavily as a factor to be taken into account for the purpose of establishing whether the detention conditions described are “degrading” from the point of view of Article 3 and may disclose a violation, both alone or taken together with other shortcomings (see Muršić, cited above, §§ 122 141, and Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 149159, 10 January 2012).\n\n9.  In the leading cases of Ananyev and Others v. Russia, cited above, and Butko v. Russia, no. 32036/10, §§ 54-64, 12 November 2015, the Court already found a violation in respect of issues similar to those in the present case.\n\n10.  Having examined all the material submitted to it and the Government’s argument related to the “continuous” nature of some of the applicants’ detention, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints (see, for similar assessment, Fetisov and Others v. Russia, nos. 43710/07 and 6 others, § 78, 17 January 2012). Having regard to its case-law on the subject, the Court considers that in the instant case the applicants’ conditions of detention were inadequate.\n\n11.  These complaints are therefore admissible and disclose a breach of Article 3 of the Convention.\n\nIV.  OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW\n\n12.  The applicants submitted other complaints which also raised issues under the Convention, in accordance with the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its findings in Svinarenko and Slyadnev v. Russia, [GC], nos. 32541/08 and 43441/08, §§ 122-139, ECHR 2014 (extracts), regarding the confinement of a defendant in a metal cage during the trial; Idalov v. Russia [GC], no. 5826/03, §§ 103-108, and §§ 154-158, 22 May 2013, regarding conditions of transport of detainees and the lack of speediness and procedural safeguards in the review of detention matters; Yevdokimov and Others v. Russia, nos. 27236/05 and 10 others, §§ 49-53, 16 February 2017, concerning absence of an effective opportunity for detainees to attend hearings in their civil cases; Dirdizov v. Russia, no. 41461/10, §§ 108-11, 27 November 2012, related to reasons for and length of the pre-trial detention; and Ananyev and Others, cited above, §§ 100-119, pertaining to the absence of an effective remedy to complain about the conditions of detention in Russia.\n\nV.  REMAINING COMPLAINT\n\n13.  In application no. 41524/12, the applicant also raised a complaint under Article 5 § 1 of the Convention.\n\n14.  The Court has examined the application and considers that, in the light of all the material in its possession and in so far as the matter complained of is within its competence, this complaint either does not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or does not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.\n\nIt follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.\n\nVI.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n15.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\n16.  Regard being had to the documents in its possession and to its caselaw (see, in particular, Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, 10 January 2012, and Butko v. Russia, no. 32036/10, § 68, 12 November 2015), the Court considers it reasonable to award the sums indicated in the appended table.\n\n17.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\n1.  Decides to join the applications;\n\n2.  Rejects the Government’s request to strike the applications out of its list of cases under Article 37 of the Convention on the basis of the unilateral declarations which they submitted;\n\n3.  Declares the complaints concerning the inadequate conditions of detention and the other complaints under well-established case-law of the Court, as set out in the appended table, admissible, and the remainder of the application no. 41524/12 inadmissible;\n\n4.  Holds that these complaints disclose a breach of Article 3 of the Convention concerning the inadequate conditions of detention;\n\n5.  Holds that there has been a violation as regards the other complaints raised under well-established case-law of the Court (see appended table);\n\n6.  Holds\n\n(a)  that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n7.  Dismisses the remainder of the applicants’ claims for just satisfaction.\n\nDone in English, and notified in writing on 20 July 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_893","text":"PROCEDURE\n\n1.  The case was referred to the Court, as established under former Article 19 of the Convention3 by the European Commission of Human Rights (“the Commission”) on 24 September 1998, within the three-month period laid down by former Articles 32 § 1 and 47 of the Convention. It originated in an application (no. 22479/93) against the Republic of Turkey lodged with the Commission under former Article 25 by a Turkish national, Mr Ünsal Öztürk, on 24 May 1993.\n\nThe Commission’s request referred to former Articles 44 and 48 and to the declaration whereby Turkey recognised the compulsory jurisdiction of the Court (former Article 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 10 of the Convention.\n\n2.  In response to the enquiry made in accordance with Rule 33 § 3 (d) of former Rules of Court A, the applicant stated that he wished to take part in the proceedings and designated Mr H. Öndül of the Ankara Bar as the lawyer who would represent him (former Rule 30).\n\n3.  As President of the Chamber which had originally been constituted (former Article 43 of the Convention and former Rule 21) in order to deal, in particular, with procedural matters that might arise before the entry into force of Protocol No. 11, Mr R. Bernhardt, the President of the Court at the time, acting through the Registrar, consulted the Agent of the Turkish Government (“the Government”), the applicant’s lawyer and Mr H. Danelius, the Delegate of the Commission, on the organisation of the written procedure. An order was made in consequence on 15 October 1998 fixing a time-limit for the submission of memorials.\n\n4.  After the entry into force of Protocol No. 11 on 1 November 1998 and in accordance with the provisions of Article 5 § 5 thereof, the case was referred to the Grand Chamber of the Court. On 11 December 1998 the President of the Court, Mr L. Wildhaber, decided that, in the interests of the proper administration of justice, the instant case should be referred to the Grand Chamber that had been constituted to hear thirteen other cases against Turkey, namely: Karataş v. Turkey (application no. 23168/94); Arslan v. Turkey (no. 23462/94); Polat v. Turkey (no. 23500/94); Ceylan v. Turkey (no. 23556/94); Okçuoğlu v. Turkey (no. 24246/94); Gerger v. Turkey (no. 24919/94); Erdoğdu and İnce v. Turkey (nos. 25067/94 and 25068/94); Başkaya and Okçuoğlu v. Turkey (nos. 23536/94 and 24408/94); Sürek and Özdemir v. Turkey (nos. 23927/94 and 24277/94); Sürek v. Turkey (no. 1) (no. 26682/95); Sürek v. Turkey (no. 2) (no. 24122/94); Sürek v. Turkey (no. 3) (no. 24735/94) and Sürek v. Turkey (no. 4) (no. 24762/94).\n\n5.  The Grand Chamber constituted for that purpose included ex officio Mr R. Türmen, the judge elected in respect of Turkey (Article 27 § 2 of the Convention and Rule 24 § 4 of the Rules of Court), Mr Wildhaber, the President of the Court, Mrs E. Palm, Vice-President of the Court, and Mr J.P. Costa and Mr M. Fischbach, Vice-Presidents of Sections (Article 27 § 3 of the Convention and Rule 24 §§ 3 and 5 (a)). The other members appointed to complete the Grand Chamber were Mr A. Pastor Ridruejo, Mr G. Bonello, Mr J. Makarczyk, Mr P. Kūris, Mrs F. Tulkens, Mrs V. Strážnická, Mr V. Butkevych, Mr J. Casadevall, Mrs H.S. Greve, Mr A.B. Baka, Mr R. Maruste and Mrs S. Botoucharova (Rule 24 § 3 and Rule 100 § 4).\n\n6.  On 15 December 1998 the Registrar received the memorial of the applicant, to whom the President had given leave to use the Turkish language in the written procedure (Rule 34 § 3).\n\n7.  On 21 December 1998 Mr Wildhaber exempted Mr Türmen from sitting after his withdrawal from the case in the light of the decision of the Grand Chamber taken in accordance with Rule 28 § 4 in the case of Oğur v. Turkey. On 11 January 1999 the Government notified the Registry that Mr F. Gölcüklü had been appointed ad hoc judge (Rule 29 § 1).\n\nSubsequently Mr K. Traja, substitute, replaced Mrs Palm, who was unable to take part in the further consideration of the case (Rule 24 § 5 (b)).\n\n8.  On 8 February 1999, within the time-limit as extended by the President, the Registry received the Government’s memorial, written in Turkish, and on 22 February it received a corrected version of the documents appended to the memorial. The applicant and the Government filed replies on 15 and 16 March respectively. On the last-mentioned date the Government also supplied information in response to the Judge Rapporteur’s questions about the facts of the case and Turkish law. On 30 March they sent the Registry documents intended to be appended to their memorial in reply. On 20 April the Registry received the English version of the Government’s memorial.\n\n9.  On 22 April 1999 the Grand Chamber decided to dispense with a hearing, having regard to the case file and the fact that the applicant and the Government had stated that they were prepared to forgo such a hearing (Rule 59 § 2).\n\n10.  On 20 September 1999 Mr L. Caflisch, substitute, replaced Mr Makarczyk, who was unable to take part in the further consideration of the case (Rule 24 § 5 (b)).\n\nTHE FACTS\n\n11.  Mr Öztürk, the applicant, was born in 1957. He is one of the owners of the Yurt Kitap-Yayın publishing house and lives in Ankara.\n\nIn October 1988 he published a book by N. Behram entitled A testimony to life – Diary of a death under torture (Hayatın Tanıklığında – İşkencede Ölümün Güncesi). The book gave an account of the life of İbrahim Kaypakkaya, who in 1973 had been one of the founder members of the Communist Party of Turkey – Marxist-Leninist (Türkiye Komünist Partisi – Marksist-Leninist – “the TKP-ML”), an illegal Maoist organisation.\n\nThe 111-page book, illustrated by photographs, has 24 chapters, each of which is prefaced by a poem. These poems were written by four Turkish poets, namely the author himself, A. Arif, M. Derviş and A. Kadir, by the Chilean writer P. Neruda and by İbrahim Kaypakkaya.\n\nAs the first edition had sold out as soon as it was placed on sale, the book was republished in November 1988.\n\n12.  On 21 December 1988 the public prosecutor at the Ankara National Security Court (“the National Security Court”) instituted criminal proceedings against Mr Behram, the author of the book, and the applicant, its publisher. However, he dealt with the case against Mr Behram separately, having noted that he had not been in Turkey at the material time.\n\nA.  The proceedings brought against Mr Öztürk\n\n13.  On 23 December 1988, at the request of the public prosecutor, a single judge of the National Security Court made an interim order for the seizure of the copies of the second edition. According to the file, 3,195 copies were seized as a result, including 3,133 at the applicant’s publishing house.\n\nOn 5 January 1989 the applicant asked the judge to reconsider the above order; this appeal was dismissed.\n\n14.  On 14 February 1989 the public prosecutor charged the applicant with disseminating communist propaganda in breach of former Article 142 §§ 4 and 6 of the Criminal Code (see paragraph 29 below) and of inciting the people to hatred and hostility on the basis of a distinction between social classes, an offence under Article 312 §§ 2 and 3 of the same Code (see paragraph 30 below).\n\nReferring to İ. Kaypakkaya’s antecedents, the public prosecutor emphasised that at the head of the TKP-ML, a terrorist organisation, he had carried out armed raids with a view to overthrowing the constitutional order of the State in order to set up a communist regime.\n\nIn support of his submissions the public prosecutor first drew attention to the description of İ. Kaypakkaya’s father given on the second page of the book: “He was a worker who could not accept that life should flow by in that way, and that sweat, energy and labour should be exploited like that. He was dissatisfied with this state of affairs and wanted that forlorn world to change”. The public prosecutor argued that by equating the status quo with a spoliatory regime this sentence undoubtedly praised communism.\n\nThe public prosecutor went on to cite the following poems.\n\n“... Ambushes guide me towards my people,\nvital force of the guerilla war;\nresistance is a terrible and noble passion,\nbut that is not all;\nlike a mistress, it is in addition\nhesitant,\ndocile,\ndelicate,\ndeft;\nwe who are masters of patriotism,\nhope\nis hidden within us, the immortal standard is red\nand streams out in the wind ...”\n\n((p. 15) A. Arif, published in January 1974 in the weekly publication Yeni A)\n\nAccording to the public prosecutor, this poem was to be interpreted in the light of the actions of İ. Kaypakkaya. Seen from that point of view, it insinuated that terrorist acts enabled their perpetrators to draw closer to the people and recruit active terrorists from among them and that it was necessary to struggle patiently to establish a communist regime. In his submission, that amounted to illegal communist propaganda.\n\n“To our dead comrades\n\nYou, who gave your lives for our people;\nYou, who gave everything in this fight;\nYou, who gave the colour red\nTo the battle standard\nWhich flies proudly in our hearts;\nYou, who died for our immortal people;\nYou, the sublime sons of our people,\nRest now with pride and patience,\nYour comrades are carrying on the fight ...”\n\n((p. 27) İ. Kaypakkaya)\n\nThe public prosecutor observed that this text honoured the memory of the dead terrorists who had sought to undermine the State’s constitutional regime by force of arms and was intended, particularly in its last phrase, to stir up hatred and hostility.\n\n“... The only light\nThat awoke us\nWas the light of the world!\nI went into their houses\nWhere they sat round the table\nAfter returning from their work;\nThey laughed or wept\nAnd each resembled the others;\nThey turned their faces towards the light,\nSeeking their way ...”\n\n((p. 30) P. Neruda)\n\nThe public prosecutor argued that this poem constituted communist propaganda because it held up communism as the only source of light for proletarians.\n\n“... They carried out the death sentence;\nThey spattered with blood\nThe blue mist of the mountains and\nThe newly woken morning breeze;\nThen they came [and put down their] weapons.\nCarefully feeling our chests,\nThey examined us,\nSearching everywhere ...”\n\n((p. 35) A. Arif, “Your absence made me wear out  chains”, 1968)\n\nThe public prosecutor contended that these phrases were contemptuous of the security forces who had to stand against the terrorists and thus incited the people to show hatred and hostility towards them.\n\nLastly, he noted that the expression “May their virtue be our guide and their memory a light on our way”, which appeared on the very last page of the book, referred to İ. Kaypakkaya and the other terrorists.\n\nConsequently, the public prosecutor argued that the enthusiastic eulogy of the personality and acts of the rebel İ. Kaypakkaya in the book in issue justified both Mr Öztürk’s conviction as the publisher responsible within the meaning of section 16(4) of the Press Act (Law no. 5680 – see paragraph 32 below) and confiscation of the copies of the book pursuant to Article 36 § 1 of the Criminal Code (see paragraph 28 below).\n\n15.  Before the National Security Court the applicant contested the charges, submitting that he had published the book because he considered that there was nothing in it which could justify repressive measures. In addition, his lawyers argued in particular that the passages in issue, reproduced in the indictment, could not by any means be taken for separatist propaganda and that even supposing that they could be regarded as a criticism of the State as constituted at that time, it was the right of every citizen to make such a criticism.\n\n16.  On 30 March 1989 the National Security Court found the applicant guilty as charged.\n\nIn its judgment, after stating that it was satisfied “that there [was] no need to ask experts to examine the book, given that its content [could] be understood by anyone on the first reading ...”, the National Security Court accepted that the passages cited in the indictment did indeed praise the aim and the armed raids of the TKP-ML and its leader and accordingly that the public prosecutor was fully justified in interpreting them as open incitement of the people to hatred and hostility. However, observing that it had considered the content of the book as a whole – in accordance with the case-law of the Court of Cassation – the National Security Court dismissed the defence arguments relating precisely to the alleged lack of relevance of an assessment based on this or that isolated extract from the book.\n\nConsidering that it was not necessary to reproduce in the operative provisions of the judgment the passages judged to be in breach of the law, the National Security Court held:\n\n“All things considered, the book is intended to glorify and venerate both communism and the terrorist İ. Kaypakkaya ... who was a supporter of communism, and to defend his actions ... Moreover, [the book] expressly incites the people to hatred and hostility on the basis of a distinction between regions, social classes and races.”\n\nThe National Security Court sentenced Mr Öztürk to fines of 328,500 and 285,000 Turkish liras (TRL) under Article 142 § 4 and Article 312 § 2 of the Criminal Code respectively (see paragraphs 29 and 30 below) and ordered the book’s confiscation (see paragraph 28 below).\n\n17.  By a judgment of 26 September 1989 the Court of Cassation declared an appeal by the applicant on points of law inadmissible as regards his conviction under Article 312 of the Criminal Code, on the ground that no appeal lay against it in view of the amount of the fine ordered for the offence concerned. However, it set aside the verdict under Article 142 § 4 on the ground that it was unlawful to establish the accused’s guilt merely by referring to the indictment without stating, with reasons, how and in what parts the book was an apologia of communism. It remitted the case on this point to the National Security Court.\n\n18.  On 9 January 1990 the applicant paid the fine of TRL 285,000.\n\n19.  In the judgment it delivered on 28 December 1990 the National Security Court, basing its decision on an expert report on the content of the book, confirmed the sentence it had imposed under Article 142 of the Criminal Code; it also upheld its order for the confiscation of the book.\n\nHowever, on 1 March 1991 this judgment was likewise quashed by the Court of Cassation, on the ground that the report on which it was based had not been written by experts who had taken the oath. The case was then once again remitted to the National Security Court.\n\n20.  Before the National Security Court the public prosecutor called for Mr Öztürk’s acquittal on the charge of disseminating communist propaganda. He submitted that Article 142 of the Criminal Code, on which the conviction in question had been based, had been repealed by the Prevention of Terrorism Act (Law no. 3713), which had come into force on 12 April 1991.\n\nBy a judgment of 11 June 1991 the National Security Court accepted the public prosecutor’s submissions. However, observing that the judgment delivered on 30 March 1989 had become final with regard to the conviction under Article 312 of the Criminal Code (see paragraph 17 above), it noted that the confiscation order remained operative.\n\nIt appears from the file that 2,845 confiscated copies of the book were destroyed on 21 April 1992.\n\nB.  The proceedings brought against the author\n\n21.  On 1 March 1989, that is before the date of Mr Öztürk’s initial conviction (see paragraph 16 above), the public prosecutor charged the book’s author, Mr N. Behram, then living in Germany. The indictment filed for that purpose was essentially a copy of the one which had set in motion the proceedings against the applicant (see paragraph 14 above).\n\n22.  By a judgment of 22 May 1991, given in the defendant’s absence, the National Security Court, composed of three judges of whom one had also tried the case of Mr Öztürk, observed firstly that the court was not required to rule on application of Article 142, which had been repealed in the meantime (see paragraph 29 below), then acquitted Mr Behram on the basis of an expert report, in which three professors of criminal law maintained that there was nothing in the book which might be held to constitute the offence defined in Article 312 of the Criminal Code.\n\nIn its judgment the National Security Court, emphasising the book’s documentary nature, confined itself to an endorsement of the conclusions of the above-mentioned expert report.\n\n23.  This judgment became final, no appeal on points of law having been lodged.\n\nC.  The further proceedings brought by the applicant\n\n24.  On 19 September 1991 the applicant, having been informed of Mr Behram’s acquittal, applied to the Minister of Justice asking him to refer the case to the Court of Cassation (Yazılı emir ile bozma – see paragraph 33 below) by means of an appeal against his conviction under Article 312 of the Criminal Code and against the confiscation order (see paragraph 16 above). In support of his application the applicant pleaded the contradiction between the judgment given against him and the judgment given in respect of the author, whereas both of them had been tried on account of the same book.\n\n25.  Consequently, on 16 January 1992, by order of the Minister of Justice, Principal State Counsel at the Court of Cassation (“Principal State Counsel”) appealed against the judgment delivered on 28 December 1990 in the applicant’s case (see paragraph 19 above), pleading the lack of an explicit decision on what was to be done about the confiscation order.\n\nAfter the Court of Cassation’s dismissal of the appeal on 27 January 1992 the applicant applied for a second time to the Minister of Justice, submitting that Principal State Counsel had appealed on the wrong grounds.\n\nThe Minister of Justice allowed this application and instructed Principal State Counsel to argue that the judgment of 30 March 1989 (see paragraph 16 above) was bad in so far as the author himself had subsequently been acquitted of charges identical to those which had led to Mr Öztürk’s conviction for incitement of the people to hatred and hostility (see paragraph 22 above).\n\n26.  In its judgment of 8 January 1993 the Court of Cassation dismissed the ground of appeal submitted by Principal State Counsel, ruling as follows:\n\n“The defendant was charged with the offences contemplated in Article 142 §§ 4 and 6 and Article 312 §§ 2 and 3 of the Criminal Code. The constituent elements of those offences were different. The acquittal of another accused tried for the same offence cannot be taken as justified and unshakeable evidence that the defendant should also have been acquitted. [In addition] the two accused were tried separately and the judgment acquitting Mustafa Nihat [Behram] became final without any appeal on points of law being lodged. Lastly, there is no evidence that the assessment of the content of the book A testimony to life – Diary of a death under torture made in the judgment at first instance is bad and must be invalidated ...”\n\n27.  At the present time Mr Behram’s book is on open sale. It is published by another publishing house, Altınçağ Yayıncılık, under the different title Biography of a communist (Bir komünistin biyografisi).\n\nII.  relevant domestic law and practice\n\nA.  Criminal law\n\n1.  The Criminal Code\n\n28.  Article 36 § 1 of the Criminal Code provides:\n\n“In the event of conviction the court shall order the seizure and confiscation of any object which has been used for the commission or preparation of the crime or offence ...”\n\n29.  The relevant paragraphs of former Article 142 of the Criminal Code, repealed by the Prevention of Terrorism Act (Law no. 3713), provided:\n\n“Harmful propaganda\n\n1.  A person who by any means whatsoever spreads propaganda with a view to establishing the domination of one social class over the others, annihilating a social class, overturning the fundamental social or economic order established in Turkey or the political or legal order of the State shall, on conviction, be liable to a term of imprisonment of from five to ten years.\n\n2.  A person who by any means whatsoever spreads propaganda in favour of the State’s being governed by a single person or social group to the detriment of the underlying principles of the Republic and democracy shall, on conviction, be liable to a term of imprisonment of from five to ten years.\n\n3.  A person who, prompted by racial considerations, by any means whatsoever spreads propaganda aimed at abolishing in whole or in part public-law rights guaranteed by the Constitution or undermining or destroying patriotic sentiment shall, on conviction, be liable to a term of imprisonment of from five to ten years.\n\n4.  A person who publicly condones the offences contemplated in the above paragraphs shall, on conviction, be liable to a term of imprisonment of from two to five years.\n\n...\n\n6.  Where the offences contemplated in the above paragraphs are committed through publication, the penalty to be imposed shall be increased by half.”\n\n30.  Article 311 § 2 and Article 312 of the Criminal Code provide:\n\nArticle 311 § 2\n\n“Public incitement to commit an offence\n\n…\n\nWhere incitement to commit an offence is done by means of mass communication, of whatever type – whether by tape recordings, gramophone records, newspapers, press publications or other published material – by the circulation or distribution of printed papers or by the placing of placards or posters in public places, the terms of imprisonment to which convicted persons are liable shall be doubled …”\n\nArticle 312\n\n“Non-public incitement to commit an offence\n\nA person who expressly praises or condones an act punishable by law as an offence or incites the population to break the law shall, on conviction, be liable to between six months’ and two years’ imprisonment and a heavy fine of from six thousand to thirty thousand Turkish liras.\n\nA person who incites the people to hatred or hostility on the basis of a distinction between social classes, races, religions, denominations or regions, shall, on conviction, be liable to between one and three years’ imprisonment and a fine of from nine thousand to thirty-six thousand liras. If this incitement endangers public safety, the sentence shall be increased by one-third to one-half.\n\nThe penalties to be imposed on those who have committed the offences defined in the previous paragraph shall be doubled when they have done so by the means listed in Article 311 § 2.”\n\n31.  With regard more particularly to application of the above-mentioned Article 312 of the Criminal Code to the publishers of printed matter giving rise to criminal charges, the Government have submitted examples of judgments given by the Court of Cassation and supplied further information which may be summarised as follows.\n\nIn connection with offences committed through the medium of printed matter, the “principal” responsibility for the offence defined in Article 312 is incurred by the author of the writing concerned. The publisher’s responsibility is “secondary” and is incurred under section 16(4) of Law no. 5680 (see paragraph 32 below). A publisher facing criminal proceedings is charged with “publishing the writing which constitutes the offence” contemplated in Article 312. However, there are provisions, such as section 8 of the Prevention of Terrorism Act (Law no. 3713), which form a lex specialis making publishers criminally responsible.\n\nThe main effect of the distinction drawn between the responsibility borne by authors and that borne by publishers is that, unlike the position regarding the former, prison sentences imposed on the latter are commuted to a fine, save in those cases where the above-mentioned Law no. 3713 applies.\n\n2.  The Press Act (Law no. 5680 of 15 July 1950)\n\n32.  Section 3 and section 16(4) of Law no. 5680 provide:\n\nSection 3\n\n“For the purposes of the present Law, the term ‘periodicals’ shall mean newspapers, press agency dispatches and any other printed matter published at regular intervals.\n\n‘Publication’ shall mean the exposure, display, distribution, emission, sale or offer for sale of printed matter on premises to which the public have access where anyone may see it.\n\nAn offence shall not be deemed to have been committed through the medium of the press unless publication has taken place, except where the material in itself is unlawful.”\n\nSection 16(4)\n\n“...\n\n4.  With regard to offences committed through the medium of publications other than periodicals, criminal responsibility shall be incurred by the author, translator or illustrator of the publication which constitutes the offence, and by the publisher. However, custodial sentences imposed on publishers shall be commuted to a fine, irrespective of the term [of imprisonment] ...”\n\n3.  The Code of Criminal Procedure\n\n33.  Article 343 § 1 of the Code of Criminal Procedure, concerning references to the Court of Cassation by written order of the Minister of Justice (Yazılı emir ile bozma – “reference by written order”) provides:\n\n“Where the Minister of Justice has been informed that a judge or court has delivered a judgment that has become final without coming under the scrutiny of the Court of Cassation, he may issue a formal order to Principal State Counsel requiring him to ask the Court of Cassation to set aside the judgment concerned ...”\n\n34.  With regard to the practice followed under Turkish law for a reference by written order, the Government have submitted the following information.\n\nThis form of appeal lies only against judgments given at last instance which are not appealable to the Court of Cassation (see paragraph 17 above) or against which no party has lodged an appeal on points of law. Only Principal State Counsel at the Court of Cassation is empowered to refer a case, and then only on receipt of a formal order to that effect from the Minister of Justice, who may act either of his own motion or at the request of the convicted person. The powers conferred on the Court of Cassation when it deals with such an appeal are “extraordinary”; they may not be exercised save under the conditions laid down by law nor may the decision prejudice the convicted person. If the appeal succeeds, the Court of Cassation will normally, in the judgment delivered as a result, set aside the conviction or reduce the sentence; in the latter case, it will also determine what length of sentence must be served.\n\nB.  Criminal case-law submitted by the Government\n\n35.  The Government have supplied, by way of example, a number of judgments given by the Court of Cassation concerning the way courts of trial have assessed writings and/or speech that have given rise to prosecutions, particularly for offences defined in former Article 142 and Article 312 of the Criminal Code (see paragraphs 29 and 30 above) and the offence contemplated in section 8 of the Prevention of Terrorism Act (Law no. 3713). These were judgments nos. 1991/18, 1994/240 and 1995/98, given by the plenary Court of Cassation, and judgments nos. 1974/2, 1978/4806, 1985/1682, 1989/2439, 1993/664, 1993/1066, 1993/1388, 1994/6080, 1996/4387 and 1996/8450, given by its Criminal Divisions.\n\nOne principle which emerges from this case-law is that the first-instance judgment must be based on an assessment of the whole of the writing and/or speech in issue. As regards assessment of the material constituting the offence defined in Article 312 of the Criminal Code, the Court of Cassation has made it clear, particularly in the above-mentioned judgment no. 1974/2, that the offence of “incitement” consists in an act “capable of endangering public safety and public order” irrespective of whether the incitement has actually produced that result. In addition, in judgment no. 1994/6080, in setting aside a conviction under Article 312, the Court of Cassation would appear to have confined itself to noting the “remote” nature of the danger posed by the “incitement” in issue. Moreover, as regards the imposition of heavier sentences on account of aggravating circumstances, the Court of Cassation has held that such circumstances must be considered in relation to the existence of a grave and imminent danger threatening the general security of the country or the public. Lastly, in one of these cases, the Court of Cassation stressed the extreme importance – for the protection of the right to a fair trial – of the rule that the accused must always have the opportunity to speak last, before the judges rule.\n\nPROCEEDINGS BEFORE THE COMMISSION\n\n36.  Mr Öztürk applied to the Commission on 24 May 1993. Relying on Article 9 of the Convention, he maintained that his conviction as publisher of the book even though the author himself had been acquitted amounted to an infringement of his right to freedom of thought. He also complained that confiscation of the copies of the book he had published had infringed his right to the peaceful enjoyment of his possessions, guaranteed by Article 1 of Protocol No. 1.\n\n37.  On 7 April 1997 the Commission declared the application (no. 22479/93) admissible, but expressed the opinion that the complaint concerning infringement of the right to freedom of thought should be considered under Article 10 of the Convention. In its report of 30 June 1998 (former Article 31 of the Convention), it expressed the unanimous opinion that there had been a violation of Article 10. It also expressed the opinion that it was not necessary to examine the complaint of a violation of Article 1 of Protocol No. 1 (thirty votes to one). The full text of the Commission’s opinion is reproduced as an annex to this judgment.\n\nFINAL SUBMISSIONS TO THE COURT\n\n38.  In his memorials the applicant, while agreeing with the Commission that there had been a violation of Article 10 of the Convention, requested the Court to hold that Article 312 § 2 of the Criminal Code, regard being had to the material and legal content of the offence defined therein, was in breach as such of that provision of the Convention. In addition, he maintained his complaint of a violation of Article 1 of Protocol No. 1, pleading the pecuniary loss he had allegedly sustained on account of the events in issue in the present case, particularly confiscation of the book. Lastly, he asked the Court to award him a sum in respect of pecuniary damage under Article 41 of the Convention.\n\n39.  The Government, for their part, asked the Court to hold that a reference to the Court of Cassation by written order was not a remedy that was required to be exhausted for the purposes of Article 35 (former Article 26) of the Convention or one which was capable of causing a further period of six months within the meaning of that provision to begin to run.\n\nWith regard to the merits, they asked the Court to dismiss the application, taking into account\n\n“[the fact] that at the time when the judgment was rendered there was a pressing social need justifying the confiscation of the book and the conviction of [Mr Öztürk], ... that within the past ten years [criminal] laws and their application have totally changed, ... that the fine imposed on [the applicant] was a very minor one [and] that later editions of the book published by another publisher are freely sold in Turkey”.\n\nTHE LAW\n\n40.  In his application to the Commission Mr Öztürk complained that his conviction had breached Article 9 of the Convention (see paragraph 36 above). In his memorials to the Court, however, he did not submit argument in support of that complaint, making no more than a passing reference to Article 9. He can therefore not be considered to have maintained it before the Court, which can see no reason to examine it of its own motion (see, mutatis mutandis, the Yaşa v. Turkey judgment of 2 September 1998, Reports of Judgments and Decisions 1998-VI, p. 2428, § 60).\n\nThe Court’s examination will accordingly be confined to the complaints under Article 10 of the Convention and Article 1 of Protocol No. 1.\n\nII.  ALLEGED violation of Article 10 of the Convention\n\n41.  Mr Öztürk submitted that his conviction of an offence under Article 312 of the Criminal Code had breached Article 10 of the Convention, which provides:\n\n“1.  Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.\n\n2.  The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”\n\nA.  The Government’s preliminary objection\n\n42.  Before the Court the Government maintained that in the present case the final decision for the purposes of Article 35 (former Article 26) of the Convention was the National Security Court’s judgment of 30 March 1989 (see paragraphs 16 and 17 above). They therefore considered that as the application to the Commission had been lodged on 24 May 1993 the Commission should have declared it inadmissible on the ground that it was out of time (see paragraph 36 above).\n\nThey submitted that the Commission had wrongly calculated the six-month period from 8 January 1993 when the Court of Cassation gave judgment on the second reference by written order lodged by Principal State Counsel (see paragraph 26 above); it would have been sufficient for the Commission to note that because of the extraordinary nature of the remedy concerned its use could not cause a new six-month period to begin to run.\n\nIn conclusion, the Government asked the Court to hold that in the present case there had been “an erroneous application” of (former) Article 26 of the Convention.\n\n43.  The applicant made no observations on this point.\n\n44.  The Court considers that the above arguments amount to an objection on the ground of failure to comply with the six-month rule and notes that in their preliminary observations on admissibility the Government likewise objected that the application was out of time. With regard to the starting-point of the six-month period, however, they referred before the Commission to the date on which the first reference by written order was dismissed (see paragraph 25 above), not that on which the second was dismissed (see paragraph 42 above).\n\nBe that as it may, the Court considers that this preliminary objection is unfounded, for the following reasons.\n\n45.  The Court notes that the reference by written order (Yazılı emir ile bozma) provided for in Turkish law is an extraordinary remedy available against judgments given at last instance against which no appeal lies to the Court of Cassation. According to Article 343 of the Code of Criminal Procedure (see paragraphs 33 and 34 above), only Principal State Counsel at the Court of Cassation is empowered to refer a case, but he may do so only on the formal instructions of the Minister of Justice. The remedy in question is therefore not directly accessible to people whose cases have been tried. Consequently, regard being had to the generally recognised rules of international law, it is not necessary for this remedy to have been used for the requirements of Article 35 of the Convention to be held to have been satisfied.\n\nIt follows that a reference by written order should not in principle be taken into consideration for the purposes of the six-month rule. However, it is a different matter where, as in the present case, this remedy has actually been exercised.\n\nIn that case it becomes similar to an ordinary appeal on points of law, in that it gives the Court of Cassation the opportunity to set aside the impugned judgment, if necessary, and remit the case to the lower court, and therefore to remedy the situation criticised by the person whose case has been tried.\n\nAnd in order to determine whether the conditions laid down in Article 35 of the Convention have been satisfied the Convention organs have always taken appeals on points of law into consideration. The Court observes in addition that in the present case the argument submitted by Principal State Counsel in support of the second reference by written order was in fact considered by the Court of Cassation (see paragraph 26 above), which, moreover, gave judgment as a court of last instance. The fact that the appeal was declared ill-founded on the ground that the case had not revealed any manifest breach of the law takes nothing away from that finding.\n\n46.  In conclusion, the Court considers, like the Commission, that by requesting the Minister of Justice to refer his case to the Court of Cassation the applicant set in motion a procedure which, in the present case, proved to be effective, and that the six-month period did indeed begin to run on 8 January 1993, the date of the Court of Cassation’s judgment on the second reference.\n\nAs Mr Öztürk therefore lodged his application in good time, the Government’s objection must be dismissed.\n\nB.  Merits of the complaint\n\n1.  Existence of an interference\n\n47.  The Government submitted that Mr Öztürk’s conviction in the capacity of publisher could not be regarded as an infringement of his freedom of expression. N. Behram was the author and real beneficiary of the right to freedom of expression, and no restriction of Mr Behram’s right to impart or express opinions could be alleged since he had been acquitted (see paragraph 22 above) and his work had been on open sale in Turkey since 1991 (see paragraph 27 above).\n\n48.  The applicant did not make any observation on this point.\n\n49.  The Court would first point out that Article 10 guarantees freedom of expression to “everyone”. No distinction is made in it according to the nature of the aim pursued or the role played by natural or legal persons in the exercise of that freedom (see, mutatis mutandis, the Casado Coca v. Spain judgment of 24 February 1994, Series A no. 285-A, pp. 16-17, § 35). It applies not only to the content of information but also to the means of dissemination, since any restriction imposed on the means necessarily interferes with the right to receive and impart information (see, mutatis mutandis, the Autronic AG v. Switzerland judgment of 22 May 1990, Series A no. 178, p. 23, § 47). Admittedly, publishers do not necessarily associate themselves with the opinions expressed in the works they publish. However, by providing authors with a medium they participate in the exercise of the freedom of expression, just as they are vicariously subject to the “duties and responsibilities” which authors take on when they disseminate their opinions to the public (see, mutatis mutandis, Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 63, ECHR 1999-IV; see also paragraph 31 above).\n\nIn short, the Court considers that Mr Öztürk’s conviction for helping to publish and distribute Mr Behram’s book unquestionably constituted interference with the exercise of his freedom of expression under the first paragraph of Article 10 (see, mutatis mutandis, the Engel and Others v. the Netherlands judgment of 8 June 1976, Series A no. 22, p. 40, §§ 94-95, and the Müller and Others v. Switzerland judgment of 24 May 1988, Series A no. 133, p. 19, §§ 27-28).\n\n2.  Justification for the interference\n\n50.  Such interference breaches Article 10 unless it satisfies the requirements of the second paragraph of that Article. The Court must therefore determine whether it was “prescribed by law”, was directed towards one or more of the legitimate aims set out in that paragraph and was “necessary in a democratic society” to achieve the aims concerned. The Court will examine each of these criteria in turn.\n\n51.  The applicant submitted that while it was legitimate to punish “incitement of the people to crime”, Article 312 § 2 of the Criminal Code could not be held to be compatible with the requirements of Article 10 of the Convention since it did not define sufficiently clearly the constituent elements of the offence it made punishable.\n\n52.  The Government rejected this argument, asserting in particular that the Turkish courts applied the legislation in issue in accordance with the principles laid down and developed in the case-law of the Court of Cassation, to the effect that courts are required to ascertain whether this or that instance of speech or writing is capable of creating an imminent danger to public order, while taking into account the particular circumstances of each case (see paragraph 35 above). Read in the light of the case-law on the question, the wording of the impugned provision was precise enough for people to be able to foresee whether or not a given act would constitute the offence contemplated in it.\n\n53.  The Commission considered that Article 312 § 2 of the Criminal Code provided a sufficient basis for the applicant’s conviction.\n\n54.  The Court refers to its established case-law to the effect that one of the requirements flowing from the expression “prescribed by law” is the foreseeability of the measure concerned. Thus, a norm cannot be regarded as a “law” unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice (see Rekvényi v. Hungary [GC], no. 25390/94, § 34, ECHR 1999-III).\n\n55.  The Court recognises that in the area under consideration it may be difficult to frame laws with absolute precision and that a certain degree of flexibility may be called for to enable the national courts to assess whether a publication should be considered separatist propaganda capable of inciting others to hatred and hostility. However clearly drafted a legal provision may be, there will inevitably be a need for interpretation by the courts, whose judicial function is precisely to elucidate obscure points and dispel any doubts which may remain regarding the interpretation of legislation (see, mutatis mutandis, Başkaya and Okçuoğlu v. Turkey [GC], nos. 23536/94 and 24408/94, § 39, ECHR 1999-IV, and Rekvényi cited above, loc. cit.).\n\nIn the present case the Court observes that, contrary to the applicant’s assertions, Article 312 § 2 does not give the National Security Courts excessive discretion to interpret the constituent elements of the offence it defines. The text in issue (see paragraph 30 above) makes it an offence to incite people to hatred and hostility when this is done on the basis of a distinction drawn in terms of a number of criteria which are exhaustively listed therein, and it provides for increased sentences in the event of conduct which endangers public safety. The third paragraph of Article 312 refers moreover to Article 311 § 2, which contains indications of the types of publications and forms of dissemination through which the offence may be committed. In addition, the case-law on the question cited by the Government lays down certain principles governing the classification and punishment of incitement to commit an offence (see paragraphs 35 and 52 above).\n\n56.  The Court notes that in respect of the same book two different benches of the National Security Court gave divergent interpretations and classifications and reached two contradictory decisions (see paragraphs 16 and 22 above). It considers, however, that that is not sufficient to justify in abstracto the conclusion that Article 312 § 2 of the Criminal Code lacked the required clarity and precision, or that the interpretation made by the National Security Court when it convicted Mr Öztürk went beyond what might reasonably have been expected, although it is, in the Court’s opinion, one specific aspect to be taken into consideration for the purpose of assessing the necessity in a democratic society of the interference in issue, regard being had to the arguments the Government submitted on that question (see paragraphs 61 and 67 below).\n\n57.  In short, the Court, like the Commission, accepts that the interference with the applicant’s right to freedom of expression, being the result of his conviction under Article 312 § 2 of the Criminal Code, may be considered to have been prescribed by law (see, mutatis mutandis, the following judgments: Ceylan v. Turkey [GC], no. 23556/94, § 25, ECHR 1999-IV; Incal v. Turkey of 9 June 1998, Reports 1998-IV, pp. 1564-65, § 41; and Zana v. Turkey of 25 November 1997, Reports 1997-VII, p. 2546, § 47).\n\n58.  The Court notes that no argument was submitted to it on this question by the parties to the dispute. The Commission considered that the applicant had been convicted in the interest of “national security”.\n\n59.  Having regard to the sensitive nature of the fight against terrorism,  the need for the authorities to exercise vigilance when dealing with actions likely to exacerbate violence, and the reasons set out in the judgment given by the National Security Court on 30 March 1989 (see paragraph 16 above), the Court considers that it can accept that the applicant’s conviction pursued two aims compatible with Article 10 § 2, namely the prevention of disorder or crime.\n\n60.  Mr Öztürk submitted that when he published a first and then a second edition of the book he was convinced that there was nothing illegal in it. There was no justification for the penalties imposed on him on account of the opinions expressed in the book either under the Convention or under domestic law. In that connection he observed that, two years after he himself had been convicted under Article 312 of the Criminal Code, Mr N. Behram, the book’s author, had been acquitted of the same charges; since then the book had been on open sale in Turkey and no one to date had been prompted to commit a crime by reading it.\n\nIn the applicant’s submission this paradoxical situation illustrated the way in which the Turkish authorities had made improper use of Article 312 § 2 in order to punish politicians, human rights activists and intellectuals.\n\n61.  The Government replied in the first place that the applicant could not rely on the fact that the author of the book had been acquitted to support his assertion that he was a victim of a violation of Article 10 of the Convention. Although the National Security Court, after convicting the applicant on 30 March 1989, had acquitted the author of the book on 22 May 1991, that had only been the result of the way application of Article 312 § 2 of the Criminal Code had been influenced by “changes in the world as regards the threat of communism” and “developments in the case-law” that had taken place in the meantime. But a change in case-law or a development in the application of a particular law had no retrospective effect which could benefit the applicant.\n\nThe Government submitted that where a violation of the Convention had been committed initially but subsequently made good, as in the present case, there should be no further ruling on the question. Moreover, it would be inequitable to conclude that Turkey was at fault without taking into account the changes mentioned above. In support of this argument they observed that even if the Court found a violation of the Convention in the present case, the judgment given as a result would not have any bearing on Mr Öztürk’s present situation, since in practice application of Article 312 § 2 of the Criminal Code had already been made less strict.\n\nMr Öztürk’s conviction and the confiscation of the remaining copies of the edition in issue had been justified in the circumstances which obtained in 1989. Similarly, Mr Behram’s acquittal had also been a just decision and one appropriate to the situation in 1991. In convicting the applicant the National Security Court had considered the book as a whole, without singling out this or that passage. It had noted, for example, that the book was a biography of the “terrorist” İ. Kaypakkaya, leader of the TKP-ML, a “terrorist organisation” whose aim was to overthrow the constitutional order in Turkey; by praising the activities of İ. Kaypakkaya it had overstepped the limits of permissible criticism and condoned the violence which the TKPML had formerly resorted to in an attempt to install a communist regime.\n\n62.  The Government further asserted that both at the time when the indictment was drawn up and at the time when the judgment in issue was delivered the TKP-ML had posed a real threat, and that in view of the situation when it was published the book had given rise to a “present risk” and an “imminent danger” for the Turkish State and Turkish society (see paragraph 61 above). Although the communist ideology of the TKP-ML had ceased to be a threat to Turkey in the 1990s, that was not true of the “separatism” which was part of the organisation’s platform.\n\nFor the above reasons, the Government considered it legitimate for dissemination of terrorist and separatist propaganda and incitement of the people to crime to have been made criminal offences. They submitted that this formed part of the restrictions on freedom of expression authorised by the second paragraph of Article 10 of the Convention, and that assessment of the acts which constituted those offences, which were capable of undermining a country’s social order and security, came within the particularly broad margin of appreciation left to States in this field. The Court should therefore confine itself to a review of lawfulness and refrain from determining the facts of the situation in Turkey and even more from substituting its own assessment for that of the domestic courts on the question whether this or that publication was capable of causing a threat. In that connection, the Government criticised the Commission for, among other things, omitting to take due note of the criteria laid down in the previously cited Zana judgment.\n\nThe Government further submitted that the fine of 285,000 Turkish liras imposed on the applicant had to be described as very moderate and proportionate for the purposes of Article 10 § 2.\n\nIn conclusion, the Government argued that the applicant’s conviction and the fine imposed on him could reasonably be held to have met a pressing social need and accordingly to have been necessary in a democratic society.\n\n63.  The Commission considered that the book was in many respects similar to a political pamphlet, in which İ. Kaypakkaya was presented as a hero and an example for others. While accepting that it was not impossible that the book had been intended as a source of inspiration for those who were carrying on the fight against the Turkish security forces in south-east Turkey, the Commission observed that the Government had not cited any passage indicating that the book advocated the pursuit of violence or that it justified terrorist acts.\n\nAfter pointing out the particular importance of political debate, an essential element of a democratic society, the Commission concluded that in the present case, even taking the national authorities’ margin of appreciation into account, the sanction imposed on the applicant was not justified under Article 10 of the Convention.\n\n(ii)  The Court’s assessment\n\n64.  The Court reiterates the fundamental principles underlying its judgments relating to Article 10, as set out most recently in thirteen other cases against Turkey (see paragraph 4 above and, among other authorities, Karataş v. Turkey [GC], no. 23168/94, § 48, ECHR 1999-IV).\n\n(i) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”. As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly.\n\n(ii) The adjective “necessary”, within the meaning of Article 10 § 2, implies the existence of a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “restriction” or “penalty” is reconcilable with freedom of expression as protected by Article 10.\n\n(iii) In exercising its supervisory jurisdiction, the Court must look at the interference in the light of the case as a whole, including the content of the impugned work and the context in which it was published. In particular, it must determine whether the measure in issue was “proportionate to the legitimate aims pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based themselves on an acceptable assessment of the relevant facts.\n\n65.  The Court observes that the book in issue takes the form of a biography of İ. Kaypakkaya, a founder member of an extreme left-wing movement who died in controversial circumstances after being arrested. On account of its epic style the book can be seen as an apologia of İ. Kaypakkaya, his thoughts and his deeds. Relating for the most part facts connected with Kaypakkaya’s political activities, it describes the conditions inside Diyarbakır Prison when he was imprisoned there and attempts in particular to persuade its readers that agents of the State were responsible for his death.\n\nIn the Court’s view it is obvious that the book does not give a neutral account of the events of İ. Kaypakkaya’s life but a politicised version. Through his book the author intended, at least implicitly, to criticise both the Turkish authorities’ actions in the repression of extreme left-wing movements and the conduct of those alleged to be responsible for İ. Kaypakkaya’s death. Albeit indirectly, the book thus gave moral support to the ideology which he had espoused.\n\nThe National Security Court held that by venerating communism and the “terrorist” İ. Kaypakkaya the book “expressly incite[d] the people to hatred and hostility” (see paragraph 16 above). Since the National Security Court did not consider it necessary to mention, in its judgment of 30 March 1989, the passages deemed to give the book this character, the Court can only suppose that it endorsed the public prosecutor’s submissions, as set out in the indictment of 14 February 1989. The Court notes, however, that those submissions consisted, for the most part, of a commentary on the poems – mainly taken from literary works – which prefaced the chapters of the book and which the public prosecutor seems to have taken as glosses whereby the hidden meaning of each chapter could be revealed. As for the passage concerning İ. Kaypakkaya’s father and the exhortation placed on the book’s last page, the Court can see nothing in them capable of giving the political criticism made in the book a particularly virulent tone (see paragraph 14 above).\n\n66.  Be that as it may, the Court reiterates that there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate on matters of public interest. Furthermore, the limits of permissible criticism are wider with regard to the government than in relation to a private citizen or even a politician. In a democratic system the actions or omissions of the government must be subject to the close scrutiny not only of the legislative and judicial authorities but also of public opinion. Moreover, the dominant position which the government occupies makes it necessary for it to display restraint in resorting to criminal proceedings, particularly where other means are available for replying to the unjustified attacks and criticisms of its adversaries. Nevertheless, it certainly remains open to the competent State authorities to adopt, in their capacity as guarantors of public order, measures, even of a criminal-law nature, intended to react appropriately and without excess to such remarks. Finally, where such remarks incite to violence against an individual, a public official or a sector of the population, the national authorities enjoy a wider margin of appreciation when examining the need for an interference with the exercise of freedom of expression (see, among many other authorities, Ceylan cited above, § 34).\n\n67.  In that connection, it is important to note the conclusion reached by the bench of the National Security Court which tried the author of the book, N. Behram. In its judgment of 22 May 1991 it ruled, on the basis of the opinion of a committee of experts composed of three professors of criminal law, that nothing in the book disclosed any incitement to crime capable of justifying Mr Behram’s conviction under Article 312 of the Criminal Code (see paragraph 22 above).\n\nContrary to the Government’s submissions, the Court takes the view that this striking contradiction between two interpretations of one and the same book separated in time by about two years and made by two different benches of the same court is one element to be taken into consideration, regard being had to what was at stake for the applicant in the proceedings against him (see paragraphs 24-26 and 60 above).\n\n68.  The Court considers that the words used in the relevant edition of the book, whose content, moreover, does not differ in any way from that of the other editions, cannot be regarded as incitement to the use of violence or to hostility and hatred between citizens (see paragraphs 64 and 66 above).\n\nAdmittedly, the Court cannot exclude the possibility that such a book might conceal objectives and intentions different from the ones it proclaims (see, mutatis mutandis, the Incal judgment cited above, p. 1567, § 51). However, as there is no evidence of any concrete action which might belie it, the Court sees no reason to doubt the sincerity of the aim pursued by Mr Öztürk in the second edition of the book, especially as the first had sold out without occasioning criminal proceedings (see paragraph 11 above).\n\n69.  In that connection, the Court reiterates that it is prepared to take into account the background to the cases submitted to it, particularly problems linked to the prevention of terrorism (see the Incal judgment cited above, pp. 1568-69, § 58).\n\nThe Court accepts that it was for the domestic courts to determine whether the applicant had published the book with a reprehensible object. Moreover, the fact that domestic law does not require proof that the offence of which the applicant was accused has had any concrete effect (see paragraph 35 above) does not in itself weaken the need to justify the interference under Article 10 § 2.\n\nIn the present case, the Court is not convinced that in the long term the November 1988 edition could have had a harmful effect on the prevention of disorder and crime in Turkey. In fact, the book has been on open sale since 1991 and has not apparently aggravated the “separatist” threat which, according to the Government, existed both before and after Mr Öztürk’s conviction (see paragraph 61 above). Nor have the Government explained how the second edition of the book could have caused more concern to the judicial authorities than the first, published in October 1988 (see paragraph 11 above).\n\nThe Court therefore discerns nothing which might justify the finding that Mr Öztürk had any responsibility whatsoever for the problems caused by terrorism in Turkey and considers that use of the criminal law against the applicant cannot be regarded as justified in the circumstances of the present case, which, contrary to the Government’s submissions, are not comparable to those of the Zana case (judgment cited above, p. 2549, §§ 58-60 – see paragraph 62 above).\n\n70.  As regards the Government’s argument that the fine imposed on the applicant was moderate in amount (see paragraphs 16 and 62 above), the Court accepts that the nature and severity of the penalties imposed are also factors to be taken into account when assessing the proportionality of an interference in relation to the aim pursued (see, among other authorities, Ceylan cited above, § 37).\n\nHowever, having regard to the conclusions it has reached above (see paragraphs 68 and 69) and to the fact that the preventive aspect of the interference under consideration – namely the seizure of some copies of the book – in itself raises issues under Article 10 (see, among other authorities, the Incal judgment cited above, p. 1568, § 56), the Court considers, in the circumstances of the present case, that it cannot attach decisive weight to that argument.\n\n71.  The Court accordingly takes the view that it has not been established in the present case that at the time when the edition in issue was published there was a “pressing social need” capable of justifying a finding that the interference in question was “proportionate to the legitimate aim pursued”.\n\n72.  Nor, on that point, can the Court accept the Government’s argument, based on “developments in the case-law” since the applicant’s conviction, that where a violation of the Convention initially committed has subsequently been made good the Court should not rule on the matter (see paragraph 61 above).\n\n73.  The Court’s sole task is to assess the particular circumstances of a given case and it reiterates that a decision or measure favourable to an applicant is not sufficient in principle to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, among other authorities, the Amuur v. France judgment of 25 June 1996, Reports 1996-III, p. 846, § 36). In the present case, however, the applicant did not even benefit from any such decision or measure.\n\nIn that connection, the Court will confine itself to noting the position adopted by the judicial authorities on the question of Mr N. Behram’s acquittal, that is to say well after Mr Öztürk’s conviction.\n\nIn its judgment of 8 January 1993 concerning the second reference by written order lodged by Principal State Counsel, the Court of Cassation held (see paragraphs 25 and 26 above):\n\n“... the judgment acquitting Mustafa Nihat [Behram] became final without any appeal on points of law being lodged. Lastly, there is no evidence that the assessment of the content of the book A testimony to life – Diary of a death under torture made in the judgment at first instance is bad and must be invalidated.”\n\nMoreover, the appendices to the Government’s memorial in reply (see paragraph 8 above) include a memorandum of 14 December 1995 sent to the Ministry of Justice by Principal State Counsel at the Court of Cassation, in which the latter expressed the following opinion:\n\n“in fact, with the judgment ... of 8 January 1993 in which the Court of Cassation dismissed the appeal on points of law of ... Ünsal Öztürk, the contradiction between the two judgments of [the National Security Court] was resolved and it was thus confirmed that the judgment consistent with the law was indeed the judgment given on 30 March 1989 against Ünsal Öztürk ...”\n\nEven supposing that “developments in the case-law” prompted Mr Behram’s acquittal, it can only be noted that these did not prove to be sufficiently pertinent to enable the Court of Cassation to remedy the situation the applicant now complains of before the Court (see paragraphs 24-26 above; see also paragraph 17).\n\n74.  The Court accordingly concludes that there has been a violation of Article 10 of the Convention.\n\nIII.  alleged violation of Article 1 of PROTOCOL No. 1\n\n75.  The applicant further submitted that the confiscation order made in the present case by the National Security Court had infringed Article 1 of Protocol No. 1, which provides:\n\n“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.\n\nThe preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”\n\n76.  The Court notes that the measure complained of by the applicant was an incidental effect of his conviction (see paragraph 28 above), which it has held to have been in breach of Article 10. It is consequently unnecessary to consider this complaint separately (see, mutatis mutandis, the Socialist Party and Others v. Turkey judgment of 25 May 1998, Reports 1998-III, p. 1259, § 57).\n\nIV.  application of Article 41 of the Convention\n\n77.  The applicant claimed compensation for the pecuniary damage he had allegedly sustained and reimbursement of the costs and expenses he had incurred for the proceedings in Turkey and before the Commission and the Court. He relied on Article 41 of the Convention, which provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Pecuniary damage\n\n78.  The applicant claimed 15,719 American dollars (USD), plus interest, for the loss resulting from the confiscation of 3,195 copies of the edition in issue, which cost 1,500,000 Turkish liras (TRL) each, equivalent to USD 4.92, including publishing costs and profit.\n\nHe further claimed compensation for loss of profit, which he assessed at approximately USD 442,800, taking into account the sales of further editions which he had been unable to publish. In that connection, he estimated that the book could have run to at least two editions a year, each of 5,000 copies, which made a potential total of 90,000 copies, each of which could have been sold at USD 4.92.\n\nIn addition, he claimed reimbursement of the fine of TRL 285,000 (USD 121) he had paid.\n\n79.  The Government contested these claims. They argued in particular that there could be no right to compensation for the confiscation of an illegal publication ordered and carried out in accordance with the law.\n\nThey submitted that the claims relating to loss of profit were hypothetical and without foundation. In any event, the reason why Mr Öztürk was no longer the publisher of the book, which had been on sale since 1991, was that he had been unable to come up with a more attractive offer than rival publishing houses.\n\n80.  The Court notes that the fine imposed on the applicant and the confiscation of the copies of the edition in question were direct consequences of the violation of Article 10 of the Convention which it has found. It must therefore first order reimbursement in full of the fine he paid. As regards the confiscated copies, it appears from the case file that the first edition of the book was out of print; of the 3,195 copies of the second edition seized in the instant case 3,133 were seized on the premises of the Yurt Kitap-Yayın publishing house and 2,845 copies were destroyed. The Court further notes that, according to an opinion expressed on 12 May 1997 by the Union of Turkish Publishers (Türkiye Yayıncılar Birliği), the retail price of a book comparable with the one published by the applicant was on that date approximately TRL 500,000 (USD 3.58).\n\nThe Court cannot allow the applicant’s claims concerning the loss of future sales of the book, having regard to their speculative nature and the impossibility of quantifying precisely, on the basis of the case file, the loss of profit suffered in that way.\n\nIn conclusion, the Court, making an equitable ruling on the basis of all the information in its possession, awards the applicant USD 10,000 for pecuniary damage.\n\nB.  Costs and expenses\n\n81.  The applicant’s representative asked the Court to take into account a contract between the applicant and himself signed on 10 May 1993. Under the terms of that agreement Mr Öztürk owed his lawyer TRL 100,000,000 (USD 10,227 at the time), but as it was impossible for him to pay that sum owing to the financial difficulties caused by the fact that he had been imprisoned several times on account of other works published between 1994 and 1997 it had been agreed that the lawyer would receive 10% of any sum awarded by the Court by way of just satisfaction.\n\n82.  The Government found this sum excessive in comparison with the fees normally charged by advocates in 1993. They further contended that while the applicant’s counsel agreed to work without a fee until 1999, although he could have enforced recovery of the debt, that was something which could not engage the Government’s responsibility.\n\n83.  The Court observes that in respect of costs and expenses the applicant claimed only reimbursement of the fee of his representative, Mr Öndül. Applying the criteria laid down in its case-law, it must therefore ascertain whether the sum claimed was actually and necessarily incurred in order to prevent or obtain redress for the matter found to constitute a violation of the Convention and was reasonable as to quantum (see, among many other authorities, Başkaya and Okçuoğlu cited above, § 98). The Court notes that Mr Öndül defended the applicant throughout the domestic proceedings and represented him both before the Commission and during the written proceedings before the Court. Making its ruling, here again, on an equitable basis, the Court considers it reasonable to award the applicant 20,000 French francs for his costs and expenses.\n\nC.  Default interest\n\n84.  The Court deems it appropriate to make provision for the payment of default interest at the annual rate of 5% for the sum awarded in American dollars and 3.47% for the sum awarded in French francs.\n\nFor these reasons, the court unanimously\n\n1.\tDismisses the Government’s preliminary objection;\n\n2.\tHolds that there has been a violation of Article 10 of the Convention;\n\n3.\tHolds that it is not necessary to consider the complaint under Article 1 of Protocol No. 1;\n\n4.\tHolds\n\n5.\tDismisses the remainder of the claim for just satisfaction.\n\nDone in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 28 September 1999.","title":""}
{"_id":"passage_423","text":"PROCEDURE\n\n1.  The case originated in an application (no. 38194/97) against Greece lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Greek national, Mr Charilaos Karakasis (“the applicant”), on 19 June 1997.\n\n2.  The applicant, who had been granted legal aid, was represented by Mr K. Mavroidis, a lawyer practising in Athens. The Greek Government (“the Government”) were represented by Mr M. Apessos, Assistant Legal Adviser (paredros) at the State Legal Council (Nomiko Simvulio tu Kratus), Delegate of the Agent and Mrs V. Pelekou, Legal Assistant (dikastikos andiprosopos) at the State Legal Council.\n\n3.  The applicant alleged, in particular, that he had not been heard in connection with his entitlement to compensation for his detention on remand and that the relevant decision did not contain reasons.\n\n4.  The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).\n\n5.  The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1 of the Rules of Court.\n\n6.  By a decision of 30 November 1999, the Chamber declared the application partly admissible, deciding to examine the Government’s argument that the applicant had not exhausted domestic remedies together with the merits.\n\n7.  The applicant filed observations on the merits (Rule 59 § 1). The Government invited the Court to reject the application on the ground that it had not been submitted within the six-month time-limit of Article 35 § 1 of the Convention.\n\nTHE FACTS\n\nI.\tTHE CIRCUMSTANCES OF THE CASE\n\n8.  On 25 October 1990 and 9 November 1990 criminal complaints were lodged against the applicant for instigation to fraud and for issuing checks for the payment of which there were no adequate funds. The prosecutor instituted criminal proceedings against him.\n\n9.  In 1994 the investigating judge ordered the applicant’s provisional detention (warrant No. 22/94). However, the applicant evaded arrest.\n\n10.  On 5 August 1994 the indictments chamber of the first instance criminal court (simvulio plimmeliodikon) of Athens decided to commit the applicant for trial to the three-member Court of Appeal (trimeles efetio) of Athens, sitting as a first instance court, on the above charges. The chamber confirmed the investigating judge’s warrant concerning the applicant’s detention.\n\n11.  On 2 February 1995 the indictments chamber decided to commit the applicant for trial on a number of supplementary charges.\n\n12.  The applicant was arrested on 2 September 1995. Until 30 October 1995 the applicant was deemed to be serving a sentence that had been imposed on him for unrelated offences in 1989. As a result, the applicant’s detention on remand on the fraud and other charges mentioned above officially started on 30 October 1995.\n\n13.  On 17 July 1996 the applicant applied for his provisional release. On 22 August 1996 the indictments chamber of the Court of Appeal of Athens rejected his application.\n\n14.  On 2 September 1996 the applicant appeared, together with MB, JK and DK, before the three-member Court of Appeal of Athens. He was represented by counsel who also acted for MB and JK. The trial lasted until 3 September 1996 when the court heard the final submissions of the parties on the question of guilt of the applicant and his co-defendants. Then the court withdrew for deliberations in the course of which it decided to acquit the applicant and convict MB and JK.\n\n15.  The relevant decision was pronounced and then the court heard submissions on the sentences to be imposed on MB and JK. Counsel who represented the applicant as well as MB and JK was heard in this connection. The court withdrew for deliberations in the course of which it decided on the penalties to be imposed. It also decided that “the applicant should not be compensated for the time he spent in detention on remand”. The relevant decision was pronounced on the same day, i.e. on 3 September 1996.\n\n16.  However, its text was finalised (katharographi) on 9 December 1996. The applicant was informed of this development later on and obtained a certified copy on 28 July 1997.\n\nII.\tRELEVANT DOMESTIC LAW\n\n17.  The Code of Criminal Procedure provides as follows:\n\nArticle 533 § 2\n\nArticle 535 § 1\n\nArticle 536 §§ 1 and 2\n\n“Upon an application submitted orally by the person who has been acquitted, the court which heard the case shall decide on the State's obligation to pay compensation in a separate decision issued at the same time as the verdict. However, the court may also issue such a decision proprio motu ...\n\nArticle 537 §§ 1 and 2\n\n“The person who has suffered prejudice may request compensation at a later stage before the same court.\n\nIn these circumstances, the application must be submitted to the public prosecutor of this court strictly within forty-eight hours from the pronouncement of the judgment in open court.”\n\nArticle 539 § 1\n\nArticle 540 § 1\n\nTHE LAW\n\nI.\tThe Government’s Preliminary Objections\n\n18.  Instead of submitting observations on the merits, the Government invited the Court to reject the application on the ground that it had not been submitted within the six month time-limit of Article 35 § 1 of the Convention. They submitted that the applicant was wrong in arguing that the public prosecutor could have appealed in cassation against the decision refusing him compensation. They also submitted that it was hard to believe that the applicant had been unable to get a copy of the court of appeal’s decision for a period of six months.\n\n19.  The Court recalls that under Article 35 § 4 of the Convention it may reject an application as inadmissible at any stage of the proceedings. However, in the present case it finds no reason to depart from its decision of 30 November 1999 finding that the applicant had complied with the six-month time-limit and declaring the application admissible. The Court, therefore, rejects the Government’s relevant preliminary objection.\n\n20.  The Court further recalls that it had joined to the merits the examination of the Government’s objection concerning exhaustion of domestic remedies. This is, however, a matter related to the first of the applicant’s complaints under Article 6 § 1 of the Convention which the Court will address in the following paragraphs.\n\nII.\tALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION\n\n21.  The applicant first complained that he had not been heard in connection with his entitlement to compensation for his detention on remand. Secondly, he complained that the relevant decision did not contain reasons. He invoked Article 6 § 1 of the Convention, which provides:\n\n“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”\n\n22.  The Government submitted that there existed no “civil right” to compensation for detention on remand under domestic law. In any event, they pointed out that the applicant, who was represented by counsel, could have asked, following his acquittal, to be heard on his entitlement to compensation. However, he chose not to make any submissions in this connection and the court had to address the issue proprio motu. The reasons for not granting the applicant compensation were related to the fact that he had in the past evaded justice. As a result, he had become himself responsible for his detention.\n\n23.  The applicant submitted that the right to compensation was by its very nature “civil”. He referred to the Court’s Georgiadis v. Greece judgment of 29 May 1997 (Reports of Judgments and Decisions 1997-III, p. 949). The applicant considered that the domestic court, before deciding on his entitlement to compensation, should have expressly invited him to develop his arguments in that connection. Finally, he pointed out that the domestic court decision did not contain any reasons. It simply refused him compensation.\n\n24.  As regards the argument drawn by the Government from the fact that no claim for compensation was ever lodged, the Court recalls that, according to Article 537 of the Code of Criminal Procedure, the applicant had the right to apply for compensation within forty-eight hours from the delivery of the judgment acquitting him in open court. However, before the expiry of this time-limit the court decided that the applicant should not be compensated. According to Article 536 of the Code of Criminal Procedure, this decision was final. As a result, the Court fails to see what useful purpose lodging a claim for compensation could have served given the Court of Appeal's proprio motu ruling and its final character. It follows that there was a “dispute” for the purposes of Article 6 § 1 of the Convention (see the above-mentioned Georgiadis v. Greece judgment, p. 959, § 31).\n\n25.  The Court also recalls that, according to the Georgiadis v. Greece judgment, Article 533 § 2 of the Code of Criminal Procedure creates a “right” for a person having been detained to claim compensation following his or her acquittal; this right is of “a civil character” (op. cit., p. 959, §§ 32 and 34).  The Court considers that the Government have submitted nothing in the present case that would justify a departure from these conclusions. It follows that Article 6 § 1 was applicable.\n\n26.  As regards compliance with Article 6 § 1 of the Convention, the Court recalls that, according to the above-mentioned Georgiadis v. Greece judgment, no decision on the question of compensation should be taken without affording the applicant an opportunity to submit to the courts his arguments on the matter. A procedure whereby civil rights are determined without ever hearing the parties' submissions cannot be considered to be compatible with Article 6 § 1 (op. cit., p. 960, § 40). Turning to the circumstances of the present case, the Court notes that on 2 September 1996 the Court of Appeal ruled on the applicant’s entitlement to compensation proprio motu without inviting comments on his part. According to domestic law, it was not open to the applicant to challenge this ruling. It follows that there was a violation of Article 6 § 1 of the Convention in respect of the Court of Appeal's failure to hear the applicant. It also follows that the Government’s objection concerning non-exhaustion of domestic remedies must be rejected.\n\n27.  As regards the applicant’s complaint concerning the reasoning of the domestic court’s decision on his entitlement to compensation, the Court recalls that, according to its case-law, the extent of a court’s duty to give reasons may vary, inter alia, according to the nature of the decision (see the above-mentioned Georgiadis v. Greece judgment, p. 960, § 43). However, in the applicant’s case the domestic court did not invoke any reasons for precluding compensation. It follows that there was also a violation of Article 6 § 1 of the Convention as a result of the absence of any reasoning in this decision.\n\nIII.\tAPPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n28.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.\tDamages\n\n29.  The applicant claimed to be unable to provide any proof as to the pecuniary damage he had incurred. As for non-pecuniary damage, he claimed 200,000,000 drachmas. The Government made no comments.\n\n30.  Making its assessment on an equitable basis, the Court awards the applicant 2,000,000 drachmas for non-pecuniary damage.\n\nB.\tCosts and expenses\n\n31.  The applicant, who had the benefit of legal aid, did not make any claim for costs and expenses. Accordingly, the Court does not make an award in this connection.\n\nC.\tDefault interest\n\n32.  According to the information available to the Court, the statutory rate of interest applicable in Greece at the date of adoption of the present judgment is 6% per annum.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.\tDismisses the Government’s preliminary objections;\n\n2.\tHolds that there has been a violation of Article 6 §1 of the Convention in respect of the Court of Appeal’s failure to hear the applicant in connection with his entitlement to compensation for his detention on remand;\n\n3.\tHolds that there has been a violation of Article 6 §1 of the Convention in respect of the absence of any reasoning in the Court of Appeal’s decision refusing the applicant compensation for his detention on remand;\n\n4.\tHolds\n\n(a)\tthat the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, two million drachmas in respect of non-pecuniary damage;\n\n(b)\tthat simple interest at an annual rate of 6% shall be payable from the expiry of the above-mentioned three months until settlement;\n\n5.\tDismisses the remainder of the applicant’s claim for just satisfaction.\n\nDone in English and notified in writing on 17 October 2000, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_814","text":"PROCEDURE\n\n1.  The case originated in an application (no. 65417/01) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Mr Rosen Yordanov Petkov (“the applicant”), on 2 October 2000.\n\n2.  The applicant was represented by Mr M. Neikov, a lawyer practising in . The Bulgarian Government (“the Government”) were represented by their Agent, Mrs S. Atanasova, of the Ministry of Justice.\n\n3.  On 2 September 2008 the Court declared the application partly inadmissible and decided to communicate the complaints concerning the length of the proceedings and the lack of remedies in that respect to the Government. It also decided to rule on the admissibility and merits of the application at the same time (Article 29 of the Convention).\n\n4.  Judge Kalaydjieva, the judge elected in respect of , withdrew from sitting in the case. On 30 January 2009 the Government appointed in her stead Mrs Pavlina Panova as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1 of the Rules of Court as in force at the time).\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n5.  The applicant was born in 1963 and lives in .\n\n6.  On 30 November 1992 the heirs of the pre-nationalisation owners of a dwelling, purchased by the applicant's father form a subsidiary of the Ministry of Defence in 1967, brought an action for restitution against the applicant and Ms P.P., as heirs of the applicant's father, seeking restitution and a declaration that the 1967 transaction was null and void.\n\n7.  Between February 1993 and January 1997 at least sixteen hearings were held. At least four of them were adjourned due to improper summoning and one upon the applicant's request.\n\n8.  In a judgment of 15 May 1997 the Plovdiv District Court dismissed the claim.\n\n9.  On appeal, at least six hearings were held before the . One hearing was adjourned because the expert opinion had not been obtained in time, one was adjourned due to improper summoning, and one upon the applicant's request.\n\n10.  In a judgment of 28 December 1999 the  upheld the previous court's judgement.\n\n11.  On further appeal, on 10 January 2001 the Supreme Court of Cassation quashed the 's judgment and remitted the case for fresh examination due to unspecified procedural breaches.\n\n12.  By a judgment of 30 November 2001 the  set aside the judgment of 1997 and declared the plaintiffs owners of the disputed real estate.\n\n13.  On 23 April 2003 the Supreme Court of Cassation upheld the lower court's judgment.\n\n14.  On an unspecified date the Executive Agency “Management of the Private State Property of the Ministry of Defence” filed a request for reopening, claiming that under the relevant legislation it should have been a party to the proceedings as a successor of the relevant subsidiary of the Ministry of Defence.\n\n15.  On 14 May 2004 the Supreme Court of Cassation granted reopening, set aside the judgment of 23 April 2003 and remitted the case to the  for new examination. The court held that in February 2000 the Executive Agency “Management of the Private State Property of the Ministry of Defence” had succeeded the subsidiary of the Ministry of Defence, which had been constituted as a party in the proceedings in 1993, and therefore should have been summoned in its stead.\n\n16.  By a judgment of 16 December 2005 the  again declared the plaintiffs owners of the real estate. On 17 April 2006 the applicant appealed.\n\n17.  By a final judgment of 13 April 2007 the Supreme Court of Cassation quashed the lower court's judgment and rejected the plaintiffs' claims, thus deciding the case in favour of the applicant.\n\n18.  The number of hearings held between December 1999 and April 2003 and between May 2004 and April 2007 is not clear.\n\n19.  On 6 June 2007 the plaintiffs filed a request for reopening.\n\n20.  By a judgment of 6 November 2007 the Supreme Court of Cassation rejected the request.\n\nII.  RELEVANT DOMESTIC LAW\n\n21.  Until July 1999 Bulgarian law did not provide for any remedies in respect of length of civil proceedings.\n\n22.  A new procedure, “complaint about delays”, was introduced in July 1999, by virtue of Article 217a of the Code of Civil Procedure 1952, in force until 2007. Pursuant to this procedure, a litigant aggrieved by the slow examination of the case could file a complaint before the president of the higher court. The latter had the power to issue mandatory instructions for faster processing of the case.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION\n\n23.  The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:\n\n“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”\n\n24.  The Government did not express an opinion on the matter.\n\n25.  The period to be taken into consideration began on 30 November 1992 when the civil claim was brought against the applicant (see paragraph 6 above). It ended on 13 April 2007, when the Supreme Court of Cassation gave a final judgment in the case (see paragraph 17 above). However, in determining the duration of the period to be taken into consideration the Court must discount the period when no proceedings were pending, i.e. in the instant case, the time between 23 April 2003, when the Supreme Court of Cassation gave its first judgment on the merits of the case, and 14 May 2004 when the latter court decided to set this judgment aside and reopen the proceedings (see paragraphs 13 and 15 above). The period to be taken into account is therefore about thirteen years and four months for three levels of jurisdiction.\n\nA.  Admissibility\n\n26.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n27.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).\n\n28.  The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above and Rachevi v. Bulgaria, no. 47877/99, 23 September 2004). Having examined all the material submitted to it, the Court sees no reason to reach a different conclusion in the present case. In particular, it observes that the proceedings lasted more than thirteen years, which is excessive in itself. The applicant contended that the delay in the proceedings was attributable to the authorities. The Government have not put forward any fact or argument capable of persuading the Court in the opposite.\n\n29.   In view of the above and having regard to its case-law on the subject and the global length of the proceedings, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.\n\nThere has accordingly been a breach of Article 6 § 1.\n\nII.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION\n\n30.  The applicant complained under Article 13 of the Convention that he did not have an effective domestic remedy for the length of the proceedings. Article 13 reads:\n\n“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”\n\n31.  The Government did not express an opinion on the matter.\n\n32.  The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.\n\n33. The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI). A remedy is effective if it prevents the alleged violation or its continuation or provides adequate redress for any breach that has already occurred (ibid., § 158, and Mifsud v. France (dec.) [GC], no. 57220/00, ECHR 2002VIII).\n\n34.  The Court notes its case-law that a “complaint about delays” (see paragraphs 21 and 22 above), can in principal be regarded as an effective remedy for the speeding up of the proceedings, but that regard must be had to the specific circumstances of each case (see Stefanova v. Bulgaria, no. 58828/00, § 69, 11 January 2007 and Tzvyatkov v. Bulgaria, no. 2380/03, §§ 30 and 31, 22 October 2009) and to the impact that its use may have on the overall duration of the proceedings (see Kuncheva v. Bulgaria, no. 9161/02, § 40, 3 July 2008).\n\n35.  In the present case, the Court observes that before the introduction of the “complaint about delays” in July 1999 the case had already been pending for about seven years, during which time it had been examined only by two levels of jurisdiction (see paragraphs 6-10 above). Therefore, the use of the “complaint about delays” procedure might have speeded up the examination of the case but could not have made up for the delays which had occurred prior to its introduction and had already had a significant impact on the overall duration of the proceedings (see, among others, Djangozov v. , no. 45950/99, § 52, 8 July 2004 and Rachevi v. Bulgaria, cited above, § 67). Furthermore, after the delivery of the Plovdiv Regional Court's judgment in December 1999 the main delay in the proceedings was due to the remittal of the case in 2001 and the reopening (see paragraphs 11 and 14-17 above), in respect of which the “complaint about delays” cannot be considered an effective remedy (see mutatis mutandis, Givezov v. Bulgaria, no. 15154/02, § 38, 22 May 2008).\n\n36.  In view of the above “the complaint about delays” cannot be considered as an effective remedy in the circumstances of the present case. In addition, the Government has not shown that Bulgarian law provides for other means of redress whereby a litigant could obtain the speeding up of civil proceedings. Finally, as regards compensatory remedies, the Court has also not found it established that in Bulgarian law there exists the possibility to obtain compensation or other redress for excessively lengthy proceedings (see, for example, Rachevi v. Bulgaria, cited above, §§ 96-104). The Court sees no reason to reach a different conclusion in the present case.\n\n37.  Accordingly, there has been a violation of Article 13 of the Convention.\n\nIII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n38.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n39.  The applicant claimed pecuniary and non-pecuniary damage, submitting that as a result of the lengthy proceedings he suffered distress, anxiety and fear of losing his home. However, he did not specify the exact amount of the claimed damage. In a correspondence submitted outside the relevant time-limits he stated that the claimed amount was 6,500 euros (EUR).\n\n40.  The Government submitted that in case a violation is found, this would constitute a sufficient just satisfaction within the meaning of Article 41 of the Convention.\n\n41.  The Court observes that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis and taking into account all the circumstances of the case, it awards him EUR 6,000 under this head.\n\nB.  Costs and expenses\n\n42.  The applicant also claimed EUR 3,000 in lawyers' fees for the proceedings before the Court. He further claimed 20.68 Bulgarian levs (BGN), the equivalent of EUR 10.42, in copy services and postage. In support of his claim he presented a fees' agreement with his legal representative and copy services and postage receipts for the amount of BGN 42.58, the equivalent of EUR 21.70. The applicant requested that the amount awarded for costs and expenses under this head be paid directly to his legal representative, Mr M. Neikov.\n\n43.  The Government contested the claim for lawyer's fees as excessive.\n\n44.  According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,000, covering costs under all heads, payable directly into the bank account of the applicant's legal representative.\n\nC.  Default interest\n\n45.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Declares the application admissible;\n\n2.  Holds that there has been a violation of Article 6 § 1 of the Convention on account of the excessive length of the proceedings;\n\n3.  Holds that there has been a violation of Article 13, in conjunction with Article 6 § 1 of the Convention, on account of the lack of an effective remedy for the excessive length of the proceedings;\n\n4.  Holds\n\na)  that the respondent State is to pay to the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement:\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n5.  Dismisses the remainder of the applicant's claim for just satisfaction.\n\nDone in English, and notified in writing on 2 September 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_386","text":"PROCEDURE\n\n1.  The case originated in an application (no. 55939/00) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Estonian national, Mr Kristjan Sulaoja (“the applicant”), on 20 October 1999.\n\n2.  The applicant was represented before the Court by Mr T. Sild, a lawyer practicing in . The Estonian Government (“the Government”) were represented by their Agents, Mrs M. Hion, Director of the Human Rights Division of the Legal Department of the Ministry of Foreign Affairs, and Mr E. Harremoes, Special Advisor to the Mission of the Republic of Estonia to the Council of Europe.\n\n3.  The applicant alleged that the reasons for his protracted detention on remand had been inadequate and that his applications for release had not been examined speedily.\n\n4.  The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.\n\n5.  By a decision of 13 January 2004 the Court declared the application partly admissible.\n\n6.  The applicant and the Government each filed observations on the merits (Rule 59 § 1).\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\nA.  The first set of proceedings\n\n7.  The applicant was born in 1964 and lives in the Hüüru village, .\n\n8.  On 14 February 1998 the Pärnu police took the applicant into custody on suspicion of having committed burglary. On 16 February 1998 the applicant was released from custody, but was subjected to another preventive measure in the form of a ban on leaving his place of residence.\n\n9.  On 19 February 1998 the applicant was re-arrested on suspicion of two further acts of burglary, one of which had been committed the same day.\n\n10.  On 20 February 1998 the applicant was charged with three counts of burglary and the police investigator requested the Pärnu City Court (Pärnu Linnakohus) to apply the preventive custody measure until 20 April 1998. The investigator noted that the applicant had no fixed residence and considered that he could, if released, continue to commit offences, evade investigation and abscond.\n\nThe applicant stated in writing that he did not wish to participate in the hearing before the City Court concerning the investigator's request and that he did not consider the presence of his lawyer there necessary either.\n\nOn the same day, i.e., 20 February 1998, the City Court authorised the applicant's detention until 20 March 1998.\n\n11.  In March 1998 the applicant was charged with additional counts of burglary, committed together with two minors.\n\n12.  On 20 March 1998 the investigator applied for an extension of the applicant's detention. Having noted that the applicant had been charged with additional crimes, that he had no fixed residence or place of work and that he had two prior criminal convictions, the investigator found that the applicant could, while at liberty, re-offend, evade investigation and flee. The investigator also noted that the applicant had confessed to the charges.\n\nThe applicant did not wish to participate in the hearing before the City Court, which allowed the investigator's request and prolonged the applicant's detention until 20 April 1998.\n\nOn 17 April 1998 the City Court granted the investigator's request to prolong the applicant's detention further until 20 June 1998. The request was based on reasons which were similar to those contained in the previous request. The applicant again had stated that he did not wish to attend the hearing on the extension of his custody.\n\nOn 18 June 1998 the applicant's detention was prolonged by the City Court for the third time at the request of the investigator who relied on his earlier arguments. The extension was valid until 20 August 1998.\n\n13.  On 19 August 1998 the City Court held a hearing on the further prolongation of the applicant's detention. It heard the applicant and his lawyer as well as the investigator. It rejected the applicant's request to be released and extended his detention until 20 September 1998. The court found that the applicant had no place of residence, family or work. If released, he could continue committing offences in order to support himself, and also evade investigation.\n\n14.  On 1 September 1998 the investigator drew up a final indictment which included an additional charge of inducing minors to participate in a crime.\n\n15.  On 18 September 1998 the City Court held a hearing to decide on the investigator's request to extend the applicant's detention until 20 November 1998 having regard to the large volume of the criminal case. The applicant and his lawyer, who both took part in the hearing, objected to the request. The City Court decided to allow the request and to extend the applicant's detention. It noted that the applicant had prior criminal convictions and that he had no place of residence or work. He had been charged with several offences for which he could be sentenced to imprisonment. There was thus reason to believe that he could abscond or commit new offences, if released.\n\n16.  On 20 November 1998 the City Court heard the applicant and his lawyer on the sixth application by the investigator to extend the applicant's detention. Noting again that the applicant had no place of residence, work or family to support him, it decided to prolong his detention until 20 January 1999.\n\n17.  On 18 January 1999 the investigator filed another request to extend the applicant's custody term until 20 February 1999, i.e. 12 months in total. The applicant did not wish to be present at the examination of this request before the City Court, which found the request substantiated and allowed it for reasons similar to those in its previous decisions.\n\n18.  On 12 February 1999 the applicant and his lawyer were acquainted with the results of the preliminary investigation of the criminal case. Three days later the public prosecutor approved the bill of indictment and the case was sent to the City Court for trial.\n\n19.  By a decision of 18 February 1999 the City Court, having reviewed the case-file from the prosecution, committed the applicant for trial. In respect of detention it was ordered in the decision: “To leave unchanged the preventive custody measure chosen with respect to the accused at trial.” The decision did not specify until when the applicant had to be kept in detention. The court relied on the relevant provisions, including Article 189, of the Code of Criminal Procedure. The applicant did not receive a copy of the court decision, but was notified by the public prosecutor of the renewal of his detention on 22 February 1999.\n\n20.  On 22 February 1999 the applicant complained to the City Court that he was dissatisfied with the investigator who had refused to arrange his confrontation with witnesses. He considered that the investigation had been incomplete and asked the court to send the case back to the relevant authority.\n\n21.  On 15 March 1999 the applicant filed another complaint with the City Court, arguing that his detention after 20 February 1999 was unlawful and requesting his release from custody. He submitted that under the Code of Criminal Procedure (Article 73 § 6) notification of a prolongation of detention should reach the place of detention before the expiry of the previous order. He, however, received the notification only on 22 February 1999.\n\n22.  At the hearing before the City Court on 31 March 1999 the applicant pleaded guilty to the charges of burglary, but denied that he had induced two minors, M.T. and R.P., to participate in his criminal activity. The court heard five witnesses, including M.T. and R.P. By a judgment given on the same day it convicted the applicant on five counts of burglary under Article 139 § 2 of the Criminal Code as well as on the charge of inducing minors to participate in his crime, under Article 202 of the Code, and sentenced him to 2 years' imprisonment. The judgment did not mention the applicant's request for release or the continuation of the preventive custody measure.\n\n23.  On 15 April 1999 the applicant filed an appeal against the judgment with the Tallinn Court of Appeal (Tallinna Ringkonnakohus) in which he disputed his conviction under Article 202 of the Criminal Code. He also complained that the investigator had refused his request to conduct a confrontation with his accomplices M.T and R.P., and asked the appeal court to hear witness R.J., without indicating any reasons for his request.\n\nThe applicant further applied for release from custody and submitted that his continued detention after 20 February 1999 was unlawful.\n\n24.  On 23 April 1999 the Court of Appeal informed the applicant of the date of its preliminary hearing, noting that his presence was mandatory.\n\n25.  On 28 April 1999, after a preliminary hearing which the applicant did not attend, the Court of Appeal quashed the judgment of the City Court on procedural grounds and remitted the case to it for a new consideration with a different composition. It found that the lower court judgment was not reasoned and that its hearing records were incomprehensible. Moreover, as the applicant suffered from a mental handicap, it was necessary to have a psychiatric expert opinion on his mental state. Neither the decision nor the minutes of the hearing made reference to the applicant's request for release or dealt with the issue of detention pending final conviction and sentence.\n\nB.  Appeal against the detention to the Supreme Court\n\n26.  On 6 May 1999 the applicant wrote to the City Court asking it, without specifying the reasons, to call his witness R.J. He also informed the City Court that in his view he had the right to be released.\n\nThe following day the applicant filed an appeal against the Court of Appeal's decision of 28 April 1999 with the Supreme Court, submitting that neither the City Court nor the Court of Appeal had indicated on what ground he was being detained. He argued that the maximum time-limit of one year for pre-trial detention, stipulated in Article 74 of the Code of Criminal Procedure, expired on 19 or 20 February 1999 and that his continued detention was unlawful. He also requested his release from custody.\n\n27.  At the hearing before the Supreme Court on 8 June 1999, where the applicant was not present, the defence lawyer maintained the applicant's appeal and submitted, in addition, that the applicant had not been aware of the prolongation of his detention by a decision of the City Court of 18 February 1999 as a copy of the decision had not been sent to him.\n\n28.  By a decision of 8 June 1999 the Supreme Court dismissed the appeal. It considered that the time-limit of one year for pre-trial detention under Article 74 of the Code of Criminal Procedure had not been exceeded. The applicant had been taken into custody on 19 February 1998 and on 18 February 1999 he was committed for trial and ordered to remain in custody. In response to the defence lawyer's argument, the Supreme Court stated that, according to Article 202 § 1 of the Code of Criminal Procedure, a copy of the court decision committing the accused for trial was to be sent to the person only if the court changed a preventive measure – which was not the applicant's case. The applicant, however, had the opportunity to consult the decision in his criminal case-file.\n\nThe Supreme Court noted that, in remitting the case back to the first instance court, the Court of Appeal should have indicated, for the sake of clarity, that the preventive custody measure in respect of the applicant remained in force. Nonetheless, the absence of that indication did not render the applicant's detention unlawful. In sending the case back for a new consideration, the Court of Appeal restored the procedural stage which came about following the applicant's committal for trial on 18 February 1999. This situation also involved the preventive custody measure applied in respect of the applicant on the same day.\n\nC.  The second set of proceedings\n\n29.  On 31 August 1999 the medical experts established that the applicant was not of unsound mind or suffering from a mental disease, and was capable of understanding and controlling his actions.\n\n30.  On 5 October 1999 the City Court held a new hearing on the applicant's case. It heard 4 witnesses, including M.T and R.P. The applicant requested that an additional witness, L.M., be called to testify. The witness could provide information on the applicant's place of residence after 16 February 1998. The court rejected the request on the ground that the testimony of the proposed witness was irrelevant. The applicant had already submitted that at that time he was living at L.M.'s place and the court had sufficient evidence to decide on the case.\n\n31.  By a judgment of 5 October 1999 the City Court, having analysed the evidence in the case, including the testimonies of witnesses, found the applicant guilty as charged and sentenced him to 2 years and 6 months' imprisonment. It left unchanged the preventive custody measure applied to him, without putting forward any specific reasons for that.\n\n32.  In his appeal to the Court of Appeal, filed on 13 October 1999, the applicant submitted that his conviction under Article 202 of the Criminal Code of inducing minors to participate in burglary was based on insufficient evidence. He referred to the inability to confront the two minors during the preliminary investigation and asked the appeal court to hear his witness L.M. The applicant further disputed the lawfulness of his detention after 19 February 1999 and claimed that he had not received adequate replies to this question. He also demanded his release.\n\n33.  On 29 November 1999 the  Court of Appeal, having held a hearing, upheld the applicant's conviction, but reduced his sentence to 2 years' imprisonment. It did not hear the requested witness. The judgment of the Court of Appeal took effect on the day of its pronouncement, but was open to appeal to the Supreme Court within one month. Neither the judgment nor the hearing records mention the applicant's request for release.\n\n34.  On 21 December 1999 the applicant lodged an appeal with the Supreme Court contending, inter alia, that the investigator had acted unlawfully and pointing to the failure to hear the witness L.M. He requested to be released from custody.\n\nOn 12 January 2000 the Supreme Court refused, by a final decision, the applicant leave to appeal.\n\nII.  RELEVANT DOMESTIC LAW\n\n35.  Under Article 35-1 §§ 1 and 2 and Article 37 § 2 of the Code of Criminal Procedure, as in force at the material time, the accused and his defence lawyer have the right to submit applications and file appeals relating to the criminal proceedings.\n\n36.  Article 69 of the Code provides that a prohibition to leave a place of residence may be imposed on a suspect, accused or accused at trial, i.e. he or she may be obliged to undertake a written commitment not to leave his or her permanent or temporary residence without the permission of a preliminary investigator, prosecutor or court. If the suspect, accused or accused at trial violates such commitment, a more severe preventive measure may be applied with regard to him or her, against which the suspect, accused or accused at trial shall be cautioned upon the obtaining of his or her signature.\n\n37.  Article 71-1 of the Code stipulates that a judge may, at the request of an accused, replace the preventive custody measure with bail.\n\n38.  According to Article 73 of the Code, preventive custody measure may be applied in respect of a suspect, accused or accused at trial in order to prevent them from evading the criminal proceedings or committing a new crime as well as to ensure the enforcement of a court judgment (§ 1).\n\nThe permission for taking a suspect or accused into custody is given by a county or city court judge on the basis of a reasoned request from an investigator (§ 2).\n\n39.  An investigator must notify the defence counsel and prosecutor of a custody application beforehand; the counsel and prosecutor have the right to participate in the hearing of the application by the county or city court judge (§ 3).\n\nA person to be taken into custody has the right to request his or her interrogation by a county or city court judge with the participation of the defence counsel (§ 4).\n\n40.  A county or city court judge must give a reasoned ruling on the grant or refusal of the preventive custody measure. The judge must sign the ruling and certify it with the court seal (§ 5).\n\n41.  An extension of the term of custody is effected pursuant to the provisions which regulate the taking of a person into custody (§ 5-1).\n\nA court must inform the administration of the detainee's place of detention of its decision to prolong his detention or to annul it. The notification must reach the place of detention before the expiry of the term of detention (§ 6).\n\n42.  Article 74 of the Code provides that a period of detention during the investigation of criminal offences may not last longer than 6 months. In particularly complex and voluminous cases, the State Public Prosecutor or his Deputy may exceptionally request an extension of the time-limit for such detention up to one year.\n\n43.  According to Article 77-1 of the Code, a person in respect of whom a preventive custody measure is applied or extended, or his representative, may file an appeal against that ruling within five days pursuant to the procedure prescribed in the Code of Criminal Court Appeal and Cassation Procedure.\n\n44.  Article 78 of the Code stipulates that an investigator, prosecutor or court will annul a preventive measure if there is no further need for its application, or alter the preventive measure and choose a new preventive measure (§ 1).\n\nA preventive measure chosen in respect of an accused at trial may be altered or annulled by the trial court or a higher court (§ 3).\n\n45.  Under Article 189 of the Code, when committing the accused for trial, a court must examine whether a preventive measure has been correctly applied.\n\n46.  Article 202 § 1 of the Code requires a court to forward to the accused a copy of its decision on the committal for trial, if by that decision the court changed a preventive measure.\n\n47.  Article 222 of the Code empowers a court to amend and annul, in the course of the court proceedings, the preventive measures previously chosen with regard to the accused at trial.\n\n48.  According to Article 325 § 1 of the Code a court judgment becomes legally enforceable upon expiry of the term for filing of appeals or protests, if appeals or protests are not filed. If an appeal or protest is filed, a court judgment enters into force after the criminal matter has been heard by a higher court, unless the judgment is annulled.\n\n49.  Article 263 § 1 (10) and Article 275 § 1 (6) provide that, upon making a judgment, a court has to decide what preventive measure shall be applied with regard to the accused at trial or whether the preventive measure previously applied shall be annulled.\n\n50.  According to Article 35 § 1 of the Code of Criminal Court Appeal and Cassation Procedure a judgment of a court of appeal enters into force after it is pronounced or communicated through the court office in its full extent.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION\n\n51.  The applicant complained that his protracted detention was unfounded and in breach of Article 5 § 3 of the Convention, which provides:\n\n“3.  Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”\n\nA.  Period to be taken into consideration\n\n52.  The Court notes that the total period of the applicant's deprivation of liberty lasted from his first arrest to the Supreme Court's final refusal to grant him leave to appeal, less the 3 days he was at liberty in the meantime, 1 year, 10 months, 23 days.\n\nHowever, the period to be considered under Article 5 § 3 consisted of three separate terms, the first lasting from 14 February to 16 February 1998 (initial detention on suspicion of burglary), the second from 19 February 1998 to 31 March 1999 (the period of detention from the time the applicant was re-arrested to the original conviction by the first instance court), and the third from 28 April 1999 to 5 October 1999 (the period from the Court of Appeal's decision to quash the original judgment to the new conviction by the first instance court). The applicant's detention from 31 March 1999, the date of his original first-instance conviction, to 28 April 1999, the date on which that conviction was quashed and his case remitted, cannot be taken into account for the purposes of Article 5 § 3, as during that period the applicant was detained “after conviction by a competent court” under Article 5 § 1 (a) (see, for example, Kudła v. Poland [GC], no. 30210/96, §§ 104-105, ECHR 2000-XI). The total period of the applicant's detention on remand thus amounted to 1 year, 6 months and 22 days.\n\nB.  Reasonableness of the length of detention\n\n1.  The parties' arguments\n\n53.  The applicant maintained that the period of more than one and a half years during which he had been held in detention was excessive.\n\n54.  The applicant was of the opinion that the reasons for his continued detention had been inadequate. Most of the court orders by which his detention had been authorised had stated that he had been previously convicted, did not have a residence, a job or a family and could thus commit new offences.\n\n55.  The applicant noted that, under Article 74 of the Code of Criminal Procedure, reasons as to the particular complexity or extent of the case should have been advanced in order to request his pre-trial detention for a period exceeding six months. This had not been done. All the detention orders had employed the same laconic formula.\n\n56.  The applicant also maintained that the charges brought against him and the circumstances of the offence had not been complicated. He had admitted the charges from the very beginning and had assisted the investigation in a reasonable way. He submitted that it had appeared from the criminal case-file that by the end of March 1998 all or most of the factual circumstances supporting the charges had been established by the police investigators. He considered that, after having established the facts, the legal issues – for example the question whether he had induced minors to burglary or whether they had acted of their own will – could have been determined during the trial, without any excessive delay of the investigation.\n\n57.  The Government were of the opinion that the applicant's detention of about one and a half years could not be considered excessive, taking into account the complexity of the criminal case and the fact that the first instance court had heard the case twice, since the first judgment had been quashed by the Court of Appeal.\n\n58.  The Government maintained that a substantial risk that the applicant would reoffend and abscond had persisted throughout the entire period of detention. The applicant had, indeed, committed a further offence at the time when he had been at liberty (from 16 February to 19 February 1998). The applicant had no place of residence or job and he lacked ties with his family members. Moreover, he had been convicted of criminal offences twice before. The Government concluded that the grounds for detention and the reasons given by the authorities had been “relevant” and “sufficient” so as to justify the applicant's detention under Article 5 § 3.\n\n59.  The Government noted that from July 1997 until the beginning of 1998 there had been a considerable increase in burglaries and thefts in the city of  committed by different groups of persons. Altogether the police had initiated 11 criminal cases and on 7 occasions the investigator had joined different criminal cases. This was because the burglaries and thefts had been committed by the same persons or the joinder of the cases had been considered necessary for the better conduct of the preliminary investigation and for speeding up the investigation. The charges against the applicant had been investigated within a criminal case which had included 39 counts of burglary and theft from different kiosks and numerous other episodes of burglaries and thefts. During the preliminary investigation 18 minors and 7 adults, including the applicant, had been charged with criminal offences.\n\n60.  The Government concluded that the criminal case as a whole had been a complex and voluminous one. They noted that the applicant had not objected to the joinder of the different criminal cases. When the investigator had come to the conclusion that it had been possible to deal with the charges against the applicant separately, his case had been separated on 12 February 1999. Even if the applicant's case on its own had not been particularly complex, it had to be assessed in the context of the complex criminal case of which it was a part in the beginning of the investigation. The complexity of the whole criminal case and the different steps taken by the investigator, especially the separation of the applicant's case from the voluminous one, demonstrated that the authorities had taken all necessary steps in order to speed up the proceedings. The Government also pointed out that, even assuming that certain delays in the preliminary investigation could have occurred for the above reasons, the proceedings after the separation of the cases had been conducted with exceptional speed. On the whole, the Government were of the opinion that the authorities had displayed special diligence as required in the handling of criminal proceedings against remand persons and, therefore, Article 5 § 3 had not been violated.\n\n2.  The Court's assessment\n\n61.  The Court reiterates that the question of whether or not a period of detention is reasonable cannot be assessed in the abstract. The reasonableness of the detention of an accused has to be assessed in each individual case according to its special features. Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty laid down in Article 5 of the Convention.\n\nIt falls in the first place to the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable time. To this end they must, paying due regard to the principle of the presumption of innocence, examine all the facts arguing for or against the existence of the above-mentioned requirement of public interest justifying a departure from the rule in Article 5, and must set them out in their decisions on the applications for release. It is essentially on the basis of the reasons given in these decisions, and any well-documented facts stated by the applicant in his appeals, that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 (see, for example, Labita v. Italy [GC], no. 26772/95, § 152, ECHR 2000-IV, and Kudła, cited above, § 110).\n\n62.  The persistence of a reasonable suspicion that the person arrested has committed an offence is a conditio sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. The Court must then establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also be satisfied that the national authorities displayed “special diligence” in the conduct of the proceedings. The complexity and special characteristics of the investigation are factors to be considered in this respect (see, for example, Scott v. Spain, judgment of 18 December 1996, Reports 1996-VI, pp. 2399-2400, § 74, and I.A. v. France, judgment of 23 September 1998, Reports 1998-VII, p. 2978, § 102).\n\n63.  The Court accepts that the suspicion against the applicant of having committed the offences with which he was charged may initially have warranted his detention. The detention in the initial phase of the investigation was further justified by the fact that the applicant committed a new offence during the short period while he was at liberty (see paragraph 9 above).\n\n64.  However, the Court observes that the judicial orders authorising the applicant's detention on remand were based on a brief standard formula that the detention was justified, namely that the applicant had been previously convicted, did not have a place of residence, a job nor a family and that he could commit new offences, and abscond. No more elaborate reasons were put forward to justify the need for the protracted detention of the applicant.\n\nThe Court finds that the mere absence of a fixed residence does not give rise to a danger of flight. Nor can it be concluded from the lack of a job or a family that a person is inclined to commit new offences. The Court has doubts as to whether the grounds for the applicant's detention, as reflected in the perfunctorily reasoned court orders, retained their sufficiency for the whole period of the pre-trial detention.\n\nIn that context, the Court would emphasise that under Article 5 § 3 the authorities, when deciding on the continuing detention of a person, are obliged to consider alternative measures of ensuring his appearance at trial. It should be recalled that this provision proclaims not only the right to “trial within a reasonable time or to release pending trial” but also lays down that “release may be conditioned by guarantees to appear for trial” (see, for example, Neumeister v. Austria, judgment of 27 June 1968, Series A no. 8, p. 3, § 3, and Iłowiecki v. Poland, no. 27504/95, § 63, 4 October 2001). In the present case the authorities did not envisage any other guarantees that the applicant would appear for trial, although he repeatedly objected to his continued detention, requesting that it be replaced by another preventive measure – a prohibition on leaving a place of residence where he asserted that he could live with his brother.\n\n65.  Furthermore, the Court finds, in any case, that the authorities cannot be said to have displayed “special diligence” in the conduct of the proceedings. The charges against the applicant were not so complex and voluminous as to justify the length of the pre-trial investigation. Indeed, the Government conceded that the applicant's case was not necessarily particularly complex and that certain delays could have occurred during the preliminary investigation (see paragraph 60 above). The Court recalls that the applicant was charged with five counts of burglary and inducement of minors to commit criminal offences. The judgment of 31 March 1999 of the Pärnu City Court by which the applicant was initially convicted, extended to two pages. Five witnesses were heard during the preliminary investigation and at the hearing.\n\n66.  The applicant has claimed that by the end of March 1998 the factual circumstances concerning the offences committed by him had largely been established by the investigation. The Court has not been provided with any information to the contrary and finds no reason to hold otherwise. It should also be noted that as regards two of the counts of burglary the applicant was caught in the act by witnesses who then took him to the police. Moreover, during the investigation the applicant admitted having committed the offences, except for the additional count of inducing minors. That being so, the authorities could hardly be regarded as having exercised special diligence in the conduct of the proceedings.\n\n67.  Article 5 § 3 of the Convention has therefore been violated.\n\nII.  ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION\n\n68.  The applicant complained of the failure to examine speedily his applications for release, relying on Article 5 § 4 of the Convention, which provides:\n\n“4.  Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”\n\nA.  The first set of proceedings\n\n69.  The Court notes that on 15 March 1999 the applicant lodged a complaint with the Pärnu City Court(see paragraph 21 above), arguing that his continuing detention after 20 February 1999 had been unlawful and requesting his release from custody. The judgment of the City Court of 31 March 1999 gave no response to the complaint and, in fact, contained no decision with respect to the preventive measure.\n\nIn a request of 15 April 1999, lodged with the Tallinn Court of Appeal together with an appeal, the applicant again asked to be released. On 28 April 1999 the Court of Appeal quashed the City Court's decision, leaving the question of the preventive measure undecided and unreasoned.\n\nIn the appeal to the Supreme Court, lodged on 7 May 1999, the applicant also requested his release. The issue of the lawfulness of the detention was decided by the Supreme Court on 8 June 1999(see paragraphs 26 to 28 above).\n\n70.  The Government submitted that the applicant had not requested his release at the hearing in the City Court.\n\n71.  The Court recalls that according to its case-law the supervision required by Article 5 § 4 of the Convention is incorporated in the decision when the decision is made by a court at the close of judicial proceedings (De Wilde, Ooms and Versyp v. Belgium, judgment of 18 June 1971, Series A no. 12, pp. 40-41, § 76). It is particularly so when the court imposes a fixed sentence of imprisonment after convicting the person of a criminal offence (Waite v. the United Kingdom, no. 53236/99, § 56, 10 December 2002).\n\n72.  It should be noted, however, that the national legislation may require that the question of the lawfulness of detention be addressed separately in a judgment by which a person is convicted or that a separate decision to that effect be made. In the König v. Slovakia judgment (no. 39753/98, §§ 10 and 20, 20 January 2004), for example, the Court found that, in the absence of any decision on the request for release made by the applicant in his final speech at the court hearing, the applicant continued to be held in detention on remand, technically, by virtue of a decision which had been taken on a different occasion prior to the delivery of the convicting judgment.\n\n73.  The Court notes that, under Article 325 § 1 of the Estonian Code of Criminal Procedure, the first instance court judgment became legally enforceable after the expiry of the time-limit for appeal. According to Articles 263 § 1 (10) and 275 § 1 (6) the court had to decide whether to continue or lift the preventive measure in the convicting judgment. It has also been the judicial practice of first instance courts to include in the judgment a decision concerning the preventive measure applied. This was not done by the Pärnu City Court in the present case.\n\n74.  According to the interpretation of the Supreme Court, the applicant's detention had been lawful, despite the lack of a decision concerning the detention in the Court of Appeal's decision. The Supreme Court pointed only to some lack of clarity in the decision (see paragraph 28 above).\n\nThe Court notes that, apart from the legality of the detention itself, the issue of whether the lawfulness of the applicant's detention was decided speedily has to be resolved under Article 5 § 4. In the light of the national legislation and judicial practice, it cannot be held that the review of the lawfulness of the applicant's detention was incorporated in the City Court's judgment or in the Court of Appeal's decision.\n\nAccordingly, the Court finds that 15 March 1999, when the applicant challenged the legality of his detention with the City Court, is to be considered the date of the applicant's request for the review of the lawfulness of his detention. The matter was decided by the Supreme Court on 8 June 1999, i.e. in 2 months and 24 days. The Court holds, in the light of its case-law, that the length of this period cannot be reconciled with the requirement of Article 5 § 4 of the Convention that the lawfulness of one's detention shall be decided speedily (see, for instance, Rehbock v. Slovenia, no. 29462/95, §§ 84-88, ECHR 2000XII).\n\n75.  There has, therefore, been a violation of Article 5 § 4 of the Convention.\n\nB.  The second set of proceedings\n\n76.  The Court notes that in the second set of the court proceedings the applicant was convicted by the Pärnu City Court on 5 October 1999. The judgment contained a decision that the applicant had to remain in detention. In his appeal of 13 October 1999 he argued that the question of the lawfulness of his detention had not been resolved in a satisfactory manner and requested to be released.\n\nOn 29 November 1999 the Tallinn Court of Appeal confirmed the City Court's judgment as to its substance, without addressing the question of the lawfulness of the detention.\n\n77.  The Government were of the opinion that the lodging of the request to be released on 13 October 1999 with the Court of Appeal had made it impossible for it to resolve the issue of applying preventive measure, because with the pronouncement of the judgment of the Court of Appeal the conviction of the applicant became legally enforceable and he was subject to a sentence of imprisonment.\n\n78.  The Court finds that the review of the lawfulness of the applicant's detention was incorporated in the City Court's judgment of 5 October 1999. Subsequently, the applicant was entitled, under Article 5 § 4, after a “reasonable interval” to take proceedings by which the lawfulness of his continued detention was decided “speedily” by a court (see, among others, Bezicheri v. Italy, judgment of 25 October 1989, Series A no. 164, p. 10, § 20).\n\n79.  It should be noted that a new request to be released was made by the applicant in his appeal of 13 October 1999, i.e. 8 days after the City Court had made a decision concerning his detention.\n\nThe Court doubts whether this period of 8 days constituted a “reasonable interval” for the purposes of Article 5 § 4. In any case, after the judgment of the Court of Appeal, which became legally effective from its delivery, the applicant was deprived of his liberty following – and because of – conviction by a competent court. Such a deprivation of liberty falls under Article 5 § 1 (a) of the Convention. The Court is therefore satisfied that the review of the legality of the detention, although not addressed by the Court of Appeal, can be deemed to have been incorporated also in that judgment(see paragraph 71 above).\n\n80.  Having regard to the specific circumstances of the case and taking into account, in particular, the short interval between the review of the lawfulness of the detention by the City Court and the applicants new request to be released, the Court is satisfied that the requirements of Article 5 § 4 were met in this set of proceedings.\n\nIII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n81.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n82.  The applicant did not make any claim for costs and expenses but claimed the sum of 150,000 Estonian kroons (9,585 euros (EUR)) in compensation for distress and suffering caused by the illegal detention on remand and the fact that his requests for release were ignored by the judicial authorities.\n\n83.  The Government did not comment on the claim.\n\n84.  The Court finds that the applicant has suffered non-pecuniary damage, which is not sufficiently compensated by the finding of a violation. Making its assessment on an equitable basis, the Court awards him EUR 3,000.\n\nB.  Default interest\n\n85.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Holds that there has been a violation of Article 5 § 3 of the Convention;\n\n2.  Holds that there has been a violation of Article 5 § 4 of the Convention in respect of the review of Mr Sulaoja's complaint of 15 March 1999 concerning the lawfulness of his detention;\n\n3.  Holds that there has been no violation of Article 5 § 4 of the Convention in respect of the review of Mr Sulaoja's complaints concerning the lawfulness of his detention after his conviction on 5 October 1999;\n\n4.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 3,000 (three thousand euros) in respect of non-pecuniary damage, to be converted into Estonian kroons at the date of settlement, plus any tax that may be chargeable;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n5.  Dismisses the remainder of the applicant's claim for just satisfaction.\n\nDone in English, and notified in writing on 15 February 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_753","text":"PROCEDURE\n\n1.  The case originated in an application (no. 35443/13) against the Republic of Armenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Armenian national, Ms Voskehat Ghulyan (“the applicant”), on 28 May 2013.\n\n2.  The applicant was represented by Mr K. Mezhlumyan, a lawyer practising in Yerevan. The Armenian Government (“the Government”) were represented by their Agent, Mr G. Kostanyan, Representative of the Government of Armenia to the European Court of Human Rights.\n\n3.  On 16 November 2016 the complaint concerning the alleged lack of impartiality of the District Court judge was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n4.  The applicant was born in 1973 and lives in Glendale, California, the United States of America.\n\n5.  The applicant worked in the British Council’s Armenia office (hereinafter “the British Council”) as a project manager on a full-time, permanent contract starting from 25 November 2002.\n\n6.  In the course of her employment the applicant had two children, born on 27 March 2008 and 7 May 2010. The applicant spent her maternity leave in the United States and regularly sent requests to extend that leave every six months for the duration of her absence. In particular, she sent such requests in March and September 2009 as regards her first child and then in April and September 2010 as regards her second child. It appears that the applicant’s maternity leave was extended, based on those requests. In March 2011 her leave was further extended until 1 September 2011.\n\n7.  According to the applicant, on 19 August 2011 she requested another extension of her maternity leave. She handed an envelope with her written request to that effect to her friend H.K., who was to return to Armenia on 17 August 2011 after a visit to the United States. Upon arrival, H.K. gave the envelope to R.O., a driver, who then handed it to A.K., a security guard at the British Council.\n\n8.  On 30 September 2011 the applicant received notice of termination of her employment contract prior to its term. The notice referred to the change in volume and conditions of work at the British Council, as well as the need to reduce the number of staff. In addition, the notice stated the following:\n\n“... [your] employment contract shall be terminated based on [the relevant provisions] of the Labour Code of the Republic of Armenia.\n\nWe also inform you that your employment contract shall be terminated ... considering the fact that you did not return to work after the completion of your unpaid maternity leave, which was to end on 1 September 2011, as indicated in your letter sent to us by fax on 17 March 2011.\n\nThe employment contract shall be considered terminated as of 1 December 2011.”\n\n9.  It appears that the applicant sent emails to the management of the British Council in relation to the early termination of her employment.\n\n10.  On 30 November 2011 Ar.M., a lawyer and a representative of Prudence, a law firm which provided legal services to the British Council, replied to the applicant on behalf of that body. In particular, the email stated that the termination of the applicant’s employment had been in full compliance with domestic law and the terms and conditions of the British Council.\n\n11.  By an order of 1 December 2011, issued by the director of the British Council, the applicant’s employment contract was terminated.\n\n12.  On 30 December 2011 the applicant brought a claim against the British Council before the Kentron and Nork-Marash District Court of Yerevan, contesting the order of 1 December 2011 and seeking reinstatement.\n\n13.  By a decision of 11 January 2012, Judge A.M. of the District Court took over the examination of the applicant’s case and scheduled the preparatory hearing.\n\n14.  According to a power of attorney executed by a notary public in London on 12 January 2012, the British Council authorised, inter alia, Ar.M. and K.B., another lawyer with Prudence, to represent jointly or separately its interests before courts of all instances in Armenia.\n\n15.  On 16 January 2012 the British Council was notified by the District Court of its taking over of the examination of the case and the judge appointed.\n\n16.  On 31 January 2012 K.B. applied to the District Court to represent the British Council before the said court, also asking the court to postpone the hearings. On 1 February 2012 Ar.M. informed the District Court that he would not be representing the interests of the British Council in the instant case. It appears that during the whole trial before the District Court, K.B. alone represented the British Council.\n\n17.  On 14 February 2012, in its reply to the applicant’s claim signed by K.B., the British Council denied that the applicant had submitted a request to extend her maternity leave for another six months as of 1 September 2011.\n\n18.  On 9 July 2012 Judge A.M. rejected the applicant’s claim, finding that her dismissal had been lawful.\n\n19.  After the proceedings before the District Court, it was discovered that Judge A.M. and the lawyer Ar.M. were twin brothers. Furthermore, the law firm Prudence, of which Ar.M. and K.P. were senior associates, had been founded by D.M., A.M.’s and Ar.M.’s elder sister, and was managed by her husband, E.M.\n\n20.  On 6 August 2012 the applicant lodged an appeal arguing, inter alia, that Judge A.M. had lacked impartiality when deciding her case owing to his close family ties to the legal representatives of her opponent in the proceedings. The Government claimed that no such issue had been raised, nor had any evidence to support such a claim been provided.\n\n21.  On 28 September 2012 the Civil Court of Appeal upheld the District Court’s judgment. In doing so, the Court of Appeal did not address the applicant’s arguments regarding the alleged lack of impartiality of Judge A.M. in the proceedings before the District Court.\n\n22.  The applicant lodged an appeal on points of law, raising similar arguments to those submitted in her previous appeal.\n\n23.  On 28 November 2012 the Court of Cassation declared the applicant’s appeal on points of law inadmissible for lack of merit.\n\nII.  RELEVANT DOMESTIC LAW\n\nA.  Code of Civil Procedure\n\n24.  Article 21 §§ 1 and 2 provide that the grounds for a judge’s disqualification are laid down in Article 91 of the Judicial Code. A judge must recuse him or herself of his or her own motion or upon the application of a party to the proceedings.\n\n25.  Pursuant to Article 22 § 1, a judge should recuse him or herself if the grounds provided in Article 21 pertain.\n\n26.  In accordance with Article 219, the Court of Appeal reviews a judicial decision within the frame of the grounds and substantiations of the appeal. The Court of Appeal must not accept new evidence and must base its decision solely on the evidence which was presented to the first-instance court.\n\nB.  Judicial Code\n\n27.  Article 91, in so far as relevant, provides:\n\n“1.  A judge should recuse him or herself if he or she is aware of any fact or circumstances which may cast reasonable doubt on his or her impartiality in the given case. Grounds for recusal include, inter alia, cases where:\n\n...\n\n4)  a judge is aware that he or she, or his or her spouse or their relatives up to the third degree, have pecuniary interest in relation to the dispute or one of the parties thereof.”\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION\n\n28.  The applicant complained that that she had not received a hearing by an impartial tribunal within the meaning of Article 6 § 1 of the Convention, given that Judge A.M. of the District Court had had close family ties to the representatives of her opponent in the proceedings.\n\n29.  Article 6 § 1 of the Convention reads as follows:\n\n“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”\n\nA.  Admissibility\n\n30.  The Government argued that the applicant had failed to exhaust all the domestic remedies available to her. She had never requested the withdrawal of Judge A.M. from the trial during the District Court proceedings, although the domestic legislation had provided for such a possibility. It was true that the applicant had claimed that she had not had any knowledge of the alleged grounds of partiality during the District Court proceedings but that she had learned about it only after those proceedings had been concluded. However, she had not mentioned when, how and in what circumstances she had discovered this information and why she could not have known about it beforehand. Although the applicant had noticed that Judge A.M. and Ar.M., the British Council’s counsel, had had the same last name, this had not necessarily indicated anything regarding family ties as their last name had been particularly common in Armenia.\n\n31.  The Government further argued that the applicant had never explicitly challenged the impartiality of Judge A.M. before the Civil Court of Appeal either. In her appeal to the Civil Court of Appeal, the applicant had raised numerous allegations of substantive and procedural violations of several legal provisions but had not specifically addressed the impartiality of Judge A.M. Pursuant to Article 219 of the Code of Civil Procedure, the Court of Appeal did not have the authority to go beyond the appeal and was obliged to review the judicial decision within the framework of the grounds and substantiations of the appeal, which had been exactly how the Court of Appeal had acted in the instant case. The applicant could thus not have reasonably expected the Court of Appeal to have made any assessment of the said allegation since such an allegation had simply not been appropriately raised before it.\n\n32.  Moreover, the Government argued that the applicant had lost her victim status since the Civil Court of Appeal had examined the case and had found no violation. Therefore, the Government claimed that the application should be declared inadmissible.\n\n33.  The applicant noted that she had learned about the family connection between Judge A.M. and Ar.M., the representative of the British Council, only when she had received the District Court’s judgment. Since the applicant had been living in the United States, she had not received all the court documents received by her representative in Armenia. Only when receiving the judgment had she noticed that the judge’s last name had been the same as that of the British Council’s representative with whom she had been communicating. Therefore she could not have raised the issue before the District Court.\n\n34.  The applicant argued that she had raised the issue of partiality in the Civil Court of Appeal in the context of the admission of evidence, claiming that Judge A.M. had not passed either the subjective or the objective test and that such a judgment would deprive her of her fair-trial rights. She argued that she had exhausted all domestic remedies and that she was still a victim.\n\n35.  The Court notes that, while in the context of the legal machinery for the protection of human rights the rule of exhaustion of domestic remedies must be applied with some degree of flexibility and without excessive formalism, it does not require merely that applications should be made to the appropriate domestic courts and that use should be made of remedies designed to challenge impugned decisions which allegedly violate a Convention right. It normally requires also that the complaints intended to be made subsequently at the international level should have been raised before those same courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see, among many other authorities, Fressoz and Roire v. France [GC], no. , § 37, ECHR 1999-I, and Azinas v. Cyprus [GC], no. 56679/00, § 38, ECHR 2004III).\n\n36.  The Court accepts that, in the present case, the applicant did not learn about the possible partiality of the deciding judge A.M. during the District Court proceedings but only when she received the District Court judgment. She could not therefore have raised the issue of possible lack of impartiality during the District Court proceedings. As concerns the proceedings before the Civil Court of Appeal, the Court considers that the applicant raised the issue of alleged lack of impartiality in a sufficient manner in order to satisfy the requirements of Article 35 of the Convention. It follows that the Government’s objections must be rejected.\n\n37.  As regards the question of whether the Civil Court of Appeal proceedings were capable of lifting the applicant’s victim status, the Court considers that it should be joined to the merits of the case and be examined at a later stage.\n\n38.  Therefore, the Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n1.  The parties’ submissions\n\n39.  The applicant argued that the Government had not denied the family ties between Judge A.M. and the lawyer Ar.M. Nor had the Government denied that K.B., who had represented the British Council at the trial, had been employed by the law firm Prudence, or that E.M. – the managing partner of Prudence – had been the husband of D.M. and brother-in-law of Judge A.M. and Ar.M. It was obvious that Prudence, which had been chosen by the British Council for pre-trial representation, had continued to provide services throughout the court proceedings. Pursuant to domestic law, only physical persons could be representatives in court. That was why the power of attorney issued by the British Council had not mentioned Prudence but instead had mentioned other counsel. Although Ar.M. had told the District Court that he had no longer been the representative of the British Council in the present case, he had still been authorised by that organisation to represent it since the power of attorney of 12 January 2012 had never been withdrawn. As Judge A.M. had had connections to Prudence, which had provided services to the British Council, he could not be considered as having been impartial.\n\n40.  The Government argued that the applicant had had a fair hearing in the determination of her civil rights and obligations, in accordance with Article 6 § 1 of the Convention. Even if Ar.M. had provided legal services to the British Council, it had been prior to the proceedings at the District Court and those legal services had not had any connection with the trial. The British Council had not signed a contract with the law firm Prudence. Instead it had authorised only four lawyers, including Ar.M. and K.B., to jointly or separately represent its interests in relations with the applicant and before the domestic courts. Moreover, the power of attorney authorising Ar.M. to represent the British Council had been issued on 12 January 2012, specifically before the British Council had been notified by the District Court of the appointment of Judge A.M. After the receipt of this information, the British Council had been represented in the proceedings before the District Court solely by K.B. The Government averred that it had also been crucial that Ar.M. had informed the District Court that he would not be representing the British Council in the instant case. These facts showed that there had been no lack of impartiality on the part of Judge A.M. due to family ties to the representatives of the respondent.\n\n41.  The Government claimed that, under the subjective test, there was no proof that Judge A.M. had displayed any type of hostility or ill will at all, let alone for personal reasons. As for the objective test, the applicant had failed to demonstrate that the fear that the judge had lacked impartiality had been objectively justified. On the contrary, the applicant had, without raising her concerns before the domestic courts, made inappropriate and unsubstantiated assumptions as to the impartiality of Judge A.M. The British Council had been represented only by K.B. for the duration of the trial. Ar.M., whom the applicant alleged had had family ties to Judge A.M., had refrained from representing the respondent in the proceedings before the District Court, thus eliminating any possible doubts regarding the impartiality of the presiding judge.\n\n2.  The Court’s assessment\n\n42.  The Court reiterates that impartiality normally denotes the absence of prejudice or bias, and that its existence or otherwise can be tested in various ways. According to the Court’s settled case-law, the existence of impartiality for the purposes of Article 6 § 1 must be determined according to (i) a subjective test, where regard must be had to the personal conviction and behaviour of a particular judge – that is to say whether the judge held any personal prejudice or bias in a given case, and (ii) according to an objective test – that is to say by ascertaining whether the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality (see Morice v. France [GC], no. , § 73, ECHR 2015, with further references).\n\n43.  As to the subjective test, the principle that a tribunal must be presumed to be free of personal prejudice or partiality is long-established in the Court’s case-law. The personal impartiality of a judge must be presumed until there is proof to the contrary. As regards the type of proof required, the Court has, for example, sought to ascertain whether a judge has displayed hostility or ill will for personal reasons (ibid., § 74).\n\n44.  As to the objective test, it must be determined whether, quite apart from the judge’s conduct, there are ascertainable facts which may raise doubts as to his or her impartiality. This implies that, in deciding whether in a given case there was a legitimate reason to fear that a particular judge or bench lacked impartiality, the standpoint of the person concerned is important but not decisive. What is decisive is whether this fear can be held to be objectively justified (ibid., § 76).\n\n45.  The objective test mostly concerns hierarchical or other links between the judge and other protagonists in the proceedings or the exercise of different functions within the judicial process by the same person (see Kyprianou v. Cyprus [GC], no. , § 121, ECHR 2005XIII). It must therefore be decided in each individual case whether the relationship in question is of such a nature and degree as to indicate a lack of impartiality on the part of the tribunal (see Morice, cited above, § 77).\n\n46.  In this connection, even appearances may be of a certain importance or, in other words, “justice must not only be done, it must also be seen to be done”. What is at stake is the confidence which the courts in a democratic society must inspire in the public. Thus, any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw (see Micallef v. Malta [GC], no. 17056/06, § 98, ECHR 2009).\n\n47.  Moreover, in order that the courts may inspire in the public the confidence which is indispensable, account must also be taken of questions of internal organisation. The existence of national procedures for ensuring impartiality, namely rules regulating the withdrawal of judges, is a relevant factor. Such rules manifest the national legislature’s concern to remove all reasonable doubts as to the impartiality of the judge or court concerned and constitute an attempt to ensure impartiality by eliminating the causes of such concerns. In addition to ensuring the absence of actual bias, they are directed at removing any appearance of partiality and so serve to promote the confidence which the courts in a democratic society must inspire in the public. The Court will take such rules into account when making its own assessment as to whether a tribunal was impartial and, in particular, whether an applicant’s fears can be held to be objectively justified (ibid., § 99).\n\n48.  At the outset, the Court notes that the applicant did not question Judge A.M.’s subjective impartiality. The case will therefore be examined only from the standpoint of the objective impartiality test.\n\n49.  In the present case, the first-instance proceedings were adjudicated by Judge A.M., who was the twin brother of Ar.M., one of the opposing party’s legal team, and the brother of the founder of the law firm Prudence, for which the lawyers worked. The Court finds it established that Ar.M. did not directly participate in the court proceedings, but the British Council was represented by K.B., another Prudence lawyer. Although Ar.M. was absent from the trial, he had nevertheless been in contact with the applicant prior to the court proceedings.\n\n50.  To the extent that the applicant’s fear of impartiality on the part of Judge A.M. stemmed from the family tie between that judge and Ar.M., the Court notes that they have a very close family relationship as they are twin brothers. Although Ar.M. withdrew from the case once the judge’s identity became known and K.B. represented the British Council throughout the proceedings, the fact still remains that Ar.M. worked for the law firm Prudence, which represented the British Council. Moreover, the law firm was founded by the sister of Judge A.M. and managed by his brother-in-law.\n\n51.  The Court finds that when a judge has blood ties to an employee of a law firm representing a party in any given proceedings, this does not in and of itself disqualify the judge (see Ramljak v. Croatia, no. , § 29, 27 June 2017). An automatic disqualification on the basis of such ties is not necessarily required. It is, however, a situation or affiliation that could give rise to misgivings as to the judge’s impartiality. Whether such misgivings are objectively justified would very much depend on the circumstances of the specific case, and a number of factors should be taken into account in this regard. These should include, inter alia, whether the judge’s relative has been involved in the case in question, the position of the judge’s relative in the firm, the size of the firm, its internal organisational structure, the financial importance of the case for the law firm, and any possible financial interest or potential benefit (and the extent thereof) on the part of the relative (see Nicholas v. Cyprus, no. 63246/10, § 62, 9 January 2018). Given the importance of appearances, however, when such a situation (which can give rise to a suggestion or appearance of bias) arises, that situation should be disclosed at the outset of the proceedings and an assessment should be made, taking into account the various factors involved in order to determine whether disqualification is actually necessitated in the case. This is an important procedural safeguard which is necessary in order to provide adequate guarantees in respect of both objective and subjective impartiality (ibid., § 64).\n\n52.  In the present case, no such disclosure took place and the applicant discovered the connection between the opposition counsel and the judge only after the first-instance judgment had been given. She was thus faced with a situation in which the law firm which had represented the British Council had been founded and managed by the sister and brother-in-law of Judge A.M., and had his twin brother, Ar.M., working there as a senior associate. It is not known whether the sister and brother-in-law were actively involved in the case (compare Huseyn and Others v. Azerbaijan, nos.  and 3 others, § 168, 26 July 2011, and Bellizzi v. Malta (dec.), no. , § 61, 21 June 2011) and whether they had a financial interest connected to its outcome, but it was clear that Ar.M. was actively involved in preparing the case. An appearance of partiality was thus created.\n\n53.  It needs to be examined next whether the Civil Court of Appeal was capable of remedying any lack of impartiality of the first-instance court. It is well established in the Court’s case-law that a defect at first instance may be remedied on appeal, so long as the appeal body has full jurisdiction. Where a complaint is made of a lack of impartiality on the part of the decision-making body, the concept of “full jurisdiction” means that the reviewing court not only considers the complaint but has the ability to quash the impugned decision and either to take the decision itself, or to remit the case for a new decision by an impartial body (see De Haan v. the Netherlands, 26 August 1997, §§ 53-54, Reports of Judgments and Decisions 1997IV, and Ranson v. the United Kingdom (dec.), no. 14180/03, 2 September 2003).\n\n54.  The Court notes that, in the present case, the Civil Court of Appeal did not address at all the applicant’s arguments regarding the alleged lack of impartiality of Judge A.M. during the proceedings before the District Court (see paragraph 21 above). Since no consideration of the complaint was made, the appearance of partiality at first instance was not remedied on appeal.\n\n55.  The foregoing considerations are sufficient to enable the Court to conclude that the participation of Judge A.M. in the case rendered the first-instance court proceedings partial and this defect was not remedied on appeal. It accordingly rejects the Government’s preliminary objection as to the applicant’s victim status (see paragraph 32 above).\n\n56.  There has therefore been a violation of Article 6 § 1 of the Convention.\n\nII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n57.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n58.  The applicant claimed 62,700 euros (EUR) in respect of pecuniary damage and EUR 19,000 in respect of non-pecuniary damage.\n\n59.  The Government considered that the claim for pecuniary damage was based on a mere speculation on the connection between the wages lost and the alleged violation of Article 6 § 1. As to the non-pecuniary damage, the Government considered that the amount claimed was excessive and argued that a mere finding of a violation was sufficient just satisfaction for any non-pecuniary damage suffered by the applicant.\n\n60.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 3,600 in respect of nonpecuniary damage.\n\nB.  Costs and expenses\n\n61.  The applicant also claimed EUR 1,400 for the costs and expenses incurred before the domestic courts and EUR 4,880 for those incurred before the Court, consisting of a lawyer’s fee of EUR 4,630, translation costs of EUR 150 and postal costs to the Court of EUR 100.\n\n62.  The Government considered that the claim concerning costs and expenses before the domestic courts should be rejected as there was no proof that those costs and expenses had actually incurred or that the applicant was bound to pay them. As to the costs and expenses before the Court, the Government noted that the lawyer’s fee and the translation costs had not been documented adequately and that they should therefore be rejected.\n\n63.  Regard being had to the documents in its possession and to its caselaw, the Court rejects the claim for costs and expenses for lack of adequate supporting documentation.\n\nC.  Default interest\n\n64.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\n1.  Declares the application admissible;\n\n2.  Holds that there has been a violation of Article 6 § 1 of the Convention;\n\n3.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months, EUR 3,600 (three thousand six hundred euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable, in respect of non-pecuniary damage;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n4.  Dismisses the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 24 January 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_806","text":"PROCEDURE\n\n1.  The case originated in an application (no. 28793/02) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the Christian Democratic People's Party (“the applicant party”) on 8 July 2002.\n\n2.  The applicant party was represented by Mr V. Nagacevschi and Mr V. Gribincea, lawyers practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Pârlog.\n\n3.  The applicant party alleged, in particular, that its right to freedom of assembly had been violated as a result of the sanctions imposed on it for organising unauthorised gatherings.\n\n4.  The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.\n\n5.  On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Fourth Section (Rule 52 § 1).\n\n6.  By a decision of 22 March 2005, the Chamber declared the application admissible.\n\n7.  The applicant party and the Government each filed observations on the merits (Rule 59 § 1), the Chamber having decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine).\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n8.  The applicant party, the Christian Democratic People's Party (“the CDPP”), is a parliamentary political party in the  which was in opposition at the time of the events.\n\n1.  The background to the case\n\n9.  Towards the end of 2001, the Moldovan government made public its intention to make the study of the Russian language compulsory in schools for children aged seven and over.\n\n10.  This initiative prompted vehement criticism from the opposition and generated a heated public debate.\n\n11.  On 26 December 2001 the parliamentary group of the CDPP informed Chişinău Municipal Council of its intention to hold a meeting with its supporters on 9 January 2002, in , in front of the government buildings. It stated that the meeting would relate to the introduction of the compulsory study of Russian in schools. It relied on section 22 of the Status of Members of Parliament Act (see paragraph 35 below) which, according to the CDPP, did not require members of parliament to obtain prior authorisation for meetings with their supporters.\n\n2.  The decisions of the Municipal Council\n\n12.  By a decision of 3 January 2002, the Municipal Council classified the gathering to be held on 9 January 2002 as a “demonstration” within the meaning of sections 4, 8, 12 and 13 of the Assemblies Act (see paragraph 36 below) and authorised the parliamentary group of the CDPP to hold it in . It did not give any reasons for the change of location.\n\n13.  Later, on 23 January 2002, the Municipal Council addressed a letter to the Ministry of Justice, informing it that there was a discrepancy between the provisions of the Status of Members of Parliament Act and those of the Assemblies Act and that it did not know which to apply. It stated, inter alia, that a number of reputable lawyers supported the idea that the CDPP members of parliament had the right to hold meetings with their supporters in  without obtaining prior authorisation, in accordance with the provisions of sections 22 and 23 of the Status of Members of Parliament Act. It cited in that respect the opinion of an ombudsman who considered that, since section 23 of the Status of Members of Parliament Act proclaimed the right of MPs to raise demands on the spot for action to remedy a breach of the law, the CDPP members of parliament were entitled to raise their demands for the cessation of the alleged breaches concerning the introduction of compulsory Russian lessons in front of the government building, as it also housed the Ministry of Education. Accordingly, the Municipal Council requested the Ministry of Justice to ask Parliament for an official interpretation of the legislation in question.\n\n14.  On 26 January 2002 the Municipal Council issued a decision which stated, inter alia:\n\n“Having regard to the fact that the provisions of the domestic legislation are contradictory in respect of the demonstrations organised by the CDPP and that the opinions of legal experts are contradictory, and bearing in mind the considerable social impact of a possible decision regarding the matter and the consequences it might entail, the Municipal Council has formally requested the Ministry of Justice to ask Parliament for an official and urgent interpretation of the relevant legislation. ... The Municipal Council's decision of 3 January 2002 is hereby suspended until Parliament has given its official interpretation.”\n\n3.  The gatherings held by the CDPP members of parliament\n\n15.  In the meantime, on 9 January 2002, the parliamentary group of the CDPP held a gathering in , in front of government headquarters. It also held gatherings on 11, 13, 15, 16 and 17 January 2002. The CDPP informed the Municipal Council in advance of each gathering; however, it did not seek authorisation in accordance with the Assemblies Act.\n\n4.  The warning letter from the Ministry of Justice and the CDPP's reply\n\n16.  On 14 January 2002 the Ministry of Justice issued an official warning to the CDPP in accordance with section 27 of the Parties and other Socio-Political Organisations Act (see paragraph 37 below). It stated, inter alia, that the CDPP had breached the provisions of section 6 of the Assemblies Act by organising demonstrations in Great National Assembly Square on 9, 10, 11 and 13 January 2002, notwithstanding the authorisation issued by the Municipal Council, which only gave permission for a demonstration on 9 January 2002 in National Opera Square. It called for an immediate halt to the gatherings, which it considered to be illegal and unconstitutional and which it claimed were not meetings with voters within the meaning of the Status of Members of Parliament Act, but demonstrations falling under the Assemblies Act. It asked the CDPP for a written explanation within three days and warned that, if it failed to comply with the warning, the Ministry would impose a temporary ban (suspendarea activităţii) on the party's activities in accordance with section 29 of the Parties and other Socio-Political Organisations Act (see paragraph 37 below).\n\n17.  On 17 January 2002 the President of the CDPP wrote a letter to the Ministry of Justice in which he stated that the gatherings had not been organised by the CDPP but by members of its parliamentary group, and that it was therefore the members concerned who were liable, and not the party. He also relied on section 22 of the Status of Members of Parliament Act, arguing that it was a very specific Act, applicable to meetings between members of parliament and voters, while the Assemblies Act was general in nature. He finally submitted that the threatened ban on the party's activities would amount to a political measure taken by the Communist Party in order to repress the opposition.\n\n5.  The temporary ban imposed on the CDPP's activities\n\n18.  On 18 January 2002 the Ministry of Justice issued a decision imposing a one-month ban on the CDPP's activities, in accordance with section 29 of the Parties and other Socio-Political Organisations Act.\n\n19.  The measure was imposed on the basis of the organisation by the CDPP of unauthorised demonstrations on 9, 10, 11, 13, 15, 16 and 17 January 2002.\n\n20.  The Ministry of Justice dismissed the CDPP leader's argument that the party could not be held liable. It stated, inter alia, that the gatherings organised by the CDPP on the above dates had in fact been demonstrations and marches and therefore fell within the scope of the Assemblies Act rather than the Status of Members of Parliament Act as the CDPP had claimed.\n\n21.  According to the decision, the CDPP had breached the provisions of sections 5, 6, 7, 8, 9 and 11 of the Assemblies Act by not obtaining prior authorisation from the Municipal Council to stage demonstrations and by blocking the public highway.\n\n22.  The participation of minors in the CDPP demonstrations had been in breach of Article 15 of the International Convention on the Rights of the Child (see paragraph 38 below), section 13(3) of the Protection of Children Act (see paragraph 39 below) and section 56(g) of the Education Act (see paragraph 40 below).\n\n23.  The CDPP's actions also disclosed a violation of sections 27 and 29 of the Parties and other Socio-Political Organisations Act (see paragraph 37 below), section 15(1) and (2) of the Status of Members of Parliament Act (see paragraph 35 below) and Article 32 of the Constitution (see paragraph 34 below). The use of such slogans as “I'd rather be dead than a communist” (Mai bine mort decât comunist) could be interpreted as a call to public violence and an act undermining the legal and constitutional order.\n\n6.  The proceedings challenging the ban on the party's activities, and the lifting of the ban\n\n24.  On 24 January 2002 the CDPP challenged the decision of the Ministry of Justice arguing, inter alia, that the gatherings had been meetings with voters within the meaning of the Status of Members of Parliament Act, and not assemblies falling within the scope of the Assemblies Act.\n\n25.  On 8 February 2002 the Ministry of Justice issued a decision lifting the temporary ban imposed on the CDPP's activities. It stressed that the CDPP had breached all the laws mentioned in the decision of 18 January 2002 and that the temporary ban had been necessary and justified. However, following an inquiry by the Secretary General of the Council of Europe under Article 52 of the Convention, and having regard to the forthcoming local elections, the CDPP was authorised to resume its activities. The decision of 8 February 2002 did not, however, set aside the decision of 18 January 2002.\n\n26.  On 7 March 2002 the Court of Appeal found in favour of the Ministry of Justice and ruled that the decision of 18 January 2002 had been lawful. It dismissed the CDPP's argument that the party could not be held liable for the actions of its members, namely its parliamentary group. It found that the gatherings organised by the CDPP had in fact been demonstrations, meetings and marches which fell under the provisions of the Assemblies Act, and not meetings with voters. Even assuming that the gatherings had been intended as meetings with voters, they had gradually taken on the nature of demonstrations and, accordingly, the CDPP needed authorisation in order to organise them. It also stated that, as a result of the demonstrations, the public transport company had suffered losses of 12,133 Moldovan lei (MDL) (the equivalent of 1,050 euros (EUR) at the time). The participation of minors in the demonstrations had been in breach of the International Convention on the Rights of the Child, the Protection of Children Act and the Education Act.\n\n27.  The CDPP lodged an appeal against this decision with the Supreme Court of Justice, relying, inter alia, on Articles 10 and 11 of the Convention.\n\n28.  On 17 May 2002 a panel of the Supreme Court of Justice delivered its judgment, in which it dismissed the appeal lodged by the CDPP. It endorsed the arguments of the Court of Appeal and found, inter alia, that since the demonstrations organised by the CDPP had been illegal, the sanction imposed on it had not been disproportionate. It also stated that in any event the decision of the Ministry of Justice had not had any negative effects on the CDPP since it had not been enforced, the CDPP's accounts had not been frozen and the party could continue its activities unhindered.\n\n7.  The proceedings by the government seeking to have the gatherings held by the CDPP declared illegal and requesting an order to discontinue them\n\n29.  The Ministry of Justice did not reply to the Municipal Council's request of 23 January 2002 for interpretation of the law and did not address any request to Parliament. However, on 21 February 2002 the government lodged an application with the Supreme Court of Justice asking it, inter alia, to declare the demonstrations organised by the CDPP illegal and to order their cessation.\n\n30.  On 25 February 2002 the Supreme Court of Justice ruled in favour of the government and declared the gatherings illegal. It stated, inter alia:\n\n“Even if one could accept that the CDPP had the initial intention of holding meetings with its supporters, those meetings later took on the character of demonstrations, marches, processions and picketing, which fall under the provisions of the Assemblies Act. In these circumstances, the leaders of the CDPP were required to comply with the provisions of the Assemblies Act ...”\n\n31.  The CDPP appealed.\n\n32.  On 15 March 2002 the Supreme Court of Justice dismissed the appeal and the judgment of 25 February 2002 became final.\n\n8.  The video submitted by the Government\n\n33.  In the course of the present proceedings before the Court, the Government submitted a video with images of gatherings held by the CDPP deputies on 15, 16, 17 and 18 January 2002. The gatherings were held in , in a pedestrian area, in front of the government buildings. The participants appeared to number several hundred and included people of different ages varying from schoolchildren to pensioners. According to the time displayed on the images, the gatherings commenced at around 1 p.m. and lasted for about two hours. Different personalities made speeches critical of the ruling Communist Party, the government and its policy. It appears from the video that traffic was not disrupted as a result of the gatherings held on those dates, and no signs of violence can be seen. “The Layabout's Anthem” (Imnul Golanilor – a song that originated in the 1990 Bucharest student demonstrations) was played frequently. The chorus of the song had the following wording:\n\n“I'd rather be a slacker than a traitor (Mai bine haimana, decât trădător)\n\nI'd rather be a hooligan than a dictator (Mai bine huligan, decât dictator)\n\nI'd rather be a layabout than an activist (Mai bine golan, decât activist)\n\nI'd rather be dead than a communist (Mai bine mort, decât comunist).”\n\nII.  RELEVANT DOMESTIC AND INTERNATIONAL LAW\n\n34.  Article 32 of the Constitution of the  reads as follows:\n\n“3.  Denial and defamation of the State and of the people, incitement to war of aggression, incitement to hatred on ethnic, racial or religious grounds, incitement to discrimination, territorial separatism or public violence, as well as other acts undermining the constitutional order shall be forbidden and shall be punishable under the law.”\n\n35.  The relevant provisions of the Status of Members of Parliament Act of 7 April 1994 provide:\n\nSection 15\n\n“(1)  Members of parliament shall be obliged strictly to observe the Constitution, the laws and the rules of morality and ethics.\n\n(2)  Members of parliament shall have a duty to be dependable and to contribute by their own example to the consolidation of State discipline, the fulfilment of civil obligations, the protection of human rights and the observance of the law.\n\n(3)  Alleged breaches of the rules of ethics by members of parliament shall be examined by the Parliamentary Commission on Legal Affairs, Appointments and Immunity.”\n\nSection 22(3)\n\n“Local authorities shall provide members of parliament with all necessary assistance for the organisation of their work with voters. They shall place premises at their disposal for meetings with voters.”\n\nOn 26 July 2002 section 22(3) was amended as follows:\n\n“Local authorities shall provide members of parliament with the necessary assistance for the organisation of their work with voters. For this purpose, they [the local authorities] shall ensure access to buildings or other public places, provide equipment and any necessary information and inform voters in good time about the place and the time of meetings with members of parliament.”\n\nOn 26 July 2002 a new section 22(1) was introduced:\n\n“Members of parliament shall have the right to organise demonstrations, meetings, processions and other peaceful gatherings in accordance with the Assemblies Act.”\n\nSection 23\n\n“(1)  Members of parliament, in their capacity as representatives of the supreme legislative power, shall have the right to raise demands on the spot for action to remedy a breach of the law ...”\n\n36.  The relevant provisions of the Assemblies Act of 21 June 1995 read as follows:\n\nSection 5\n\n“Assemblies may be conducted only after the organisers have notified the local council.”\n\nSection 6\n\n“(1)  Assemblies shall be conducted peacefully, without any sort of weapons, and shall ensure the protection of participants and the environment, without impeding the normal use of public highways, road traffic and the operation of economic undertakings and without degenerating into acts of violence capable of endangering the public order and the physical integrity and life of persons or their property.”\n\nOn 26 July 2002 the following provision was added to the section:\n\n“(2)  Teachers or other school staff members shall not involve students in unauthorised assemblies.”\n\nSection 7\n\n“Assemblies shall be suspended in the following circumstances:\n\n(a)  denial and defamation of the State and of the people;\n\n(b)  incitement to war of aggression and incitement to hatred on ethnic, racial or religious grounds;\n\n(c)  incitement to discrimination, territorial separatism or public violence;\n\n(d)  acts that undermine the constitutional order.”\n\nSection 8\n\n“(1)  Assemblies may be conducted in squares, streets, parks and other public places in cities, towns and villages, and also in public buildings.\n\n(2)  It shall be forbidden to conduct an assembly in the buildings of the public authorities, the local authorities, prosecutors' offices, the courts or companies with armed security.\n\n(3)  It shall be forbidden to conduct assemblies:\n\n(a)  within fifty metres of the parliament building, the residence of the President of Moldova, the seat of the government, the Constitutional Court and the Supreme Court of Justice;\n\n(b)  within twenty-five metres of the buildings of the central administrative authority, the local public authorities, courts, prosecutors' offices, police stations, prisons and social rehabilitation institutions, military installations, railway stations, airports, hospitals, companies which use dangerous equipment and machines, and diplomatic institutions.\n\n(4)  Free access to the premises of the institutions listed in subsection (3) shall be guaranteed.\n\n(5)  The local public authorities may, if the organisers agree, establish places or buildings for permanent assemblies.”\n\nSection 9\n\n“The date and time of the assembly shall be agreed by the organiser and the local council of the city, town or village.”\n\nSection 11\n\n“(1)  Not later than fifteen days prior to the date of the assembly, the organiser shall submit a notification to the Municipal Council, a specimen of which is set out in the annex which forms an integral part of this Act.\n\n(2)  The prior notification shall indicate:\n\n(a)  the name of the organiser of the assembly and the aim of the assembly;\n\n(b)  the date, starting time and finishing time of the assembly;\n\n(c)  the location of the assembly and the access and return routes;\n\n(d)  the manner in which the assembly is to take place;\n\n(e)  the approximate number of participants;\n\n(f)  the persons who are to ensure and answer for the sound conduct of the assembly;\n\n(g)  the services the organiser of the assembly asks the Municipal Council to provide.\n\n(3)  If the situation so requires, the Municipal Council may alter certain aspects of the prior notification with the agreement of the organiser of the assembly.”\n\nSection 12\n\n“(2)  When the prior notification is considered at an ordinary or extraordinary meeting of the Municipal Council, the discussion shall deal with the form, timetable, location and other conditions for the conduct of the assembly and the decision taken shall take account of the specific situation.”\n\n37.  The relevant parts of the Parties and other Socio-Political Organisations Act of 17 September 1991 provide:\n\nSection 27\n\n“... In the event that breaches of the statute or of the law are discovered in the activities of a party or a socio-political organisation, the Ministry of Justice shall warn its leaders in writing, requesting that the breaches be remedied within a fixed time-limit.”\n\nSection 29\n\n“The Ministry of Justice shall impose a temporary ban on the activities of a party or socio-political organisation which breaches the provisions of the Constitution or those of the present Act, or does not comply with a warning.”\n\nOn 21 November 2003, this paragraph was amended as follows:\n\n“The Ministry of Justice shall impose a temporary ban on the activities of a party or socio-political organisation which breaches the provisions of the Constitution.\n\nIn this case, the Ministry of Justice shall inform the party's leadership in writing of the breaches of the law which have taken place and will set a time-limit for action to remedy them.\n\nDuring electoral campaigns the activities of parties and other socio-political organisations may be suspended only by the Supreme Court of Justice.\n\nDuring the temporary ban, it shall be forbidden for the party to use the mass media, to disseminate propaganda and publicity, to carry out bank transactions or other operations in respect of its assets and to participate in elections.\n\nOnce all the breaches of the law have been remedied, the party shall inform the Ministry of Justice, which shall lift the temporary ban within five days.\n\nThe activities of the party or other socio-political organisation may be suspended for a period up to six months. If the breaches of the law are not remedied its activities may be suspended for a period of one year.”\n\n38.  The relevant provisions of the International Convention on the Rights of the Child of 20 November 1989 read as follows:\n\nArticle 15\n\n“1.  States Parties recognise the rights of the child to freedom of association and to freedom of peaceful assembly.\n\n2.  No restrictions may be placed on the exercise of these rights other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.”\n\n39.  The relevant parts of the Protection of Children Act of 15 December 1994 provide:\n\nSection 13\n\n“(1)  Children shall have the right to membership of non-governmental organisations in accordance with the law.\n\n(2)  The State must provide children's non-governmental organisations with financial support, place premises at their disposal and provide them with fiscal incentives.\n\n(3)  The involvement of children in politics and their membership of political parties shall be forbidden.”\n\n40.  The relevant parts of the Education Act of 21 July 1995 state:\n\nSection 56\n\n“It shall be the duty of teachers:\n\n...\n\n(g)  not to involve children in street actions (meetings, demonstrations, picketing, etc.).”\n\n41.  The relevant part of the Code of Administrative Offences of 29 March 1985 reads as follows:\n\nArticle 174 (1)\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION\n\n42.  The applicant party complained that the temporary ban in issue had violated its right to freedom of peaceful assembly and association as guaranteed by Article 11 of the Convention, which provides:\n\n“1.  Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.\n\n2.  No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”\n\nA.  Applicability of Article 11\n\nA.  Applicability of Article 11\n\nA.  Applicability of Article 11\n\n43.  As a preliminary point, the Government raised the question of the applicability of Article 11 to the present case. In their observations they confined themselves to submitting that it did not apply because the gatherings organised by the CDPP had not been peaceful and had not been authorised in accordance with the law.\n\n44.  The applicant party disagreed and pointed out that in the video of the gatherings submitted by the Government there were no signs of violence.\n\n45.  The Court first notes that the Government have failed to substantiate their allegations of violence. The domestic courts examined twice the issue of the legality of the CDPP's gatherings (see the proceedings which ended with the final judgments of the Supreme Court of Justice of 15 March 2002 and 17 May 2002) and never found them to have been violent. Lastly, it appears from the video submitted by the Government that the gatherings were peaceful.\n\n46.  It follows that the Government's objection must be dismissed.\n\nB.  Compliance with Article 11\n\n1.  Whether there was interference\n\n47.  The parties agreed that the imposition of a temporary ban on the applicant party's activities amounted to interference with the CDPP's rights guaranteed by Article 11. That view is shared by the Court.\n\n2.  Whether the interference was justified\n\n48.  Such interference will constitute a breach of Article 11 unless it was “prescribed by law”, pursued one or more legitimate aims under paragraph 2 and was “necessary in a democratic society” for the achievement of those aims.\n\n(a)  “Prescribed by law”\n\n49.  The Court notes that the Ministry of Justice imposed a temporary ban on the CDPP's activities on the basis of section 29 of the Parties and other Socio-Political Organisations Act (see paragraph 37 above).\n\n50.  It follows from that provision, inter alia, that the Ministry of Justice was entitled to impose a ban on the CDPP's activities if the party failed to comply with the official warning of 14 January 2002.\n\n51.  The warning letter of 14 January 2002 stated that the CDPP had failed to observe the terms of the authorisation issued by the Municipal Council on 3 January 2002 (see paragraph 12 above) and had held unauthorised demonstrations on 9, 10, 11 and 13 January 2002. It requested explanations and ordered the cessation of acts which were “incompatible with the Constitution and with the legislation of ”.\n\n52.  Only in its decision of 18 January 2002 imposing a temporary ban on the CDPP's activities (see paragraph 18 above) did the Ministry of Justice rely on new grounds such as the involvement of children in street action, calls to public violence and acts undermining the constitutional order (see paragraphs 22-23 above).\n\n53.  The applicant party was not, therefore, informed in the warning letter of all the acts imputed to it, which reduced its ability to foresee all the consequences which might ensue if it continued to hold meetings. This in itself might be sufficient basis for the conclusion that the impugned measures were not “prescribed by law”. However, the Court does not consider it necessary to decide this issue having regard to its conclusions set out below.\n\n(b)  Legitimate aim\n\n54.  The Government did not make any particular submissions in this respect and the applicant party argued that the interference did not pursue any legitimate aim. The Court, for the reasons set out below, does not consider it necessary to decide this point either.\n\n(c)  “Necessary in a democratic society”\n\n55.  The applicant party argued that the CDPP gatherings had the purpose of furthering its political agenda in respect of the government's initiative to make the study of Russian compulsory in schools. According to the applicant party, it did not have any access to the mass media and no debates were held in Parliament due to the absolute majority of the Communist Party. In such circumstances the only way open to it to express its views and to criticise the government's policy was to organise gatherings in .\n\n56.  The gatherings had been entirely peaceful, no incitement to public violence had been made, and the participants had not carried weapons. They had simply called for early political elections, European democratic values and a democratic dialogue.\n\n57.  The Government maintained that the CDPP had breached the provisions of sections 5 and 6 of the Assemblies Act, sections 13 and 15 of the Protection of Children Act and section 56 of the Education Act.\n\n58.  The gatherings organised by the CDPP could not be considered to be meetings with voters since minors had attended them and, according to Moldovan legislation, minors could not vote and therefore could not be considered as voters. Moreover, the involvement of minors in political activities was prohibited under Moldovan law.\n\n59.  The measure had been imposed on the applicant party also for its failure to observe the deadline for responding to the Ministry of Justice's official warning of 14 January 2002.\n\n60.  By a decision of the Municipal Council, the applicant party had been authorised to organise a gathering on 9 January 2002 in , which was a public place, located at a distance of several hundred metres from  and from the seats of the government, presidency and Parliament. The applicant party had not complied with the decision of the Municipal Council, but had not at any point challenged it in court.\n\n61.  The applicant party had at no time complied with the measure imposed and had continued its activities and its prohibited gatherings. Accordingly, the Government had not abused its margin of appreciation but had imposed on the party a legitimate sanction which was proportionate to the legitimate aim pursued.\n\n62.  The Court reiterates that, notwithstanding its autonomous role and particular sphere of application, Article 11 must also be considered in the light of Article 10. The protection of opinions and the freedom to express them is one of the objectives of the freedoms of assembly and association as enshrined in Article 11. That applies all the more in relation to political parties in view of their essential role in ensuring pluralism and the proper functioning of democracy (see United Communist Party of Turkey and Others v. Turkey, 30 January 1998, §§ 42-43, Reports of Judgments and Decisions 1998I).\n\n63.  Not only is political democracy a fundamental feature of the European public order, but the Convention was designed to promote and maintain the ideals and values of a democratic society. Democracy, the Court has stressed, is the only political model contemplated in the Convention and the only one compatible with it. By virtue of the wording of the second paragraph of Article 11, and likewise of Articles 8, 9 and 10 of the Convention, the only necessity capable of justifying an interference with any of the rights enshrined in those Articles is one that must claim to spring from a “democratic society” (see, for instance, United Communist Party of Turkey and Others, cited above, §§ 43-45).\n\n64.  Referring to the hallmarks of a “democratic society”, the Court has attached particular importance to pluralism, tolerance and broadmindedness. In that context, it has held that, although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of the majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position (see Young, James and Webster v. the United Kingdom, 13 August 1981, § 63, Series A no. 44, and Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 112, ECHR 1999-III).\n\n65.  It follows that the limits of permissible criticism are wider with regard to the government than in relation to a private citizen, or even a politician. In a democratic system, the actions or omissions of the government must be subject to the close scrutiny not only of the legislative and judicial authorities but also of the press and public opinion. Furthermore, the dominant position the government occupies makes it necessary for it to display restraint in resorting to criminal proceedings, particularly where other means are available for replying to the unjustified attacks and criticisms of its adversaries or the media (see Castells v. Spain, 23 April 1992, § 46, Series A no. 236).\n\n66.  In Informationsverein Lentia and Others v. Austria (24 November 1993, Series A no. 276), the Court described the State as the ultimate guarantor of the principle of pluralism (§ 38). In the political sphere, that responsibility means that the State is under the obligation, among others, to hold, in accordance with Article 3 of Protocol No. 1, free elections at reasonable intervals by secret ballot under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature. Such expression is inconceivable without the participation of a plurality of political parties representing the different shades of opinion to be found within a country's population. By relaying this range of opinion, not only within political institutions but also – with the help of the media – at all levels of social life, political parties make an irreplaceable contribution to political debate, which is at the very core of the concept of a democratic society (see Lingens v. Austria, 8 July 1986, § 42, Series A no. 103).\n\n67.  While freedom of expression is important for everybody, it is especially so for an elected representative of the people. He represents his electorate, draws attention to their preoccupations and defends their interests. Accordingly, interferences with the freedom of expression of an opposition member of parliament call for the closest scrutiny on the part of the Court (see Castells, cited above, § 42).\n\n68.  In view of the essential role played by political parties in the proper functioning of democracy, the exceptions set out in Article 11 are, where political parties are concerned, to be construed strictly; only convincing and compelling reasons can justify restrictions on such parties' freedom of association. In determining whether a necessity within the meaning of Article 11 § 2 exists, the Contracting States have only a limited margin of appreciation, which goes hand in hand with rigorous European supervision (see Socialist Party and Others v. Turkey, 25 May 1998, § 50, Reports 1998III). It therefore follows that the Court must scrutinise very carefully the necessity for imposing a ban on a parliamentary political party's activities, even a ban of fairly short duration.\n\n69.  Freedom of association and political debate is not absolute, however, and it must be accepted that where an association, through its activities or the intentions it has expressly or by implication declared in its programme, jeopardises the State's institutions or the rights and freedoms of others, Article 11 does not deprive the State of the power to protect those institutions and persons. It is for the Court to give a final ruling on the compatibility of such measures with the freedom of expression enshrined in Article 10 (see, mutatis mutandis, Observer and Guardian v. the , 26 November 1991, § 59, Series A no. 216).\n\n70.  When the Court carries out its scrutiny, its task is not to substitute its own view for that of the relevant national authorities but rather to review under Article 11 the decisions they have delivered in the exercise of their discretion. This does not mean that it has to confine itself to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; it must look at the interference complained of in the light of the case as a whole and determine whether it was “proportionate to the legitimate aim pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 11 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see, mutatis mutandis, Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298).\n\n71.  The Court notes that at the material time the CDPP was a minority parliamentary opposition party with approximately ten per cent of the seats in Parliament, while the majority Communist Party had approximately seventy per cent of the seats. The ban was imposed on the applicant party's activities as a result of gatherings it had organised in order to express its disagreement with and protest against the government's plans to make the study of Russian compulsory for schoolchildren, at that time the subject of a heated debate within Moldovan society. Given the public interest in free expression in these circumstances and the fact that the applicant party was an opposition parliamentary political party, the Court considers that the State's margin of appreciation was correspondingly narrowed and that only very compelling reasons would have justified the interference with the CDPP's right to freedom of expression and assembly (see paragraph 68 above).\n\n72.  The Ministry of Justice, and later the domestic courts, in justifying the temporary ban on the CDPP's activities, relied on three main grounds: that the CDPP had not obtained authorisation for its gatherings in accordance with the Assemblies Act; that children had been present at its gatherings; and that some statements made at the gatherings amounted to calls to public violence.\n\n73.  As far as the first ground is concerned, the Court notes that there was a dispute as to the applicability of the provisions of the Assemblies Act to the CDPP's gatherings. The Municipal Council, which was the only authority empowered to issue authorisations under that law, considered the legislation unclear and refused to apply it to the CDPP until Parliament had given its official interpretation (see paragraph 13 above). Hence, it would appear questionable whether non-compliance with the legislation in those circumstances would justify such a serious measure as a temporary ban. However, even assuming that the legislation was clear, the Court is not convinced that the failure to comply with that legislation, which otherwise was punishable with an administrative fine of MDL 180-450 (EUR 16-40) (see paragraph 41 above), could be considered as a relevant and sufficient reason for imposing a temporary ban on the activities of an opposition party.\n\n74.  Where the presence of children is concerned, the Court notes that it has not been established by the domestic courts that they were there as a result of any action or policy on the part of the applicant party. Since the gatherings were held in a public place anyone, including children, could attend. Moreover, in the Court's view, it was rather a matter of personal choice for the parents to decide whether to allow their children to attend those gatherings and it would appear to be contrary to the parents' and children's freedom of assembly to prevent them from attending such events which, it must be recalled, were to protest against government policy on schooling. Accordingly, the Court is not satisfied that this reason was relevant and sufficient.\n\n75.  As to the third ground for the ban, the Court is not persuaded that the singing of a fairly mild student song could reasonably be interpreted as a call to public violence. Neither the Ministry of Justice nor the domestic courts have attempted to explain how the impugned line from the chorus of the song amounted to a call for violence. Consequently, this reason cannot be considered as relevant and sufficient either.\n\n76.  The Court reiterates that only very serious breaches such as those which endanger political pluralism or fundamental democratic principles could justify a ban on the activities of a political party. Since the CDPP's gatherings were entirely peaceful, there were no calls to violent overthrowing of the government or any other acts undermining the principles of pluralism and democracy, it cannot reasonably be said that the measure applied was proportionate to the aim pursued and that it met a “pressing social need”.\n\n77.  The temporary nature of the ban is not of decisive importance in considering the proportionality of the measure, since even a temporary ban could reasonably be said to have a “chilling effect” on the party's right to exercise its freedom of expression and to pursue its political goals, the more so since it was imposed on the eve of the local elections.\n\n78.  The Court has noted with satisfaction the readiness of the Moldovan authorities to lift the ban following instigation of the inquiry by the Secretary General under Article 52 of the Convention (see paragraph 25 above). Even so, the Court finds that the temporary ban on the CDPP's activities was not based on relevant and sufficient reasons and was not necessary in a democratic society. Accordingly, there has been a violation of Article 11 of the Convention.\n\n79.  The applicant party also alleged a violation of Article 10 of the Convention. As this complaint relates to the same matters as those considered under Article 11, the Court does not consider it necessary to examine it separately.\n\n80.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n81.  The applicant party did not make any claim in respect of pecuniary or nonpecuniary damage.\n\nB.  Costs and expenses\n\n82.  The applicant party claimed EUR 8,235 for lawyers' fees, of which EUR 3,960 was claimed in respect of Mr Nagacevschi and EUR 4,275 in respect of Mr Gribincea. The applicant party submitted a detailed time-sheet and a contract according to which the lawyers' hourly rates were EUR 80 and EUR 60 respectively.\n\nIn support of its claims, the applicant party relied on such cases as United Communist Party of Turkey and Others, cited above, in which the applicant party was awarded 120,000 French francs (FRF) for costs and expenses for two lawyers; Socialist Party and Others, cited above, in which the applicant party was offered FRF 57,187 in legal aid paid by the Council of Europe for two lawyers; Maestri v.  [GC], no. 39748/98, ECHR 2004I, in which the applicant was awarded EUR 10,000 for costs and expenses; and Freedom and Democracy Party (ÖZDEP) v. Turkey [GC], no. 23885/94, ECHR 1999VIII, in which the applicant party was awarded FRF 40,000 for costs and expenses.\n\nThe applicant party argued that the hourly rates claimed by its lawyers were not excessive and submitted that there were law firms in Chişinău that charged hourly rates of between EUR 120 and EUR 200.\n\n83.  The Government did not agree with the amount claimed, stating that the applicant party had failed to prove the alleged representation expenses. According to them, the amount claimed by the applicant party was too high in the light of the average monthly wage in . The Government agreed that there were law firms that charged EUR 120 per hour to enterprises; however, in their opinion such rates should not apply to a political party because it might find itself unable to pay such amounts. According to the Government, the applicant party was not entitled to any costs and expenses because the case was not a complex one and the CDPP had not suffered any real damage, having lodged the application solely in order to obtain “free publicity”.\n\n84.  The Court reiterates that in order for costs and expenses to be included in an award under Article 41, it must be established that they were actually and necessarily incurred and were reasonable as to quantum (see, for example, Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 62, ECHR 1999-VIII).\n\n85.  In the present case, regard being had to the itemised list submitted by the applicant party, the above criteria, the complexity and the importance of the case, the Court awards it EUR 4,000.\n\nC.  Default interest\n\n86.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT\n\n1.  Dismisses unanimously the Government's preliminary objection;\n\n2.  Holds by six votes to one that there has been a violation of Article 11 of the Convention;\n\n3.  Holds unanimously that it is unnecessary to determine whether there has been a violation of Article 10 of the Convention;\n\n4.  Holds by six votes to one:\n\n(a)  that the respondent State is to pay the applicant party, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 4,000 (four thousand euros) in respect of costs and expenses, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n5.  Dismisses unanimously the remainder of the applicant party's claim for just satisfaction.\n\nDone in English, and notified in writing on 14 February 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.\n\nIn accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:\n\n(a)  partly concurring and partly dissenting opinion of Judge Pavlovschi;\n\n(b)  dissenting opinion of Judge Borrego Borrego.\n\nIn the present case, after much hesitation, I decided to vote along with the majority in favour of finding a violation of Article 11, although my line of reasoning radically differs from that of the majority.\n\nThe present case is unique in many different respects.\n\nAlthough the Court has quite a rich body of case-law concerning the prohibition and forced dissolution of political parties, this is the first time we have dealt not with a prohibition or dissolution but rather with a decision on the temporary suspension of a political party's activities – what is more, only four forms of activity and not all of them. A more relevant factor is that the decision on temporary suspension was never enforced and, moreover, some time (twenty days) later it was lifted by the national authorities.\n\nIn the case before us we are dealing with a situation where differences between the political opposition and the ruling forces which may at first sight have seemed absolutely irreconcilable, and which resulted in a deep political crisis, have been transformed, thanks to the mediation of the Council of Europe, into a strategic partnership built on the principles of European democracy, mutual respect and common understanding of the future of the Republic of Moldova in Europe. We are dealing with a situation where, thanks to the Secretary General, the Parliamentary Assembly and the Committee of Ministers of the Council of Europe, as well as the good will of both the Moldovan opposition and the ruling political force, a permanent “round table” has been set up. All the main political parties of  have obtained the possibility to discuss openly questions of general importance for the country.\n\nIn order to enable the parties involved in the conflict to find democratic solutions to the problems facing them, the Office of the Special Representative of the Secretary General of the Council of Europe was set up in  and is working productively.\n\nLastly, we are dealing with a situation where the leader of the CDPP – the main opposition party of Moldova – was elected as a Vice-President of the Moldovan parliament and where members of parliament belonging to former political rivals – the Christian Democratic People's Party and the Communist Party of Moldova – voted together for the same candidate to the presidency, put forward by the latter party.\n\nMy understanding is the following: both former rivals have manifested their political maturity, their willingness and their readiness to find a consensus in the general interests of society and for the benefit of the Moldovan people.\n\nIn my opinion, all these new developments are of great significance for the rule of law and democracy not only for Moldova, but for the whole of Europe too. They are overwhelmingly important as a positive precedent for fruitful cooperation between political parties which, despite their different political ideals and views, despite their fears and suspicions, have manifested their capacity to overcome contradictions, to find points of convergence and to work jointly in the interests of European integration and on the basis of the principles of democracy. The Christian Democratic People's Party and the Communist Party of Moldova are now jointly conducting very serious legislative efforts aimed at bringing Moldovan legislation into line with European legal standards.\n\nIn the report of 16 September 2005 addressed to the Parliamentary Assembly of the Council of Europe on “Functioning of democratic institutions in ” (Doc. 10671, §§ 3-4), we read:\n\nTaking into consideration the above-mentioned exceptional events and developments, it would have been pertinent for them to have been reflected in the Court's judgment. The question of striking the application out could perhaps also have been considered.\n\nI welcome the insertion in the judgment (paragraph 78) of the statement “[t]he Court has noted with satisfaction the readiness of the Moldovan authorities to lift the ban following instigation of the inquiry by the Secretary General under Article 52 of the Convention ...”, but this, in my view, is not sufficient.\n\nI greatly regret that the majority missed a very good opportunity to take into consideration all the recent events and developments outlined above, and did not even mention them in the judgment. I do not find this approach very correct, because, in my opinion, the events described in the judgment, seen in isolation, create a distorted picture of what was and still is going on in .\n\nThe entire judgment is based on the argument that there was interference in the present case in the form of a temporary ban on the CDPP's activities (see paragraphs 71-78 of the judgment).\n\nFrom the very outset it is necessary to mention that, under Moldovan legislation, a “blanket” or total, absolute temporary ban on a political party's activities is not allowed. The Parties and other Socio-Political Organisations Act provides that, during a temporary ban, restrictions may be imposed on only four forms of activity: using the mass media, disseminating propaganda and publicity, carrying out bank transactions or other operations in respect of its assets, and participating in elections.\n\nOther forms of both everyday and political activities (such as, for instance, activity in Parliament or local councils, the organising of party meetings at both local and central levels, conferences, seminars, the use of offices, premises, computers and other forms of office activity) may not be restricted, even during a temporary ban.\n\nIn my view, the conclusion that there was a ban in the case under consideration was reached, at least partly, because of the superficial – if not wrong and misleading – presentation of Moldovan national legislation.\n\nParagraph 37 of the judgment, describing “the relevant parts” of the Parties and other Socio-Political Organisations Act, contains the following passage:\n\nSection 29\n\nOwing to the not very clear presentation of section 29, this passage of the judgment creates the impression that the provision “[d]uring the temporary ban, it shall be forbidden for the party to use the mass media, to disseminate propaganda and publicity, to carry out bank transactions or other operations in respect of its assets and to participate in elections” did not exist at the time when the activity of the CDPP was allegedly “banned”.\n\nBut this is simply not true.\n\nI am afraid that the Moldovan legislation, as I have said, has not been very well presented on this point.\n\nAt the material time, section 29 of the above-mentioned Act – that is, before the amendment of 21 November 2003 – existed in the following version:\n\n“The Ministry of Justice shall impose a temporary ban on the activities of a party or socio-political organisation which breaches the provisions of the Constitution or those of the present Act, or does not comply with a warning. In this case, the Ministry of Justice shall inform the party's leadership in writing of the breaches of the law which have taken place and will set a time-limit for action to remedy them.\n\nDuring electoral campaigns the activities of parties and other socio-political organisations may be suspended only by the Supreme Court of Justice.\n\nDuring the temporary ban, it shall be forbidden for the party to use the mass media, to disseminate propaganda and publicity, to carry out bank transactions or other operations in respect of its assets and to participate in elections.\n\nOnce all the breaches of the law have been remedied, the party shall inform the Ministry of Justice, which shall lift the temporary ban within five days.\n\nAs a result of the amendment of 21 November 2003, the ending of the first paragraph “... or those of the present Act, or does not comply with a warning ...” was deleted, the rest of the section remaining untouched.\n\nAccordingly, during the alleged “ban”, that is in January and February 2002, the following provision was in force:\n\nIn my opinion, to rule that there had been a ban on the CDPP's activities, the majority should have satisfied themselves that, as a result of the decision of the Minister of Justice, this political party had been deprived of the possibility either to use the mass media, to disseminate propaganda and publicity, to carry out bank transactions or other operations in respect of its assets, or to participate in elections.\n\nSince the CDPP ignored the decision issued by the Minister, and the Minister in turn, manifesting his good will, decided not to enforce his decision, we can say that there were no negative consequences for the CDPP.\n\nThe CDPP's representatives failed to produce any evidence to prove that, as a result of the decision of the Minister of Justice, their clients were deprived of the possibility to use the mass media or to disseminate propaganda and publicity, or that they did have bank accounts or other assets but lost the possibility to carry out transactions with those assets, or that they were deprived of the possibility to participate in elections.\n\nThere is no evidence in the case file to indicate that any of the above negative consequences occurred.\n\nAll these arguments show that there was no de facto ban on the CDPP's activities. In the present case, in practical terms, we are dealing not with an “actual ban”, but rather with a “decision to ban”, which remained unenforced and, after twenty days, was lifted by the same public official.\n\nI consider that in such circumstances it is right and justified to speak of an abandoned attempt to suspend the CDPP's activities.\n\nIn my humble opinion, in the present case we should have discussed an interference of an unclear legal nature – the abandoned attempt to suspend the CDPP's activities by way of an unenforced decision and not a “ban” which, as I have already mentioned, never took effect.\n\nThe problem of the “necessity” of the “interference”, in the form in which it has been presented in the judgment, creates a further difficulty for me.\n\nThis issue, necessity of interference, cannot be analysed in abstracto and is closely linked to the problems of the lawfulness of the interference, the existence of pressing social needs and the legality of the aims of the interference. The nature of the interference and its proportionality to the legitimate aims pursued are crucially important for the determination of whether there has been a violation or not.\n\nI entirely agree with the statement of the majority in paragraph 48 of the judgment that an interference will constitute a breach of Article 11 unless it was “prescribed by law”, pursued one or more legitimate aims under paragraph 2 and was “necessary in a democratic society” for the achievement of those aims.\n\nUnfortunately the majority, contrary to the above statement, decided not to examine the problem of the lawfulness of the interference and the nature of the aims pursued. In my opinion, it is simply impossible to assess the “necessary in a democratic society” criterion without having previously assessed the legal nature of the measures taken and of the aims pursued by the Government. In order to be “necessary”, the interference should be proportionate to a “pressing social need”. The “pressing social need” in turn determines the nature of the aims pursued. So, all the above-mentioned elements must be examined jointly, starting, of course, with the determination of the lawfulness of the interference.\n\nIn my view, the issuing of a decision on the suspension of a political party which had never been enforced, had not had any negative consequences, had been simply ignored by the party, and after twenty days had been lifted by the same public official who had previously issued it would not attain a degree of seriousness calling for international protection unless it had been issued contrary to the law.\n\nAnd here I see a real problem. I doubt very much that the issuing of the decision at stake was in accordance with the law.\n\nAccording to the Court's case-law, a norm cannot be regarded as a “law” unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences a given action may entail (See The Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 49, Series A no. 30).\n\nHere it is worth mentioning that the Parties and other Socio-Political Organisations Act does not provide for corporate liability; in other words, it does not provide for a party's liability for any action taken by its members. The lack of legal regulations governing a party's liability for the actions of some of its members makes the application of restrictions provided by the law unforeseeable in practical terms.\n\nThis reason in itself could render the decision in question baseless from a legal point of view, which would allow us to find that the interference was not “prescribed by law”. And here I should mention that this argument was, essentially, one of those on which the applicant party relied, declaring that all the gatherings and demonstrations in issue had been organised by the CDPP's members of parliament and not by the CDPP itself.\n\nI agree with the applicant party's representatives on this point. Indeed, there is nothing in the file to suggest that the CDPP as a political formation had any connection with the gatherings which took place on the main square of the Moldovan capital.\n\nAll the arguments set out in the judgment would have been valid had the State authorities applied restrictions to particular private persons. In that case, I would have agreed that the interference was prescribed by law and had a legitimate aim but was perhaps not necessary in a democratic society, but this was not so.\n\nThe present case involves a legal entity rather than a private person. The Parties and other Socio-Political Organisations Act did not contain, and still does not contain, any direct legal provision regulating with sufficient clarity the liability of political parties (legal entities) for acts committed by their members (private persons).\n\nAt its 41st plenary session on 10 and 11 December 1999 the Venice Commission adopted guidelines on the prohibition and dissolution of political parties and analogous measures.\n\nAccording to the guidelines, a political party as a whole cannot be held responsible for the individual behaviour of its members not authorised by the party within the framework of political/public and party activities.\n\nThis is exactly the case as far as the legislation of  is concerned.\n\nMoreover, section 20 of the Assemblies Act provides that administrative or criminal sanctions may be imposed on the organisers of or participants in an assembly who breach the provisions of the Act. The Act does not provide for any liability of a political party for breaches of the law committed in the course of a gathering convened by it.\n\nNeither the Banks and other Financial Institutions Act nor the Property Act provides for any possibility of freezing a political party's assets in the event of a temporary suspension of its activities. Nor do the Press Act or the Audiovisual Media Act provide any legal ground for limitations on the use of such media by a political party during the party's temporary suspension.\n\nIn view of all these manifest gaps in the law, the application of a “temporary suspension” entailing the restrictions referred to in section 29 of the Parties and other Socio-Political Organisations Act (namely “[d]uring the temporary ban, it shall be forbidden for the party to use the mass media, to disseminate propaganda and publicity, to carry out bank transactions or other operations in respect of its assets and to participate in elections”) is unlawful both in terms of the Convention and in terms of Moldovan national legislation.\n\nTo sum up, in my view in the present case the interference was not prescribed by law. As a result, there has been a violation of Article 11 of the Convention and, consequently, there was no need to examine the issue of the proportionality of this interference.\n\nThere is one more aspect of the present case with which I am not able to agree: the amount awarded in respect of lawyers' fees – 4,000 euros (EUR). I find this amount excessive, corresponding neither to the work done nor to the Court's case-law.\n\nI would have readily accepted this amount in respect of the costs and expenses had the lawyers contributed to the finding of the truth in the present case, but this was not so. I have already mentioned that no evidence was produced to show that a ban was actually applied to the CDPP. This, in practical terms, put the Court in a position where, in the absence of evidence, it had to take for granted the factual application of the ban.\n\nMoreover, in their initial complaint the applicant party's representatives relied on Articles 6, 10 and 11 of the Convention, as well as Article 1 of Protocol No. 1. After some time, they decided to withdraw their complaints under Article 6 of the Convention and Article 1 of Protocol No. 1. In turn, the Court decided not to examine their complaint under Article 10. From these four complaints the Court found a violation of only one provision of the Convention, namely Article 11.\n\nIt has been a long-standing practice of the Court to reduce awards for costs and expenses according to the number of violations found.\n\nIn the case of Nikolova v. Bulgaria ([GC], no. 31195/96, § 79, ECHR 1999-ΙΙ) the Court stated:\n\nIn Debono v. Malta (no. 34539/02, § 54, 7 February 2006) the Court also stated that the applicant's complaints other than the one concerning the violation of the “reasonable time” principle had been declared inadmissible. It therefore considered it appropriate to reimburse only in part the costs and expenses claimed by the applicant.\n\nI consider that a similar approach should have been taken in the present case.\n\nMoreover, the applicant party's lawyers in the present case are representatives of the Lawyers for Human Rights organisation. I have particular respect for this organisation, which is very active in the field of human rights protection and has submitted quite a considerable number of applications to the Court raising issues that are both serious from the human rights protection point of view and very interesting from the legal point of view. However, there is a problem here: this organisation is a non- governmental organisation (NGO), acting on the basis of the NonGovernmental Associations Act (Cu privire la asociaţiile obşteşti). Under this Act, all Moldovan NGOs are non-profit organisations and I very much doubt that a non-profit NGO should apply rates which exceed those applicable to lawyers working for the Moldovan Bar Association. I am afraid that applying to NGOs rates which, in theory, could apply to professional for-profit organisations could distort the very nature of civil society ideals.\n\nIt is also worth mentioning that the Lawyers for Human Rights NGO, along with the Helsinki Committees, the LADOM and others, positions itself as an organisation rendering legal services free of charge.\n\nI am afraid that I find it very difficult to accept that the rates of EUR 60 and EUR 80 per hour claimed by the applicant party's representatives could be viewed as the rendering of legal services free of charge or as a kind of “non-profit” activity.\n\nAccordingly, if we take into consideration the fact that only one of the four complaints was declared admissible and only one violation was found, as well as the non-profit status of the Lawyers for Human Rights NGO, the amount awarded in respect of costs and expenses should have been reduced by half and should have been at the level of about EUR 2,000 in order to fully compensate the applicant party's representatives for expenses that were actually incurred and not hypothetical or speculative expenses and, moreover, to secure them a very comfortable standard of living for at least a couple of months.\n\nThis is where I respectfully disagree with the majority.\n\nI regret that I am unable to agree with the reasoning of the majority of the Chamber.\n\nIn the present case we may distinguish, very briefly, between two aspects: an action and a reaction.\n\nAs regards the action, peaceful demonstrations took place during a period of eight days in front of the National Assembly building (see paragraphs 19 and 33 of the judgment), without complying with the formal requirements laid down in the Assemblies Act. Responsibility for these demonstrations must be attributed to the applicant political party (see Refah Partisi (the Welfare Party) and Others v.  [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, § 115, ECHR 2003-II).\n\nAs regards the reaction of the Moldovan authorities, a one-month ban was imposed on the party concerned. Regard being had to the Convention, to the circumstances of the case and to the fact that local elections were about to take place, this temporary ban on a political party must be viewed as a measure that was not necessary in a democratic society.\n\nHowever, despite all this, I consider that there was no violation of the Convention in the present case. Why?\n\nIn my opinion, because there were two very important facts in this case to which the Court did not give proper consideration.\n\nFirstly, in response to the letter sent by the Secretary General of the Council of Europe to the Moldovan authorities under Article 52 of the Convention, the Minister of Justice lifted the temporary ban on the party's activities (see paragraph 25 of the judgment).\n\nAs I understand it, the Convention forms a whole: Article 11 is part of it, as are Section II and Article 52. The purpose of the Convention, as a whole, is to protect human rights. The right guaranteed by Article 11 was respected as a result of the application of the measures provided for in Article 52, long before the Court's judgment was delivered.\n\nSecondly, the temporary ban on the applicant party “had not had any negative effects on the CDPP since it had not been enforced, the CDPP's accounts had not been frozen and the party could continue its activities unhindered”, as the Supreme Court of Justice held (see paragraph 28).\n\nIn short, I consider that, in so far as the temporary ban was lifted and was never enforced, there was no breach of the Convention in the present case.\n\nIn short, I consider that, in so far as the temporary ban was lifted and was never enforced, there was no breach of the Convention in the present case.","title":""}
{"_id":"passage_340","text":"PROCEDURE\n\n1.  The case originated in an application (no. 76809/01) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Austrian national, Mrs Ulrike Baumann (“the applicant”), on 30 October 2001.\n\n2.  The applicant was represented by Mr W. Strigl, a lawyer practising in . The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Winkler, Head of the International Law Department at the Federal Ministry of Foreign Affairs.\n\n3.  On 10 February 2003 the Court decided to communicate the complaint concerning the length of the proceedings to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.\n\nTHE FACTS\n\n4.  The applicant was born in 1950 and lives in .\n\nProceedings concerning the division of the matrimonial property and savings (the first round)\n\n5.  On 4 December 1987 the applicant’s former husband A., and on 15 December 1987 the applicant herself, requested the division of the matrimonial property and savings (Aufteilung des ehelichen Gebrauchsvermögens und der ehelichen Ersparnisse) following their divorce.\n\n6.  On 13 March 1989 the Döbling District Court (Bezirksgericht), after having held seven hearings, divided the matrimonial property. It decided, inter alia, to transfer A.’s title concerning the land and the house to the applicant, who was ordered to pay to A. the sum of 2,876,000 Austrian Schilling (ATS) by way of compensation. The applicant and A. appealed against this decision.\n\n7.  On 31 August 1989 the  (Landesgericht für Zivilrechtssachen) allowed the appeals due to procedural deficiencies and remitted the case to the District Court. Both parties filed an appeal on points of law (Revisionsrekurs) against this decision.\n\n8.  On 29 January 1991 the Supreme Court dismissed these appeals.\n\nThe second round of the proceedings\n\n9.  Subsequently, due to the District Court’s rule concerning the distribution of cases (Geschäftsverteilung), another judge was assigned who held three more hearings, heard additional witnesses in order to assess the applicant’s contribution to the matrimonial property and obtained an expert opinion concerning the value of the property at issue.\n\n10.  On 24 July 1991 the District Court divided the matrimonial property. It decided, inter alia, to transfer the applicant’s title concerning the land and the house to A., who was ordered to pay the applicant the sum of ATS 3,358,200 by way of compensation. Both parties appealed.\n\n11.  On 18 March 1992 the  allowed the appeals and remitted the case to the District Court. It found that the District Court had failed to consider the applicant’s observations on the expert opinion.\n\nThe third round of the proceedings\n\n12.  On 23 October 1992 the District Court, after having held two hearings on 19 May and 22 July 1992, took a partial decision and decided, inter alia, to transfer the applicant’s title concerning the land and the house to A., who was ordered to pay to the applicant the sum of ATS 4,000,000 by way of compensation. As regards the applicant’s additional claim for compensation for her contribution to A.’s business, it decided to suspend the proceedings as tax assessment proceedings against A. were pending. The outcome of the tax assessment had to be taken into account in the instant proceedings. The applicant and A. again appealed.\n\n13.  On 10 March 1993 the  allowed the appeals and remitted the case to the District Court. It found that the District Court had failed to calculate properly the value of the house.\n\nThe fourth round of the proceedings\n\n14.  Subsequently, the case was assigned to another judge due to the court’s rule concerning the distribution of cases. On 16 July, 13 September, 14 October, 3 and 17 November 1993, A. requested extensions of time-limits for the submission of documents or comments, respectively.\n\n15.  On 27 September 1993 and 19 January 1994 the District Court held another two hearings.\n\n16.  On 21 July 1994 the applicant filed a request for the acceleration of the proceedings under Section 91 of the  Act (Fristsetzungsantrag). In particular she requested that a time limit be set for the District Court to reach its decision.\n\n17.  On 12 August 1994 the District Court took a partial decision and decided, inter alia, to transfer the applicant’s title concerning the land and the house to A., who was ordered to pay to the applicant the sum of ATS 4,300,000 by way of compensation. As regards the applicant’s additional claim, the court again decided to suspend the proceedings until the termination of the tax assessment proceedings. Both parties appealed.\n\n18.  On 13 February 1995 the applicant filed a further request for an acceleration of the proceedings under Section 91 of the Court Act. In particular, she requested that a time limit be set for the  to determine her appeal against the decision of 12 August 1994.\n\n19.  On 22 February 1995 the  partly confirmed the decision of 12 August 1994. It allowed the applicant’s appeal as regards the interest to be paid on the award of compensation, but dismissed the remainder as being otherwise unfounded or out of time. A request by A. for his reinstatement in the proceedings was unsuccessful.\n\n20.  On 20 September 1995 the Supreme Court rejected A.’s appeal on points of law. Thereby, the proceedings were terminated concerning the transfer of the land and the house and the related compensation payment. As regards possible further compensation to the applicant for her contribution to A.’s business, the proceedings remained pending until the termination of the tax assessment.\n\nThe applicant’s claim for further compensation\n\n21.  On 11 October 1995 the applicant asked the court to obtain information on the current state of the tax assessment proceedings. This the court did and the applicant commented on it.\n\n22.  On 3 June 1996 the applicant asked the court to take a final decision.\n\n23.  On 4 July 1996 the District Court replied that the tax assessment proceedings were still pending.\n\n24.  On 30 July 1996 the applicant filed a request to continue the suspended proceedings.\n\n25.  On 28 November 1996 the District Court dismissed the request as the tax assessment proceedings were still pending.\n\n26.  On 13 October 1997 the District Court held a hearing and decided to continue the suspension of the proceedings.\n\n27.  On 21 April 1998 the District Court dismissed a further request by the applicant to continue the proceedings.\n\n28.  In August 1998 the Vienna Tax Office (Finanzamt) determined A.’s tax liability. This decision became final.\n\n29.  On 1 September 1998 the applicant requested the resumption of the suspended proceedings and submitted that, meanwhile, the tax assessment proceedings against A. had been terminated.\n\n30.  On 3 November 1998 A. requested the postponement of a hearing until after 7 January 1999, on the ground that his counsel was unable to attend.\n\n31.  On 12 January and 21 October 1999 the District Court held two hearings.\n\n32.  On 15 May 2000 the District Court partly allowed the applicant’s additional claims and awarded her ATS 300,000. It found that each party had to bear its own costs.\n\n33.  On 13 June 2000 the applicant filed an appeal. She submitted that the court should have awarded her ATS 550,000 and that the costs decision was unreasonable.\n\n34.  On 8 November 2000 the  partly allowed the applicant’s appeal and awarded her ATS 550,000, but dismissed the complaint against the costs order. Further, it ordered A. to pay the applicant’s legal costs in the appeal proceedings. It found that, when taking a decision about such costs under Section 234 of the Non-Contentious Proceedings Act (Außerstreitgesetz), it had to take into account, inter alia, the outcome of the proceedings, the financial standing of the parties and their conduct in the proceedings. Given that neither party could be regarded as being predominantly successful in the case, that both parties had about the same income and that neither of them had made any marked contribution to the acceleration of the proceedings, the decision that each party bear its own legal costs appeared equitable. A. appealed on points of law against this decision.\n\n35.  On 2 May 2001 the  refused leave to appeal on points of law. This decision was served on the applicant’s counsel on 22 May 2001.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION CONCERNING THE LENGTH OF THE PROCEEDINGS\n\n36.  The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, provided in Article 6 § 1 of the Convention, which reads as follows:\n\n“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”\n\n37.  The Government contested that argument.\n\n38.  The period to be taken into consideration began on 15 December 1987, when the applicant filed her request for the division of the matrimonial property and savings following her divorce, and ended on 22 May 2001, when the ’s decision was served on the applicant’s counsel. It thus lasted thirteen years and five months for three levels of jurisdiction, with re-hearings.\n\nA.  Admissibility\n\n39.  The applicant referred to her former husband’s application, which concerned the length of the same proceedings, albeit at an earlier stage, and in which a friendly settlement was concluded after it had been declared admissible (see Baumann v. Austria, no. 25818/94, the Commission’s decision of 10 September 1997).\n\n40.  The Court finds that the applicant’s complaint is not manifestly illfounded within the meaning of Article 35 § 3 of the Convention. It notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n41.  The Government submitted that the proceedings were complex as two proceedings were joined; the parties made repeated requests for the taking of evidence and several expert opinions had to be obtained. Moreover, the decision on the division of the matrimonial property and savings required the prior clarification of existing tax liabilities by the fiscal authorities which lasted seven years. Delays were mainly attributable to the parties, particularly because of their numerous requests to and lack of cooperation with the District Court, whereas the Austrian courts conducted the proceedings speedily and constantly worked on the case. Responsibility for the delay which occurred after the partial decision of 12 August 1994, when the courts had to wait for the final determination of the fiscal debts of the applicant’s former husband A., had to be born by the latter, who apparently tried to conceal his income vis-à-vis the tax authorities for quite some time.\n\n42.  The applicant contested this view and submitted that the proceedings were not complex. They only involved the determination of the value of the house, for which expert opinions had to be obtained as her former husband had underestimated its value. The applicant, as the claimant in the proceedings, was interested in their expeditious conduct and only made use of the legal remedies available in order to obtain her rights. Delays were mainly attributable to the domestic courts which conducted the proceedings with unusual slowness. In particular, the judge dealing with the case was replaced several times. Even the appeal proceedings took an exceptionally long time, necessitating a request under Section 91 of the Courts Act for an acceleration of the proceedings. The case was remitted to the first instance court for the taking of further evidence about five times.\n\n43.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the criteria established by its case-law, particularly the complexity of the case, the conduct of the applicant and of the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).\n\n44.  The Court shares the applicant’s view that the financial nature of the claim did not, of itself, make the proceedings especially complex. It notes that the applicant did not cause significant delays, but requested on several occasions that the proceedings be accelerated or resumed. Some delays are attributable to the applicant’s former husband who requested extensions of time-limits or the postponement of hearings. Both parties made appeals against certain decisions, which were mostly successful. Thus, the case was remitted three times to the first instance court for the taking of further evidence. Major delays occurred due to the suspension of the proceedings pending the outcome of the related tax assessment case.\n\n45.  The Court reiterates in this connection that Article 6 § 1 of the Convention imposes on the Contracting States the duty to organise their legal systems in such a way that their courts can meet each of the requirements of that provision, including the obligation to decide cases within a reasonable time (see, among other authorities, Pélissier and Sassi v. France, judgment of 25 March 1999, Reports of Judgments and Decisions 1999-II, p. 301, § 74). Consequently, it takes the view that an overall period of thirteen years and five months could not, in itself, be deemed to satisfy the “reasonable time” requirement in Article 6 § 1 of the Convention.\n\n46.  There has accordingly been a violation of Article 6 § 1 of the Convention.\n\nII.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION CONCERNING THE FAIRNESS OF THE COSTS ORDER AND THE LACK OF A FURTHER APPEAL\n\n47.  The applicant further complained that the decision that each party had to bear its own costs was unreasonable and that there was no further remedy against the ’s dismissal of her appeal against the costs order.\n\nA.  Admissibility\n\n48.  The Court reiterates that Article 6 § 1 is applicable to costs proceedings, provided that the legal costs which form the subject matter of the proceedings were incurred during the resolution of a dispute which involved the determination of civil rights and obligations (see Beer v. Austria, no. 30428/96, § 12, 6 February 2001). Since the costs order in the present case was clearly related to the principal civil claim, Article 6 § 1 of the Convention was also applicable to the costs procedure.\n\n49.  As regards the alleged unreasonableness of the costs order, the Court considers that it is not for the Court to act as a court of appeal or, as is sometimes said, as a court of fourth instance, from the decisions taken by domestic courts. It is the role of the domestic courts to interpret and apply the relevant rules of procedural or substantive law. Furthermore, it is the domestic courts which are best placed for assessing the credibility of witnesses and the relevance of evidence to the issues in the case (see, amongst many authorities, Vidal v. Belgium, judgment of 22 April 1992, Series A no. 235-B, pp. 32-33, § 32; Edwards v. the United Kingdom, judgment of 16 December 1992, Series A no. 247-B, § 34).\n\n50.  The Court finds that the legislative policy reflected in the Non-Contentious Proceedings Act, leaving the costs issue to the discretion of the domestic courts, which take account of the outcome of the proceedings, the financial standing of the parties and their conduct in the proceedings, appears neither arbitrary nor unreasonable (see mutatis mutandis, Fransson and Fransson v. Sweden (dec.), no. 8719/02, 16 March 2004). Further, there is no indication that the procedures or decisions adopted by the domestic courts in the costs proceedings infringed the core fairness requirement of Article 6 § 1 of the Convention.\n\n51.  It follows that this complaint must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.\n\n52.  As regards the applicant’s complaint about the lack of a further remedy against the costs order of the appeal court, the Court reiterates that the right of appeal in civil cases does not feature among the rights and freedoms guaranteed by the Convention. No provision of the Convention, therefore, requires a State to grant persons under its jurisdiction an appeal to a Supreme Court acting as a third instance court (see Suslo v. Ukraine (dec.), no. 30605/02, 5 November 2002, with further references).\n\nIt follows that this complaint must also be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.\n\nIII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n53.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n54.  The applicant claimed 30,000 euros (EUR) in respect of non-pecuniary damage.\n\n55.  The Government submitted that the claim was excessive.\n\n56.  The Court finds that the applicant has sustained non-pecuniary damage which cannot be compensated by the finding of a violation. Assessing the claim on an equitable basis, it awards EUR 9,000 under this head.\n\n57.  In so far as the applicant may be understood to seek reimbursement of her legal costs incurred in the domestic proceedings under the head of pecuniary damage, no award can be made as the applicant has not specified her claim. Further, the Court cannot speculate what the outcome would have been if the applicant had obtained a final decision on her action within a reasonable time. The Court accordingly dismisses this aspect of her claim.\n\nB.  Costs and expenses\n\n58.  The applicant also claimed reimbursement of EUR 97,000 for costs and expenses incurred before the domestic courts and EUR 13,081.11 for those incurred before the Court. The applicant did not submit any supporting documents.\n\n59.  The Government pointed out that only costs incurred in an attempt to redress the violation found could be reimbursed. Assessing the claim on the basis of the applicable law, only EUR 2,906.91 could possibly be claimed for the two applications under Section 91 of the Courts Act. The Government did not comment on the costs claim concerning the Convention proceedings.\n\n60.  According to the Court’s case-law, an applicant is entitled to the reimbursement of such costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court agrees with the Government as regards the amount to be reimbursed for the applications under Section 91 of the Austrian Courts Act. It accordingly awards the sum of EUR 2,906.91. However, the Court does not consider it necessary to determine whether the applicant’s costs related to her requests for the resumption of the proceedings meet this requirement as she has failed to specify them. Nevertheless, it cannot be excluded that the excessive duration of the proceedings increased the overall costs incurred (see Bouilly v. France, no. 38952/97, § 33, 7 December 1999). It therefore awards EUR 1,000 in this respect.\n\n61.  As to the costs in the Convention proceedings, the Court notes that the applicant, who was represented by counsel, did not have the benefit of legal aid. It considers it reasonable to award the applicant EUR 2,000 under this head.\n\n62.  In sum, the Court awards a total of EUR 5,906.91 for the applicant’s costs and expenses.\n\nC.  Default interest\n\n63.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Declares the complaint concerning the length of the proceedings admissible and the remainder of the application inadmissible;\n\n2.  Holds that there has been a violation of Article 6 § 1 of the Convention;\n\n3.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention,\n\n(i) EUR 9,000 (nine thousand euros) in respect of non-pecuniary damage;\n\n(ii) EUR 5,906.91 (five thousand nine hundred and six euros and ninety-one cents) in respect of costs and expenses;\n\n(iii) plus any tax that may be chargeable;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n4.  Dismisses the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 7 October 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_136","text":"PROCEDURE\n\n1.  The case originated in an application (no. 38194/02) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Czech national, Ms Zdena Metzová (“the applicant”), on 17 October 2002.\n\n2.  The applicant was represented by Mr J. Brož, a lawyer practising in . The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, Ministry of Justice.\n\n3.  On 8 December 2004 the Court decided to communicate the application. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time.\n\nTHE FACTS\n\nTHE CIRCUMSTANCES OF THE CASE\n\n4.  The applicant was born in 1946 and lives in .\n\n5.  On 29 May 1992 the applicant introduced before the Prague 4 District Court (obvodní soud) an action seeking the division of matrimonial property. According to the Government, the action was notified to the court on 1 June 1992. On 3 November 1992 the applicant’s former husband submitted his written comments on 295 pages.\n\n6.  On 8 September 1994 the District Court held a hearing which was adjourned in order to have an expert report drawn up. On 8 November 1994 an expert was appointed.\n\n7.  On 5 May 1995 the court invited the parties to an information meeting scheduled for 29 June 1995. However, the parties did not attend.\n\n8.  On 14 September 1995 another hearing was held in the absence of the defendant. On 17 November 1995 the expert informed the court that due to the defendant’s failure to cooperate, he was not able to draw up the opinion. On 11 December 1995 the court ordered the parties to cooperate with the expert.\n\n9.  On 19 January 1996 the defendant notified the court that due to his illness, he could not submit the relevant documents, which he finally did on 16 February 1996. On 19 February 1996 the case file was sent to the expert who, in the meantime, had been withdrawn. On 25 March 1996 a new one was appointed. The case file was sent to him on 23 June 1996. On 11 October 1996 the expert, having been urged to do so on 23 September 1996, sent the case file back to the court stating that due to his workload, he did not have time to prepare the report. On 19 December 1996 the court appointed another expert and, on 6 February 1997, it sent him the case file.\n\n10.  On 24 February 1997 the expert informed the District Court that he did not have necessary documents. On 7 March 1997 the court met the expert. On 17 March 1997 it invited the parties to submit a copy of an entry in the Land Registry and a copy of a land map. On 27 May 1997 the court pressed the expert to prepare his opinion. He replied on 13 June 1997 that he still did not have the necessary documents. On 1 July 1997 the court then imposed a procedural fine on the defendant who, on 29 July 1997, appealed. On 10 December 1997 the expert presented his report.\n\n11.  At a hearing held on 15 January 1998, the parties expressed their willingness to reach a friendly settlement. Another hearing was held on 5 March 1998. The defendant submitted his comments on the expert report on 1 April 1998. A week later, the court ordered the expert to amend his report in accordance with the defendant’s objections, which he did on 14 May 1998. At the same time, it appointed an expert to assess the value of movable property. She submitted her expert report on 24 November 1998.\n\n12.  On 29 December 1998 another expert was appointed to assess the value of other items. The expert informed the court, on 22 January 1999, that he was not sufficiently qualified for this work. On 27 January 1999 the court appointed a new expert who, however, repetitively did not take out the case file. The court then appointed another expert, to whom the case file was sent on 28 June 1999. The expert report was submitted on 10 August 1999.\n\n13.  In a judgment of 2 March 2000 the District Court, having held three hearings on 14 October, 3 February and 2 March 2000 respectively, delivered a judgment by which it divided the matrimonial property.\n\n14.  On 12 May 2000 the defendant appealed. On 30 May 2000 the judge dealing with the case requested the president of the court to withdraw her from the proceedings following the defendant’s insulting statements about her. She said that she felt biased. On 21 June 2000 the Prague Municipal Court (městský soud) granted her request.\n\n15.  On 10 July 2000 the case was assigned to another judge who, on 20 July 2000, invited the defendant to supplement his appeal. He complied on 20 August 2000. Five days later, the case was sent to the Municipal Court which, however, sent it back with a request to supplement it.\n\n16.  On 7 September 2000 the parties were ordered to pay court fees. On 26 October 2000 the case was again brought to the Municipal Court which, on 16 February 2001, quashed the lower court’s judgment and remitted the case to it for further consideration.\n\n17.  On 1 March 2001 the applicant was invited to amend her action in accordance with the guidelines of the Municipal Court. On 4 April 2001 she objected that the appellate court’s decision was incomprehensible. On 11 April 2001 the court delivered a rectifying resolution. On 4 July 2001 the applicant supplemented her action. On 16 July 2001 the defendant was invited to make his comments. Having been urged to do so on 4 September and 11 October 2001 respectively, he complied on 23 October 2001.\n\n18.  In a judgment of 29 January 2002 the District Court again decided on the distribution of the matrimonial property. On 11 March 2002 both parties appealed. On 19 March 2002 they were invited to supplement their appeals. The defendant complied on 27 March 2002, amending his arguments on 17 April 2002, after a lawyer had been appointed for him on 8 April 2002. The applicant presented her amendment on 23 May 2002.\n\n19.  On 31 October 2002 the court received the defendant’s comments on the applicant’s appeal. On 11 January 2003 the defendant “rectified” his appeal. On 6 February 2003 the case file was sent to the Municipal Court. On 22 April 2003 the defendant asked the court to grant him time to adduce further documentary evidence. On 13 May 2003 he submitted new comments on the applicant’s appeal. On 2 June 2003 the case file was submitted to the appellate court.\n\n20.  On 1 August 2003 the defendant requested that a public hearing be adjourned.\n\n21.  On 15 October 2003 the Municipal Court appointed an expert to amend the expert report. The expert complied on 1 December 2003.\n\n22.  In a decision of 5 February 2004 the court upheld the District Court’s judgment. On 30 March 2004 this decision became final.\n\n23.  On 26 May 2004 the defendant filed an appeal on points of law (dovolání). On 12 August 2004 the case file was sent to the Supreme Court (Nejvyšší soud) which, on 1 September 2004, suspended the enforcement of the judgment. It appears that the proceedings are still pending.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION\n\n24.  The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, provided in Article 6 § 1 of the Convention, which reads as follows:\n\n“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”\n\n25.  The period to be taken into consideration began on 1 June 1992 and has not yet ended. It has thus lasted about thirteen years and ten months for three levels of jurisdiction.\n\nA.  Admissibility\n\n26.  The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n27.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). It further recalls that only delays for which the State can be held responsible may justify a finding that a “reasonable time” has been exceeded (see, inter alia, Monnet v. France, judgment of 27 October 1993, Series A no. 273-A, p. 12, § 30).\n\n28.  The Government submitted that proceedings on division of matrimonial property always involved a certain degree of complexity. In the present case, they mentioned the necessity to examine a number of expert opinions. The Government further observed that the defendant had delayed the proceedings by failing to cooperate with the experts. Moreover, his written submissions were frequently voluminous. The Government added that the hearings had repeatedly been adjourned due to the parties’ failure to appear. The Government admitted that certain delays in the proceedings had been caused by the experts, but underlined that the courts had always tried to remedy the problematic situation. According to them, the length of the proceedings had been caused by circumstances which could not be imputable to State organs.\n\n29.  The applicant disagreed with the Government. In conclusion, she stressed that there had been a violation of Article 6 § 1 of the Convention.\n\n30.  The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above).\n\n31.  Having examined all the material submitted to it and despite the fact that the parties to the proceedings - particularly the defendant - contributed to some extent to the length of the proceedings, the Court considers that the Government have not put forward any fact or argument capable of persuading the Court to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.\n\nThere has accordingly been a breach of Article 6 § 1.\n\nII. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION\n\n32.  The applicant further complained of the fact that in the  there was no court to which application could be made to complain of the excessive length of proceedings. She relied on Article 13 of the Convention.\n\n33.  The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.\n\n34.  The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI). It notes that the objections and arguments put forward by the Government have been rejected in earlier cases and sees no reason to reach a different conclusion in the present case.\n\n35.  Accordingly, the Court considers that in the present case there has been a violation of Article 13 of the Convention on account of the lack of a remedy under domestic law whereby the applicant could have obtained a ruling upholding her right to have her case heard within a reasonable time, as set forth in Article 6 § 1 of the Convention.\n\nIII. APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n36.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n37.  The applicant left the matter of just satisfaction to the Court’s discretion.\n\n38.  The Government requested the Court, should it find a violation of the Convention, to allow the applicant, in respect of non-pecuniary damage, a sum which would correspond to the circumstances of the present case and would be based on its case-law.\n\n39.  The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards award her EUR 9,000 under that head.\n\nB.  Costs and expenses\n\n40.  The applicant made no claim under this head.\n\nC.  Default interest\n\n41.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Declares the application admissible;\n\n2.  Holds that there has been a violation of Article 6 § 1 of the Convention;\n\n3.  Holds that there has been a violation of Article 13 of the Convention;\n\n4.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 9,000 (nine thousand euros) in respect of non-pecuniary damage, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\nDone in English, and notified in writing on 18 April 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_974","text":"PROCEDURE\n\n1.  The case originated in an application (no. 26940/10) against the Kingdom of Norway lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”), on 11 May 2010, by Mr Henry Antwi (“the first applicant”), a Ghanaian national who was born in 1975; by his wife, Mrs Vivian Awere Osei (“the second applicant”); a Norwegian citizen who was born in Ghana in 1979; and by their daughter, Ms Nadia Ryan Pinto (“the third applicant”), a Norwegian national who was born in September 2001.\n\n2.  The applicants were represented by Mr A. Humlen, a lawyer practising in Oslo. The Norwegian Government (“the Government”) were represented by Mr M. Emberland, Attorney, Attorney-General’s Office (Civil Matters), as their Agent, assisted by Ms A. Matheson Mestad, Attorney of the same office.\n\n3.  The applicants alleged that the Norwegian immigration authorities’ decision to expel the father from Norway and to prohibit his re-entry for five years would, if implemented, give rise to a violation of his, his wife’s and his daughter’s right to respect for family life under Article 8 of the Convention.\n\n4.  On 19 May 2010 the President of the First Section decided to apply Rule 39 of the Rules of Court, indicating to the Government that it was desirable in the interests of the parties and the proper conduct of the proceedings not to deport the first applicant until further notice. The President further decided to give priority to the application (Rule 41).\n\n5.  On 1 July 2010 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\nA.  The circumstances of the case\n\n1.  Factual background\n\n6.  The first applicant arrived in Germany in 1998, where he obtained a forged passport and a birth certificate stating a false identity indicating that he was a Portuguese national named Jose Joao Olas Pinto, born on 1 March 1969.\n\n7.  The second applicant is also of Ghanaian origin. She had arrived in Norway in 1997, at the age of seventeen, with a view to be reunited with her father and three siblings who still live in Norway. The first and second applicants met while she was travelling in Germany. The second applicant invited the first applicant to Norway and soon after they started cohabiting. They live in Oslo.\n\n8.  In 2000 the second applicant obtained Norwegian citizenship.\n\n9.  On 23 December 1999 the first applicant applied for a work- and residence permit as a citizen of the European Economic Area (hereinafter “the EEA”, established in 1994 under an agreement bringing the three member states of the European Free Trade Association (EFTA) – Iceland, Liechtenstein and Norway – and the twenty-seven member states of the European Union (EU) together in a single internal market, without the EFTA members having to join the EU). On the basis of the forged Portuguese passport indicating a false identity, the Norwegian immigration authorities granted him a five-year residence- and work permit from 13 April 2000 to 13 April 2005 as an EEA national.\n\n10.  On 23 September 2001 the couple had a daughter (the third applicant).\n\n11.  In 2003 the first applicant applied for Norwegian citizenship. The application was refused because the duration of his residence in Norway had been insufficient.\n\n12.  On 11 February 2005 the couple married in Ghana. According to the applicants, it was in that connection that the second applicant had become aware of the first applicant’s true identity as he obtained a Ghanaian passport.\n\n13.  The first applicant also used his false identity when he applied for renewal of his residence permit in the spring of 2005.\n\n14.  On 15 July 2005 the first applicant was arrested in the Netherlands while travelling to Canada, as the Dutch authorities discovered that his passport was forged. Subsequently, the first applicant provided his true identity to the Norwegian authorities. After a few months he returned to Norway.\n\n2.  Proceedings before the immigration authorities\n\n(a)  The Directorate of Immigration\n\n15.  On 12 October 2005 the Directorate of Immigration warned the first applicant about the possibility that he might be expelled from Norway.\n\n16.  On 3 May 2006 the Directorate decided that he should be expelled from Norway under section 29(1)(a) of the Immigration Act 1988 (according to which an alien may be expelled if he or she has committed serious or repeated violations of one or more provisions of the Act). Reference was made to the fact that by having provided false information in connection with his application for work permit on 23 December 1999, he had violated section 44 (cf. section 47(1)(b) of the Act). He had submitted false information regarding his date of birth, identity and nationality. Whilst the first applicant had stated that his name was Jose Joao Olas Pinto, a citizen of Portugal, born on 1 March 1969, his true identity had been Henry Antwi, a citizen of Ghana, born on 9 May 1975. The Directorate found that his expulsion would not be a disproportionate measure vis-à-vis him for the purposes of section 29(2). He was prohibited from re-entry for a period of five years (section 29(4)).\n\n17.  The Directorate also decided that these measures should be entered into the Schengen Information System, with the consequence that the expulsion in principle would apply to the entire Schengen area. He was given until 24 July 2006 to leave Norway.\n\n18.  On the same date as the above decision, the Directorate rejected the first applicant’s application for work-permit and family reunification with the second and third applicants on the ground of his expulsion.\n\n(b)  The Immigration Appeals Board\n\n19.  On 4 September 2007 the Immigration Appeals Board rejected the first applicant’s appeal against the Directorate of Immigration’s decision of 3 May 2006. Like the Directorate, it observed that the first applicant had given false information about his identity and in support of this had submitted a forged passport. He had further maintained his false identity in his respective applications for Norwegian citizenship, for renewal of his work permit, and for family reunification. He had accordingly repeatedly committed aggravated violations of the immigration rules.\n\n20.  The Board found that the first applicant’s expulsion would not constitute a disproportionate measure vis-à-vis him, nor vis-à-vis his closest family members. In addition to having obtained a work permit as an EEA citizen on the basis of false information about his identity with the support of a forged passport, the first applicant had failed to comply with the order to leave the country by 24 July 2006. Strong interests of general prevention militated in favour of expulsion.\n\n21.  With reference to Article 8 of the Convention, the Board found that the first applicant’s personal links to Norway carried little weight. He had arrived in Norway at an adult age, had since returned to his home country and had also married the second applicant in Ghana, which suggested that he still had a strong attachment to his country of origin. In light of the gravity of the offences, his family links to his spouse and child could not be decisive in the global assessment. Since his relationship with the second applicant had been established during his residence on the basis of false identity, neither he nor she could entertain any legitimate expectation about being able to continue to live together in Norway if the matter was discovered. No weight could be placed on the fact that the second applicant claimed that she had been ignorant about the first applicant’s actual identity. Reference was made to the fact that she had been aware that he originally had a Ghanaian background and that, in connection with their marriage in Ghana on 11 February 2005, he had obtained a Ghanaian passport.\n\n22.  The Board further noted that the third applicant had been conceived and born while the first applicant resided on the basis of a false identity. Links established under circumstances as described above thus carried less weight. The fact that the applicants were living together as a family and that the first applicant had significant contacts with the third applicant, could not be decisive for the assessment of the case as a whole. Reference was made to the fact that the second applicant was originally of the same nationality as the first applicant and could more easily accompany the first applicant to their country of origin. In view of her young age, the child had the closest attachment to her parents and for this reason could eventually follow them to their home country. Also, the duration of the prohibition on re-entry was limited to five years.\n\n23.  Referring to section 4 of the Immigration Act 1988 (pursuant to which the Act ought to be applied consistently with Norway’s international legal obligations aimed at strengthening the foreigner’s position) and to section 4 of the Human Rights Act, which incorporated the Convention into Norwegian domestic law, the Board found that the first applicant’s expulsion would not be incompatible with Article 8 of the Convention or the United Nations Convention on the Rights of the Child. In this connection the Board had regard to the Court’s case-law, notably Amrollahi v. Denmark, no. 56811/00, § 35, 11 July 2002; Boultif v. Switzerland, no. 54273/00, § 48, ECHR 2001IX; Dalia v. France, 19 February 1998, § 54, Reports of Judgments and Decisions 1998I; Jakupovic v. Austria, no. 36757/97, § 31, 6 February 2003). The Board considered in detail the first applicant’s arguments based on Rodrigues da Silva and Hoogkamer v. the Netherlands (no. 50435/99, ECHR 2006I) and agreed with the Directorate that it was not directly applicable to the present case.\n\n24.  In sum, the Board was of the view that, having regard to the gravity of the first applicant’s offences of the Immigration Act and to the circumstances of the case as a whole, there was a reasonable relationship of proportionality between the expulsion and its negative effects on his enjoyment of private and family life. His expulsion with a prohibition on re-entry for a period of five years would not be a disproportionate measure either vis-à-vis the first applicant or vis-à-vis his closest family members, for the purposes of section 29(2) of the Immigration Act, Article 8 of the Convention and the UN Convention on the Rights of the Child.\n\n25.  Throughout the above proceedings before the immigration authorities the first applicant was represented by a lawyer.\n\n3.  Judicial proceedings\n\n(a)  The City Court\n\n26.  The first applicant challenged the above decision before the Oslo City Court (tingrett), pending which it was decided in the autumn of 2007 to stay his expulsion.\n\n27.  On 28 March 2008 the Oslo City Court quashed the Immigration Appeals Board’s decision of 4 September 2007 as being invalid. The City Court found it obvious that the conditions for expelling the first applicant set out in section 29(1)(a) had been fulfilled. The first applicant’s offences of the immigration rules were aggravated and his expulsion was warranted by weighty considerations of general deterrence. According to the immigration authorities’ practice, a prohibition on re-entry would normally be made permanent in such cases. The reason why the prohibition on reentry had been limited to a period of five years in the present case was the fact that the first applicant had a six years’ old daughter (the third applicant). The question thus arose whether the expulsion of the first applicant for a period of five years would be a disproportionate measure visà-vis his daughter despite the seriousness of his breaches of the Immigration Act.\n\n28.  In this regard the City Court observed, inter alia, that the third applicant appeared to be an ordinary Norwegian girl and that it was not certain that it would be unproblematic for her to move to Ghana, even though this was her parents’ home country. One would have to take into account possible problems for her in the event of a return to Norway. If the first applicant were to be expelled to Ghana for a period of five years, his daughter would most probably loose the close contact she had with him. To deprive the child of her relationship with her father would be a serious measure and could have disturbing effects on the child’s development. This would be so even if she were to have the opportunity to visit him in his home country. Although considerations of general prevention militated in favour of expulsion, the measure would be disproportionate vis-à-vis the first applicant’s daughter.\n\n(b)  The High Court\n\n29.  The State appealed to the Borgarting High Court (lagmannsrett). At the request of the State, the High Court decided on 14 November 2008 to suspend the proceedings in the first applicant’s case pending the national outcome in a parallel case (Nunez v. Norway, no. 55597/09, 28 June 2011).\n\n30.  In a judgment of 19 January 2010, the High Court, by two votes to one, upheld the Immigration Appeals Board’s decision of 4 September 2007.\n\n31.  The High Court observed that the first applicant’s violation of the Immigration Act ought to be considered as serious. On four different occasions he had submitted false information about his identity to the immigration authorities and had supported this with a forged passport. First he had been issued with a permit - an EEA permit - despite his not being entitled to such a permit. On the second occasion, his application for citizenship had been refused on other grounds, namely the duration of his residence in Norway. On the third and fourth occasions, his application had been rejected because his expulsion had already been decided. False information about one’s identity made it very difficult for the authorities to exercise an effective control of a foreigner’s entry into and residence in Norway. To a large extent the system had to be based on confidence. General preventive measures suggested therefore that breaches of the immigration rules should entail adverse consequences for the person concerned.\n\n32.  As to the question whether, nonetheless, there was such an attachment to Norway as to make the expulsion disproportionate, the High Court observed inter alia as follows.\n\n33.  The first applicant had grown up in Ghana and had his family there. He had lived in Norway since the autumn of 1999. Since his attachment had been established on the basis of a residence permit that he had misled the authorities to grant him, he could not have had any legitimate expectation about being able to remain in Norway. The High Court found it clear that expulsion would not be a disproportionate measure vis-à-vis the first applicant.\n\n34.  As regards his wife, the second applicant, the High Court observed that she had originated from Ghana. She knew the culture and spoke the language of the country. Since the age of seventeen she had lived in Norway where she had her closest family, her father and three siblings. She was a Norwegian citizen, spoke Norwegian and was working in Norway. In 1999 she had started co-habiting with the first applicant in the belief that he held lawful residence in Norway as an EEA citizen. She thus had reason to believe that their marriage and his application for family reunification had not been necessary conditions for them to establish a reliable framework around their life together in Norway. She had become aware of her husband’s true identity when they had married in February 2005. Only when the false passport had been revealed in the Netherlands in the summer of 2005 had she become aware that he was not a Portuguese national. Nonetheless, the High Court found that her interests seen on their own could not render the expulsion a disproportionate measure.\n\n35.  The High Court found that a decisive consideration in this case was the interests of the daughter, the third applicant. She was eight and a half years of age and was a Norwegian national. She was in her third school year, active in sport and well established in her local environment. She only spoke Norwegian and a few words of her mother’s language – Twi – and English. Her parents spoke primarily Norwegian at home. It had been submitted that she needed close follow-up in relation to school and that it was the first applicant who assumed this contact, staying at home after having lost his work permit. It was also him who followed up her hobbies.\n\n36.  According to two medical statements dated 5 October 2007 and 18 September 2008, respectively, by the third applicant’s general medical practitioners, since she had been a child she had been suffering from rashes that worsened with heat.\n\n37.  The High Court pointed out that regard for the best interests of the child was a fundamental consideration to be taken into account in the proportionality assessment under section 29 of the Immigration Act.\n\n38.  The High Court found it established that in the event of the first applicant’s expulsion, either the family would be split, meaning that the second and third applicants would continue to live in Norway, or they would move with him to Ghana. This would clearly not be in the best interests of the daughter, who was born and had grown up in Norway and was very attached to her father. Naturally she also had strong bonds to her mother.\n\n39.  It ought to be expected that an expulsion would involve financial, emotional and social strain on established family life. This applied not least when family life was interrupted as a result of the expulsion. Strain of this kind was not in itself a sufficient indicator that expulsion would be a disproportionately severe sanction.\n\n40.  The High Court further pointed to the Supreme Court’s judgment reported in Norsk Retstidende (“Rt.”) 2009-534 (see Nunez, cited above, § 23), in which Norway’s international obligations were also assessed, including the European Court’s judgment in Rodrigues da Silva and Hoogkamer, cited above. In the High Court’s view, the interests of a child who had no special needs for care and who had a remaining parent able to provide satisfactory care should not be a decisive consideration in assessing whether an expulsion measure should be implemented.\n\n41.  According to the High Court, the third applicant was a normal girl for her age – eight years and a half – and had no special care needs. It saw no reason to doubt that her mother would be able to provide her with satisfactory care on her own. Since the child’s mother originated from the same country as the father, and had been on visits there with the daughter on three occasions, the situation was favourable for regular contact or, in the alternative, for the family’s settling in Ghana. Consequently, the expulsion of her father with a prohibition on re-entry for a limited period would not be a disproportionate measure.\n\n42.  As to the duration of that period the High Court was divided.\n\n43.  The majority did not find five years inconsistent with current practice or disproportionate. It observed that the case involved serious violations of the Immigration Act. According to the Supreme Court’s judgment in the Nunez case, an expulsion would only be disproportionate when it resulted in an extraordinary burden (see paragraph 63 of the Supreme Court’s judgment quoted in Nunez, cited above, § 23).\n\n44.  As to the present case, the High Court reiterated its finding above that the child’s mother would be able to provide the child with satisfactory care of her own. Since the child’s mother originated from the same country as the father and had visited the country with the daughter on three occasions, there were favourable conditions for maintaining regular contacts or, in the alternative, for the whole family to settle in Ghana. Thus the family had a better basis for maintaining family life and contact than would have been the case if the parents had not had the same country of origin.\n\n45.  The parents had informed the court that the daughter could not stay in Ghana for extended periods since she suffered from a skin rash that was aggravated by heat. However, it was clear that she had been in Ghana several times, most recently in October 2009. In the majority’s view, the information about the daughter’s rashes had not been sufficiently documented and could not be relied upon.\n\n46.  The minority was of the view that the imposition of a five-year reentry ban would be too severe and disproportionate a measure and that two-year ban would be appropriate, observing inter alia the following.\n\n47.  The gravity of the first applicant’s offences under the Immigration Act had been comparable to those committed by the applicant in the Nunez case, though less aggravated bearing in mind that he had not committed other offences in Norway and had not defied any prohibition on re-entry.\n\n48.  Since birth the daughter had been taken special care of by her father, who had followed her up in her recreational activities and through extensive contacts with her school. For a girl of eight years and a half of age, and for her mother, it would make a considerable difference were reunification of the family to take place in Norway after two to three years as compared to five to six years. Taking into account the normal processing time for a request for family reunification, the daughter would be nearly fifteen years before the family could resume cohabitation in Norway. The years in between would be important years.\n\n49.  Even though there was a possibility for the family to follow the first applicant to Ghana, this prospect was unrealistic. There was nothing to indicate that the family would easily find accommodation, work, etc. in Ghana.\n\n50.  The minority agreed that the evidence submitted in support of the affirmation that the daughter had a skin rash aggravated by heat was weak. Nonetheless, on the basis of the two statements form the daughter’s two general practitioners, it ought to be assumed that she had “a recurrent skin rash. The diagnosis had been somewhat uncertain.” As far as could be understood, one only had the word of the parents to the effect that the rash had been aggravated by heat; the general practitioners’ statements on this point had apparently been based on information provided by the parents.\n\n51.  However, it was unnecessary to further consider this matter since in any event for the third applicant to be interrupted for at least five years’ from her school, friends and hobbies in Norway in order to settle in a country where she neither knew the language nor the culture would be particularly unfortunate for her. Her knowledge of Norwegian would deteriorate and it would have social and educational consequences for her when returning to Norway at the age of fourteen or fifteen.\n\n52.  The minority in addition attached some weight to the second applicant’s interests, notably the fact that she had entered into the relationship, had given birth to a child and had married the first applicant in the belief that it would be possible to continue family life in the country of which she was a national and where most of her remaining family lived. It further had regard to the fact that the first applicant had come to Norway because of his wife and that their cohabitation had been established almost immediately after his arrival in the country.\n\n52.  The minority in addition attached some weight to the second applicant’s interests, notably the fact that she had entered into the relationship, had given birth to a child and had married the first applicant in the belief that it would be possible to continue family life in the country of which she was a national and where most of her remaining family lived. It further had regard to the fact that the first applicant had come to Norway because of his wife and that their cohabitation had been established almost immediately after his arrival in the country.\n\n52.  The minority in addition attached some weight to the second applicant’s interests, notably the fact that she had entered into the relationship, had given birth to a child and had married the first applicant in the belief that it would be possible to continue family life in the country of which she was a national and where most of her remaining family lived. It further had regard to the fact that the first applicant had come to Norway because of his wife and that their cohabitation had been established almost immediately after his arrival in the country.\n\n(c)  The Supreme Court\n\n53.  On 28 April 2010 the Appeals Leave Committee of the Supreme Court (Høyesteretts ankeutvalg) unanimously refused the first applicant leave to appeal, finding that such leave was warranted neither by the general importance of the case nor by other considerations.\n\n54.  In the above-mentioned judicial proceedings, the first applicant was represented by a lawyer at each judicial level.\n\nII.  RELEVANT DOMESTIC LAW AND PRACTICE\n\n55.  Section 29 (1) (a) of the Immigration Act 1988 (Act of 24 June 1988 Nr 64, Lov om utlendingers adgang til riket og deres opphold her – utlendingsloven – applicable at the material time and later replaced by the Immigration Act 2008) read:\n\n“Any foreign national may be expelled\n\na)  when the foreign national has seriously or repeatedly contravened one or more provisions of the present Act or evades the execution of any decision which means that the person concerned shall leave the realm.”\n\n56.  Even when the conditions for expulsion pursuant to section 29 of the Immigration Act were satisfied, expulsion could not take place if it would be a disproportionate measure against the foreign national or the closest members of his or her family. Section 29 § 2 of the Immigration Act 1988 provided:\n\n“Expulsion pursuant to the first paragraph, sub-paragraphs (a), (b), (c), (e) and (f) of this section, shall not be ordered if, having regard to the seriousness of the offence and the foreign national’s links to the realm, this would be a disproportionately severe measure vis-à-vis the foreign national in question or the closest members of this person’s family.”\n\n57.  According to section 29 (4), an expulsion order would be accompanied by a prohibition on re-entry into Norway. However, the person expelled might, on application, be granted leave to enter Norway. Furthermore, according to well-established administrative practice, when considering an application for leave to enter under section 29 (4), the Directorate of Immigration was under an obligation to consider the proportionality of its decision on prohibition on re-entry. The provision read:\n\n“Expulsion is an obstacle to subsequent leave to enter the realm. Prohibition on entry may be made permanent or of limited duration, but as a general rule not for a period of less than two years. On application the person expelled may be granted leave to enter the realm, but as a rule not until two years have elapsed since the date of exit.”\n\n58.  Section 41 (1) provided inter alia:\n\n“Any decision which means that any foreign national must leave the realm is implemented by ordering the foreign national to leave immediately or within a prescribed time limit. If the order is not complied with or it is highly probable that it will not lead to the foreign national’s leaving the realm, the police may escort the foreign national out. ... Any decision which applies to implementation is not considered to be an individual decision, cf. section 2 (1) (b), of the Public Administration Act.”\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION\n\n59.  The applicants complained that the Norwegian immigration authorities’ decision, upheld by the national courts, that the first applicant be expelled to Ghana with a prohibition on re-entry for five years would entail a breach of their rights under Article 8 of the Convention. It would disrupt the relationships between the first and the third applicants in a manner that would have long lasting damaging effects on the latter.\n\nArticle 8 reads:\n\n“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.\n\n2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”\n\n60.  The Government disputed this contention.\n\nA.  Admissibility\n\n61.  The Court finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n1.  Submissions by the parties\n\n(a)  The applicants’ arguments\n\n62.  Admittedly, the first applicant’s breaches of the Immigration Act had related to the fact that he had initially presented a false Portuguese passport as a basis for his EEA permit in Norway and that he on three occasions had repeated the information to the Norwegian authorities in connection with his applications for extensions of his residence permits and for citizenship. However, bearing in mind their similar nature, it would be difficult to see how one could consider these three violations as independent and separate offences.\n\n63.  Although one should not underestimate the seriousness of the first applicant’s offence, once the matter had been discovered he had quickly contributed to the elucidation of his correct identity. At no time thereafter had he committed any criminal act or failed to comply with applicable rules and norms in Norway. At present, he posed no “threat” to Norwegian public interests.\n\n64.  Whilst the Norwegian authorities had decided not to deal with the matter as a criminal offence and press charges but rather as an administrative offence, there was no basis for considering the matter more severely than would have been the case had they opted for the former criminal-law approach.\n\n65.  The first applicant had lived in Norway since 1999 and had developed strong ties to Norway through work and social life by the time he lost his work permit in 2005, though his main interest in preserving his ties to Norway lay in the protection of his family life in the country.\n\n66.  His wife, the second applicant, was a Norwegian citizen. Although she initially was a Ghanaian citizen, the applicants’ emphasised that she had been living in Norway since 1997 when she at the age of seventeen had settled there in order to be reunited with her father and siblings who lived in the country and who still lived there. She had held Norwegian citizenship since 2000.\n\n67.  The second applicant had only become aware of her husband’s true identity in connection with their marriage in Ghana in February 2005. It was only later that year, after the first applicant had been stopped at the airport in the Netherlands in connection with the trip to Canada, that the second applicant had become aware that the first applicant had operated with false identity and citizenship. It ought to be emphasized that, by the time of their marriage in 2005, the couple had exercised “family life” for six years and had a daughter, born in 2001. The development of the second applicant’s “family life” with the first applicant during this period could not be regarded as precarious.\n\n68.  In light of the above, the applicants argued that the second applicant subsequently was entitled to a degree of protection of her “family life” under Article 8 of the Convention. For six years she had entertained a legitimate expectation about being able to pursue her future relationship with her husband in Norway and had for such a length of time exercised actual “family life” with the child as part of the family. So far their effective family life had lasted for twelve years.\n\n69.  The third applicant, the first and second applicant’s daughter, had been born and brought up in Norway and was presumably the one who had the strongest interest in the protection offered by Article 8 of the Convention. Being a nine year old Norwegian national who had spent her entire childhood in Norway, she undoubtedly had a strong foundation in the country. She had little, if any, awareness of her parents’ links to their country of origin. She had only visited Ghana twice, on each occasion for a short period, and had suffered allergic reactions on both occasions. She had experienced the reactions as very uncomfortable and had against this background stated that she would never go back to Ghana.\n\n70.  Throughout her childhood, both in kindergarten and at school, the third applicant had always been in a Norwegian environment. She had established strong cultural and social ties to Norwegian society, notably through her many sport activities. Moreover, her school had pointed out that these activities had helped reducing her restlessness and strengthening her focus on and learning capacity at school.\n\n71.  Apart from an occasional expression in the parents native Twi and English, the third applicant only spoke Norwegian, which was the family’s everyday language.\n\n72.  Since he had lost his work permit in 2005, the first applicant had assumed the role as the third applicant’s main caretaker within the family. The second applicant had been the family’s main bread winner and had, as a result, been occupied in one job and a half in order be to be able to maintain the family’s level of subsistence. This meant that the first applicant had the main role in following up the home work of the third applicant, who needed to be accompanied particularly closely, and in assuming the contacts between the family and school.\n\n73.  Bearing in mind the first applicant’s important role in attending to the third applicant’s care, education and sporting activities, the strong emotional bonds between them and the fact that the she was at a critical phase of her adolescence, the first applicant’s expulsion with a prohibition of re-entry for five years would constitute a disproportionate measure visàvis her, in particular, and also vis-à-vis the second applicant. It would have the effect of splitting the family for five years with the risk that it might sever the ties between the first applicant and his family.\n\n74.  For the second and third applicants to move with the first applicant to Ghana for five years would not be a realistic option, as it would entail a loss or significant weakening of the third applicant’s educational, emotional, cultural and linguistic ties at an important age and severely prejudice her possibilities for pursuing life in Norway later.\n\n(b)  The Government’s arguments\n\n75.  The Government maintained that Mr Antwi, the first applicant, had at no time been entitled to a residence permit under Norwegian law, in contrast to the applicant in the case of Rodrigues da Silva and Hoogkamer, cited above, which was clearly distinguishable. He had on several occasions provided Norwegian immigration authorities with incorrect information concerning his identity and had moreover substantiated this identity with a false passport. He had had no right to the EEA residence permit that had been issued to him on the basis of an incorrect identification document. The other three occasions on which he had submitted false information had not resulted in incorrect decisions by the immigration authorities since they had relied on other grounds. But the fact that he had persisted in using false identification papers also in his direct contact with the Norwegian authorities fortified the Government’s view that he had “a history of breaches of immigration law”.\n\n76.  The Government further emphasised the particular gravity of the first applicant’s offences of the immigration rules. As held by the High Court, the provision of incorrect information concerning identity made it very difficult for the authorities to exercise effective control of foreign national’s entry and residence in Norway. The first applicant’s forged passport indicating that he was an EEA citizen had enabled him to obtain a residence permit for five years, hence allowing him to establish himself in Norway for a long period of time on unlawful grounds. A lack of consequences for such gross or repeated contraventions of the law would, on the one hand, undermine respect for the legislation and, on the other hand, have an unjust effect on those who abide by the law.\n\n77.  The first applicant had been duly aware that his residence permit in Norway had been based on forged identification papers and that subsequently his residence in the country had been precarious. Hence, his family life had been developed in circumstances in which he could entertain no legitimate expectation about being granted a residence permit.\n\n78.  The Government further observed that the first applicant had arrived in Norway as an adult, having spent the first twenty-four years of his life in Ghana, and therefore had strong cultural, family and social ties to his home country. In contrast, his connection to Norway had been of a considerably weaker nature, resting merely on family bonds formed while he had been residing illegally in the country. Accordingly, regard for the first applicant’s individual interests clearly could not render the decision to expel him unjustified for the purposes of Articles 8 of the Convention.\n\n79.  Since the work- and residence permits had been issued on the basis of false information provided by the first applicant, they could not be viewed as an argument in the applicants’ favour. It was rather a factor which underpinned the gravity of his offences under the immigration law, hence the view that the expulsion order was justified for the purposes of Article 8.\n\n80.  In so far as the interests of the applicant’s child were concerned, these had been thoroughly considered by the High Court in its judgment. Based on a concrete assessment of the evidence presented, the High Court found that the third applicant would not be subjected to any unusual strain as a result of the forced removal of the first applicant to his country of origin. The High Court majority pointed to the Supreme Court’s case law according to which an expulsion would only be regarded as disproportionately severe if it resulted in abnormal strain on the child. However, the second applicant – the mother – was well suited as a caretaker for the third applicant. The latter was a normal girl of eight years and a half of age with no special care needs and her mother would undoubtedly be able to provide her with satisfactory care on her own. Accordingly, the first applicant’s expulsion with a prohibition on re-entry of limited duration would not constitute a disproportionately severe measure vis-à-vis the third applicant.\n\n81.  As regards the second applicant, the fact that she originated from Ghana was a relevant factor for the Court’s assessment. Even though she had obtained a Norwegian citizenship and parts of her family resided in Norway, her links to Ghana ought to be considered strong: she was familiar with Ghanaian culture and spoke a Ghanaian language. The first and second applicants had married in Ghana in 2005, which choice of location clearly showed the links that they had to their common country of origin.\n\n82.  Hence, the Government considered that the applicants’ “family life” would not be ruptured by the expulsion of the first applicant. Although the family probably would experience some difficulties and inconvenience if they were to settle in Ghana, they had failed to show that there existed insurmountable obstacles for enjoying family life in the couple’s common country of origin.\n\n83.  In any event, nothing would prevent the second and third applicants from visiting the first applicant in Ghana. As observed by the High Court, they had already visited Ghana on several occasions. The conditions for keeping in touch in the event that the family choose not to settle in Ghana were in the Government’s opinion particularly favourable.\n\n84.  In the High Court’s view, the duration of the prohibition on re-entry – five years – had been consistent with the applicable administrative practice at the time and had not been disproportionately severe within the meaning of section 29(2) of the 1988 Immigration Act. At the expiry of this term the first applicant would no longer be barred from entering Norwegian territory. He would, upon application for visa, be able to visit the country and apply for a residence permit on an equal footing with others.\n\n85.  In light of the above, the facts of the case did not disclose any breach of the respondent State’s positive obligations under paragraph 1 of Article 8 of the Convention.\n\n86.  In any event, should the Court consider the matter from the angle of the State’s negative obligations not to interfere in a manner that failed to comply with the conditions set out in paragraph 2 of Article 8, the Government stressed that all those conditions had been fulfilled in the instant case. Referring to the considerations set out above, the Government maintained that the interference had been “necessary” for the legitimate aim pursued. By having refused to comply with the lawful decisions taken by Norwegian immigration authorities, based on a family life established on unlawful grounds, the first and second applicants had confronted them with a fait accompli for which they ought to be held in the main responsible. The Norwegian immigration authorities and courts had in the present case struck a fair balance between the interests of the applicants and those relating to immigration control.\n\n2.  The Court’s assessment\n\n87.  It is clear, and this was not disputed before the Court, that the relationship between the applicants constituted “family life” for the purposes of Article 8 of the Convention, which provision is therefore applicable to the instant case.\n\n88.  As to the issue of compliance, the Court reiterates that a State is entitled, as a matter of well-established international law and subject to its treaty obligations, to control the entry of aliens into its territory and their residence there. The Convention does not guarantee the right of an alien to enter or to reside in a particular country (see, as a recent authority, Nunez, cited above, § 66).\n\n89.  In the present case, the first applicant had in 1998 obtained a forged passport and birth certificate stating a false identity, indicating that he was a Portuguese national named Jose Joao Olas Pinto and was born on 1 March 1969. He submitted that passport when he applied to the Norwegian authorities for a work- and residence permit in Norway as an EEA citizen, which was granted to him for five years from 13 April 2000 to 13 April 2005 on the basis of the false identity information contained in that document. Under the guise of this false identity and supporting this with the forged passport, the first applicant subsequently applied for renewal of the permit on two occasions and for Norwegian citizenship. Thus, the Court observes that, since he had not been entitled to any of the permits obtained, at no time had his residence in Norway been lawful (see Nunez, cited above, §§ 67 and 72, cf. Rodrigues da Silva and Hoogkamer, cited above, § 43). On the same approach as that adopted in the afore-mentioned Nunez judgment, the Court will have regard to the following principles stated therein:\n\n“68.  ...[W]hile the essential object of [Article 8] is to protect the individual against arbitrary action by the public authorities, there may in addition be positive obligations inherent in effective ‘respect’ for family life. However, the boundaries between the State’s positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation (see Konstatinov v. the Netherlands, no. 16351/03, § 46, 26 April 2007; Tuquabo-Tekle and Others v. the Netherlands, no. 60665/00, § 42, 1 December 2005; Ahmut v. the Netherlands, 28 November 1996, § 63, Reports of Judgments and Decisions 1996VI; Gül v. Switzerland, 1 February 1996, § 63, Reports of Judgments and Decisions 1996I; Powell and Rayner v. the United Kingdom, 21 February 1990, § 41, Series A no. 172).\n\n69.  Since the applicable principles are similar, the Court does not find it necessary to determine whether in the present case the impugned decision, namely the order to expel the applicant with a two-year prohibition on re-entry, constitutes an interference with her exercise of the right to respect for her family life or is to be seen as one involving an allegation of failure on the part of the respondent State to comply with a positive obligation.\n\n70.  The Court further reiterates that Article 8 does not entail a general obligation for a State to respect immigrants’ choice of the country of their residence and to authorise family reunion in its territory. Nevertheless, in a case which concerns family life as well as immigration, the extent of a State’s obligations to admit to its territory relatives of persons residing there will vary according to the particular circumstances of the persons involved and the general interest (see Gül, cited above, § 38; and Rodrigues da Silva and Hoogkamer, cited above, § 39). Factors to be taken into account in this context are the extent to which family life is effectively ruptured, the extent of the ties in the Contracting State, whether there are insurmountable obstacles in the way of the family living in the country of origin of one or more of them and whether there are factors of immigration control (for example, a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion (see Rodrigues da Silva and Hoogkamer, cited above, ibid.; Ajayi and Others v. the United Kingdom (dec.), no. 27663/95, 22 June 1999; Solomon v. the Netherlands (dec.), no. 44328/98, 5 September 2000). Another important consideration is whether family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host State would from the outset be precarious (see Jerry Olajide Sarumi v. the United Kingdom (dec.), no. 43279/98, 26 January 1999; Andrey Sheabashov c. la Lettonie (dec.), no. 50065/99, 22 May 1999). Where this is the case the removal of the non-national family member would be incompatible with Article 8 only in exceptional circumstances (see Abdulaziz, Cabales and Balkandali, cited above, § 68; Mitchell v. the United Kingdom (dec.), no. 40447/98, 24 November 1998, and Ajayi and Others, cited above; Rodrigues da Silva and Hoogkamer, cited above, ibid.).”\n\n90.  In applying the above principles to the present case, the Court notes in the first place that the impugned expulsion and five-year prohibition on re-entry had been imposed on the first applicant in view of the gravity of his violations of the Immigration Act. The Court sees no reason to question the assessment of the national immigration authorities and courts as to the aggravated character of the first applicant’s administrative offences under the Act. Moreover, as already held on previous occasions, the possibility for the authorities to react with expulsion would constitute an important means of general deterrence against gross or repeated violations of the Immigration Act (see Nunez, cited above, § 71, and Darren Omoregie and Others v. Norway, no. 265/07, § 67, 31 July 2008; see also Kaya v. the Netherlands (dec.) no 44947/98, 6 November 2001). A scheme of implementation of national immigration law which, as here, is based on administrative sanctions in the form of expulsion does not as such raise an issue of failure to comply with Article 8 of the Convention (see Nunez and Darren Omoregie and Others, cited above, ibidem). In the Court’s view, the public interest in favour of ordering the first applicant’s expulsion weighed heavily in the balance when assessing the issue of proportionality under Article 8 of the Convention (see Nunez, cited above, § 73).\n\n91.  Moreover, when the first applicant initially settled in Norway in the autumn of 1999, he had no other links to the country than the second applicant who had invited him and with whom he started cohabiting soon after his arrival. Whilst aware that his application for an EEA residence permit in 1999 had been granted on the basis of misleading information that he had provided about his identity and country of origin, he had a child with the second applicant in September 2001 and they got married in February 2005. At no stage from when he entered Norway in the autumn of 1999 until being put on notice on 12 October 2005 could he reasonably have entertained any expectation of being able to remain in the country.\n\n92.  Furthermore, the first applicant had grown up in Ghana, where his family lived, and had arrived in Norway at an adult age. His links to Norway could not be said to outweigh those of his home country and had in any event been formed through unlawful residence and without any legitimate expectation of being able to remain in the country.\n\n93.  Like the first applicant, the second applicant had grown up in Ghana. There she had lived until the age of seventeen when she was reunited with her father and siblings in Norway. Although she had become a Norwegian citizen and had family ties and employment links to Norway and probably would experience some difficulties in resettling in Ghana, there does not seem to be any particular obstacle preventing her from accompanying the first applicant to their country of origin. The Court has also taken note of her claim that, although aware that the first applicant originally had a Ghanaian background and had obtained a Ghanaian passport in connection with their marriage in Ghana on 11 February 2005, she should only have become aware of his true identity in this context. However, the abovementioned factors cannot in the Court’s view outweigh the public interest in sanctioning the first applicant’s aggravated offences against the immigration rules with the impugned measure.\n\n94.  As to the third applicant, the Court notes that she is a Norwegian national who since birth has spent her entire life in Norway, is fully integrated into Norwegian society and, according to the material submitted to the Court, speaks Norwegian with her parents at home. In comparison, her direct links to Ghana are very limited, having visited the country three times (see paragraph 44 above) and having little knowledge of the languages practiced there.\n\n95.  Furthermore, as a result of the first applicant no longer holding a work permit and staying full-time at home and of the second applicant’s being particularly occupied by her work, the first applicant assumes an important role in the third applicant’s daily care and up-bringing. He is the parent who follows up her home-work and parental contacts with her school and who facilitates her participation in sport activities. She is also at an age, ten years, when this kind of support would be valuable and she is strongly attached to her father as she is to her mother.\n\n96.  It would most probably be difficult for her to adapt to life in Ghana, were she and her mother to accompany the father to Ghana, and to readapt to Norwegian life later.\n\n97.  Against this background, the Court shares the High Court’s view that the implementation of the expulsion order would not be beneficial to her.\n\n98.  However, the Court sees no reason to call into doubt the High Court’s findings to the effect that, both parents having been born and brought up in Ghana and having visited the country three times with their daughter, there were no insurmountable obstacles in the way of the applicants settling together in Ghana or, at the least, to maintaining regular contacts. As to the allegation that the third applicant’s rashes had been aggravated by heat during her previous stays in Ghana, the High Court majority found that this had not been sufficiently documented and could not be relied upon. The minority agreed that the evidence submitted in support of this contention had been weak and observed that the information appeared to have originated from the first and the second applicants. In the proceedings before the Court, the applicants submitted no further evidence in support of this argument or placed emphasis on it.\n\n99.  As also observed by the High Court, it does not emerge that the third applicant had any special care needs or that her mother would be unable to provide satisfactory care on her own.\n\n100.  Moreover, the Court considers that there are certain fundamental differences between the present case and that of Nunez where it found that the impugned expulsion of an applicant mother would give rise to a violation of Article 8 of the Convention. In reaching this finding, the Court attached decisive weight to the exceptional circumstances pertaining to the applicant’s children in that case, which were recapitulated in the following terms in its judgment (cited above, § 84):\n\n“Having regard to all of the above considerations, notably the children’s long lasting and close bonds to their mother, the decision in the custody proceedings [to move the children to the father], the disruption and stress that the children had already experienced and the long period that elapsed before the immigration authorities took their decision to order the applicant’s expulsion with a re-entry ban, the Court is not convinced in the concrete and exceptional circumstances of the case that sufficient weight was attached to the best interests of the children for the purposes of Article 8 of the Convention.”\n\n101.  Unlike what had been the situation of the children of Mrs Nunez, the third applicant had not been made vulnerable by previous disruptions and distress in her care situation (compare Nunez, cited above, §§ 79 to 81).\n\n102.  Also, the duration of the immigration authorities’ processing of the matter was not so long as to give reason to question whether the impugned measure fulfilled the interests of swiftness and efficiency of immigration control that was the intended purpose of such administrative measures (compare Nunez, cited above, § 82). On the contrary, in October 2005, only a few months after the discovery of the first applicant’s fraud in July 2005, he was put on notice that he might be expelled from Norway. In May 2006 the Directorate ordered his expulsion and prohibition on re-entry and gave him until 24 July 2006 to leave the country.\n\n103.  There being no exceptional circumstances at issue in the present case, the Court is satisfied that sufficient weight was attached to the best interests of the child in ordering the first applicant’s expulsion.\n\n104.  The above considerations are not altered by the duration of the prohibition on re-entry – five years. In this connection, the Court reiterates that in a comparable case, Darren Omoregie (cited above, §§ 63-68), it found no violation of Article 8 of the Convention with respect to an expulsion order with a re-entry ban of the same duration imposed on the applicant father in that case in reaction to offences against the immigration rules involving unlawful stay and work in the country. The offences committed by the first applicant in the present case, obtaining a residence permit on the basis of incorrect and misleading information about his identity and nationality supported by a forged passport, were of a more serious nature. In the Court’s view, it is clear that the corresponding public interest in the administrative sanction imposed on him cannot have been less than that which was at issue in the afore-mentioned case.\n\n105.  In light of the above, the Court does not find that the national authorities of the respondent State acted arbitrarily or otherwise transgressed the margin of appreciation which should be accorded to it in this area when seeking to strike a fair balance between its public interest in ensuring effective immigration control, on the one hand, and the applicants’ need that the first applicant be able to remain in Norway, on the other hand.\n\nAccordingly, the Court concludes that the first applicant’s expulsion from Norway with a five-year re-entry ban would not entail a violation of Article 8 of the Convention.\n\nII.  RULE 39 OF THE RULES OF COURT\n\n106.  The Court recalls that, in accordance with Article 44 § 2 of the Convention, the present judgment will not become final until (a) the parties declare that they will not request that the case be referred to the Grand Chamber; or (b) three months after the date of the judgment, if reference of the case to the Grand Chamber has not been requested; or (c) the Panel of the Grand Chamber rejects any request to refer under Article 43 of the Convention.\n\n107.  It considers that the indication made to the Government under Rule 39 of the Rules of Court (see paragraph 4 above) must continue in force until the present judgment becomes final or until the Court takes a further decision in this connection (see operative part).\n\nFOR THESE REASONS, THE COURT\n\n1.  Declares the application admissible unanimously;\n\n2.  Holds by five votes to two that the first applicant’s expulsion from Norway with a five-year re-entry ban would not entail a violation of Article 8 of the Convention;\n\n3.  Decides to continue to indicate to the Government under Rule 39 of the Rules of Court that it is desirable in the interests of the proper conduct of the proceedings not to expel the first applicant until such time as the present judgment becomes final or until further order.\n\nDone in English, and notified in writing on 14 February 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.\n\nIn accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the dissenting opinion of Judge Sicilianos, joined by Judge Lazarova Trajkovska, is annexed to this judgment.\n\n1.  We have been unable to join the majority in this case, especially in view of the Nunez v. Norway judgment (application no. 55597/09, 28 June 2011) and the necessity of a coherent interpretation and implementation of the principle of the best interests of the child.\n\n2.  As it is well-known, such principle is embodied in Article 3 of the United Nations Convention on the Rights of the Child (see generally P. Alston (ed.), The Best Interests of the Child: Reconciling Culture and Human Rights (1994); L. LaFave, “Origins of the Evolution of the ‘Best Interests of the Child’ Standard”, 34 South Dakota Law Review (1989), pp. 459 ff.; S. Detrick, A Commentary on the United Nations Convention on the Rights of the Child (1999), pp. 85 ff.; P. Naskou-Perraki, K. Chrysogonos, X. Anthopoulos (ed.), The International Convention on the Rights of the Child and the Domestic Legal Order (2002), pp. 45 ff. (in Greek)). According to paragraph 1 of this provision: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities and legislative bodies, the best interests of the child shall be a primary consideration”. The reference to “private social welfare institutions” suggests that the principle of the best interests of the child is relevant in relation to actions of private bodies. However, the emphasis of the above quoted provision is on public institutions, including courts of law and administrative authorities. To put it with a well-known commentator, “the principle of the best interests of the child is primarily concerned with acts of public officials” (S. Detrick, op. cit., p. 90). As underlined by the Committee on the Rights of the Child: “The principle requires active measures throughout Government, parliament and the judiciary. Every legislative, administrative and judicial body or institution is required to apply the best interests principle by systematically considering how children’s rights and interests are or will be affected by their decisions and actions - by, for example, a proposed or existing law or policy or administrative action or court decision, including those which are not directly concerned with children, but indirectly affect children” (General Comment No. 5 (2003), “General Measures of Implementation of the Convention on the Rights of the Child”, CRC/GC/2003/5).\n\n3.  The notion of “best interests” is broad enough to encompass different aspects of the well-being of a child. As observed by the UN High Commissioner for Refugees: “Such well-being is determined by a variety of individual circumstances, such as the age, the level of maturity of the child, the presence or absence of parents, the child’s environment and experiences” (UNHCR, Guidelines on Determining the Best Interests of the Child, May 2008). Furthermore, the principle of the best interests of the child is of particular significance because it provides a general standard to be applied “in all actions concerning children”. Such principle is relevant in respect to most if not all substantive provisions of the Convention on the Rights of the Child (R. Hodgkin, P. Newell, Implementation Handbook for the Convention on the rights of the child, UNICEF (1998), p. 40). It constitutes a general principle of interpretation of this Convention as a whole. It is true that Article 3, § 1 quoted above uses the expression “a primary consideration” instead of “the primary consideration”. As it results from the travaux préparatoires, the aim of the Convention’s drafters implicit in choosing the word “a” was to ensure a certain degree of flexibility, at least in extreme cases, to permit the interests of people other than the child to prevail (S. Detrick, op. cit., p. 91). However, the formulation adopted seems to impose a burden of proof on those seeking to put the interests of the child aside to demonstrate that, under the circumstances, other feasible and acceptable alternatives do not exist (P. Alston, “The Best Interests Principle: Towards a Reconciliation of Culture and Human Rights”, in P. Alston (ed.), op. cit., pp. 1-25, at 13).\n\n4.  The principle of the best interests of the child appears either explicitly or implicitly in a number of other international and European instruments (cf. for instance Principles 2 and 7 of the 1959 UN Declaration of the Rights of the Child; Articles 5 (b) and 16 (1) (d) of the 1979 UN Convention on the Elimination of All Forms of Discrimination Against Women; preamble, § 1 of the Hague Convention on the Civil Aspects of International Child Abduction of 25 November 1980; Articles 4 (1), 6, 9, 14 and 19 of the European Convention on the Adoption of Children (revised), 27 November 2008; Article 24 of the EU Charter on Fundamental Rights), as well as in national legislations (see for example P. Naskou-Perraki, K. Chrysogonos, X. Anthopoulos (ed.), op. cit., pp. 48 ff.; cf. also the judgments by national courts cited in Neulinger and Shuruk v. Switzerland, no. 41615/07 (GC), §§ 61-64, 6 July 2010). It is also to be noted that in some such cases the relevant provisions go beyond the aforementioned formulation of the Convention on the Rights of the Child (“a primary consideration”) by stipulating that “the best interests of the child shall always be the paramount consideration” (Article 14, § 1 of the European Convention on the Adoption of Children, italics added; cf. also Article 5 b) of the 1979 UN Convention on the Elimination of All Forms of Discrimination Against Women). Given its broad acceptance, it seems that the principle of the best interests of the child has become a general principle of (international) law.\n\n5.  This approach is corroborated by the repeated references to such principle in the case law of the Court, especially in relation to Article 8 of the Convention. To resume this important jurisprudence goes far beyond the object and purpose of the present opinion. Suffice it to recall in this respect the terms of the Grand Chamber, according to which: “The Court notes that there is currently a broad consensus – including in international law – in support of the idea that in all decisions concerning children, their best interests must be paramount” (Neulinger and Shuruk v. Switzerland, cited above, § 135). In this context, the Court has repeatedly underlined that: “The child’s interest (...) dictates that the child’s ties with its family must be maintained, except in cases where the family has proved particularly unfit. It follows that family ties must only be severed in very exceptional circumstances and that everything must be done to preserve personal relations...” (ibid., § 136; Gnahoré v. France, no. 40031/98, § 59, ECHR 2000-IX). It is also important to note that, although the landmark case of Neulinger and Shuruk concerned the abduction of a child, the Grand Chamber took the view that guidance on this point may be found mutatis mutandis in the case-law of the Court on the expulsion of aliens (see also, for instance, Emre v. Switzerland, no. 42034/04, § 68, 22 May 2008), “according to which, in order to assess the proportionality of an expulsion measure concerning a child who has settled in the host country, it is necessary to take into account the child’s best interests and well-being” (Neulinger and Shuruk, cited above, § 146. See also Üner v. the Netherlands [GC], no. 46410/99, § 57, ECHR 2006-XII). Finally, the Court has stressed that “the passage of time can have irremediable consequences for relations between the child and the parent with whom he or she does not live” (Macready v. the Czech Republic, nos 4824/06 and 15512/08, 22 April 2010; Maumousseau and Washington v. France, no. 39388/05, § 83, ECHR 2007-XIII).\n\n6.  The application of the principle of the best interests of the child in the present case raises a number of questions. The Norwegian authorities themselves have been somehow divided over the issue. It is recalled that in its judgment of 28 March 2008, the Oslo City Court quashed the Immigration Appeals Board’s decision to expel the first applicant, noting that to deprive the third applicant of her relationship with her father would be a serious measure and could have disturbing effects on the child’s development. According to the City Court, such a measure would be disproportionate vis-à-vis the first applicant’s daughter (supra, § 28 of the judgment). In the same vein, the minority of the High Court was of the view that the imposition of a five-year re-entry ban would be too severe and disproportionate a measure and that a two-year ban would have been preferable. The minority took especially into account the age of the third applicant and her close relationship with her father, noting that since birth the first applicant had taken special care of his daughter, following her up in her recreational activities and through extensive contacts with her school. In relation to the first applicant’s offences under the Immigration Act, the minority of the High Court rightly observed that they had been comparable to those committed by the applicant in the Nunez case, though less aggravated bearing in mind that he had not committed other offenses in Norway and had not defied any prohibition of re-entry (supra, §§ 46-48).\n\n7.  Furthermore, it is striking that the majority of the High Court explicitly acknowledged that the consequences of the first applicant’s expulsion would “clearly not” be in the best interests of the daughter, who was born and had grown up in Norway and was very attached to her father (supra, § 38). However, the High Court concluded that the interests of the child should not be a decisive consideration in assessing whether an expulsion measure should be implemented and that the five-year ban was not a disproportionate measure (supra, §§ 40-41).\n\n8. In view of the above elements, we have serious difficulties to follow the majority when stating that: “the Court is satisfied that sufficient weight has been attached to the best interests of the child in ordering the first applicant’s expulsion” (supra, § 103). Admit that the impugned measure was “clearly not” in – i.e. against - the best interests of the third applicant, while at the same time affirming that such interests have been duly taken into account seems to pay lip service to a guiding human rights principle. All the more so that, taking into account the normal processing time for a request for family reunification, the daughter – who is today eleven years old – would be about eighteen years before the family could resume cohabitation in Norway. As rightly observed by the minority of the High Court, the years in between would be important years (supra, § 48). To put it otherwise, the expulsion order, combined with the five-year re-entry ban could entail a serious disruption of the third applicant’s adolescence.\n\n9.  This result seems to us to be in contradiction to the Court’s judgment in the Nunez case, cited above. Contrary to the opinion of the majority, the present case is very similar to Nunez. In this last case, the Court noted the “aggravated character” of the breaches under the Immigration Act, as well as other criminal offences by the applicant (Nunez, cited above, §§ 67, 72). For another comparable case under Article 8, involving serious breaches of the relevant immigration legislation, as well as other criminal offences (see Konstatinov v. the Netherlands, no. 16351/03, §§ 9-12, 49 ff., 26 April 2007). As observed by the minority of the High Court, the (administrative) offences of the first applicant in the present case were “less aggravated” than those of the applicant in the Nunez case. Furthermore, in the Nunez case, the Court took note of the rationale of the Norwegian legislation in authorizing the imposition of expulsion with a re-entry ban as an administrative sanction (ibid., § 71). Such possibility would indeed constitute an important means of general deterrence against gross or repeated violations of the Immigration Act. Under those circumstances, the Court considered that “the public interest in favour of ordering the applicant’s expulsion weighted heavily in the balance when assessing the issue of proportionality under Article 8 of the Convention” (ibid., § 73). However, taking mainly into account the age of the applicant’s children and their close bonds to their mother, the Court concluded that the expulsion order with a two-year re-entry ban – “a very long period for children of the ages in question” (nine and eight years old respectively) – would entail a violation of Article 8 of the Convention (ibid., §§ 81-85).\n\n10.  Those considerations also apply in the present case. All the more so that in Nunez the re-entry ban was much shorter (two years instead of five). Furthermore, since May 2007 and until the adoption of the Nunez judgment in June 2011, i.e. for more than four years, the applicant did not have the daily care of her children and the relevant parental responsibilities, which had been granted exclusively to the father following the separation of the couple. In other words, the bonds of the applicant with her children in the Nunez case were in fact (and in law) much less close than those of the first applicant with his daughter in the present case. To put it otherwise: if there is indeed a difference between Nunez and the present case, this lies in the fact that the latter is even more striking than the former. Consequently, the solution in Nunez should have been applied in the present case a fortiori.\n\n11.  In conclusion, the decision to expel the first applicant from Norway with a five-year re-entry ban would entail, in our view, a violation of Article 8 of the Convention in respect of his daughter, the third applicant.\n\n11.  In conclusion, the decision to expel the first applicant from Norway with a five-year re-entry ban would entail, in our view, a violation of Article 8 of the Convention in respect of his daughter, the third applicant.","title":""}
{"_id":"passage_874","text":"PROCEDURE\n\n1. The case was referred to the Court by the European Commission of Human Rights (\"the Commission\"), and then by the Government of the  (\"the Government\"), on 8 March and 13 May 1991, within the three-month period laid down by Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the Convention. It originated in an application (no. 12850/87) against the  lodged with the Commission under Article 25 (art. 25) by a French national, Mr Félix Tomasi, on 10 March 1987.\n\nThe Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby  recognised the compulsory jurisdiction of the Court (Article 46) (art. 46); the Government’s application referred to Article 48 (art. 48). The object of the request and of the application was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 3, 5 para. 3 and 6 para. 1 (art. 3, art. 5-3, art. 6-1).\n\n2. In response to the enquiry made in accordance with Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that he wished to take part in the proceedings and designated the lawyers who would represent him (Rule 30).\n\n3. The Chamber to be constituted included ex officio Mr L.-E. Pettiti, the elected judge of French nationality (Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21 para. 3 (b)). On 22 March 1991, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mrs D. Bindschedler-Robert, Mr F. Matscher, Mr J. Pinheiro Farinha, Sir Vincent Evans, Mr C. Russo, Mr R. Bernhardt and Mr J.M. Morenilla (Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43). Subsequently, Mr F. Gölcüklü, Mr A. Spielmann and Mr N. Valticos, substitute judges, replaced Mrs Bindschedler-Robert, Mr Pinheiro Farinha and Sir Vincent Evans, who had resigned and whose successors at the Court had taken up their duties before the hearing (Rules 2 para. 3 and 22 para. 1).\n\n4. Mr Ryssdal assumed the office of President of the Chamber (Rule 21 para. 5) and, through the Registrar, consulted the Agent of the Government, the Delegate of the Commission and the applicant’s lawyers on the organisation of the proceedure (Rules 37 para. 1 and 38). Pursuant to the order made in consequence, the Government, the applicant and the Delegate of the Commission lodged their memorials on 5 November, 22 November and 13 December 1991, respectively.\n\nOn 9 July 1991 the Commission produced the documents in the proceedings before it, as the Registrar had requested it to do on the instructions of the President.\n\nOn 20 February 1992 one of the applicant’s lawyers provided various documents at the request of the Registrar or with the Court’s leave, as the case may be (Rule 37 para. 1 in fine).\n\n5. In accordance with the President’s decision, the hearing took place in public in the , , on 25 February 1992. The Court had held a preparatory meeting beforehand.\n\nThere appeared before the Court:\n\n- for the Government\n\n- for the Commission\n\n- for the applicant\n\nThe Court heard addresses by Mr Puissochet for the Government, by Mr Schermers for the Commission and by Mr Leclerc and Mr Stagnara for the applicant, as well as their answers to its questions. The applicant also addressed the Court.\n\nOn the same day the Government replied in writing to the questions put by the Court.\n\nOn 7 April one of the applicant’s lawyers sent to the Registrar a letter concerning these questions, together with a document, with the Court’s leave (Rule 37 para. 1 in fine).\n\n6. At the deliberations on 25 June 1992 Mr J. De Meyer, substitute judge, who had attended the hearing, replaced Mr Valticos, who was prevented from taking part in the further consideration of the case (Rules 22 para. 1 and 24 para. 1).\n\nAS TO THE FACTS\n\n7. Mr Félix Tomasi, a French national born in 1952, resides at  (Haute-Corse). He is both a shopkeeper and a salaried accountant. At the time of his arrest, he was an active member of a Corsican political organisation, which put up candidates for the local elections and of which he was the treasurer.\n\n8. On 23 March 1983 the police apprehended him in his shop and placed him in police custody until 25 March at  central police station.\n\nThey suspected him of having taken part in an attack at Sorbo-Ocagnano (Haute-Corse) in the evening of 11 February 1982 against the rest centre of the Foreign Legion, which was unoccupied at that time of the year. Senior Corporal Rossi and Private Steinte, who, unarmed, were responsible for maintaining and guarding the centre, had been shot at and wounded, the former fatally and the latter very severely.\n\nThe attack had been carried out by a commando of several persons wearing balaclava helmets to conceal their features. The following day the \"ex-FLNC\" (the Corsican National Liberation Front), a movement seeking independence which had been dissolved by decree, had claimed responsibility for the attack and for twenty-four other bomb attacks which had been perpetrated the same night.\n\n9. On 12 February 1982 the  tribunal de grande instance had opened an investigation relating to charges of murder, attempted murder and the carrying of category 1 and category 4 weapons and ammunition. The same day the investigating judge had issued instructions for evidence to be taken on commission (commission rogatoire) to the Regional Criminal Investigation Department (SRPJ) of .\n\nI. THE CRIMINAL PROCEEDINGS INSTITUTED AGAINST THE APPLICANT\n\nA. The investigation proceedings (25 March 1983 - 27 May 1986)\n\n1. The proceedings conducted in  (25 March 1983 - 22 May 1985)\n\n(a) The investigative measures\n\n10. On 25 March 1983 Mr Pancrazi, investigating judge at , charged Mr Tomasi and remanded him in custody following the latter’s first appearance before him; he took the same measures in respect of a certain Mr Pieri. On 8 April he questioned Mr Tomasi on his alleged involvement in the offences.\n\n11. He took evidence from witnesses on 28, 29 and 31 March, 14 and 29 April, 19 and 30 May and 2 June 1983.\n\nOn 19 May he questioned Mr Pieri and on 26 May another co-accused, Mr Moracchini, who had been held on remand since 24 March 1983. He organised confrontations between them on 30 and 31 May, and then on 1 June.\n\nIn addition he issued formal instructions for evidence to be taken on 26 May and 27 October 1983.\n\n12. The recapitulatory examination of Mr Tomasi and Mr Pieri was conducted on 18 October 1983, and that of Mr Moracchini on 21 November.\n\nOn 26 October 1983 the investigating judge visited the scene of the crime.\n\n13. The case was transferred to another investigating judge, Mr Huber, with effect from 2 January 1984.\n\nMr Pieri escaped from prison on 22 January 1984; he was recaptured on 1 July 1987.\n\nBetween 4 May 1984 and 10 January 1985, Mr Huber issued several orders for the inclusion of documents in the file and for their transmission to the prosecuting authorities.\n\nOn 24 January 1985 he rejected a request by the applicant for documents to be added to the file.\n\n(b) The applications for release\n\n14. Mr Tomasi submitted eleven applications for release.\n\n15. The investigating judge rejected them by orders of 3 May, 14 June and 24 October 1983, 2 January 1984, 24 January, 20 March, 5 April, 18 April, 24 April, 3 May and 7 May 1985. On 6 June 1984 he issued instructions that the applicant be interviewed in Marseille on the conditions of his detention on remand. That interview took place on 18 June.\n\n16. The applicant challenged the orders of 14 June 1983, 2 January 1984, 24 January and 20 March 1985, but the indictments division (chambre d’accusation) of the Bastia Court of Appeal upheld them on 7 July 1983, 26 June 1984, and 20 February and 17 April 1985.\n\nIn its judgment of 20 February 1985 it stated that it was necessary to continue the detention in order to avoid pressure being brought to bear on the witnesses, to prevent unlawful collusion between the accomplices, to protect public order (ordre public) from the prejudice caused by the offence and to ensure that Mr Tomasi remained at the disposal of the judicial authorities.\n\n(c) The request for a transfer of jurisdiction\n\n17. On 10 January 1985 the  public prosecutor applied to the principal public prosecutor of that town for jurisdiction to be transferred on the ground of the climate of intimidation which reigned in the island.\n\n18. On 25 March the principal public prosecutor at the Court of Cassation referred the matter to the Court of Cassation (criminal division), which gave its decision on 22 May; it transferred the case to the Bordeaux investigating judge \"in the interests of the proper administration of justice\" (Article 662 of the Code of Criminal Procedure).\n\n2. The proceedings conducted in  (22 May 1985 - 27 May 1986)\n\n(a) The investigative measures\n\n19. On 5 September 1985 Mr Nicod, investigating judge at , interviewed Mr Tomasi for the first and last time.\n\nHe questioned Mr Moracchini on 1 October 1985 and 13 January 1986, and Mr Satti - another co-accused - on 15 November 1985. In addition, he organised a confrontation between them on 13 December 1985.\n\n20. On 14 January 1986 the investigating judge made an order transmitting the documents to the prosecuting authorities.\n\nOn 14 February 1986 the  public prosecutor decided to forward the case-file to the principal public prosecutor’s office.\n\nFrom mid-March to mid-April 1986, the investigating judge added various documents to the file. On 17 April he made a further order transmitting the case-file to the prosecuting authorities, endorsed by the  public prosecutor’s office.\n\nThe case-file was forwarded to the principal public prosecutor’s office by a decision dated 22 April 1986.\n\n(b) The applications for release\n\n21. Mr Tomasi submitted seven applications for his release.\n\nThe investigating judge dismissed his applications on 31 May, 7 June, 29 June, 13 August, 10 September and 8 October 1985 and 14 January 1986.\n\n22. On appeals against various of the investigating judge’s orders, the indictments division of the Bordeaux Court of Appeal upheld them by decisions of 3 September and 29 October 1985.\n\nThe first such decision referred to the particular gravity of the offences, the existence of \"precise and convincing evidence\", the risk of pressure being brought to bear and of unlawful collusion and the need to maintain public order and to ensure that the applicant appeared for trial.\n\nThe second decision contained the following reasoning:\n\n\"It is plain that the offences of which the appellant is accused are particularly serious ones and profoundly prejudiced public order; without disregarding the pertinent observations of the accused’s counsel concerning the length of the proceedings, it appears nevertheless that, as the investigating judge decided, Tomasi’s continued detention is necessary to protect public order from the prejudice caused by the offences in question and also to avoid pressure being brought to bear or unlawful collusion and to ensure that the accused appears for trial;\"\n\n23. The two decisions gave rise to appeals on points of law by the applicant, which were dismissed by the criminal division of the Court of Cassation on 3 December 1985 and 22 January 1986.\n\nThe latter decision was based on the following reasons:\n\n\"In the light of the available evidence the Court of Cassation is satisfied that the indictments division ordered the continuation of the applicant’s detention by a decision which set out the reasons on which it was based with reference to the particular circumstances and which was made under the conditions, and for cases, specified in Article 144 of the Code of Criminal Procedure; it may also be seen from the grounds of the decision that there is in this case, as is required under Article 5 para. 1 (c) (art. 5-1-c) of the Convention, ... reasonable suspicion that the accused has committed an offence; it follows moreover that, having regard to the specific circumstances of the case and the proceedings, the duration of the detention appears reasonable;\"\n\nB. The trial proceedings (27 May 1986 - 22 October 1988)\n\n1. Committal for trial\n\n(a) The first committal\n\n24. On 27 May 1986 the indictments division of the Bordeaux Court of Appeal indicted Mr Tomasi and Mr Pieri for murder with premeditation, attempted murder with premeditation and carrying category 1 and category 4 weapons, together with the corresponding ammunition; it committed them - as well as Mr Moracchini and Mr Satti - for trial at the Gironde assize court.\n\n25. On 13 September 1986 the criminal division of the Court of Cassation allowed the appeal lodged by the applicant on 27 June 1986 on the ground that defence counsel had not been allowed to speak last at the hearing on 27 May.\n\nIt remitted the case to the indictments division of the Poitiers Court of Appeal, instructing that court to commit the accused for trial at the Gironde assize court if there were grounds for indicting him (Article 611 of the Code of Criminal Procedure).\n\n(b) The second committal\n\n26. On 9 December 1986 the  indictments division committed Mr Tomasi for trial at the Gironde assize court.\n\nThis decision did not give rise to an appeal on points of law.\n\n(c) The third committal\n\n27. On 3 February 1987 the indictments division of the Bordeaux Court of Appeal ruled that it lacked jurisdiction to commit the applicant - but not his three co-accused - for trial at the specially constituted Gironde assize court, in other words the assize court sitting without a jury. The principal public prosecutor’s office had requested it to apply the provisions of Law no. 86-1020 of 9 September 1986, according to which persons accused of acts of terrorism must be tried before such a judicial body.\n\n28. On 7 May 1987 the criminal division of the Court of Cassation dismissed the appeal on this issue filed by the principal public prosecutor at the Bordeaux Court of Appeal.\n\n29. On 16 June 1987 the  indictments division allowed an application lodged on 20 May 1987 by the prosecuting authority and committed the applicant for trial at the specially constituted Gironde assize court. It thereby acknowledged that the offences of which Mr Tomasi was accused were \"related to an individual or collective undertaking aimed at seriously prejudicing public order by intimidation or terror\" (Article 706-16 of the Code of Criminal Procedure).\n\n30. On 24 September 1987 the criminal division of the Court of Cassation dismissed a further appeal by the applicant.\n\n2. The applications for release\n\n(a) The first application\n\n31. By a decision of 27 May 1986 (see paragraph 24 above), the  indictments division dismissed an application for release which Mr Tomasi had submitted on 6 May. It gave the following grounds:\n\n\"The detention on remand, which started on 25 March 1983, has certainly lasted a very long time. However, the explanation for this lies in the systematic attitude adopted by the accused and the considerable difficulties encountered by the investigating judge. The period of detention, although long, does not in itself constitute a violation of the European Convention on Human Rights. On the contrary, in this particular case continued detention appears to be essential, given the exceptional gravity of the offences and the fact that Tomasi would not hesitate to abscond if he were released.\"\n\n32. The applicant filed an appeal on points of law, but the criminal division of the Court of Cassation rejected the submission based on the violation of Article 5 para. 3 (art. 5-3) of the Convention. On this issue its judgment of 13 September 1986 stated as follows:\n\n\"In the light of the available evidence the Court of Cassation is satisfied that the applicant’s continued detention was properly ordered in accordance with the conditions laid down in Article 148-1 of the [Code of Criminal Procedure], by a decision setting out specific reasons, having regard to the features of the case as is required under Article 145 of that Code and for cases exhaustively listed in Article 144;\n\nIn addition the indictments division discussed the complexity and the length of the proceedings, carrying out an unfettered appraisal of the facts, which was sufficient and free of contradictions and from which it concluded that the length of the detention on remand had not exceeded a reasonable time [; it follows] that the submission must fail ...\"\n\n(b) The second application\n\n33. Mr Tomasi submitted a new application for release on 19 January 1987.\n\nBy a decision of 3 February 1987 (see paragraph 27 above) the  indictments division found that it lacked jurisdiction as the committal had been decided by the  indictments division.\n\n(c) The third application\n\n34. On 17 April 1987 the applicant lodged a further application for his release.\n\nOn 28 April the  indictments division dismissed his application on the ground that the committal had been based on precise and detailed reasons, the offences were extremely serious ones and the detention was necessary to protect public order from the prejudice to which they had given rise.\n\n(d) The fourth application\n\n35. The applicant lodged a further application for release on 22 May 1987 with the indictments division of the Poitiers Court of Appeal, which dismissed it on 2 June for the following reasons:\n\n\"A campaign of intimidation against the witnesses, policemen and judges has been waged in the course of the investigation;\n\nA mere recital ... of the offences which led to Tomasi being charged is sufficient, besides the fact that the said offences seriously prejudiced public order, to justify the accused’s continued detention; there is a grave danger that if he were to be released he would enter into contact with members of the FLNC, who would no doubt be only too pleased to help him evade trial; it does not appear that his continued detention is, in the circumstances, such as to infringe the provisions of the Convention ...\"\n\n(e) The fifth application\n\n36. On 6 November 1987 the applicant once again applied to the  indictments division for his release.\n\nOn 13 November his application was dismissed on account of the extreme gravity of the alleged offences and the need to protect public order from the prejudice created thereby.\n\n37. He then filed an appeal on points of law, which the criminal division of the Court of Cassation dismissed on 2 March 1988.\n\n3. The trial\n\n38. On 22 January 1988 the President of the Bordeaux Court of Appeal had directed that the session of the assize court was to open on 16 May 1988.\n\nOn 28 April the President decided to postpone the opening of the session until 17 October 1988, following an exchange of correspondence in March and April between the principal public prosecutor’s office and counsel for Mr Tomasi and Mr Pieri.\n\nOn 15 July and 23 September he altered the composition of the trial court.\n\n39. The trial took place from 17 to 22 October 1988. On that last date, the applicant was acquitted and immediately released. His three co-accused were given suspended sentences of one year’s imprisonment for carrying or possession - as the case may be - of a category 1 weapon.\n\nC. The compensation proceedings (18 April 1989 - 8 November 1991)\n\n1. The application to the Compensation Board\n\n40. On 18 April 1989 Mr Tomasi lodged a claim with the Compensation Board at the Court of Cassation under Article 149 of the Code of Criminal Procedure. According to this provision, \"... compensation may be accorded to a person who has been held in detention on remand during proceedings terminated by a decision finding that he has no case to answer (non-lieu) or acquitting him, when that decision has become final, where such detention has caused him damage of a clearly exceptional and particularly serious nature\".\n\n2. The submissions of the principal public prosecutor at the Court of Cassation\n\n41. On 5 June 1991 the principal public prosecutor (procureur général) at the Court of Cassation made the following submissions to the Compensation Board:\n\n\"...\n\nIN THE MATTER OF THE DETENTION\n\nDuring his detention, Tomasi lodged twenty applications for release, eleven applications to the  investigating judge and nine to the investigating judge and the indictments division in .\n\nSix judgments confirming decisions were given, four by the  indictments division and two by that of .\n\nFinally, two decisions of the criminal division of the Court of Cassation, of 17 October and 2 March 1988, dismissed Tomasi’s appeals from the two decisions of the  indictments division.\n\nIn their decisions rejecting the applications for release the investigating judges and the indictments division gave their reasons as being the exceptional gravity of the offences, the prejudice caused to public order, the need to ensure that the accused remained at the disposal of the judicial authorities and the risk of pressure being brought to bear on the witnesses.\n\nDISCUSSION\n\n1. The length of the proceedings\n\n. From 12 February 1982, the date on which the investigation was opened, to 25 March 1983, Tomasi was not yet implicated.\n\n. From 25 March 1983, the date on which Tomasi was charged, to 18 October 1983, the date of his recapitulatory examination, the proceedings progressed at a normal pace and there were no delays.\n\n. From November 1983 to May 1984 the proceedings slowed down and consisted of measures which could have been taken previously if the commissions rogatoires or the orders relating to them had been issued earlier.\n\nThus the result of the commission rogatoire concerning the victim’s spectacles was not communicated until March 1984; it had not been issued until 27 October 1983 ..., whereas it could have been right at the beginning of the investigation.\n\nSimilarly the commission rogatoire giving instructions inter alia for an inquiry into the victims and into the Sorbo-Ocagnano camp and for a study and plans to be made of the premises was not issued until 26 May 1983...\n\nThe evidence obtained under that commission rogatoire was produced only in the course of the months of March and April 1984, which undeniably prolonged the proceedings.\n\n. The lack of progress in the proceedings between May 1984 and January 1985 is incomprehensible. Thus nearly three months elapsed between the order of 4 May 1984 transmitting the papers to the prosecuting authority and the additional prosecution submissions of 31 July 1984 calling for a ballistic examination, which had already taken place. Yet it was not until the following 15 November, three and a half months later, that the investigating judge gave his order dismissing that request for an expert examination.\n\n. From January 1985 to May 1985, the time taken for the transmission of documents to the indictments division and then the Court of Cassation and the return of the file to  seems normal.\n\n. On the other hand it was not until 5 September 1985, more than three months after the case had been referred to him, that the  investigating judge carried out his first substantive investigative measure by interviewing Tomasi, after having dismissed the latter’s applications for release on four occasions.\n\nThis lapse of time appears excessive in view of the fact that an investigating judge must give priority to a case concerning a person held in detention on remand; he has a duty to familiarise himself with it and proceed with the investigation as quickly as possible.\n\n. From September 1985 to 14 January 1986 the interrogations and confrontations were continued at the rate of one investigative measure per month. Interviews held at shorter intervals would have made it possible to reduce the duration of the proceedings significantly.\n\n. From January 1986 to May 1986 the time taken to complete the file and transmit it to the assize court appears normal.\n\n. On the other hand, from May 1986 to March/April 1988 there was a delay in the proceedings which can under no circumstances be justified by the appeals filed by the accused in pursuance of their statutory rights.\n\n. Finally, it should be noted that the decision in the course of March and April 1988 to renounce holding the May session and to replace it by a session fixed for 17 October 1988 was taken by mutual agreement between the prosecuting authorities and the defence.\n\nIn conclusion, in view of the significance and the complexity of the case the investigation was bound to last longer than average. However, it could have been considerably shortened without the various delays noted above.\n\n2. The necessity of keeping Tomasi in detention during the proceedings\n\nGiven the nature and the gravity of the offences and the results of the police investigation, Tomasi’s detention was at first justified, up until his recapitulatory examination of 18 October 1983.\n\nMoreover, until that date, Tomasi had not filed an application for release. However, by 18 October 1983 the witnesses had already been interviewed and the confrontations carried out.\n\nThe measures taken after that date, in particular the commissions rogatoires and the expert examinations, did not concern Tomasi directly, except the expert medical examinations ordered following his declarations regarding the conditions of his police custody, which clearly could not justify his continued detention.\n\nIt should moreover be stressed that between 18 October 1983, the date of the recapitulatory record, and 17 October 1988, the date on which the assize court session opened, in other words for five years, Tomasi was questioned only once, on 5 September 1985, and at his request.\n\nThe decisions rejecting his various applications for release were based on the exceptional gravity of the offences, the prejudice caused to public order, the necessity of ensuring that the accused remained at the disposal of the judicial authorities and the risk of pressure being brought to bear on the witnesses.\n\nThe gravity, even of an exceptional nature, of offences may constitute a ground for detention only if there is sufficient evidence against the person held.\n\nIn this case, charges had been preferred against Tomasi, who had always protested his innocence and had been on hunger strike several times, exclusively on the basis of Moracchini’s statements, which were far from being as precise as they were claimed to be throughout the proceedings.\n\nIn fact, according to various documents from the proceedings, and in particular:\n\n- the report of the public prosecutor to the  principal public prosecutor of 11 April 1983 ...,\n\n- the memorandum from the SRPJ of Ajaccio of 8 June 1983 ...,\n\n- the application by the Bastia investigating judge for a transfer of jurisdiction of 10 January 1985 ..., Moracchini stated that Tomasi had suggested that he take part in the `nuit bleue’ (night of terrorist outrages) of 11 to 12 February 1982, and specifically carry out an attack against the Foreign Legion camp of Sorbo-Ocagnano.\n\nYet if all Moracchini’s statements are read carefully it may be seen that although he did state that Tomasi had suggested that he participate in the `nuit bleue’, at no time did he mention an attack against the Foreign Legion camp ...\n\nQuite the contrary, Moracchini always claimed that he had learned of the attack for the first time the day after the events.\n\nThus, for example, in the course of his interrogation at his first appearance before the investigating judge ... Moracchini stated as follows:\n\n‘I was aware that Pieri knew Félix Tomasi. The latter had indeed suggested a few days earlier that I should take part in a `nuit bleue’. I had refused, but at no time did he say what attack I would have been expected to carry out. As for me, I only heard about the legionaries through the newspapers, on the morning of 12 February.’\n\nFurthermore, it should be observed that all the witnesses who confirmed Moracchini’s statements merely reported what he had told them. None of them was a direct witness to the events.\n\nIn addition, it does not seem that the release of Tomasi, who could provide sound guarantees that he would appear for trial and who had no previous convictions, could have represented a risk of pressure being brought to bear on witnesses or on Moracchini, a co-accused who was free.\n\nIn fact, Tomasi, like Pieri and Moracchini, was not remanded in custody until more than a year after the events and Pieri, implicated by the same witnesses as Tomasi, had escaped from prison on 22 January 1984 and remained free for three and a half years until his arrest on 1 July 1987, apparently without any pressure being brought to bear on the witnesses.\n\nFinally, it should be noted that on 10 March 1987 Félix Tomasi lodged an application with the European Commission of Human Rights under Article 25 (art. 25) of the European Convention for the Protection of Human Rights, making the following complaints:\n\n- excessive duration of his detention on remand (violation of Article 5 para. 3 of the Convention) (art. 5-3);\n\n- inhuman and degrading treatment during his police custody (violation of Article 3 of the Convention) (art. 3);\n\n- excessive duration of the investigation proceedings opened following a complaint accompanied by a civil claim (violation of Article 6 para. 1 of the Convention) (art. 6-1).\n\nThis application was the subject of a report by the European Commission of Human Rights adopted on 11 December 1990, in which the Commission declared the application admissible and expressed the opinion by twelve votes to two that there had been, in the case under review, a violation of Article 3 (art. 3) of the Convention, by thirteen votes to one, that there had been a violation of Article 6 para. 1 (art. 6-1) of the Convention and, unanimously, that there had been a violation of Article 5 para. 3 (art. 5-3) of the Convention.\n\nIN CONCLUSION\n\nIn the light of the various considerations set out above, and the particularly distressing conditions of his detention, Félix Tomasi, who spent five years and nearly seven months in detention and in respect of whom the investigation produced only weak and insufficient evidence, suffered considerable damage on this account.\n\nFor all these reasons I call upon the Board to award appropriate compensation.\"\n\n3. The decision of the Compensation Board\n\n42. By a decision of 8 November 1991, which contained no statement of the reasons on which it was based, the Compensation Board awarded the applicant 300,000 French francs.\n\nII. THE CRIMINAL PROCEEDINGS INSTITUTED BY THE APPLICANT\n\nA. The origin and the filing of the complaint\n\n43. Mr Tomasi was apprehended on 23 March 1983 at 9 a.m. (see paragraph 8 above). He remained in police custody until 9 a.m. on 25 March, in other words forty-eight hours, Judge Pancrazi having granted the police an extension of twenty-four hours at 6 a.m. on 24 March.\n\n44. During this period, the applicant:\n\n(a) had been present at a search of his home on 23 March from 9.15 a.m. to 12.50 p.m.;\n\n(b) had undergone several interrogations:\n\n- on 23 March from 1.15 p.m. to 2.30 p.m., from 5.30 p.m. to 8 p.m. and from 8.40 p.m. to 10.15 p.m., a total of five hours and twenty minutes;\n\n- on 24 March from 1.30 a.m. to 2 a.m., from 4 a.m. to 4.45 a.m., from 11 a.m. to 1 p.m., from 3.40 p.m. to 8 p.m. and from 8.30 p.m. to 9.20 p.m., a total of eight hours and twenty-five minutes;\n\n- on 25 March from 4.30 a.m. to 4.50 a.m., twenty minutes;\n\n(c) had been examined on 24 March at 11 a.m. by a doctor, who had concluded that his state of health was compatible with the extension of the police custody.\n\nThe applicant signed the recapitulatory record drawn up at the end of his police custody, but refused to sign that of his last interrogation.\n\n45. On 25 March 1983, when he first appeared before the investigating judge (see paragraph 10 above), he made the following statement:\n\n\"I note the charges of which you have informed me. I am a declared member of the CCN [Cunsulta di i cumitati naziunalisti]. I am not a member of the FLNC. I will make a statement later in the presence of my lawyer, Mr Stagnara.\n\nI should like to add, however, that I was struck during my police custody by police-officers; I do not wish to give their names. I was not allowed any rest. I had to ask the doctor who visited me for something to eat because I was left without food and all I had to eat was one sandwich. This morning, I was left naked in front of an open window for two or three hours. I was then dressed and beaten up. This went on continuously throughout the police custody. I can show you bruises on my chest and a red patch under my left ear.\"\n\nThe judge had the words \"seen, correct\" entered at the end of this statement.\n\n46. On 29 March 1983 Mr Tomasi laid a complaint against persons unknown together with an application to join the proceedings as a civil party (constitution de partie civile), \"for assault committed by officials in the performance of their duties and abuse of an official position\".\n\nThe following day the senior investigating judge ordered that the applicant lodge a deposit set at 1,200 francs and communicated the file to the public prosecutor’s office.\n\nB. The investigation proceedings (29 March 1983 - 6 February 1989)\n\n1. The proceedings conducted at  (29 March 1983 - 20 March 1985)\n\n(a) The investigative measures\n\n47. On 29 March Mr Pancrazi, the investigating judge, interviewed as a witness Dr Bereni, Senior Medical Officer at Bastia Prison. He stated as follows:\n\n\"I am a medical officer in the Prison Service and I examined Charles Pieri on his arrival at the prison and Félix Tomasi, as I do with all the inmates.\n\n...\n\nIn Félix Tomasi’s case, I observed behind the left ear a haematoma which had spread slightly towards the cheek. I noted slight superficial scratches on the chest. In addition, Tomasi reported pain in his head and neck, as well as in his legs, arms and back, but, as I have already stated, I was unable to find objective evidence to support these claims.\n\nIn both cases the injuries were very slight with no serious features and could not lead to incapacity for work.\"\n\n48. On 25 March 1983 the same judge had instructed a Dr Rovere, an expert attached to the Bastia Court of Appeal, to carry out the following tasks:\n\n\"1. Effect an examination of the victim’s injuries, illnesses or disabilities, describe them, specify their likely sequelae and give an opinion as to their causes;\n\n2. Describe the extent of the incapacity and assess its probable duration.\"\n\nThe doctor, who had examined Mr Tomasi on 26 March 1983 at 12 noon in the prison, in the presence of the investigating judge, lodged his report on 30 March. The report stated as follows:\n\n\"III. CURRENT CONDITION\n\n(1) Symptoms complained of Mr Félix Tomasi complained of . acute otalgia in the left ear . acute parietal and bilateral cephalalgia . slight back pain . pains in the upper abdomen No other symptom was complained of.\n\n(2) Clinical examination\n\n...\n\n(a) General examination:\n\n. Weight: 60kg; height: 1m65 (estimation). Blood pressure: 11,5/7. Pulse rate: 84 beats to the minute. Cardiopulmonary examination: normal.\n\n(b) Cranio-facial segment:\n\n- Two barely visible abrasions, one on the right temple and the other above the right eyebrow - Small horizontal bruise to the upper part of the left eyelid, measuring 2cm in length, colour purplish-red - Pains complained of on palpation of the right parietal region of the skull - Conjunctival redness in both eyes (the patient states that he had this condition before his police custody), non- traumatic in origin - Neurological examination: . Pupils equal size, regular and contractile. No nystagmus . Romberg negative. No asymmetry, no dysdiadochokinesis . Tendon reflexes - normal. No deviation in the index finger test and the blind walk  test - Left ear:. A dark-red-coloured bruise, warm and allegedly painful  on palpation, in the helix and the anthelix . The external auditory meatus and the eardrum show no  sign of a traumatic injury.\n\n(c) Cervical rachis:\n\n- No apparent trace of traumatism. Pressure on the processus spinosis of the cervical vertebrae C1 and C2 allegedly painful. Unrestricted neck movement, cracking sounds in  articulations could be heard on side movements of the  head (commonplace after the age of thirty). No muscular contraction.\n\n(d) Thorax and abdomen:\n\n- Ecchymotic striae (vibices) located as follows:. one at the level of the praesternum . one at the level of the metasternum . three others at the level of the epigastric region . one at the level of the right hypochondrium.  These marks are red in colour, surrounded by a purplish halo, visible in non-artificial light and allegedly painful on palpation. - No hepatomegaly - No splenomegaly (enlarged spleen) - Slight abdominal distension.\n\n(e) Lumbar region:\n\n- No apparent trace of traumatism. No restriction on scope of trunk movement. No paravertebral muscular contraction.\n\n(f) Left arm:\n\nOn the upper third of the postero-internal face of the arm there is a bruise which is red in colour, with a purplish periphery in its lower part, measuring 8cm in length and 4cm in width, claimed to be painful on palpation.\n\nBelow this bruise, two others may be seen, of a circular shape, measuring 1.5cm in diameter, less highly coloured.\n\nIV. DISCUSSION AND CONCLUSION\n\nMr Félix Tomasi has the following symptoms, as observed in the examination of 26 March 1983:\n\n- Superficial bruising to the left upper eyelid, the front of the chest, in the epigastric region and that of the right hypochondrium, on the left arm and the left ear\n\n- Two barely visible cutaneous abrasions on the right temple.\n\nThe red colouring of the bruises with a peripheral purple halo makes it possible to fix the date of their origin as between two and four days before the examination on 26 March 1983.\n\nThe simultaneous presence of abrasions and bruises makes it possible to affirm that these injuries are traumatic in origin; however, biological tests could be carried out in order to eliminate another medical cause.\n\nTheir extent and form offer no indications of how they first occurred; they are thus consistent with Mr Tomasi’s declarations but could equally have a different traumatic origin.\n\nThese injuries entail temporary total incapacity of three days.\"\n\n49. On 24 June 1983 Judge Pancrazi interviewed Mr Tomasi as an accused. After the expert medical reports concerning the victims of the attack of 12 February 1982 had been read out to the applicant and his co-accused, the applicant stated:\n\n\"The injuries which were noted during the examinations made firstly by Dr Rovere and then by Drs Rocca and Ansaldi, were the result of the acts of Superintendent [D.], his deputy [A.] and some of the other officers of the criminal investigation department.\n\nI was beaten for forty hours non-stop. I didn’t have a moment’s rest. I was left without food and drink.\n\nA police-officer, whom I would be able to recognise, held a loaded pistol to my temple and to my mouth, to make me talk. I was spat upon in the face several times. I was left undressed for a part of the night, in an office, with the doors and windows open. It was in March.\n\nI spent almost all the time in police custody standing, hands handcuffed behind the back. They knocked my head against the wall, hit me in the stomach using forearm blows and I was slapped and kicked continuously. When I fell to the ground I was kicked or slapped to make me get up.\n\nThey also threatened to kill me, Superintendent [D.] and officer [A.] told me that if I managed to get off they would kill me. They also said that they would kill my parents. They said that there had been an attack at Lumio where there had been a person injured and that the same thing would happen to my parents, that they would use explosives to kill them.\n\nI would like to say in connection with the injuries to my left ear that, in addition to the bruise noted by Dr Rovere, I bled, to be more precise my ear was bleeding, as I realised when I put a cotton bud in my ear. This lasted for a fortnight. I asked if I could see a specialist and Dr Vellutini told me that I had a perforated eardrum. I also realised afterwards that I had a broken tooth. I was therefore not able to tell this to the experts.\n\nDrs Rocca and Ansaldi stated that the bruise to the left upper eyelid could suggest the shape of spectacles; but my spectacles are worn on the nose and although they may leave marks on the nose, they cannot under any circumstances mark the upper part of the eye.\"\n\n50. Following the lodging of Mr Tomasi’s complaint and at the request of the public prosecutor, the President of the  tribunal de grande instance appointed another investigating judge, Mr N’Guyen, on 2 June 1983.\n\nWithout waiting for the outcome of the application for an order designating the competent court (see paragraph 55 below), Mr N’Guyen had already appointed two experts of the Bastia Court of Appeal, Dr Rocca and Dr Ansaldi, who had examined the applicant on 29 March 1983 at the prison and submitted their report on 1 April. This document was worded as follows:\n\n\"SUMMARY OF THE FACTS:\n\nThe patient states as follows:\n\n`On 23 and 24 March 1983 I was beaten up for a period of about thirty-six hours. I was repeatedly punched and kicked mainly in the abdomen, on the head and on the face.’\n\nSYMPTOMS COMPLAINED OF AT THIS TIME:\n\nThe patient complains of the following symptoms: - pain in the left ear; - buzzing in the ears; - headache; - pain in the lumbar region; - abdominal pain; - [illegible].\n\nCLINICAL EXAMINATION CARRIED OUT ON TODAY’S DATE\n\n- Weight: 60kg - Height: 1m65 - Blood pressure: 13/8 - Pulse: 72 beats a minute.\n\n1. Examination of the face and the skull:\n\nMr Tomasi wears corrective lenses for myopia.\n\nOn examining him we noted the following:\n\n- a slight bruising of the upper left eyelid, purplish in colour, 2cm in length; - minor abrasions 3mm in diameter: 1 - at the level of the right temple, 2 - above the right eyebrow.\n\nOn continuing the examination of the face we observed:\n\n- the area of the masticatory muscles was particularly sensitive on palpation, especially on the right; - elsewhere, the ocular autokinesis was normal; - the examination of the surface sensitivity of the face was normal;\n\n- facial motility was normal.\n\nFurther examination revealed:\n\n- pronounced, diffuse erythema in the auricle of the left ear; - auditory capacity appeared normal, tested by the ticking of a watch and whispering.\n\n2. Thoraco-abdominal examination:\n\nExamination showed:\n\n- a number of cutaneous abrasions a few millimetres in diameter, located in the area of the right hypochondrium, the epigastrium, the right lower thoracic region and the left parasternal region, close to the metasternum; - otherwise, pulmonary auscultation, palpation and percussion of thorax normal; - likewise examination of the abdomen revealed a supple stomach, no pain; - examination of the external genital organs showed no bruising, no haematoma, no scar, no trace of traumatism.\n\n3. Examination of the upper members:\n\n- On the left arm, postero-internal face, at the middle part of the arm, a bruise 8cm in length, 4cm in width, oval- shaped.\n\nThis bruise was a yellowish colour in the middle and greenish at the periphery.\n\n- There were in addition two small bruises near to the first bruise, of a circular shape, about 4mm in diameter, also of a greenish colour.\n\n4. Examination of the lower members:\n\nExamination entirely normal.\n\n5. Neurological examination:\n\n- Romberg test: negative - No deviation of index finger - Muscular strength [illegible] intact - Tendon reflexes present and symmetrical - Sensitivity: normal - Co-ordination: normal.\n\nDISCUSSION AND CONCLUSION\n\nAfter questioning and carrying out a full clinical examination of Mr Félix Tomasi, we noted the following injuries:\n\n- two bruises, a small one on the left eyelid and a larger one on the left arm;\n\n- in addition, there were abrasions spread out over the thoracic and parasternal region and on the left temple and right eyebrow. These abrasions were of minimal size.\n\nThe pains and buzzing in the ear require an opinion from an ear, nose and throat specialist.\n\nThe colouring of the bruises makes it possible to fix the date of the originating traumatism at between four and eight days previously.\n\nThe bruise on the left arm could be the result of strong manual and digital pressure. The bruise to the left upper eyelid might suggest the shape of the upper frame of the spectacles worn by Mr Tomasi.\n\nThe cutaneous abrasions noted do not indicate a specific traumatic origin.\n\nWe did not find any scar, any burn mark, or any other injury capable of suggesting that acts of torture had been committed.\"\n\n51. On 21 April 1983, at the investigating judge’s request, the two doctors filed a further expert opinion. In this they concluded: \"Mr Félix Tomasi qualifies for temporary total incapacity of two days\".\n\n52. On 1 July 1983 Judge N’Guyen interviewed the applicant in his capacity as a civil party in criminal proceedings. Mr Tomasi made the following statement:\n\n\"- ... I think that we arrived at the police station at around midday. They began to question me and typed the first record. I said that I was an active member of the CCN. They asked me if I knew why I was there. I replied that it was not the first time that they had detained members of the CCN.\n\n- It was at that moment that they began to hit me; Superintendent [D.] slapped me repeatedly. Each time he came into the office he egged his men on. He said that they had to make me talk and that they had to use every means of doing so.\n\nHe hit me throughout the two days of police custody.\n\n- His deputy [A.] also hit me. He used forearm blows to the stomach, saying that that left no mark. He pulled me by the hair and knocked my head against the wall.\n\nThere were others there but I don’t know their names: there was a small, dark-haired man, who I think was called [G.]. He slapped me and punched me.\n\nI can also give you the name of [L.] because he told me his name.\n\nThere were others too, but I cannot name them.\n\nThese men hit me continuously except when I was speaking. As soon as I stopped speaking they hit me.\n\n- I’d like to make clear that I had my hands handcuffed behind my back and I had to remain standing fifty centimetres from the wall. That started at the beginning of the police custody. The body search was not carried out on the ground floor but on the second floor.\n\n- I remember that there was also a man who was with [A.], of the same height, balding. He too hit me throughout the police custody. He took my head and knocked it against the wall.\n\n- I had no rest the first night or the second.\n\n- I was questioned by about fifteen police-officers who took it in turns. Sometimes they were three; often they were between ten and fifteen. I spent almost forty-eight hours in the same office.\n\n- I was taken down again on 25 March around six in the morning. Until then I had no rest, I had neither eaten nor had anything to drink.\n\n- The first evening I asked for food and drink. The policemen gave me nothing. The following day, as I had asked to see a doctor, he came. I told him that I had been beaten continuously for more than twenty-four hours, that I had not eaten or drunk and that I was being dealt with by torturers. I made him note the marks of the blows to my stomach and face. He did not reply. He took my blood pressure. He told the policemen that I could stand up to it. Indeed I have written to the medical association on this point. When I told him that I had had nothing to eat, he looked at the policemen.\n\nThe policemen looked embarrassed and asked me what I wanted. I said that I would like a cup of coffee and a sandwich. They refused to give me the coffee and told me that I would have it if I talked. The sandwich was thrown into the dustbin. It was not until the following morning that the municipal police-officers (l’Urbaine) gave me three or four coffees with croissants and chocolate rolls. That is why when I arrived at the court house I was in a very agitated state.\n\n- I should also like to say that police-officer [L.] took his pistol out of his belt; it was loaded, and held it to my temple and my mouth. He told me to talk. I replied that I couldn’t make things up. He read me the records of the interrogations of the others. He told me that I should say the same thing.\n\n- After that, [G.] spat at me about ten times in the face and slapped me.\n\n- The torturer [D.] often came into the office and asked several times `you haven’t undressed him yet?’\n\n- At nightfall they took me into another office. It was still on the second floor but couldn’t be seen into from outside. There I was completely stripped. This happened during the second night. I was completely naked, in my socks. [D.] arrived; he asked me why they hadn’t taken off my socks. He slapped me and continued to question me like that with the doors and windows open. It was a cold March night. I repeat that in the room where I had been put I couldn’t be seen from the outside. In the other room, they were careful to lower the metal blind when they turned the light on.\n\n- At one moment I was allowed to sit down. That is when [B.] arrived. He took me by the shirt or jacket and pushed me. He had the handcuffs with which my hands were bound behind my back taken off and made me sit down. He told all the police-officers and the superintendent to leave. He asked me if I wanted anything. I told him that I would like to go to the lavatory and wash myself. He let me go; he then spoke to me for an hour. We spoke together as we are speaking today.\n\n- That happened on the 24th at around 8 or 10 o’clock in the evening. [B.] left. They put back the handcuffs and continued to hit me.\n\n- I should also say that my arms and legs were numb. I was sometimes hit so much that I fell to the ground. The policemen made me get up by kicking me and hitting my head against the wall.\n\n- There were also threats to my family. They threatened to blow up the flat where my parents live. They told me about a woman from Lumio who had been blown up and who had been injured and said that they would do the same thing to my parents to kill them. They also told me that they would kill the families of my brother and my sister.\n\n- Police-officer [L.] told me that he would make me close the shop. That it would be French people who would buy it. He told me that he would make all the Corsicans leave. He told me that he would also blow up the shop.\n\n- They made threats against me too. The torturers threatened to kill me. They told me that they would take me to the Legion camp at Calvi and that they would leave me to the legionaries.\n\nMany other things happened but in one hour it is impossible to recount everything that happened over forty hours.\n\n[A.] called me a left-winger. He said that he was sure that I had voted for Mitterrand and that this was the result. They also said that they were about fifteen police- officers who were reliable and that I had better not lay a complaint. They told me that it wasn’t the same for the municipal police-officers because there were sympathisers among them and they weren’t sure of them.\n\nI would like to say that if I am released, because I am innocent, if something happens to me, it won’t be necessary to look any farther. They told me that if I were freed, they would deal with me.\"\n\n53. By a letter of 3 July 1983 the applicant’s lawyer requested the investigating judge to organise a confrontation between his client and the officers who had taken part in the interrogations; he also suggested that the judge should take evidence from the four persons who had been held in custody at the same time because \"they could have heard or seen some of the ill-treatment inflicted at Bastia police station\", as well as Dr Vellutini \"who was asked to examine Mr Tomasi, who had complained of having problems with his ears\". In addition, he asked that the record of the applicant’s first appearance before Judge Pancrazi be included in the case-file.\n\n54. The participants in the proceedings did not supply either the Commission or the Court with information regarding any investigative measures which may have been taken between 1 July 1983 and 15 January 1985.\n\n(b) The applications for the competent court to be designated\n\n55. On 31 March 1983 the  public prosecutor submitted an application to the criminal division of the Court of Cassation requesting that the \"court responsible for the investigation or trial of the case\" be designated. He was acting pursuant to Article 687 of the Code of Criminal Procedure, which concerns cases in which \"an officer of the police investigation department is liable to be charged with a criminal offence, allegedly committed in the area in which he performs his duties, whether or not in the performance of those duties\".\n\n56. On 27 April 1983 the Court of Cassation rejected the application, because it did not specify either the names or the position of the persons who were liable to be prosecuted as a result of Mr Tomasi’s complaint.\n\n57. On 15 January 1985 the  public prosecutor again applied to the criminal division, seeking the designation of the competent court.\n\n58. On 20 March 1985 the Court of Cassation gave its decision. It declared void the investigative measures carried out after 1 July 1983, the date on which the applicant as the civil party in criminal proceedings had identified the persons whom he accused.\n\nIn addition, it instructed the  investigating judge to conduct the investigation into the applicant’s complaint.\n\n2. The  proceedings (20 March 1985 - 6 February 1989)\n\n(a) Before the investigating judge (23 April 1985 - 23 June 1987)\n\n59. On 23 April 1985 the  public prosecutor lodged an application for the opening of an investigation and the President of the  tribunal de grande instance appointed an investigating judge, Mr Nicod.\n\n60. The latter interviewed Mr Tomasi on only one occasion, on 5 September 1985.\n\nOn 24 September he added to the file the certified copies of several documents from the file opened in , in particular the records of the police custody and of the first appearance before the investigating judge as well as the expert medical reports.\n\nBy a letter addressed to the judge on 4 October, the applicant requested a confrontation with the police-officers who had interrogated him.\n\nOn 13 December 1985 and 13 January 1986 the investigating judge interviewed as witnesses persons who had been held in police custody on the same premises and at the same time as the applicant. Mr Moracchini stated that he had seen the applicant on the fourth day at Bastia Prison and had noted that he had marks on his abdomen and that an ear was running.\n\n61. Mr Nicod was appointed to a new post and the President of the  tribunal de grande instance replaced him on 7 January 1987 by another judge, Mr Lebehot.\n\n62. On 13 January 1987 the latter issued a commission rogatoire to the Director of the General Inspectorate of the National Police instructing it to undertake a thorough investigation.\n\nFifteen police-officers who had taken part in the arrests, searches and interrogations were interviewed between 3 and 24 February 1987. None of them admitted having assaulted the persons held in police custody and none of them was confronted with Mr Tomasi.\n\nThe results of the commission rogatoire reached the court on 6 March 1987.\n\n63. On 23 June 1987 the investigating judge issued an order finding that there was no case to answer. He cited the same grounds as those set out in the submissions made the previous day by the  public prosecutor:\n\n\"... in view of the formal and precise denials by the officers concerned, the accusations made by the complainant, even if they are supported by a few objective medical observations, cannot in themselves constitute serious and concurring indications of guilt such as could justify one or several persons being charged.\"\n\n(b) In the indictments division of the Court of Appeal (26 June 1987 - 12 July 1988)\n\n64. By a letter of 26 June 1987 Mr Tomasi appealed from the order finding that there was no case to answer to the indictments division of the Bordeaux Court of Appeal. He complained among other things that there had been no confrontation with the police-officers and that the sequelae of his police custody had not been taken into account, in particular the fact that his eardrum had been perforated as was shown by subsequent examinations.\n\nOn 12 October he wrote to the President requesting that a confrontation be organised.\n\n65. The indictments division gave its decision on 3 November 1987. It allowed the applicant’s appeal and, before ruling on the merits, ordered further inquiries.\n\nOn 19 January 1988 the judge with responsibility for these inquiries issued a commission rogatoire to the Director of the General Inspectorate of the National Police. Three other police- officers were thus interviewed, as well as four persons - including Mr Filippi - who had been in police custody at the same time as Mr Tomasi, and the ear, nose and throat specialist - Dr Vellutini - who had examined him in April 1983.\n\nOn 28 January 1988 Mr Filippi stated that he had seen the applicant on the morning of 25 March 1983. Mr Tomasi’s face had been \"bruised and swollen\", his hair had been \"dishevelled\", he had had \"bruises on the chest, on the abdomen and under his right armpit\"; he had complained that he had been \"beaten all the time\" and he had \"even taken a tooth out of his pocket\".\n\nOn 25 February 1988 Dr Vellutini made the following statement:\n\n\"...\n\nI carried out a medical examination of Mr Félix Tomasi as an outpatient at . I cannot specify the date, but it was in 1983. I treated him for an ear infection and possibly a perforated eardrum. I examined him once or twice, no more than that. I have already told this to the investigating Judge N’Guyen in his chambers. My examination was part of an ordinary consultation and I never issue a medical certificate in those circumstances; I merely treat the patients who are brought to me.\n\n...\"\n\nOn 18 April 1988 the judge submitted the results of the further inquiries.\n\n66. On 12 July 1988 the indictments division upheld the order finding that there was no case to answer, on the following grounds:\n\n\"...\n\nThere is no doubt that Antoine Filippi, who was held in police custody at the same time as Tomasi, maintained that he had noticed in the hall of the police station that the latter’s face had been `bruised and swollen’ and that subsequently he had `personally seen that he had bruises on the chest, abdomen and under the right armpit’;\n\nHis co-accused Joseph Moracchini had for his part stated that Tomasi `had all his chest grazed and that there was liquid running from an ear’;\n\nThese statements add somewhat to the observations made by the investigating judge himself when Tomasi came to his chambers, namely the presence of bruises on his chest and a redness under the left ear, as well as those of the doctors designated at various stages in the proceedings;\n\nDuring the police custody, on 24 March 1983 at 11 a.m., Doctor Gherardi examined Tomasi, who complained to him that he had been beaten, but he did not personally observe anything at that stage.\n\nWhen he arrived at the prison, on 25 March 1983, Tomasi was seen, as part of the systematic check-ups of detainees, by the Senior Medical Officer, Dr Bereni, who noted the presence of a haematoma behind the left ear spreading slightly down towards the cheek and slight superficial scratches on the chest and took note that the applicant reported pain in the head, the neck, the legs, the arms and back, without any objective symptoms.\n\nAn expert, Dr Rovere, appointed by the investigating judge, examined Tomasi on 26 March 1983 at 12 noon and noted that he had superficial bruising on the left upper eyelid, on the front of the chest and in the epigastric region and that of the right hypochondrium, on the left arm and the left ear, as well as two cutaneous abrasions, barely visible, on the right temple; the expert stated that the red colouring of the bruises with a purple peripheral halo made it possible to fix the date of their occurrence as between two and four days before the examination and stressed that the fact that abrasions and bruises were present simultaneously gave grounds for affirming their traumatic nature but did not indicate the actual cause of the traumatism; he fixed at three days the duration of the temporary total incapacity.\n\nThe expert report which was entrusted to Dr Rocca and Dr Ansaldi, in connection with the investigation opened against persons unknown ... [see paragraph 46 above], revealed in the course of the examination carried out on 29 March the presence of two bruises, one a small one on the left eyelid capable of suggesting the shape of the upper frame of the applicant’s spectacles and the other, larger, on the left arm, being possibly the result of very strong manual and digital pressure, as well as abrasions spread out about the thoracic and parasternal regions, on the right temple and the right eyebrow, which did not indicate any specific traumatic cause.\n\nThe possibility that the applicant had a perforated eardrum and a bleeding ear was not expressly confirmed by Dr Vellutini, an ear, nose and throat specialist, and was expressly denied by Drs Rovere and Bereni.\n\nIn any event a comparative study of the various observations made by several doctors and experts shortly after the supposed date of the acts of violence of which Tomasi complained showed that there was a real discrepancy between such violence (punches and kicks; forearm blows; head hit against the wall for nearly forty hours) and the slight nature of the traumatisms the origin of which is in dispute and cannot be determined.\n\nThe officers of the criminal investigation police concerned expressly deny the accusations.\n\nAny confrontation appears at this stage pointless.\n\nThere is doubt as to the truth of Tomasi’s accusations.\"\n\n(c) Before the Court of Cassation (21 July 1988 - 6 February 1989)\n\n67. On 21 July 1988 Mr Tomasi filed an appeal on points of law which the criminal division of the Court of Cassation declared inadmissible on 6 February 1989 on the following grounds:\n\n\"On the basis of the grounds given in the contested judgment the Court of Cassation is satisfied that, in upholding the order in question, the indictments division, after having analysed the facts contained in the complaint, set out the grounds from which it inferred that there was not sufficient evidence against anyone of having committed the offence of assault by officials in the performance of their duties;\n\nThe appeal submission, in so far as it amounts to contesting the grounds of fact and law relied on by the judges, does not contain any of the complaints which, under Article 575 [of the Code of Criminal Procedure], a civil party in criminal proceedings is authorised to formulate in support of an appeal on points of law against a decision that there is no case to answer by the indictments division where no such appeal has been filed by the prosecuting authorities.\"\n\nC. Subsequent developments\n\n68. At Mr Tomasi’s request, Dr Bereni, who was still the Chief Medical Officer at Bastia Prison, drew up a certificate on 4 July 1989, which he gave to the applicant in person \"for the appropriate legal purposes\". This document was worded as follows:\n\n\"I, the undersigned, Dr Jean Bereni, ... hereby certify that I examined the X-rays taken of Mr Tomasi at  on 2 April 1983.\n\nThe X-rays of the left temple show a thickening of the external auditory meatus with a perforation of the eardrum and the presence of a haematoma behind the eardrum.\n\nThe special-angle X-rays (Hitz) of the facial structure show, at the level of the bite of the upper left maxillary, the absence of the first molar.\n\nFollowing these examinations Dr Vellutini, the senior consultant in the ear, nose and throat department, prescribed ear drops (Otipax) and I myself prescribed painkillers and sleeping-pills.\"\n\n69. In reply to a letter of 26 August 1991, the Director of Bastia Regional Hospital communicated to the applicant the following details:\n\n\"(a) The additional investigations carried out have not revealed any new information of a medical nature in addition to that mentioned in my attestation of 4 July 1989 as regards your visit to Bastia General Hospital as an outpatient in the ear, nose and throat department, probably on 1 April 1983.\n\n(b) At the time of your visit the former Toga Hospital did not have a structured system for dealing with outpatient consultations in the specialised departments; in these circumstances, in the case of mere visits without hospitalisation for an examination by a specialist, a medical record was not systematically drawn up (Dr Vellutini, who at the time was an ear, nose and throat specialist at the hospital, when contacted by my department in connection with your case, was not able to provide any further information which he might have remembered).\n\n(c) In fact it is highly probable that the X-ray or X-rays concerning you were (as continues to be the practice in respect of detainees who are not hospitalised) immediately handed over to the persons accompanying you to be given to the medical service of the prison, without a copy being kept at the hospital.\n\n(d) Moreover - in the unlikely event of medical documents concerning you having been filed - the move to new premises of the former hospital and the opening of a new hospital, in 1985, involved the multiple transportation of a considerable volume of files and documents, which could inevitably have resulted in the files being disturbed.\n\n(e) The search for documents concerning Mr Moracchini and Mr Pieri was likewise fruitless.\n\nIn any event I find it hard to see how an action which, as you suggest, might be brought against Bastia Hospital, either in the form of an application for an interlocutory injunction or on the merits, would make it possible to discover medical documents, whose presence in the archives is, to say the least, highly improbable and which have been the subject of thorough, albeit unsuccessful, searches.\"\n\nPROCEEDINGS BEFORE THE COMMISSION\n\n70. In his application of 10 March 1987 to the Commission (no. 12850/87), Mr Tomasi relied on Articles 3, 6 para. 1 and 5 para. 3 (art. 3, art. 6-1, art. 5-3) of the Convention. He claimed that during his police custody he had suffered inhuman and degrading treatment; he also criticised the length of the proceedings which he had brought in respect of such treatment; he maintained finally that his detention on remand had exceeded a \"reasonable time\".\n\n71. The Commission declared the application admissible on 13 March 1990. In its report of 11 December 1990 (Article 31) (art. 31), it expressed the view that there had been a violation of Article 3 (art. 3) (twelve votes to two), Article 6 para. 1 (art. 6-1) (thirteen votes to one) and Article 5 para. 3 (art. 5-3) (unanimously). The full text of its opinion and of the dissenting opinion contained in the report is reproduced as an annex to this judgment.\n\nFINAL SUBMISSIONS TO THE COURT\n\n72. In their memorial, the Government asked the Court \"to find that in the present case there [had] been no violation of Articles 5 para. 3, 3 and 6 para. 1 (art. 5-3, art. 3, art. 6-1) of the Convention\".\n\n73. For their part, the applicant’s lawyers requested the Court to\n\n\"State that Mr Tomasi was the victim, during his custody on police premises, of inhuman and degrading treatment in violation of the provisions of Article 3 (art. 3) of the Convention.\n\nState that the proceedings brought by Mr Tomasi to obtain compensation for the damage suffered as a result of such treatment were not conducted within a reasonable time, in violation of the provisions of Article 6 para. 1 (art. 6-1) of the Convention.\n\nState that, in detention on remand, Mr Tomasi was not tried within a reasonable time or released pending trial, in violation of the provisions of Article 5 para. 3 (art. 5-3) of the Convention.\n\nSet at 2,376,588 francs the just satisfaction for the consequences suffered by Félix Tomasi as a result of the violation by the French authorities of Article 5 para. 3 (art. 5-3) of the Convention.\n\nSet at 500,000 francs the just satisfaction for the consequences suffered by Félix Tomasi as a result of the violations by the French authorities of Articles 3 and 6 para. 1 (art. 3, art. 6-1) of the Convention.\n\nState that the  shall be liable for the costs, fees and expenses of the present proceedings, including defence fees calculated at 237,200 francs.\n\nWith all due reservations.\"\n\n74. In his written observations the Delegate of the Commission invited the Court to reject as inadmissible the Government’s objection under Article 26 (art. 26) of the Convention.\n\nAS TO THE LAW\n\nI. ALLEGED VIOLATION OF ARTICLE 5 PARA. 3 (art. 5-3)\n\n75. According to the applicant, the length of his detention on remand infringed Article 5 para. 3 (art. 5-3), which is worded as follows:\n\n\"Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article (art. 5-1-c), ... shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.\"\n\nA. Government’s preliminary objections\n\n76. The Government raised two objections to the application’s admissibility; they contended firstly that the applicant had failed to exhaust domestic remedies and secondly that he had lost the status of victim.\n\n77. Referring to its settled case-law (see, as the most recent authority, the Drozd and Janousek v. France and Spain judgment of 26 June 1992, Series A no. 240, pp. 31-32, para. 100), the Court finds that it has jurisdiction to examine these objections, despite the Commission’s view to the contrary in respect of the first objection.\n\n1. Objection based on the failure to exhaust domestic remedies\n\n78. The Government stressed, as they had done before the Commission, that Mr Tomasi had lodged his application with the Commission on 10 March 1987, and therefore even before having submitted a claim to the Compensation Board at the Court of Cassation, which he did on 18 April 1989 (see paragraphs 1 and 40 above). Since then, the compensation awarded on 8 November 1991 (see paragraph 42 above) had rendered the complaint made under Article 5 para. 3 (art. 5-3) of the Convention devoid of purpose.\n\n79. Like the applicant and the Delegate of the Commission, the Court notes in the first place that the right to secure the ending of a deprivation of liberty is to be distinguished from the right to receive compensation for such deprivation. It further observes that Article 149 of the Code of Criminal Procedure made the award of compensation subject to the fulfilment of specific conditions not required under Article 5 para. 3 (art. 5-3): namely the adoption of \"a decision finding that [the accused] has no case to answer or acquitting him\" and the existence of \"damage of a clearly exceptional and particularly serious nature\" (see paragraph 40 above). Finally, Mr Tomasi lodged his application in  after four years spent in detention.\n\nThe objection must therefore be dismissed.\n\n2. Objection based on the loss of the status of victim\n\n80. In the Government’s contention the applicant has lost the status of \"victim\" within the meaning of Article 25 para. 1 (art. 25-1) of the Convention. By its decision of 8 November 1991 awarding him 300,000 French francs, the Compensation Board had acknowledged that a \"reasonable time\" had been exceeded and had made good the resulting damage.\n\nThe applicant disputed this view.\n\n81. The Court notes at the outset that this submission was made for the first time before it at the hearing on 25 February 1992 and not within the time-limits laid down in Rule 48 para. 1 of the Rules of Court. It observes nevertheless that the Government filed their memorial before the adoption of the Compensation Board’s decision, so that their submission cannot be regarded as out of time.\n\nOn the other hand, it is open to the same objections as the plea based on the failure to exhaust domestic remedies. It is therefore unfounded.\n\nB. Merits of the complaint\n\n82. Mr Tomasi considered the length of his detention on remand excessive; the Government denied this, but the Commission agreed with him.\n\n83. The period to be taken into consideration began on 23 March 1983, the date of the applicant’s arrest, and ended on 22 October 1988 with his release following the delivery of the Gironde assize court’s judgment acquitting him (see paragraphs 8 and 39 above). It therefore lasted five years and seven months.\n\n84. It falls in the first place to the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable time. To this end they must examine all the circumstances arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty and set them out in their decisions on the applications for release. It is essentially on the basis of the reasons given in these decisions and of the true facts mentioned by the applicant in his applications for release and his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 para. 3 (art. 5-3).\n\nThe persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the validity of the continued detention, but, after a certain lapse of time, it no longer suffices; the Court must then establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were \"relevant\" and \"sufficient\", the Court must also ascertain whether the competent national authorities displayed \"special diligence\" in the conduct of the proceedings (see, as the most recent authority, the Clooth v.  judgment of 12 December 1991, Series A no. 225, p. 14, para. 36).\n\n1. The grounds for continuing the detention\n\n85. In order to reject Mr Tomasi’s applications for release, the investigating authorities put forward - separately or together - four main grounds: the seriousness of the alleged offences; the protection of public order; the need to prevent pressure being brought to bear on the witnesses or to avoid collusion between the co-accused; and the danger of the applicant’s absconding.\n\n(a) Seriousness of the alleged offences\n\n86. The investigating judges and the indictments divisions stressed the particular or exceptional gravity of the offences of which the applicant was accused (see paragraphs 22, 31, 34, 35 and 36 above).\n\n87. The applicant did not deny this, but he regarded it as not sufficient to justify pre-trial detention over such a long period of time, in the absence of grounds for suspecting him other than his membership of a nationalist movement. His period of detention corresponded to the term of imprisonment that would actually be served by a person sentenced to more than ten years’ imprisonment.\n\n88. The Government emphasised the consistent nature of the statements of a co-accused, Mr Moracchini, implicating Mr Tomasi in the preparation and organisation of the attack.\n\n89. The existence and persistence of serious indications of the guilt of the person concerned undoubtedly constitute relevant factors, but the Court considers, like the Commission, that they cannot alone justify such a long period of pre-trial detention.\n\n(b) Protection of public order\n\n90. The majority of the courts in question expressed forcefully, and in very similar terms, the need to protect public order from the prejudice caused by the offences of which the applicant was accused (see paragraphs 16, 22, 34, 35 and 36 above).\n\nThe Government endorsed this reasoning, which was challenged by the applicant and the Commission.\n\n91. The Court accepts that, by reason of their particular gravity and public reaction to them, certain offences may give rise to public disquiet capable of justifying pre-trial detention, at least for a time.\n\nIn exceptional circumstances - and subject, obviously, to there being sufficient evidence (see paragraph 84 above) - this factor may therefore be taken into account for the purposes of the Convention, in any event in so far as domestic law recognises - as in Article 144 of the French Code of Criminal Procedure - the notion of prejudice to public order caused by an offence. However, this ground can be regarded as relevant and sufficient only provided that it is based on facts capable of showing that the accused’s release would actually prejudice public order. In addition, detention will continue to be legitimate only if public order remains actually threatened; its continuation cannot be used to anticipate a custodial sentence (see, as the most recent authority, the Kemmache v.  judgment of 27 November 1991, Series A no. 218, p. 25, para. 52).\n\nIn the present case, the investigating judges and the indictments divisions assessed the need to continue the deprivation of liberty from a purely abstract point of view, merely stressing the gravity of the offences (see, mutatis mutandis, the same judgment, p. 25, para. 52) or noting their effects. However, the attack against the Foreign Legion rest centre was a premeditated act of terrorism, responsibility for which was claimed by a clandestine organisation which advocated armed struggle. It had resulted in the death of one man and very serious injuries to another. It is therefore reasonable to assume that there was a risk of prejudice to public order at the beginning, but it must have disappeared after a certain time.\n\n(c) Risk of pressure being brought to bear on the witnesses and of collusion between the co-accused\n\n92. Several judicial decisions adopted in this case were based on the risk of pressure being brought to bear on the witnesses - the Poitiers indictments division even referred to a \"campaign of intimidation\" - and that of collusion between the co-accused; they did not, however, give any details concerning such risks (see paragraphs 16, 22 and 35 above).\n\n93. According to the Government, the threats against Mr Moracchini had made it impossible to consider releasing Mr Tomasi. Mr Tomasi would have been able to increase the effectiveness of the pressure brought to bear on Mr Moracchini, who had been at the origin of the prosecution and who had tried to commit suicide.\n\n94. The applicant denied this, whereas the Commission did not express a view.\n\n95. In the Court’s opinion, there was, from the outset, a genuine risk that pressure might be brought to bear on the witnesses. It gradually diminished, without however disappearing completely.\n\n(d) Danger of the applicant’s absconding\n\n96. The Government contended that there had been a danger that the applicant would abscond. They invoked the seriousness of the sentence which Mr Tomasi risked. They also drew support for their view from the escape of Mr Pieri, who, facing prosecution for the same offences as the applicant and having like him always protested his innocence, had evaded recapture for three and a half years. Finally, they stressed the special circumstances of the situation in Corsica.\n\n97. The applicant replied that he had been capable of providing sufficient guarantees that he would appear for trial; these guarantees resided in his status as a shopkeeper, his clean police record and the fact that he was of good repute.\n\n98. The Court notes in the first place that the reasoning put forward by the Government in this respect did not appear in the contested judicial decisions. The latter were admittedly based for the most part on the need to ensure that Mr Tomasi remained at the disposal of the judicial authorities (see paragraphs 16, 22, 31 and 35 above), but only one of them - the decision of the Poitiers indictments division of 22 May 1987 - referred to a specific element in this connection: the help which members of the ex-FLNC could have given the applicant to enable him to evade trial (see paragraph 35 above).\n\nIn addition, the Court points out that the danger of absconding cannot be gauged solely on the basis of the severity of the sentence risked; it must be assessed with reference to a number of other relevant factors which may either confirm the existence of a danger of absconding or make it appear so slight that it cannot justify detention pending trial (see, inter alia, the Letellier v. France judgment of 26 June 1991, Series A no. 207, p. 19, para. 43). In this case, the decisions of the judicial investigating authorities contained scarcely any reason capable of explaining why, notwithstanding the arguments advanced by the applicant in his applications for release, they considered the risk of his absconding to be decisive and why they did not seek to counter it by, for instance, requiring the lodging of a security and placing him under court supervision.\n\n(e) Recapitulation\n\n99. In conclusion, some of the reasons for dismissing Mr Tomasi’s applications were both relevant and sufficient, but with the passing of time they became much less so, and it is thus necessary to consider the conduct of the proceedings.\n\n2. Conduct of the proceedings\n\n100. According to the applicant, the case was not at all complex; indeed the investigation had been completed as early as 18 October 1983, the date of the recapitulatory examination (see paragraph 12 above). However, there had been numerous errors and omissions on the part of the judicial authorities. In particular, the public prosecutor had refused to make submissions (réquisitions), requested investigative measures which had already been carried out, asked for the transfer of jurisdiction from the  courts, instituted proceedings incorrectly in a court which lacked jurisdiction and placed the accused at a considerable distance from the investigating authority. The applicant acknowledged that the Law of 30 December 1986 had complicated the situation by making the Law of 9 September 1986 applicable to cases already pending, but by that time Mr Tomasi had been in detention for nearly four years. He complained that he had been questioned by an investigating judge only once in five years, on 5 September 1985 in  (see paragraph 19 above).\n\nOn the subject of his own conduct, he pointed out that he had lodged twenty-one of his twenty-three applications for release after his recapitulatory examination (see paragraphs 14, 21, 31 and 33-36 above) and that his appeal on points of law against the decision of the Bordeaux indictments division of 27 May 1986 had led to the decision being quashed for infringement of the rights of the defence (see paragraph 25 above).\n\nThe Commission essentially agreed with the applicant’s position.\n\n101. The Government, for their part, did not consider the length of the detention in question unreasonable. They stressed in the first place the complexity of the process of indicting the applicant and his three co-accused, owing to the operation of the Law of 30 December 1986 and the joint jurisdiction of the indictments divisions of  and  (see paragraphs 17-18 and 24-30 above). They also pointed to the rhythm at which measures had been taken in the proceedings as showing that the authorities had consistently displayed due diligence, the two delays in the investigation being the result of the relinquishment of jurisdiction by the Bastia judge and the application of the Law of 30 December 1986 (ibid.). They criticised Mr Tomasi for having filed several appeals to the Court of Cassation, in particular against the first committal decision delivered on 27 May 1986 at Bordeaux (see paragraph 25 above), which, they contended, had substantially delayed the opening of the trial. Finally they emphasised the large number of applications for release lodged by the applicant and expressed the view that he was partly responsible for the length of his detention.\n\n102. The Court fully appreciates that the right of an accused in detention to have his case examined with particular expedition must not unduly hinder the efforts of the courts to carry out their tasks with proper care (see, inter alia, mutatis mutandis, the Toth v.  judgment of 12 December 1991, Series A no. 224, pp. 20-21, para. 77). The evidence shows, nevertheless, that in this case the French courts did not act with the necessary promptness. Moreover, the principal public prosecutor at the Court of Cassation acknowledged this in his opinion of 5 June 1991 before the Compensation Board: the investigation \"could have been considerably shortened without the various delays noted\", in particular from November 1983 to January 1985 and from May 1986 to April 1988 (see paragraph 41 above). Accordingly, the length of the contested detention would not appear to be essentially attributable either to the complexity of the case or to the applicant’s conduct.\n\n3. Conclusion\n\n103. There has therefore been a violation of Article 5 para. 3 (art. 5-3).\n\nII. ALLEGED VIOLATION OF ARTICLE 3 (art. 3)\n\n104. Mr Tomasi claimed to have suffered during his period of custody at  police station ill-treatment incompatible with Article 3 (art. 3), according to which:\n\n\"No one shall be subjected to torture or to inhuman or degrading treatment or punishment.\"\n\nA. Government’s preliminary objection\n\n105. The Government pleaded the applicant’s failure to exhaust his domestic remedies. They argued that he could have brought an action for damages in the civil courts against the State alleging culpable conduct on the part of its officials in the performance of their duties.\n\n106. The only submission concerning the failure to exhaust domestic remedies raised by the Government before the Commission in the context of Article 3 (art. 3) related to a completely different matter, namely the claim that the filing of an application in  was premature as no decision on the merits had been reached in the French courts. The Court, like the Delegate of the Commission, concludes from this that the Government are estopped from relying on their objection.\n\nB. Merits of the complaint\n\n107. In the circumstances of this case Mr Tomasi’s complaint raises two issues, which are separate although closely linked: firstly that of the causal connection between the treatment which the applicant allegedly suffered during his police custody and the injuries noted subsequently by the investigating judge and the doctors; and, secondly and if necessary, the gravity of the treatment inflicted.\n\n1. The causal connection between the treatment complained of and the injuries noted\n\n108. According to the applicant, the observation made on 25 March 1983 by the Bastia investigating judge and the reports drawn up by various doctors at the end of his police custody (see paragraphs 45, 47, 48 and 50 above) confirmed his statements, even though it was, he said, to be regretted that the prison authorities had failed to communicate the X-rays effected on 2 April 1983 at Bastia Hospital (see paragraph 68 above). His body had borne marks which had only one origin, the ill-treatment inflicted on him for a period of forty odd hours by some of the police-officers responsible for his interrogation: he had been slapped, kicked, punched and given forearm blows, made to stand for long periods and without support, hands handcuffed behind the back; he had been spat upon, made to stand naked in front of an open window, deprived of food, threatened with a firearm and so on.\n\n109. The Government acknowledged that they could give no explanation as to the cause of the injuries, but they maintained that they had not resulted from the treatment complained of by Mr Tomasi. The medical certificates showed, in their opinion, that the slight bruises and abrasions noted were totally inconsistent with the acts of violence described by the applicant; the certificate of the Chief Medical Officer of Bastia Prison of 4 July 1989 had been drawn up a long time after the event and was in complete contradiction with the earlier certificates. The chronology of the interrogation sessions, which had not been contested by the applicant, in no way corresponded to the allegations. Finally, the five other persons in police custody at the time had neither noticed nor heard anything, and although one of them referred to Mr Tomasi’s losing a tooth, this fact was not mentioned by a doctor until six years later. In short, a clear doubt subsisted, which excluded any presumption of the existence of a causal connection.\n\n110. Like the Commission, the Court bases its view on several considerations.\n\nIn the first place, no one has claimed that the marks noted on the applicant’s body could have dated from a period prior to his being taken into custody or could have originated in an act carried out by the applicant against himself or again as a result of an escape attempt.\n\nIn addition, at his first appearance before the investigating judge, he drew attention to the marks which he bore on his chest and his ear; the judge took note of this and immediately designated an expert (see paragraphs 45 and 48 above).\n\nFurthermore, four different doctors - one of whom was an official of the prison authorities - examined the accused in the days following the end of his police custody. Their certificates contain precise and concurring medical observations and indicate dates for the occurrence of the injuries which correspond to the period spent in custody on police premises (see paragraphs 47, 48 and 50 above).\n\n111. This conclusion makes it unnecessary for the Court to inquire into the other acts which it is claimed the officials in question carried out.\n\n2. The gravity of the treatment complained of\n\n112. Relying on the  v. the  judgment of 18 January 1978 (Series A no. 25), the applicant maintained that the blows which he had received constituted inhuman and degrading treatment. They had not only caused him intense physical and mental suffering; they had also aroused in him feelings of fear, anguish and inferiority capable of humiliating him and breaking his physical or moral resistance.\n\nHe argued that special vigilance was required of the Court in this respect in view of the particular features of the French system of police custody, notably the absence of a lawyer and a lack of any contact with the outside world.\n\n113. The Commission stressed the vulnerability of a person held in police custody and expressed its surprise at the times chosen to interrogate the applicant. Although the injuries observed might appear to be relatively slight, they nevertheless constituted outward signs of the use of physical force on an individual deprived of his liberty and therefore in a state of inferiority. The treatment had therefore been both inhuman and degrading.\n\n114. According to the Government, on the other hand, the \"minimum level of severity\" required by the Court’s case-law (see the Ireland v. the United Kingdom judgment cited above and the Tyrer v. the United Kingdom judgment of 25 April 1978, Series A no. 26) had not been attained. It was necessary to take into account not only that the injuries were slight, but also the other facts of the case: Mr Tomasi’s youth and good state of health, the moderate length of the interrogations (fourteen hours, three of which were during the night), \"particular circumstances\" obtaining in Corsica at the time and the fact that he had been suspected of participating in a terrorist attack which had resulted in the death of one man and grave injuries to another. In the Government’s view, the Commission’s interpretation of Article 3 (art. 3) in this case was based on a misunderstanding of the aim of that provision.\n\n115. The Court cannot accept this argument. It does not consider that it has to examine the system of police custody in  and the rules pertaining thereto, or, in this case, the length and the timing of the applicant’s interrogations. It finds it sufficient to observe that the medical certificates and reports, drawn up in total independence by medical practitioners, attest to the large number of blows inflicted on Mr Tomasi and their intensity; these are two elements which are sufficiently serious to render such treatment inhuman and degrading. The requirements of the investigation and the undeniable difficulties inherent in the fight against crime, particularly with regard to terrorism, cannot result in limits being placed on the protection to be afforded in respect of the physical integrity of individuals.\n\n3. Conclusion\n\n116. There has accordingly been a violation of Article 3 (art. 3).\n\nIII. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)\n\n117. The applicant finally complained of the time taken to examine his complaint against persons unknown, lodged together with an application to join the proceedings as a civil party, in respect of the ill-treatment which he had suffered during his police custody. He relied on Article 6 para. 1 (art. 6-1), which is worded as follows:\n\n\"In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...\"\n\nA. Government’s preliminary objection\n\n118. The Government contended, as they had done before the Commission, that the applicant had failed to exhaust his domestic remedies, in so far as he had not brought an action against the State for compensation pursuant to Article 781-1 of the Code of Judicial Organisation.\n\n119. The Court confines itself to observing that this submission is out of time having been made for the first time before it at the hearing of 25 February 1992, and not within the time-limits laid down in Rule 48 para. 1 of the Rules of Court.\n\nB. Merits of the complaint\n\n1. Applicability of Article 6 para. 1 (art. 6-1)\n\n120. In the Government’s view, the contested proceedings did not fall within the scope of the notion of \"determination of ... civil rights and obligations\". By filing an application to join the proceedings as a civil party, the person who claimed to be injured by a criminal offence set in motion the prosecution or associated himself with proceedings which had already been brought by the prosecuting authority. He sought to secure the conviction and sentencing of the perpetrator of the offence in question and did not claim any pecuniary reparation. In other words, an investigation opened upon the filing of such an application concerned the existence of an offence and not that of a right.\n\n121. Like the applicant and the Commission, the Court cannot accept this view.\n\nArticle 85 of the Code of Criminal Procedure provides for the filing of a complaint with an application to join the proceedings as a civil party. According to the case-law of the Court of Cassation (Crim. 9 February 1961, Dalloz 1961, p. 306), that provision simply applies Article 2 of that Code which is worded as follows:\n\n\"Anyone who has personally suffered damage directly caused by an offence [crime, délit or contravention] may institute civil proceedings for damages.\n\n...\"\n\nThe investigating judge will find the civil application admissible - as he did in this instance - provided that, in the light of the facts relied upon, he can presume the existence of the damage alleged and a direct link with an offence (ibid.).\n\nThe right to compensation claimed by Mr Tomasi therefore depended on the outcome of his complaint, in other words on the conviction of the perpetrators of the treatment complained of. It was a civil right, notwithstanding the fact that the criminal courts had jurisdiction (see, mutatis mutandis, the Moreira de Azevedo v.  judgment of 23 October 1990, Series A no. 189, p. 17, para. 67).\n\n122. In conclusion, Article 6 para. 1 (art. 6-1) was applicable.\n\n2. Compliance with Article 6 para. 1 (art. 6-1)\n\n123. It remains to establish whether a \"reasonable time\" was exceeded. The applicant and the Commission considered that it had been, whereas the Government denied this.\n\n(a) Period to be taken into consideration\n\n124. The period to be taken into consideration began on 29 March 1983, the date on which Mr Tomasi filed his complaint; it ended on 6 February 1989, with the delivery of the Court of Cassation’s judgment declaring the applicant’s appeal from the Bordeaux indictments division’s decision inadmissible (see paragraphs 46 and 67 above). It therefore lasted more than five years and ten months.\n\n(b) Reasonableness of the length of the proceedings\n\n125. The reasonableness of the length of proceedings is to be determined with reference to the criteria laid down in the Court’s case-law and in the light of the circumstances of the case, which in this instance call for an overall assessment.\n\nA reading of the decisions given in these proceedings (see paragraphs 63, 66 and 67 above) shows that the case was not a particularly complex one. In addition, the applicant hardly contributed to delaying the outcome of the proceedings by challenging in the  indictments division the decision finding no case to answer and by requesting that division to order a further inquiry (see paragraph 64 above). Responsibility for the delays found lies essentially with the judicial authorities. In particular, the Bastia public prosecutor allowed more than a year and a half to elapse before asking the Court of Cassation to designate the competent investigating authority (see paragraphs 57- 58 above). The  investigating judge heard Mr Tomasi only once and does not seem to have carried out any investigative measure between March and September 1985, and then between January 1986 and January 1987 (see paragraphs 59-61 above).\n\nThere has accordingly been a violation of Article 6 para. 1 (art. 6-1).\n\nIV. APPLICATION OF ARTICLE 50 (art. 50)\n\n126. According to Article 50 (art. 50):\n\n\"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.\"\n\nUnder this provision the applicant claimed compensation for damage and the reimbursement of costs.\n\nA. Damage\n\n127. Mr Tomasi distinguished three categories of damage:\n\n(a) pecuniary damage of 900,000 francs deriving from the violation of Article 5 para. 3 (art. 5-3), corresponding to loss of salary (600,000 francs) and of commercial income (300,000 francs);\n\n(b) damage assessed at a lump sum of 200,000 francs and payable, again in connection with Article 5 para. 3 (art. 5-3), in respect of the thirty-two visits made by his family to the continent in order to see him in prison;\n\n(c) non-pecuniary damage assessed at 1,500,000 francs, namely 1,000,000 for the violation of Article 5 para. 3 (art. 5-3) and 500,000 for the breach of Articles 3 and 6 (art. 3, art. 6).\n\n128. In the Government’s view, the Compensation Board has already compensated any damage linked to the excessive length of the pre-trial detention. If the Court were to find a violation of Article 6 para. 1 and Article 3 (art. 6-1, art. 3), its judgment would provide sufficient just satisfaction.\n\n129. The Delegate of the Commission recommended the payment of a sum covering non-pecuniary and pecuniary damage, but left it to the Court to assess the quantum of such an award.\n\n130. The Court finds that the applicant sustained undeniable non-pecuniary and pecuniary damage. Taking into account the various relevant considerations, including the Compensation Board’s decision, and making an assessment on an equitable basis in accordance with Article 50 (art. 50), it awards him 700,000 francs.\n\nB. Costs and expenses\n\n131. Mr Tomasi also claimed the reimbursement of his costs and expenses. For the proceedings before the French courts, he sought 276,500 francs (Mr Leclerc and Mr Lachaud: 141,500 francs; Mr Stagnara: 100,000 francs; Mr Boulanger: 5,000 francs; Mrs Waquet: 30,000 francs.). In respect of the proceedings before the Convention organs, he requested 237,200 francs.\n\n132. The Government and the Delegate of the Commission did not express a view on the first amount. As regards the second, the Government referred to decisions in cases concerning , whereas the Commission left the matter to be determined by the Court.\n\n133. Making an assessment on an equitable basis and having regard to the criteria which it applies in this field, the Court awards the applicant an overall amount of 300,000 francs.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1. Dismisses the Government’s preliminary objections;\n\n2. Holds that there has been a violation of Article 5 para. 3, Article 3 and Article 6 para. 1 (art. 5-3, art. 3, art. 6-1);\n\n3. Holds that the respondent State is to pay to the applicant, within three months, 700,000 (seven hundred thousand) French francs for damage and 300,000 (three hundred thousand) francs in respect of costs and expenses;\n\n4. Dismisses the remainder of the claim for just satisfaction.\n\nDone in English and in French, and delivered at a public hearing in the Human Rights Building, , on 27 August 1992.\n\nIn accordance with Article 51 para. 2 (art. 51-2) of the Convention and Rule 53 para. 2 of the Rules of Court, the concurring opinion of Mr De Meyer is annexed to this judgment.\n\nIt would be unfortunate if paragraphs 107 to 115 of the judgment were to leave the impression that blows inflicted on a suspect in police custody are prohibited only in so far as they exceed a certain \"minimum level of severity\", for example on account of the \"large number\" of such blows and their \"intensity\".\n\nAny use of physical force in respect of a person deprived of his liberty which is not made strictly necessary as a result of his own conduct violates human dignity and must therefore be regarded as a breach of the right guaranteed under Article 3 (art. 3) of the Convention.\n\nAt the most the severity of the treatment is relevant in determining, where appropriate, whether there has been torture.","title":""}
{"_id":"passage_165","text":"PROCEDURE\n\n1.  The case originated in an application (no. 44173/98) against the Italian Republic lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Italian national, Mr Raffaele Mucciacciaro (“the applicant”), on 28 September 1998.\n\n2.  The applicant was represented by Mr V. La Brocca and S. Rando, two lawyers practising in Benevento. The Italian Government (“the Government”) were represented by their Agent, Mr U. Leanza, assisted by their Co-Agent, Mr V. Esposito.\n\n3.  The applicant complained under Article 6 § 1 of the Convention about the length of a set of criminal proceedings.\n\n4.  The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).\n\n5.  The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1 of the Rules of Court.\n\n6.  By a decision of 15 March 2001 the Court declared the application  admissible.\n\n7.  On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed First Section.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n8.  On an unspecified date, criminal proceedings were instituted against the applicant for tax offences.\n\n9.  In an order of 18 September 1991, the Benevento investigating judge committed the applicant for trial, commencing on 16 December 1991 before the Benevento District Court. On 21 September 1991, this order was served on the applicant, who was thus informed of the charges brought against him.\n\n10.  The first hearing was adjourned because the applicant was ill. On 8 June 1992, at the parties' request, the District Court, acting in accordance with Article 2 § 3 of Presidential Decree n° 23 of  20 January 1992, decided to suspend the proceedings awaiting the information from the Benevento Revenue (Ufficio Finanziario delle Imposte dirette) on the applicant's integration into the taxpayers' list. On 29 October 1997, the District Court requested the Benevento Revenue to produce the information at issue. The information was given on 20 December 1997.\n\n11.  On 22 January 1998, the case was adjourned because on that day the lawyers of the Benevento Bar Association were on strike.\n\n12.  On 16 April 1998, the parties presented their final pleadings. The applicant and the Public Prosecutor requested the District Court to declare that the offences were time-barred.\n\n13.  By a judgment of 16 April 1998, filed with the registry on 23 April 1998, the District Court held that the charges had become time-barred in July 1997.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION\n\n14.  The applicant complains about the length of the criminal proceedings against him. He alleges a violation of Article 6 § 1 of the Convention, which, as far as relevant, reads as follows:\n\n“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”\n\n15.  The Government reject this allegation, on the ground that three out of the four hearings held before the Benevento District Court were postponed for reasons regarding the applicant's personal situation. They furthermore observe that the length is partly due to the delay in the response of the Benevento Revenue. They finally note that the applicant failed to request the District Court to schedule a new hearing and the Benevento Revenue to provide the information needed.\n\nA.  Period to be taken into consideration\n\n16.  The proceedings began at the latest on 21 September 1991, when the applicant was committed for trial, and ended on 23 April 1998, when the Benevento District Court's judgment became final.\n\n17.  They thus lasted six years, seven months and two days for one degree of jurisdiction.\n\nB.  Reasonableness of the length of the proceedings\n\n18.  According to the Court's case-law, the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in the Court's case-law, in particular the complexity of the case and the conduct of the applicant and of the authorities dealing with the case (see, among other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II, and Philis v. Greece (no. 2) judgment of 27 June 1997, Reports of judgments and decisions 1997-IV, p. 1083, § 35).\n\n19.  The Court first notes that the case was not complex. As to the applicant's conduct, it observes that the first hearing was adjourned due to the illness of the applicant. As for the second hearing, the parties jointly requested the proceedings to be suspended in order to obtain a communication by the Revenue Tax. Due to a lawyers' strike, eventually, the hearing scheduled for 22 January 1998 was postponed until 16 April 1998. Even if the applicant may be considered to be responsible for some of these delays and even considering the complications which strikes may cause by overloading the list of cases to be heard by courts, the Court considers that this cannot justify the total duration of the proceedings (see, mutatis mutandis, the Portington v. Greece judgment of 23 September 1998, Reports 1998-VI, p. 2632, § 29; the Zana v. Turkey judgment of 25 November 1997, Reports 1997-VII, p. 2552, § 79).\n\n20.  As regards the conduct of the State's authorities, the Court observes that there is a period of inactivity imputable to the authorities dealing with the case: between 8 June 1992, when the District Court suspended the proceedings in order to acquire information on the applicant's position from the Benevento Revenue, and 29 October 1997 when the District Court sent the request for information to the latter. The information was then provided on 20 December 1997. The Government did not provide any explanation for this delay which amounts to a period of more than five years and four months.\n\n21.  In these circumstances, the Court finds that a global period of six years, seven months and two days for one degree of jurisdiction fails to satisfy the “reasonable time” requirement.\n\n22.  There has accordingly been a violation of Article 6 § 1 of the Convention.\n\nII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n23.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n24.  The applicant claims 25,000,000 Italian lire (ITL) for the non-pecuniary damage he had allegedly sustained.\n\n25.  The Government maintained that a finding of a violation of the Convention would constitute sufficient just satisfaction.\n\n26.  The Court accepts that the applicant suffered damage of a non-pecuniary nature as a result of the length of the criminal proceedings. Making its assessment on an equitable basis and having regard to the circumstances of the case, the Court awards the applicant 11,000 euros (EUR).\n\nB.  Costs and expenses\n\n27.  The applicant claims ITL 7,657,038 for legal costs and expenses incurred before the Court.\n\n28.  The Government left the matter to be assessed by the Court in an equitable manner.\n\n29.  According to the Court's case-law, an award can be made in respect of costs and expenses only in so far as they have been actually and necessarily incurred by the applicant and are reasonable as to quantum (see, among other authorities, the Bottazzi v. Italie judgement [G.C.], n° 34884/97, § 30, CEDH 1999-V).\n\n30.  In the present case, on the basis of the information in its possession and the above-mentioned criteria, the Court considers that EUR 2,000 is a reasonable sum and awards the applicant that amount.\n\nC.  Default interest\n\n31.  According to the information available to the Court, the statutory rate of interest applicable in Italy at the date of adoption of the present judgment is 3% per annum.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Holds that there has been a violation of Article 6 § 1 of the Convention;\n\n2.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 11,000 (eleven thousand euros) in respect of non-pecuniary damage and EUR 2,000 (two thousand euros) in respect of costs and expenses ;\n\n(b)  that simple interest at an annual rate of 3% shall be payable from the expiry of the above-mentioned three months until settlement;\n\n3.  Dismisses the remainder of the applicant's claim for just satisfaction.\n\nDone in English, and notified in writing on 4 July 2002, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_396","text":"PROCEDURE\n\n1.  The case originated in an application (no. 12738/10) against the Kingdom of the Netherlands lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Surinamese national, Ms Meriam Margriet Jeunesse (“the applicant”), on 1 March 2010.\n\n2.  The applicant was represented by Ms G. Later, a lawyer practising in The Hague. The Netherlands Government (“the Government”) were represented by their Deputy Agent, Ms L. Egmond, of the Ministry of Foreign Affairs.\n\n3.  The applicant alleged that the refusal to exempt her from the obligation to hold a provisional residence visa and the refusal to admit her to the Netherlands violated her rights under Article 8 of the Convention.\n\n4.  The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). On 4 December 2012 it was declared partly admissible by a Chamber of that Section composed of the following judges: Josep Casadevall, President, Alvina Gyulumyan, Corneliu Bîrsan, Ján Šikuta, Luis López Guerra, Nona Tsotsoria and Johannes Silvis, judges, and Santiago Quesada, Section Registrar. On 14 May 2013 the Chamber relinquished jurisdiction in favour of the Grand Chamber, neither of the parties having objected to relinquishment (Article 30 of the Convention and Rule 72).\n\n5.  The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24 of the Rules of Court.\n\n6.  The applicant and the Government each filed further written observations (Rule 59 § 1) on the merits. In addition, third-party comments were received from the non-governmental organisations Defence for Children and the Immigrant Council of Ireland – Independent Law Centre, the President having authorised them to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3).\n\n7.  A hearing took place in public in the Human Rights Building, Strasbourg, on 13 November 2013 (Rule 59 § 3).\n\nThere appeared before the Court:\n\nThe Court heard addresses by Ms Later and Ms Egmond as well as answers given by Ms Later, Mr Eertink and Ms Egmond to questions put by judges.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n8.  The applicant was born in 1967 and is living in The Hague.\n\n9.  In March 1987 the applicant met and started a relationship with Mr W., who – like the applicant – was born and had always lived in Suriname. Both of them had acquired Surinamese nationality in 1975 when Suriname gained its independence (Article 3 of the Agreement between the Kingdom of the Netherlands and the Republic of Suriname concerning the assignment of nationality (Toescheidingsovereenkomst inzake nationaliteiten tussen het Koninkrijk der Nederlanden en de Republiek Suriname), see paragraph 62 below). In September 1989, the applicant and Mr W. started to cohabit in the house of the latter’s paternal grandfather in Suriname.\n\n10.  On 19 October 1991, Mr W. travelled from Suriname to the Netherlands, holding a Netherlands visa for the purpose of stay with his father in the Netherlands. In 1993, Mr W. was granted Netherlands nationality which entailed the renunciation of his Surinamese nationality.\n\n11.  Mr W. has one sister, two brothers and one half-brother who are living in the Netherlands. Two other half-brothers and one half-sister are living in Suriname. The applicant has one brother, G., who was expelled from the Netherlands to Suriname in 2009. The applicant has also one half-brother and one half-sister who are living in the Netherlands. She has another half-sister who is living in Suriname.\n\nA.  The applicant’s requests for a Netherlands residence permit\n\n12.  Between 1991 and 1995, the applicant filed five unsuccessful requests for a Netherlands visa for the purpose of visiting a relative. These requests were rejected because her sponsor (referent) was insufficiently solvent, had failed to sign the required affidavit of support (garantverklaring) or had failed to supply sufficient information required for the assessment of the visa request. The applicant did not challenge any of these rejections in administrative appeal proceedings.\n\n13.  On 19 November 1996 the applicant filed a sixth visa request for the purpose of visiting a relative. After this request had been granted on 4 March 1997, the applicant entered the Netherlands on 12 March 1997 and did not return to Suriname when her visa expired 45 days later. To date, she has been staying in the Netherlands. She lived in Rotterdam until 20 July 1998, when she moved to The Hague. Since 17 December 1998 she has been living at the same address in The Hague.\n\n1.  The request of 20 October 1997\n\n14.  On 20 October 1997, the applicant applied for a residence permit. According to the applicant, she had done so for the purpose of taking up residence with her Netherlands-national partner Mr W. According to the Government, the applicant’s stated aim had been to take up “paid employment”. On 16 February 1998, the Deputy Minister of Justice (Staatssecretaris van Justitie) decided not to process the application (buiten behandeling stellen) as the applicant had on two occasions failed to appear in person before the immigration authorities for the purpose of giving further information about her application. When, on 13 February 1998, the applicant’s lawyer had requested a new appointment on the ground that she would be unable to attend the interview scheduled for 16 February 1998, she was informed by the immigration authorities that – despite her lawyer’s absence – the applicant should appear in person. The applicant did not appear on 16 February 1998. The Deputy Minister’s decision of 16 February 1998 was notified to the applicant on 23 February 1998 and she was ordered to leave the Netherlands within seven days.\n\n15.  The applicant filed an objection (bezwaar) against the decision of 16 February 1998. As this objection was denied suspensive effect, she applied for a provisional measure (voorlopige voorziening) in the form of a court injunction preventing her expulsion pending the determination of her objection. This application was rejected on 23 December 1999 by the Acting President of the Regional Court (rechtbank) of The Hague sitting in Haarlem. The applicant’s objection against the decision of 16 February 1998 was rejected by the Deputy Minister on 17 January 2000. The applicant’s appeal against this decision to the Regional Court of The Hague and her accompanying application for a provisional measure were rejected on 12 July 2001 by the Regional Court of The Hague sitting in Utrecht. No further appeal lay against this ruling.\n\n16.  In the meantime, the applicant had married Mr W. on 25 June 1999 and, in September 2000, a son was born of this marriage. Under the Netherlands nationality rules, the applicant’s child is a Netherlands national. Since the child was unwell, he required lengthy treatment in hospital. He is currently attending secondary school and has no health problems.\n\n2.  The request of 20 April 2001\n\n17.  On 20 April 2001, the applicant applied unsuccessfully for a residence permit on the basis of the so-called three-year policy (driejarenbeleid) or for compelling reasons of a humanitarian nature. Under this three-year policy a residence permit could be granted if a request for such a permit had not been determined within a period of three years for reasons not imputable to the petitioner and provided that there were no contra-indications such as, for instance, a criminal record. In the course of the proceedings on this request, the provisional-measures judge (voorzieningenrechter) of the Regional Court of The Hague sitting in Amsterdam granted the applicant’s request for a provisional measure (injunction on removal) on 23 February 2004. The final decision was given on 17 May 2004 by the Regional Court of The Hague sitting in Amsterdam.\n\n18.  On 10 December 2005, a second child was born of the applicant’s marriage. This child also holds Netherlands nationality.\n\n3.  The request of 23 January 2007\n\n19.  On 23 January 2007, the applicant filed a request for a residence permit for the purpose of stay with her children in the Netherlands. This request was rejected because the applicant did not hold the required provisional residence visa (machtiging tot voorlopig verblijf). Such a visa has to be applied for at a Netherlands mission in the petitioner’s country of origin and it is a prerequisite for the grant of a residence permit (verblijfsvergunning) which confers more permanent residence rights. The applicant was not exempted from the obligation to hold a provisional residence visa. She challenged this decision unsuccessfully in administrative appeal proceedings in which the final decision was taken by the Regional Court of The Hague sitting in Haarlem on 19 April 2007.\n\n20.  On 7 May 2007, the applicant requested the Deputy Minister of Justice to reconsider (heroverwegen) the negative decision on her last request. On 28 September 2007, the applicant filed a complaint with the Deputy Minister on account of the latter’s failure to reply to her request for reconsideration. By letter of 12 November 2007, the Deputy Minister informed the applicant that although her complaint concerning delay was well-founded there was no reason for a reconsideration of the decision.\n\n4.  The request of 28 September 2007\n\n21.  On 28 September 2007, the applicant applied for a grant of a residence permit at the discretion of the Deputy Minister (conform beschikking staatssecretaris) based on grounds of special and individual circumstances (vanwege bijzondere en individuele omstandigheden).\n\n22.  On 7 July 2008, the Deputy Minister of Justice rejected this application. The applicant filed an objection with the Deputy Minister against this decision as well as an application to the Regional Court of The Hague for a provisional measure (injunction on removal pending the objection proceedings). On 17 November 2008, having noted that this request was not opposed by the Deputy Minister, the Regional Court of The Hague granted the provisional measure. On 11 March 2009, after a hearing on the applicant’s objection held on 15 January 2009, the Deputy Minister rejected the applicant’s objection.\n\n23.  The applicant’s appeal against the decision of 11 March 2009 to the Regional Court of The Hague and her accompanying application for a provisional measure in the form of an injunction on her removal pending the determination of her appeal were rejected on 8 December 2009 by the provisional-measures judge of the Regional Court of The Hague sitting in Haarlem. In its relevant part, this ruling reads as follows:\n\n“2.11  It is not in dispute that the appellant does not hold a valid provisional residence visa and that she is not eligible for an exemption from the requirement to hold such a visa under section 17 § 1 of the Aliens Act 2000 (Vreemdelingenwet 2000) or section 3.71 § 2 of the Aliens Decree 2000 (Vreemdelingenbesluit 2000). It is only in dispute whether reason dictates that the defendant should exempt the appellant from the obligation to hold a provisional residence visa on the basis of section 3.71 § 4 of the Aliens Decree [for reasons of exceptional hardship (onbillijkheid van overwegende aard)].\n\n2.12  The Regional Court finds that the defendant could reasonably conclude that in the present case there are no special and individual circumstances on the basis of which insistence on compliance with the visa requirement would entail exceptional hardship. ...\n\n2.18  The appellant’s reliance on Article 8 of the Convention fails. There is family life between the appellant and her husband and her minor children, but the defendant’s refusal to exempt her from the obligation to hold a provisional residence visa does not constitute an interference with the right to respect for family life as the defendant’s decision did not deprive her of a residence permit enabling her to enjoy her family life in the Netherlands.\n\n2.19  It does not appear that there is a positive obligation for the Netherlands State under Article 8 of the Convention to exempt the applicant, contrary to the policy pursued in this area, from the obligation to hold a provisional residence visa. It is of importance at the outset that there has been no appearance of any objective obstacle to the enjoyment of family life outside the Netherlands. Taking into account the young age of the appellant’s children, it can also reasonably be expected that they would follow the appellant to Suriname for the duration of the proceedings relating to the provisional residence visa. This is not altered by the fact that both children are Netherlands nationals. The fact that the appellant’s husband is currently being detained gives no cause for finding that ... there is an objective obstacle.\n\n2.20  The appellant has cited the judgments of the European Court of Human Rights in the cases of Rodrigues da Silva [and Hoogkamer v. the Netherlands, no. 50435/99, ECHR 2006I], Said Botan [v. the Netherlands (striking out), no. 1869/04, 10 March 2009] and Ibrahim Mohamed [v. the Netherlands (striking out), no. 1872/04, 10 March 2009]. This cannot succeed, for the following reasons. The case of Rodrigues da Silva did not concern a temporary separation in connection with maintaining the requirement to hold a provisional residence visa, so the case cannot be said to be comparable. In the cases of Said Botan and Ibrahim Mohamed the European Court found that the reasons for lodging the complaints had been removed, because a residence permit had been granted to the complainants in those cases. For that reason, their complaints were not considered further. The Regional Court fails to see in what manner the European Court’s findings in those two cases could be of relevance to the appellant’s case.\n\n2.21  The appellant has further invoked Article 2 of the International Convention on the Rights of the Child. In so far as the provisions invoked entail a directly applicable norm, they have no further implications beyond the fact that in proceedings such as those at hand, the interests of the children concerned must be taken into account. In the decision of 11 March 2009, the situation of the appellant’s two minor children was explicitly taken into account in the assessment. As the provisions invoked do not contain a norm as regards the weight that must be given in a concrete case to the interests of a child, there is no ground for finding that those provisions have been violated.\n\n2.22  The Regional Court will declare the appeal unfounded.”\n\n24.  On 2 August 2009, upon his return to the Netherlands from a trip to Suriname for the funeral of his foster mother, the applicant’s husband had been found to have swallowed cocaine pellets. He was placed in pre-trial detention. On 8 October 2009, a single-judge chamber (politierechter) of the Haarlem Regional Court convicted him of offences under the Opium Act (Opiumwet) and sentenced him to seven months’ imprisonment. On the basis of this conviction, the Netherlands Royal Constabulary (Koninklijke Marechaussee) included his name on a blacklist provided to airline companies operating direct flights between the Netherlands and Aruba, the former Netherlands Antilles, Suriname and Venezuela. His name was to remain on the list for a period of three years, the aim being to prevent him from reoffending. On 31 December 2009, after having served his sentence, the applicant’s husband was released from prison. His name was removed from the airline blacklist on 2 August 2012.\n\n25.  The applicant’s appeal of 7 January 2010 to the Administrative Jurisdiction Division of the Council of State (Afdeling bestuursrechtspraak van de Raad van State) against the judgment of 8 December 2009 of the provisional-measures judge of the Regional Court of The Hague was dismissed on 6 July 2010. The Administrative Jurisdiction Division found that the appeal did not provide grounds for quashing the impugned ruling (kan niet tot vernietiging van de aangevallen uitspraak leiden). Having regard to section 91 § 2 of the Aliens Act 2000, no further reasoning was called for as the arguments submitted did not raise any questions requiring a determination in the interest of legal unity, legal development or legal protection in the general sense. No further appeal lay against this decision.\n\n5.  The request of 16 April 2010\n\n26.  In the meantime, the applicant filed a fifth request on 16 April 2010 for a residence permit with the Minister of Justice (Minister van Justitie) for the purpose of stay with a child, arguing that she should be exempted from the obligation to hold a provisional residence visa on grounds of special and individual circumstances.\n\n27.  This request was rejected on 11 May 2010 by the Minister, who held that there was no reason to exempt the applicant from the obligation to hold a provisional residence visa and that the refusal of a residence permit was not contrary to Article 8 of the Convention. While accepting that there was family life within the meaning of Article 8 between the applicant, her husband and their children, the Minister found that there was no interference with the right to respect for family life as the refusal to grant the applicant’s request for exemption did not deprive her of a residence permit which enabled her to exercise her family life in the Netherlands.\n\n28.  As to the question whether the applicant’s rights under Article 8 entailed a positive obligation for the Netherlands to grant her a residence permit, the Minister found that the interests of the Netherlands State in pursuing a restrictive immigration policy outweighed the applicant’s personal interest in exercising her right to family life in the Netherlands. In balancing these competing interests, the Minister took into account the following: already in Suriname and before her arrival in the Netherlands the applicant had been in a relationship with her current spouse; she had entered the Netherlands without having been granted entry clearance for joining her partner as required under the relevant immigration rules; and she had created her family in the Netherlands without holding a residence permit. When it transpired in the course of the proceedings that the applicant was pregnant, the Minister further held that it had not been established, nor did it appear that the applicant would be unable – should hospitalisation be necessary – to give birth in a hospital in Suriname or that there would be any insurmountable objective obstacles to the exercise of family life in Suriname. On this point, the Minister noted that Dutch was spoken in Suriname and that the transition would not therefore be particularly difficult for the applicant’s children, who could continue their education in Suriname in a normal manner.\n\n29.  The Minister added that the mere fact that the applicant’s spouse and children were Netherlands nationals did not entail an automatic obligation for the Netherlands authorities to grant the applicant a residence permit, or lead to the conclusion that the exercise of family life would only be possible in the Netherlands. The Netherlands authorities could not be held responsible for the consequences of the applicant’s personal choice to come to, settle and create a family in the Netherlands without any certainty as to her entitlement to permanent residence. In the balancing exercise, the Minister attributed decisive weight to the fact that the applicant had never resided lawfully in the Netherlands and that there was no indication whatsoever that it would be impossible to exercise family life in Suriname.\n\n30.  The Minister further rejected the applicant’s argument that she ought to be exempted from the visa requirement, on the basis that inter alia the length of the applicant’s stay in the Netherlands was a consequence of her personal choice to continue to remain there. She had met with several refusals of her applications for a Netherlands residence permit but had nevertheless opted each time to file a fresh request, thus accepting the risk that, at some point in time, she would have to leave the Netherlands, at least, temporarily. The Minister further considered that the applicant had been born and raised in Suriname where she had resided most of her life and, given her age, she should be regarded as capable of returning to and fending for herself in Suriname, if need be with financial and/or material support from the Netherlands, pending the determination of an application for a provisional residence visa to be filed by her in Suriname. The Minister concluded on this point that the case disclosed no circumstances warranting a finding that the decision not to exempt the applicant from the visa requirement constituted exceptional hardship within the meaning of section 3.71 § 4 of the Aliens Decree 2000.\n\n31.  On 17 May 2010, the applicant filed an objection against this decision with the Minister. She filed additional grounds for her objection and furnished further information by letters of 20 and 25 May and 8 June 2010.\n\n32.  On 2 July 2010, the applicant requested the Regional Court of The Hague to issue a provisional measure (injunction on expulsion pending the outcome of the objection proceedings).\n\n33.  On 3 August 2010, following a court hearing held on 28 July 2010 and having regard to pending proceedings taken by the applicant seeking deferral of her removal under section 64 of the Aliens Act 2000 (see paragraph 53 below), the provisional-measures judge of the Regional Court of The Hague sitting in Amsterdam rejected the request for a provisional measure on the basis that it was moot.\n\n34.  On 19 December 2011 the Minister rejected the applicant’s objection of 17 May 2010. An appeal by the applicant against that decision was rejected on 17 July 2012 by the Regional Court of The Hague sitting in Dordrecht. In so far as relevant, its judgment reads:\n\n“2.4.1.  It must be examined whether the defendant could have refused to exempt the appellant from the obligation to hold a provisional residence visa, as required under section 3.71 § 1 of the Aliens Decree 2000, on the ground that removal is not contrary to Article 8 of the Convention.\n\n2.4.2.  It is not in dispute between the parties that there is family life between the appellant and her husband and their three minor children. Refusing the application [for a residence permit] does not constitute interference within the meaning of Article 8 § 2 of the Convention. No residence permit which actually enabled the appellant to enjoy family life in the Netherlands has been taken away from her. The subsequent question arises whether there exist such facts and circumstances that the right to respect for family life may be said to entail a positive obligation for the defendant to allow the applicant to reside [in the Netherlands]. In making this assessment, a ‘fair balance’ must be found between, on the one hand, the interests of the alien concerned in enjoying family life in the Netherlands and, on the other, the general interest of the Netherlands State in pursuing a restrictive immigration policy. In this balancing exercise, the defendant has a certain margin of appreciation.\n\n2.4.3.  It was reasonable for the defendant to attach more weight to the general interest of the Netherlands State than to the personal interests of the appellant and her family members. The defendant did not have to accept an obligation to grant the appellant residence in the Netherlands on the basis of Article 8 of the Convention. In this balancing exercise, the defendant was entitled to weigh heavily to the appellant’s disadvantage the fact that she had started family life in the Netherlands when she had not been granted a residence permit for this purpose, and that she had further intensified her family life despite the refusal of her requests for residence. This is not altered by the fact that for a certain period the appellant was lawfully resident while awaiting the outcome of proceedings concerning a request for a residence permit.\n\n2.4.4.  The defendant was entitled to take the position that the consequences of the appellant’s choices were at her own risk. According to the case-law of the European Court of Human Rights (Rodrigues da Silva and Hoogkamer v. the Netherlands [no. 50435/99, ECHR 2006I]), where family life has started while no residence permit for that purpose has been granted, removal will lead to a violation of Article 8 only in the most exceptional circumstances. The appellant has not established that, as regards her and her family, there are such exceptional circumstances. Her reliance on the judgments in Rodrigues da Silva and Hoogkamer and Nunez v. Norway (no. 55597/09, 28 June 2011) fails, as her situation is not comparable to the one in the cases of Rodrigues da Silva and Nunez. In those cases it was established that the children could not follow their mother to the country of origin. With the removal of the mother, contact with the children would become impossible. However, in the appellant’s case, it has not become sufficiently apparent that her husband and children could not follow her to her country of origin to continue family life there. The appellant has insufficiently demonstrated that her family members will encounter difficulties in entering Suriname. The consequence of her husband’s inclusion on a blacklist is that airlines can refuse to allow him on direct flights from the Netherlands to the Netherlands Antilles, Aruba, Suriname and Venezuela during the period between 2 August 2009 and 2 August 2012. This does not mean that it is self-evident that the husband will not be admitted to Suriname. The appellant has not established that it would be impossible for her husband to travel to Suriname in another manner. In addition, it is important to note that registration on the blacklist is only of a temporary nature.\n\n2.4.5.  No other circumstances have appeared on the basis of which the existence of an objective obstacle to continued family life in Suriname must be accepted. There is also no question of excessive formalism. The appellant’s situation is not comparable to the one in the case of Rodrigues da Silva. The defendant has taken the interests of the minor children sufficiently into account in the balancing exercise. The children were all born in the Netherlands and hold Netherlands nationality. At the time the impugned decision was taken, they were respectively eleven, six and one year old. The children have always lived in the Netherlands. Although the oldest child has built up bonds with the Netherlands, the defendant did not have to accept this as a basis for holding that the children could not take root in Suriname. In this connection it is also relevant that Dutch is spoken in Suriname and that both parents hail from Suriname.\n\n2.4.6.  This is not altered by the fact that the appellant’s husband and children hold Netherlands nationality and, on the basis of Article 20 of the Treaty on the Functioning of the European Union (hereinafter ‘TFEU’), can derive rights from their EU citizenship. It can be deduced from the considerations of the Court of Justice of the European Union (hereinafter ‘ECJ’) in the Dereci et al. judgment of 15 November 2011 (C-256/11), in which a further explanation is given of the Ruiz Zambrano judgment of 8 March 2011 (C-34/09), that in answering the question whether a citizen of the EU who enjoys family life with a third-country national will be denied the right to reside in EU territory flowing directly from Article 20 of the TFEU, only a limited importance is given to the right to respect for family life. As follows from paragraphs 68 and 69 of the Dereci judgment, this right is not, as such, protected by Article 20 of the TFEU but by other international, EU and domestic rules and regulations, such as Article 8 of the Convention, Article 7 of the Charter of Fundamental Rights of the European Union, EU Directives and section 15 of the Aliens Act 2000. In answering this question the desire of family members to reside as a nuclear family unit in the Netherlands or the European Union is, inter alia, also of limited importance.\n\n2.4.7.  The situation of an EU citizen being denied the right to reside in EU territory arises only when the EU citizen is so dependent on the third-country national that, as a consequence of the decision by the defendant, he has no other choice than to stay with that national outside EU territory. In the appellant’s case, that has not occurred. The appellant’s children can be cared for by their father. The father also has Netherlands nationality. The appellant’s husband and children are not obliged or actually compelled to go with her to Suriname in connection with the application for a provisional residence visa. Their rights as EU citizens are thus not breached.\n\n2.4.8.  It was reasonable for the defendant to take the view that there was no appearance of very special individual circumstances leading to undue hardship. The proceedings concerning the appellant’s previous requests for a residence permit and the course of events during her placement in aliens’ detention for removal purposes cannot be regarded as such. The lawfulness of the decisions taken in those proceedings cannot be examined in the present appeal proceedings. The appellant has further not substantiated her claim that, when she submitted her first request for a residence permit, she complied with all the requirements and that she should then have been granted a residence permit. ...”\n\nB.  Main steps taken aimed at the applicant’s removal from the Netherlands and her placement in aliens’ detention\n\n36.  On 5 January 2007, the aliens’ police ordered the applicant to report to them on 10 January 2007 so that she could be served with notice to leave the country within two weeks. This order was withdrawn owing to the applicant’s third request for a residence permit filed on 23 January 2007 (see paragraph 19 above).\n\n37.  On 26 February 2010, the applicant’s lawyer was informed by the aliens’ police that – as the applicant’s appeal against the judgment of 8 December 2009 (see paragraphs 23 and 25 above) did not have suspensive effect – they would proceed with the applicant’s removal.\n\n38.  On 10 April 2010, having failed to respond to a summons of 4 March 2010 to report to the aliens’ police, the applicant was placed in aliens’ detention (vreemdelingenbewaring) for removal purposes in accordance with section 59 § 1 (a) of the Aliens Act 2000. She was taken to the Zeist detention centre where she was found to be pregnant, her due date being 14 December 2010.\n\n39.  The applicant’s three successive release requests were rejected by the Regional Court of The Hague sitting in Rotterdam on 27 April, 1 June and 8 July 2010, respectively. In each decision, the Regional Court found that there were sufficient prospects of expulsion within a reasonable time frame and that the Netherlands authorities were pursuing the applicant’s removal with sufficient diligence. In its rulings, the Regional Court also rejected the applicant’s arguments that her pregnancy rendered her detention contrary to Article 3 and that, against that background, her conditions of detention were incompatible with that provision. In this context, in a letter of 29 June 2010 and addressed to the applicant’s lawyer who submitted it in the proceedings to the Regional Court, the Netherlands section of Amnesty International expressed its concern about the applicant’s placement in aliens’ detention. Although aware that the applicant had failed to respect the duty to report imposed on her, Amnesty International considered that a less severe measure than deprivation of liberty would be appropriate in the particular circumstances of the applicant’s case.\n\n40.  In the course of her placement in aliens’ detention, the applicant, on 28 June, 15 July and 3 August 2010, also filed complaints about her conditions of detention with the competent Supervisory Board (Commissie van Toezicht) of the two detention centres where she was held. These complaints were decided in two decisions given on 12 and 29 November 2010, respectively. Apart from the applicant’s complaint of 28 June 2010 that she had been required to wear restraints during transports to hospital, which was accepted as well-founded in the decision of 29 November 2010, the applicant’s complaints were dismissed. On 6 June 2011 the Appeals Board (beroepscommissie) of the Council for the Administration of Criminal Justice and Juvenile Protection (Raad voor Strafrechtstoepassing en Jeugdbescherming) gave final decisions on the applicant’s appeals against the decisions of 12 and 29 November 2010. It held that the use of restraints for pregnant women was impermissible. It also held that the applicant had received too little supplementary nutrition upon arrival at the Rotterdam detention centre. These complaints were considered by the Court in its decision on admissibility of 4 December 2012 (see paragraph 4 above) and were declared inadmissible for the reasons set out therein.\n\n41.  The applicant was released from aliens’ detention on 5 August 2010 and her third child was born on 28 November 2010.\n\n42.  On 25 September 2012, the Consulate General of Suriname in Amsterdam issued a Surinamese passport to the applicant, which is valid until 25 September 2017.\n\nII.  RELEVANT DOMESTIC AND SURINAMESE LAW\n\nA.  Dutch immigration law and policy\n\n43.  Until 1 April 2001, the admission, residence and expulsion of foreign nationals were regulated by the Aliens Act 1965 (Vreemdelingenwet 1965). Further rules were laid down in the Aliens Decree (Vreemdelingenbesluit), the Regulation on Aliens (Voorschrift Vreemdelingen) and the Aliens Act Implementation Guidelines (Vreemdelingencirculaire). The General Administrative Law Act (Algemene Wet Bestuursrecht) applied to proceedings under the Aliens Act 1965, unless indicated otherwise in this Act.\n\n44.  Under section 4:5 § 1 of the General Administrative Law Act, an administrative authority may decide not to process a petition where the petitioner has failed to comply with any statutory rule for processing the petition or where the information and documents provided are insufficient for assessing the petition, provided that the petitioner has been given the opportunity to complete the petition within a period fixed by the administrative authority concerned.\n\n45.  Under section 41 § 1 (c) of the Aliens Decree 1965, foreign nationals wishing to reside in the Netherlands for more than three months were required to hold, for admission to the Netherlands, a valid passport containing a valid provisional residence visa issued by a diplomatic or consular mission of the Netherlands in the country of origin or permanent residence, or failing that, the nearest country in which such a mission is established. The purpose of the requirement of this visa was, inter alia, to prevent unauthorised entry and residence in the Netherlands. Failing a provisional residence visa, entry and residence in the Netherlands were contrary to the provisions of the Aliens Act 1965. However, lack of a provisional residence visa could not lead to a refusal of a residence permit if, at the time of the application, all the other conditions had been met.\n\n46.  On 1 April 2001, the Aliens Act 1965 was replaced by the Aliens Act 2000. On the same date, the Aliens Decree, the Regulation on Aliens and the Aliens Act Implementation Guidelines were replaced by new versions based on the Aliens Act 2000. Unless indicated otherwise in the Aliens Act 2000, the General Administrative Law Act continued to apply to proceedings on requests by aliens for admission and residence.\n\n47.  According to the transitional rules, set out in section 11 of the Aliens Act 2000, an application for a residence permit which was being processed at the time this Act entered into force was to be considered as an application under the provisions of the Aliens Act 2000. Because no transitional rules were laid down for the substantive provisions of the aliens’ law, the substantive provisions of the Aliens Act 2000 took effect immediately.\n\n48.  Section 1 (h) of the Aliens Act 2000, as in force at the material time, provided:\n\n“In this Act and the provisions based upon it the following expressions shall have the following meanings: ...\n\n(h)  provisional residence visa: a visa issued by a Netherlands diplomatic or consular mission in the country of origin or in the country of ordinary residence or by the Office of the Governor of the Netherlands Antilles or by the Office of the Governor of Aruba in those countries, with the prior authorisation of Our Minister for Foreign Affairs, for a stay of longer than three months;”\n\n49.  Section 8(a), (f), (h) and (j) of the Aliens Act 2000 states:\n\n“An alien is lawfully resident in the Netherlands only:\n\n(a)  on the ground of a residence permit for a fixed period as referred to in section 14 [of this Act, i.e. a residence permit granted for another purpose than asylum]; ...\n\n(c)  on the ground of a residence permit for a fixed period as referred to in section 28 [of the Act; i.e. a residence permit granted for asylum]; ...\n\n(f)  pending a decision on an application for the issue of a residence permit as referred to in sections 14 and 28 in circumstances where, by or pursuant to this Act or on the ground of a judicial decision, expulsion of the applicant should not take place until the decision on the application has been given; ...\n\n(h)  pending a decision on a notice of objection, review or appeal, in circumstances where, by or pursuant to this Act or on the grounds of a judicial decision, expulsion of the applicant should not take place until the decision on the notice of objection or notice of appeal has been given; ...\n\n(j)  if there are obstacles to the expulsion as referred to in section 64; ...”\n\n50.  Section 16 § 1(a) of the Aliens Act 2000 reads:\n\n“1.  An application for the issue of a residence permit for a fixed period as referred to in section 14 may be rejected if:\n\n(a)  the alien does not possess a valid provisional residence visa which corresponds to the purpose of the residence for which application has been made for a residence permit;”\n\n51.  Section 27 of the Aliens Act 2000 provides, in its relevant part, as follows:\n\n“1.  The consequences of a decision rejecting an application for the issue of a residence permit for a fixed period as referred to in section 14 or a residence permit for an indefinite period as referred to in section 20 shall be, by operation of law, that:\n\n(a)  the alien is no longer lawfully resident, unless another legal ground for lawful residence exists;\n\n(b)  the alien should leave the Netherlands of his own volition within the time limit prescribed in section 62, failing which the alien may be expelled, and\n\n(c)  the aliens supervision officers are authorised, after the expiry of the time limit within which the alien must leave the Netherlands of his own volition, to enter every place, including a dwelling, without the consent of the occupant, in order to expel the alien.\n\n2.  Paragraph 1 shall apply mutatis mutandis if:\n\n(a)  it has been decided under section 24 or under section 4:5 of the General Administrative Law Act that the application will not be processed; ...”\n\n52.  Section 62 § 1 of the Aliens Act 2000 reads:\n\n“After the lawful residence of an alien has ended, he must leave the Netherlands of his own volition within four weeks.”\n\n53.  Section 64 of the Aliens Act 2000 provides:\n\n“An alien shall not be expelled as long as his health or that of any of the members of his family would make it inadvisable for him to travel.”\n\n54.  Section 3.71 § 1 of the Aliens Decree 2000 reads:\n\n“The application for a fixed-term residence permit, as referred to in section 14 of the Act shall be rejected if the alien does not hold a valid provisional residence visa.”\n\n55.  According to section 3.1 § 1 of the Aliens Decree 2000, a foreign national who has made an application for a residence permit is not to be expelled, unless that application, according to the Minister, merely repeats an earlier application.\n\n56.  Under the Aliens Act Implementation Guidelines 2000, the obligation for a foreign national to obtain a provisional residence visa allows the Netherlands authorities to check that the foreign applicant meets all the conditions for the grant of that visa prior to his or her entry into national territory. The power to grant a provisional residence visa is vested in the Netherlands Minister of Foreign Affairs. An application for a provisional residence visa is, in principle, assessed on the basis of the same criteria as a residence permit. Only once such a visa has been issued abroad may the holder travel to the Netherlands and apply for a Netherlands residence permit. In the absence of a provisional residence visa, an alien’s entry into and residence in the Netherlands are unlawful.\n\n57.  The Netherlands Government pursue a restrictive immigration policy due to the population and employment situation in the Netherlands. Aliens are eligible for admission only on the basis of directly applicable international agreements, or if their presence serves an essential Dutch interest, or for compelling reasons of a humanitarian nature (section 13 of the Aliens Act 2000). Respect for family life as guaranteed by Article 8 of the Convention constitutes an obligation under an international agreement.\n\n58.  The admission policy for family formation (gezinsvorming) and family reunification (gezinshereniging) purposes is laid down in Chapter B1 of the Aliens Act Implementation Guidelines 2000. A partner or spouse of a Netherlands national is, in principle, eligible for admission, if certain further conditions relating to matters, such as, public policy and means of subsistence are met.\n\n59.  Pursuant to section 3.71 § 1 of the Aliens Decree 2000, a petition for a residence permit for the purpose of family formation shall be rejected if the foreign petitioner does not hold a valid provisional residence visa. A number of categories of aliens is exempted from the requirement to hold a valid provisional residence visa (section 17 § 1 of the Aliens Act 2000 in conjunction with section 3.71 § 2 of the Aliens Decree 2000), one of these categories being aliens whose removal is contrary to Article 8 of the Convention. In addition, under section 3.71 § 4 of the Aliens Decree 2000, the competent Minister may decide not to apply the first paragraph of that provision if it is considered that its application will result in exceptional hardship (onbillijkheid van overwegende aard). Chapter B1/2.2.1 of the Aliens Act Implementation Guidelines 2000 sets out the policy on the application of the hardship clause.\n\n60.  Pursuant to Chapter A4/7.6 of the Aliens Act Implementation Guidelines 2000, pregnant women are not expelled by aircraft within the six weeks prior to delivery. The same provision applies to any woman in the first six weeks after having given birth. Outside this period, pregnancy – in the absence of medical complications – is not a reason for postponing expulsion.\n\n61.  According to section 6:83 of Book 1 of the Netherlands Civil Code (Burgerlijk Wetboek), as in force when the applicant married Mr W. on 25 June 1999, cohabitation of spouses was in principle obligatory. This provision was removed from the Civil Code by the Act of 31 May 2001 amending the rights and obligations of spouses and registered partners. This Act entered into force on 22 June 2001.\n\nB.  The Agreement between the Kingdom of the Netherlands and the Republic of Suriname concerning the assignment of nationality\n\n62.  Formerly a country (land) within the Kingdom of the Netherlands, Suriname became an independent republic on 25 November 1975. The Agreement between the Kingdom of the Netherlands and the Republic of Suriname concerning the assignment of nationality of 25 November 1975, Tractatenblad (Netherlands Treaty Series) 1975, no. 132, [1976] 997 United Nations Treaty Series (UNTS) no. 14598, as amended by the Protocol of 14 November 1994, Tractatenblad 1994, no. 280, in its relevant parts, provides as follows:\n\n1.  The acquisition of Surinamese nationality pursuant to this Agreement shall entail the loss of Netherlands nationality.\n\n2.  The acquisition of Netherlands nationality pursuant to this Agreement shall entail the loss of Surinamese nationality.\n\nAll Netherlands nationals of full age who were born in Suriname and whose domicile or place of actual residence is in Suriname on the date of the entry into force of this Agreement shall acquire Surinamese nationality. ...”\n\nC.  Surinamese immigration law and policy\n\n63.  The following information was taken from the Internet web pages of the Surinamese Ministry of Police and Justice (Ministerie van Politie en Justitie), Department of Aliens’ Affairs (Hoofdafdeling Vreemdelingenzaken) and the Surinamese Consulate General in Amsterdam. Aliens subject to visa requirements (visumplichtige vreemdelingen) may enter Suriname on a tourist visa for up to ninety days. If they wish to remain in Suriname for longer, they must first obtain a short-residence visa (machtiging voor kort verblijf, “MKV”) via a Surinamese embassy or consulate in their country of origin. This document enables the alien to request a residence permit after arriving in Suriname.\n\n64.  The short-residence visa requirement is waived in respect of aliens of Surinamese origin. They may enter Suriname on a tourist’s travel document and request a Surinamese residence permit after their arrival. This category is defined to include, inter alios, the following:\n\n-  persons born in Suriname who now have a nationality other than Surinamese;\n\n-  persons born outside Suriname to parents one or both of whom was, or were, born in Suriname, those persons having or having had legally recognised family ties (familierechtelijke betrekkingen) with said parent or parents, and who now have a nationality other than Surinamese;\n\n-  the spouse and minor children who actually belong to the family of one of the above.\n\n65.  In addition, a multiple-entry tourist visa valid for three years is available for aliens of Surinamese origin (provided that they have not been refused entry into Suriname during the preceding five years).\n\n66.  Certain foreign nationals, including Netherlands nationals, may purchase a single-entry “tourist card” which in the case of aliens of Surinamese origin (as defined in paragraph 63 above) is valid for up to six months (ninety days in all other cases). Documents to be submitted are a passport valid for six months or more on arrival, a return ticket and (if applicable) proof of Surinamese origin.\n\nD.  Surinamese Act on Persons of Surinamese Origin, 2013\n\n67.  On 20 December 2013, the National Assembly of Suriname adopted the Act on Persons of Surinamese Origin (Wet Personen van Surinaamse Afkomst), also known as the Diaspora Act. This Act was published in no. 8 of the 2014 Official Gazette (Staatsblad) of Suriname on 21 January 2014 and entered into force three months after publication. This Act defines a “person of Surinamese origin” as someone who does not hold Surinamese nationality but who is born in Suriname or who has at least one parent or two grandparents hailing from Suriname. Under section 9 of this Act, a person holding the status of “person of Surinamese origin” as defined in this Act has the right to enter Suriname freely and to settle and work there, and the visa requirements that apply to foreign nationals in these areas are waived for a “person of Surinamese origin”.\n\nE.  Official language of Suriname\n\n68.  Dutch is the sole official language of Suriname and thus used by government and administration. It is taught in public education. It is also widely spoken in addition to the traditional languages of particular ethnic groups.\n\nIII.  RELEVANT EUROPEAN AND INTERNATIONAL LAW\n\nA.  Relevant European Union law\n\n69.  The applicable rules for family reunification under European Union (“EU”) law differ depending on the status of the person receiving the alien for family reunification purposes. There are three main categories:\n\n70.  Article 20 of the Treaty on the Functioning of the European Union (TFEU) reads as follows:\n\n“1.  Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.\n\n2.  Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:\n\nThese rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder.”\n\n71.  On 8 March 2011 the Court of Justice of the European Union gave its ruling in Case C34/09, Gerardo Ruiz Zambrano v. Office national de l’emploi (ONEm), which concerned the right of two Columbian nationals, Mr Ruiz Zambrano and his wife, to reside in Belgium on account of the Belgian nationality of their two minor children who had acquired such nationality due to the fact that they were born in Belgium during a period when their parents had been granted humanitarian protection allowing them to reside in Belgium. However, the parents then lost their protective status in Belgium. In this case, the Court of Justice held as follows:\n\n“Article 20 [of the TFEU] is to be interpreted as meaning that it precludes a Member State from refusing a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen.”\n\n72.  In its judgment of 15 November 2011 in Case 256/11, Dereci and Others v. Bundesministerium für Inneres, the Court of Justice examined, inter alia, the question whether Article 20 of the TFEU was to be interpreted as prohibiting a Member State from refusing to grant a right of residence to a national of a non-member country who wished to live with their spouse and minor children, who were European Union citizens resident in Austria and nationals of that Member State, whilst the spouse and children had never exercised their EU right to free movement and were not maintained by the national of a non-member country. It held as follows:\n\n“64  ... the Court has held that Article 20 [of the TFEU] precludes national measures which have the effect of depriving Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of that status (see Ruiz Zambrano, paragraph 42).\n\n65  Indeed, in the case leading to that judgment, the question arose as to whether a refusal to grant a right of residence to a third country national with dependent minor children in the Member State where those children are nationals and reside and a refusal to grant such a person a work permit would have such an effect. The Court considered in particular that such a refusal would lead to a situation where those children, who are citizens of the Union, would have to leave the territory of the Union in order to accompany their parents. In those circumstances, those citizens of the Union would, in fact, be unable to exercise the substance of the rights conferred on them by virtue of their status as citizens of the Union (see Ruiz Zambrano, paragraphs 43 and 44).\n\n66  It follows that the criterion relating to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of European Union citizen status refers to situations in which the Union citizen has, in fact, to leave not only the territory of the Member State of which he is a national but also the territory of the Union as a whole.\n\n67  That criterion is specific in character inasmuch as it relates to situations in which, although subordinate legislation on the right of residence of third country nationals is not applicable, a right of residence may not, exceptionally, be refused to a third country national, who is a family member of a Member State national, as the effectiveness of Union citizenship enjoyed by that national would otherwise be undermined.\n\n68  Consequently, the mere fact that it might appear desirable to a national of a Member State, for economic reasons or in order to keep his family together in the territory of the Union, for the members of his family who do not have the nationality of a Member State to be able to reside with him in the territory of the Union, is not sufficient in itself to support the view that the Union citizen will be forced to leave Union territory if such a right is not granted.\n\n69  That finding is, admittedly, without prejudice to the question whether, on the basis of other criteria, inter alia, by virtue of the right to the protection of family life, a right of residence cannot be refused. However, that question must be tackled in the framework of the provisions on the protection of fundamental rights which are applicable in each case.”\n\nB.  The International Convention on the Rights of the Child\n\n73.  The relevant provisions of the United Nations Convention on the Rights of the Child (“CRC”), signed in New York on 20 November 1989, read as follows:\n\nPreamble\n\n“The States Parties to the present Convention, ...\n\nConvinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community,\n\nRecognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding, ...\n\nHave agreed as follows: ...\n\nArticle 3\n\n1.  In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.\n\n2.  States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.\n\n3.  States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.\n\nArticle 6 ...\n\n2.  States Parties shall ensure to the maximum extent possible the survival and development of the child.\n\nArticle 7\n\n1.  The child shall ... have the right from birth... to know and be cared for by his or her parents...\n\nArticle 9\n\n1.  States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. ...\n\nArticle 12\n\n1.  States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.\n\n2.  For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.\n\nArticle 18\n\n1.  States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern. ...\n\nArticle 27\n\n1.  States Parties recognize the right of every child to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development.\n\n2.  The parent(s) or others responsible for the child have the primary responsibility to secure, within their abilities and financial capacities, the conditions of living necessary for the child’s development.\n\n3.  States Parties, in accordance with national conditions and within their means, shall take appropriate measures to assist parents and others responsible for the child to implement this right ...”\n\n74.  In its General Comment No. 7 (2005) on Implementing child rights in early childhood, the Committee on the Rights of the Child – the body of independent experts that monitors implementation of the CRC by its State Parties – wished to encourage recognition by States Parties that young children are holders of all rights enshrined in the said Convention and that early childhood is a critical period for the realisation of these rights. The best interests of the child are examined, in particular, in section 13, which provides as follows:\n\n“13.  Best interests of the child. Article 3 [of the CRC] sets out the principle that the best interests of the child are a primary consideration in all actions concerning children. By virtue of their relative immaturity, young children are reliant on responsible authorities to assess and represent their rights and best interests in relation to decisions and actions that affect their well-being, while taking account of their views and evolving capacities. The principle of best interests appears repeatedly within the Convention (including in articles 9, 18, 20 and 21, which are most relevant to early childhood). The principle of best interests applies to all actions concerning children and requires active measures to protect their rights and promote their survival, growth, and well-being, as well as measures to support and assist parents and others who have day-to-day responsibility for realizing children’s rights:\n\n(a)  Best interests of individual children. All decision-making concerning a child’s care, health, education, etc. must take account of the best interests principle, including decisions by parents, professionals and others responsible for children.\n\nStates parties are urged to make provisions for young children to be represented independently in all legal proceedings by someone who acts for the child’s interests, and for children to be heard in all cases where they are capable of expressing their opinions or preferences; ...”\n\n75.  For a fuller discussion, see Neulinger and Shuruk v. Switzerland ([GC], no. 41615/07, §§ 49-55, ECHR 2010).\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION\n\n76.  The applicant complained that to deny her residence in the Netherlands was contrary to her right to respect for family life as guaranteed by Article 8 of the Convention. This provision reads as follows:\n\n“1.  Everyone has the right to respect for his ... family life, ...\n\n2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”\n\nA.  The parties’ submissions\n\n1.  The applicant\n\n77.  The applicant claimed that the refusal to exempt her from the obligation to hold a provisional residence visa and the refusal to admit her to the Netherlands breached her right under Article 8 of the Convention. Her intention had been from the outset to settle in the Netherlands with her partner, later her husband, and this had at all relevant times been known to the Netherlands immigration authorities. The applicant submitted that the Court should place emphasis on the question as to whether a fair balance had been struck between the competing interests involved. She considered that in her case no fair balance had been struck for the following reasons.\n\n78.  In the first place, the applicant and her family, i.e. her husband and their three children, had lived together as a family in the Netherlands for the past sixteen years. They had lived in the same family home since 1999. All her children had been born in the Netherlands and both her husband and her children were Netherlands nationals. The applicant, herself, was a former Netherlands national prior to the independence of Suriname.\n\n79.  To refuse the applicant a Netherlands residence permit would inevitably result in the family becoming separated. Her husband was gainfully employed in the Netherlands and he was the sole financial provider for the family. His income was required to support the family and to pay for debts incurred because the applicant was never permitted to work in the Netherlands and thus to contribute to the family income. The distance between the Netherlands and Suriname was obviously too far for her husband to commute and he did not have a job in Suriname.\n\n80.  The applicant further submitted that, whilst she had never been granted a residence permit, she had in fact been lawfully present during a large part of her time in the Netherlands in that she had been allowed to remain whilst awaiting the outcome of the proceedings on her requests for a residence permit which, moreover, had been unnecessarily protracted. She argued that the years that had passed since her first lawful admission into the Netherlands must be taken into consideration. Even during periods when she was eligible for removal, no practical steps had been taken by the authorities to ensure her effective removal. During this time her family life had been established and developed. She also pointed out that she had never lied about her identity and, unlike the situation of the applicants in the cases of Nunez v. Norway, (no. 55597/09, 28 June 2011); Arvelo Aponte v. the Netherlands, (no. 28770/05, 3 November 2011); and Antwi and Others v. Norway, (no. 26940/10, 14 February 2012), she had no criminal record.\n\n81.  The applicant considered that it was in the best interests of her children that she be permitted to reside in the Netherlands. She was their primary carer and they needed their mother to be with them. Her husband was working shift work, at times, and this prevented him from returning home every day. The children depended on her emotionally and psychologically and it was in their best interests to have her stay with them and a separation would have adverse effect on their development. She relied upon an expert report that was supplied to the Court in support of her claim that the children had already been adversely affected by the separation that they had endured during their mother’s placement in aliens’ detention. To grant the applicant a residence permit would give the children the stability, certainty and a sense of security they needed.\n\n82.  The applicant contended that it was also in the best interests of her children – who were rooted in the Netherlands – to preserve their family unit in the Netherlands. Leaving the Netherlands with their mother to move to Suriname would have a negative impact upon them. The children were settled in schools and had their friends there. They were all doing very well at school. They had no friends in Suriname and they were not used to Surinamese schools.\n\n83.  The applicant also argued that it would be contrary to the rights of her children under Article 20 of the TFEU if they would be compelled to leave the Netherlands and the European Union as a result of the applicant being refused residence in the Netherlands. Article 20 of this Treaty, as interpreted by the Court of Justice of the European Union in its Ruiz Zambrano judgment (see paragraph 71 above), entitled her to remain in the European Union on the strength of the Netherlands nationality of her dependent children. The applicant’s children could not be held responsible for choices made by their parents.\n\n84.  The applicant thus concluded that, in the circumstances of her case, the general interests of the Netherlands State did not outweigh the rights of the applicant and her family under Article 8 and that insufficient weight had been given to the best interests of her children. The outcome reached by the Netherlands authorities was not in line with Article 3 of the United Nations Convention on the Rights of the Child nor was it proportionate for the purposes of Article 8 of the Convention.\n\n2.  The Government\n\n85.  The Government accepted that the applicant had family life in the Netherlands within the meaning of Article 8 of the Convention. Since she was still in the process of seeking a first admission for residence purposes, the pertinent question was whether the Netherlands authorities were under a positive obligation to allow her to reside in the Netherlands for the purpose of enabling her to enjoy family life with her husband and children there. This was the essential question in the case, and not the requirement to hold a provisional residence visa when applying for a residence permit.\n\n86.  As to whether a fair balance had been struck, the Government pointed out that, in view of the Court’s case-law under Article 8 of the Convention relating to family life formed during an unlawful stay, it was only in the most exceptional circumstances that the removal of the nonnational family member would be contrary to Article 8.\n\n87.  Noting that the applicant and Mr W. already had a relationship when they were living in Suriname, the Government observed that – before travelling to the Netherlands – the applicant had never applied for a (provisional residence) visa for the purpose of visiting or living with Mr W., even though she had been in a relationship with him since 1987. The applicant seemed to have made this decision deliberately with a view to settling in the Netherlands and thus presenting the Netherlands authorities with a fait accompli. When she travelled to the Netherlands on a 45-day tourist visa for the purpose of visiting a relative, she knew that her visa could not serve as a basis for a residence permit.\n\n88.  The Government pointed out that only after almost six months of illegal residence in the Netherlands did the applicant submit her first request for a residence permit. That request was not examined because she had failed to cooperate with the authorities. Despite being notified on two occasions, she had not appeared in person before the immigration authorities and had failed to submit the requisite documents. None of the applicant’s subsequent requests for a residence permit – all of which were determined within a reasonable time – had been made for the purpose of reunification with Mr W., whereas she now complained of having been denied a residence permit enabling her to exercise her family life.\n\n89.  The Government further submitted that the applicant had been given notice that she was obliged to leave the Netherlands on several occasions during the periods in which she was not permitted to stay to await the outcome of her domestic proceedings. However, she had failed to comply. The applicant had no grounds whatsoever for believing, and had not been given any reason to believe, that she would be issued with a residence permit.\n\n90.  The Government considered that there were no “highly exceptional circumstances” in the applicant’s case. There were no objective impediments or insurmountable obstacles for the applicant to exercise her family life in Suriname. Both she and her husband were born and raised there and had lived in Suriname for most of their lives. They were both adults and capable of building a life in Suriname where they still had relatives. Furthermore, Dutch was the official language of Suriname in government and administration and it had not been demonstrated that her husband would not be permitted to settle in Suriname. The applicant’s decision to further her family life in the Netherlands and to have children there, even though she and her husband knew that she was not lawfully residing there, was her own choice. On that account, the applicant was responsible for the consequences of that decision.\n\n91.  As regards the weight to be given to the best interests of the children, the Government considered that the birth of a child, even if the child held the nationality of the host country, did not, in itself, give its parent(s) the right of residence. Admittedly, it was, in principle, important for children to grow up in the vicinity of both parents. However, in the case at hand there was no question of the family being separated as there were no objective insurmountable obstacles to exercising the right to family life elsewhere.\n\n92.  According to the Government, the applicant’s children – now 13, 8 and 3 years old, respectively – were still relatively young and adaptable. It could be expected that they would adjust to the culture of Suriname where Dutch was spoken. Any other conclusion would mean that emigration would almost always be contrary to the general interest of any child who had become integrated in the country where it was born and being raised. The Government argued that it could not be inferred from the Court’s case-law that the general interest of children could be the sole decisive factor. There was no evidence of specific circumstances, such as a guardianship arrangement, special education or health issues requiring that the applicant’s children be regarded as being “bound” to the Netherlands. The Government lastly submitted that the applicant had no direct or derived residence rights under EU law and that her situation bore no resemblance to that of the Ruiz Zambrano case (see paragraph 71 above) invoked by her.\n\n93.  The Government concluded that a careful review of the facts of the case had been carried out in order to determine whether the applicant should be granted residence in the Netherlands on the basis of Article 8. Only after this had been found not to be the case, did the Netherlands authorities conclude that the applicant was not exempted from the obligation to hold a provisional residence visa. The applicant had deliberately used her entry visa for purposes other than a brief family visit and should not be entitled to remain in the Netherlands merely because of her wish to live there and her filing of repeated residence requests.\n\n3.  Third parties\n\n(a)  Defence for Children\n\n94.  Defence for Children (“DFC”) emphasised – referring to the general principles contained in the United Nations Convention on the Rights of the Child (“CRC”) which has been ratified by all Member States of the Council of Europe – that this Convention prescribed that the best interests of the child were to be a primary consideration in all decisions relating to children.\n\n95.  DFC argued that the general “best interests of the child” principle should, in cases about family reunification, be interpreted and explained with reference to the rights in the CRC regarding the relationship between children and their parents. It considered that, in order to determine the best interests of a specific child, it was of essential importance to take into consideration his or her personal development. DFC further enumerated elements which, according to the Committee on the Rights of the Child, a monitoring body of independent experts overseeing the implementation of the CRC, must be taken into account when assessing and determining the best interests of the child in each individual case.\n\n96.  DFC further considered that in the Court’s recent case-law on Article 8 of the Convention the “best interests of the child” principle had become more firmly established as a crucial factor in examining situations concerning children. It lastly submitted that the Netherlands immigration authorities fell short of their obligation under the CRC and Article 8 to make the best interests of the child a primary consideration in their decisions.\n\n(b)  The Immigrant Council of Ireland – Independent Law Centre\n\n97.  The Immigrant Council of Ireland (“ICI”) submitted that the protection of the EU Directive 2004/38/EC only operates in respect of EU nationals who have exercised their right of free movement under EU rules. It confirmed that there exists no codified EU secondary legislation expressly regulating the residence rights of third country national (TCN) family members of “static” EU citizens.\n\n98.  However, referring to various rulings of the Court of Justice of the European Union, the ICI submitted that because the decision to grant or withhold residence rights to TCNs could have a significant impact on the continued enjoyment by EU citizens of their right under Articles 20 and 21 of the TFEU to reside in the territory of the EU, it was those Treaty provisions which brought such situations within the scope of EU law. Relying on the Ruiz Zambrano ruling (see paragraph 71 above), it argued that Article 20 grounded a right of residence for a TCN who was a family member of a “static” EU citizen where the consequence of a refusal of residence would mean that the EU citizen involved would have to leave the territory of the EU. Since the only way in which that eventuality could be avoided was by the family relocating to another EU Member State, States were – according to the ICI – under an EU law duty to ascertain whether or not it was reasonable to expect them to do so.\n\n99.  The ICI further described the “effective legal protection” which EU law required. It advocated for coherence on European family reunification principles, arguing that the Court should ensure that the level of human rights protection under the Convention was at least equal to the level of protection afforded by EU law without preventing the Court from giving a more extensive human rights protection than was guaranteed under EU law.\n\nB.  The Court’s assessment\n\n1.  General considerations\n\n100.  The present case concerns essentially a refusal to allow the applicant to reside in the Netherlands on the basis of her family life in the Netherlands. It has not been disputed that there is family life within the meaning of Article 8 of the Convention between the applicant and her husband and their three children. As to the question of compliance with this provision, the Court reiterates that a State is entitled, as a matter of well-established international law and subject to its treaty obligations, to control the entry of aliens into its territory and their residence there. The Convention does not guarantee the right of a foreign national to enter or to reside in a particular country (see, for instance, Nunez, cited above, § 66). The corollary of a State’s right to control immigration is the duty of aliens such as the applicant to submit to immigration controls and procedures and leave the territory of the Contracting State when so ordered if they are lawfully denied entry or residence.\n\n101.  The Court notes the applicant’s clear failure to comply with the obligation to obtain a provisional residence visa from abroad before seeking permanent residence rights in the Netherlands. It reiterates that, in principle, Contracting States have the right to require aliens seeking residence on their territory to make the appropriate request from abroad. They are thus under no obligation to allow foreign nationals to await the outcome of immigration proceedings on their territory (see, as a recent authority, Djokaba Lambi Longa v. the Netherlands (dec.), no. 33917/12, § 81, 9 October 2012).\n\n102.  Although the applicant has been in the Netherlands since March 1997, she has – apart from the initial period when she held a tourist visa valid for 45 days – never held a residence permit issued to her by the Netherlands authorities. Her stay in the Netherlands therefore cannot be equated with a lawful stay where the authorities have granted an alien permission to settle in their country (see Useinov v. the Netherlands (dec.), no. 61292/00, 11 April 2006). However, the Court notes that until 22 June 2001 she was under a civil obligation, pursuant to section 6:83 of Book 1 of the Civil Code, to live with her husband (see paragraph 61 above).\n\n103.  Where a Contracting State tolerates the presence of an alien in its territory thereby allowing him or her to await a decision on an application for a residence permit, an appeal against such a decision or a fresh application for a residence permit, such a Contracting State enables the alien to take part in the host country’s society, to form relationships and to create a family there. However, this does not automatically entail that the authorities of the Contracting State concerned are, as a result, under an obligation pursuant to Article 8 of the Convention to allow him or her to settle in their country. In a similar vein, confronting the authorities of the host country with family life as a fait accompli does not entail that those authorities are, as a result, under an obligation pursuant to Article 8 of the Convention to allow the applicant to settle in the country. The Court has previously held that, in general, persons in that situation have no entitlement to expect that a right of residence will be conferred upon them (see Chandra and Others v. the Netherlands (dec.), no. 53102/99, 13 May 2003; Benamar v. the Netherlands (dec.), no. 43786/04, 5 April 2005; Priya v. Denmark (dec.) no. 13594/03, 6 July 2006; Rodrigues da Silva and Hoogkamer v. the Netherlands, no. 50435/99, § 43, ECHR 2006-I; Darren Omoregie and Others v. Norway, no. 265/07, § 64, 31 July 2008; and B.V. v. Sweden (dec.), no. 57442/11, 13 November 2012).\n\n104.  The instant case may be distinguished from cases concerning “settled migrants” as this notion has been used in the Court’s case-law, namely, persons who have already been granted formally a right of residence in a host country. A subsequent withdrawal of that right, for instance because the person concerned has been convicted of a criminal offence, will constitute an interference with his or her right to respect for private and/or family life within the meaning of Article 8. In such cases, the Court will examine whether the interference is justified under the second paragraph of Article 8. In this connection, it will have regard to the various criteria which it has identified in its case-law in order to determine whether a fair balance has been struck between the grounds underlying the authorities’ decision to withdraw the right of residence and the Article 8 rights of the individual concerned (see, for instance, Boultif v. Switzerland, no. 54273/00, ECHR 2001IX; Üner v. the Netherlands [GC], no. 46410/99, ECHR 2006XII; Maslov v. Austria [GC], no. 1638/03, ECHR 2008; Savasci v. Germany (dec.), no. 45971/08, 19 March 2013; and Udeh v. Switzerland, no. 12020/09, 16 April 2013).\n\n105.  As the factual and legal situation of a settled migrant and that of an alien seeking admission to a host country – albeit in the applicant’s case after numerous applications for a residence permit and many years of actual residence – are not the same, the criteria developed in the Court’s case-law for assessing whether a withdrawal of a residence permit of a settled migrant is compatible with Article 8 cannot be transposed automatically to the situation of the applicant. Rather, the question to be examined in the present case is whether, having regard to the circumstances as a whole, the Netherlands authorities were under a duty pursuant to Article 8 to grant her a residence permit, thus enabling her to exercise family life on their territory. The instant case thus concerns not only family life but also immigration. For this reason, the case at hand is to be seen as one involving an allegation of failure on the part of the respondent State to comply with a positive obligation under Article 8 of the Convention (see Ahmut v. the Netherlands, 28 November 1996, § 63, Reports of Judgments and Decisions 1996VI). As regards this issue, the Court will have regard to the following principles as stated most recently in the case of Butt v. Norway (no. 47017/09, § 78 with further references, 4 December 2012).\n\n2.  Relevant principles\n\n106.  While the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities, there may in addition be positive obligations inherent in effective ‘respect’ for family life. However, the boundaries between the State’s positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation.\n\n107.  Where immigration is concerned, Article 8 cannot be considered to impose on a State a general obligation to respect a married couple’s choice of country for their matrimonial residence or to authorise family reunification on its territory. Nevertheless, in a case which concerns family life as well as immigration, the extent of a State’s obligations to admit to its territory relatives of persons residing there will vary according to the particular circumstances of the persons involved and the general interest. Factors to be taken into account in this context are the extent to which family life would effectively be ruptured, the extent of the ties in the Contracting State, whether there are insurmountable obstacles in the way of the family living in the country of origin of the alien concerned and whether there are factors of immigration control (for example, a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion (see Butt v. Norway, cited above, § 78).\n\n108.  Another important consideration is whether family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host State would from the outset be precarious. It is the Court’s well-established case-law that, where this is the case, it is likely only to be in exceptional circumstances that the removal of the non-national family member will constitute a violation of Article 8 (see Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A no. 94, p. 94, § 68; Mitchell v. the United Kingdom (dec.), no. 40447/98, 24 November 1998; Ajayi and Others v. the United Kingdom (dec.), no. 27663/95, 22 June 1999; M. v. the United Kingdom (dec.), no. 25087/06, 24 June 2008; Rodrigues da Silva and Hoogkamer v. the Netherlands, cited above, § 39; Arvelo Aponte v. the Netherlands, cited above, §§ 57-58; and Butt v. Norway, cited above, § 78).\n\n109.  Where children are involved, their best interests must be taken into account (see Tuquabo-Tekle and Others v. the Netherlands, no. 60665/00, § 44, 1 December 2005; mutatis mutandis, Popov v. France, nos. 39472/07 and 39474/07, §§ 139-140, 19 January 2012; Neulinger and Shuruk v. Switzerland, cited above, § 135; and X v. Latvia [GC], no. 27853/09, § 96, ECHR 2013). On this particular point, the Court reiterates that there is a broad consensus, including in international law, in support of the idea that in all decisions concerning children, their best interests are of paramount importance (see Neulinger and Shuruk v. Switzerland, cited above, § 135, and X v. Latvia, cited above, § 96). Whilst alone they cannot be decisive, such interests certainly must be afforded significant weight. Accordingly, national decision-making bodies should, in principle, advert to and assess evidence in respect of the practicality, feasibility and proportionality of any removal of a non-national parent in order to give effective protection and sufficient weight to the best interests of the children directly affected by it.\n\n3.  Relevance of EU law\n\n110.  As to the applicant’s reliance on the Ruiz Zambrano judgment of the Court of Justice of the EU (see paragraph 71 above), the Court emphasises that, under the terms of Article 19 and Article 32 § 1 of the Convention, it is not competent to apply or examine alleged violations of EU rules unless and in so far as they may have infringed rights and freedoms protected by the Convention. More generally, it is primarily for the national authorities, notably the courts, to interpret and apply domestic law, if necessary in conformity with EU law, the Court’s role being confined to ascertaining whether the effects of such adjudication are compatible with the Convention (see Ullens de Schooten and Rezabek v. Belgium, nos. 3989/07 and 38353/07, § 54 with further references, 20 September 2011).\n\n111.  In the Dereci case (see paragraph 72 above), the Court of Justice of the EU, whilst finding no obligation under EU law to admit the third country national, also held that this finding was without prejudice to the question whether, on the basis of the right to respect for family life, a right of residence could not be refused but that this question had to be considered in the framework of the provisions on the protection of fundamental rights.\n\n112.  It is precisely in that latter framework that the Court will now examine the applicant’s case, namely – and as noted above – the alleged failure of the Netherlands authorities to protect the applicant’s fundamental right to respect for family life as guaranteed by Article 8 of the Convention.\n\n4.  Application of the above general considerations and relevant principles to the present case\n\n113.  The Court reiterates that the applicant’s presence in the Netherlands has been irregular since she outstayed the 45-day tourist visa granted to her in 1997. It is true that at that time admission to the Netherlands was governed by the Aliens Act 1965 but the applicant’s situation – in view of the reason why her request for a residence permit of 20 October 1997 was not processed (see paragraph 14 above) – is governed by the Aliens Act 2000. Having made numerous attempts to secure regular residence in the Netherlands and having been unsuccessful on each occasion, the applicant was aware – well before she commenced her family life in the Netherlands – of the precariousness of her residence status.\n\n114.  Where confronted with a fait accompli the removal of the non-national family member by the authorities would be incompatible with Article 8 only in exceptional circumstances (see paragraph 108 above). The Court must thus examine whether in the applicant’s case there are any exceptional circumstances which warrant a finding that the Netherlands authorities failed to strike a fair balance in denying the applicant residence in the Netherlands.\n\n115.  The Court first and foremost takes into consideration the fact that all members of the applicant’s family with the exception of herself are Netherlands nationals and that the applicant’s spouse and their three children have a right to enjoy their family life with each other in the Netherlands. The Court further notes that the applicant held Netherlands nationality at birth. She subsequently lost her nationality when Suriname became independent. She then became a Surinamese national, not by her own choice but pursuant to Article 3 of the Agreement between the Kingdom of the Netherlands and the Republic of Suriname concerning the assignment of nationality (see paragraph 62 above). Consequently, her position cannot be simply considered to be on a par with that of other potential immigrants who have never held Netherlands nationality.\n\n116.  The Court considers that a second important feature of the instant case is the fact that the applicant has been in the Netherlands for more than sixteen years and that she has no criminal record. Although she failed to comply with the obligation to leave the Netherlands, her presence was nevertheless tolerated for a considerable period of time by the Netherlands authorities, while she repeatedly submitted residence requests and awaited the outcome of appeals. The tolerance of her presence for such a lengthy period of time, during which for a large part it was open to the authorities to remove her, in effect enabled the applicant to establish and develop strong family, social and cultural ties in the Netherlands. The applicant’s address, where she has been living for the last fifteen years, has always been known to the Netherlands authorities.\n\n117.  Thirdly, the Court accepts, given the common background of the applicant and her husband and the relatively young age of their children, that there would appear to be no insurmountable obstacles for them to settle in Suriname. However, it is likely that the applicant and her family would experience a degree of hardship if they were forced to do so. When assessing the compliance of State authorities with their obligations under Article 8, it is necessary to take due account of the situation of all members of the family, as this provision guarantees protection to the whole family.\n\n118.  The Court fourthly considers that the impact of the Netherlands authorities’ decision on the applicant’s three children is another important feature of this case. The Court observes that the best interests of the applicant’s children must be taken into account in this balancing exercise (see above § 109). On this particular point, the Court reiterates that there is a broad consensus, including in international law, in support of the idea that in all decisions concerning children, their best interests are of paramount importance (see Neulinger and Shuruk v. Switzerland, cited above, § 135, and X v. Latvia, cited above, § 96). Whilst alone they cannot be decisive, such interests certainly must be afforded significant weight. For that purpose, in cases concerning family reunification, the Court pays particular attention to the circumstances of the minor children concerned, especially their age, their situation in the country or countries concerned and the extent to which they are dependent on their parents (see Tuquabo-Tekle and Others v. the Netherlands, cited above, § 44).\n\n119.  Noting that the applicant takes care of the children on a daily basis, it is obvious that their interests are best served by not disrupting their present circumstances by a forced relocation of their mother from the Netherlands to Suriname or by a rupturing of their relationship with her as a result of future separation. In this connection, the Court observes that the applicant’s husband provides for the family by working full-time in a job that includes shift work. He is, consequently, absent from the home on some evenings. The applicant – being the mother and homemaker – is the primary and constant carer of the children who are deeply rooted in the Netherlands of which country – like their father – they are nationals. The materials in the case file do not disclose a direct link between the applicant’s children and Suriname, a country where they have never been.\n\n120.  In examining whether there were insurmountable obstacles for the applicant and her family to settle in Suriname, the domestic authorities had some regard for the situation of the applicant’s children (see paragraphs 23 (under 2.19 and 2.21), 28 and 34 (under 2.4.5) above). However, the Court considers that they fell short of what is required in such cases and it reiterates that national decision-making bodies should, in principle, advert to and assess evidence in respect of the practicality, feasibility and proportionality of any such removal in order to give effective protection and sufficient weight to the best interests of the children directly affected by it (see above § 109). The Court is not convinced that actual evidence on such matters was considered and assessed by the domestic authorities. Accordingly, it must conclude that insufficient weight was given to the best interests of the applicant’s children in the decision of the domestic authorities to refuse the applicant’s request for a residence permit.\n\n121.  The central issue in this case is whether, bearing in mind the margin of appreciation afforded to States in immigration matters, a fair balance has been struck between the competing interests at stake, namely the personal interests of the applicant, her husband and their children in maintaining their family life in the Netherlands on the one hand and, on the other, the public order interests of the respondent Government in controlling immigration. In view of the particular circumstances of the case, it is questionable whether general immigration policy considerations of themselves can be regarded as sufficient justification for refusing the applicant residence in the Netherlands.\n\n122.  The Court, whilst confirming the relevant principles set out above (see paragraphs 106-109), finds that, on the basis of the above considerations (see paragraphs 115-120) and viewing the relevant factors cumulatively, the circumstances of the applicant’s case must be regarded as exceptional. Accordingly, the Court concludes that a fair balance has not been struck between the competing interests involved. There has thus been a failure by the Netherlands authorities to secure the applicant’s right to respect for her family life as protected by Article 8 of the Convention.\n\n123.  There has accordingly been a violation of Article 8 of the Convention.\n\nII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n124.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n125.  The applicant claimed 30,000 euros (EUR) in compensation for pecuniary damage due to loss of benefits under various social security schemes to which her family would have been entitled as from 2008 had her request for a residence permit filed on 28 September 2007 been granted.\n\n126.  The applicant further claimed EUR 8,640 in compensation for nonpecuniary damage for having been unlawfully held in aliens’ detention for removal purposes in 2010.\n\n127.  She lastly claimed EUR 1,714 in compensation for non-pecuniary damage for the trauma, anxiety and upset she and her family, in particular the children, suffered for an extended number of years.\n\n128.  The Government contested the applicant’s claim for pecuniary damage, submitting that there was no causal link between any violation found and the social security benefits referred to.\n\n129.  The Government also contested the applicant’s claim for compensation for non-pecuniary damage based on the days she had spent in aliens’ detention, pointing out that her complaints about this detention had been declared inadmissible by the Court on 4 December 2012.\n\n130.  As to the remainder of the applicant’s claim for compensation for non-pecuniary damage, the Government considers that the granting of a residence permit constituted sufficient satisfaction.\n\n131.  Since Article 8 does not, as such, guarantee a right to social security benefits, the Court considers that there is no causal link between the violation found and the applicant’s claim for pecuniary damage based on the finding of a violation of the applicant’s right to respect for her family life. Noting that the applicant’s complaints relating to her placement in aliens’ detention were rejected in the Court’s decision on admissibility of 4 December 2012 (see paragraph 4 above), this part of the applicant’s claim for non-pecuniary damages must be dismissed.\n\n132.  As to the remainder of the applicant’s claim for compensation for non-pecuniary damage, the Court considers that the applicant must have suffered moral damage that cannot be sufficiently compensated by the mere finding of a violation of Article 8. It awards the applicant the sum claimed, namely EUR 1,714, in respect of non-pecuniary damage.\n\nB.  Costs and expenses\n\n133.  The applicant claimed EUR 564.50 for hotel expenses incurred for attending the hearing before the Grand Chamber. She did not submit a claim for travel costs for attending the hearing. Nor did she submit a claim for legal expenses.\n\n134.  The Government did not express an opinion on the matter.\n\n135.  According to the Court’s established case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. Having regard to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum claimed in full. It therefore awards the applicant EUR 564.50 under this head.\n\nC.  Default interest\n\n136.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT\n\n1.  Holds, by fourteen votes to three, that there has been a violation of Article 8 of the Convention;\n\n2.  Holds, by fourteen votes to three,\n\n(a)  that the respondent State is to pay the applicant, within three months, the following amounts:\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n3.  Dismisses, unanimously, the remainder of the applicant’s claim for just satisfaction.\n\nDone in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 3 October 2014.\n\nIn accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the joint dissenting opinion of Judges Villiger, Mahoney and Silvis is annexed to this judgment.\n\n1.  Understanding the judgment in the present case in the context of the Court’s case-law is not an easy task, since the exceptional character of the particular circumstances seems to override most of the previously followed jurisprudential principles. We were unable to follow the majority in finding that the domestic authorities failed to live up to a positive obligation by not granting the applicant residence in the Netherlands upon any of her repetitive requests. These requests for residence were lodged on various grounds, and filed from Dutch territory during an illegal overstay after expiration of a short-term tourist visa. From one point of view – that of the present dissenters – the Court can be seen to be acting as a first-instance immigration court, in disregard of the principle of subsidiarity; although, in all fairness, the rejoinder to that criticism is presumably that the Court has merely taken the approach of granting paramount importance to the best interests of the children. Is the Court striking the right balance, while the respondent State had failed to do so? Who is to perform such a balancing exercise going into the factual, detailed merits of the applicant’s individual circumstances? Where the balancing exercise has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court should require strong reasons to substitute its own view for that of the domestic courts (see Von Hannover v. Germany (No. 2), nos. 40660/08 and 60641/08, § 107).\n\n2.  In summary, the facts are as follows. The applicant, a Surinamese woman, was allowed to enter the Netherlands only once for a limited period of 45 days for the declared purpose of a tourist visit to an aunt in 1997. After expiration of her visa she overstayed illegally in the Netherlands. The applicant then repeatedly requested legal residence and all of these requests were ultimately refused, while one such request is still pending. In the meantime, the applicant had started building a family life in the Netherlands despite having no legitimate expectation of being granted permanent legal residence in the country, a factor that was at all times perfectly well known to herself and her partner. Her partner/husband is of Surinamese origin and holds Dutch nationality. Both of them have lived most of their lives in Suriname, and indeed they cohabited there before coming to the Netherlands. The applicant and her husband have three children, all holding Dutch nationality by virtue of their father’s nationality. The applicant, her husband and her children have led a continuous family life together in the Netherlands in the period under consideration. The children have never visited Suriname. The official language of Suriname is Dutch.\n\n3.  At the outset it is important to observe that the subject-matter of the Court’s judgment is not interference in family life by the State. Rather, the judgment goes to the issue of the Contracting States’ positive obligations regarding family life in the sphere of immigration. If this judgment is to be taken as establishing principled guidelines, it (a) expands the positive obligations incumbent on the State under the Convention in the interface of immigration and family law, (b) thus shrinks the margin of appreciation in relation to family life created during illegal overstay, (c) virtually disregards the attitude of the applicant as a relevant matter of consideration, (d) upgrades the obligation to take into account the best interests of the children. However, it must be observed that most of these seemingly fundamental jurisprudential developments are not reflected in the applicable general principles as hitherto formulated by the Court in its case-law and reiterated in the current judgment. They appear only under the surface in the application of these principles to the facts of the case. Perhaps this judgment by the Grand Chamber is not to be taken as establishing principled guidelines? Such ambiguity would be a worrying signal for the future performance of the Court’s advisory role under Protocol No. 16.\n\n4.  The underlying question of principle is whether foreign nationals have a claim, on the basis of Article 8 of the Convention, to obtain from a Contracting State permission to enter and/or reside on the latter’s territory in order to join or remain with their relatives who have legal residence there. In the Court’s longstanding case-law this question is answered mainly in the negative. True, the Court does acknowledge that Article 8 is capable of being applicable under its family-life head, but it has concluded most of the time that the immigration treatment accorded to these persons was not such as to violate this provision, regard being had to their situation and the general interest of the community. The overriding consideration highlighted in this case-law is that they are foreign nationals, that is to say members of a category in respect of whom the States enjoy, under international law, as is stressed in all the relevant decisions, a virtually absolute right of control over entry into their territory and discretionary power in the matter of admission and residence. The Convention does not guarantee the right of a foreign national to enter or to reside in a particular country (see, for instance, Nunez v. Norway, no. 55597/09, § 66, 28 June 2011); and it does not prevent the Contracting States from enacting into law and enforcing a strict, even very strict, immigration policy. In concrete terms, the Court has taken the stance that a Contracting State is not obliged under the Convention to accept foreign nationals and permit them to settle except in cases where family life could not be lived elsewhere than on its soil. In the great majority of cases, it has pointed out that such family life could flourish in another country.\n\n5.  Thus, having chosen not to apply for a provisional residence visa from Suriname prior to travelling to the Netherlands, the applicant had no right whatsoever to expect to obtain any right of residence by confronting the Netherlands authorities with her presence in the country as a fait accompli (see Ramos Andrade v. the Netherlands (dec.), no. 53675/00, 6 July 2004; Chandra and Others v. the Netherlands (dec.), no. 53102/99, 13 May 2003; Adnane v. the Netherlands (dec.), no. 50568/99, 6 November 2001; Mensah v. the Netherlands (dec.), no. 47042/99, 9 October 2001; Lahnifi v. the Netherlands (dec.), no. 39329/98; 13 February 2001; and Kwakye-Nti and Dufie v. the Netherlands (dec.), no. 31519/96, 7 November 2000). However, taking into account the particulars of the case, the Court considers that granting residence to the applicant on the territory of the Netherlands is the only appropriate way to respect her family life and that, by not taking such a decision to grant residence, the national authorities have failed to meet the positive obligation which Article 8 placed on them.\n\n6.  Two other cases spring to mind in which the Court may seem to have taken a somewhat similar position; both concerned the Netherlands (Tuquabo-Tekle and Others v. the Netherlands, no. 60665/00; and Şen c. les Pays Bas, no. 31465/96 – the last mentioned decision not being available in English and not being cited by the Court in the present judgment). Both of these cases concerned the reunification of families by admitting a child to the territory of the host State (the Netherlands) where the parent or parents had legal residence. The integration of the children concerned into the family unit was regarded as necessary for their development in view of their young age (nine years in Şen and fifteen years in Tuquabo-Tekle and Others). It should be observed that neither of these two cases concerned family-formation during an illegal overstay in the host State, but that, on the contrary, in both instances the request to have the children enter the State was filed before they had entered the State, in compliance with the applicable immigration law – quite unlike the situation in the present case. In both of these previous cases, where the children themselves were applicants, the Court concluded that the Netherlands had a positive obligation to allow the children to reunify with their parent(s) lawfully on Dutch territory.\n\n7.  In the present case the original complaint of the applicant was that the respondent State had not allowed her to file a request for residence from its territory. It is noteworthy that the Court has not changed its position on the legitimacy of the immigration condition contested by the applicant. It reiterates in paragraph 101 that, in principle, Contracting States have the right to require aliens seeking residence on their territory to make the appropriate request from abroad. This matter is not further addressed in the judgment because the Court, after having reformulated the complaint proprio motu (in paragraph 76 - the original complaint being set out in paragraph 77), decides on the merits that in the particular circumstances of the case denial of residence violates the obligation to respect family life. The particular circumstances taken into consideration by the Court are that the husband and children all hold Dutch nationality; that the children have always lived in the Netherlands; that the applicant’s husband provides for the family by working full-time in a job that includes shift work, with the consequence that he is absent from the home on some evenings; and that, as a result, the applicant is the primary care-taker of the children. What is remarkable is that the Court performs a balancing exercise of its own as regards the factual, detailed merits of the individual circumstances affecting the applicant, although it cannot be said that the domestic authorities did not themselves have full and careful regard to the relevant principles, considerations and aspects as developed in the Court’s case-law (see paragraph 34).\n\n8.  After years of legal battle the respondent State is reproached by the Court for having “tolerated” her presence as long as it did (paragraph 116), having allowed her the opportunity to raise a family. The Court equates the absence of a forced removal with tolerance of her presence. While this precarious situation continued for such a lengthy period of time, during which, according to the Court, for a large part it was open to the authorities to remove her, the applicant was enabled to establish and develop strong family, social and cultural ties in the Netherlands. The Court’s reasoning can hardly be understood as applying the principle that family-creation without having stable grounds for residence is at the risk of those who do so in a situation that is known to them to be precarious. The margin of appreciation, which was wide in such circumstances, has undergone a hot wash in this case.\n\n9.  Where parents make personal choices, the State’s positive obligations under Article 8 are generally spoken of as being of secondary importance and almost the same goes for facing consequences of deliberate acts. Thus, imprisonment of fathers sentenced for having committed a crime rarely raises issues under Article 8 of the Convention, even though their children are liable to suffer from it. The same goes for divorce. The present case, of course, is not at all about a committed crime or a divorce; nor is it about an eventual rupture of family life caused by the State. It is about a family wishing to establish a particular place of residence. What would be the perspective in cases of chosen emigration from the Netherlands in contrast with this case of refused residence? Many parents seek economic or other opportunities abroad; and nowadays Suriname is a notably popular destination. Even though children of such emigrants might prefer to stay where they reside, they would be obliged to follow their parents. In such cases of chosen emigration the State has generally speaking no positive obligation to intervene. It is commonly understood that respect for family life implies that the best interests of the children are then considered to be best served by accepting the consequences of the (lawful) choices made by their parents, unless fundamental rights of the children (such as those protected by Article 3) would thereby be violated. Shifting the responsibility for consequences of choices made by parents to the State is, in our view, in principle not conducive to the furtherance of the best interests of the children with regard to family life. There would also be a great risk that parents exploited the situation of their children in order to secure a residence permit for themselves (see Butt v. Norway, no. 47017/09, § 79).\n\n10.  On our analysis of the facts, the balancing exercise between the interests of the applicant and her family, on the one hand, and the general interest of the community, on the other, was performed by the national authorities, including the independent and impartial domestic courts, in a full and careful manner, in conformity with the well-established principles of the Court’s case-law. The majority holds a different view. The approach adopted by the Court in the present case in effect involves giving to those prospective immigrants who enter or remain in the country illegally and who do not properly and honestly comply with the prescribed conditions for seeking residence a special premium, in terms of Convention protection, over those who do respect the applicable immigration law by remaining in their country of origin and conscientiously complying with the procedures laid down for seeking residence. The result is liable to be to encourage illegal entry or over-staying and refusal to comply with the prescribed immigration procedures and judicially sanctioned orders to leave the country. The right answer in hard cases is the one that fulfils the obligation of the community to treat its members in a civilised but also coherent and principled manner. In replacing the domestic balancing exercise by a strong reliance on the exceptional character of the particular circumstances, the Court is drifting away from the subsidiary role assigned to it by the Convention, perhaps being guided more by what is humane, rather than by what is right.","title":""}
{"_id":"passage_167","text":"PROCEDURE\n\n1.  By a request dated 7 October 1966, the European Commission of Human Rights (hereinafter called \"the Commission\") referred to the Court the \"Neumeister\" case.  On 11 October 1966 the Government of the Republic of Austria (hereinafter called \"the Government\") also referred to the Court the said case the origin of which lies in an Application lodged with the Commission on 12 July 1963 by Fritz Neumeister, an Austrian national, against the Republic of Austria (Article 25 of the Convention) (art. 25).\n\nThe Commission’s request, to which was attached the Report provided for by Article 31 (art. 31) of the Convention, and the Application of the Government were lodged with the Registry of the Court within the period of three months laid down in Articles 32 (1) and 47 (art. 32-1, art. 47).  They referred firstly to Articles 44 and 48 (art. 44, art. 48), and secondly to the Government’s declaration recognising the compulsory jurisdiction of the Court under Article 46 (art. 46) of the Convention.\n\n2.  On 7 November 1966, Mr. René Cassin, President of the Court, drew by lot in the presence of the Deputy Registrar, the names of six of the seven Judges called upon to sit in the Chamber, Mr. Alfred Verdross, the elected Judge of Austrian nationality, being an ex officio member under Article 43 (art. 43) of the Convention; the President also drew by lot the names of three Substitute Judges.\n\n3.  On 22 November the President of the Chamber ascertained the views of the Agent of the Government and of the Delegates of the Commission on the procedure to be followed.  By an Order of the same day, he decided that the Government should file a memorial within a time-limit expiring on 25 March 1967 and that, after having received the said memorial, the Commission would be at liberty to file a memorial within a time-limit to be fixed subsequently.\n\nOn 10 March 1967, the President of the Chamber extended the time allowed to the Government until 1 May 1967.  On the same date he ruled that the Commission’s memorial in reply should be filed by 1 September 1967 at the latest.\n\nThe Government’s memorial reached the Registry on 27 April 1967, and that of the Commission on 3 August 1967.\n\n4.  By an Order of 12 October 1967, the President of the Chamber decided that the oral proceedings would open on 4 January 1968.  Giving effect to a request of the Government, the Chamber authorised the Agent, counsel and advisors of the former, on 24 November 1967, to use the German language in the oral proceedings, it being the responsibility of the Government to ensure the interpretation into French or English of their arguments or statements (Rule 27 (2) of the Rules of Court).\n\nOn 18 December 1967, the Government submitted a request for the postponement of the hearing.  This request was not granted by the President of the Chamber but the sudden indisposition of two Judges caused him to issue an Order, on 4 January 1968 postponing the opening of the hearing until 12 February 1968.\n\n5.  On 13 January 1968, the President of the Chamber instructed the Registrar to invite the Government and the Commission to present certain documents, which were added to the file on 23 January and 5 February 1968 respectively.\n\n6.  One judge and one substitute Judge having informed the President of the Chamber that they were unable to attend the hearing, the President of the Court, on 17 January 1968, drew by lot the names of two Substitute Judges.\n\nAs Mr. Verdross was unable to attend the hearing, the Government, on 12 February 1968, appointed to sit on this case as ad hoc Judge, Mr. Hans Schima, Emeritus Professor at the Faculty of Law of the , and member of the  of Sciences.\n\n7.  Pursuant to the aforesaid Order of 4 January 1968, a public hearing was held at , in the Human Rights Building, on 12, 13 and 14 February 1968.\n\nThere appeared before the Court:\n\n- for the Commission:\n\n- for the Government:\n\nThe Court heard the statements and submissions of each of these representatives.\n\nOn 13 February 1968, the Court asked the Agent of the Government and the representatives of the Commission a number of questions, to which they replied on 13 and 14 February 1968.\n\nOn 14 February 1968, the President of the Chamber declared the hearing closed.\n\n8.  On 14 and 15 February 1968, the Court invited the Government and the Commission to present a further series of documents, which were subsequently added to the file.\n\n9.  After having deliberated in private the Court gave the present judgment.\n\nTHE FACTS\n\n1.  The object of the request of the Commission and the Application of the Government is that the Neumeister case should be referred to the Court, so that the latter may decide whether or not the facts indicate, on the part of the Republic of Austria, a violation of the obligations incumbent upon it under Articles 5 (3) and (4) and 6 (1) (art. 5-3, art. 5-4, art. 6-1) of the Convention.\n\n2.  The facts of the case, as they appear from the Report of the Commission, the memorials, documents and evidence supplied, and the oral statements of the respective representatives of the Commission and the Government may be summarised as follows:\n\n3.  Mr. Fritz Neumeister, an Austrian citizen born on 19 May 1922, is resident at  where he was formerly the owner and director of a large transport firm, the \"Internationales Transportkontor\" or \"ITEKA\", which employed some two hundred persons.\n\n4.  On 11 August 1959, the Vienna Public Prosecution (Staatsanwaltschaft) requested the Regional Criminal Court (Landesgericht für Strafsachen) of that city to open a preliminary investigation (Voruntersuchung), together with their immediate arrest, against five persons including Lothar Rafael, Herbert Huber and Franz Schmuckerschlag, and an enquiry (Vorerhebungen) concerning Fritz Neumeister and three other persons.\n\nOn the previous day, the Revenue Office of the First District of Vienna had denounced (Anzeige) the parties in question before the Public Prosecution; it suspected some of having defrauded the exchequer by improperly obtaining, between the years 1952 and 1958, \"reimbursement\" which was designed to assist exports (Ausfuhrhändlervergütung and Ausfuhrvergütung) of more than 54.500,000 schillings in turnover tax (Umsatzsteuer), the others - Neumeister in particular - of having been involved in these transactions as accomplices (als Mitschuldige).\n\nIn , an act of this kind constitutes not merely a simple taxation offence but rather fraud (Betrug) within the meaning of Section 197 of the Austrian Criminal Code.  By the terms of Section 200, fraud becomes a felony (Verbrechen) if the amount of loss caused for the sum fraudulently obtained exceeds 1,500 schillings. The punishment incurred is \"severe imprisonment\" of from five to ten years if this amount exceeds 10,000 schillings, if the offender has shown \"exceptional audacity or cunning\" or if he has made a habit of defrauding. (Section 203).  These two amounts have since been altered: they are now 2,500 and 25,000 schillings respectively.\n\n5.  In conformity with the provisions of Austrian law (ständige Geschäftsverteilung) the conduct of the investigation and of the enquiry instigated by the Public Prosecution was automatically assigned, on 17 August 1959, to the investigating Judge, Dr. Leonhard, who had already, since 13 February 1959, been working on another large case involving fraud, the Stögmüller case.\n\n6.  On 21 January 1960, Neumeister appeared for the first time as a suspect (\"Verdächtiger\", in the Austrian sense of the word), before the Investigating Judge.  In the course of his interrogation, which lasted for an hour and a quarter, Neumeister became aware of the above-mentioned steps taken by the Public Prosecution; he protested his innocence, a position from which, it would seem, he has never since wavered.\n\n7.  At the request of the Vienna Public Prosecution (22 February 1961), the Investigating Judge decided on 23 February 1961 to open a preliminary investigation concerning Neumeister’s activities and ordered that Neumeister be taken into detention on remand (Untersuchungshaft).\n\nIn consequence Neumeister was, on the following day, placed in detention on remand in connection with the case involving Rafael and associates (24 a Vr 6101/59).  At the same time he was notified of his provisional release in a case involving customs frauds (No. 6 b Vr 8622/60) in respect of which he had been detained for some three weeks.  This other case is not in issue before the European Court of Human Rights; it ended with the acquittal of the eight accused on 29 March 1963 before the Regional Criminal Court of Vienna, this judgment being confirmed on 14 April 1964 by the Austrian Supreme Court (Oberster Gerichtshof).\n\nDuring his detention the applicant was interrogated as an accused (\"Beschuldigter\", in the Austrian sense of this word) on 27 February, 2 March, 18 to 21 April and 24 April 1961.  From the sixty-seven pages of minutes, it appears that the Investigating Judge informed him in detail of the statements concerning him made by several co-accused, including Franz Scherzer, Walter Vollmann (former director of the Iteka branch at ), Leopold Brunner and Lothar Rafael.  The last named of these had fled abroad but had written a letter of more than thirty pages to the Court in which he heavily implicated Neumeister.  The Applicant explained his conduct in detail; the interrogation generally took place in the presence of an inspector of taxes (Finanzoberrevisor), Mr. Besau.\n\n8.  On 12 May 1961, Neumeister was provisionally released on parole: he gave the solemn undertaking (Gelöbnis) provided for by Section 191 of the Code of Criminal Procedure but was not required to deposit security.  The Public Prosecution unsuccessfully challenged this decision before the Vienna Court of Appeal (Oberlandesgericht).\n\n9.  After his release, the Applicant resumed his professional activities.  In the course of the trial concerning the alleged customs frauds (6 b Vr 8622/60) he had been obliged to sell the ITEKA company, seemingly at an extremely low price - about 700,000 schillings payable in forty-eight monthly instalments - but he established a small transport company, the Scherzinger company, with three employees.\n\nIn July 1961 Neumeister visited , with the authorisation of the Investigating Judge, for a holiday with his wife and their three children.  At the beginning of February 1962 he made a trip to the Saar for several days, again with the permission of this Judge.  He asserts that throughout the period, which lasted until his second arrest (12 July 1962; para. 12 infra), he often visited the Investigating Judge of his own free will.\n\n10.  Lothar Rafael was arrested at  (Federal Republic of Germany) on 22 June 1961 and was extradited to  on 21 December 1961, the Minister of Justice of North-Rhine Westphalia having acceded to the request of the Austrian authorities for Rafael’s extradition.\n\nIn January 1962, lengthy interrogations of Rafael were conducted by the Vienna Economic Police (Wirtschaftspolizei), during which the former levelled grave accusations against Neumeister.\n\n11.  Neumeister informed the Investigating Judge in the Spring of 1962 that he wished to visit  again to spend a holiday with his family during the month of July.  The Investigating Judge raised no objections at that time.  He is said later to have warned the Applicant that he would probably be confronted with Rafael in June but that it would in no way be necessary for him to give up his plans for a holiday abroad.\n\nOn 3rd, 4th, 5th and 6th July 1962, Neumeister was interrogated by the Investigating Judge in the presence of the inspector of taxes, Mr. Besau.  On being informed of the statements relating to him made by various witnesses and accused, in particular those made by Rafael in January 1962, he strenuously contested them.  Fifty pages of minutes were noted on this occasion.\n\nThe confrontation between Neumeister and Rafael took place before the Vienna Economic Police on 10 and 11 July 1962.  It appears from the twenty-two pages of minutes that Neumeister persisted in his denials.\n\nOn the morning of 12 July, the Investigating Judge informed Neumeister that his departure for , planned for 15 July, met with the opposition of the Public Prosecution.  When heard as a witness, on 7 July 1965, by a Sub-Commission of the European Commission of Human Rights, he gave the following fuller particulars on this point:\n\n\"What I am going to say now is rather more difficult for me.  My own intuition convinced me that Mr. Neumeister would come back from his trip to .  Mr. President, members of the Commission, you know that a judge cannot let himself be ruled only by intuition; he must be guided solely by the law.  Since no treaty on judicial assistance or extradition exists as such between  and , the law obliged me not to yield to my intuition that Neumeister would return. I know that I said to Mr. Neumeister then: ‘My feeling tells me that you will come back; but I cannot personally give you permission without the approval of the prosecuting authority’.  This approval was then refused.\"\n\nThe Applicant, for his part, alleged before the Sub-Commission that the Investigating Judge had given him permission to go to  despite the wish of the Public Prosecution that he should not.\n\n12.  Be this as it may, on the same day, 12 July 1961, at the request of the Public Prosecution, the Investigating Judge ordered Neumeister’s arrest.\n\nThe warrant (Haftbefehl) indicated first that Neumeister was suspected of having committed, between 1952 and 1957 and in consort with Lothar Rafael and other suspects, a series of fraudulent transactions which had caused the State a loss of some ten million schillings.  It added that Neumeister, being fully aware of the charges assembled against him since his release (12 May 1961), must anticipate a heavy punishment; that his former employee, Walter Vollmann, for whom the results of the investigation had been less heavily incriminating, had nevertheless evaded prosecution by absconding; that the recent interrogations of the Applicant and his confrontation with Rafael had shown to him beyond any doubt that he would now be obliged to relinquish his attitude of total denial; that he intended to take his holidays abroad and that the withdrawal of his passport would not have offered an adequate safeguard, the possession of this document no longer being necessary for the crossing of certain frontiers.\n\nFrom these various circumstances the warrant deduced that there existed, in the case, a danger of flight (Fluchtgefahr), within the meaning of Section 175 (1) (2) of the Code of Criminal Procedure.\n\nNeumeister was arrested on the afternoon of 12 July 1962 near to his office.  He immediately requested the elder of his daughters, Maria Neumeister, to cancel by telegram the tickets which he had booked for the crossing of the Baltic.  He stated to the police officers who were sent to take him into custody that it had been his intention to visit the Public Prosecutor’s Office the following day with a view to seeking authorisation for his departure for  on Monday, 16 July.\n\nOn 13 July 1962 Neumeister appeared for a few moments before the Investigating Judge who informed him that he was being placed in detention on remand (Section 176 (1) of the Code of Criminal Procedure).\n\n13.  On 23 July 1962, the applicant lodged his first appeal against the order of arrest of 12 July 1962.  Emphasising that his firm, his home and his family were in , he stated that there were no grounds for believing in the reality of a danger of flight and that if he had wished to abscond he could easily have done so before.\n\nThe Judges’ Chamber (Ratskammer) of the Regional Criminal Court of Vienna dismissed the appeal on 31 July 1962 for reasons similar to those set out in the order in dispute.  In particular it laid great weight on the statements of Rafael which, in its opinion, had definitely worsened Neumeister’s position.\n\nThe Applicant challenged this decision on 4 August 1962.  He maintained that Section 175 (1) (2) of the Code of Criminal Procedure required a \"danger of flight\" and not merely a \"possibility of flight\", that the presence of such a danger must be determined in the light of concrete facts and that the possibility of a heavy sentence was not a sufficient ground to assume danger of flight.  It referred to a judgment of the  (Verfassungsgerichtshof) of 8 March 1961 (Official Collection of the Decisions of this Court, 1961, pages 80-82).\n\nThe Court of Appeal (Oberlandesgericht) of  dismissed the appeal (Beschwerde) on 10 September 1962.  While endorsing the reasoning of the Judges’ Chamber, it added that Neumeister knew perfectly well that the charges weighing upon him had become more serious after 12 May 1961, that he must expect a heavy sentence in view of the enormity of the loss caused, and that according to a police report of 12 July 1962 he had carried out preparations for a journey abroad and had not abandoned them although the competent Investigating Judge had expressly refused the necessary authorisation.  In these circumstances the Court was of the opinion that a danger of flight must be deemed to exist.\n\n14.  Neumeister filed a second request for provisional release on 26 October 1962.  While once again endeavouring to prove the absence of a danger of flight, he offered for the first time, as a subsidiary request, a bank guarantee of 200,000 or, at the most, 250,000 schillings (Section 192 of the Code of Criminal Procedure).\n\nThe Judges’ Chamber rejected the request on 27 December 1962. Recalling that Neumeister faced a punishment of from five to ten years’ severe imprisonment (Section 203 of the Criminal Code) and that he was answerable for a loss of about 6,750,000 schillings, it took the view that the deposit of security would not be sufficient to dispel the danger of flight and that it was therefore unnecessary to examine the amount of the security proposed.\n\nNeumeister challenged this decision on 15 January 1963.  In addition to the arguments expounded in his request of 23 July 1962 and in his appeal of 4 August 1962, he pointed out:\n\n- that the amount of the loss wrongfully attributed to him in his view, had decreased considerably, from more than forty million schillings (24 February 1961) to a little more than eleven and a half million (12 May 1961) and was later to fall to 6,748,510 schillings (decision of 27 December 1962);\n\n- that certain persons detained in connection with other more important cases had recovered their freedom against the deposit of security;\n\n- that he had never sought to abscond, for instance between his release (12 May 1961) and his second arrest (12 July 1962), and, more especially, by taking advantage of his stay in ;\n\n- that only a few hours had elapsed between his appearance before the Investigating Judge, on the morning of 12 July 1962 and his arrest;\n\n- that this brief interval of time had not left him any real possibility of annulling the preparations for his journey, preparations which in any case he did not wish to forgo without attempting one last approach to the Public Prosecution;\n\n- that he had already undergone more than nine months’ detention on remand (24 February 1961-12 May 1961 and 12 July 1962-15 January 1963), another factor which, in his opinion, argued against the danger of flight;\n\n- that all his professional and family interests were centred around  where, moreover, his wife had just opened a ladies’ ready-made dress shop.\n\nThe Court of Appeal of  rejected the appeal on 19 February 1963. Referring to its decision of 10 September 1962, it observed that the situation had not changed in a way favourable to Neumeister since then.  It was true that the amount of loss attributed to him had diminished, but this sum did not include that for which he might be held responsible in a case concerning the sham export of machines (Kreisverkehr der Textilien der Firma Benistex).  Moreover, it had not decreased to such a point as to be of decisive influence on the sentence which Neumeister would have to anticipate in the event of conviction.  From this the Court concluded that the danger of flight remained so great that even the possible supplying of guarantees could not be considered (indiskutabel ist) and that such guarantees could in no way eliminate this danger.\n\n15.  Four weeks earlier, more precisely on 21 January 1963, the Investigating Judge had proceeded to another confrontation between Rafael and Neumeister who had substantially confirmed their respective statements of 10 and 11 July 1962.  According to the Applicant the confrontation lasted for about a quarter of an hour.  A page and a half of minutes were taken on this occasion.\n\n16.  On 12 July 1963, the same day as that on which he lodged his application with the European Commission of Human Rights, Neumeister filed a third request for provisional release to which he added a supplement on 16 July; he pledged himself to make the solemn undertaking (Gelöbnis) laid down by Section 191 of the Code of Criminal Procedure and once again offered to provide, if need be, a bank guarantee of 200,000 or 250,000 schillings.  While reiterating his earlier arguments, he observed:\n\n- that between his release (12 May 1961) and his second arrest (12 July 1962), he had always held himself at the disposition of the Investigating Judge, had presented himself of his own free will before the latter on five or six occasions to obtain information concerning the progress of the investigation and had informed him as far back as March 1962 of his plan to make a journey to Finland;\n\n- that the Austrian railways had authorised him to construct near the Vienna east railway station, a warehouse worth one and a half million schillings, a project which he had been unable to accomplish because of his imprisonment;\n\n- that since the imprisonment no new charge had been uncovered against him;\n\n- that Lothar Rafael, having made a number of confessions (Geständiger), was seeking to improve his own lot by casting his guilt onto others and that his statements were completely uncreditworthy;\n\n- that after more than one year of detention on remand, the assumption of there existing a danger of flight was no longer plausible.\n\nThe Investigating Judge rejected the request of 23 July 1963.  He was of the opinion that the grounds stated in the decisions of 31 July 1962, 10 September 1962, 27 December 1962 and 19 February 1963 retained their relevance and that the documents in the file in substance corroborated Rafael’s accusations against Neumeister.\n\nThe latter then lodged with the Judge’s Chamber of the Regional Criminal Court of Vienna, on 5 August 1963, an appeal in which he restated many of the arguments summarised above to which he added others, in particular the following:\n\n- considering the size and complexity of the case, the investigation and the subsequent proceedings would seem to be of considerable length with the consequence that the length of the detention on remand, already greater than fourteen months, was in danger of exceeding that of the possible sentence, if remedial measures were not speedily taken;\n\n- the Investigating Judge had failed to answer several of Neumeister’s arguments and to specify the documents which seemed to him to support Rafael’s statements, which were in any case most likely to be withdrawn sooner or later;\n\n- the same judge had been in error in minimising the importance of the reduction of the loss attributed to Neumeister, a reduction which might very well continue in the future;\n\n- he had not based his decision on facts, but merely on presumptions concerning the effects of Rafael’s assertions on Neumeister’s state of mind (Seelenzustand).\n\nNeumeister further emphasised:\n\n- that he was prepared to deposit with the court his identity papers and his passport;\n\n- that he had no means whatsoever of supporting his family abroad;\n\n- that in any case flight would be senseless for a man of his age, all the more so since, in the case of his being extradited, he ran the risk of not benefiting from the period of his detention on remand being calculated as part of his possible sentence (allusion to Section 55 (a) in fine of the Criminal Code).\n\nThe Judges’ Chamber dismissed the appeal on 8 August 1963.  Referring to the decision which was being attacked and to those which had preceded it, in substance it observed:\n\n- that Rafael’s statements were confirmed by a number of factors (originals of letters, accountable receipts, statements of account, witnesses’ testimony, etc.);\n\n- that the confrontation between Rafael and Neumeister in July 1962 had considerably worsened the latter’s position and that the Investigating Judge was correct in attaching importance to the effects which it could not fail to have upon the morale of the Applicant;\n\n- that, in these circumstances, the possible supplying of guarantees could not be considered (indiskutabel ist) and could in no way eliminate the danger of flight.\n\nOn 20 August 1963, Neumeister lodged an appeal against this decision with the Vienna Court of Appeal.  His complaints were substantially the same as those which he had formulated on 5 August 1963.  He also charged the Judges’ Chamber with not having specified the contents of the documents supposed to corroborate Rafael’s accusations, with having ignored the question of whether he, Neumeister, was aware of these documents, and with having overlooked the fact that more than six months had passed since the last decision of the Court of Appeal (19 February 1963).  He also pointed out that he could easily have absconded, had he so wished, in the interval between his confrontation with Rafael and his arrest.\n\nThe Court of Appeal was not called upon to decide the question, however: Neumeister withdrew his appeal on 11 September 1963 without giving any reasons for so doing.\n\n17.  On 16 September 1963, Neumeister’s elder daughter filed with the Ministry of Justice a petition which sought her father’s release; she offered security of one million schillings.\n\nThe Vienna Economic Police addressed to the Regional Criminal Court, on 13 November 1963, a confidential report from which it appeared that Maria Neumeister had unsuccessfully sought to obtain part of that sum from a former client of the Iteka and Scherzinger firms.\n\n18.  Some days earlier - on 6 November 1963, two days after the closing of the preliminary investigation (paragraphs 19 and 20 infra) - Dr. Michael Stern, attorney, had made, on Neumeister’s behalf, a fourth request for provisional release.  In it, he briefly repeated the arguments developed in the preceding requests, emphasised that the period during which the Applicant had been held on remand was already almost twenty months, and suggested a bank guarantee of one million schillings.\n\nIn the course of the proceedings before the Commission, Neumeister stated that this last offer was made against his wishes as he was not, at that time, in a position to raise a guarantee for such a large sum. By a letter of 14 April 1964, Dr. Stern confirmed that in this matter he had acted on his own initiative. Before the Commission, the Government’s representatives observed that the offer was binding on Neumeister and that the competent courts had no reason to believe that it did not express Neumeister’s own wishes.\n\nThe Investigating Judge rejected the request on 5 December 1963. Referring to the decisions of 31 July 1962, 10 September 1962, 27 December 1962, 19 February 1963 and 8 August 1963, he held that the Applicant had failed to bring forward any facts or arguments which could justify his release.\n\nNeumeister attacked this decision on 13 December 1963.  He once more denied that any danger of flight existed; in his view the Regional Criminal Court of Vienna and the Vienna Court of Appeal had never evaluated correctly the facts which were relevant to this point, had based themselves on vague presumptions rather than solid proof and had mistakenly attached decisive importance to the enormous loss allegedly caused to the State.  He complained in particular that the Regional Criminal Court had failed, in its decision of 5 December, to take into account the length of the detention on remand which he had already undergone.  In conclusion, the appeal repeated the offer of a bank guarantee of one million schillings.\n\nThe Judges’ Chamber of the Regional Criminal Court of Vienna allowed the appeal on 8 January 1964.  It recognised that the Applicant’s arguments carried a certain weight: recalling that Neumeister faced a sentence of five to ten years’ severe imprisonment, it observed that it was uncertain as to whether he would benefit from the law providing for cases involving extenuating circumstances (außerordentliches Milderungsrecht, Section 265 (a) of the Code of Criminal Procedure) but that the length of detention on remand would, in all probability, be deducted from the sentence in the event of a conviction (Section 55 (a) of the Criminal Code) and that the inducement to flee was thereby considerably lessened (wesentlich verringert).  However it considered that a guarantee of one million schillings was not sufficient to eliminate the danger of flight.  On this point it emphasised that Section 192 of the Code of Criminal Procedure stipulates that the amount of bail depends not only on the circumstances of the detainee and on the financial situation of the person providing the security, but also on the consequences of the offence.  For these reasons, the Judges’ Chamber ordered Neumeister’s provisional release against security of two million schillings (either in cash or in the form of a bank guarantee) and the voluntary deposit (freiwillige Hinterlegung) of his passport with the Court.\n\nOn 21 January 1964, Dr. Stern lodged, on behalf of Neumeister, an appeal designed to reduce the amount of security stipulated to one million schillings.  The substance of his argument was that under Section 192 of the Code of Criminal Procedure, the consequences of an offence should be taken into consideration only after due allowance had been made for the circumstances of the detainee and the financial situation of the guarantor.  From this he concluded that in no case should the courts demand a guarantee in excess of the means of the Applicant (Gesuchssteller), with the result that they might, if they so wished, prevent provisional release in a case where the loss was substantial.\n\nThe decision in dispute was partially altered by that of 4 February 1964.  After deciding that the appeal concerned solely the amount of the security required, the Vienna Court of Appeal came to the same conclusion as the Judges’ Chamber, to wit that a sum of one million schillings was too small, regard being had to the loss entailed by the acts in respect of which Neumeister was accused.  It added that the Applicant most probably possessed far greater assets than the amount offered as bail, thanks to the profit he had made from these same acts.  It also observed that he had not specifically claimed that his means would be exhausted by his having to give bail of one million schillings.  The Court stated however that it did not have the necessary documents or information available to enable it to consider the amount of bail fixed by the Judges’ Chamber.  It therefore remitted the case to the Judges’ Chamber emphasising that it was incumbent upon the latter, in the light of a detailed examination of Neumeister’s circumstances and of the financial situation of the guarantors he could name to fix the bail between the limits of one and two million schillings.\n\nIn a report dated 16 March 1964, drawn up at the request of the Judges’ Chamber, the Economic Police of Vienna expressed the opinion that Neumeister was quite unable to obtain two million schillings. This opinion was based on a number of documents from which it appeared that the Scherzinger firm was hardly in a healthy financial position and on the fact that Maria Neumeister stated that she could procure a guarantee of five hundred thousand schillings.\n\nThe Judges’ Chamber of the Regional Criminal Court of Vienna reached its decision on 31 March 1964, that is, two weeks after the preferment of the indictment (paragraphs 19 and 21 infra).  Besides mentioning the report of the Economic Police, it referred to a letter written by Neumeister dated 25 February 1964, according to which a person who wished to remain anonymous had agreed to provide security of one million two hundred and fifty thousand schillings.  After adding together this sum and the five hundred thousand schillings offered by Maria Neumeister, the Judges’ Chamber reduced the amount of security required of the Applicant to one million seven hundred and fifty thousand schillings.\n\nIn an appeal dated 20 April 1964, Neumeister requested that the sum should be reduced to one million two hundred and fifty thousand schillings; he maintained that the offer made by his daughter was included within that of the guarantor who did not wish to disclose his identity.\n\nThe Vienna Court of Appeal dismissed the appeal on 20 May 1964.  It was of the opinion that the Judges’ Chamber had complied with the decision of 4 February and that the consequences of the offence were of fundamental importance in the application of Section 192 of the Code of Criminal Procedure.\n\n19.  Meanwhile Judge Leonhard had, on 4 November 1963, announced the conclusion of the preliminary investigation and had sent the file to the Public Prosecution (Sections 111-112 of the Code of Criminal Procedure).  The file consisted of twenty-one volumes each of about five hundred pages, as well as a considerable number of other documents.  On 17 March 1964, the Public Prosecution of Vienna had, for its part, completed the indictment (Anklageschrift) of which Neumeister had been notified on 26 March (Sections 207 and 208 of the Code of Criminal Procedure).\n\n20.  In the execution of his task, the Investigating Judge had been aided by the Economic Police of Vienna, by the taxation department (Inspector Besau), by the Austrian railways and by the postal service administration; nevertheless, he had still encountered considerable difficulties.\n\nFour of the principal accused, named Lothar Rafael, Herbert Huber, Franz Schmuckerschlag and Walter Vollmann, had fled abroad, the first three at the outset of the enquiries and the last-named after being provisionally released on parole.  After rather long proceedings, the Austrian authorities had obtained Rafael’s extradition (21 December 1961) from the Federal Republic of Germany, and Huber’s (27 September 1962) from .  The Federal Republic of Germany had, however, refused to grant the extradition of Schmuckerschlag as he possessed German, as well as Austrian, nationality.  Vollmann has not, up to the present time, been traced.\n\nTo this were added a number of difficulties inherent in the nature, the size and the complexity of the acts complained of.  At its outset, the investigation concerned twenty-two persons and twenty-two counts. The prosecution was required to prove, among other things, that the documents concerning the purchase of goods had been falsified, that the value of the exports had been overstated with fraudulent intent, that the recipient firms abroad were either non-existent or ignorant of the whole affair and that the exporters had deposited the proceeds of the sales in Switzerland or Liechtenstein.  To achieve this aim it had been necessary to reconstruct many business operations which had taken place over a period of several years, to check the routes followed by one hundred and fifty or one hundred and sixty railway trucks, to study a large number of Revenue Office files, to hear dozens of witnesses, some of whom had to be examined again after Rafael’s extradition, etc.  Many of the witnesses lived abroad, for example in the , , the , , Latin America, Africa and the Near East.  The  had therefore been obliged to have recourse to the services of Interpol or to invoke the accords providing for mutual legal assistance which she had concluded with States such as the , the Federal Republic of Germany, ,  and .  The enquiries conducted in the Netherlands, the Federal Republic of Germany and in Switzerland had in part taken place in the presence of Austrian officials and especially, as regards those in Switzerland, in the presence of Judge Leonhard, the Investigating Judge.  Delays of from six to sixteen months had occurred between the sending of requests for legal assistance and the receipt of the results of the investigations which had taken place in the Netherlands, the Federal Republic of Germany, Italy and Switzerland.  At the time of the closing of the investigation the request addressed to Switzerland remained pending on one point, with regard to which no positive result was, in the end, obtained, as the Swiss authorities were of the view (September 1964) that the professional duty of secrecy imposed on the Zurich bankers in question conflicted with the disclosure of the information sought.  ’s reply was received in  only in June 1964.\n\nFirms under Soviet administration were also involved, especially at the beginning of the investigation: however, it was impossible to obtain documents from the Soviet Armed Forces Bank through which settlements had been effected.\n\nThe course of the investigation seems to have been slowed down by the refusal of one of the accused - Herbert Huber - to make any statement whatsoever before the Investigating Judge.\n\nOn the other hand, the proceedings relating to certain facts or accused had been severed by reason of their secondary importance (Section 57 (1) of the Code of Criminal Procedure); these seem to have been later abandoned (Section 34 (2) of the same code).  At the time of the closure of the preliminary investigation, the number of accused in the case did not exceed ten.\n\nAfter 21 January 1963, the date of his last confrontation with Rafael, Neumeister was not heard again by the Investigating Judge who, during the same period, interrogated Rafael twenty-eight times (272 pages of minutes) and five other accused seventeen times in all (119 pages of minutes).  According to the minutes of the confrontation of 21 January 1963, another confrontation was planned.  It did not take place, however; in the Applicant’s opinion, it was Lothar Rafael’s refusal to participate which prevented this intention being realised.\n\n21.  The indictment of 17 March 1964 was 219 pages long and concerned ten persons, in the following order: Lothar Rafael, Herbert Huber, Franz Scherzer, Fritz Neumeister, Iwan Ackermann, Leopold Brunner, Walter Vollmann, Hermann Fuchshuber, Helmut Dachs and Rudolf Grömmer; it was in no way concerned with the \"Kreisverkehr der Textilien der Firma Benistex\" case which was the object of separate proceedings (paragraph 22 infra).\n\nFor his part, Neumeister was accused of aggravated fraud (Sections 197, 200, 201 (a) and (d) and 203 of the Criminal Code) in ten groups of transactions relating to very different items: toilet soap, tools (cutters and welding bars), ladies’ clothing (nylon stockings, skirts, blouses, etc.), gym shoes, leather and velvet goods, indoor lamps and running gear.  The amount of loss for which he was called upon to answer exceeded 5,200,000 schillings.  The loss attributed to the Applicant was the fourth highest of the accused, being less than that alleged to be caused by Rafael (more than 35,100,000 schillings), Vollmann (about 31,900,000 schillings), and Huber (about 31,800,000 schillings), but more than that caused by Scherzer (more than 1,400,000 schillings), Brunner (more than 1,250,000 schillings), Dachs (more than 1,100,000 schillings), Ackermann and Grommer (about 200,000 schillings).  Some of the dealings did not concern him at all.  This was the case, mainly with a large operation involving the export of textiles in which only Rafael, Huber and Vollmann were implicated (more than 25,700,000 schillings, pages 101-170 of the indictment).\n\nThe Public Prosecution requested, inter alia, the opening of the trial before the Regional Criminal Court of Vienna, the calling of thirty-five witnesses and the reading of the affidavits of fifty-seven more.\n\n22.  On 3 June 1964, the Vienna Public Prosecution informed the Judges’ Chamber of the Regional Criminal Court that it was provisionally discontinuing the proceedings against Neumeister in the \"Kreisverkehr der Textilien der Firma Benistex\" case, although reserving the right to resume them at a later date (Section 34 (2), paragraph (1), of the Code of Criminal Procedure).  At the time of the laying of the indictment, the Public Prosecution had prevailed upon the Court to sever these proceedings which had subsequently been dealt with separately (26 d VR 2407/64).\n\nOn the same day, the Judges’ Chamber, stating that the total loss imputed to Neumeister had been reduced by more than four million schillings, decided to reduce to one million schillings - either in cash or in the form of a banker’s guarantee - the amount of security required for the release of the Applicant.\n\nOn 13 August 1964, Neumeister informed the Judges’ Chamber that his daughter, Maria Neumeister and another named person were prepared to stand surety for him (Bürgen), the former putting up 850,000 schillings and the latter 150,000.  The persons concerned confirmed this on the following day.  After carrying out a check on their solvency (Tauglichkeit), the Judges’ Chamber accepted their offer on 16 September 1964.  Some hours later the Applicant made the solemn undertaking provided for by Section 191 of the Code of Criminal Procedure, deposited his passport with the Court in conformity with the decision of 8 January 1964, which, on this point, was still in force, and was set at liberty.\n\n23.  The various decisions concerning Neumeister’s detention on remand were all reached in accordance with Sections 113 (2) (first instance) and 114 (2) (appeal) of the Code of Criminal Procedure, at the end of a hearing not open to the public in the course of which the Public Prosecution was heard in the absence of the Applicant and his legal representative (in nichtöffentlicher Sitzung nach Anhörung der Staatsanwaltschaft bzw. der Oberstaatsanwaltschaft).\n\n24.  On 9 October 1964, the date for the opening of the trial (Hauptverhandlung) was fixed for 9 November.\n\nOn 18 June 1965, after one hundred and two days of the hearing, the Regional Criminal Court of Vienna, constituted as a mixed lay and legal court (Schöffengericht), postponed the completion of the trial indefinitely so that the investigation might be completed.  Having received a number of requests from the Public Prosecution and from some of the accused including Neumeister, it gave effect to several of them and ex officio called for certain additional measures of investigation to be taken.  Herbert Huber’s attitude seems to have played a major part in making this supplementary investigation necessary: whereas during the preliminary investigation he had maintained a strict silence, he explained his conduct in detail before the judges; according to Neumeister, Huber’s statements were favourable to him while highly incriminating as regards Rafael.  The Court nevertheless indicated that, in its opinion, some of the new enquiries and hearings of witnesses ordered by it should have been conducted earlier during the preliminary investigation.\n\n25.  In February and July 1965, Neumeister made the journey to  with the permission of the , in connection with the application filed by him before the European Commission of Human Rights.  His passport is said to have been restored to him some days before the second of these journeys.\n\n26.  The additional investigation could not be conducted by Judge Leonhard who had appeared before the Court as a witness, (Section 68 of the Code of Criminal Procedure): it fell to his permanent substitute.  It lasted for more than two years and was not therefore completed until after the adoption, on 27 May 1966, of the Commission’s Report. The Investigating Judge examined numerous witnesses including Alfred Neumeister, the Applicant’s brother (13 December 1966), had experts’ reports drawn up, had resort to the services of the Exchequer, the Vienna Economic Police, and the police, the Post Office, Interpol, Swiss and German authorities, etc.  The accused do not seem to have been examined again.\n\nOn 8 March 1966, the Regional Criminal Court of Vienna informed Neumeister that a decision of the same day had, in pursuance of Section 109 of the Code of Criminal Procedure, discontinued (eingestellt) the proceedings instituted against him in respect of two of the counts.  The amount of the loss imputed to the defendant was reduced by about 370,000 schillings.\n\n27.  The trial was resumed before the Regional Criminal Court of Vienna on 4 December 1967.  According to the information supplied to the Court by the Government, it should last for between four and six months.\n\n28.  In his application instituting proceedings of July 1963 (No. 1936/63), the text of which was produced by the Commission at the request of the Court, Neumeister claimed:\n\n- that he had been arrested and detained without there being \"reasonable suspicion\" of his having committed an offence and without there being grounds for it to be \"reasonably considered necessary\" to prevent his fleeing (Article 5 (1) (c) of the Convention) (art. 5-1-c);\n\n- that he had reason to doubt the impartiality of those persons who were competent both to pronounce upon his continued detention and also to conduct the investigation (Article 6 (1)) (art. 6-1);\n\n- that the procedure followed in the examination of his requests for provisional release did not conform with the requirements of Articles 5 (4) and 6 (1) and (3) (b) and (c) (art. 5-4, art. 6-1, art. 6-3-b, art. 6-3-c) (\"equality of arms\"; Waffengleichheit);\n\n- that he had been neither brought to trial \"within a reasonable time\" nor released pending trial.  On this point, the Applicant in particular alleged that the Investigating Judge, who was required to deal simultaneously with several important cases, was no longer able to accomplish his task \"within a reasonable time\" within the meaning of Articles 5 (3) and 6 (1) (art. 5-3, art. 6-1) of the Convention.\n\nNeumeister complained, inter alia, of the decisions given some months earlier by the Judges’ Chamber of the Regional Criminal Court of Vienna and by the Court of Appeal.\n\nIn the course of a hearing before the Commission, the Applicant’s lawyer also invoked Article 5 (2) (art. 5-2) of the Convention, affirming that his client had not been informed in detail and in writing of the charges against him.\n\nThe Commission decided upon the admissibility of the Application on 6 July 1964.  It rejected, on the grounds of their being manifestly ill-founded, the complaints based on paragraphs 1 (c) and 2 of Article 5 (art. 5-1-c, art. 5-2) of the Convention, but declared the Application admissible in so far as it was based on Articles 5 (3), 5 (4) and 6 (1) (art. 5-3, art. 5-4, art. 6-1) (\"reasonable time\" and \"equality of arms\"); it did not consider it necessary to pronounce upon the alleged violation of Article 6 (3) (art. 6-3) as the Applicant had not pursued this point.\n\n29.  Following the decision declaring admissible a part of the Application, a Sub-Commission ascertained the facts of the case and unsuccessfully sought a friendly settlement (Articles 28 and 29 of the Convention) (art. 28, art. 29).\n\n30.  Invoking Article 5 (3) (art. 5-3), the Applicant maintained before the Commission and the Sub-Commission that his detention on remand had lasted longer than was reasonable.  In support of his contention he repeated many of the arguments he had put forward before the Investigating Judge, the Judges’ Chamber and the Court of Appeal of  (see above).  He also claimed that his second detention could be justified neither by the statements made about him by Lothar Rafael early in 1962 nor by the fact that Walter Vollmann had absconded; in particular he pointed out that Rafael’s extradition (on 21 December 1961) had taken place more than six months before his own re-arrest (on 12 July 1962).  According to the Applicant the position seemed in fact to be very much more in his favour at the time he lodged his Application (on 12 July 1963) than when he was first released (on 12 May 1961), this being due largely to his acquittal on 29 March 1963 in the Customs fraud case and the substantial reduction in the amount of the loss for which he was said to be responsible in the case against Rafael and others.  The competent legal authorities were said to have disregarded this change for the better by prohibiting the Applicant from going to  again, by ordering his arrest and by refusing for a long time to release him either on parole, as in 1961, or even against adequate security.  Neumeister also complained that they had delayed in obtaining information on his means before fixing the amount of bail; he maintained that Article 5 (3) (art. 5-3) in fine of the Convention precluded the stipulation of such a large amount of bail that the prisoner’s release became impossible in practice.  He further alleged - while protesting his innocence - that the length of his detention was out of proportion to the sentence he could expect if he were convicted: according to him, the sentence could not exceed twenty months, or at the most two years on the extreme hypothesis that the principal accused, Lothar Rafael, received the maximum provided by law.  Without disputing the difficulties of the investigation, Neumeister remarked that the most complicated part of it concerned a textiles case with which he had nothing whatever to do; he added that the Investigating Judge had not heard him since 21 January 1963.  His detention on remand was said to have caused him grave moral harm and material loss and greatly hampered the preparation of his defence.\n\nIn his original application in July 1963, Neumeister affirmed that the Investigating Judge, having to deal simultaneously with several large cases, including that of Stögmüller, was unable to complete his task within a reasonable time as provided in Articles 5 (3) and 6 (1) (art. 5-3, art. 6-1).  Neumeister does not appear to have invoked the latter provision subsequently on the point in question.\n\nLastly, according to the Applicant, the procedure in  for considering applications for release pending trial (Sections 113 (2) and 114 (2) of the Code of Criminal Procedure) is not in accordance with the principle of \"equality of arms\" (Waffengleichheit) safeguarded by Article 6 (1) (art. 6-1) of the Convention.  Here Neumeister referred to the opinions expressed by the Commission in the Pataki and Dunshirn cases (Applications 596/59 and 789/60).  He also maintained that a judicial organ that followed the procedure in question could not pass for a \"court\" within the meaning of Article 5 (4) (art. 5-4).\n\n31.  After the failure of the attempt to arrange a friendly settlement made by the Sub-Commission, the plenary Commission drew up a report as required by Article 31 (art. 31) of the Convention.  The Report was adopted on 27 May 1966 and transmitted to the Committee of Ministers of the Council of Europe on 17 August 1966.  The Commission expressed therein the following opinion which it later confirmed before the Court:\n\n(a) by eleven votes against one vote: the detention of the Applicant lasted beyond a \"reasonable time\", with the consequence that there was, in the case, a violation of Article 5 (3) (art. 5-3) of the Convention;\n\n(b) by six votes against six votes with the President’s casting vote (Rule 29 (3) of the Rules of Procedure of the Commission): Neumeister’s case was not heard \"within a reasonable time\" within the meaning of Article 6 (1) (art. 6-1);\n\n(c) by eight votes against two votes, with two abstentions: the proceedings regarding the Applicant’s release complied with Articles 5 (4) and 6 (1) (art. 5-4, art. 6-1).\n\nThe Report contains several individual opinions, some concurring, some dissenting.\n\nArguments of the Commission and the Government\n\n1.  In the Commission’s view, Article 5 (3) (art. 5-3) of the Convention secures the right of every person detained in accordance with Article 5 (1) (c) (art. 5-1-c) either to release pending trial or to trial within a reasonable time.  If a person detained on remand is provisionally released, then Article 5 (3) (art. 5-3) is thereby complied with as regards the future; if he is not released, he must be tried within a reasonable time.  The Commission infers that detention must not be prolonged beyond a reasonable period.  The most important problem, then, is said to be to interpret the words \"reasonable time\". The Commission finds the term vague and lacking in precision; thus its exact significance can be judged only in the light of the facts of the case, not \"in abstracto\".\n\n2.  In order to facilitate such evaluation, the Commission believes that it is in general necessary to examine an individual case according to the following seven \"criteria\", \"factors\" or \"elements\":\n\n(i) The actual length of detention.  The Commission does not mean by this to set an \"absolute time-limit\" to the length of detention. Neither is it a question of measuring the length of detention by itself; it is simply a matter of using it as one of the criteria for determining whether that length is reasonable or unreasonable.\n\n(ii) The length of detention in relation to the nature of the offence, the penalty prescribed and to be expected in the event of conviction and national legislation on the deduction of the period of detention from any sentence passed.  The Commission points out that the length of detention may vary according to the nature of the offence, the penalty prescribed and the likely penalty.  Nevertheless, it considers that, in judging the relationship between the penalty and the length of detention, account must be taken of the principle of presumption of innocence laid down in Article 6 (2) (art. 6-2) of the Convention.  If the period of detention were too similar in length to the sentence to be expected in case of conviction, the principle of presumption of innocence would not be entirely observed.\n\n(iii) The material, moral or other effects of detention upon the detained person beyond what are the normal consequences of detention.\n\n(iv)  The conduct of the accused:\n\n(a) Did he contribute to the delay or expedition of the investigation or trial?\n\n(b) Were proceedings delayed by applications for release pending trial, appeals or other remedies?\n\n(c) Did he request release on bail or offer other guarantees to appear for trial?\n\nOn this point the Commission considers that an accused who refuses to co-operate with the investigating organs or who uses the remedies open to him is thereby merely availing himself of his rights and should therefore not be penalised for doing so unless he acts in an abusive spirit or to an exaggerated extent.\n\nWith regard to the conduct of the other accused, the Commission hesitates to accept that this can justify any prolongation of an individual’s detention.\n\n(v) The difficulties in the investigation of the case (its complexity in respect of the facts or the number of witnesses or accused, the need to obtain evidence abroad, etc.).\n\n(vi) The manner in which the investigation was conducted:\n\n(a) the system of investigation applicable;\n\n(b) the conduct of the investigation by the authorities (their diligence in dealing with the case and the manner in which they organised the investigation).\n\n(vii) The conduct of the judicial authorities:\n\n(a) in dealing with applications for release pending trial;\n\n(b) in completing the trial.\n\n3.  The Commission considers that a rational plan of this kind makes it possible to arrive at \"a coherent interpretation without any appearance of arbitrariness\".  It also remarks that the opinion to be formulated in a particular dispute will be the result of an assessment of all the factors.  It may in fact happen that the application of some criteria will tend to lead to the conclusion that a period of detention was reasonable, whereas other criteria will suggest the opposite and still others will not clearly point either way.  The overall conclusion is said then to depend on the relative value and importance of the various factors; this does not rule out the possibility that one of them alone may carry decisive weight in some circumstances.\n\nThe Commission adds that in the above criteria it has tried to cover all the situations of fact that habitually arise in cases concerning detention on remand, but that the list drawn up by it is by no means exhaustive as exceptional situations may justify the use of other criteria.\n\n4.  In the present case the Commission has applied the seven criteria in finding the facts and in evaluating them from the legal point of view; some of the facts seem to it to be relevant in relation to several criteria.\n\n5.  In the Commission’s view, application of the first criterion points to the conclusion that the length of Neumeister’s detention was excessive.\n\nThe Commission considers that the six-months time-limit stipulated in Article 26 (art. 26) in fine of the Convention precludes it from expressing any opinion on whether the length of the Applicant’s first period of detention - two months and seventeen days (24 February - 12 May 1961) - was \"reasonable\".  On the other hand, it has considered the entire period of twenty-six months and four days that elapsed between 12 July 1962, when Neumeister was re-arrested, and 16 September 1964, when he regained his freedom.\n\nTo the Government’s contention that the only relevant period of detention is that previous to the filing of the Application (12 July 1963) the Commission replies that its work would be defeated if, in a case like this one, where there is a continuing situation, it were not competent to consider new facts subsequent to the filing of an application - which facts could just as easily be favourable to the respondent State.\n\n6.  In the Commission’s view, the second criterion by its very nature relates to the situation facing national authorities at the time of detention; thus it cannot be applied in retrospect, i.e. in the light of the sentence passed by the trial judge.\n\nAttempting to form a \"tentative opinion\" of the sentence to be expected by the Applicant in case of conviction, the Commission observes that:\n\n- section 203 of the Criminal Code provides for a sentence of five to ten years’ penal servitude;\n\n- the parties argued before it whether there was any proportion between the sentences that might be imposed and the damage caused by each of the accused in this case; but it does not propose to express any opinion on the matter;\n\n- Austrian legislation allows the courts to pass sentences lower than the usual minimum, provided there are extenuating circumstances.\n\nIn view more particularly of this last possibility, of which Austrian courts are said to make plentiful use in practice, the Commission considers that the length of Neumeister’s detention is close to the likely sentence in case of conviction.  It also observes that under Section 55 (a) of the Austrian Criminal Code, the period of detention is as a rule to be counted as part of the sentence.  However, the Commission does not view this as a factor likely to affect the judgment, in the light of the second criterion, as to whether the length of detention is reasonable; in this connection it stresses the uncertainty in which the prisoner has to live pending judgment.\n\nAll in all, therefore, application of the second criterion is thought to indicate that the Applicant’s detention lasted longer than was reasonable.\n\n7.  The third criterion is said to point the same way, since Neumeister suffered professionally and financially to an unusual degree as a result of his detention.\n\n8.  With regard to the fourth criterion, the Commission finds that the Applicant does not appear to have prolonged the investigation unduly by his attitude.  Of course he did not help shorten it, either, since he continually protested his innocence, but in doing so he was entirely within his rights.  Neither does the Commission consider that the fact that he lodged a series of applications and availed himself of other remedies, in accordance with the law, indicates any intention on his part to delay proceedings abusively.  His actions may, to be sure, have interrupted or slowed down the work of the Investigating Judge and the Public Prosecution by obliging them to forward the case record to the competent courts, but the Commission points out that there are in such cases technical means of ensuring uninterrupted work on the prosecution - for instance by making copies of the necessary documents.\n\n9.  In the Commission’s view, the case in question was an exceedingly complicated one by reason of the nature, range and multiplicity of the transactions in question, their foreign ramifications and the number of accused and witnesses.  Thus the fifth criterion would seem to justify a long period of detention.  The Commission thinks however that the continued holding of Neumeister in detention cannot be explained by the difficulties of the preliminary investigation after it had been closed on 4 November 1963.\n\n10.  With regard to the sixth criterion, the Commission begins by analysing the provisions of Austrian law governing the preliminary investigation, in particular the distribution of cases among examining judges (Sections 83 (2) and 87 (3) of the Constitution, Section 18 of the Code of Criminal Procedure, Section 4 (2) of the \"Gerichtsverfassungsnovelle\" and Sections 17-19 of the \"Geschäftsordnung für die Gerichtshöfe Erster und Zweiter Instanz\"); it then examines the course of the investigation of the Applicant’s case.  It does not find that the competent organs neglected their duties or in any other similar way prolonged Neumeister’s detention, but it considers that the working of the system in force caused certain delays, since the Investigating Judge had to deal with several very bulky and complicated cases at the same time.  The Commission remarks that it has experienced some difficulty in finding out whether the allocation of cases can under Austrian law be changed once the annual distribution has been established.  It points out that, while the Government denies that this can be done, the judge responsible for investigating the Matznetter case, which is also pending before the Court, was temporarily relieved of other cases.  However, the Commission does not think it necessary to go further into the question: it is a general principle of international law that a State cannot invoke its own legislation to justify failure to fulfil its treaty obligations.  The Commission therefore sees no reason to investigate whether the delays it has found to have occurred are the result of a legal obstacle or of failure to apply clauses by which they could have been avoided.\n\nIn short, consideration of the facts in the light of the sixth criterion is said to suggest that the length of Neumeister’s detention was excessive.  It is true that, at the hearing in February 1968, the Government’s representatives gave the Court further details of the steps taken to relieve the burden on the Investigating Judge (cf. infra).  The Commission’s answer is that those details would have caused it to amplify its Report somewhat if it had had them then; but that they are not of such a nature as to upset its conclusion.\n\n11.  The Commission considers that the conduct of the judicial authorities in connection with Neumeister’s applications for release pending trial (first part of the seventh criterion) is open to differing evaluations.  It therefore finds it hard to state with certainty whether or not an examination of this factor leads to the conclusion that the length of detention exceeded reasonable bounds.\n\nThe Commission does not in any case accept the Government’s argument (cf. infra) that Neumeister forfeited his right to \"trial within a reasonable time\" on the day the Judge’s Chamber of the Regional Criminal Court of Vienna first agreed in principle to release him on bail (8 January 1964).  It asserts that the second sentence of Article 5 (3) (art. 5-3) of the Convention affords the Contracting States a middle way between continuing detention and outright release, but it does not consider that resort to that solution gives a Government an excuse for keeping in detention indefinitely a person who refuses to provide the security demanded, especially if he is in no position to do so: otherwise a Government could easily evade its obligations by requiring excessive guarantees.\n\nThe Commission adds that the second part of the seventh criterion (the conduct of the judicial authorities in completing the trial) is inapplicable here in connection with Article 5 (3) (art. 5-3), since Neumeister was released before the trial opened.\n\n12.  In the light of an overall evaluation of these various factors, the Commission concludes, by eleven votes to one, that Article 5 (3) (art. 5-3) has been violated.  It does not state the exact date on which it considers the violation to have begun: it thinks that its task was solely to give an opinion on whether or not the period of Neumeister’s detention was reasonable.\n\n13.  In the Commission’s view, the problem of the \"time\" stipulated in Article 6 (1) (art. 6-1) of the Convention is different from the problem under Article 5 (3) (art. 5-3), for the relevance of the former Article does not depend on the fact of detention.\n\nIn a criminal case the period in question is thought by the Commission to date from the day on which the suspicion against a person begins to have substantial repercussions on his situation.  In the present case, the Commission, by seven votes to five, has taken this to be the day of Neumeister’s first interrogation by the Investigating Judge (21 January 1960) - not, for instance, the date on which the charge was preferred (17 March 1964).\n\nThe Commission furthermore considers, by nine votes to three, that the \"time\" referred to in Article 6 (art. 6) does not end with the opening of the trial or the hearing of the accused by the trial court (cf. the words \"entendue\" and \"hearing\") but, at the very least, with the \"determination\" by the court of first instance \"of any criminal charge against him\" (\"... décidera ... du bien-fondé de toute accusation\") - which has not yet come about in this case.  The Commission does not think it necessary in the present instance to consider here whether this \"time\" would also include appeal proceedings, if any.\n\nFor the purpose of determining whether a period of time is \"reasonable\" the Commission considers that several of the criteria it applies in connection with Article 5 (3) (art. 5-3) (the first, fourth, fifth, sixth and both parts of the seventh) also have a bearing, mutatis mutandis, on Article 6 (1) (art. 6-1).\n\nThe Commission holds, in short, by six votes - including its President’s casting vote - to six, that Neumeister was not heard within a reasonable time and that Article 6 (1) (art. 6-1) has thus not been observed in this respect.  It does not attach great weight to the fact that Neumeister hardly complained at all on this score: it believes that it is competent to consider any point of law that seems to it to arise from the facts of an application, and if necessary to do so in relation to an article of the Convention not expressly invoked by the Applicant; this is said to be borne out by its previous practice and by Rule 41 (1) (d) of its Rules of Procedure.\n\n14.  In the Commission’s view, the procedure in Austria for considering applications for release pending trial lies outside the scope of Article 6 (1) (art. 6-1) of the Convention, for it is concerned with the determination neither of a \"criminal charge\" (unanimous vote) nor of \"civil rights and obligations\" (seven votes to five).  Unlike the Government (see below), the Commission does not think that Article 6 (art. 6) leaves it to the municipal law of each  to define the words quoted above.  However, it does not feel able to interpret them broadly enough to cover the procedure in question.  With the intention of explaining its views on the autonomous concept of \"civil rights and obligations\", it refers in particular to the \"travaux préparatoires\" on the Convention and its own earlier rulings.\n\nThe Commission thinks it can be maintained that Article 5 (4) (art. 5-4) of the Convention, in stipulating that the lawfulness of detention shall be decided by a court, demands respect for certain fundamental principles.  However, it does not find the procedure laid down in Sections 113 and 114 of the Austrian Code of Criminal Procedure to be contrary to that requirement (seven votes to five).\n\nThe Commission concludes, by eight votes to two with two abstentions, that the proceedings on Neumeister’s release involved no violation of either Article 5 (4) (art. 5-4) or Article 6 (1) (art. 6-1).\n\n15.  The Commission draws the Court’s attention to the individual opinions - some concurring and some dissenting - expressed in its Report by certain of its members with regard to the various questions that arise in this case.\n\n16.  At the hearing of 12 February 1968, the Commission made the following submissions:\n\n\"May it please the Court:\n\nTo decide:\n\n17.  According to the Government the Commission’s opinion, as expressed in its Report, that the Republic of Austria has violated Articles 5 (3) and 6 (1) (art. 5-3, art. 6-1) in Neumeister’s case is based on faulty fact-finding and an erroneous interpretation of the Convention.\n\n18.  With regard to the interpretation of Article 5 (3) (art. 5-3) and its application to the present case, the Government contests first of all the method adopted by the Commission.  The literal meaning of the word \"reasonable\" (\"raisonnable\") is said to show clearly that the question whether the length of detention on remand was excessive can be settled only in the light of the circumstances of the case and not on the basis of a set of preconceived \"criteria\", \"elements\" or \"factors\".  It is maintained that this opinion is in accordance with the Commission’s previous practice and the intentions of the drafters of Article 5 (3) (art. 5-3).  The Government moreover thinks that the system of criminal procedure of the State concerned is of great importance in this context.  In its view, the authors of the Convention were convinced that the two systems of criminal procedure - the Anglo-American and the Continental - in force in the member States of the Council of Europe were entirely in harmony with the Convention, despite the profound differences between them.  The Government deduces that Article 5 (3) (art. 5-3) is not to be considered from the angle of just one given legal system.  It is said to follow that an examination of whether or not the length of a detention pending trial was \"reasonable\" must never ignore the \"common standard\" of that legal system to which the High Contracting Party concerned belongs.  According to the Government, a decision that the Convention was not respected in Neumeister’s case would mean indirectly that the Austrian law of criminal procedure is not in accordance with the principles of the Convention, whereas in fact it is very similar to that of most other countries on the continent of Europe.\n\nThe Government also complains that the Commission’s fact-finding was carried out in the light of the criteria chosen by itself.  It maintains that the Commission, starting from a preconceived legal position, based its opinion not on all the facts of the case but only on those facts which it needed to answer certain questions on which it considered the solution to the legal problem to depend.  In so doing it failed to establish or evaluate several important facts.\n\n19.  The Government also set against the Commission’s reasoning the following considerations, which are said to demonstrate the absence of any violation of Article 5 (3) (art. 5-3).\n\n20.  To the first of the seven \"criteria\", namely the actual length of detention, the Government raises objections of principle.  In its opinion, this \"criterion\" tends to bring into the Convention an absolute limit on the length of detention on remand, which is precisely what the Contracting Parties sought to avoid by using the words \"reasonable time\".  Moreover, on closer examination, it is not a true criterion, for it prejudges the conclusion to which the other criteria are supposed to lead.  In any case, the Commission did not adopt it in its previous decisions.\n\nThe Government furthermore considers that the Application is concerned only with the period spent by Neumeister in detention before he lodged his Application with the Commission (12 July 1963).  By taking into account the period of time up to his release pending trial (16 September 1964) the Commission is said to have exceeded the competence conferred upon it by Articles 24-31 of the Convention (art. 24, art. 25, art. 26, art. 27, art. 28, art. 29, art. 30, art. 31).\n\nAs a subsidiary argument the Government submits that the period subsequent to 8 January 1964, when the Judges’ Chamber for the first time agreed in principle to release Neumeister on bail, cannot be taken into consideration.  In its view such an offer of release meets the requirements of Article 5 (3) (art. 5-3).  If an individual, either because he does not agree to provide, or is unable to provide, the guarantee demanded, does not avail himself of the offer, then, in the Government’s view, he forfeits the right to trial within a reasonable time.  Besides, Article 5 (3) (art. 5-3) contains no express provision against demanding \"excessive\" guarantees from detainees; it follows that the drafters of the Convention did not intend to place any obligation on States in this respect.\n\n21.  Neither does the Government share the opinion expressed by the Commission with regard to the second criterion.  In applying it the Commission is said to have engaged in speculation on the sentence likely to be passed on the Applicant - unavoidably, since he has not yet been convicted.  This speculation, it is argued, is based both on an erroneous evaluation of those facts that are considered established and also on faulty fact-finding.  Thus the assumption that an Austrian court has the option of passing a sentence below the legal minimum where there are extenuating circumstances is inaccurate in the unconditional form the Commission allegedly gives to it. Section 265 (a) of the Code of Criminal Procedure, which is relevant here, only applies in the exceptional case of a conjunction of very important and predominant extenuating circumstances.  In order to establish the facts objectively and completely the Commission should, in the Government’s view, have taken into consideration the practice of the Austrian courts, which, it is said, are not in the habit of passing sentences appreciably lighter than the legal minimum in cases of damage amounting to several million schillings.  Furthermore the Government points out that the Austrian Criminal Code also lays down a number of aggravating circumstances in Sections 43-45.  Lastly, a purely mathematical calculation relating the sentence to the amount of damage for which the accused is responsible would in the Government’s view have unacceptable consequences.\n\n22.  The third criterion, too, is said to be ill-suited to consideration of the present case: it introduces differential treatment in the application of the provisions of law relating to release pending trial, a result which is incompatible with the principle of equality before the law enshrined in Section 7 of the Austrian Constitution and Article 7 of the Universal Declaration of Human Rights.\n\nMoreover, in order to apply the criterion it would be necessary to establish exactly what effect detention had had on Neumeister’s life. The Commission is said to have neglected to do this.  It has not put forward any arguments in support of its conclusion that the deterioration in the Applicant’s financial position was mainly or entirely due to his detention; in this respect it has merely cited his unsubstantiated statements and an isolated passage from a decision of the Judges’ Chamber of the Regional Criminal Court of Vienna. Similarly, the Commission is said not to have given any details of the difficulties which Neumeister claims to have encountered in preparing his defence.  More generally, it has lost sight of the fact that any detention necessarily entails hardships for the detained person.\n\n23.  According to the Government, in connection with the fourth criterion, the Commission has presented no more than part of the result of its investigations, without mentioning in particular certain facts of which it was aware and which, properly viewed, would have cast a different light on the Applicant’s conduct.\n\nThe Commission is said to have made the mistake of applying the fourth criterion from a subjective angle, forgetting that the attitude of an accused during proceedings is an objective factor.  It is true that Neumeister did not try to slow down the proceedings by his appeals. Nevertheless, they did cause delays, since on each occasion the record had to be handed over to the competent authorities.  Moreover, Neumeister is said to have done nothing to speed up the proceedings. On the contrary, he did not give an accurate account of his part in the transactions in question.\n\nThe Government lastly points out that, although the fourth criterion also covers the conduct of other accused persons, the Commission has considered the Applicant’s behaviour in isolation.  The Government holds that if several persons suspected of complicity are prosecuted simultaneously, each must bear the consequences of the others’ actions.  It therefore complains that the Commission has considered the prosecution of the Applicant separately from the rest of the case, whereas the Investigating Judge, when giving evidence before it as a witness, stated that the reason why he had not investigated Neumeister’s case separately was that some of the offences with which he was charged were inextricably bound up with the activities of the other accused.  According to the Government the Commission would, if its fact-finding had been complete and correct and its application of the criterion legally accurate, necessarily have expressed the opinion that the length of detention had been reasonable.\n\n24.  On the fifth criterion, the Government agrees with the Commission’s conclusion.  It considers however that the Commission has not taken sufficiently into consideration the difficulties inherent in the criminal proceedings in question (statement of the facts, paragraph 20).  It recalls that it was necessary to seek judicial assistance abroad and to request the extradition of several accused. Because of the size and complexity of the transactions in dispute the enquiries and interrogations conducted outside  took a long time and in some cases required the personal participation of the Investigating Judge.  Moreover, in some of the countries approached, especially , the request for legal assistance raised legal problems, the solution of which also caused loss of time.  The Commission’s report is said not to mention these facts, without which neither the complexity of the case nor the obstacles encountered by the Investigating Judge can be properly assessed.  The Government lastly regrets that here, too, the Commission has taken into consideration only the number of other accused, not their conduct during the proceedings.\n\n25.  With regard to the sixth criterion the facts found by the Commission are said to be inadequate to justify its conclusion.\n\nIn the first place, the Commission is thought to have underestimated the part played by the preliminary investigation in Austrian criminal procedure.  The Government points out that the object of the \"Voruntersuchung\" is to establish the material facts.  It follows that in complicated and difficult criminal cases a fairly long preliminary investigation and thus a fairly long detention on remand are often inevitable.\n\nThe Commission is also said not to have evaluated the facts of the case properly.  It has, it is argued, worked on the assumption that it would have been possible to release the Investigating Judge from all other work so that he could devote himself solely to the investigation of the Applicant’s case.  But under Austrian legislation (Section 87 (3) of the Constitution, Section 18 of the Code of Criminal Procedure, Section 34 (1) of the Judicature Act and Section 17 (5) of the Rules adopted by the Ministry of Justice for courts of first and second Instance) the allocation of criminal cases cannot be changed in the course of a year just because one judge is overworked. However, the Government points out that the Presiding Judge and the \"Staff Chamber\" (Personalsenat) of the Regional Criminal Court of Vienna, anxious to lighten the burden on the Investigating Judge, on many occasions allotted to other judges cases that normally should have gone to him, taking full advantage of the law in force for that purpose (between 1 and 30 June 1959, between 1 December 1960 and 31 May 1961, between 18 September 1961 and 31 July 1962, between 1 October and 31 December 1962 and between 15 May and 30 September 1963).  The Investigating Judge, when heard by the Commission as a witness, in fact stated that if he had not had to deal with several cases at the same time, the investigation of the Neumeister case would have been shortened but that the time saved would have been so minimal as to be hardly worth mentioning.\n\nIn considering the attitude of the authorities responsible for the investigation the Commission is said to have based its findings on the evidence of the Investigating Judge by itself, without subsequently evaluating it from a legal point of view.  In the Government’s opinion, such an evaluation would have shown that the Judge and his assistants had acted with the necessary care and diligence even although some delay was inevitable, since two of the main accused had escaped abroad and it was necessary to issue international \"wanted\" notices in order to locate them.\n\nIn general terms the Government considers that no effort was spared to hasten the investigation.  It points out that the prosecutions relating to certain acts or accused were severed or dropped under Sections 57 (1) and 34 (2) of the Code of Criminal Procedure.  It thinks that nothing more could have been done in this respect than was done.  In its view, the various offences in dispute were so closely inter-related that it was not possible to dissociate Neumeister’s case from the cases of the other accused.  Moreover, to have done so would have been contrary to the legal principle of connexity (Section 56 (1) of the Code of Criminal Procedure) and would in fact have delayed the proceedings, for the Court would have been obliged to compare the allegations of all the accused in order to check their veracity.\n\n26.  With regard to the seventh criterion the Government states that it is in no position to furnish any critical comment: it complains that the Commission has completely failed to state the conclusions it draws from the facts it considers to have found in its Report.\n\nIn particular, the Government maintains that the decision of 8 January 1964, making the Applicant’s release subject to guarantees of two million schillings was entirely in accordance with Article 5 (3) (art. 5-3) of the Convention, since there was a danger that he would abscond and since he had probably enriched himself considerably as a result of the offences with which he is charged.\n\nAccording to the Government the Commission could not have failed, if it had correctly evaluated the relevant facts, to recognise that the period of detention in dispute was reasonable.\n\n27.  From the foregoing, the Government concludes that, even if the method chosen by the Commission is used, no violation of Article 5 (3) (art. 5-3) can be detected in this case, for the arguments suggesting that the period of detention was reasonable far outweigh those to the contrary.  This is said to be particularly true of criteria 4, 5 and 6, the decisive ones in this case.\n\nThe Government expresses surprise that the Commission has not stated on what date it thinks the length of Neumeister’s detention to have become excessive.\n\n28.  In the Government’s view, the Commission has exceeded its competence in considering whether or not Neumeister was heard within a \"reasonable time\" as required by Article 6 (1) (art. 6-1) of the Convention.  The Applicant is said to have made no complaint in this respect and the problem in question to have played no part at the hearing in July 1964 on the admissibility of the Application.\n\nMoreover, the Government considers that the words \"reasonable time\" mean the same thing in both Articles in which they appear, namely Articles 5 (3) and 6 (1) (art. 5-3, art. 6-1).\n\nThe time to be considered in connection with Article 6 (1) (art. 6-1) is said to have begun not with Neumeister’s first interrogation by the Investigating Judge (on 21 January 1960) but only when the indictment was preferred (on 17 March 1964).  The terms \"criminal charge\" and \"accusation\" are in fact said to refer, in both the Continental and the Anglo-American systems, to the legal act of requesting the Court to rule on whether the allegation that an individual has committed a punishable offence is well-founded.  The Government remarks that under the Austrian Code of Criminal Procedure, only a person against whom an \"Anklage\" has been filed is entitled to a hearing before an independent tribunal.  In its view adoption of the Commission’s interpretation of the point would have results incompatible with the aims of the Convention: the effect would be to prevent the cessation of prosecution before the trial was opened, whereas several national legal systems, in particular Sections 90, 189 and 227 of the Austrian Code of Criminal Procedure, allow this.  Such an interpretation would also conflict with paragraphs 3 (a) and 2 of Article 6 (art. 6-3-a, art. 6-2): it is difficult to see how a person against whom a mere enquiry or preliminary investigation (Vorverhandlungen) is opened can be informed in detail \"of the nature and cause of the accusation against him\"; as for the principle of presumption of innocence, it is said to apply solely to an individual against whom a criminal charge within the meaning of Article 6 (1) (art. 6-1) has been brought - as indeed the Commission itself is affirmed to have acknowledged on many occasions.\n\nNeither does the Government share the opinion expressed by the Commission that the time covered by Article 6 (1) (art. 6-1) runs at least up to the determination of the criminal charge by the court of first instance.  It maintains that in fact that time comes to an end as soon as the accused receives a \"hearing\", i.e. at the beginning of the trial.  On this point the Government stresses the contrast between Article 6 (1) and Article 5 (3) (art. 6-1, art. 5-3), which contains the word \"jugée\" (\"trial\" in the English text).  It adds that in the English version of Article 6 (1) (art. 6-1) the drafters of the Convention would have used the words \"for the determination\" instead of \"in the determination\" if their intention had really been to require a decision to be reached on each charge within a reasonable time.\n\nLastly, the Government complains that the Commission merely states that some of the criteria which it applied in relation to Article 5 (3) (art. 5-3) also hold good for Article 6 (1) (art. 6-1), without indicating what facts it considers more particularly relevant in relation to the first or second provision.\n\n29.  On the question of the procedure in Austria for the consideration of applications for release pending trial, the Government mainly refers to the Commission’s opinion that this procedure does not infringe Article 6 (1) (art. 6-1) or Article 5 (4) (art. 5-4).  It remarks that it has always agreed with the restrictive interpretation of the words \"civil rights\" (\"droits de caractère civil\") apparent in all the Commission’s decisions.  It thinks however, unlike the Commission, that the Convention leaves it to the municipal law of each  to define these terms and that the States have no common view on the matter.  It asks the Court for a ruling on this important question.\n\n30.  At the hearing of 13 February 1968, the Government made the following submissions.\n\n\"(May it please the Court to) declare:\n\nthat the measures taken by the Austrian authorities, which are the subject of the application lodged by Fritz Neumeister against the Republic of Austria and of the Report of the European Commission of Human Rights of 27 May 1966, according to Article 31 (art. 31), of the European Convention on Human Rights, do not conflict with the obligations arising from the said Convention.\"\n\nAS TO THE LAW\n\n1.  The Court is called upon to decide whether Neumeister has been a victim of violations of the Convention by the Austrian judicial authorities with respect to the facts referred to in that part of his Application of 12 July 1963 which the Commission declared admissible on 6 July 1964.  These facts relate to the length of detention of Neumeister, who at the time of the filing of his Application had already been detained without a break for a period of one year, to the length of the proceedings against him and to the circumstances in which his various requests for release were determined.\n\n2.  The provisions of the Convention which are relevant to the examination of these questions are:\n\n(a) as regards the length of Neumeister’s detention on remand, Article 5 (3) (art. 5-3);\n\n(b) as regards the length of the proceedings against him, Article 6 (1) (art. 6-1);\n\n(c) as regards the failure to observe the principle of \"equality of arms\" in the examination of his requests for release, Articles 5 (4) and 6 (1) (art. 5-4, art. 6-1), or possibly these two Articles read in conjunction.\n\nA. The question whether the length of Neumeister’s detention exceeded the reasonable time laid down in Article 5 (3) (art. 5-3) of the Convention\n\n3.  Under Article 5 (3) (art. 5-3) \"everyone arrested or detained in accordance with the provisions of paragraph 1 (c)\" of that Article (art. 5-1-c) \"shall be entitled\", inter alia, \"to trial within a reasonable time or to release pending trial\"; it is also provided that \"release may be conditioned by guarantees to appear for trial\".\n\n4.  The Court is of the opinion that this provision cannot be understood as giving the judicial authorities a choice between either bringing the accused to trial within a reasonable time or granting him provisional release even subject to guarantees.  The reasonableness of the time spent by an accused person in detention up to the beginning of the trial must be assessed in relation to the very fact of his detention.  Until conviction, he must be presumed innocent, and the purpose of the provision under consideration is essentially to require his provisional release once his continuing detention ceases to be reasonable.  This is, moreover, the intention behind the Austrian legislation (Section 190 (1) of the Code of Criminal Procedure).\n\n5.  The Court is likewise of the opinion that, in determining in a given case whether or not the detention of an accused person exceeds a reasonable limit, it is for the national judicial authorities to seek all the facts arguing for or against the existence of a genuine requirement of public interest justifying a departure from the rule of respect for individual liberty.\n\nIt is essentially on the basis of the reasons given in the decisions on the applications for release pending trial, and of the true facts mentioned by the Applicant in his appeals, that the Court is called upon to decide whether or not there has been a violation of the Convention.\n\n6.  In the present case Neumeister was subjected to two periods of detention on remand, the first from 24 February 1961 to 12 May 1961, lasting two months and seventeen days, and the second from 12 July 1962 to 16 September 1964, lasting two years, two months and four days.\n\nAdmittedly the Court cannot consider whether or not the first period was compatible with the Convention; for even supposing that in 1961 Neumeister availed himself of certain remedies and exhausted them, he did not approach the Commission until 12 July 1963, that is to say, after the six-month time-limit laid down in Article 26 (art. 26) of the Convention had expired.\n\nThat period of detention nevertheless constituted a first departure from respect for the liberty which Neumeister could in principle claim.  In the event of his being convicted, this first period would normally be deducted from the term of imprisonment to which he would be sentenced (Section 55 (a) of the Austrian Criminal Code); it would thus reduce the actual length of imprisonment which might be expected. It should therefore be taken into account in assessing the reasonableness of his later detention.  Moreover it is observed that the Austrian Government has accepted that the period spent by Neumeister in detention after his second arrest, on 12 July 1962, should be taken into account by the Court, although his Application was filed with the Commission more than six months after the final decision on his first request for provisional release.\n\n7.  The Austrian Government, however, has argued that the Court could not consider Neumeister’s detention subsequent to 12 July 1963, the day on which he filed his Application, as the Application could relate only to facts that had taken place before this date.\n\nThe Court considers it cannot accept this view.  In his Application of 12 July 1963 Neumeister complained not of an isolated act but rather of a situation in which he had been for some time and which was to last until it was ended by a decision granting him provisional release, a decision which he sought in vain for a considerable time. It would be excessively formalistic to demand that an Applicant denouncing such a situation should file a new Application with the Commission after each final decision rejecting a request for release. This would pointlessly involve both the Commission and the Court in a confusing multiplication of proceedings which would tend to paralyse their working.\n\nFor these reasons, the Court has found that it must examine Neumeister’s continued detention on remand until his provisional release on 16 September 1964.\n\n8.  What strikes one first when examining the circumstances surrounding Neumeister’s second detention is that, while his arrest on 12 July 1962 had been provoked by the recent statements of his co-accused Rafael, the Applicant, who had already been the subject of a long investigation, was not interrogated again during the fifteen months which elapsed between his second arrest (12 July 1962) and the close of the investigation (4 November 1963).  On 21 January 1963, it is true, he was confronted with Rafael, but this confrontation, which was interrupted after a few minutes, was not recommenced, contrary to what was to be inferred from the minutes.\n\nSuch a state of affairs called for particular attention on the part of the judicial authorities when examining the applications which Neumeister made to them with a view to obtaining his release pending trial.\n\n9.  The reason invoked by the authorities to justify their rejection of the applications for release was that mentioned in the arrest warrant of 12 July 1962, namely the danger that, by absconding, Neumeister would avoid appearing before the court that was to try him.\n\nIn the view of the judicial authorities, this danger resulted from the anxiety which must have been caused to Neumeister by the statements made by his co-accused Rafael during his interrogations in January 1962 and his confrontations with Neumeister on 10 and 11 July 1962; these had, they argued, to such an extent aggravated the case against the accused and increased both the severity of the sentence to be expected in the event of his conviction and the amount of loss for which he could be held responsible that they must have given him a considerable temptation to abscond and thereby evade this two-fold - civil and criminal - liability.\n\nThe first Austrian decisions found confirmation of this danger of flight in the fact that Neumeister was said to have continued the preparations for his trip to  after becoming aware of the worsening of his position and after being informed by the Investigating Judge that permission for the journey had been refused.\n\n10.  The Court finds it understandable that the Austrian judicial authorities considered the danger of flight as having been much increased in July 1962 by the greater gravity of the criminal and civil penalties which Rafael’s new statements must have caused Neumeister to fear.\n\nThe danger of flight cannot, however, be evaluated solely on the basis of such considerations.  Other factors, especially those relating to the character of the person involved, his morals, his home, his occupation, his assets, his family ties and all kinds of links with the country in which he is being prosecuted may either confirm the existence of a danger of flight or make it appear so small that it cannot justify detention pending trial.\n\nIt should also be borne in mind that the danger of flight necessarily decreases as the time spent in detention passes by for the probability that the length of detention on remand will be deducted from the period of imprisonment which the person concerned may expect if convicted, is likely to make the prospect seem less awesome to him and reduce his temptation to flee.\n\n11.  In the present case, Neumeister’s counter-arguments against the reasons given by the Austrian judicial authorities in justification of his provisional detention have been summarised above (statement of the the facts, paras 13, 14, 16 and 18).  The Applicant referred, both in his appeals and also before the Commission, to various circumstances relating to his settled position in , which were such as to combat any temptation for him to flee.  His explanations of the alleged continuation of his preparations for his journey to Finland are confirmed by a study of the documents on the file and were not contradicted by the Investigating Judge in the course of his examination by the Commission (statement of the facts, paras 11, 12 and 14).\n\nThe Investigating Judge also admitted before the Commission that he personally did not believe that Neumeister intended to abscond in order to avoid appearing at his trial (statement of the facts, para. 11). Such a statement from a judge who, in the course of the long investigation conducted since 1959, must have become well acquainted with the Applicant is certainly not without importance.\n\n12.  The Court is of the opinion that in these circumstances the danger that Neumeister would avoid appearing at the trial by absconding was, in October 1962 in any event, no longer so great that it was necessary to dismiss as quite ineffective the taking of the guarantees which, under Article 5 (3) (art. 5-3) may condition a grant of provisional release in order to reduce the risks which it entails.\n\nHowever, this was precisely the attitude of the Austrian judicial authorities when for the first time, on 26 October 1962, Neumeister proposed a bank guarantee of 200,000 or, if necessary, 250,000 schillings (statement of the facts, para. 14), again when this offer was repeated on 12 July 1963 (statement of the facts, para. 16) and even when the offer of bail was increased by his lawyer on 6 November 1963 to one million schillings (statement of the facts, para. 18).\n\n13.  The Court is not in a position to state an opinion as to the amount of security which could reasonably be demanded of Neumeister, and it does not reject the notion that the first offers could have been dismissed as insufficient.  It notes however that the Austrian courts based their calculations mainly on the amount of loss resulting from the offences imputed to Neumeister which he might be called upon to make good.  The loss was such that, according to the decisions given, the offer of a bank guarantee could not be considered (\"indiskutabel\", statement of the facts, paras. 14 and 16).  This refusal by the judicial authorities to take any account whatsoever of the successive offers of bail made by Neumeister became less and less justified the nearer the offers came to the sum which could reasonably be considered sufficient to ensure his appearance at the trial.\n\n14.  When the principle of release conditioned by guarantees seemed acceptable, it was still exclusively in relation to the amount of loss that the amount of security required was fixed successively at 2,000,000, 1,750,000 and 1,250,000 schillings, finally to be reduced on 3 June 1964 to the sum of one million schillings which Neumeister was able to provide only on 16 September.\n\nThis concern to fix the amount of the guarantee to be furnished by a detained person solely in relation to the amount of the loss imputed to him does not seem to be in conformity with Article 5 (3) (art. 5-3) of the Convention.  The guarantee provided for by that Article (art. 5-3) is designed to ensure not the reparation of loss but rather the presence of the accused at the hearing.  Its amount must therefore be assessed principally by reference to him, his assets and his relationship with the persons who are to provide the security, in other words to the degree of confidence that is possible that the prospect of loss of the security or of action against the guarantors in case of his non-appearance at the trial will act as a sufficient deterrent to dispel any wish on his part to abscond.\n\n15.  For these reasons, the Court finds that Neumeister’s continued provisional detention until 16 September 1964 constituted a violation of Article 5 (3) (art. 5-3) of the Convention.\n\nB. The question whether the proceedings against Neumeister lasted beyond the reasonable time laid down in Article 6 (1) (art. 6-1) of the Convention\n\n16.  The Commission has expressed the opinion that it is competent to consider, even ex officio, whether the facts referred to it in an application disclose violations of the Convention other than those of which the application complains.  This is certainly the case, and the same is true of the Court, as has already been held in the judgment of 1st July 1961 on the merits of the Lawless case (Publications of the Court, Series A, 1960-61, page 60, para. 40).  It is however doubtful whether the question arose in the present case, since Article 6 (1) (art. 6-1) was expressly mentioned in the document filed by the Applicant in July 1963 (statement of the facts, paras. 28 and 30).  In any event, as the whole of the proceedings against Neumeister since he was charged has been referred to it, the Court is of opinion that it must examine, as the Commission has done, whether or not the facts of the case disclose a violation of Article 6 (1) (art. 6-1).\n\n17.  The first paragraph of Article 6 (art. 6-1) provides that \"in the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by (a) ... tribunal  ...\".\n\n18.  The period to be taken into consideration for verifying whether this provision has been observed necessarily begins with the day on which a person is charged, for otherwise it would not be possible to determine the charge, as this word is understood within the meaning of the Convention.\n\nThe Court notes that Neumeister was charged on 23 February 1961.\n\n19.  Article 6 (1) (art. 6-1), furthermore, indicates as the final point, the judgment determining the charge; this may be a decision given by an appeal court when such a court pronounces upon the merits of the charge.  In the present case there has not yet been a judgment on the merits.  Neumeister appeared before the trial judge on 09 November 1964, but a decision given on 18 June 1965 called for further measures of investigation, and the trial was reopened on 4 December 1967.  It goes without saying that none of these dates may be accepted as the end of the period to which Article 6 (1) (art. 6-1) applies.\n\n20.  That more than seven years have already elapsed since the laying of charges without any determination of them having yet been made in a judgment convicting or acquitting the accused, certainly indicates an exceptionally long period which in most cases should be considered as exceeding the reasonable time laid down in Article 6 (1) (art. 6-1).\n\nMoreover, an examination of the table by the Austrian Government of the activities of the Investigating Judge between 12 July 1962 and the close of the investigation on 4 November 1963 (Appendix IV of the Commission’s Report), gives rise to serious disquiet.  Not only was there during those fifteen months, as the Court has already noted (para. 8), no interrogation of Neumeister nor any confrontation of any importance with the other accused persons whose statements are said to have caused the Applicant’s second arrest, but between 24 June 1963 and 18 September of the same year, the Judge did not interrogate any of the numerous co-accused or any witness, nor did he proceed to any other measure of investigation.\n\nLastly, it is indeed disappointing that the trial was not able to commence before 9 November 1964, that is a year after the closing of the investigation, and even more disappointing that, following such a long investigation, the trial court was compelled, after sitting for several months, to order further investigations which were not all caused by the statements of the accused Huber, who had remained silent until the trial.\n\n21.  The Court does not however consider these various facts sufficient to warrant the conclusion that the reasonable time laid down in Article 6 (1) (art. 6-1) of the Convention was exceeded in the present case.\n\nIt is beyond doubt that the Neumeister case was of extraordinary complexity by reason of the circumstances mentioned above (statement of the facts, para. 20).  It is, for example, not possible to hold the Austrian judicial authorities responsible for the difficulties they encountered abroad in obtaining the execution of their numerous letters rogatory (arguments of the Government, para. 24).  The need to wait for replies probably explains the delay in closing the investigation, despite the fact that no further measures of investigation remained to be conducted in .\n\nThe course of the investigation would probably have been accelerated had the Applicant’s case been severed from those of his co-accused, but nothing suggests that such a severance would here have been compatible with the good administration of justice (arguments of the Government, section 25 in fine).\n\nNeither does the Court believe that the course of the investigation would have been accelerated, if it had been allocated to more than one judge, even supposing that this had been legally possible.  It also notes that, although the designated Judge could not in fact be relieved of the financial cases of which he had been seized before 1959, many other cases which would normally have fallen to him after this date were assigned to other judges (arguments of the Government, para. 25).\n\nIt should moreover be pointed out that a concern for speed cannot dispense those judges who in the system of criminal procedure in force on the continent of Europe are responsible for the investigation or the conduct of the trial from taking every measure likely to throw light on the truth or falsehood of the charges (Grundsatz der amtswegigen Wahrheitserforschung).\n\nFinally, it is obvious that the delays in opening and reopening the hearing were in large part caused by the need to give the legal representatives of the parties and also the judges sitting on the case time to acquaint themselves with the case record, which comprised twenty-one volumes of about five hundred pages each as well as a large number of other documents (statement of the facts, para. 19).\n\nC. The question whether there has been violation of the principle of \"equality of arms\" in the examination of Neumeister’s requests for release and whether there has in consequence been a violation of Article 5 (4) (art. 5-4) or Article 6 (1) (art. 6-1) or possibly of these two Articles (art. 5-4, art. 6-1) read in conjunction\n\n22.  The Applicant has stated, and it has not been disputed by the Austrian Government, that the decisions relating to his detention on remand were given after the prosecuting authority had been heard in the absence of the Applicant or his legal representative on the written request made by them.  The Court is inclined to take the view that such a procedure is contrary to the principle of \"equality of arms\" which the Commission, in several decisions and opinions, has rightly stated to be included in the notion of fair trial (procès équitable) mentioned in Article 6 (1) (art. 6-1).  The Court does not consider however that this principle is applicable to the examination of requests for provisional release.\n\n23.  Certain members of the Commission have found in favour of the opposing view, expressing the opinion that such requests relate to \"civil rights and obligations\" and that any case relating to those rights must under Article 6 (1) (art. 6-1) be given a fair hearing.\n\nThis argument does not seem to be well founded.  Quite apart from the excessively wide scope it gives to the concept of \"civil rights\", the limits of which the Commission has sought to fix on a number of occasions, it must be observed that remedies relating to detention on remand undoubtedly belong to the realm of criminal law and that the text of the provision invoked expressly limits the requirement of a fair hearing to the determination ... of any criminal charge, to which notion the remedies in question are obviously unrelated.\n\nBesides, Article 6 (1) (art. 6-1) does not merely require that the hearing should be fair, but also that it should be public.  It is therefore impossible to maintain that the first requirement is applicable to the examination of requests for release without admitting the same to be true of the second.  Publicity in such matters is not however in the interest of accused persons as it is generally understood.\n\n24.  Nor is it possible to justify application of the principle of \"equality of arms\" to proceedings against detention on remand by invoking Article 5 (4) (art. 5-4) which, while requiring that such proceedings shall be allowed, stipulates that they should be taken before a \"court\".  This term implies only that the authority called upon to decide thereon must possess a judicial character, that is to say, be independent both of the executive and of the parties to the case; it in no way relates to the procedure to be followed.  In addition, the provision in question also lays down that such remedies must be determined \"speedily\" (the French text uses the somewhat less expressive term \"à bref délai\").  This clearly indicates what the main concern must be in this matter.  Full written proceedings or an oral hearing of the parties in the examination of such remedies would be a source of delay which it is important to avoid in this field.\n\n25.  For these reasons the Court finds that the procedure followed by the Austrian courts in examining the Applicant’s requests for provisional release has contravened neither Article 5 (4) (art. 5-4) nor Article 6 (1) (art. 6-1) of the Convention.\n\nFOR THESE REASONS, THE COURT\n\nHolds unanimously that there has been a breach of Article 5 (3) (art. 5-3) of the Convention;\n\nHolds by five votes to two that there has been no breach of Article 6 (1) (art. 6-1) of the Convention as regards the length of the proceedings against the Applicant;\n\nHolds unanimously that there has been no breach of Article 5 (4) (art. 5-4) or Article 6 (1) (art. 6-1) of the Convention as to the procedure followed in examining the requests for provisional release lodged by F. Neumeister; and\n\nDecides, accordingly, that the facts of the case disclose, on one of the three points at issue, a breach by the  of its obligations arising from the Convention.\n\nDone in French and in English, the French text being authentic, at the , , this twenty-seventh day of June, one thousand nine hundred and sixty-eight.\n\nH. ROLIN\n\nM.-A. EISSEN\n\nMM. A. Holmbäck and M. Zekia, Judges, consider that there was a breach of Article 6 (1) (art. 6-1) of the Convention as regards the length of the proceedings against the Applicant.  Availing themselves of the right under the terms of Article 51 (2) (art. 51-2) of the Convention and Rule 50 (2), of the Rules of Court, they annex their dissenting opinions to the present judgment.\n\nAs the Court has stated in the Judgment, the period to be taken into consideration for verifying whether or not the reasonable time referred to in Article 6 (1) (art. 6-1) has been observed in the Neumeister case began on 23 February 1961.  Then, as the hearing in the case was opened on 9 November 1964 the period lasted for more than three years and eight months.  In my opinion that period was too long and therefore I agree with the Commission (Report of 27 May 1966, six votes with the President’s casting vote to six) that Article 6 (1) (art. 6-1) was violated in the case.  On 18 June 1965 the trial was adjourned and the case returned to the Investigating Judge.  The trial was resumed before the court on 4 December 1967.  The material brought before the Court is, in my view, not sufficient for an opinion to be formed as to whether this further delay also implies a violation of Article 6 (1) (art. 6-1) of the Convention.\n\nI was unable to share the opinion of my learned colleagues in their coming to the conclusion that in the Neumeister case there was no contravention of Article 6 (1) (art. 6-1) of the European Convention on Human Rights on the part of the Austrian authorities.\n\nI propose to deal shortly with my reasons of dissent.  A statement of facts as well as of arguments and submissions, covering those also relevant to Article 6 (1) (art. 6-1) of the Convention, having been embodied in the main Judgment of the Court already delivered I am spared from going into them all over again.\n\nNeumeister was charged on 23 February 1961 with aggravated fraud under relevant articles of the Austrian Penal Code.  The fraud involved several millions of schillings.  The Applicant was kept in detention for two periods totalling two years four months and twenty-one days. The first period began on 24 February 1961, that is the day after he was charged, and ended on 12 May 1961.  The second period started on 12 July 1962 and came to an end on 6 September 1964. On the latter date, he was released on bail.  Proceedings before the trial court substantially for the same offences with which he was originally charged started on 9 November 1964 and after several months of sitting the trial was adjourned sine die for further investigations.  It was reopened on 4 December 1967 and to this day the hearing of this case has not been completed.\n\nOver seven years have elapsed between the time Neumeister was originally charged and he did not yet have a judgment of conviction or acquittal.\n\nAlthough the investigation was closed on 4 November 1963 the trial did not begin until 9 November 1964 and for a period of fifteen months prior to 1 November 1963 there appears to be a marked slackness on the part of the investigating authorities.\n\nArticle 6 (1) (art. 6-1) reads \"In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law\".  Paragraph 2 of the same Article (art. 6-2) reads \"Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law\".\n\nThe words \"within a reasonable time\" occurring in the first paragraph of Article 6 (art. 6-1) and the words \"shall be presumed innocent\" appearing in the last-cited paragraph surely are not devoid of practical significance.\n\nThis was undoubtedly an exceptionally complicated case necessitating protracted investigations and long proceedings for the procurement of evidence from abroad.  A series of offences are alleged to have been committed by the Applicant and a number of persons along with him are implicated.\n\nNotwithstanding the difficulties encountered in the preparation and presentation of the case I am unable to persuade myself - even after making certain allowances for the delays caused by the necessity for these long investigations and the difficulties of procuring evidence - that such a long interval and delay between the date Neumeister was originally charged and the date of the conclusion of his trial, the date of which is not yet known, could be considered as compatible with the letter and spirit of Article 6 (1) (art. 6-1) of the Convention just cited.\n\nIn a democratic society, to keep a man in suspense and in mental agony for seven years and over, in a state of uncertainty and not knowing what would befall him, with the consequential hardships to him and to his family in business and society, in my view, constitutes a clear violation of the right guaranteed to him under Article 6 (1) (art. 6-1) referred to.  Undoubtedly it is desirable, and the administration of justice also demands it that a court should endeavour to get the truth and the whole truth specially in a criminal case, but with extremely belated proceedings in this direction, it is highly questionable whether they defeat or serve the ends of justice. It would be better in such cases to rule in favour of the individual if there exists a doubt in the minds of the Court.\n\nI entertain therefore no doubt that in the circumstances of this case, the Austrian authorities violated Article 6 (1) (art. 6-1) of the Convention.\n\nI entertain therefore no doubt that in the circumstances of this case, the Austrian authorities violated Article 6 (1) (art. 6-1) of the Convention.","title":""}
{"_id":"passage_23","text":"PROCEDURE\n\n1.  The case originated in an application (no. 61603/00) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a German national, Ms Waltraud Storck (“the applicant”), on 15 May 2000.\n\n2.  The applicant, who had been granted legal aid, was represented by Mr G. Rixe, a lawyer practising in . The German Government (“the Government”) were represented by their Agent, Mr K. Stoltenberg, Ministerialdirigent, and, subsequently, Mrs A. Wittling-Vogel, Ministerialrätin, of the Federal Ministry of Justice.\n\n3.  The applicant alleged, in particular, that her confinement in different psychiatric hospitals and the medical treatment she had received had violated Articles 5 and 8 of the Convention. She also complained that the proceedings to review the legality of these measures had not satisfied the requirements of Article 6 of the Convention.\n\n4.  On 15 October 2002 a committee of three judges of the Court, pursuant to Article 28 of the Convention, declared the application inadmissible and rejected it in accordance with Article 35 § 4.\n\n5.  On 28 January 2003 the same committee decided to reopen the proceedings.\n\n6.  The application was then allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.\n\n7.  By a decision of 26 October 2004, the Chamber declared the application partly admissible.\n\n8.  The applicant and the Government each filed observations on the merits (Rule 59 § 1). The parties replied in writing to each other’s observations.\n\n9.  On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1), but this case remained with the Chamber constituted within the former Third Section.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n10.  The applicant was born on 30 August 1958 and lives in Niederselters ().\n\nA.  Background to the case\n\n11.  The case concerns the applicant’s repeated placement in a psychiatric institution, her stay in a hospital, her medical treatment and her various compensation claims.\n\n12.  The applicant is currently 100% disabled and receives an invalidity pension. She claims to be constantly suffering from significant pain, especially in her arms and legs and her vertebral column. She has spent almost twenty years of her life in different psychiatric institutions and other hospitals.\n\n1.  The applicant’s placement in different psychiatric institutions\n\n13.  From January 1974 to May 1974 (at which time the applicant was 15 years old), and from October 1974 to January 1975 (when she was 16 years old), the applicant was placed in the children and young people’s psychiatric department at Frankfurt am Main University Clinic for seven months at her father’s request.\n\n14.  From 29 July 1977 (when she was 18 years old) to 5 April 1979, she was placed in a locked ward (geschlossene Station) at a private psychiatric institution, the clinic of Dr Heines in Bremen, at her father’s request. There had been serious conflicts between the applicant and her parents, following which her father believed her to be suffering from a psychosis. The applicant’s mother had suffered from a paranoid-hallucinatory psychosis.\n\n15.  The applicant – who by that time had attained the age of majority – had not been placed under guardianship, had never signed a declaration that she had consented to her placement in the institution, and there had been no judicial decision authorising her detention in a psychiatric hospital. The private clinic of Dr Heines was not entitled to detain patients who were to be kept in accordance with the Act of the  on the detention of mentally insane persons, mentally deficient persons and drug addicts (see paragraphs 51-58 below). On 4 March 1979 the police brought the applicant back to the clinic by force after she had attempted to escape.\n\n16.  During her forced stay at that clinic, the applicant was unable to maintain regular social contact with persons outside the clinic. When she was three years old, she had fallen ill with poliomyelitis, and following her medical treatment at the clinic she developed post-poliomyelitis syndrome.\n\n17.  From 5 April 1979 to 21 May 1980, the applicant was placed in a psychiatric hospital in Gießen. She claimed that she had by chance been saved from having to stay there any longer by a patient in the hospital who had given her accommodation.\n\n18.  From 21 January to 20 April 1981, she again received medical treatment at Dr Heines’s clinic, having at that time lost her ability to speak and, according to the doctors, showing signs of autism.\n\n2.  The applicant’s stays in different hospitals and clinics\n\n19.  On 7 May 1991 the applicant received medical treatment at Dr Horst Schmidt’s clinic for neurology and psychiatry.\n\n20.  From 3 September 1991 to 28 July 1992, the applicant received medical treatment (stationäre Behandlung) at Mainz University Clinic for Psychosomatic Medicine and Psychotherapy, a public-law institution, where she regained her ability to speak.\n\n21.  From 22 October to 21 December 1992, the applicant was treated in the orthopaedic department of a clinic in Frankfurt am Main and, from 4 February to 18 March 1993, she was treated in the orthopaedic department of a clinic in Isny.\n\n22.  On 18 April 1994 Dr Lempp, a professor of paedopsychiatry at  and a member of the federal government’s investigating committee, prepared an expert report at the applicant’s request. He indicated that the applicant had “at no point in time suffered from a schizophrenia-type psychosis” (“zu keinem Zeitpunkt lag eine Psychose aus dem schizophrenen Formenkreis vor”) and that her intemperate behaviour had resulted from conflicts with her family.\n\n23.  On 6 October 1999 Dr Köttgen, a psychiatrist, submitted a second expert opinion, again at the applicant’s request. Confirming the findings of Dr Lempp, she considered that the applicant had never suffered from an early onset of schizophrenia, but that she had been in the midst of a puberty-related identity crisis (Pubertätskrise) at the relevant time. Because of the wrong diagnosis given at that time, she had for many years received medication already known to have adverse side effects. As the applicant had had poliomyelitis, she would have had to be treated with the utmost caution. In that connection, the situation at Dr Heines’s clinic seemed to have been particularly serious: deprivation of liberty without a judicial decision, absence of a legal basis for the detention, excessive dosage of medication in order to question the applicant, and methods belonging to “black pedagogy” (schwarze Pädagogik).\n\nB.  Proceedings brought by the applicant in the national courts\n\n1.  Proceedings in the  courts\n\n24.  On 12 February 1997 the applicant, on the basis of the expert report by Dr Lempp, lodged an application for legal aid and an action for damages against Dr Heines’s clinic in the . She claimed, firstly, that her detention from 29 July 1977 to 5 April 1979 and from 21 January 1981 to 20 April 1981 had been illegal under German law. Furthermore, the medical treatment she had received had been contraindicated because of her poliomyelitis. She argued that her forcible detention and the medical treatment she had received had ruined both her physical and mental health.\n\n25.  It was only at that time, on 24 February 1997, that the applicant was given access to her medical file from Dr Heines’s clinic, despite her previous and repeated requests.\n\n(a)  The judgment of the  Regional Court of 9 July 1998\n\n26.  On 9 July 1998 the , after a hearing, allowed the applicant’s action for damages, as her detention had been illegal under German law.\n\n27.  The Regional Court found that the applicant, who had attained the age of majority, had not been placed under guardianship, and her detention had not been ordered by a district court as provided by the Act of 16 October 1962 of the Land of Bremen on the detention of mentally insane persons, mentally deficient persons and drug addicts (see paragraphs 51-58 below).\n\n28.  According to the , such a detention would only have been legal if the applicant had given her consent, which had not been the case. Firstly, she had not signed the admission form filled in on the day of her initial admission to the clinic. Secondly, she had not given her implicit consent (konkludente Einwilligung) to her placement and treatment at the clinic. The mere fact that on the day of her initial admission she had come to the clinic, accompanied by her father, did not suffice to establish valid consent (wirksame Einwilligung). According to the private clinic’s submissions, it could not be ruled out that, at that time, the applicant had not been in a position to realise the importance and the consequences of her detention (“es ist ... vielmehr nicht auszuschließen, daß die Klägerin zum damaligen Zeitpunkt die Bedeutung und Tragweite der Unterbringung nicht erkennen konnte”). This was due, in particular, to the fact that the applicant had been given very strong medication from the time of her arrival.\n\n29.  On that point, the Regional Court concluded as follows:\n\n30.  The Regional Court found that, for the second period in which the applicant was placed in the psychiatric hospital (from 21 January to 20 April 1981), she had likewise not consented to her confinement, as she had shown signs of autism and had suffered from temporary loss of speech. Therefore, a court order would also have been necessary for this period.\n\n31.  As the applicant was therefore entitled to damages in any event, the  did not examine the question whether her medical treatment had been adequate or not.\n\n32.  The  also found that the applicant’s compensation claim was not time-barred. Under Article 852 § 1 of the Civil Code (see paragraph 63 below), the limitation period of three years for tort claims (unerlaubte Handlung) started running only when the victim had knowledge of the damage and of the person responsible for it. The court observed that a victim could only be perceived to have that knowledge when he was in a position to bring an action for damages that had sufficient prospects of success. Only from then on could he reasonably be expected to bring that action (“daß ihm die Klage zuzumuten ist”), regard being had in addition to his state of health. The court referred to the case-law of the Federal Court of Justice (Bundesgerichtshof) on the subject.\n\n33.  Even if the applicant might already have been conscious of the fact that she had been placed in the clinic against her will, it was established that during her long stays in the psychiatric hospital she had been forced to take very strong medication. When she had been released from the clinic, she had still received medical treatment, and she had always been regarded as mentally ill. The applicant had also suffered from serious physical disorders (schwere körperliche Ausfallerscheinungen) and had, in particular, subsequently lost the ability to speak for more than eleven years (from 1980 to 1991/92). It was not until the end of this medical treatment and after the submission of Dr Lempp’s expert report on 18 April 1994 – in which it had been concluded for the first time that she had never suffered from schizophrenia – that she had become sufficiently aware of her situation, of her possible right to damages, and of the possibility of bringing an action in court. Her application for legal aid, lodged on 12 February 1997, had interrupted the three-year limitation period. Her claim was therefore not time-barred.\n\n(b)  The judgment of the  Court of Appeal of 22 December 2000\n\n34.  On 22 December 2000 the  Court of Appeal, following an appeal by the clinic, quashed the judgment of the  and dismissed the applicant’s action.\n\n35.  The Court of Appeal disagreed with the Bremen Regional Court’s finding that the applicant had illegally been deprived of her liberty during her stay and treatment at the clinic. It noted that the  had not taken evidence on the issue in dispute. It found that the applicant had conceded in the appeal proceedings that she had to a certain extent voluntarily (“bedingt freiwillig”) consented to her stay in the clinic in 1981.\n\n36.  The Court of Appeal left open the question whether the applicant had a compensation claim in tort (Schadensersatzanspruch aus unerlaubter Handlung) on account of her unlawful deprivation of liberty or the damage caused to her body by her medical treatment. In any event, such a claim would be time-barred under Article 852 § 1 of the Civil Code, which provided for a three-year time-limit. The Court of Appeal considered that the applicant had always been conscious of the fact that she had purportedly been detained against her will, independently of the expert opinion submitted by Dr Lempp. She had also been aware that she had allegedly been forced to take antipsychotic medication. Therefore, she had also been in a position to bring an action in court, despite her physical problems. According to the case-law of the Federal Court of Justice, it sufficed to be aware of having suffered damage, without knowledge of the entirety of the damage being necessary.\n\n37.  Furthermore, the Court of Appeal found that the applicant was likewise not entitled to bring a compensation claim on a contractual basis (Schadensersatzansprüche aus Vertrag) following her medical treatment. According to the Court of Appeal, the applicant had not sufficiently proved that she had expressly objected to her stay in the psychiatric hospital. Moreover, a contract between the applicant and the clinic concerning the applicant’s medical treatment could also have been concluded implicitly (konkludenter Vertrag). It could not be assumed that this contract had been terminated by each of the applicant’s attempts to escape, which were attributable to her illness (“Es kann nicht angenommen werden, daß dieser konkludent geschlossene Vertrag durch jeden krankheitsbedingten Fluchtversuch beendet worden ist”). In fact, when the clinic prevented the applicant from escaping, it had complied with its duty of care (Fürsorgepflicht). According to the expert opinion of Dr Rudolf, a psychiatrist appointed by the Court of Appeal, the applicant had been seriously ill at that time and in need of medical treatment.\n\n38.  Irrespective of this, the Court of Appeal pointed out that the clinic had disputed the applicant’s assertion that she had been detained against her will, so that it remained uncertain whether this assertion was true (“so daß offenbleibt, ob dieser Vortrag überhaupt zutrifft”).\n\n39.  Even if a contract concluded between the clinic and the applicant, who had at that time attained the age of majority, could not be presumed, there was in any event a contract between the clinic and the applicant’s father, concluded implicitly for the applicant’s benefit. This contract had run at least from 29 July 1977 to January 1978, when attempts had been made to place her in a different psychiatric institution.\n\n40.  Furthermore, the Court of Appeal did not consider that the applicant’s treatment had been erroneous, or that the dosage of her medication had been too high. It relied in this connection on the conclusive expert report by Dr Rudolf. In assessing the opinion expressed by the expert, who had submitted his report both in writing and orally during the hearing, the court thoroughly considered the partly different conclusions reached in the expert reports by Dr Lempp and Dr Köttgen, which had been prepared at the applicant’s request.\n\n2.  Proceedings in the Mainz and  courts\n\n41.  The applicant also brought an action for damages in the  against the doctors who had treated her at Mainz University Clinic and against the clinic itself. She claimed that she had been treated for psychosomatic symptoms, although she had in fact been suffering from post-poliomyelitis syndrome. As the applicant’s medical file concerning her treatment at the clinic had temporarily disappeared, the clinic compiled a substitute file (Notakte) of some 100 pages, to which the applicant’s lawyer was subsequently granted access.\n\n42.  In a judgment delivered on 5 May 2000, the  dismissed the applicant’s claim. It found that, according to the expert report by Dr Ludolph, chief physician of the neurology clinic at , there had not been sufficient evidence that her post-poliomyelitis syndrome and her contemporaneous mental ailments had not been treated correctly.\n\n43.  During the appeal proceedings subsequently brought by the applicant in the Koblenz Court of Appeal, the original of the applicant’s medical file was found, and the applicant’s lawyer was granted access to it.\n\n44.  In a judgment delivered on 30 October 2001, the Koblenz Court of Appeal confirmed its own judgment by default of 15 May 2001, given on account of the applicant’s failure to attend the hearing (Versäumnisurteil). It upheld the judgment of the . Relying on the expert report by Dr Ludolph and another two reports submitted by orthopaedic experts, the court found in particular that the applicant had neither intentionally nor negligently been given the wrong medical treatment. It stated that the fact that one of the expert reports had been drawn up with the aid of doctors assisting the court-appointed expert did not preclude its use in court. The court-appointed expert had taken full responsibility for the report and had been examined in person in court. Moreover, even assuming that there had been an error in treatment, the applicant, on whom the burden of proof fell in the matter, had not shown that there was a causal link between the error in treatment and the damage to her health. In particular, as there had not in any event been a serious error in treatment, it was not necessary, in accordance with the settled case-law of the Federal Court of Justice, to apply a less strict rule on the burden of proof (Beweiserleichterungen).\n\n3.  Proceedings before the Federal Court of Justice\n\n45.  The applicant lodged an appeal on points of law with the Federal Court of Justice against the Bremen Court of Appeal’s judgment of 22 December 2000 and against the judgments delivered by the  on 5 May 2000 and the Koblenz Court of Appeal on 30 October 2001.\n\n46.  On 15 January 2002 the Federal Court of Justice refused to admit the applicant’s appeal against the judgment of the Bremen Court of Appeal.\n\n47.  On 5 February 2002 the five judges of the Federal Court of Justice with jurisdiction to adjudicate on the applicant’s case refused to grant her legal aid for her appeal on points of law against the judgments of the Mainz and  courts. They argued that her appeal did not have sufficient prospects of success. On 25 March 2002 the same five judges of the Federal Court of Justice dismissed the applicant’s appeal against the judgments of the Mainz and  courts as inadmissible, the applicant not having submitted grounds for her appeal within the statutory time-limit.\n\n4.  Proceedings before the\n\n48.  On 2 February 2002 the applicant lodged a constitutional complaint against the judgments delivered by the Bremen Court of Appeal on 22 December 2000 and the Federal Court of Justice on 15 January 2002. Quoting the relevant provisions of the Basic Law, she claimed that her rights to liberty and human dignity and to a fair trial had been violated. She argued that her physical integrity had been infringed. She set out in detail the conditions of her stay in the various psychiatric institutions, the hearings in and the judgments delivered by the  courts and explained why she considered that her rights had not been respected.\n\n49.  On 19 February 2002 the applicant lodged a constitutional complaint against the judgments delivered by the  on 5 May 2000 and the Koblenz Court of Appeal on 30 October 2001, and against the Federal Court of Justice’s decision of 5 February 2002 not to grant her legal aid. She claimed that her right to a fair trial had been violated and argued that she had been given the wrong medical treatment. She set out in detail how she had been treated at Mainz University Clinic, how the proceedings in the Mainz and  courts had progressed and why she considered that her constitutional rights had thereby been violated.\n\n50.  On 6 March 2002 the  refused to allow the applicant’s constitutional complaints. The court argued that the complaints were not of fundamental importance (“keine grundsätzliche Bedeutung”), as the questions raised by them had already been resolved in its case-law. Furthermore, it was not the function of the  to deal with errors of law allegedly committed by the competent civil courts. The applicant’s complaints did not disclose a violation of her constitutional rights.\n\nII.  RELEVANT DOMESTIC LAW AND PRACTICE\n\nA.  Provisions governing the detention of individuals in a psychiatric hospital\n\n1.  Provisions in force at the time of the applicant’s placement in the clinic in  in 1977\n\n51.  At the time of the applicant’s first placement in the clinic in Bremen, the rules governing the detention of individuals in a psychiatric hospital were notably laid down in the Act of the Land of Bremen of 16 October 1962 on the detention of mentally insane persons, mentally deficient persons and drug addicts (Gesetz über die Unterbringung von Geisteskranken, Geistesschwachen und Süchtigen).\n\n52.  Section 1(2) of the Act provided that it covered cases where confinement took place against the will or without the consent of the person concerned.\n\n53.  By section 2 of the Act, a detention was legal if the person concerned, by his conduct towards himself or others, posed a serious threat to public safety or order that could not be otherwise averted.\n\n54.  Under the terms of section 3 of the Act, the detention had to be ordered by the district court (Amtsgericht) on a written application by the competent administrative authority.\n\n55.  Section 7 of the Act provided that an application for the detention of an individual had to be accompanied by an expert report on the mental illness of the person concerned, submitted by the competent public health officer (Amtsarzt) or a specialist in mental illnesses. This report had to set out whether and to what extent the individual, by his conduct towards himself or others, posed a serious threat to public safety or order.\n\n56.  By section 8 of the Act, the district court was obliged to assign counsel to the person concerned if this was necessary for the protection of his interests.\n\n57.  Under section 9 of the Act, the court, in principle, had to question the person concerned before reaching its decision. A hearing in person was exceptionally considered unnecessary if it was likely to have negative effects on the state of health of the person concerned or if communication with him was not possible. In such cases, the court had to assign him a guardian ad litem (Verfahrenspfleger), if he had not already been placed under guardianship.\n\n58.  An appeal (sofortige Beschwerde) lay against the district court’s decision ordering the detention (section 10 of the Act). After a period of in principle one year, the district court had to decide whether the detention was to be continued. The continuation of the detention could only be ordered on the basis of a new medical expert report (sections 15 and 16 of the Act).\n\n2.  Subsequent developments\n\n59.  On 9 July 1979 a new Act of the  on measures of aid and protection in cases of mental disorders (Gesetz über Hilfen und Schutzmaßnahmen bei psychischen Krankheiten) came into force. It replaced the provisions of the Act of the  on the detention of mentally insane persons, mentally deficient persons and drug addicts of 1962 with a view to securing patients’ rights.\n\n60.  Section 34 of the Act, among other things, established a Board of Visitors for Psychiatric Hospitals. Without prior notice and at least once a year, it visits psychiatric hospitals in which persons are detained following a court order in accordance with section 17 of the Act. The task of the Board of Visitors is, in particular, to check whether the rights of the persons so detained are respected, and to give patients the opportunity to raise complaints. Several years after the Act came into force, the Board of Visitors extended its visits to all psychiatric hospitals, whether or not the hospitals detained patients pursuant to a court order. These visits, which went beyond the strict wording of section 34 of the said Act, were carried out with the consent of the institutions concerned.\n\nB.  Administrative provisions on the conduct of private clinics\n\n61.  Under the terms of section 30 of the Conduct of Trade Act (Gewerbeordnung), in its version in force since 16 February 1979, private hospitals and private psychiatric institutions needed a licence issued by the competent State authority. The licence could notably be refused if there were facts raising doubts as to the reliability of the institution’s management.\n\nC.  Criminal-law provisions\n\n62.  By Article 239 § 1 of the Criminal Code, a person who deprives another person of his liberty is to be punished by up to five years’ imprisonment or a fine. Paragraph 3 of the same Article provides that a person who deprives another person of his liberty for more than one week or causes serious damage to the health of the victim by the detention itself or by an act committed during that detention is to be punished with a prison sentence of between one and ten years. Under Articles 223 to 226 of the Criminal Code, assault is punishable by up to ten years’ imprisonment or a fine. A person who unlawfully compels another through force to commit, acquiesce in or omit to carry out an act is punishable by up to three years’ imprisonment or a fine (Article 240 § 1 of the Criminal Code).\n\nD.  Civil-law provisions and case-law concerning compensation claims\n\n63.  Compensation claims in tort are governed by Article 823 of the Civil Code, paragraph 1 of which provides that a person who intentionally or negligently causes bodily injury to, or damage to the health of, another person or deprives that person of his liberty, is liable to compensate the victim for the damage so caused. By Article 823 § 2 of the Civil Code, the same obligation to compensate the victim rests with a person who intentionally or negligently violates a legal provision designed for the protection of others, such as Articles 223 to 226, 239 and 240 of the Criminal Code. Under Article 847 § 1 of the Civil Code (in the version in force until 31 July 2002 and applicable to damage caused before that date), damages for pain and suffering can be claimed in the event of injury to the body or damage to health, or in the event of deprivation of liberty. According to Article 852 of the Civil Code, in the version in force at the relevant time, compensation claims in tort are time-barred three years after the date on which the victim learned of the damage and of the person liable to compensate him.\n\n64.  At the relevant time, there were no explicit provisions on contractual compensation claims in the Civil Code in cases involving the defective performance of a contract (positive Vertragsverletzung) concluded by a doctor and his patient. However, in accordance with the well-established case-law of the civil courts, a person could claim damages if his contract with another person had deliberately or negligently been performed defectively by that other person and if this had caused damage to him.\n\nTHE LAW\n\nI.  THE GOVERNMENT’S PRELIMINARY OBJECTION\n\n65.  The Government repeated the objection they had raised at the admissibility stage to the reopening of the proceedings before the Court, claiming that the Court did not have the right to do so after a committee had declared an application inadmissible. Nor did the Court have such competence in cases where there had been a manifest error of fact or in the assessment of the relevant admissibility requirements. In any event, no such error was discernible in the present case.\n\n66.  The applicant did not comment on this issue.\n\n67.  The Court notes that the Government set out their preliminary objection of res judicata in detail at the admissibility stage. In its decision on admissibility of 26 October 2004, the Court found:\n\nThe Court considers that there are no reasons for it to depart from that decision.\n\nII.  ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION IN RESPECT OF THE APPLICANT’S CONFINEMENT IN A PRIVATE CLINIC FROM JULY 1977 TO APRIL 1979\n\n68.  The applicant claimed that through her forced stay at Dr Heines’s clinic in Bremen, she had been deprived of her liberty contrary to Article 5 § 1 of the Convention, the relevant parts of which provide:\n\nA.  Whether the applicant was deprived of her liberty\n\n69.  The applicant maintained that she had been detained against her will in Dr Heines’s clinic. Referring to the findings of the , she stressed that she had objected to her confinement in that clinic, where she had been placed in a locked ward and had been unable to contact others.\n\n70.  The Government contested this view. They submitted that the applicant had not been deprived of her liberty, as she had consented to her stay in Dr Heines’s clinic. Otherwise, the applicant would certainly not have returned there voluntarily in 1981.\n\n71.  The Court reiterates that, in order to determine whether there has been a deprivation of liberty, the starting-point must be the specific situation of the individual concerned and account must be taken of a whole range of factors arising in a particular case, such as the type, duration, effects and manner of implementation of the measure in question (see, inter alia, Guzzardi v. Italy, judgment of 6 November 1980, Series A no. 39, p. 33, § 92; Nielsen v. Denmark, judgment of 28 November 1988, Series A no. 144, p. 24, § 67; and H.M. v. Switzerland, no. 39187/98, § 42, ECHR 2002-II).\n\n72.  The Court observes that, whereas the applicant’s factual situation at the clinic was largely undisputed, the  found that the applicant had been deprived of her liberty because she had neither expressly nor implicitly consented to her stay there. However, the Bremen Court of Appeal took the view that either the applicant had implicitly concluded a contract concerning her medical treatment with the clinic, or, alternatively, there had been an implicit contractual agreement between her father and the clinic concluded for her benefit. The Court needs to have regard to the domestic courts’ related findings of fact but is not constrained by their legal conclusions as to whether or not the applicant was deprived of her liberty within the meaning of Article 5 § 1 of the Convention (see H.L. v. the United Kingdom, no. 45508/99, § 90, ECHR 2004-IX).\n\n73.  Having regard to the factual situation of the applicant at the clinic in , the Court notes that it is undisputed that the applicant was placed in a locked ward there. She was under the continuous supervision and control of the clinic personnel and was not free to leave it during her entire stay there of approximately twenty months. When the applicant attempted to escape it had been necessary to shackle her in order to keep her in the clinic. On the one occasion she managed to escape, she had had to be brought back by the police. She was also unable to maintain regular social contact with the outside world. Objectively, she must therefore be considered to have been deprived of her liberty.\n\n74.  However, the notion of deprivation of liberty within the meaning of Article 5 § 1 does not only comprise the objective element of a person’s confinement in a particular restricted space for a not negligible length of time. A person can only be considered to have been deprived of his liberty if, as an additional subjective element, he has not validly consented to the confinement in question (see, mutatis mutandis, H.M. v. Switzerland, cited above, § 46). The Court notes that, in the present case, it is disputed between the parties whether the applicant had consented to her stay in the clinic.\n\n75.  Having regard to the national courts’ related findings of fact and to the factors that are undisputed between the parties, the Court observes that the applicant had attained the age of majority at the time of her admission to the clinic and had not been placed under guardianship. Therefore, she was considered to have the capacity to consent or object to her admission and treatment in hospital. It is undisputed that she did not sign the clinic’s admission form prepared on the day of her arrival. It is true that she came to the clinic herself, accompanied by her father. However, the right to liberty is too important in a democratic society for a person to lose the benefit of the Convention protection for the single reason that he may have given himself up to be taken into detention (see De Wilde, Ooms and Versyp v. Belgium, judgment of 18 June 1971, Series A no. 12, p. 36, § 65, and H.L. v. the United Kingdom, cited above, § 90).\n\n76.  Having regard to the continuation of the applicant’s stay in the clinic, the Court considers the key factor in the present case to be that – as is uncontested – the applicant tried on several occasions to escape. She had to be shackled in order to prevent her from absconding and brought back to the clinic by the police when she managed to escape on one occasion. Under these circumstances, the Court is unable to discern any factual basis for the assumption that the applicant – presuming that she had the capacity to consent – agreed to her continued stay in the clinic. In the alternative, assuming that the applicant was no longer capable of consenting following her treatment with strong medication, she cannot in any event be considered to have validly agreed.\n\n77.  Indeed, a comparison of the facts of this case with those in H.L. v. the United Kingdom (cited above) cannot but confirm this finding. That case concerned the confinement of an individual who was of the requisite age but lacked the capacity to consent in a psychiatric institution he had never attempted to leave; the Court found that there had been a deprivation of liberty. In the present case, a fortiori, it must be concluded that there was a deprivation of liberty. The applicant’s lack of consent must also be regarded as the decisive feature distinguishing the present case from that of H.M. v. Switzerland (cited above, § 46), in which it was held that the placing of an elderly person in a foster home to ensure the necessary medical care had not amounted to a deprivation of liberty. However, the applicant in that case, who had been legally capable of expressing a view, had been undecided as to whether or not she wanted to stay in the nursing home. The clinic was then able to draw the conclusion that she did not object.\n\n78.  The Court therefore concludes that the applicant was deprived of her liberty within the meaning of Article 5 § 1 of the Convention.\n\nB.  Responsibility of the respondent State\n\n1.  The parties’ submissions\n\n(a)  The applicant\n\n79.  The applicant took the view that the deprivation of her liberty was imputable to the State, as State institutions had been involved in her detention in various respects. Even though Dr Heines’s clinic was a private institution, the State had been involved in her stay and treatment there since her sickness had been covered by compulsory health insurance (gesetzliche Krankenversicherung). This had created a public-law relationship between the clinic and the insurance company, as well as between the clinic and the applicant herself. Furthermore, the clinic had been integrated into the public health-care system. The clinic had also been informed by a doctor who was working for a State body and had arranged for the applicant’s admission to the clinic that the applicant’s detention in the clinic necessitated a court order. In addition to that, on 4 March 1979 the police had brought her back to the clinic by force after she had attempted to escape.\n\n80.  The applicant further argued that the arbitrary way in which the Bremen Court of Appeal had interpreted the relevant provisions of the Civil Code amounted to a violation of Article 5 § 1 of the Convention.\n\n81.  Firstly, the Court of Appeal’s interpretation of Article 852 § 1 of the Civil Code had constituted a disproportionate limitation on her right to claim damages. She could only be expected to have had knowledge of damage caused by a particular person within the meaning of that provision when she had learnt that the doctors’ conduct had been unlawful and that the resulting damage was attributable to being given the wrong treatment and not to her own state of health. She had always been treated as a mentally ill person and had continued receiving medical treatment long after she had been released from Dr Heines’s clinic. At the relevant time, she had even lost her ability to speak for more than ten years. She could not therefore be considered to have had sufficient knowledge and could not reasonably have been expected to bring her claim for as long as she had not had access to her medical file. Access had not been granted to her until 24 February 1997 – that is, after she had brought proceedings in the . In support of that view, the applicant relied on a decision of the Marburg Regional Court of 19 July 1995 (no. 5 O 33/90), in which that court had found that according to Article 852 of the Civil Code, time did not start running for the purposes of limitation until the person concerned had been granted access to his medical file. Only from then on was that person in a position to assess whether there had been a mistake in his treatment.\n\n82.  Secondly, the applicant questioned the Court of Appeal’s assumption with respect to a possible claim for damages on account of the defective performance of a contract that the applicant had implicitly concluded with the clinic. She submitted that this interpretation was absolutely incomprehensible and therefore arbitrary. The same was true of the assumption that she might have agreed to her medical treatment on the basis of a contract concluded by her father with the clinic for her benefit. She stressed that, as was proved by her medical file, she had been opposed to her admission to the clinic, to the continuation of her stay there and to her medical treatment. Her various attempts to escape from the clinic would, in any event, have had to be interpreted as a termination of the alleged contract concerning her medical treatment. Even assuming the existence of such a contract, it would not have authorised her unlawful detention, the forcible administration of contraindicated medicines and her repeated immobilisation.\n\n83.  The applicant further took the view that  had failed to observe its positive obligation under Article 5 § 1 of the Convention to protect her from being deprived of her liberty by private persons. She pointed out that, as she had attained the age of majority, her confinement in the clinic should have required a court order. She disputed that the health authorities, by virtue of their supervisory powers, were sufficiently able to say whether this requirement had been complied with. She stressed that during her stay in the clinic, in which she had been prevented from escaping by, inter alia, being administered medication by force, she had not been in a position to secure help from outside. The telephone had been monitored by the clinic personnel and only her father had visited her, and he would not have taken any steps to obtain her release. She pointed out that the possible protection awarded to persons confined to mental institutions by the creation of a Board of Visitors pursuant to section 34 of the Act on measures of aid and protection in cases of mental disorders (see paragraphs 59-60 above) had not been effective in her case. That Act, the enactment of which demonstrated the State’s acknowledgment of a need for protection in this respect, had only come into force on 9 July 1979 – that is, after her initial detention in Dr Heines’s clinic. Further, it did not entitle the health authorities to supervise mental institutions such as that clinic, which had not been authorised to admit persons confined pursuant to a court order. She argued that only an ombudsman, whom patients could contact at any time, could have adequately safeguarded her rights. Finally, neither the provisions of German civil law nor the safeguards of criminal law had offered her adequate protection against unlawful deprivation of liberty. While providing retroactive sanctions, they could not prevent the deprivation of liberty itself from occurring or continuing. In view of the serious nature of an infringement of the right to liberty, this could not be regarded as affording sufficient protection.\n\n(b)  The Government\n\n84.  The Government argued that the applicant had not been the victim of a deprivation of liberty that could be imputed to the State. The applicant had been detained in a private clinic, and there had not been a court order or other decision by a State entity authorising her confinement. Nor had any State entities been involved in the applicant’s detention as supervisory authorities. Such supervision had only been provided for by law in respect of institutions competent to admit patients confined to a psychiatric hospital by a court order. Dr Heines’s clinic had not been such an institution. The clinic had had no obligation and indeed, on account of a doctor’s duty of confidentiality, no right to inform the State authorities about the applicant’s treatment there.\n\n85.  The Government further submitted that there had been no violation of Article 5 § 1 of the Convention on account of any incorrect application of the national law. The applicant had not attempted to institute criminal proceedings against the persons responsible for her detention in Dr Heines’s clinic. Her civil action for damages against the clinic had been dismissed by the Bremen Court of Appeal. However, even assuming that Article 5 of the Convention had to be taken into consideration by that court in construing the provisions of German civil law applicable to the case, its interpretation could not be regarded as arbitrary. Regard had to be had to the margin of appreciation enjoyed by the Contracting States in this sphere.\n\n86.  Firstly, the Bremen Court of Appeal’s calculation of the three-year time-limit in Article 852 § 1 of the Civil Code (see paragraph 63 above) for the applicant to bring her claims in tort could not be regarded as unreasonable. The applicant had brought her action against Dr Heines’s clinic in 1997, eighteen years after the end of her initial treatment there. According to Article 852 § 1 of the Code, for the purposes of limitation, time for a claim in tort started to run when the person concerned learned that damage had been caused to him by a particular person. As had been correctly found by the Bremen Court of Appeal, the applicant had already known at the time when she had been confined in the clinic that she had – allegedly – been detained there against her will. This was proved by the expert opinions to the effect that she had, in fact, not suffered from schizophrenia at the relevant time. She had also been able to train as a draughtswoman (technische Zeichnerin) and to obtain a driving licence. She had therefore possessed the necessary intellectual capacities to have knowledge of the relevant facts. Consequently, the Bremen Court of Appeal had been entitled to assume that on her release from the clinic in 1981, at the latest, the applicant could have had the necessary knowledge and could also have been reasonably expected to bring her action in tort against the clinic. In any event, these were questions of fact to be resolved by the competent national courts.\n\n87.  Moreover, the Bremen Court of Appeal, with regard to the applicant’s possible claim for damages on account of the defective performance of a contract, had not arbitrarily assumed that the applicant had implicitly concluded a contract with the clinic about her medical treatment. She had not objected to her admission to the hospital or to her medical treatment. It had also not been arbitrary for the court to conclude that this contract had not been terminated by her various attempts to escape from the clinic. The additional findings of that court concerning a possible contract concluded by the applicant’s father with the clinic for the benefit of the applicant – which would not have entitled the clinic to treat her against her will – were therefore not decisive for its conclusion.\n\n88.  The Government further pointed out that  had not breached its positive obligation to protect the applicant from an alleged deprivation of liberty by private persons. It was already questionable whether Article 5 of the Convention incorporated such a positive obligation at all. In any event, German law provided multiple instruments for an individual to be protected against interferences with his liberty. Firstly, confinement in a psychiatric hospital had to be ordered by a judge. Secondly, the competent health authorities had far-reaching supervisory powers in monitoring the execution of these court orders. Thirdly, section 34 of the Act on measures of aid and protection in cases of mental disorders (see paragraphs 59-60 above), which came into force on 9 July 1979, introduced a Board of Visitors to monitor the detention of persons ordered under the Act in psychiatric hospitals. It thereby created a further innovative mechanism of protection. Fourthly, a person who deprived another person of his liberty incurred a prison sentence of up to ten years under Article 239 of the Criminal Code (see paragraph 62 above). An individual who had been illegally deprived of his liberty also had the right to claim damages, including for non-pecuniary damage, under Articles 823 and 847 of the Civil Code (see paragraph 63 above). Furthermore, in accordance with section 30 of the Conduct of Trade Act (see paragraph 61 above), the running of a private clinic required a licence issued by the State. In the course of the examination of the application lodged by Dr Heines’s clinic for the issuing and extension of such a licence, the competent State authorities had verified that the clinic’s management was reliable and that it provided sufficient medical treatment for its patients.\n\n2.  The Court’s assessment\n\n89.  The Court reiterates that the question whether a deprivation of liberty is imputable to the State relates to the interpretation and application of Article 5 § 1 of the Convention and raises issues going to the merits of the case, which cannot be regarded merely as preliminary issues (see, mutatis mutandis, Nielsen, cited above, p. 22, § 57). It agrees with the parties that in the present case there are three aspects that could engage Germany’s responsibility under the Convention for the applicant’s detention in the private clinic in . Firstly, her deprivation of liberty could be imputable to the State owing to the direct involvement of public authorities in the applicant’s detention. Secondly, the State could be found to have violated Article 5 § 1 in that its courts, in the compensation proceedings brought by the applicant, failed to interpret the provisions of civil law relating to her claim in the spirit of Article 5. Thirdly, the State could have breached its positive obligation to protect the applicant against interferences with her liberty by private persons.\n\n(a)  Involvement of public authorities in the applicant’s detention\n\n90.  The Court observes that it is not disputed between the parties that the applicant’s confinement in the private clinic in  was not authorised by a court or any other State entity. Likewise, at least at the relevant time, there was no system providing for supervision by State authorities of the lawfulness of and conditions for the confinement of persons being treated at the clinic.\n\n91.  However, the Court notes that on 4 March 1979 the police, by means of force, brought the applicant back to the clinic after she had escaped. Accordingly, the public authorities became actively involved in the applicant’s placement in the clinic. The Court observes that there is no indication that the applicant’s express objection to returning to the clinic gave rise to any review on the part of the police or any other public authority of the lawfulness of the applicant’s confinement in a private hospital. Therefore, even though the State authorities caused the applicant’s detention in the clinic only towards the end of her placement, this engaged their responsibility, as her confinement would otherwise have ended on that date.\n\n(b)  Failure to interpret the national law in the spirit of Article 5\n\n92.  In the present case, the applicant claimed that her rights under Article 5 § 1 of the Convention had been violated in that the Bremen Court of Appeal, in the compensation proceedings brought by her, had failed to interpret the provisions of civil law relating to her claim in the spirit of that Article. In this respect, her complaint is closely linked both to the question whether the State complied with its possible positive obligations under Article 5 § 1 (see paragraphs 100-08 below), and to the question whether the applicant had a fair trial within the meaning of Article 6 § 1 of the Convention (see paragraphs 130-36 below).\n\n93.  The Court reiterates that it is not its function to deal with errors of fact or law allegedly committed by the national courts and that it is in the first place for the national authorities, notably the courts, to interpret national law. However, the Court is called upon to examine whether the effects of such an interpretation are compatible with the Convention (see, inter alia, Platakou v. Greece, no. 38460/97, § 37, ECHR 2001-I). In securing the rights protected by the Convention, the Contracting States, notably their courts, are obliged to apply the provisions of national law in the spirit of those rights. Failure to do so can amount to a violation imputable to the State of the Convention Article in question. In this connection, the Court reiterates that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective (see, mutatis mutandis, Artico v. Italy, judgment of 13 May 1980, Series A no. 37, pp. 15-16, § 33, and Von Hannover v. Germany, no. 59320/00, § 71, ECHR 2004-VI).\n\n94.  In the present case, the assumption adopted by the Bremen Court of Appeal in rejecting the applicant’s compensation claim warrants examination of its compliance with the spirit of Article 5 in two respects. Firstly, the Court of Appeal, in considering possible claims in tort, took a restrictive view as regards the moment at which time started to run for the purposes of limitation under Article 852 § 1 of the Civil Code. This led to the applicant’s claim being time-barred. In particular, the Court of Appeal, contrary to the , found that the applicant, being conscious that she had allegedly been deprived of her liberty against her will, had had sufficient knowledge to bring a compensation claim while she was still being detained in the clinic.\n\n95.  In determining whether such an interpretation of the national law can be regarded as complying with the spirit of Article 5 § 1 of the Convention, the Court finds it helpful to compare the national courts’ approach with the principles developed under the Convention with respect to the calculation of the six-month time-limit laid down in Article 35 § 1 of the Convention. It reiterates that this rule has to be applied without excessive formalism, having regard to the particular circumstances of the case (see, inter alia, Toth v. Austria, judgment of 12 December 1991, Series A no. 224, pp. 2223, § 82). There may be, in particular, special circumstances – for example, where the applicant’s mental state rendered him incapable of lodging a complaint within the prescribed period – that can interrupt or suspend the running of time for the purposes of limitation (see K. v. Ireland, no. 10416/83, Commission decision of 17 May 1984, Decisions and Reports (DR) 38, p. 160, and H. v. the United Kingdom and Ireland, no. 9833/82, Commission decision of 7 March 1985, DR 42, p. 57).\n\n96.  Having regard to this, the Court considers that the Court of Appeal, in its interpretation of the provisions on the limitation period, did not have sufficient regard to the right to liberty laid down in Article 5 § 1 of the Convention. In particular, that court did not consider the applicant’s situation while being detained, in that she had in reality been incapable of bringing an action in court. Contrary to the , it also took no account of the difficulties she had encountered after her release from the clinic. The applicant had been treated with strong medication at the time of her release and long afterwards. It is undisputed that, at that time, she was suffering from serious physical disorders and, in particular, lost the ability to speak for more than eleven years (from 1980 to 1991/92). She was also deemed to be mentally ill until she finally obtained two expert reports to the contrary in 1994 and 1999. Furthermore, it has to be noted that the applicant was refused access to the medical file concerning her treatment at the clinic before she brought her action in the . In this connection, the Court also takes into consideration the fact that, as a result of a decision of the  produced by the applicant, time did not start running for the purposes of limitation under Article 852 of the Civil Code before the person concerned had access to his medical file.\n\n97.  Secondly, the interpretation adopted by the Bremen Court of Appeal concerning the applicant’s contractual claims for damages warrants examination of its compliance with the spirit of Article 5 of the Convention. In rejecting these claims, the Court of Appeal assumed that the applicant had implicitly concluded a contract with the clinic on her medical treatment. With respect to this, the Court refers to its above findings regarding the question whether the applicant was deprived of her liberty (see paragraphs 71-78 above). Assuming that she had the capacity to consent, there is no factual basis whatsoever for the assumption that the applicant, who had clearly objected to her stay and had tried to escape on several occasions, had consented to her stay and treatment at the clinic, thereby implicitly concluding a contract. If the applicant, in the alternative, had not been capable of consenting following her immediate treatment with strong medication, she could in any event not be considered to have validly concluded a contract. Given this finding, a contract concluded implicitly between the applicant’s father and the clinic for the benefit of the applicant at the age of 18, which the Court of Appeal assumed in the alternative, could not have authorised her detention against her will. This was not disputed by the Government\n\n98.  Consequently, the Court of Appeal’s finding that, under these circumstances, there was a contractual relationship by which the applicant had consented to her stay and treatment at the clinic must be considered arbitrary. The Court of Appeal cannot therefore be deemed to have applied the national provisions of civil law designed to afford protection of the right to liberty safeguarded by Article 5 § 1 in the spirit of that right. The Court, finally, cannot but discern a certain contradiction between the Court of Appeal’s findings with respect to the applicant’s contractual and tort claims. In examining the contractual claims, the Court of Appeal assumed that the applicant had consented to her stay in the clinic – that is, had been willing to stay there. However, it stated with respect to her claims in tort that the applicant was already aware at the time of her confinement in the clinic that she had been detained there against her will.\n\n99.  The Court concludes that the Bremen Court of Appeal, as was confirmed by the higher courts, failed to interpret the provisions of civil law relating to the applicant’s compensation claims in contract and tort in the spirit of Article 5. There has therefore been an interference imputable to the respondent State with the applicant’s right to liberty as guaranteed by Article 5 § 1 of the Convention.\n\n(c)  Compliance with the State’s positive obligations\n\n100.  The Court considers that the special circumstances of the applicant’s case also warrant an examination of the question whether her detention is imputable to the respondent State in that the State breached a positive obligation to protect the applicant against interferences with her liberty by private persons.\n\n101.  The Court has consistently held that the responsibility of a State is engaged if a violation of one of the rights and freedoms defined in the Convention is the result of non-observance by that State of its obligation under Article 1 to secure those rights and freedoms in its domestic law to everyone within its jurisdiction (see, inter alia, Costello-Roberts v. the United Kingdom, judgment of 25 March 1993, Series A no. 247-C, p. 57, § 26, and Woś v. Poland (dec.), no. 22860/02, § 60, ECHR 2005-IV). Consequently, the Court has expressly found that Article 2 (see, among other authorities, L.C.B. v. the United Kingdom, judgment of 9 June 1998, Reports of Judgments and Decisions 1998-III, p. 1403, § 36), Article 3 (see, inter alia, Costello-Roberts, cited above, pp. 57-58, §§ 26 and 28) and Article 8 of the Convention (see, inter alia, X and Y v. the Netherlands, judgment of 26 March 1985, Series A no. 91, p. 11, § 23, and Costello-Roberts, ibid.) require the State not only to refrain from an active infringement by its representatives of the rights in question, but also to take appropriate steps to provide protection against an interference with those rights either by State agents or by private parties.\n\n102.  Having regard to this, the Court considers that Article 5 § 1, first sentence, of the Convention must equally be construed as laying down a positive obligation on the State to protect the liberty of its citizens. Any conclusion to the effect that this was not the case would not only be inconsistent with the Court’s case-law, notably under Articles 2, 3 and 8 of the Convention, it would also leave a sizeable gap in the protection from arbitrary detention, which would be inconsistent with the importance of personal liberty in a democratic society. The State is therefore obliged to take measures providing effective protection of vulnerable persons, including reasonable steps to prevent a deprivation of liberty of which the authorities have or ought to have knowledge (see, mutatis mutandis, Z and Others v. the United Kingdom [GC], no. 29392/95, § 73, ECHR 2001-V, and Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, §§ 33252 and 464, ECHR 2004-VII).\n\n103.  With regard to persons in need of psychiatric treatment in particular, the Court observes that the State is under an obligation to secure to its citizens their right to physical integrity under Article 8 of the Convention. For this purpose, there are hospitals run by the State which coexist with private hospitals. The State cannot completely absolve itself of its responsibility by delegating its obligations in this sphere to private bodies or individuals (see, mutatis mutandis, Van der Mussele v. Belgium, judgment of 23 November 1983, Series A no. 70, pp. 14-15, §§ 28-30, and Woś, cited above, § 60). The Court would point out that in Costello-Roberts (cited above, p. 58, §§ 27-28) the State was held responsible for the act of a headmaster of an independent school on account of its obligation to secure to pupils their rights guaranteed by Articles 3 and 8 of the Convention. The Court finds that, similarly, in the present case the State remained under a duty to exercise supervision and control over private psychiatric institutions. Such institutions, in particular those where persons are held without a court order, need not only a licence, but also competent supervision on a regular basis of whether the confinement and medical treatment is justified.\n\n104.  Turning to the present case, the Court notes that, under German law, the confinement of a person in a psychiatric hospital had to be ordered by a judge if the person concerned either did not or was unable to consent. In this case, the competent health authority also had powers to supervise the execution of these court orders. However, in the applicant’s case, the clinic, despite her lack of consent, had not obtained the necessary court order. Therefore, no public health officer had ever assessed whether the applicant – which was more than doubtful – posed a serious threat to public safety or order within the meaning of section 2 of the Act of the  on the detention of mentally insane persons, mentally deficient persons and drug addicts. Consequently, the State likewise did not exercise any supervision of the lawfulness of the applicant’s detention in the clinic for approximately twenty months.\n\n105.  It is true, though, that, as deprivation of liberty is an offence punishable by up to ten years’ imprisonment, German law retrospectively provided sanctions with a deterrent effect. Moreover, a victim can, under German civil law, claim compensation in tort for damage caused by an unlawful detention. However, the Court, having regard to the importance of the right to liberty, does not consider that such retrospective measures alone provide effective protection for individuals in such a vulnerable position as the applicant. It notes that, particularly in the Act of the  on the detention of mentally insane persons, mentally deficient persons and drug addicts, there were numerous – necessary – safeguards for persons detained in a mental institution following a court order. However, these safeguards did not apply in the more critical cases of persons confined in a psychiatric institution without such an order. It must be borne in mind that the applicant, once detained and treated with strong antipsychotic medication, was no longer in a position to secure independent outside help.\n\n106.  The lack of any effective State control is most strikingly shown by the fact that on 4 March 1979 the police, by the use of force, brought the applicant back to the place of detention from which she had escaped. Thereby, the public authorities, as shown above, were involved in the applicant’s detention in the clinic, and yet her escape and obvious unwillingness to return did not entail any review of the lawfulness of her forced stay there. This indicates the great danger of abuse in this field, notably in cases such as that of the applicant, in which family conflicts and an identity crisis were at the root of her troubles and long detention in a psychiatric hospital. The Court is therefore not convinced that the supervision exercised by the State authorities merely in connection with the issuing of a licence for the running of a private clinic pursuant to section 30 of the Conduct of Trade Act sufficed to ensure competent and regular supervisory control in respect of a deprivation of liberty in such a clinic. Moreover, section 30 of the Conduct of Trade Act was not in force as such at the start of the applicant’s detention in the clinic.\n\n107.  The Court observes that, shortly after the end of the applicant’s detention in the private clinic, further safeguards were introduced by section 34 of the Act on measures of aid and protection in cases of mental disorders for individuals detained in psychiatric institutions, responding to the lack of sufficient protection in this field. In particular, a Board of Visitors was created to inspect psychiatric institutions, to check whether the rights of patients were being respected and to give patients the opportunity to raise complaints. However, these mechanisms came too late for the applicant.\n\n108.  Therefore, the Court concludes that the respondent State has breached its existing positive obligation to protect the applicant against interferences with her liberty by private persons from July 1977 to April 1979. Consequently, there has been a violation of Article 5 § 1, first sentence, of the Convention.\n\nC.  Whether the detention was “in accordance with a procedure prescribed by law” and “lawful” within the meaning of Article 5 § 1 (e)\n\n109.  It was undisputed between the parties that the detention of a person of unsound mind against his will or without his consent – where such a detention was found to have occurred – necessitated a court order under section 3 of the Act of the  on the detention of mentally insane persons, mentally deficient persons and drug addicts.\n\n110.  The Court reiterates that the question whether the applicant’s detention was in accordance with the law and with a procedure prescribed by law only needs to be answered in so far as the public authorities, notably the courts, were directly involved in the interference with the applicant’s right to liberty as such (see paragraphs 90-99 above). In so far as the interference was solely the result of acts by private persons (see paragraphs 100-08 above), it falls outside the scope of the second sentence of Article 5 § 1 of the Convention. In this case, the mere fact that the State has failed in its general duty under the first sentence of Article 5 § 1 to protect the applicant’s right to liberty entails a violation of Article 5 (see, mutatis mutandis, Nielsen, cited above, opinion of the Commission, p. 38, § 102).\n\n111.  The lawfulness of the detention for the purposes of Article 5 § 1 (e) presupposes conformity both with domestic law and with the purpose of the restrictions permitted by Article 5 § 1 (e). As regards conformity with domestic law, the Court reiterates that the term “lawful” covers procedural and substantive aspects of national law, overlapping to a certain extent with the general requirement in Article 5 § 1 to observe a “procedure prescribed by law” (see, inter alia, Winterwerp v. the Netherlands, judgment of 24 October 1979, Series A no. 33, pp. 17-18, § 39, and H.L. v. the United Kingdom, cited above, § 114).\n\n112.  The Court notes that, as was found above, the applicant was deprived of her liberty against her will or at least without her consent. Under these circumstances, it is not disputed that, under section 3 of the Act of the  on the detention of mentally insane persons, mentally deficient persons and drug addicts (see paragraph 54 above), detention was lawful only when it had been ordered by the competent district court. The Court refers to the finding of the  on this point (see paragraph 29 above):\n\nAs there was no court order authorising the applicant’s confinement in the private clinic, her detention was not lawful within the meaning of Article 5 § 1, second sentence, of the Convention. It is therefore not necessary to decide whether the applicant had been reliably shown to have been suffering from a mental disorder of a kind or degree warranting compulsory confinement.\n\n113.  The Court concludes that the applicant’s confinement in Dr Heines’s clinic from July 1977 to April 1979 amounted to a breach of her right to liberty as guaranteed by Article 5 § 1 of the Convention.\n\nIII.  ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION IN RESPECT OF THE APPLICANT’S PLACEMENT IN A PRIVATE CLINIC FROM JULY 1977 TO APRIL 1979\n\n114.  The applicant further complained that she had not been afforded an effective remedy whereby she could secure a decision as to the lawfulness of her detention in the clinic. She relied on Article 5 § 4 of the Convention, which provides:\n\n115.  The applicant, referring to her submissions in respect of Article 5 § 1 of the Convention, pointed out that there had been a lack of sufficient safeguards to ensure that individuals who considered themselves to be detained against their will had access to a court to obtain a decision on the lawfulness of their detention. This violated Article 5 § 4.\n\n116.  The Government did not comment separately on this issue.\n\n117.  The Court reiterates that it is essential for the judicial proceedings referred to in Article 5 § 4 that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation. Without this he will not have been afforded the fundamental guarantees of procedure applied in matters of deprivation of liberty. In the case of a detention on account of mental illness, special procedural safeguards may prove to be called for in order to protect the interests of persons who, on account of their mental disabilities, are not fully capable of acting for themselves (see, inter alia, Winterwerp, cited above, p. 24, § 60).\n\n118.  The Court notes that, in principle, the provisions of the Act of the  on the detention of mentally insane persons, mentally deficient persons and drug addicts (see paragraphs 51-58 above) provided that the detention of a person on account of mental illness had to be reviewed by a court at regular intervals. In the course of such proceedings, the person concerned could be assigned counsel to protect his interests and had to be examined in court either in person or through a representative. However, in the present case, the applicant, who had apparently been unable to secure outside help during her confinement in the clinic, was not in a position to institute such judicial review proceedings. Consequently, it is indeed questionable whether there were sufficient safeguards to guarantee the applicant’s effective access to a court in order to have the lawfulness of her detention reviewed. The issues raised on this subject are, however, essentially the same as those raised in respect of the State’s positive obligation to protect the applicant against interferences with her liberty. Having regard to its above findings in respect of the non-compliance of the State with these positive obligations under Article 5 § 1 of the Convention (see paragraphs 100-08 above), the Court considers that no separate issue arises under Article 5 § 4 of the Convention.\n\nIV.  ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE CONVENTION IN RESPECT OF THE APPLICANT’S PLACEMENT IN A PRIVATE CLINIC FROM JULY 1977 TO APRIL 1979\n\n119.  The applicant claimed that the Bremen Court of Appeal’s restrictive interpretation of the national provisions governing her compensation claim had deprived her of the right to damages for her detention. She relied on Article 5 § 5 of the Convention, which provides:\n\n120.  The applicant, referring to her submissions in respect of Article 5 § 1 of the Convention, maintained that the way in which the Bremen Court of Appeal had interpreted the relevant provisions on limitation amounted to a disproportionate restriction on her compensation claim. This had denied her, in practice, the right to claim damages for her unlawful detention. The same applied to the Court of Appeal’s conclusion that, by having allegedly implicitly concluded a contract with the clinic, she had agreed to her detention or her medical treatment.\n\n121.  The Government, also referring to their submissions in respect of Article 5 § 1 of the Convention, took the view that the applicant had not been detained contrary to Article 5 § 1. However, even assuming that she had, she would, under German law, be entitled to claim damages. The findings of the Bremen Court of Appeal, in particular with respect to the calculation of the relevant time-limit and to the assumption of the implicit conclusion of a contract concerning the applicant’s medical treatment, could not be regarded as unreasonable. Therefore, her compensation claim had not been arbitrarily dismissed.\n\n122.  The Court reiterates that Article 5 § 5 of the Convention creates a direct right to compensation, provided that the national courts or the Convention institutions have found that an applicant has been deprived of his liberty contrary to Article 5 §§ 1-4 of the Convention (see, inter alia, Brogan and Others v. the United Kingdom, judgment of 29 November 1988, Series A no. 145-B, p. 35, § 67). In the present case, the Court has indeed found that the applicant was detained in the clinic in breach of Article 5 § 1 of the Convention. The Court observes, however, that, in challenging the national courts’ interpretation of the provisions on compensation, she is repeating, in substance, her complaint under Article 5 § 1. Having regard to its above findings concerning the failure of the Court of Appeal to interpret the applicable provisions of civil law in the spirit of Article 5 § 1 of the Convention (see paragraphs 92-99 above), the Court finds that no separate issue arises under Article 5 § 5 of the Convention.\n\nV.  ALLEGED VIOLATION OF ARTICLE 5 §§ 1, 4 AND 5 OF THE CONVENTION IN RESPECT OF THE APPLICANT’S STAY IN A PRIVATE CLINIC FROM JANUARY TO APRIL 1981\n\n123.  The applicant complained that she had also been deprived of her liberty during her second stay in Dr Heines’s clinic from January to April 1981. She relied on Article 5 § 1 of the Convention, the relevant parts of which provide:\n\nShe further argued that she had not had sufficient access to a court to obtain a decision on the lawfulness of her detention in that clinic, contrary to Article 5 § 4 of the Convention, which reads:\n\nFurthermore, she maintained that the Bremen Court of Appeal’s interpretation of the national provisions governing her compensation claim amounted to a disproportionate restriction on her claim, which, in practice, had deprived her of the right to damages for her unlawful detention. She relied on Article 5 § 5 of the Convention, which provides:\n\n124.  The applicant argued that she had also been deprived of her liberty during her stay in Dr Heines’s clinic in 1981. She maintained that she had been committed to the clinic by her general practitioner owing to the onset of strong withdrawal symptoms after she had abruptly stopped taking any medication. She had therefore not consented to her detention in that clinic.\n\n125.  The Government contested this view. They submitted that the applicant, as the Bremen Court of Appeal had rightly found, had come to the clinic without being forced to do so. She had intended that her medical treatment there should be continued, as her state of health had considerably deteriorated. Therefore, she had obviously not been deprived of her liberty.\n\n126.  The Court considers that in respect of her second stay in the clinic, the applicant can only be said to have been deprived of her liberty if she did not consent to her stay and treatment there. Having regard to the domestic courts’ related findings of fact, the Court notes that the applicant came to the clinic of her own motion. This finding is not called into question by the fact that the applicant’s general practitioner might have recommended her to do so on account of the strong withdrawal symptoms she suffered from after she abruptly stopped taking any medication. The mere fact that the applicant may initially have given herself up to be taken into detention, however, does not deprive her of the protection of Article 5 § 1 for the entire period of her stay in the clinic (see, mutatis mutandis, De Wilde, Ooms and Versyp, cited above, p. 36, § 65, and H.L. v. the United Kingdom, cited above, § 90).\n\n127.  It is true that according to the  and Court of Appeal’s consistent findings, on the very day of her admission to the clinic, the applicant was unable to speak and showed signs of autism. However, she had attained the age of majority and had not been placed under guardianship. It therefore has to be assumed that she was still capable of validly expressing consent, at least in the course of her treatment at the clinic in 1981. The Court further attaches decisive importance to the fact that the applicant, who knew the clinic’s regime and methods of medical treatment following her first stay there from 1977 to 1979, herself conceded in the proceedings before the Bremen Court of Appeal that she had “to a certain extent voluntarily” (“bedingt freiwillig”) consented to her stay there owing to her need for treatment. Moreover, contrary to the findings with respect to her first placement in the clinic, it has not been found that the applicant attempted to escape from it in 1981.\n\n128.  In these circumstances, the factual background of the applicant’s second stay in the clinic, unlike that of her first stay , does not allow for the conclusion that she was confined in the clinic against her will or without her consent. She was therefore not deprived of her liberty within the meaning of Article 5 § 1 of the Convention. Consequently, there has been no violation of Article 5 § 1 of the Convention on that account.\n\n129.  Given the finding that the applicant was not detained within the meaning of Article 5 of the Convention, there has likewise been no breach of Article 5 §§ 4 and 5 of the Convention.\n\nVI.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION IN RESPECT OF BOTH OF THE APPLICANT’S STAYS IN A PRIVATE CLINIC\n\n130.  The applicant further argued that both the Court of Appeal’s restrictive interpretation of the provisions applicable to her compensation claim and its assessment of a medical expert report had violated her right to a fair trial guaranteed by Article 6 § 1 of the Convention, the relevant part of which provides:\n\n131.  The applicant, referring to her submissions in respect of Article 5 § 1 of the Convention, pointed out that the way in which the Bremen Court of Appeal had applied and interpreted the provisions of German law governing her compensation claim amounted to a breach of her right to a fair trial as guaranteed by Article 6 § 1 of the Convention. Furthermore, she claimed that the expert appointed by the Court of Appeal had drafted his report in an incompetent way without seeing her in person. She complained about the way in which the Court of Appeal had assessed the contradictory opinion given by the expert.\n\n132.  The Government took the view that the Bremen Court of Appeal’s assessment of the relevant facts and interpretation of the applicable provisions of national law had not been arbitrary and that the proceedings had therefore not been unfair. They referred in this connection to their submissions concerning Article 5 of the Convention. They further argued that the applicant and her counsel had had ample opportunities – which they had seized – to question the expert appointed by the court and to comment on his report both orally and in writing. The Court of Appeal, in giving reasons for its judgment, had carefully considered the positions of the parties and the three expert reports before it, two of which had been submitted by the applicant.\n\n133.  In so far as the applicant complained about the way in which the Bremen Court of Appeal had interpreted and applied the provisions of German law concerning her compensation claim, the Court, referring to its various findings under Article 5 § 1 (see paragraphs 92-99), finds that no separate issue arises under Article 6 § 1 of the Convention.\n\n134.  The applicant also claimed that she had been denied a fair trial in that the expert appointed by the Court of Appeal had proved to be incompetent and in that the Court of Appeal had wrongly assessed his opinion. With respect to this, the Court reiterates that it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. While Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see, amongst others, Schenk v. Switzerland, judgment of 12 July 1988, Series A no. 140, p. 29, §§ 45-46, and García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I).\n\n135.  The Court notes that the expert appointed by the Court of Appeal, a psychiatrist, submitted a conclusive medical report, which he explained at a hearing during which the parties were able to put questions to him. The findings of two expert reports previously prepared at the applicant’s request were thoroughly taken into consideration by the court in assessing the evidence. With regard to the applicant’s complaint that the expert had not seen her in person, the Court observes that the expert was not called upon to assess her state of health at the time of the proceedings, but at the time of her stays in the clinic more than fifteen years earlier. Having regard to all the material before it, the Court therefore concludes that the choice of the expert and the assessment of his report do not disclose any unfairness in the court proceedings.\n\n136.  It follows that, in so far as any separate issues arise under Article 6 § 1 of the Convention that have not yet been dealt with from the perspective of Article 5 § 1, there has been no violation of Article 6 of the Convention on this account.\n\nVII.  ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION IN RESPECT OF BOTH OF THE APPLICANT’S STAYS IN A PRIVATE CLINIC\n\n137.  The applicant claimed that in substance she had also complained of a violation of Article 8 of the Convention with regard to the restrictions on her liberty, her immobilisation and the medical treatment she had received against her will during her stays in Dr Heines’s clinic both from 1977 to 1979 and in 1981. She argued that these facts should also be examined under Article 3 of the Convention.\n\n138.  The Court considers that the applicant’s complaints fall to be examined under Article 8 of the Convention alone, the relevant parts of which provide:\n\n139.  Referring to her submissions in respect of Article 5 § 1 of the Convention, the applicant argued that she had been treated with medication that had been contraindicated and had caused her to develop post-poliomyelitis syndrome. Whenever she had refused to take medication, it had been administered to her by force. She had been filled with psychotropics and neuroleptics, and had been attached to beds, chairs and radiators. She had been treated as a mentally insane person for many years and the treatment had permanently ruined her health, and indeed her life. Both the detention and the infringement of her physical integrity were imputable to the State.  had also violated its positive obligation to protect her from these interferences with her right to respect for private life.\n\n140.  The Government stressed that the applicant had not explicitly relied on Articles 3 or 8 of the Convention in her application to the Court. Referring to their submissions with regard to Article 5, they took the view that neither the applicant’s alleged deprivation of liberty nor her allegedly erroneous medical treatment while being detained were imputable to the State. For the same reasons as set out in respect of Article 5, the State had also complied with its positive obligation to afford effective protection of the applicant’s rights under Articles 3 and 8. It had notably been open to the applicant to lodge a criminal complaint (Strafanzeige), alleging assault or coercion, against the doctors who had treated her or to bring compensation proceedings in the civil courts. In dismissing the applicant’s compensation claim, the Bremen Court of Appeal had not disregarded her rights under Articles 3 or 8. In any event, there had been no violation of the applicant’s rights under Articles 3 and 8 as a result of any wrongful medical diagnosis or therapy. As had been found by the Bremen Court of Appeal after its taking of evidence, there was no proof of any erroneous medical treatment.\n\n141.  Owing to the different factual circumstances surrounding the applicant’s involuntary placement in Dr Heines’s clinic from 1977 to 1979 on the one hand, and her stay there in 1981 on the other, the Court finds it necessary to distinguish between these periods.\n\nA.  Placement in the clinic from 1977 to 1979\n\n1.  Interference with the applicant’s right to respect for private life\n\n142.  In so far as the applicant claimed that her liberty had been restricted contrary to Article 8 of the Convention during her involuntary placement in the clinic, the Court reiterates that the right to liberty is governed by Article 5, which is to be regarded as a lex specialis vis-à-vis Article 8 in this respect (see, by converse implication, Winterwerp, cited above, p. 21, § 51, and Ashingdane v. the United Kingdom, judgment of 28 May 1985, Series A no. 93, p. 21, § 44). The Court finds that the applicant, in complaining about restrictions on her freedom of movement, is in substance repeating her complaint under Article 5 § 1. It therefore considers that no separate issue arises under Article 8 in this respect.\n\n143.  In so far as the applicant argued that she had been medically treated against her will while detained, the Court reiterates that even a minor interference with the physical integrity of an individual must be regarded as an interference with the right to respect for private life under Article 8 if it is carried out against the individual’s will (see, inter alia, X v. Austria, no. 8278/78, Commission decision of 13 December 1979, DR 18, p. 156; A.B. v. Switzerland, no. 20872/92, Commission decision of 22 February 1995, DR 80-B, p. 70; and, mutatis mutandis, Herczegfalvy v. Austria, judgment of 24 September 1992, Series A no. 244, p. 26, § 86).\n\n144.  In determining whether the applicant’s treatment with various medicines, which interfered with her physical integrity, was carried out against her will, the Court refers to its findings in respect of Article 5 § 1 of the Convention (see paragraphs 71-78 above). Given that the applicant not only constantly resisted her continued stay in the clinic, but equally resisted her medical treatment so that at times she had to be administered medication by force, the Court finds that she was given medical treatment against her will. It further notes that the findings of at least one expert (see paragraph 23 above) indicated that the medicines the applicant had received at the clinic had been contraindicated and had caused serious damage to her health. However, the Court does not need to determine whether the applicant’s treatment was lege artis, as, irrespective of this, it was carried out against her will and therefore already constituted an interference with her right to respect for her private life.\n\n2.  Responsibility of the State\n\n145.  Similarly to the findings in respect of Article 5 § 1 of the Convention, to which the Court refers, the interference with the applicant’s private life could be imputable to the State since it was involved in the medical treatment as such on account of the courts’ failure to interpret the national law in the spirit of Article 8, or of the State’s non-compliance with its positive obligations under Article 8.\n\n(a)  Involvement of public authorities in the applicant’s medical treatment\n\n146.  The Court, referring to its findings under Article 5 § 1 (see paragraphs 90-91 above), observes that on 4 March 1979 the police brought the applicant back to the clinic by force, thereby rendering her further treatment there possible. At that stage, the public authorities became actively involved in, and therefore responsible for, the applicant’s ensuing medical treatment.\n\n(b)  Failure to interpret the national law in the spirit of Article 8\n\n147.  In determining whether the Court of Appeal interpreted the provisions of civil law relating to the applicant’s compensation claim arising from her medical treatment in the spirit of her right to respect for her private life under Article 8, the Court again refers to its findings regarding Article 5 § 1 (see paragraphs 92-99). It finds in particular that the Court of Appeal, in its interpretation of the provisions governing the time-limit for bringing the compensation claim – including the possibility of interrupting or suspending the running of time for the purposes of limitation – did not have sufficient regard to the applicant’s poor state of health during and following her treatment at the clinic. As regards the Court of Appeal’s finding that the applicant had concluded a contract concerning her medical treatment at the clinic, the Court notes that the applicant objected not only to her confinement in the clinic, but also to her medical treatment, and was administered medication by force on several occasions. Under these circumstances, the Court, presuming that the applicant had the capacity to consent, is unable to discern any reasonable factual basis for the national courts’ conclusion that the applicant continuously consented to her medical treatment, thereby having validly concluded and not terminated a contract.\n\n148.  Accordingly, the Court of Appeal, as the higher courts confirmed, did not interpret the provisions of civil law relating to the applicant’s compensation claim in tort or contract in the spirit of Article 8. It follows that there has been an interference with the applicant’s right to respect for private life that was imputable to the respondent State.\n\n(c)  Compliance with the State’s positive obligations\n\n149.  It remains to be determined whether the interference with the applicant’s right to respect for private life is also imputable to the respondent State because the latter failed to comply with its positive obligation to protect the applicant against such interferences by private individuals. The Court, referring to its settled case-law, reiterates that there is a positive obligation on the State flowing from Article 8 to take reasonable and appropriate measures to secure and protect individuals’ rights to respect for their private life (see, inter alia, X and Y v. the Netherlands, cited above, p. 11, § 23, and Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 98, ECHR 2003-VIII).\n\n150.  The Court, referring again to its findings concerning Article 5 § 1 (see paragraphs 100-08 above), considers that on account of its obligation to secure to its citizens their right to physical and moral integrity, the State remained under a duty to exercise supervision and control over private psychiatric institutions. It notes also that in the sphere of interferences with a person’s physical integrity, German law provided for retrospective sanctions, assault being punishable by up to ten years’ imprisonment under Articles 223 to 226 of the Criminal Code. Moreover, a person whose physical integrity had been harmed could claim damages in tort for pecuniary and non-pecuniary loss. However, just as in cases of deprivation of liberty, the Court finds that such retrospective measures alone are not sufficient to provide appropriate protection of the physical integrity of individuals in such a vulnerable position as the applicant. The above findings as to the lack of effective State control over private psychiatric institutions at the relevant time (see paragraphs 103-08 above) are equally applicable as far as the protection of individuals against infringements of their physical integrity is concerned. The Court therefore concludes that the respondent State failed to comply with its positive obligation to protect the applicant against interferences with her private life as guaranteed by Article 8 § 1 of the Convention.\n\n3.  Justification under Article 8 § 2 of the Convention\n\n151.  The Court, referring to its findings concerning Article 5 § 1 (see paragraph 110 above), reiterates that it only needs to be determined whether the interference with the applicant’s right to respect for private life was justified under paragraph 2 of Article 8 in so far as the public authorities, notably the courts, were actively involved in this interference. In so far as the State was found not to have complied with its positive obligation under Article 8 § 1 to protect the applicant against interferences with her private life by private individuals, this finding entails a violation of Article 8.\n\n152.  It therefore needs to be determined whether the interference with the applicant’s right to respect for private life by the national courts was in accordance with the law within the meaning of Article 8 § 2. The Court notes that it is undisputed between the parties that the detention of a mentally insane person for the purpose of medical treatment necessitated a court order if the person concerned did not, or was unable to, consent to his detention and treatment (section 3 of the Act of the Land of Bremen on the detention of mentally insane persons, mentally deficient persons and drug addicts). The applicant’s confinement in the clinic for medical treatment from 1977 to 1979 was not authorised by a court order. Consequently, the interference with her right to respect for private life was not lawful within the meaning of Article 8 § 2.\n\n153.  It follows that there has been a violation of Article 8 of the Convention on that account.\n\nB.  Stay in the clinic in 1981\n\n154.  The Court observes that the applicant’s medical treatment during her second stay in the clinic in 1981 would have interfered with her right to respect for private life under Article 8 if it had been carried out against her will. Referring to its findings regarding Article 5 § 1 (see paragraphs 12628 above), it notes, however, that it has not been proved that the applicant did not validly consent to her stay and medical treatment at the clinic in 1981. Even assuming that she could merely be considered to have agreed to being treated with due diligence and according to the medical standards at the relevant time, the Court observes that the Court of Appeal concluded, on the basis of the material before it, that she had not been given the wrong medical treatment. To support this conclusion, that court relied on a duly reasoned report submitted by the expert it had appointed, and also addressed the partly different conclusions in two expert reports submitted by the applicant. Consequently, there was no interference with the applicant’s right to respect for her private life within the meaning of Article 8.\n\n155.  It follows that there has been no violation of Article 8 of the Convention on that account.\n\nVIII.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION IN RESPECT OF THE APPLICANT’S MEDICAL TREATMENT AT  UNIVERSITY CLINIC\n\n156.  The applicant complained that the proceedings in the  and the Koblenz Court of Appeal had been unfair because the courts had wrongly assessed an unsuitable expert report and had refused to apply a less strict rule on the burden of proof. She relied on Article 6 § 1 of the Convention, the relevant part of which reads:\n\n157.  The applicant maintained that her trial had been unfair in that the expert Dr Ludolph had not properly addressed the questions put to him, and had assessed issues of which he could not have had any knowledge. The competent courts had not thoroughly assessed the expert report, which had been prepared with the aid of assistant doctors. Given that the medical file, to which the applicant had sought access since 1993, had been withheld for seven years, this procedural defect could not be remedied in the proceedings before the Court of Appeal. The principle of equality of arms would have necessitated applying a less strict rule on the burden of proof with regard to the causal link between being given the wrong medical treatment and the damage done to her physical integrity.\n\n158.  The Government argued that the expert opinion given at the hearing had not been contradictory. The fact that the expert had been summoned to explain his report at the hearing, could be questioned and had been invited to prepare two supplementary reports demonstrated that the applicant had had sufficient opportunities to question the expert. It was irrelevant that the expert report had been prepared with the aid of assistant doctors, as the expert had supervised and taken responsibility for it. Furthermore, the courts had carefully assessed the expert report in their judgments. Moreover, the proceedings had also not been unfair as a result of the temporary disappearance of the applicant’s medical file concerning her treatment at Mainz University Clinic. The applicant’s lawyer had been granted access to a substitute file (Notakte) of more than 100 pages compiled by the clinic. He had later been granted access to the original file, which had been found during the proceedings before the Koblenz Court of Appeal. As had rightly been found by the Koblenz Court of Appeal, it had also not been necessary to apply a less strict rule on the burden of proof, in particular as the original medical file had been taken into consideration by the Court of Appeal.\n\n159.  In so far as the applicant complained about the way in which the medical expert had prepared and presented his report and the way in which the courts had assessed this evidence, the Court reiterates that Article 6 does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts. Whereas the Court is not called upon to substitute its own assessment of the facts or evidence for that of the national courts, its task is to ascertain whether the proceedings in their entirety, including the way in which the evidence was assessed, were “fair” within the meaning of Article 6 § 1 (see, inter alia, Dombo Beheer B.V. v. the Netherlands, judgment of 27 October 1993, Series A no. 274, pp. 18-19, § 31, and García Ruiz, cited above, § 28).\n\n160.  The Court notes that the Koblenz Court of Appeal expressly took into consideration and dealt with the applicant’s complaint that Dr Ludolph’s expert report had been drawn up with the help of assistant doctors. It heard oral evidence from the expert, and the applicant was given the opportunity to question the expert during the hearing. In addition to that, the Court of Appeal did not only rely on the expert report by Dr Ludolph, but consulted two further medical experts. In the light of these considerations, the Court considers that the applicant cannot validly argue that the proceedings in her case were unfair in these respects.\n\n161.  In so far as the applicant complained about the failure of the competent courts to apply a less strict rule on the burden of proof, given the fact that the original of her medical file had temporarily disappeared, the Court is called upon to examine whether the concept of equality of arms, being an aspect of the right to a fair trial guaranteed by Article 6 § 1 of the Convention, was complied with. It reiterates that the principle of equality of arms implies that each party, in litigation involving opposing private interests, must be afforded a reasonable opportunity to present his case – including his evidence – under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent (see, inter alia, Dombo Beheer B.V., cited above, p. 19, § 33, and Hämäläinen and Others v. Finland (dec.), no. 351/02, 26 October 2004).\n\n162.  The Court notes that, although the original of the applicant’s medical file could not be found until after the proceedings had started before the Court of Appeal, the applicant’s lawyer had been granted access to a substitute medical file of some 100 pages during the first-instance proceedings. The applicant has not established that she was placed at a disadvantage vis-à-vis the defendants by reason of the fact that she was not able to inspect the medical file as a whole in the course of the proceedings before the . Furthermore, the Court observes that the Court of Appeal considered the applicant’s request to apply a less strict rule on the burden of proof. The Court of Appeal, referring to settled case-law of the Federal Court of Justice on the subject, argued that it had not been necessary to apply a less strict rule on the burden of proof, as there had in any event not been a serious error in her medical treatment. The Court is aware of the general difficulty for a patient to prove that a doctor treating him made a mistake that caused damage to his health. However, it finds that, having regard to all the material available to the Court of Appeal, the reasons given by that court for not diverging from the usual distribution of the burden of proof cannot be regarded as arbitrary and did not substantially disadvantage the applicant as the claimant. Consequently, the facts of the present case do not disclose any failure to comply with the principle of equality of arms.\n\n163.  The Court concludes that there has been no violation of Article 6 § 1 of the Convention on that account.\n\nIX.  ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION IN RESPECT OF THE APPLICANT’S MEDICAL TREATMENT AT  UNIVERSITY CLINIC\n\n164.  The applicant maintained that the restrictions on her liberty, the interference with her physical integrity and the refusal of adequate medical treatment at Mainz University Clinic had infringed her right to respect for her private life as guaranteed by Article 8 of the Convention, and also Article 3 of the Convention.\n\n165.  The Court considers that these complaints fall to be examined under Article 8 alone, the relevant parts of which provide:\n\n166.  In support of her complaints, the applicant repeated her submissions with regard to her treatment at Dr Heines’s clinic in .\n\n167.  The Government pointed out that the , as the Koblenz Court of Appeal had confirmed, had found with the help of a medical expert that the applicant had received the correct medical treatment at Mainz University Clinic. Consequently, the applicant’s rights under Articles 3 and 8 had not been infringed.\n\n168.  The Court reiterates that even a minor interference with the physical integrity of an individual must be regarded as an interference with the right to respect for private life under Article 8 if it is carried out against the individual’s will (see the case-law cited in paragraph 143 above). It notes that there is no indication that the applicant was treated without her consent at Mainz University Clinic. Even assuming that she could only be considered to have agreed to being treated with due diligence and according to the medical standards at the relevant time, the Court notes that the national courts reasonably found, with the help of medical experts, that the applicant was neither intentionally nor negligently given the wrong medical treatment. Consequently, there has been no interference with the applicant’s right to respect for her private life within the meaning of Article 8.\n\n169.  It follows that there has been no violation of Article 8 of the Convention on that account.\n\nX.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n170.  Article 41 of the Convention provides:\n\n171.  The applicant claimed compensation for pecuniary and non-pecuniary damage and the reimbursement of her costs and expenses.\n\nA.  Damage\n\n172.  The applicant claimed a total of 1,449,259.66 euros (EUR) for pecuniary damage. This sum comprised EUR 1,211,530.90 for the loss of estimated earnings as a technical engineer – the profession she had wished to take up before the beginning of her medical treatment – from which she deducted her invalidity pension. She added EUR 237,728.76 in respect of the pension she would have received until the age of 84. In addition to that, the applicant claimed a total of EUR 1,548.36 for dentist’s fees and auxiliary devices not covered by her health insurance. In the alternative, she claimed a total of EUR 1,126,970.30 for pecuniary damage, based on her estimated income and pension as a draughtswoman, the profession she had trained for in 1990. Furthermore, she claimed compensation for all future pecuniary damage resulting from her treatment at Dr Heines’s clinic in  and at Mainz University Clinic in so far as it was not covered by the social security companies.\n\n173.  The applicant also sought compensation for the non-pecuniary damage arising from the serious violations of Articles 3, 5, 6 and 8 of the Convention. She stressed the severe physical harm done to her by her forced and erroneous medical treatment, which had resulted in her being 100% disabled today and constantly suffering from significant pain in her arms, legs and vertebral column. Her detention and the degrading treatment to which she had been subjected, especially at the clinic in , and her medical treatment had also aroused in her feelings of anxiety and helplessness and had ruined her whole life. As her state of health was constantly deteriorating owing to her being given the wrong medical treatment when she was young, she would be even more isolated and dependent on the help of others in the future. The applicant claimed not less than EUR 500,000 under this head.\n\n174.  As to the applicant’s claim for pecuniary damage, the Government maintained that the applicant had failed to prove that there was a causal link between the alleged violation of her Convention rights and the loss of her estimated earnings and pension.\n\n175.  Furthermore, they considered the sum claimed by the applicant for non-pecuniary damage to be excessive. They stressed that the national courts had found that the applicant had neither deliberately nor negligently been given the wrong medical treatment in the psychiatric institutions in question.\n\n176.  With regard to the applicant’s claim for pecuniary damage, the Court reiterates that there must be a clear causal connection between the pecuniary damage claimed by the applicant and the violation of the Convention found, and that this may, where appropriate, include compensation in respect of loss of earnings or other sources of income (see, among other authorities, Barberà, Messegué and Jabardo v. Spain (Article 50), judgment of 13 June 1994, Series A no. 285-C, pp. 57-58, §§ 16-20, and Çakıcı v. Turkey [GC], no. 23657/94, § 127, ECHR 1999-IV). In the present case, the Court notes that it has found violations of Article 5 § 1 and 8 with respect to the applicant’s stay in Dr Heines’s clinic from 1977 to 1979. It observes that the applicant had neither trained in nor practised the profession of a technical engineer, or draughtswoman, before her confinement in the clinic, so that the detention did not interfere with an existing source of income. The Court is aware that the applicant’s involuntary placement in the clinic, her medical treatment there and its consequences for her health entailed a loss of opportunities with regard to her professional career. It cannot, however, speculate as to what profession the applicant would have taken up, or how much money she would have earned at a later stage if she had not stayed in the clinic from 1977 to 1979. Consequently, no clear causal connection between the applicant’s loss of estimated earnings and her pensions calculated on that basis has been established. Likewise, the Court, on the basis of the material before it, cannot discern a clear causal connection between the applicant’s confinement in Dr Heines’s clinic and her claim for dentist’s fees and auxiliary devices not covered by her health insurance.\n\n177.  As to the applicant’s claim for compensation for all future pecuniary damage resulting from the treatment at Dr Heines’s clinic in  and at Mainz University Clinic, the Court observes that it has not found a violation of the Convention in respect of the applicant’s treatment at Dr Heines’s clinic in 1981 and at Mainz University Clinic. Consequently, no claim for damages can arise in this respect. As to her claim concerning her treatment at Dr Heines’s clinic from 1977 to 1979, the Court finds that it can neither speculate as to the exact amount of pecuniary damage that will arise from her confinement in that clinic, nor as to whether there will be a causal link between such future damage and her treatment there. Therefore, the Court makes no award in respect of pecuniary damage.\n\n178.  With regard to the applicant’s claim for non-pecuniary damage, the Court refers to its findings above of grave violations of Articles 5 § 1 and 8 of the Convention in the present case. It notes again that the applicant was confined in the clinic without a legal basis and was treated there at a rather young age for a period of more than twenty months. The interference with the applicant’s physical integrity as a result of her forced medical treatment was of particular gravity. It was the cause of the serious and irreversible damage to her health and, indeed, deprived her of the opportunity to lead an autonomous professional and private life. The Court points out that the applicant’s case, as regards the assessment of non-pecuniary damage, must also be distinguished from cases like H.L. v. the United Kingdom (cited above, §§ 148-50). In the present case, it is most questionable, and indeed was not assumed by either of the parties, that the applicant could have been detained at all against her will as a person posing a serious threat to public safety or order under the applicable legislation (section 2 of the Act of the Land of Bremen on the detention of mentally insane persons, mentally deficient persons and drug addicts – see paragraph 53 above). Having regard to previous comparable applications in which there have also been substantive interferences with applicants’ physical and moral integrity (see, for example, A. v. the United Kingdom, judgment of 23 September 1998, Reports 1998-VI, p. 2701, § 34, and Peers v. Greece, no. 28524/95, § 88, ECHR 2001-III), and deciding on an equitable basis, the Court awards the applicant EUR 75,000 in compensation for non-pecuniary damage, together with any tax that may be chargeable on that amount.\n\nB.  Costs and expenses\n\n179.  The applicant, relying on documentary evidence, claimed a total of EUR 32,785.10 for costs and expenses. She sought reimbursement of the costs and expenses incurred in the proceedings before the national courts in respect of the services of her lawyers, medical expert opinions, hotel and travelling costs in the proceedings in the  (EUR 21,198.51) and in the proceedings in the  (EUR 4,260.82). She further claimed a lump sum of EUR 2,500 for her personal expenses during these proceedings, including her expenses for drafting the constitutional complaints herself. Furthermore, she claimed EUR 4,825.77 for the costs and expenses incurred in respect of the services of the lawyer representing her in the proceedings before the Court.\n\n180.  The Government considered these sums excessive.\n\n181.  According to the Court’s consistent case-law, to be awarded costs and expenses the injured party must have incurred them in order to seek the prevention or rectification of a violation of the Convention, to have the same established by the Court and to obtain redress for it. It must also be shown that the costs were actually and necessarily incurred and that they are reasonable as to quantum (see, inter alia, Venema v. the Netherlands, no. 35731/97, § 117, ECHR 2002-X).\n\n182.  As regards the applicant’s costs and legal expenses incurred in the proceedings before the national courts, the Court observes that it has only found a violation of the Convention with respect to the proceedings in the . It accepts that the costs and expenses in those proceedings were incurred to rectify a violation of Articles 5 and 8 of the Convention. Even though the applicant has not submitted any documentary evidence of her personal expenses in the proceedings before the Federal Constitutional Court, the Court acknowledges that she must also have incurred certain expenses in those proceedings (see Migoń v. Poland, no. 24244/94, § 95, 25 June 2002, and H.L. v. the United Kingdom, cited above, § 152). Having regard to its case-law, and making its own assessment of the reasonableness of her costs and expenses, the Court awards the applicant EUR 15,000 under this head, plus any tax that may be payable on that amount.\n\n183.  As regards the applicant’s costs and legal expenses incurred in the Convention proceedings, the Court, having regard to its case-law and making its own assessment, awards the applicant EUR 4,000 less the EUR 685 received by way of legal aid from the Council of Europe, together with any tax that may be chargeable on that amount.\n\nC.  Default interest\n\n184.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Dismisses the Government’s preliminary objection;\n\n2.  Holds that there has been a violation of Article 5 § 1 of the Convention with regard to the applicant’s placement in a private clinic from 1977 to 1979;\n\n3.  Holds that no separate issue arises under Article 5 §§ 4 and 5 of the Convention with regard to the applicant’s placement in a private clinic from 1977 to 1979;\n\n4.  Holds that there has been no violation of Article 5 of the Convention with regard to the applicant’s stay in a private clinic in 1981;\n\n5.  Holds that, in so far as a separate issue arises under Article 6 § 1 of the Convention with regard to both of the applicant’s stays in a private clinic, there has been no violation of Article 6 § 1 of the Convention;\n\n6.  Holds that there has been a violation of Article 8 of the Convention with regard to the applicant’s stay in a private clinic from 1977 to 1979;\n\n7.  Holds that there has been no violation of Article 8 of the Convention with regard to the applicant’s stay in a private clinic in 1981;\n\n8.  Holds that there has been no violation of Article 6 § 1 of the Convention with regard to the applicant’s medical treatment at Mainz University Clinic;\n\n9.  Holds that there has been no violation of Article 8 of the Convention with regard to the applicant’s medical treatment at Mainz University Clinic;\n\n10.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n11.  Dismisses the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 16 June 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_107","text":"PROCEDURE\n\n1.  The case originated in an application (no. 47405/07) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by seven Bulgarian nationals, Ms Madlen Magardich Chengelyan, Ms Viktoria Takvor Chengelyan, Mr Eduard Takvor Chengelyan, Mr Manuk Garo Chengelyan, Ms Anaiys Hampartsum Shirin, Mr Ehisapert Ardavast Hintyan and Ms Asthig Hampartsum Bedrosyan (“the applicants”), on 24 September 2007.\n\n2.  Ms Anaiys Hampartsum Shirin passed away on 19 January 2014. Her heirs, Mr Barkev Kamer Shirin, Mr Kamer Barkev Shirin and Ms Araksi Barkev Shirin-Junglas, expressed a wish to continue the application in her stead.\n\n3.  The applicants were represented by Mr M. Ekimdzhiev, Ms K. Boncheva and Ms G. Chernicherska, lawyers practising in Plovdiv. The Bulgarian Government (“the Government”) were represented by their Agent, Ms A. Panova, of the Ministry of Justice.\n\n4.  The applicants alleged that the domestic courts had failed to respect the res judicata effect of an earlier court judgment in judicial proceedings they had initiated in the context of a dispute regarding restitution of property, and that this had resulted in an unlawful interference with their property rights.\n\n5.  On 16 September 2013 the above complaints under Article 6 § 1 and Article 1 of Protocol No. 1, were communicated to the Government, and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n6.  The applicants were born in 1950, 1979, 1988, 1958, 1947, 1927 and 1932 respectively. They live in Plovdiv, apart from Ms Asthig Hampartsum Bedrosyan, who lives in New York, United States of America. Before her death in 2014, Ms Anaiys Hampartsum Shirin lived in Burgas.\n\n7.  Ancestors of the applicants owned a plot of land measuring 246 square metres in the old part of Plovdiv, which had a two-storey house built on 160 square metres of it. In 1949 the building was declared a cultural monument. In 1966 the property was expropriated and the applicants’ ancestors received compensation. After that, the building was the subject of substantial renovation work, in particular after a fire destroyed part of it in 1978.\n\nA.  Restitution of the property\n\n8.  After the adoption of the Restitution of Property Expropriated under Building Planning Legislation Act (“the Restitution Act”) in 1992 (see paragraph 15 below), some of the applicants and other heirs of the original owners (from whom the remaining applicants succeeded in the course of the domestic proceedings) applied for the revocation of the expropriation. On 28 June 1993 they were informed that their application had been refused by the mayor of Plovdiv municipality, and on 7 July 1993 they applied for judicial review of that refusal. In a judgment of 9 October 1997 the Plovdiv Regional Court upheld the administrative decision.\n\n9.  However, in a final judgment of 2 October 1998 the Supreme Administrative Court reversed. It found that the applicants’ property had been taken under legislation regulating expropriations made with a view to carrying out public works, namely expropriations intended to be followed by the construction of new buildings or infrastructure. The property in issue, however, had been declared a cultural monument, and had been expropriated to be used as such, thus the expropriation had been in breach of the law. The fact that no construction work had ever been envisaged had to be assimilated to a situation where no public works within the meaning of the Restitution Act had ever been commenced. In addition, the renovation work carried out after the expropriation did not represent “public works” either, as it had only aimed to preserve the building. Lastly, it was noted that the property still existed. All of those factors meant that the preconditions for restitution had been fulfilled. On this basis, the Supreme Administrative Court revoked the expropriation, quashing the mayor’s refusal in that regard.\n\n10.  Following the above judgment, in order to make the restitution effective (see paragraph 16 below), on 21 May 1999 the applicants paid back to the municipality the monetary compensation received by their ancestors at the time of the expropriation. The parties disagreed as to whether the applicants had also received compensation in the form of other property at the time of the expropriation, and whether they had to return that as well.\n\n11.  In 2001 the applicants obtained a notarial deed, which named them as the property’s owners.\n\nB.  Rei vindicatio proceedings\n\n12.  Despite the events described above, the applicants could not take possession of the property, because it was being held and used by the Plovdiv municipality, which in 1997 had declared it a public municipal property and had rented a room in the building to an organisation called “13 Centuries Bulgaria” National Endowment Fund (“the Fund”, see paragraphs 19-20 below).\n\n13.  After unsuccessfully attempting to negotiate an agreement, in December 2003 the applicants brought rei vindicatio proceedings against the Plovdiv municipality and the Fund. The action was dismissed by a final judgment of the Supreme Court of Cassation of 8 June 2007. In the first place, the domestic courts found that they were competent to examine the action. According to the second-instance Plovdiv Regional Court, the judgment of 2 October 1998 was open to indirect judicial review, because it was replacing the mayor’s administrative decision on the applicants’ request for restitution, and did not have a res judicata effect in proceedings specifically concerning the right to property. According to the Supreme Court of Cassation, the defendants to the rei vindicatio action, namely the Plovdiv municipality and the Fund, had not participated in the earlier judicial proceedings and therefore were not bound by the judgment of 2 October 1998.\n\n14.  Next, the domestic courts found that the reparation work carried out on the building which the applicants were claiming had been so substantial (the building’s appearance had been preserved, but the internal construction had been largely modified – the roof, some windows and other elements had also been replaced) that, within the meaning of the Restitution Act, it could not be said that the building still existed. In addition, the property was being used for the purpose for which it had been expropriated, namely as “a cultural monument”, which, in the courts’ view, constituted “public works” within the meaning of the same Act. Accordingly, none of the preconditions for restitution had been satisfied.\n\nII.  RELEVANT DOMESTIC LAW AND PRACTICE\n\nA.  The Restitution Act\n\n15.  The Restitution of Property Expropriated under Building Planning Legislation Act (Закон за възстановяване на собствеността върху някои отчуждени имоти по ЗТСУ, ЗПИНМ, ЗБНМ, ЗДИ и ЗС, “the Restitution Act”) was adopted in 1992. In section 1(1) it provided for the revocation of previous expropriations and the restitution of property where certain criteria had been met, in particular where the public works for which the property had been expropriated had not commenced, and where any buildings on the property still existed at the time of the Act’s entry into force.\n\n16.  Restitution could only take effect upon the return of any compensation received at the time of expropriation (sections 5(1) and 6(1) of the Act).\n\n17.  A request for the revocation of an expropriation had to be addressed to the mayor of the relevant municipality, whose refusal (express or tacit) was open to judicial review.\n\nB.  Local SelfGovernment and Local Administration Act\n\n.  Sections 38(1) and 44(1) of the Local Self-Government and Local Administration Act (Закон за местното самоуправление и местната администрация) provide that a mayor is a “body of executive power” of the municipality, who “represents the municipality against individuals and legal entities and before the courts”.\n\nC.  The “13 Centuries Bulgaria” National Endowment Fund\n\n19.  The Fund is an organisation tasked with receiving and managing donations from local and foreign persons made in support of Bulgarian education, science, culture, health and other social activities. It is also financed by the State budget.\n\n20.  Until 2001 its status was regulated by a Council of Ministers decree adopted in 1983, which provided, inter alia, that the Fund was an entity “attached to the Council of Ministers”, that its managing board was to be governed by the Minister of Culture, and that the board’s remaining members were to be appointed by the Prime Minister. In 2001 Parliament adopted the “13 Centuries Bulgaria” National Endowment Fund Act (Закон за Националния дарителски фонд “13 века България”), which provides for a similar scheme: the Fund is governed by a board, which includes the ministers of culture, health, education and labour, and the remaining members are appointed by the Council of Ministers.\n\nD.  Provisions concerning the res judicata effect of final judgments\n\n21.  The relevant provisions have been summarised in the Court’s judgments in the cases of Kehaya and Others v. Bulgaria (nos. 47797/99 and 68698/01, §§ 34-55, 12 January 2006), and Sivova and Koleva (no. 30383/03, §§ 57-60, 15 November 2011).\n\nTHE LAW\n\nI.  PRELIMINARY QUESTION\n\n22.  One of the applicants, Ms Anaiys Hampartsum Shirin, passed away on 19 January 2014 while the case was pending before the Court, and her heirs, Mr Barkev Kamer Shirin, Mr Kamer Barkev Shirin and Ms Araksi Barkev Shirin-Junglas, expressed their wish to pursue the application on her behalf (see paragraph 2 above). It has not been disputed that they are entitled to do so, and the Court sees no reason not to accede to their request (see Horváthová v. Slovakia, no. 74456/01, §§ 25-27, 17 May 2005, and Donka Stefanova v. Bulgaria, no. 19256/03, § 11, 1 October 2009).\n\nII.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION\n\n23.  The applicants complained under Article 6 § 1 of the Convention that the national courts examining their rei vindicatio action had disregarded the binding force of the Supreme Administrative Court’s judgment of 2 October 1998. The applicants relied on the Court’s findings in the case of Kehaya and Others (cited above).\n\n24.  In addition, the applicants complained that section 1(1) of the Restitution Act was unclear as to the exact meaning of the conditions for restitution, allowing for, as in their case, diverging interpretations.\n\n25.  In so far as applicable, Article 6 § 1 of the Convention reads:\n\n“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”\n\nA.  Arguments of the parties\n\n26.  The Government contested the complaints. They argued that the courts which had dealt with the rei vindicatio proceedings had been competent to examine the applicants’ claims against the Plovdiv municipality, because the municipality “had not participated” in the first set of proceedings concerning the restitution of the plot, “was not bound” by the Supreme Administrative Court’s judgment of 2 October 1998, and had no other means of protecting its property rights. The Government also submitted that the mayor of Plovdiv, whose decision the applicants had challenged in the restitution proceedings, “had not been acting for the municipality” in the 1993-98 restitution proceedings. They added that the judgment of 2 October 1998 was replacing the mayor’s administrative decision on the applicants’ request for restitution, and was thus open to indirect judicial review. The Government pointed out that the Fund – named as the second defendant to the applicants’ rei vindicatio claim – was not bound by the judgment of 2 October 1998 either. Lastly, the Government contended that the domestic courts’ conclusions in the rei vindicatio proceedings had been correct and duly based on the evidence in the case.\n\n27.  The applicants disagreed. They argued that the Plovdiv municipality had sought to receive a “second chance” to have the applicants’ entitlement to restitution examined, without relying on any new facts. They contended that the municipality could not be considered to have been a third party to the restitution proceedings and, on the contrary, was bound by the judgment of 2 October 1998; the distinction made by the Government between the mayor and the municipality was, in their view, “artificial”. The applicants also pointed out that in the two sets of proceedings in issue the courts had examined exactly the same matter, and only the manner in which they had interpreted and applied the law had differed.\n\n28.  As to the Fund, the applicants pointed out that it was only renting a room in the disputed building, and had never claimed any property rights. Moreover, it was “an entirely public institution” under State control.\n\n29.  Lastly, the applicants reiterated their argument that the applicable provisions of the Restitution Act had been unclear, thus allowing for conflicting interpretations.\n\nB.  The Court’s assessment\n\n1.  Admissibility\n\n30.  The Court notes that the complaint under Article 6 § 1 is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\n2.  Merits\n\n31.  The Court reiterates that the right to a fair hearing under Article 6 § 1 of the Convention, interpreted in the light of the principles of the rule of law and legal certainty, encompasses the requirement that, where the courts have finally determined an issue, their ruling should not be called into question (see Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999VII; Oferta Plus S.R.L. v. Moldova, no. 14385/04, § 97, 19 December 2006; and Kehaya and Others, cited above, § 61).\n\n.  The Court has already examined a complaint similar to the one at hand in the case of Kehaya and Others (cited above, §§ 59-70), which concerned the application of legislation to agricultural land, and in the case of Decheva and Others v. Bulgaria (no. 43071/06, 26 June 2012, §§ 39-45), which concerned the same legislation considered in the present case. In both those cases, final judgments restoring the applicants’ rights over different properties had been rendered devoid of any legal effect, because in separate proceedings the question of whether the State, respectively the municipality, or the applicants were the owners of the properties had been re-examined and decided differently. In those circumstances, the Court found that the State (the municipality) had been provided with a “second chance” to obtain a re-examination of a dispute already determined by a final judgment in a previous set of proceedings. In both cases the Court went on to find violations of Article 6 § 1 of the Convention, on the grounds that, by depriving final judgments in favour of the applicants of any legal effect, the authorities had acted in breach of the legal certainty principle inherent in that provision.\n\n33.  Similarly, in the present case, even though the judgment of 2 October 1998 allowing the applicants’ restitution claims was not quashed, it was rendered devoid of any legal effect, because in the subsequent rei vindicatio proceedings the national courts found that the restitution had not taken place. The courts examining the rei vindicatio claims gave two reasons for concluding that they had jurisdiction to review the matter and that the judgment of 2 October 1998 had no res judicata effect in the proceedings before them (see paragraph 13 above). Firstly, they pointed out that that judgment was replacing the mayor’s administrative decision on the applicants’ request for restitution, which meant that it was open to indirect judicial review. Secondly, they considered that the defendants to the rei vindicatio action had not participated in the initial judicial proceedings. The Government put forward the same arguments in their submissions to the Court, adding that the mayor “had not been acting” for the municipality in the 1993-98 restitution proceedings (see paragraph 26 above).\n\n34.  It is not the Court’s task here to examine in abstracto the legal theory underlying the Restitution Act and the nature of the proceedings initiated by the applicants in 1993. It must limit its analysis to the question of whether or not the application of the law in these particular circumstances resulted in a violation of the applicants’ right to a fair trial interpreted in light of the principle of legal certainty (see Kehaya and Others, cited above, § 65). It must take into account the fact that the judgment of 2 October 1998 was the result of contentious proceedings before two levels of jurisdiction, including the Supreme Administrative Court. The principle of legal certainty dictates that, where a civil dispute is examined on the merits by competent courts, it should be decided once and for all (ibid., § 68).\n\n35.  There does not appear to be a dispute between the parties that the courts examined the same matter in the two sets of proceedings at issue, namely whether the preconditions for the restitution of the property claimed by the applicants under the 1992 Restitution Act had been satisfied. The salient question is thus whether the same parties were involved in the reexamination. In answering this question, the Court will not consider the Fund’s participation in the second set of proceedings determinative, in view of the fact that it was only renting a room in the disputed building, did not claim any property rights, and that its interest in the proceedings was the defence of its possession of that room (see, a contrario, Tantilovi v. Bulgaria (dec.), no. 39351/05, 13 January 2015, where the tenant combatting a rei vindicatio claim had rented the building in question for many years and had made substantial improvements to it). The key question when deciding the present complaint is thus whether the Plovdiv municipality could be considered to have participated in the 1993-98 proceedings and, accordingly, to have been bound by the judgment of 2 October 1998.\n\n36.  In the proceedings initiated in 1993 the applicants sought the judicial review of an order of the mayor of Plovdiv rejecting their restitution claims (see paragraph 8 above); accordingly, the parties to those proceedings were the applicants and the mayor. In the subsequent rei vindicatio proceedings the applicants brought their claims against the Plovdiv municipality (see paragraph 12 above). Even though the mayor of Plovdiv and the Plovdiv municipality may have exercised different functions in respect of municipal property and the question of restitution, this does not alter the fact that they were different emanations of the same local authority (see Decheva and Others, cited above, § 42). In addition, it is significant that, pursuant to the Local SelfGovernment and Local Administration Act, the mayor is a “body of executive power” of the municipality, who “represents the municipality against individuals and legal entities and before the courts” (see paragraph 18 above).\n\n37.  Accordingly, the Court concludes that the national courts reexamined the same matter in the rei vindicatio proceedings, namely whether the preconditions for restitution had been fulfilled, and that the same parties – the applicants and the Plovdiv municipality – were involved in the proceedings. Thus, the courts provided the municipality with a “second chance” to have the matter – which had already been decided upon in earlier contentious proceedings – determined in its favour (see Kehaya and Others, § 69, and Decheva and Others, § 43, both cited above).\n\n38.  The foregoing considerations are sufficient to enable the Court to conclude that the principle of legal certainty inherent in Article 6 § 1 of the Convention was infringed in this case.\n\n.  In view of the conclusion above, the Court does not consider it necessary to also determine whether the conflicting conclusions of the national courts in the two sets of proceedings being examined were, as argued by the applicants (see paragraphs 24 and 29 above), the result of unclear legislation.\n\n40.  In view of the foregoing, the Court concludes that there has been a violation of Article 6 § 1 of the Convention.\n\nIII.  ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1\n\n41.  Relying on Article 1 of Protocol No. 1 and Article 13 of the Convention, the applicants also complained that they were unfairly deprived of their property.\n\n42.  The Court is of the view that the complaint is most appropriately examined under Article 1 of Protocol No. 1 alone, which reads:\n\n“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.\n\nThe preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”\n\nA.  Arguments of the parties\n\n43.  The Government argued that any interference with the applicants’ property rights had been justified, because the building claimed by them had been declared a cultural monument and registered as public municipal property, together with the plot of land. The Government stated once again that the national courts had correctly concluded that the preconditions for the property’s restitution had not been fulfilled.\n\n44.  The applicants disagreed. They argued that they had been deprived of their possessions in breach of the principle of legal certainty, and thus not “subject to the conditions provided for by law”, as provided by Article 1 of Protocol No. 1.\n\nB.  The Court’s assessment\n\n45.  The Court observes that this complaint is linked to the one examined above, and must therefore likewise be declared admissible.\n\n46.  The applicants’ property rights over their ancestors’ plot of land and building were restored with the final judgment of 2 October 1998. In order to make the restitution effective, the applicants returned the monetary compensation received at the time of the expropriation to the municipality (see paragraph 10 above). The parties disagreed as to whether the applicants had also received compensation in the form of other property, and whether they had to return that as well (see paragraph 10 above). The Court considers this latter question irrelevant. What matters is that, in the subsequent domestic proceedings, the courts did not rely on any failure on the part of the applicants to return the compensation received. It is also significant that in 2001 the applicants obtained a notarial deed naming them as the property’s owners (see paragraph 11 above). Notwithstanding the fact that they never took possession of the property claimed, the above information is sufficient for the Court to conclude that the applicants had “possessions” within the meaning of Article 1 of Protocol No. 1.\n\n.  The national courts’ judgments in the rei vindicatio proceedings constituted an interference with the applicants’ “possessions”, in that the courts did not recognise them as the owners of the disputed property and dismissed their rei vindicatio claim.\n\n.  The Court finds that it is not necessary to decide whether that interference amounted to a deprivation of property within the meaning of the second sentence of the first paragraph of Article 1 of Protocol No. 1. It observes that this rule is only concerned with a particular instance of interference with the right to peaceful enjoyment of property, and must be construed in the light of the principle enunciated in the first sentence of the first paragraph. The Court will therefore examine the interference in the light of the first sentence of the first paragraph of Article 1 of Protocol No. 1 (see Decheva and Others, cited above, § 56).\n\n.  The Court has already found that the authorities in the case acted in breach of the legal certainty principle inherent in Article 6 § 1 of the Convention (see paragraphs 36-38 above). In Kehaya and Others (§§ 75-76 of the judgment) and Decheva and Others (§ 57), both cited above, where the Court reached a similar conclusion, it concluded that the interference could consequently not be deemed lawful under the Convention, not least because of the fundamental nature of the principle of rule of law in a democratic society, of which the legal certainty principle forms part and which is inherent in all the Articles of the Convention. The Court sees no reason to reach a different conclusion on the facts of the instant case. Like the two earlier cases, this case is not about the re-opening of civil proceedings within the time-limits and under the conditions regulated by law, but about a failure to recognise the res judicata effect of a final judgment delivered in contentious proceedings.\n\n.  The above is, in principle, sufficient for the Court to conclude that the interference with the applicants’ “possessions” fell foul of the requirements of Article 1 of Protocol No. 1.\n\n.  Nevertheless, the Court also takes note of the facts put forward by the Government to justify that interference, namely that the building claimed by the applicants was a cultural monument and that the whole property was registered as public municipal property (see paragraph 43 above). However, the Government have not shown that there was any statutory obstacle to private individuals owning cultural monuments. Moreover, the building in issue was declared such a monument in 1949 and was privately owned until 1966 (see paragraph 7 above); the fact that it was a monument was known to the Supreme Administrative Court (which delivered the judgment of 2 October 1998), and was not considered an obstacle to restitution. As to the 1997 decision declaring the land and the building public municipal property (see paragraph 12 above), it was issued by the municipality itself, and it has not been shown that it could be validly opposed to the applicants’ claims.\n\n.  It follows from the above that there has been a violation of Article 1 of Protocol No. 1 in this case.\n\nIV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n53.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Pecuniary damage\n\n54.  The applicants claimed the actual restitution of their property under this head. In case the authorities failed to restore the property to them, they claimed 587,000 euros (EUR) in respect of its value. The applicants presented a valuation report prepared by an expert in March 2014, which indicated this amount as the property’s market value.\n\n55.  The Government contested the claim.\n\n56.  The Court is of the view that the question of the application of Article 41, in so far as it concerns pecuniary damage, is not ready for a decision (Rule 75 § 1 of the Rules of Court). Accordingly, the Court reserves that question and the further procedure, and invites the Government and the applicants, within four months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, to submit their observations on the matter and, in particular, to inform it of any agreement that they may reach.\n\nB.  Non-pecuniary damage\n\n57.  The applicants also claimed EUR 10,000 each in respect of nonpecuniary damage. They argued that they had suffered distress and frustration for many years.\n\n58.  The Government contested this claim. In particular, they urged the Court not to award non-pecuniary damages to Ms Anaiys Hampartsum Shirin, who passed away in 2014 and whose heirs continued the procedure in her stead (see paragraph 2 above), contending that such damages could only be awarded intuitu personae.\n\n59.  As concerns the Government’s objection, the Court observes that it has already awarded non-pecuniary damages to an applicant who passed away during proceedings before it, holding that the award was to be paid to the person’s heirs (see Lukanov v. Bulgaria, 20 March 1997, § 53, Reports of Judgments and Decisions 1997II, and Baragan v. Romania, no. 33627/96, § 49, 1 October 2002). In the Court’s view, it would be unfair to hold otherwise in the present case.\n\n60.  The Court is of the view that the applicants must have suffered distress and frustration as a result of the violations of their rights. Judging on an equitable basis, it considers it appropriate to award EUR 2,000 to each of them in respect of non-pecuniary damage. The award in respect of Ms Anaiys Hampartsum Shirin is to be paid to her heirs, whose names are indicated in paragraph 2 above.\n\nC.  Costs and expenses\n\n61.  The applicants also claimed 5,168 Bulgarian levs (BGN) in respect of costs and expenses incurred in the domestic rei vindicatio proceedings. In support of this claim, they submitted receipts from their lawyers, dated 2000, 2005 and 2006 respectively, indicating that the applicants had paid them BGN 4,920 in total (the equivalent of EUR 2,510) for legal representation. In addition, the applicants referred to the judgments given by the national courts, whereby they had been ordered to pay the defendants BGN 248 in costs and expenses.\n\n62.  In respect of the proceedings before the Court, the applicants claimed EUR 5,495 for the legal work carried out by their legal representatives. In support of this claim, they submitted a time sheet. They also claimed EUR 58.35 for postage and administrative expenses, of which EUR 27.35 was for postage, substantiated by the relevant invoices. The applicants claimed a further EUR 200 for translation, presenting a contract whereby their representatives had undertaken to pay this amount. The applicants requested that the amounts above, less the BGN 2,000 (EUR 1,020) which they had already paid to their representatives, be transferred directly into their representatives’ bank account.\n\n.  Lastly, the applicants claimed BGN 800 (the equivalent of about EUR 408) which they had paid for the valuation report presented in support of their claim for pecuniary damages (see paragraph 54 above).\n\n64.  The Government argued that it had not been shown that the claims concerning the costs and expenses in the domestic proceedings had been actually incurred. As to the remainder, they argued that the amount claimed for legal representation in the proceedings before the Court was excessive, and that the expenses incurred in obtaining an expert valuation of the disputed property had been unnecessary.\n\n65.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum.\n\n66.  In the present case, the Court considers that the expenses incurred in the domestic proceedings (see paragraph 61 above) were necessary, as in those proceedings the applicants were trying to prevent the violations of their rights which the Court has found. Accordingly, the Court awards these expenses to the extent that they have been substantiated, namely EUR 2,510, the applicants not having shown that they actually paid the remainder.\n\n67.  As to the costs and expenses claimed in respect of the current proceedings (see paragraph 62 above), firstly, the Court is of the view that the expenses for legal representation were actually and necessarily incurred. However, it considers this part of the claim exaggerated, particularly given the existence of established case-law on the matter, and finds it reasonable to award the applicants EUR 2,500 under this head. Next, the Court awards the amount shown to have been incurred for postage and translation, namely EUR 227.35 in total. The applicants have already paid EUR 1,020 for legal representation. Accordingly, as requested by them, the amounts awarded in this paragraph, less the sum already paid by them, that is EUR 1,707.35, are to be transferred directly into the bank account of their legal representatives.\n\n.  Lastly, the Court considers that the sum paid by the applicants for a valuation report, EUR 408, was also a necessary and reasonable expense. It therefore awards it in full.\n\nD.  Default interest\n\n69.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\n1.  Declares the application admissible;\n\n2.  Holds that there has been a violation of Article 6 § 1 of the Convention;\n\n3.  Holds that there has been a violation of Article 1 of Protocol No. 1;\n\n4.   Holds that the question of the application of Article 41, in so far as it concerns the claim for pecuniary damages, is not ready for decision;\n\naccordingly,\n\n(a)  reserves the said question;\n\n(b)  invites the Government and the applicants to submit, within four months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, their written observations on the matter and to notify the Court of any agreement that they may reach;\n\n(c)  reserves the further procedure and delegates to the President of the Chamber the power to fix the same if need be;\n\n5.  Holds\n\n(a)  that the respondent State is to pay the applicants (in respect of Ms Anaiys Hampartsum Shirin – to her heirs), within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement:\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n6.  Dismisses the remainder of the applicants’ claims for non-pecuniary damages and costs and expenses.\n\nDone in English, and notified in writing on 21 April 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_622","text":"PROCEDURE\n\n1.  The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table.\n\n2.  The applications were communicated to the Russian Government (“the Government”).\n\nTHE FACTS\n\n3.  The list of applicants and the relevant details of the applications are set out in the appended table.\n\n4.  The applicants complained of the inadequate conditions of their detention. Some applicants also raised other complaints under the provisions of the Convention.\n\nTHE LAW\n\nI.  JOINDER OF THE APPLICATIONS\n\n5.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.\n\nII.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION\n\n6.  The applicants complained principally of the inadequate conditions of their detention. They relied on Article 3 of the Convention, which reads as follows:\n\n“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”\n\n7.  The Court notes that the applicants were kept in detention in poor conditions. The details of the applicants’ detention are indicated in the appended table. The Court refers to the principles established in its caselaw regarding inadequate conditions of detention (see, for instance, Muršić v. Croatia [GC], no. 7334/13, §§ 96101, ECHR 2016). It reiterates in particular that a serious lack of space in a prison cell weighs heavily as a factor to be taken into account for the purpose of establishing whether the detention conditions described are “degrading” from the point of view of Article 3 and may disclose a violation, both alone or taken together with other shortcomings (see Muršić, cited above, §§ 122 141, and Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 149159, 10 January 2012).\n\n8.  In the leading case of Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, 10 January 2012, the Court already found a violation in respect of issues similar to those in the present case. In that case the Court also stressed that in conditions-of-detention cases the respondent Government alone have access to information capable of corroborating or refuting allegations made by applicants. A failure on their part to submit convincing evidence on material conditions of detention may give rise to the drawing of inferences as to the well-foundedness of the applicant’s allegations. The Court further reiterates that certificates issued by the director of the impugned detention facility after the Government have been given notice of the complaint, lacked references to the original prison documentation and were apparently based on personal recollections rather than on any objective data are of little evidentiary value (see, among other authorities, Veliyev v. Russia, no. 24202/05, § 127, 24 June 2010, and Igor Ivanov v. Russia, no. 34000/02, § 34, 7 June 2007). The Court emphasises that, in every case, the Government have to account properly for the failure to submit the original records, in particular those concerning the number of inmates detained together with the applicant, as well as authentic evidence showing both the size of cells where applicant was detained (floor plans) and confirming correlation between the general prison population, the population in the cells where the applicant was detained and the size of those cells (cell records). It further stresses that documents bearing signs of corrections, such as figures in documents being erased or written over, as in case no. 46863/16, or any other alterations to the documents without any explanations as to the their origin, reason and timing, cannot be considered reliable (see Klyukin v. Russia, no. 54996/07, § 59, 17 October 2013, with further references).\n\n9.  Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the applicants’ conditions of detention were inadequate.\n\n10.  These complaints are therefore admissible and disclose a breach of Article 3 of the Convention.\n\nIII.  OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW\n\n11.  In applications nos. 32592/16, 33628/17, 43320/17 and 61744/17 the applicants submitted other complaints which also raised issues under the Convention, given the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its findings in Ananyev and Others, cited above, §§ 100-119, concerning the lack of domestic remedies to complain about poor conditions of detention; Dirdizov v. Russia, no. 41461/10, 27 November 2012, regarding unreasonably long detention on remand; and Zubkov and Others v. Russia, nos. 29431/05 and 2 others, §§ 146-149, 7 November 2017, dealing with the absence of speedy review of the detention matters.\n\nIV.  REMAINING COMPLAINTS\n\n12.  In application no. 43320/17 the applicant also raised other complaints under various Articles of the Convention.\n\n13.  The Court has examined the application and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.\n\n14.  It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.\n\nV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n15.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\n16.  Regard being had to the documents in its possession and to its caselaw (see, in particular, Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 172, 10 January 2012), the Court considers it reasonable to award the sums indicated in the appended table.\n\n17.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\n1.  Decides to join the applications;\n\n2.  Declares the complaints concerning the inadequate conditions of detention and the other complaints under well-established case-law of the Court, as set out in the appended table, admissible, and the remainder of the application no. 43320/17 inadmissible;\n\n3.  Holds that these complaints disclose a breach of Article 3 of the Convention concerning the inadequate conditions of detention;\n\n4.  Holds that there has been a violation of the Convention as regards the other complaints raised under well-established case-law of the Court (see appended table);\n\n5.  Holds\n\n(a)  that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.\n\n6.  Dismisses the remainder of the applicants’ claims for just satisfaction.\n\nDone in English, and notified in writing on 26 July 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_557","text":"INTRODUCTION\n\n1.  The case concerns allegations that the criminal proceedings against the applicant for a minor offence were unfair, insofar as the court relied on the statement of witnesses whom she had not been able to question.\n\nTHE FACTS\n\n2.  The applicant was born in 1973 and lives in Prahova.\n\n3.  The Government were represented by their Agent, most recently Ms O.F. Ezer, of the Ministry of Foreign Affairs.\n\n4.  The facts of the case, as submitted by the parties, may be summarised as follows.\n\n4.  The facts of the case, as submitted by the parties, may be summarised as follows.\n\n5.  On 13 February 2009 R.M. lodged a criminal complaint with the Prahova police, accusing the applicant of assaulting her on the street. The applicant and R.M. gave statements to the police. The police also heard evidence from three eyewitnesses. On 14 February 2009 witness A declared that he had seen the applicant hit the victim. On 6 March 2009 witnesses B (the applicant’s sister) and C denied that the applicant had hit the victim. The victim also provided the police with a medical certificate stating that she had bruises on her head which did not require medical treatment. It appears that all the statements were taken in the absence of the applicant or a lawyer representing her.\n\n5.  On 13 February 2009 R.M. lodged a criminal complaint with the Prahova police, accusing the applicant of assaulting her on the street. The applicant and R.M. gave statements to the police. The police also heard evidence from three eyewitnesses. On 14 February 2009 witness A declared that he had seen the applicant hit the victim. On 6 March 2009 witnesses B (the applicant’s sister) and C denied that the applicant had hit the victim. The victim also provided the police with a medical certificate stating that she had bruises on her head which did not require medical treatment. It appears that all the statements were taken in the absence of the applicant or a lawyer representing her.\n\n6.  On 28 July 2009 the prosecutor’s office attached to the Ploieşti District Court instituted criminal proceedings against the applicant under Article 180 § 1 of the Criminal Code (“the CC”), a provision prohibiting hitting and other acts of violence (see paragraph 11 below).\n\n6.  On 28 July 2009 the prosecutor’s office attached to the Ploieşti District Court instituted criminal proceedings against the applicant under Article 180 § 1 of the Criminal Code (“the CC”), a provision prohibiting hitting and other acts of violence (see paragraph 11 below).\n\n7.  By a decision of 15 December 2010 the prosecutor’s office discontinued the proceedings. It considered that the applicant had hit and injured the victim, but that the acts committed by her, fuelled by an ongoing dispute between the parties, were not serious enough to constitute a criminal offence. In accordance with Articles 181, 90 and 91 of the CC and Articles 10 (b1) and 11 of the Code of Criminal Procedure (“the CCP”) (see paragraph 13 below), it imposed an administrative fine of 400 Romanian lei (RON) (approximately 90 euros (EUR) at the time).\n\n8.  On 18 March 2011, following an objection raised by the applicant, the chief prosecutor of the same prosecutor’s office upheld the decision.\n\n8.  On 18 March 2011, following an objection raised by the applicant, the chief prosecutor of the same prosecutor’s office upheld the decision.\n\n9.  On 8 April 2011 the applicant lodged an objection against the two decisions with the Ploieşti District Court under Article 2781 of the CCP. Her lawyer argued before the court that the evidence in the case file did not support the conclusion that she had committed the acts she had been accused of.\n\n9.  On 8 April 2011 the applicant lodged an objection against the two decisions with the Ploieşti District Court under Article 2781 of the CCP. Her lawyer argued before the court that the evidence in the case file did not support the conclusion that she had committed the acts she had been accused of.\n\n10.  In a final decision of 21 June 2011 (available to the parties on 16 August 2011) the District Court dismissed the objection, finding as follows:\n\n“As can be seen from the evidence in the [case] file, [the applicant] denied being in a dispute with [R.M.] or having injured her.\n\nIt is true that during the police investigation both [the applicant] and [the victim] proposed witnesses in order to support their case. However, in addition [to the witness evidence], the victim also provided a medical certificate which, together with the statements made by witness [A] represents genuine evidence proving beyond any doubt that the events occurred exactly as described [by R.M.].\n\nBearing in mind the minimal violation of [R.M.’s] physical integrity and the particular and personal circumstances in which the events occurred, the court considers that it was correct to discontinue the criminal prosecution and impose an administrative fine. It is obvious that such acts cannot remain unpunished, even when they only cause minimal harm to the social values protected.”\n\nRELEVANT LEGAL FRAMEWORK\n\nRELEVANT LEGAL FRAMEWORK\n\n11.  The relevant provisions of the Criminal Code (“the CC”) in force at the time of the events in the present case were worded as follows:\n\nArticle 1 – Aim of the criminal law\n\n“Criminal law protects, against crimes, Romania, the sovereignty, independence, unity and indivisibility of the State, the person, its rights and freedoms, property and the rule of law.”\n\nArticle 17 – Essential characteristics of a criminal offence\n\n“A criminal offence is an act which presents a danger to society, is committed with culpable intent (vinovăţie) and is provided for by criminal law.\n\nA criminal offence is the sole basis of criminal liability.”\n\nArticle 18 – Social danger of an act\n\n“An act presenting a danger to society for the purposes of criminal law shall be understood to mean any action or inaction which undermines one of the values mentioned in Article 1 and for which the imposition of a sentence is required.”\n\nArticle 181 – Acts not having the social danger of a criminal offence\n\n“1.  An act punishable by criminal law shall not constitute a criminal offence if, in view of its minimal interference with one of the values safeguarded by criminal law and the manifestly insignificant nature of its specific content, it does not present the degree of danger to society associated with a criminal offence.\n\n2.  In determining the degree of danger to society, account must be taken of the manner and means by which the act was committed, the aim pursued, the circumstances in which the act was committed, the result which was or could have been produced, and the character and conduct of the perpetrator, if known.\n\n3.  In the event of such an act, the public prosecutor or the court shall impose one of the administrative sanctions provided for in Article 91.”\n\nArticle 90 – Conditions for replacement [of criminal liability]\n\n“(1)  The court may replace criminal liability with ... an administrative sanction, if the following conditions are met:\n\n(a)  the sentence prescribed by law for the offence is imprisonment for a maximum of one year or a fine or for the offences provided for in Articles 208, 213, Article 215 § 1, Article 2151 § 1, Article 217 § 1, Article 219 § 1, if the value of the damage does not exceed 10 Romanian lei or for the offence provided for in Article 249, if the value of the damage does not exceed 50 Romanian lei;\n\n(b)  because of its specific content and the circumstances in which it was committed, the act presents a low degree of social danger and did not produce serious consequences;\n\n(c)  the damage caused by the offence has been fully repaired pending the delivery of the decision;\n\n(d)  the perpetrator regrets the act;\n\n(e)  there is sufficient information indicating that the perpetrator can be redeemed without punishment.\n\n(2)  Criminal liability cannot be replaced if the perpetrator has previously been convicted or has twice been subject to administrative sanctions...”\n\nArticle 91 – Administrative sanctions\n\n“Where a court orders the replacement of criminal liability, it shall impose one of the following administrative sanctions:\n\n...\n\n(c)  a fine of between 10 and 1,000 lei.”\n\nTitle II: Crimes against the person\n\nChapter 1: Crimes against life, physical integrity and health\n\nSection II: Hitting and damage to physical integrity or health\n\nArticle 180 – Hitting or other violence\n\n“(1)  Hitting or any acts of violence causing physical harm shall be punishable by imprisonment of one to three months or by a fine.”\n\n12.  On 1 February 2014 a new Criminal Code (“the NCC”) entered into force in the Respondent State. The provisions which would be applicable to a situation similar to that raised in the present case read as follows:\n\nArticle 80 – Conditions for waiving sentencing\n\n“(1)  The court may decide to waive the imposition of a sentence if the following conditions are met:\n\n(a)  the criminal offence committed is of reduced severity, considering the nature and extent of the consequences produced, the means used, the manner and circumstances in which it was committed, the motive and the aim pursued;\n\n(b)  with regard to the offender, their prior conduct, the efforts made by [him or her] to remove or reduce the consequences of the criminal offence, as well as [his or her] possibility of correction, the court considers that the imposition of a sentence would be inappropriate because of the consequences it would have for the offender.\n\n(2)  It is not possible to waive the imposition of a sentence if:\n\n(a)  the offender has previously been convicted, except in the cases stipulated in Article 42 (a) and (b) [deeds which are no longer prohibited by criminal law, and offences which have been amnestied] or where rehabilitation has taken place or the time-limits for rehabilitation have been met;\n\n(b)  the offender has benefitted from a waiver of sentence in the two years preceding the date of commission of the offence for which he [or she] is currently being tried;\n\n(c)  the offender has evaded the criminal investigation or trial, or attempted to prevent the discovery of the truth or the identification and prosecution of the perpetrator or other participants;\n\n(d)  the punishment set by law for the criminal offence committed is imprisonment of more than five years.\n\n(3)  In the event of concurrent offences, a waiver of imposition of a sentence may be ordered if, for each concurrent offence, the conditions set out in paragraphs (1) and (2) above are met.”\n\n(3)  In the event of concurrent offences, a waiver of imposition of a sentence may be ordered if, for each concurrent offence, the conditions set out in paragraphs (1) and (2) above are met.”\n\n13.  The relevant provisions of the Code of Criminal Procedure (“the CCP”), as in force at the material time, provided as follows:\n\nArticle 10 – Cases when criminal prosecutions are not started or are dropped\n\n“1.  Criminal proceedings cannot be instituted or continued if:\n\n...\n\n(b1)  the act did not present the degree of social danger required to be classified as a criminal offence;”\n\nArticle 11 – Termination of criminal investigation, prosecution, acquittal and termination of criminal trial\n\n“Where any of the cases set out in Article 10 is found to exist:\n\n1.  During the criminal proceedings, the public prosecutor, on an application by the prosecuting authority or proprio motu, shall order: ...\n\n(b)  the discontinuation of the proceedings (scoaterea de sub urmărire) in favour of the suspect or accused, in the cases set out in Article 10 (a) to (e).\n\n...”\n\nArticle 172 – Rights of the defence\n\n“(1)  During the criminal investigation, the defence counsel of the accused or defendant has the right to participate in any investigative activities and make requests and submit documents. An investigative activity may take place even in counsel’s absence, if there is evidence that counsel was notified of the date and time of the activity. Notification shall be made by telephone, fax, Internet or other such means, and a report shall be concluded in this regard.\n\n...\n\n(3)  If the [defence] counsel is present during an investigative activity, his [or her] presence shall be noted, and the [relevant document] shall also be signed by counsel.\n\n...\n\n(6)  Counsel has the right to complain, in accordance with Article 275, if his [or her] requests are not accepted ...”\n\nArticle 275 – Right to lodge a complaint\n\n“Anyone may lodge a complaint in respect of measures and decisions taken during a criminal investigation, if they have harmed his or her legitimate interests ...”\n\nArticle 278 – Complaint against the prosecutor’s activities\n\n“Complaints against measures or decisions taken by a prosecutor or implemented at the latter’s request shall be examined by ... the chief prosecutor of the relevant department ....”\n\nArticle 2781 – Complaint before the judge against the prosecutor’s decisions or order not to prosecute\n\n“(1)  Following the dismissal by the prosecutor of a complaint lodged under Articles 275 to 278 in respect of a decision to discontinue a criminal investigation ... or a decision not to prosecute (neurmărire penală) ..., the injured party, or any other person whose legitimate interests have been harmed, may complain within twenty days of notification of the decision, to the judge of the court that would normally have jurisdiction to hear the case at first instance.\n\n...\n\n(7)  The judge ruling on the complaint shall verify the prosecutor’s decision or order, on the basis of the material and evidence in the file and any new documents submitted.\n\n(8)  The judge shall take one of the following decisions:\n\n(a)  reject the complaint, by a decision, as out of time, inadmissible or unfounded, and uphold the contested decision or order;\n\n(b)  allow the complaint, by a decision, set aside the prosecutor’s decision or order and refer the case to the prosecutor’s office, in order to start or reopen the criminal investigation, as appropriate. The judge shall give reasons for why he [or she] has referred the case to the prosecutor, and shall indicate the facts and circumstances to be verified and the evidence to be collected;\n\n(c)  allow the complaint, by an interlocutory judgment, set aside the prosecutor’s decision or order and, if the evidence in the case file is sufficient, examine the case as a court of first instance, the provisions concerning the procedure at first instance and appeal proceedings being applicable.\n\n...\n\n(10)  A decision rendered under paragraph 8 shall be final.”\n\n14.  On 1 February 2014 a new Code of Criminal Procedure (“the NCCP”) entered into force in the Respondent State. The procedure provided for in Article 2781 of the CCP was replaced with a new procedure, described in Article 340 of the NCCP, which reads as follows:\n\nArticle 340 – Complaint against the decision not to prosecute or not to indict\n\n“(1)  Anyone whose complaint against the decision not to prosecute (clasare), taken in a prosecutor’s order or an indictment, has been rejected in accordance with Article 339 [complaints against prosecutor’s activities or decisions] may complain, within [twenty] days of the date the decision was notified, to the preliminary chamber judge from the court that would, by law, hear the case at first instance.”\n\n15.  In two decisions rendered in 2004 and 2006, the Romanian Constitutional Court ruled that the limitation of the evidence that could be examined in the procedure provided for by Article 2781 of the CCP was justified by the specific nature of that procedure. In particular, the procedure (used by the applicant in the present case) did not concern the merits of the criminal case, and was only meant to verify the lawfulness of decisions taken by the prosecutor. The Constitutional Court considered that, under the procedure, this verification was done by examining the documents in the criminal file which had formed the basis of the prosecutor’s decision.\n\n16.  Enforcement of an administrative fine imposed under Article 181 of the CC was carried out in accordance with the procedure provided for by Government Ordinance No. 2/2001, which at the material time read as follows:\n\nArticle 39\n\n“Enforcement of the sanction of a fine shall be done as follows:\n\n(a)  by the authority to which the administrative officer belongs, whenever the appeal against the administrative decision concerning the contravention is not exercised within the time-limits prescribed by law;\n\n(b)  by the court, in any other cases.”\n\nArticle 391\n\n“(1)  If the offender has not paid the fine within [thirty] days of the date [the decision imposing] the fine became final, and there is no possibility of enforcement, he [or she] shall notify the court within whose territorial jurisdiction the offence was committed, in order to obtain replacement of the fine with the sanction of community service, taking into account, where appropriate, the part of the fine that has been paid.\n\n(2)  If the offender, summoned by the court, has not paid the fine within the time-limit prescribed in paragraph (1), the court shall replace the fine with community service for a maximum duration of [fifty] hours, and for minors over the age of 16, [for a maximum duration of twenty-five] hours.\n\n(3)  A decision imposing community service may be appealed against.\n\n(4)  The civil enforcement service attached to the district court within whose territorial jurisdiction the contravention took place shall be responsible for the execution of such decisions, in collaboration with special departments of the local public authorities.”\n\n(4)  The civil enforcement service attached to the district court within whose territorial jurisdiction the contravention took place shall be responsible for the execution of such decisions, in collaboration with special departments of the local public authorities.”\n\n17.  At the time of the events in the present case, it was not possible for the courts to replace an unpaid administrative fine with days in prison. This option, which had been available in the past, was removed from the law in 2003 (for further details, see Anghel v. Romania, no. 28183/03, §§ 39 and 52, 4 October 2007, and Nicoleta Gheorghe v. Romania, no. 23470/05, §§ 16 and 31, 3 April 2012).\n\n17.  At the time of the events in the present case, it was not possible for the courts to replace an unpaid administrative fine with days in prison. This option, which had been available in the past, was removed from the law in 2003 (for further details, see Anghel v. Romania, no. 28183/03, §§ 39 and 52, 4 October 2007, and Nicoleta Gheorghe v. Romania, no. 23470/05, §§ 16 and 31, 3 April 2012).\n\n18.  At the material time, the Criminal Records Act (Law no. 290/2004) contained the following provisions:\n\nArticle 9\n\n“A person’s criminal record shall contain the following information:\n\n(a)  criminal sanctions ... imposed by a final court decision;\n\n(b)  ... administrative fines imposed under the provisions of the Criminal Code, ...”\n\nArticle 17\n\n“A criminal record certificate shall contain the criminal sanctions imposed by final court decisions.”\n\nArticle 21\n\n“(2)  When a copy of the criminal record is sent to a judicial authority, information about administrative sanctions imposed under the provisions of the Criminal Code shall also be appended.”\n\nArticle 27\n\n“(1)  Anyone may obtain their own criminal record certificate.”\n\nTHE LAW\n\nALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION\n\n19.  The applicant complained that the criminal proceedings against her had been unfair, contrary to the requirements of Article 6 §§ 1 and 3 (d) of the Convention, which read as follows:\n\n“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...\n\n3.  Everyone charged with a criminal offence has the following minimum rights:\n\n...\n\n(d)  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...”\n\nAdmissibility\n\nThe Court’s jurisdiction ratione materiae\n\nThe parties’ submissions\n\n20.  The Government argued that the domestic proceedings giving rise to the final decision of 21 June 2011 had not been criminal proceedings for the purposes of Article 6 of the Convention. In their view, the complaint was thus incompatible ratione materiae with the requirements of the Convention.\n\n21.  The applicant contested that argument.\n\nThe Court’s assessment\n\n22.  The concept of a “criminal charge” in Article 6 § 1 is an autonomous one (see Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, § 122, 6 November 2018). The Court’s established case-law sets out three criteria, commonly known as the “Engel criteria”, to be considered in determining whether or not there was a “criminal charge” (see Engel and Others v. the Netherlands, 8 June 1976, § 82, Series A no. 22). The first criterion is the legal classification of the offence under national law, the second is the very nature of the offence, and the third is the degree of severity of the penalty that the person concerned risks incurring. The second and third criteria are alternative, and not necessarily cumulative. This, however, does not exclude a cumulative approach where separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a criminal charge (see, among other authorities, Jussila v. Finland [GC], no. 73053/01, §§ 30 31, ECHR 2006 XIV, and Ezeh and Connors v. the United Kingdom [GC], nos. 39665/98 and 40086/98, § 82, ECHR 2003 X). The fact that an offence is not punishable by imprisonment is not by itself decisive for the purposes of the applicability of the criminal limb of Article 6 of the Convention since, as the Court has stressed on numerous occasions, the relative lack of seriousness of the penalty at stake cannot deprive an offence of its inherently criminal character (see Ramos Nunes de Carvalho e Sá, cited above, § 122).\n\n23.  The Court will examine whether, in accordance with the aforementioned Engel criteria, the imposition of an administrative fine on the applicant for the offence of which she was accused is covered by the concept of “criminal procedure”.\n\n24.  The Court notes at the outset that the applicant was charged with hitting and other acts of violence, an offence prohibited by Article 180 § 1 of the CC (see paragraphs 6 and 11 below). It is thus undisputed that the offence in question was classified as criminal in domestic law.\n\n25.  However, the Court further notes the application in the present case of Article 181 of the CC, providing that an act falling under criminal law did not constitute a criminal offence if it did not attain the requisite level of seriousness, on account of minimal interference with one of the values safeguarded by criminal law, and its specific content (see paragraph 11 above). In such circumstances, the prosecutor could decide to discontinue the prosecution and, instead of imposing the criminal penalty provided for in the definition of the offence of which the person had been accused, impose another penalty that was likewise provided for in the CC but was designated therein as “administrative” (see Mihalache v. Romania [GC], no. 54012/10, § 58, 8 July 2019).\n\n26.  In the instant case, on 15 December 2010, the prosecutor’s office discontinued the proceedings against the applicant, noting that although her acts fell under criminal law, they did not amount to a criminal offence, and imposed an administrative fine instead (see paragraph 7 above). Be that as it may, the characterisation under domestic law is merely a starting point, and the indications so afforded have only a formal and relative value (see, among many other authorities, Engel and Others, cited above, § 82). The Court will therefore undertake a more detailed analysis of the actual nature of the domestic provision forming the legal basis of the penalty imposed on the applicant and its severity (see, mutatis mutandis, Mihalache, cited above, § 58).\n\n27.  By its very nature, the offence under examination aims at protecting life and physical integrity, values which unquestionably fall within the scope of criminal law (see paragraph 11 above). The provisions of Article 180 of the CC were applicable, in accordance with Articles 1 and 17 of the CC, to anyone who committed, with culpable intent, an act prohibited by criminal law. It is thus important to note that although the acts of which the applicant was accused were not deemed to constitute a criminal offence by the prosecutor (see paragraph 7 above), they nevertheless fell within the scope of a provision of criminal law.\n\n28.  The fact that the criminal acts of which the applicant was accused were regarded as manifestly insignificant on account of their minimal interference with one of the values safeguarded by criminal law and their specific content, does not in itself preclude their classification as “criminal” within the autonomous Convention meaning of the term, as there is nothing in the Convention to suggest that the criminal nature of an offence, within the meaning of the “Engel criteria”, necessarily requires a certain degree of seriousness (see Ezeh and Connors, cited above, § 104, and Mihalache, cited above, § 60).\n\n29.  For these reasons, the Court accepts that the legal provision on the basis of which the prosecutor’s office prosecuted and punished the applicant by means of the prosecutor’s decision of 15 December 2010 (see paragraph 7 above), subsequently upheld by the final court decision of 21 June 2011 (see paragraph 10 above), was criminal in nature.\n\n30.  Lastly, the Court reiterates that the degree of severity of the penalty is determined by reference to the maximum penalty for which the relevant law provides. The actual penalty imposed is relevant to the determination but it cannot diminish the importance of what was initially at stake (see Mihalache, cited above, § 61, with further references).\n\n31.  In the present case, the penalty laid down in law for commission of the offence in question was up to three years’ imprisonment (see paragraph 11 above). In addition, even though the prosecutor’s office did not consider that the acts in question constituted an offence for the purposes of criminal law, it was still required by law to impose a penalty where the legal basis for discontinuing the proceedings was Article 181 of the CC. In the present case, the applicant was fined RON 400 (that is, approximately EUR 90 at the time) for the acts of which she was accused, an amount which is less than half of the maximum allowed by Article 91 of the CC (see paragraph 11 above). Be that as it may, the relative lack of seriousness of the penalty at stake will not deprive the offence of its inherently criminal nature (see paragraph 22 above).\n\n32.  The Court also notes that although the CC designates this penalty as “administrative”, the purpose of the fine was not to repair the damage caused by the applicant, but to punish her and deter her from committing further criminal acts (see Mihalache, cited above, § 62, with further references). The fine imposed on the applicant thus had a punitive and deterrent purpose and was therefore akin to a criminal penalty, despite its domestic classification as an “administrative” fine. The fact that the applicant could not risk prison time even if she failed to pay the penalty (see paragraph 17 above) does not alter this conclusion.\n\n33.  In the same vein, even though criminal record certificates delivered to persons concerned do not contain information on administrative fines, such as the one imposed on the applicant in the present case, this information is nevertheless available to the judicial authorities on the same basis as information concerning any other criminal sanction imposed on that person (see paragraph 18 above).\n\n34.  Having regard to the foregoing, the Court concludes that the nature of the offence for which the applicant was prosecuted and the penalty imposed on her, render the proceedings under examination criminal in nature, for the purpose of Article 6 of the Convention. The criminal limb of Article 6 thus applies to the facts of the present case. Consequently, the Court dismisses the Government’s objection of incompatibility ratione materiae.\n\nOther grounds for inadmissibility\n\n35.  The Court further notes that this complaint is neither manifestly illfounded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.\n\nMerits\n\nThe parties’ submissions\n\nThe applicant\n\n36.  The applicant argued that the District Court had not had full jurisdiction to consider her complaints concerning the finding of guilt and had not afforded her the procedural safeguards of Article 6 of the Convention. She contended that the District Court had only examined the lawfulness of the two decisions and had done no more than uphold the findings concerning her guilt. The prosecutor’s office, however, had failed to ensure the principle of adversarial proceedings, despite the fact that the witnesses had given contradictory statements.\n\nThe Government\n\n37.  The Government argued that the applicant had benefitted from all procedural safeguards expected in this type of case. For instance, she had proposed witnesses during the police investigation. However, she had failed to request to be present during the witness interviews. Moreover, she had not repeated her requests for evidence before the District Court.\n\n38.  They also pointed out that the purpose of the proceedings before the court had not been to assess a person’s guilt, but rather to examine the lawfulness of the decisions of the prosecutor’s office, based primarily on the evidence already in the case file.\n\nThe Court’s assessment\n\nPreliminary remarks\n\n39.  Having established that the case falls within the scope of the criminal limb of Article 6, the Court must ascertain whether, bearing in mind the particular characteristics of the domestic proceedings at stake, the full guarantees of Article 6 apply to the facts of the present case.\n\n40.  In this connection, it notes that in Blokhin v. Russia ([GC], no. 47152/06, §§ 179-182, 23 March 2016), having found that the proceedings against the applicant for the commission of a delinquent act which, due to the applicant’s age, was not classified as criminal in domestic law, concerned the determination of a criminal charge, the Court examined them in the light of all the safeguards enshrined in Article 6 §§ 1 and 3 (d) of the Convention (see Blokhin, cited above, §§ 21116).\n\n41.  In the same vein, in Anghel v. Romania (no. 28183/03, §§ 5569, 4 October 2007), the Court applied the full set of safeguards provided by Article 6 of the Convention to domestic proceedings which, although noncriminal under domestic law, were considered by the Court to fall within the scope of the protection guaranteed by the criminal limb of Article 6 of the Convention.\n\n42.  For these reasons, and bearing in mind that the Convention guarantees rights which are practical and effective (see, among many other authorities, Artico v. Italy, 13 May 1980, § 33, Series A no. 37; Alekseyev v. Russia, nos. 4916/07 and 2 others, § 81, 21 October 2010; and Maskhadova and Others v. Russia, no. 18071/05, § 222, 6 June 2013), the Court considers that all the guarantees enshrined in the criminal limb of Article 6 of the Convention, as interpreted in the relevant case-law (see paragraphs 43-46 below), apply to the facts of the present case.\n\nGeneral principles\n\nGeneral principles\n\n43.  The Court reiterates that the guarantees in paragraph 3 (d) of Article 6 are specific aspects of the right to a fair hearing set forth in paragraph 1 of that Article, which must be taken into account in any assessment of the fairness of proceedings. In addition, the Court’s primary concern under Article 6 § 1 is to evaluate the overall fairness of the criminal proceedings (see Schatschaschwili v. Germany [GC], no. 9154/10, §§ 10001, 15 December 2015, and Taxquet v. Belgium [GC], no. 926/05, § 84, 16 November 2010, with further references). In making this assessment, the Court will look at the proceedings as a whole, having regard to the rights of the defence but also to the interests of the public and the victim(s) that crime is properly prosecuted (see Schatschaschwili, cited above, § 101, and Gäfgen v. Germany [GC], no. 22978/05, § 175, ECHR 2010) and, where necessary, to the rights of witnesses (see, amongst many authorities, AlKhawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 118, ECHR 2011). It is also notable in this context that the admissibility of evidence is a matter for regulation by national law and the national courts and that the Court’s only concern is to examine whether the proceedings have been conducted fairly (see Seton v. the United Kingdom, no. 55287/10, § 57, 31 March 2016, with further references).\n\n43.  The Court reiterates that the guarantees in paragraph 3 (d) of Article 6 are specific aspects of the right to a fair hearing set forth in paragraph 1 of that Article, which must be taken into account in any assessment of the fairness of proceedings. In addition, the Court’s primary concern under Article 6 § 1 is to evaluate the overall fairness of the criminal proceedings (see Schatschaschwili v. Germany [GC], no. 9154/10, §§ 10001, 15 December 2015, and Taxquet v. Belgium [GC], no. 926/05, § 84, 16 November 2010, with further references). In making this assessment, the Court will look at the proceedings as a whole, having regard to the rights of the defence but also to the interests of the public and the victim(s) that crime is properly prosecuted (see Schatschaschwili, cited above, § 101, and Gäfgen v. Germany [GC], no. 22978/05, § 175, ECHR 2010) and, where necessary, to the rights of witnesses (see, amongst many authorities, AlKhawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 118, ECHR 2011). It is also notable in this context that the admissibility of evidence is a matter for regulation by national law and the national courts and that the Court’s only concern is to examine whether the proceedings have been conducted fairly (see Seton v. the United Kingdom, no. 55287/10, § 57, 31 March 2016, with further references).\n\n44.  The Court has formulated the general principles to be applied in cases where a prosecution witness did not attend a trial but statements previously made by him or her were admitted in evidence; those general principles are set out in the cases of Al‑Khawaja and Tahery (cited above, §§ 118-47). A summary of those principles can also be found in Seton (cited above, § 58) and Blokhin (cited above, §§ 200-02). In this respect, having regard to the Court’s case-law, firstly, there must be a good reason for the non-attendance of a witness at the trial and, secondly, when a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence may be restricted to an extent that is incompatible with the guarantees provided by Article 6 (see Blokhin, cited above, § 201, with further references).\n\n44.  The Court has formulated the general principles to be applied in cases where a prosecution witness did not attend a trial but statements previously made by him or her were admitted in evidence; those general principles are set out in the cases of Al‑Khawaja and Tahery (cited above, §§ 118-47). A summary of those principles can also be found in Seton (cited above, § 58) and Blokhin (cited above, §§ 200-02). In this respect, having regard to the Court’s case-law, firstly, there must be a good reason for the non-attendance of a witness at the trial and, secondly, when a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence may be restricted to an extent that is incompatible with the guarantees provided by Article 6 (see Blokhin, cited above, § 201, with further references).\n\n45.  Those principles have been further clarified in Schatschaschwili (cited above, §§ 111-31), in which the Grand Chamber confirmed that the absence of good reason for the non-attendance of a witness could not, of itself, be conclusive of the lack of fairness of a trial, although it remained a very important factor to be weighed in the balance when assessing the overall fairness, and one which might tip the balance in favour of finding a breach of Article 6 §§ 1 and 3 (d). Furthermore, given that its concern is to ascertain whether the proceedings as a whole were fair, the Court must not only review the existence of sufficient counterbalancing factors in cases where the evidence of the absent witness was the sole or decisive basis for the applicant’s conviction, but also in cases where it finds it unclear whether the evidence in question was sole or decisive but is nevertheless satisfied that it carried significant weight and its admission may have handicapped the defence. The extent of the counterbalancing factors necessary in order for a trial to be considered fair will depend on the weight of the evidence of the absent witness. The more important that evidence, the more weight the counterbalancing factors will have to carry in order for the proceedings as a whole to be considered fair (ibid., § 116, see also Seton, cited above, § 59).\n\n45.  Those principles have been further clarified in Schatschaschwili (cited above, §§ 111-31), in which the Grand Chamber confirmed that the absence of good reason for the non-attendance of a witness could not, of itself, be conclusive of the lack of fairness of a trial, although it remained a very important factor to be weighed in the balance when assessing the overall fairness, and one which might tip the balance in favour of finding a breach of Article 6 §§ 1 and 3 (d). Furthermore, given that its concern is to ascertain whether the proceedings as a whole were fair, the Court must not only review the existence of sufficient counterbalancing factors in cases where the evidence of the absent witness was the sole or decisive basis for the applicant’s conviction, but also in cases where it finds it unclear whether the evidence in question was sole or decisive but is nevertheless satisfied that it carried significant weight and its admission may have handicapped the defence. The extent of the counterbalancing factors necessary in order for a trial to be considered fair will depend on the weight of the evidence of the absent witness. The more important that evidence, the more weight the counterbalancing factors will have to carry in order for the proceedings as a whole to be considered fair (ibid., § 116, see also Seton, cited above, § 59).\n\n46.  In this context, where a conviction is based solely or decisively on the evidence of absent witnesses, the Court must subject the proceedings to the most searching scrutiny (see Blokhin, cited above, § 202).\n\n46.  In this context, where a conviction is based solely or decisively on the evidence of absent witnesses, the Court must subject the proceedings to the most searching scrutiny (see Blokhin, cited above, § 202).\n\n46.  In this context, where a conviction is based solely or decisively on the evidence of absent witnesses, the Court must subject the proceedings to the most searching scrutiny (see Blokhin, cited above, § 202).\n\nApplication of those principles to the facts of the present case\n\n47.  Turning to the facts of the case under examination, the Court notes that the applicant was placed under investigation by the prosecutor’s office (see paragraph 6 above), but that the proceedings were eventually discontinued on the grounds that the acts committed were not serious enough to constitute a criminal offence (see paragraph 7 above). The applicant, who received a fine from the prosecutor’s office, contested the outcome before a criminal court, availing herself of the procedure under Article 2781 of the CCP.\n\n48.  The Court reiterates that under the procedure in question the domestic courts were called upon to examine the lawfulness of the decisions of the prosecutor’s office and had no power to hear witness evidence or directly assess the merits of the case. However, the Court cannot but note that in finding that the events had occurred as described by the victim and that the applicant had committed acts prohibited by criminal law which “[could] not remain unpunished” (see paragraph 10 above), the domestic court did, in fact, make an assessment of the applicant’s guilt. In doing so, it referred to the statement made by a witness, A, who had not appeared before it.\n\n49.  The Court notes that the witness was only heard during the investigation (see paragraph 5 above). In this context, the Court must assess whether there was a good reason for the non-attendance of that witness before the court, such as death or fear, absence on health grounds or the witness’s unreachability (see Schatschaschwili, cited above, § 119, with further references). The Court notes that the applicable law did not allow the courts to hear witness testimony in the procedure under Article 2781 of the CCP, as they were bound to examine the complaint based on the evidence already in the file, the sole exception being the possibility to examine additional documents, if need be (see Article 2781 § 7 of the CCP, cited in paragraph 13 above). This, however, is not a good reason justifying the nonattendance of the relevant witness, for the purposes of Article 6 of the Convention. It is also relevant to note that there is no indication, nor was it claimed by the Government, that A had not been available or that it would otherwise have been difficult to summon him to appear before the court (see Blokhin, cited above, § 213).\n\n49.  The Court notes that the witness was only heard during the investigation (see paragraph 5 above). In this context, the Court must assess whether there was a good reason for the non-attendance of that witness before the court, such as death or fear, absence on health grounds or the witness’s unreachability (see Schatschaschwili, cited above, § 119, with further references). The Court notes that the applicable law did not allow the courts to hear witness testimony in the procedure under Article 2781 of the CCP, as they were bound to examine the complaint based on the evidence already in the file, the sole exception being the possibility to examine additional documents, if need be (see Article 2781 § 7 of the CCP, cited in paragraph 13 above). This, however, is not a good reason justifying the nonattendance of the relevant witness, for the purposes of Article 6 of the Convention. It is also relevant to note that there is no indication, nor was it claimed by the Government, that A had not been available or that it would otherwise have been difficult to summon him to appear before the court (see Blokhin, cited above, § 213).\n\n50.  As for the significance of the evidence of the absent witness, the Court notes that the domestic court reached its decision in the case by relying on witness A’s statement, which corroborated the medical evidence. It can be inferred from this that A’s statement was decisive for the court’s conclusion (see, mutatis mutandis, Schatschaschwili, § 141, and Blokhin, § 212, both cited above).\n\n51.  It remains to be determined whether there were sufficient counterbalancing factors to compensate for the handicaps under which the defence laboured as a result of the admission of the decisive evidence of the absent witness (see Schatschaschwili, cited above, § 145). In other words, the Court must ensure that the trial, judged as a whole, was fair, bearing in mind that the lack of a good reason for a prosecution witness’s absence is a very important factor to be weighed in the balance when assessing the overall fairness of a trial which may tip the balance in favour of finding a breach of Article 6 §§ 1 and 3 (d) (see the case-law quoted in paragraph 45 above). One important safeguard would be to have given the applicant or defence counsel an opportunity to question the witnesses during the investigation stage (see Schatschaschwili, cited above, § 131). However, there is no evidence in the file that the defence was informed of the date the witnesses were interviewed, and it appears that the applicant was neither present nor represented during the police questioning (see paragraph 5 above) and the Government did not put forward any justification as to why that was the case. There is nothing in the case file to indicate that he was in any way informed of the date when the witnesses would be interviewed by the investigators or invited to participate.\n\n52.  The Court notes that in her complaint lodged with the domestic court the applicant contested the evidence (see paragraph 9 above). The court nevertheless based its decision on that evidence (see paragraph 10 above). As the domestic court did not have the power to hear witnesses, the Court does not see any reason why she, as suggested by the Government, should have expressly requested that the court hear the witnesses (see paragraph 9 above).\n\n53.  Moreover, on this point, the Court cannot but note that even in the absence of the power to hear witnesses, the court had at its disposal other means to resolve the case which could, at least in theory, have ensured better protection of the rights of the defence. In particular, it notes that under Article 2781 of the CCP the domestic courts had the power to set aside a decision taken by the prosecutor’s office and either refer the case back to the prosecutor’s office or examine it further in proper criminal proceedings, as a first-instance court (see paragraph 13 above). However, in the present case, the domestic court did not avail itself of any of these options, but instead upheld the prosecutor’s decision without hearing evidence, thus frustrating the applicant’s opportunity to cross-examine the witness whose testimony was of decisive importance. In doing so, the court deprived the applicant of the possibility to have her case examined in compliance with the requirements of the Convention.\n\n53.  Moreover, on this point, the Court cannot but note that even in the absence of the power to hear witnesses, the court had at its disposal other means to resolve the case which could, at least in theory, have ensured better protection of the rights of the defence. In particular, it notes that under Article 2781 of the CCP the domestic courts had the power to set aside a decision taken by the prosecutor’s office and either refer the case back to the prosecutor’s office or examine it further in proper criminal proceedings, as a first-instance court (see paragraph 13 above). However, in the present case, the domestic court did not avail itself of any of these options, but instead upheld the prosecutor’s decision without hearing evidence, thus frustrating the applicant’s opportunity to cross-examine the witness whose testimony was of decisive importance. In doing so, the court deprived the applicant of the possibility to have her case examined in compliance with the requirements of the Convention.\n\n54.  There has accordingly been a violation of Article 6 §§ 1 and 3 (d) of the Convention.\n\nOTHER ALLEGED VIOLATIONS OF THE CONVENTION\n\n55.  Lastly, the applicant complained that she had lacked an effective remedy by which to complain about the decision of 21 June 2011, in violation of Article 13 of the Convention.\n\n56.  However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.\n\n57.  Accordingly, this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.\n\nAPPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n58.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nDamage\n\n59.  The applicant claimed 400 Romanian lei (RON) in respect of pecuniary damage, representing the fine imposed on her by the prosecutor’s office. She also sought 1,000 euros (EUR) in respect of non-pecuniary damage for loss of her image, honour and reputation in the community.\n\n60.  The Government contended that there was no causal link between the complaint brought by the applicant before the Court and the pecuniary damage sought. Furthermore, they pointed out that she could seek the reopening of the proceedings under Article 465 § 1 of the CCP. Lastly, they contended that the finding of a violation constituted sufficient just satisfaction for the alleged non-pecuniary damage.\n\n61.  The Court notes that Article 465 § 1 of the CCP allows for the reopening of the domestic proceedings in order to remedy the breaches found by it. Given the nature of the applicant’s complaint under Article 6 of the Convention, the Court considers that in the present case the most appropriate form of redress would be, at the applicant’s request, the reopening of the proceedings complained of in due course.\n\n62.  On the other hand, the Court considers that she must have suffered a certain amount of distress which cannot be compensated solely by the reopening of the proceedings or the finding of a violation. Having regard to the nature of the violation found, and making its assessment on an equitable basis, the Court awards her EUR 1,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.\n\nCosts and expenses\n\n63.  The applicant also claimed RON 514 for the costs and expenses incurred before the domestic courts and the Court.\n\n64.  The Government argued that the costs had not been necessarily incurred.\n\n65.  Regard being had to the documents in its possession and to its caselaw, the Court considers it reasonable to award the sum of EUR 100 covering costs under all heads, plus any tax that may be chargeable to the applicant.\n\nDefault interest\n\n66.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT\n\nDeclares, unanimously, the complaint concerning Article 6 §§ 1 and 3 (d) of the Convention admissible and the remainder of the application inadmissible;\n\nHolds, unanimously, that there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention;\n\nHolds,\n\nby five votes to two, that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;\n\nunanimously, that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 100 (one hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;\n\nunanimously, that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\nDismisses, unanimously, the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 16 February 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.\n\nIn accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Pastor Vilanova and Schukking is annexed to this judgment.\n\n1.  Our dissenting opinion concerns, exclusively, the payment of just satisfaction to the applicant in respect of non-pecuniary damage under Article 41 of the Convention. We have drafted this joint opinion to express our disagreement with the majority position in the Chamber on this point.\n\n2.  We are of the view that the judgment in the present case: (a) does not justify its departure from the Court’s case-law in such matters, and (b) in doing so it overlooks the need for reasoning under Article 45 § 1 of the Convention.\n\n3.  Firstly, it is to be noted that the Court has found on many occasions that it does not follow from its finding of a violation of Article 6 §§ 1 and 3 of the Convention that an applicant was wrongly convicted. Indeed, it is impossible to speculate as to what might have occurred had there been no breach of the minimum rights listed in Article 6 § 3. In such circumstances the Court often takes the view that a finding of a violation constitutes in itself sufficient just satisfaction (see Sejdovic v. Italy [GC], no. 56581/00, § 134, 2006II; Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, § 315, ECHR 2016; and Beuze v. Belgium [GC], no. 71409/10, § 199, 9 November 2018). It is noteworthy that no less than three Grand Chamber judgments, two of which are recent, have taken such an approach. However, the Chamber now appears to be turning its back on this well-established doctrine.\n\n4.  Secondly, the Court has also taken the view that there is no need to make an award for non-pecuniary damage when the applicant is able to obtain the reopening of the domestic proceedings, after having previously been convicted. In the present case the possibility of a retrial exists under domestic law. In this respect the Court has reiterated many times that when an individual has been convicted following proceedings that have entailed breaches of the requirements of Article 6 of the Convention, as a rule, a retrial or the reopening of the case, if requested, represents in principle the most appropriate form of redressing that violation (see, among other authorities, Sejdovic v. Italy, cited above, § 126; Öcalan v. Turkey [GC], no. 46221/99, § 210 in fine, ECHR 2005IV; Cabral v. the Netherlands, no. 37617/10, §§ 42-43, 28 August 2018; and Chernika v. Ukraine, no. 53791/11, §§ 82-83, 12 March 2020). Once again, this well-established case-law seems to have been ignored.\n\n5.  Lastly, Article 45 § 1 of the Convention requires that reasons must be given for the Court’s judgments and decisions. This provision seems clear and no exception is permitted. As it is not otherwise stipulated, it can be inferred that the obligation to give reasons concerns the entire text of the judgment or decision and not merely certain passages of the judicial ruling. Consequently, even if the majority wished to base their findings on a different strand of case-law, or to depart from the authorities relied upon by the minority, they were under an obligation, we respectfully submit, in terms of the duty of the European adjudicator, to explain the reasons for their position. Such reasoning would have enhanced the principle of legal certainty in the present case.\n\n5.  Lastly, Article 45 § 1 of the Convention requires that reasons must be given for the Court’s judgments and decisions. This provision seems clear and no exception is permitted. As it is not otherwise stipulated, it can be inferred that the obligation to give reasons concerns the entire text of the judgment or decision and not merely certain passages of the judicial ruling. Consequently, even if the majority wished to base their findings on a different strand of case-law, or to depart from the authorities relied upon by the minority, they were under an obligation, we respectfully submit, in terms of the duty of the European adjudicator, to explain the reasons for their position. Such reasoning would have enhanced the principle of legal certainty in the present case.","title":""}
{"_id":"passage_161","text":"PROCEDURE\n\n1.  The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table.\n\n2.  The applications were communicated to the Russian Government (“the Government”).\n\nTHE FACTS\n\n3.  The list of applicants and the relevant details of the applications are set out in the appended table.\n\n4.  The applicants complained of the inadequate conditions of detention during their transport. Some applicants also raised other complaints under the provisions of the Convention.\n\nTHE LAW\n\nI.  JOINDER OF THE APPLICATIONS\n\n5.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.\n\nII.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION\n\n6.  The applicants complained principally of the inadequate conditions of detention during their transport. They relied on Article 3 of the Convention, which reads as follows:\n\n“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”\n\n7.  The Court notes that the applicants were detained in poor conditions during transport. The details of the applicants’ detention are indicated in the appended table. The Court refers to the principles established in its caselaw regarding cramped and defective conditions in the detention and transit of prisoners (see, for instance, Khudoyorov v. Russia, no. 6847/02, §§ 118120, ECHR 2005-X (extracts), and Starokadomskiy v. Russia, no. 42239/02, §§ 5360, 31 July 2008). It reiterates in particular that extreme lack of space in a prison cell or overcrowding weighs heavily as an aspect to be taken into account for the purpose of establishing whether the impugned detention conditions were “degrading” from the point of view of Article 3 and may disclose a violation, both alone or taken together with other shortcomings (see Muršić v. Croatia [GC], no. 7334/13, §§ 122141, ECHR 2016, and Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 149159, 10 January 2012).\n\n8.  In the leading cases of Idalov v. Russia [GC], no. 5826/03, §§ 103108, 22 May 2012, concerning conditions of transport by prison van and conditions of detention at the court-house, and M.S. v. Russia, no. 8589/08, §§ 78-79, 10 July 2014, concerning conditions of transport by rail, the Court already found a violation in respect of issues similar to those in the present case.\n\n9.  Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the applicants’ conditions of detention during their transport were inadequate.\n\n10.  These complaints are therefore admissible and disclose a breach of Article 3 of the Convention.\n\nIII.  OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW\n\n11.  In applications nos. 32889/16, 32928/16, 53403/16 and 37476/17 the applicants also submitted complaints under Article 13 of the Convention. These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its findings in Idalov v. Russia (no. 2), no. 41858/08, § 115, 13 December 2016, concerning the lack of an effective domestic remedy to complain about poor conditions of transport.\n\nIV.  REMAINING COMPLAINTS\n\n12.  In applications nos. 31113/15, 1141/17, 37476/17, 45869/17 and 51331/17, the applicants also raised other complaints under various Articles of the Convention.\n\n13.  The Court has examined the applications listed in the appended table and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.\n\n14.  It follows that this part of the applications must be rejected in accordance with Article 35 § 4 of the Convention.\n\nV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n15.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\n16.  Regard being had to the documents in its possession and to its caselaw (see, in particular, Pukhachev and Zaretskiy v. Russia, nos. 17494/16 and 29203/16, 7 November 2017), the Court considers it reasonable to award the sums indicated in the appended table.\n\n17.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\n1.  Decides to join the applications;\n\n2.  Declares the complaints concerning the inadequate conditions of detention during transport and the other complaints under wellestablished case-law of the Court, as set out in the appended table, admissible and the remainder of the applications nos. 31113/15, 1141/17, 37476/17, 45869/17 and 51331/17 inadmissible;\n\n3.  Holds that these complaints disclose a breach of Article 3 of the Convention concerning the inadequate conditions of detention during transport;\n\n4.  Holds that there has been a violation of the Convention as regards the other complaints raised under well-established case-law of the Court (see appended table);\n\n5.  Holds\n\n(a)  that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.\n\nDone in English, and notified in writing on 26 July 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_469","text":"PROCEDURE\n\n1.  The case originated in an application (no. 27865/02) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Macedonian nationals, Ms Nevenka Bočvarska and Mr Angel Kupev, on 29 April 2002.\n\n2.  By a decision of 6 November 2007, the Court declared the application partly admissible only in respect of Ms Bočvarska (“the applicant”).\n\n3.  The applicant was represented by Ms L. Vanevska, a lawyer practising in . The Macedonian Government (“the Government”) were represented by their Agent, Mrs R. Lazareska Gerovska.\n\n4.  The applicant alleged, in particular, that she had been deprived of the peaceful enjoyment of her possession and that the proceedings in question had been unreasonably lengthy.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n5.  The applicant was born in 1958 and lives in .\n\n6.  According to an official note of the Ministry of Finance of 1997, the applicant and Mr Angel Kupev registered Naša Kniga STD (самостоен трговски дукан, “the undertaking”, as opposed to companies incorporated under company law) through which they pursued business activities. On 17 July 1992 they ceased trading through the undertaking. On 8 February 1993 the undertaking was re-registered in the name of the applicant. The undertaking operated until 22 February 1995, when its activities were voluntarily terminated.\n\nA. Civil proceedings establishing the undertaking's claim\n\n7. On 23 June 1993 the  (Окружен Стопански суд) upheld the undertaking's claim and ordered AD Gazela (“the debtor”) to pay a debt amounting to 1,393,377.70 old Macedonian denars (MKD) plus interest. The court found that the debtor and the undertaking had concluded a framework agreement under which the latter would produce paper products for the debtor. As the debtor had failed to pay for the products made, the court upheld the undertaking's claim.\n\n8.  On 10 September 1993 the  (Стопански суд на Македонија), sitting as an appellate court, dismissed an appeal by the debtor and upheld the lower court's decision. On 22 March 1994 the Supreme Court dismissed an appeal on points of law (ревизија) by the debtor and upheld the lower courts' decisions.\n\nB. Enforcement proceedings, as initially instituted by the undertaking\n\n9. On 2 October 1993 the undertaking requested enforcement of the judgment debt, proposing the following means of enforcement: transfer of the money due from the debtor's account and an inventory, evaluation and public auction of the debtor's movable and immovable property. On 8 October 1993 the  granted the undertaking's request and ordered the debtor to pay the debt. On 3 November 1993 it dismissed an objection by the debtor.\n\n10. On 26 November 1993 the  dismissed a request by the debtor for postponement of enforcement. On 25 December 1993 the  dismissed an appeal by the debtor and upheld its decision.\n\n11. On 9 June 1994 the  upheld an objection by the debtor and discontinued the enforcement proceedings in so far as they concerned interest.\n\n12. On 2 September 1994 the  ordered the Public Payment Office to require the bank in which the debtor had had its foreign currency account to transfer the balance due to the undertaking's account. It also ordered the bank not to make any payments from the debtor's account to other parties until the undertaking's claim had been completely honoured. The court established that the undertaking had received part of the judgment debt. It further noted that, as there were no other funds available in the debtor's account, on 25 July 1994 the undertaking had requested the court to satisfy its claim from other accounts belonging to the debtor.\n\n13. On 6 October 1994 the undertaking, represented by Mr A. Kupev, and the debtor reached a court settlement (“the 1994 settlement”) concerning the means of securing payment of the remaining balance, which amounted to MKD 21,774,593.00 (844,631 German marks). The undertaking agreed to receive the balance in twelve equal instalments within a year.\n\n14. As the debtor did not pay the debt as agreed, on 27 October 1994 the  ordered an inventory and public auction of the debtor's vehicles. On 30 November 1994 the  dismissed an appeal by the debtor and upheld the lower court's decision.\n\n15. On 12 January 1995 the  partly allowed a request by the debtor for postponement of the enforcement in respect of some heavy goods vehicles and a bus. On 29 January 1996 the court ordered the confiscated vehicles to be returned to the debtor as they were necessary for its work. On 29 August 1996 the Skopje Court of Appeal (Апелационен суд) upheld those decisions.\n\n16.  On 14 April 1997 the Skopje Court of First Instance (Основен суд) dismissed a request by the debtor to postpone enforcement of the 1994 settlement.\n\n17. On 23 September 1997 the Court of First Instance upheld an objection by the debtor, who had argued that the undertaking had no legal capacity as a creditor in the proceedings as it had ceased to exist. It also stayed the enforcement proceedings and ordered the Public Payment Office to lift the charging orders on the debtor's accounts. It dismissed the applicant's arguments that she was a successor to the undertaking and that there had been a continuity of the undertaking's claims. On 30 April 1998 the Court of Appeal dismissed an appeal by the undertaking as inadmissible.\n\nC. Enforcement proceedings regarding the 1994 settlement\n\n18.  Pending the proceedings described above, on 14 June 1996 the Skopje Municipal Court granted the undertaking's request of 10 January 1996 and issued a charging order on one of the debtor's shops (“the shop”). On 2 September 1996 the Skopje Court of First Instance dismissed an objection by the debtor. On 31 October 1996 the Court of Appeal quashed the lower court's decision and ordered a re-examination of the case. On 21 November 1996 the Skopje Court of First Instance suspended the charging order, as the shop had been exempted from enforcement since it was necessary for the debtor's work. On 24 January 1997 the Court of Appeal quashed that decision and ordered a re-examination of the case. On 7 July 1997 the Court of First Instance dismissed an objection by the debtor.\n\n19. On 18 February 1997 the undertaking requested the court to enforce the claim as established by the 1994 settlement. On 24 February 1997 the Court of First Instance granted the undertaking's request for the sale of the debtor's shop in respect of the principal debt, which had amounted to DM 844,631, together with interest between 11 October 1994 until settlement, plus trial costs. On 19 March 1997 the Court of First Instance partly upheld an objection by the debtor and suspended the enforcement proceedings in so far as they concerned interest.\n\n20. On 12 June 1997 the Court of Appeal allowed an appeal by the debtor and quashed the decision of 19 March 1997. It found that the lower court had failed to determine the debtor's objection as to whether other enforcement proceedings had already been pending between the same parties on the same subject.\n\n21. On 8 July 1997 the Court of First Instance partly upheld an objection by the debtor and suspended the enforcement proceedings in so far as they concerned interest. The order for the sale of the shop remained unaffected.\n\n22. On 12 September 1997 the Court of Appeal dismissed an appeal by the debtor and upheld the lower court's decision.\n\n23.  On 26 November 1997 the public prosecutor lodged with the Supreme Court a request for the protection of legality (барање за заштита на законитоста) (“legality review request”) challenging the legality of the lower courts' decisions of 8 July and 12 September 1997. It argued that the 1994 settlement could not be regarded as an enforcement order (извршна исправа) as it had been concluded while the enforcement proceedings were already pending and it had merely concerned the means of enforcing payment of the outstanding debt. The public prosecutor's office further contested, inter alia, the legal capacity of the undertaking in the enforcement proceedings as it had ceased to exist before it had lodged its application for enforcement on 18 February 1997. On 1 December 1997 the undertaking made submissions in reply.\n\n24. On 29 January 1998 the Supreme Court upheld the public prosecutor's legality review request and quashed the impugned decisions. It found that the lower courts had wrongly considered the 1994 settlement to be an enforcement order that could validly be enforced. It instructed them, inter alia, to reconsider the undertaking's legal capacity as a creditor in the enforcement proceedings.\n\n25. On 2 April 1998 the Skopje Court of First Instance upheld the debtor's objection concerning the undertaking's capacity to take part in the proceedings as a creditor. It dismissed the undertaking's application for enforcement and ordered the proceedings to be resumed in the name of the applicant as a creditor. It held that the applicant had been the last person who had pursued business activities through the undertaking before it had ceased to exist. As the undertaking did not have the capacity of a legal entity, all its rights and obligations, including its claim against the debtor, had to be considered to have been transferred to the applicant, as the physical person who had run it.\n\n26. On 11 June 1998 the Skopje Court of Appeal upheld the lower court's decision, finding no grounds to depart from the reasons given.\n\n27. On 22 September 1998 the public prosecutor submitted a fresh legality review request to the Supreme Court, challenging the legality of those decisions and claiming that the applicant lacked the legal capacity to replace the undertaking and take over the enforcement proceedings as a creditor. It further disputed that the 1994 settlement could not be regarded as an enforcement order, as the enforcement proceedings had already been pending at the time when it had been concluded. On or about 29 September 1998, the applicant, who was legally represented, made submissions in reply to the public prosecutor's legality review request.\n\n28. On 11 November 1998 the Supreme Court upheld the public prosecutor's request and quashed the lower courts' decisions. It found that they had failed to establish whether the enforcement proceedings had been pending before the 1994 settlement was concluded. It further held it to be irrelevant that the undertaking had ceased to operate, as the undertaking's founders bore its rights and obligations and it had been their responsibility to establish their status before the courts.\n\n29. On 17 March 1999 the Court of First Instance ordered the enforcement of the 1994 settlement by sale of the shop in favour of the applicant. It held that the enforcement proceedings, which had been instituted before the 1994 settlement, had ended with the first-instance court's decision of September 1997. It further recognised the applicant's capacity to take over the undertaking's claim and to be given the status of a creditor.\n\n30. On 13 May 1999 the Court of Appeal upheld the lower court's decision and dismissed an appeal by the debtor, which had submitted, inter alia, that the applicant had failed to establish that she had taken over the undertaking's claim.\n\n31. On 9 June 1999 the public prosecutor lodged a third legality review request with the Supreme Court. The public prosecutor's office reiterated its earlier allegations that the 1994 settlement could not be regarded as an enforcement order and that the applicant could not automatically be considered to have taken over the undertaking's claim.\n\n32. On 17 February 2000 the Supreme Court quashed the lower courts' decisions. It found that they had erroneously established that the applicant had taken over the undertaking's claims ipso jure as she had been the last proprietor of the undertaking. It further instructed them to verify whether there had been a valid certificate by which the undertaking's claim had been transferred to the applicant.\n\n33. On 23 June 2000 the Court of First Instance requested the applicant to provide, in accordance with section 22 of the Enforcement Act (see paragraph 51 below), written evidence that the undertaking's claim had been transferred to her. On 29 June 2000 the applicant submitted documents to the court, including a balance sheet (биланс на приходи и расходи), bank account details, a receipt (признаница) and a certificate issued by a bank.\n\n34. On 6 October 2000 the Court of First Instance dismissed the applicant's application for enforcement of the claim as established by the 1994 settlement. Following the Supreme Court's instructions, it held that there had been no valid certificate by which the undertaking's claim had been transferred to the applicant. It therefore concluded that the latter could not claim to have the status of a creditor.\n\n35. On 1 March 2001 the Court of Appeal quashed the decision as the lower court had failed to establish whether the applicant had owned and run the undertaking as a sole proprietor.\n\n36. On 15 June 2001 the Court of First Instance dismissed the applicant's request as ill-founded. It found that the documents submitted to the court on 29 June 2000 could not be regarded as a valid certificate by which the undertaking's claim had been transferred to the applicant. It concluded that the applicant could not ipso jure have taken over the undertaking's claim.\n\n37. On 6 September 2001 the Court of Appeal overturned the decision and partly allowed the applicant's application for enforcement of the principal debt indicated in the 1994 settlement. It dismissed the applicant's request for payment of the interest. It found, inter alia:\n\n“...it is irrefutable that the creditor, Ms Bočvarska, owned the undertaking ..., which had no legal capacity... The fact that Ms Bočvarska carried out transactions on the market through the undertaking at the time when the latter still operated implied that she was responsible for all the rights and obligations arising from it... the lack of legal capacity of the undertaking ..., whose proprietor was the creditor [the applicant], means that it was not a separate legal entity, but that its capacity, regarded as a pool of rights and obligations, is vested solely in the creditor, Ms Bočvarska ... there is no transfer of the undertaking's claims to Ms Bočvarska, as the former does not have legal capacity, but the creditor [the applicant] was ... liable for the undertaking's obligations...”\n\n38. On or about 15 January 2002 the public prosecutor lodged a fourth legality review request with the Supreme Court in respect of the Court of Appeal's decision.\n\n39. At the public prosecutor's request, on 28 January 2002 the Court of First Instance postponed the enforcement of the order until the Supreme Court had determined the legality review request.\n\n40. On the same date, the applicant made submissions to the Court of First Instance in reply to the public prosecutor's request.\n\n41. On 30 May 2002 the Supreme Court upheld the public prosecutor's request, overturned the Court of Appeal's decision and upheld the first-instance court's decision of 15 June 2001. It found, inter alia, that the lower courts had established the following facts:\n\n“...the enforcement proceedings were pending before the  between the [undertaking] and [the debtor]. On 6 October 1994 they concluded a court settlement on the basis of which the enforcement proceedings were instituted... on 23 September 1997 the Skopje Court of First Instance stayed the proceedings... on 30 April 1998 the Court of Appeal rejected the [undertaking's] appeal as inadmissible [these decisions concern the enforcement proceedings instituted before the 1994 settlement was concluded]... on 8 February 1993 the [undertaking] was registered in the name of Ms Bočvarska.... On 22 February 1995 [the undertaking]... ceased to exist. Ms Bočvarska was the last sole proprietor of the [undertaking], which had been set up by her funds and her labour force.”\n\n42. The court went on to conclude that the Court of Appeal had wrongly applied the substantive law for the following reasons:\n\n“In the present case, the requirements of the provision cited above [referring to section 22 of the Enforcement Proceedings Act], for the granting of enforcement at the request of a person not indicated as a creditor in the enforcement order, were not satisfied. There is no written certificate attesting that the claim was transferred from [the undertaking] to Ms Bočvarska, as a creditor. The termination of the undertaking's operations does not ipso jure entail the transfer of its claims to the last proprietor who ran it. Indeed, the Entrepreneurship Act did not contain a provision providing for ipso jure transfer of the undertaking's claims to the last proprietor who ran it ... Moreover, the court settlement of 6 October 1994 cannot be regarded as an enforcement order as it resulted from the enforcement proceedings already pending between the same creditor [meaning the undertaking] and the debtor... the subject of this settlement was the means of enforcing the outstanding debt...”\n\n43.  The decision was served on the applicant on 25 July 2002.\n\nII. RELEVANT DOMESTIC LAW\n\n1. The Constitution\n\n44. Article 101 of the Constitution provides that the Supreme Court is the highest court and that it ensures the uniform application of the laws by the courts.\n\n2. Entrepreneurship Act (Закон за самостојно вршење дејност со личен труд) of 1989\n\n45. Section 3 (1 and 3) of the Entrepreneurship Act provided that an entrepreneur could set up an undertaking (дуќан), in order to pursue business activities. The undertaking could have a legal personality.\n\n46. Section 10 provided that an entrepreneur could set up an undertaking by submitting an application to the relevant municipal administrative body.\n\n47. In accordance with section 16 § 1 (1) of that Act, an undertaking would cease to exist if the above application had been withdrawn.\n\n3.  Enforcement Proceedings Act (Закон за извршната постапка) of 1997\n\n48. Section 7 (6) of the Enforcement Proceedings Act (“the Act”), as applicable at that time, provided that a decision given on an appeal was regarded as final.\n\n49. Under section 8 of the Act, an appeal on points of law and a request for reopening of the proceedings could not be lodged in respect of a final decision given in the enforcement proceedings.\n\n50. Section 13 of the Act provided that the provisions of the 1998 Act applied, mutatis mutandis, to enforcement and security proceedings, unless otherwise provided for by law.\n\n51. Under section 15 (2), an enforceable court decision and a court settlement were regarded as an enforcement order.\n\n52. Section 22 (1) of the Act provided that enforcement might be granted at the request of a person not indicated as a creditor in an enforcement order only if that person proved, by a public or otherwise legally certified order, that the claim had been transferred to him or her. Should that be impossible, the transfer of the claim was to be proved by a final decision given in civil proceedings.\n\n4.  Civil Proceedings Act (Закон за парничната постапка) of 1998\n\n53. Section 319 of the Civil Proceedings Act (“the 1998 Act”), which was in force at the material time, provided that a decision became final when an appeal could no longer be lodged against it.\n\n54. In accordance with section 380 (1) of the 1998 Act, in case of substantial procedural flaws, the Supreme Court quashed the first- and the second-instance decision or the second-instance decision only and referred the case back for reconsideration.\n\n55. Section 381 of the 1998 Act provided that where the substantive law had been applied incorrectly, the Supreme Court upheld the appeal on points of law and overturned the impugned decision. In cases where the facts were erroneously established because of the incorrect application of the substantive law and where there were no grounds for overturning the impugned decision, the Supreme Court upheld the appeal on points of law and referred the case back for fresh consideration.\n\n56. In accordance with section 387 of the 1998 Act, the public prosecutor could submit, within three months, a request for the protection of legality in respect of a final decision. When the request was lodged in respect of a second-instance decision, this term started to run from the date on which the last party was served with the decision. Where the parties concerned had lodged an appeal on points of law against the second-instance decision, the public prosecutor could submit a request for the protection of legality in respect of that decision within thirty days of the date of service of the appeal on points of law.\n\n57.  In accordance with section 390, a legality review request could be lodged either in respect of a substantial procedural flaw or an incorrect application of the substantive law. It could not be lodged where the impugned decision went beyond the scope of the claim or where the facts had been erroneously or incompletely established.\n\n58. Section 394(2) of the Act provided, inter alia, that sections 370, 373 to 381 and 383 to 385 applied, mutatis mutandis, to proceedings concerning a legality review request.\n\n5. Civil Proceedings Act of 2005\n\n59.  The Act, which repealed the 1998 Act, does not contain any provisions concerning the legality review proceedings.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION\n\n60. The applicant complained that the length of the enforcement proceedings had been incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:\n\n“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”\n\n1.  The parties' submissions\n\n61. The applicant submitted that the enforcement proceedings were to be regarded as a single set and that the excessive use of the extraordinary legality review request had affected their length. She further stated that the case had not been of a complex nature and that she could not be held responsible for the repeated use of available remedies by the debtor and public prosecutor.\n\n62. The Government submitted that the case had in fact been of a complex nature as it had required determination of difficult legal issues: the applicant's capacity to act; whether other enforcement proceedings had already been pending between the same parties at the time when the undertaking had requested enforcement of the 1994 settlement; and whether the latter should be regarded as an enforcement order.\n\n63. They further argued that the applicant had contributed to the length of the proceedings by failing to submit any written evidence in support of her allegations that the undertaking's claim had been transferred to her until June 2000. They referred also to the extensive use of all available remedies by the debtor and its poor economic situation.\n\n64. As regards the conduct of the authorities, the Government maintained that the courts had taken all reasonable steps to avoid unnecessary delays.\n\n2.  The Court's assessment\n\n65.  The Court notes that the enforcement proceedings were instituted on 2 October 1993, when the undertaking sought enforcement of the 's decision dated 23 June 1993. As established by the national courts, these proceedings ended on 30 April 1998 (see paragraph 17 above). On 18 February 1997 another set of enforcement proceedings was instituted in respect of the 1994 settlement. These two sets of proceedings concerned the same parties and means of enforcement. The applicant was party to both sets, either as the undertaking's proprietor and representative or in person. She can accordingly be regarded as being entitled to complain about the proceedings from their inception (see Cocchiarella v.  [GC], no. 64886/01, § 113, ECHR 2006).\n\n66. The enforcement proceedings ended on 25 July 2002, when the Supreme Court decision was served on the applicant. They thus lasted for nearly eight years and ten months, of which five years, three months and fifteen days fall within the Court's jurisdiction ratione temporis (since the ratification of the Convention by the respondent State on 10 April 1997) at three court levels. The Court further observes that, in order to determine the reasonableness of the period in question, regard must also be had to the state of the case on the date of ratification (see Atanasovic and Others v. the former Yugoslav Republic of Macedonia, no. 13886/02, § 26, 22 December 2005) and notes that on 10 April 1997 the enforcement proceedings complained of had already been pending for over three years and two months.\n\n67. The Court reiterates that the “right to a court” would be illusory if a 's domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party. Execution of a judgment given by any court must therefore be regarded as an integral part of the “trial” for the purposes of Article 6. The State has an obligation under Article 6 to organise a system for the enforcement of judgments that is effective both in law and in practice and ensures their enforcement without undue delay (see Jankulovski v. the former Yugoslav Republic of Macedonia, no. 6906/03, §§ 33 and 37, 3 July 2008).\n\n68.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see Atanasovic and Others, cited above, § 33, which also concerned enforcement proceedings).\n\n69. In the present case, the Court observes that although the case was of some legal complexity, that factor alone cannot justify the length of the proceedings.\n\n70. It also considers that there were no delays attributable to the applicant. The latter cannot be held responsible for the procedural conduct of the debtor and public prosecutor (see Graberska v. the former Yugoslav Republic of Macedonia, no. 6924/03, § 61, 14 June 2007, and Stojanov v. the former Yugoslav Republic of Macedonia, no. 34215/02, § 57, 31 May 2007).\n\n71. As regards the conduct of the authorities, the Court notes that, during the period under consideration, the applicant's case was reconsidered on five occasions. The domestic courts cannot therefore be said to have been inactive. However, the Court notes that repetition of remittal orders within one set of proceedings discloses a serious deficiency in the judicial system (see Pavlyulynets v. Ukraine, no. 70767/01, § 51, 6 September 2005, and Wierciszewska v. Poland, no. 41431/98, § 46, 25 November 2003). The main reason for the numerous remittals was the different legal opinion of the domestic courts regarding legal matters indicated by the Government (see paragraph 60 above). It was those issues that affected the length of the enforcement proceedings.\n\n72.  Having examined all the material submitted to it, the Court considers that in the instant case the length of the enforcement proceedings was excessive and failed to meet the “reasonable time” requirement of Article 6 § 1 of the Convention.\n\n73.  There has accordingly been a breach of that provision.\n\nII.  ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 OF THE CONVENTION\n\n74. The applicant complained under Article 1 of Protocol No. 1 that she had been prevented from obtaining payment of the undertaking's debt, although she had been its last sole proprietor. Article 1 of Protocol No. 1 reads as follows:\n\n“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.\n\nThe preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”\n\n1.  The parties' submissions\n\n75. The applicant maintained that she had a possession within the meaning of the provision relied on. She stated that the undertaking should not be regarded as a legal entity, but as a physical person whose business activities had been registered with the authorised Ministry. Indeed, its proprietors were personally liable for the undertaking's debts and obligations vis-à-vis third parties. She further submitted that the public prosecutor's interference in the proceedings had not been in the public interest for the following reasons: he had been biased; he had represented the private interests of only one of the parties concerned; and the substantive law had been incorrectly applied.\n\n76. The Government submitted that contrary to the undertaking's claim, which could have fallen within the ambit of Article 1 of Protocol No. 1, the applicant could not be considered to have had a “possession” within the meaning of this Article, since she had failed to establish that the undertaking's claim had been transferred to her. They averred that the applicant had not been granted the status of a creditor by an irreversible decision. Although she had been established as a creditor by three final decisions of the Court of Appeal, the latter had been reviewed by the Supreme Court, which, in accordance with the principle of legality, had upheld the prosecutor's legality review requests.\n\n77. They further stated that the applicant, even assuming that she might have been regarded as having had a “possession” under this provision, had been deprived of it in the public interest and in accordance with the conditions provided for by law. The alleged deprivation was based on the public prosecutor's legality review request, an extraordinary remedy aimed at ensuring the uniformity of the legal system and the principle of legality. Furthermore, the State had, through that remedy, exercised its power of review in cases where a law or an international agreement had been infringed by a final court decision.\n\n2.  The Court's assessment\n\n(a) Whether there was a possession\n\n78.  The Court of Appeal, by its decision of 6 September 2001, conferred on the applicant an enforceable claim by establishing that the undertaking's capacity was vested solely in her. This decision became final as no ordinary appeal lay against it (see paragraphs 48 and 49 above). That claim may be regarded as a “possession” for the purposes of Article 1 of Protocol No. 1 (see Stran Greek Refineries and Stratis Andreadis v. Greece, judgment of 9 December 1994, Series A no. 301-B, p. 84, § 59; Burdov v. Russia, no. 59498/00, § 40, ECHR 2002III; Roşca v. Moldova, no. 6267/02, § 31, 22 March 2005; and Ryabykh v. , no. 52854/99, § 61, ECHR 2003IX).\n\n(b) Whether there was interference\n\n79. It is the established jurisprudence of this Court that the quashing of a final and binding judgment that conferred a “possession” on the applicant constitutes an interference with the applicant's right to that property (see Tregubenko v. Ukraine, no. 61333/00, § 51, 2 November 2004, and Brumărescu v.  [GC], no. 28342/95, § 74, ECHR 1999VII). The Court sees no reason to depart from this approach in the present case.\n\n(c) Whether the interference was justified\n\n80.  The Court recalls that the Preamble to the Convention declares, among other things, the rule of law to be part of the common heritage of the Contracting States (see Brumărescu, cited above, § 61).\n\n81. As to Article 1 of Protocol No. 1, the Court has established that a deprivation of property can only be justified if it is shown, inter alia, to be “in the public interest” and “subject to the conditions provided for by law”. Moreover, any interference with property must also satisfy the requirement of proportionality. The requisite balance will not be struck where the person concerned bears an “individual and excessive burden” (see Tregubenko, cited above, § 53).\n\n82. In the present case, the Court notes that the State's interference with the applicant's property rights was made by the Supreme Court's decision of 30 May 2002. This decision was given upon the public prosecutor's legality review request under the then applicable rules of civil proceedings (see paragraphs 52-58 above). The interference was made pursuant to a remedy requested by a State organ, which was not a party to the proceedings (see Roseltrans v. Russia, no. 60974/00, §§ 13 and 27, 21 July 2005). In addition, the public prosecutor had full discretion in deciding whether to lodge the legality review request with the Supreme Court (see Lepojić v. Serbia, no. 13909/05, § 54, 6 November 2007, and Dimitrovska v. the  (dec.), no. 21466/03, 30 September 2008). For these reasons, the Court considers that legal effects of the legality review proceedings under the 1998 Act – the quashing by the Supreme Court of the decision of 6 September 2001 - were comparable to those of the supervisory review system existing in some Contracting States, since the Supreme Court set at naught an entire judicial process which had ended in a judicial decision that was “irreversible” and thus res judicata (see Brumărescu, cited above, § 62; Roşca v. Moldova, no. 6267/02, § 27, 22 March 2005; Svetlana Naumenko v. Ukraine, no. 41984/98, § 92, 9 November 2004 and Ryabykh v. , no. 52854/99, § 53, ECHR 2003IX).\n\n83.  The Court finds that the quashing of the decision of 6 September 2001 was not compatible with the rule of law, which is inherent in all Articles of the Convention (see, a contrario, Protsenko v. Russia, no. 13151/04, § 33, 31 July 2008, in which the Court found that the failure to take into account the interests of third persons whose rights were considerably affected by the final decision was a legitimate ground for reopening the proceedings upon a supervisory review request)..\n\n84.  Having regard to the above considerations, the Court considers that the “fair balance” was upset by the situation brought about by the Supreme Court's decision and that the applicant bore an individual and excessive burden. There has accordingly been a violation of Article 1 of Protocol No. 1.\n\nIII. APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n85.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n86.  The applicant claimed MKD 21,774,593 with statutory interest from 11 October 1994 until the settlement in respect of pecuniary damage sustained under Article 1 of Protocol No. 1. This figure refers to the amount specified in the 1994 settlement (see paragraph 13 above). The applicant also claimed 1,000,000 euros (EUR) for living costs due to “destroyed business and lost jobs”. She alleged that the debtor had been declared insolvent and that she could not recover her claim. Lastly, she claimed EUR 30,000 in respect of non-pecuniary damage for anxiety and emotional suffering sustained as a consequence of the excessive length of proceedings.\n\n87.  The Government contested these claims as unsubstantiated. As regards the pecuniary damage they stated that: a) there was no ground for awarding the amount established in the 1994 settlement, given the last decision of the Supreme Court dismissing the applicant's claim and b) there was no causal link between the alleged violations and the “living costs” claimed.\n\n88.  Concerning the pecuniary damage sought under Article 1 of Protocol No. 1, the Court observes that the applicant did not present any evidence that the debtor, at the time when the Supreme Court rendered its decision, had been State-controlled, which would entail direct State liability for the judgment debt created by the Court of Appeal's decision of 6 September 2001. Furthermore, from the case-file, as it stands, the Court cannot establish as to whether, at the same point in time, the debtor had sufficient assets to comply with the 1994 settlement. In this connection, the Court notes that no evidence has been presented as to whether or when the debtor was declared insolvent or how any such insolvency affected the applicant's ability to recover the debt. In these circumstances, the Court finds no causal link between the pecuniary damage claimed and the violation found. It therefore rejects the applicant's claim for the amount specified in the 1994 settlement. For the same reasons, it also rejects the applicant's claim that interest be paid on this amount.\n\n89.  The Court further notes that the applicant did not provide any evidence that would enable it to determine whether and to what extent the violations found had any negative impact on the applicant's standard of living, as alleged: it therefore rejects this claim.\n\n90. Lastly, the Court accepts that the applicant has suffered some non-pecuniary damage which would not be sufficiently compensated by the finding of the violations alone (see, mutatis mutandis, Teltronic-CATV v. Poland, no. 48140/99, § 70, 10 January 2006). Making its assessment on an equitable basis and having regard to the circumstances of the case, the Court awards the applicant EUR 1,600 under this head.\n\nB.  Costs and expenses\n\n91.  The applicant claimed MKD 2,334,100 (approximately EUR 38,100) plus interest from 30 May 2002 until settlement for the costs and expenses incurred before the domestic courts. These included the courts' and legal fees. The applicant provided an itemised list of costs. No evidence was provided as regards court fees. Lastly, she claimed EUR 5,000 for the costs and expenses incurred in the proceedings before the Court. No document was submitted in support of this latter claim.\n\n92.  The Government contested these claims as unsubstantiated.\n\n93.  According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see Editions Plon v. France, no. 58148/00, § 64, ECHR 2004-IV). The Court points out that under Rule 60 of the Rules of Court “the applicant must submit itemised particulars of all claims, together with any relevant supporting documents failing which the Chamber may reject the claim in whole or in part” (see Parizov v. the former Yugoslav Republic of Macedonia, no. 14258/03, § 71, 7 February 2008).\n\n94. Having regard to the fee note submitted by the applicant, the Court finds that only EUR 1,000 related to lawyer's fees which post-dated the ratification of the Convention by the respondent State and were expended with a view to seek prevention before the national courts of the violations found by the Court (see, mutatis mutandis, Stoimenov v. the former Yugoslav Republic of Macedonia, no. 17995/02, § 56, 5 April 2007).\n\n95.  In these circumstances, the Court is unable to award the totality of the sums claimed in respect of the costs and expenses incurred in the domestic proceedings. It considers that the applicant is entitled to be reimbursed under this head the sum of EUR 1,000, plus any tax that may be chargeable to her.\n\n96.  Lastly, the Court notes that the applicant did not submit any supporting documents or particulars in respect of her claim for the costs and expenses incurred in the proceedings before it. Accordingly, it does not award any sum under this head (see Parizov, cited above, § 72).\n\nC.  Default interest\n\n97.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Holds that there has been a violation of Articles 6 § 1 of the Convention as regards the length of the proceedings in question;\n\n2.  Holds that there has been a violation of Article 1 of Protocol No. 1;\n\n3.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the national currency of the respondent State, at the rate applicable at the date of settlement:\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n4. Dismisses unanimously the remainder of the applicant's claim for just satisfaction.\n\nDone in English, and notified in writing on 17 September 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_669","text":"PROCEDURE\n\n1.  The case originated in an application (no. 22519/02) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by fifty-eight Russian national listed in appendix 1 on 20 November 2001.\n\n2.  The Russian Government (“the Government”) were represented by Mr P. Laptev, Representative of the  at the European Court of Human Rights.\n\n3.  On 7 October 2003 the Court decided to communicate the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n4.  The applicants live in the Voronezh Region.\n\n5.  They are in receipt of welfare payments for their children. In 1999 – 2001 the applicants brought separate sets of civil proceedings against a local welfare authority, claiming arrears in those payments.\n\n6.  On the dates set out in appendix 1 the domestic courts granted the applicants’ claims and ordered the welfare authority to pay them the respective amounts. The enforcement proceedings were commenced accordingly.\n\n7.  On 26 July 2001 the bailiffs discontinued the enforcement proceedings in respect of the judgments in the applicants’ favour and returned them the writs of execution referring to the lack of the debtor’s funds.\n\n8.  Thereafter the applicants unsuccessfully applied to various public bodies seeking to have the judgments in their favour enforced.\n\n9.  In January and February 2004 the applicants were paid the amounts due pursuant to the writs of execution.\n\nII.  RELEVANT DOMESTIC LAW\n\n10.  Section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997 provides that a bailiff’s order on the institution of enforcement proceedings must fix a time-limit for the defendant’s voluntary compliance with a writ of execution. The time-limit may not exceed five days. The bailiff must also warn the defendant that coercive action will follow, should the defendant fail to comply with the time-limit.\n\n11.  Under Section 13 of the Law, the enforcement proceedings should be completed within two months of the receipt of the writ of enforcement by the bailiff.\n\nTHE LAW\n\nI.  WITHDRAWAL OF THIRTEEN APPLICANTS\n\n12.  On 20 February and 19 March 2004 the Government informed the Court that thirteen of the applicants, namely Ms Lyudmila Ilyinichna Borzykh, Ms Larisa Ivanovna Vysotskaya, Ms Larisa Ivanovna Danilova, Ms Olga Mitrofanovna Kontsova, Ms Lyudmila Dmitriyevna Kryuchkova, Ms Nina Leonidovna Kuznetsova, Mr Nikolay Anatolyevich Popov, Ms Svetlana Alekseyevna Trofimova, Ms Yelena Federovna Khlopova, Ms Valentina Ivanovna Chernyshova, Ms Natalya Yuryevna Chernyshova, Ms Natalya Aleksandrovna Chusova and Ms Nina Anatolyevna Shaderkina, had accepted an offer in settlement of their application and invited the Court, in so far as the complaints of the respective applicants were concerned, to strike the application out of its list of cases under Article 37 § 1 (a) and (b) of the Convention. The Government enclosed copies of friendly settlement agreements dated 11 and 12 February as well as 12 and 15 March 2004 signed by an official representing the Government and the applicants. Under these agreements the Government undertook to pay the judgment debts and compensation in respect of non-pecuniary damage and legal costs to the applicants, while the latter declared that they did not intend to pursue the proceedings before the Court.\n\n13.  By registered letters of 2 September 2005 the Court transmitted copies of the above agreements to the applicants and invited them to affirm formally, before 7 October 2005, that they had accepted the settlement in question and that, therefore, they did not intend to pursue their application. On 3 October 2005 Mr Nikolay Anatolyevich Popov confirmed that he was satisfied with the terms of the friendly settlement agreement and did not insist on the Court’s examining his complaints. None of the other twelve applicants replied.\n\n14.  Taking into account the declarations of the aforementioned thirteen applicants, the formal affirmation by Mr Nikolay Anatolyevich Popov, and the fact that the remaining twelve applicants did not submit any comments regarding the friendly settlement, the Court finds that the matter has been resolved and the respective applicants have lost interest in pursuing their application. It finds no reasons of a general character, as defined in Article 37 § 1 in fine, which would require the examination of the application by virtue of that Article. Accordingly, in so far as the complaints of the thirteen applicants listed above are concerned, the Court strikes the application out of its list, in accordance with Article 37 § 1 of the Convention (see Tikhomirov and Tikhomirova v. Russia (dec.), no. 43172/98, 21 March 2002).\n\nII.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION\n\n15.  The remaining applicants complained about the prolonged non-enforcement of the judgments in their favour. The Court will examine this complaint under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention. These Articles, in so far as relevant, read as follows:\n\nArticle 6 § 1\n\n“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”\n\nArticle 1 of Protocol No. 1\n\n“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.\n\nThe preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”\n\nA.  Admissibility\n\n16.  The Government notified the Court that the authorities of the Voronezh Region had attempted to secure a friendly settlement of the case and that the applicants had refused to accept the friendly settlement on the terms proposed by the authorities. By reference to this refusal, the fact that, in any event, the judgments in the applicants’ favour had been enforced, and the admissibility decision in the case of Aleksentseva and Others v. Russia (no. 75025/01 et seq., 4 September 2003) the Government invited the Court to strike out the application, in accordance with Article 37 § 1 of the Convention.\n\n17.  The applicants disagreed with the Government’s arguments and maintained their complaints. As regards the friendly settlement proposal, the applicants submitted that the terms of the offer which authorities of the Voronezh Region had made to them had been unacceptable.\n\n18.  The Court firstly observes that the parties were unable to agree on the terms of a friendly settlement of the case. It notes that whilst under certain circumstances an application may indeed be struck out of its list of cases under Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration by the respondent Government even if the applicant wishes the examination of the case to be continued (see Tahsin Acar v. Turkey [GC], no. 26307/95, § 76, ECHR 2003...), this procedure is not, as such, intended to circumvent the applicant’s opposition to a friendly settlement.\n\n19.  Moreover, a distinction must be drawn between, on one hand, declarations made in the context of strictly confidential friendly settlement proceedings (Article 38 § 2 of the Convention and Rule 62 § 2 of the Rules of Court) and, on the other hand, unilateral declarations made by a respondent Government in public and adversarial proceedings before the Court.\n\n20.  On the facts, the Court observes that the Government failed to submit any formal statement capable of falling into that category and offering a sufficient basis for finding that respect for human rights as defined in the Convention does not require the Court to continue its examination of the case (see, by contrast, Akman v.  (striking out), no. 37453/97, §§ 23-24, ECHR 2001VI).\n\n21.  As regards the Government’s argument that the judgments in question have already been enforced, the Court considers that the mere fact that the authorities complied with the judgments after a substantial delay cannot be viewed in this case as automatically depriving the applicants of their victim status under the Convention. (see, e.g., Petrushko v. Russia, no. 36494/02, § 16, 24 February 2005).\n\n22.  In the light of the above considerations, the Court rejects the Government’s request to strike the application out under Article 37 of the Convention.\n\n23.  The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n24.  The Government advanced no arguments on the merits of the application.\n\n25.  The applicants maintained their complaint.\n\n26.  The Court observes that the judgments in the applicants’ favour remained inoperative for several years. No justification was advanced by the Government for the respective delays.\n\n27.  The Court has frequently found violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in cases raising issues similar to the ones in the present case (see, among other authorities, Burdov v. Russia, no. 59498/00, ECHR 2002-III and, more recently, Petrushko, cited above, or Poznakhirina v. Russia, no. 25964/02, 24 February 2005).\n\n28.  Having examined the material submitted to it, the Court notes that the Government did not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court finds that by failing for years to comply with the enforceable judgments in the applicants’ favour the domestic authorities prevented them from receiving the money they could reasonably have expected to receive.\n\n29.  There has accordingly been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.\n\nIII.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION\n\n30.  The applicants also complained that the lengthy non-enforcement of the judgments in their favour violated their rights to effective domestic remedies under Article 13 of the Convention.\n\n31.  The Court considers that this complaint is linked to the above issues of non-enforcement to such an extent that it should be declared admissible as well. However, having regard to the finding relating to Article 6 § 1 (see paragraph 29 above), the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Article 13.\n\nIV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n32.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n33.  The applicants claimed amounts set out in appendix 2 for pecuniary and non-pecuniary damage. The respective amounts included the judgment debts index-linked to the inflation rate of 50 % for the default period as well as penalty payments at a rate of 1 % per day.\n\n34.  The Government contested the applicants’ claims as wholly excessive and unjustified. As regards the pecuniary damage, they pointed out that under national law it was open to the applicants to file a court claim, seeking interest for the delayed payment of their judgment debts, and that the domestic courts would calculate such interest on the basis of a statutory rate which was currently equal to 14 %. Therefore, in the Government’s view, the interest accrued by the applicants should amount to 52 % of their judgment debts. As to the non-pecuniary damage, the Government considered that should the Court find a violation in this case that would in itself constitute sufficient just satisfaction.\n\n35.  Having regard to the materials in its possession, the Court accepts the Government’s argument and awards the applicants the respective amounts set out in appendix 2, plus any tax that may be chargeable.\n\n36.  In so far as the compensation of non-pecuniary damage is concerned, the Court would not exclude that the applicants might have suffered distress and frustration resulting from the State authorities’ failure to enforce the judgment in their favour. However, making its assessment on an equitable basis, the Court considers that the finding of a violation constitutes in itself sufficient just satisfaction for any nonpecuniary damage sustained by the applicants (see, in a similar context, Poznakhirina, cited above, § 35, Mikhaylova and others v. Russia, no. 22534/02, § 41, 17 November 2005, or Bobrova v. Russia, no. 24654/03, § 37, 17 November 2005).\n\nB.  Costs and expenses\n\n37.  The applicants did not claim reimbursement of their costs and expenses incurred before the domestic authorities and the Court. Accordingly, the Court considers that there is no call to award them any sum on that account.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Decides to strike the application out of its list in so far as the complaints of Ms Lyudmila Ilyinichna Borzykh, Ms Larisa Ivanovna Vysotskaya, Ms Larisa Ivanovna Danilova, Ms Olga Mitrofanovna Kontsova, Ms Lyudmila Dmitriyevna Kryuchkova, Ms Nina Leonidovna Kuznetsova, Mr Nikolay Anatolyevich Popov, Ms Svetlana Alekseyevna Trofimova, Ms Yelena Federovna Khlopova, Ms Valentina Ivanovna Chernyshova, Ms Natalya Yuryevna Chernyshova, Ms Natalya Aleksandrovna Chusova and Ms Nina Anatolyevna Shaderkina are concerned;\n\n2.  Declares the application admissible in so far as the complaints of the remaining applicants are concerned;\n\n3.  Holds that there has been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention;\n\n4.  Holds that there is no need to examine the complaint under Article 13 of the Convention;\n\n5.  Holds\n\n(a)  that the respondent State is to pay each of the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the respective amounts set out in appendix 2 in respect of pecuniary damage, plus any tax that may be chargeable;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n6.  Holds that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicants;\n\n7.  Dismisses the remainder of the applicants’ claim for just satisfaction.\n\nDone in English, and notified in writing on 13 April 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.\n\nAPPENDIX 1\n\ntable-0\n\nAPPENDIX 2\n\ntable-1","title":""}
{"_id":"passage_336","text":"PROCEDURE\n\n1.  The case originated in nine applications (nos. 70945/11, 23611/12, 26998/12, 41150/12, 41155/12, 41463/12, 41553/12, 54977/12 and 56581/12) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by various religious communities active in Hungary, and their ministers and members (see Annex), on 16 November 2011, 3 and 24 April, 25 and 28 June, and 19 and 29 August 2012, respectively. Given that the applications raised the same issue in essence, the Court decided to join them in accordance with Rule 42 § 1 of the Rules of Court.\n\n2.  In a judgment delivered on 8 April 2014 (“the principal judgment”), the Court declared application no. 41463/12 inadmissible and held, as regards the remaining applications, that in removing the applicants’ church status altogether rather than applying less stringent measures, in establishing a politically tainted re-registration procedure and in treating the applicants differently from the so-called incorporated churches in certain aspects, the authorities disregarded their duty of neutrality vis-à-vis the applicant communities. The Court found a violation of Article 11 of the Convention read in the light of Article 9 (see Magyar Keresztény Mennonita Egyház and Others v. Hungary, nos. 70945/11, 23611/12, 26998/12, 41150/12, 41155/12, 41463/12, 41553/12, 54977/12 and 56581/12, ECHR 2014 (extracts)).\n\n3.  Under Article 41 of the Convention the applicants sought just satisfaction in regard to the pecuniary damage sustained, corresponding in essence to tax donations and State subsidies lost or expected to be lost in the future, as well as non-pecuniary damage and the costs and expenses incurred before the Court.\n\n4.  The Court held that, as regards the claims in respect of non-pecuniary damage made by Mr Izsák-Bács (in application no. 70945/11), Mr Soós (in application no. 23611/12), Mr Görbicz (in application no. 26998/12), Mr Guba (in application no. 41150/12) and Ms Bruck (in application no. 41155/12), the finding of a violation constituted sufficient just satisfaction. However, it also considered that the remaining questions as to the application of Article 41 were not ready for decision, especially in view of the complex array of material advantages which the applicants claimed to have lost. The Court thus reserved that matter and invited the Government and the applicants to submit, within six months from the date on which the judgment became final, their written observations on that issue and, in particular, to notify the Court of any agreement they might reach (see paragraph 132, and point 11 of the operative provisions, of the principal judgment).\n\n5.  On 8 September 2014 the panel of the Grand Chamber declined to accept a referral request from the respondent Government. Accordingly, the principal judgment became final on that date.\n\n6.  On 5 March 2015 the Government requested an extension of the time-limit to reach an agreement on the applicants’ claims for just satisfaction. In view of the reasonable prospects of reaching a settlement, the President of the Chamber decided to extend the time-limit until 15 May 2015.\n\n7.  On 15 May 2015 the Government notified the Court about an agreement concluded with six of the applicants, notably Magyar Keresztény Mennonita Egyház in application no. 70945/11, Evangéliumi Szolnoki Gyülekezet Egyház in application no. 23611/12, Budapesti Autonóm Gyülekezet in application no. 26998/12, Árpád Rendjének Jogalapja Tradicionális Egyház and Fény Gyermekei Magyar Esszénus Egyház in application no. 41553/12, and Magyarországi Biblia Szól Egyház in application 56581/12. These applicants also confirmed the conclusion of the agreements and waived any further claims against Hungary in respect of the facts giving rise to their applications.\n\n8.  On the same date the Government further submitted that settlement negotiations were still pending, with a view to concluding partial agreements, with Szim Shalom Egyház in application no. 41150/12, Magyar Reform Zsidó Hitközségek Szövetsége Egyház in application no. 41155/12, Dharmaling Magyarország Buddhista Egyház in application no. 41553/12 and Magyarországi Evangéliumi Testvérközösség in application no. 54977/12.\n\n9.  On 23 July 2015 Út és Erény Közössége Egyház (one of the applicants in application no. 41553/12) informed the Court that it had changed lawyer and was thereafter represented by Mr T. Perecz, a lawyer practising in Budapest.\n\n10.  On 28 July 2015 the Government informed the Court about the conclusion of partial agreements with three applicants out of those four mentioned in paragraph 8 above, notably Szim Shalom Egyház in application no. 41150/12, Magyar Reform Zsidó Hitközségek Szövetsége Egyház in application no. 41155/12, and Magyarországi Evangéliumi Testvérközösség in application no. 54977/12.\n\nIn respect of the latter applicant, the agreement contains the following passage:\n\n“8.  The parties note that they could not reach an agreement concerning the legal basis and the amount of the damage allegedly caused by the lack of access to grants obtainable from the State budget, European Union sources or internationally financed programmes via individually appraised calls for project proposals.\n\n9.  The parties agree to continue until 31 December 2015 their negotiations in good faith concerning the reparation of the breach found by the [Court’s] judgment. For the reparation of damage occurring between 1 January 2015 and the date of the dispute’s resolution, they shall follow the principles laid down in the present agreement [concerning the damage occurred in the 2012-2014 period].\n\n10.  The parties shall inform the [Court] that, in the light of point 8 above, their agreement is to be considered a partial one, covering the damage which occurred until 31 December 2014.”\n\nIn regard to Szim Shalom Egyház and Magyar Reform Zsidó Hitközségek Szövetsége Egyház, the respective agreements contain the following passage:\n\n“The applicant accepts the Government’s proposal and declares that it no longer maintains any claim against the Hungarian State in respect of damage sustained until 31 December 2014 concerning the matters covered by the agreement, notably the loss of 1 per cent personal income tax donations and the corresponding supplementary State subsidy, the legal costs and expenses, the default interest and the non-pecuniary damage. In these respects, the applicant considers that the Government fulfilled its obligation, flowing from the judgment of the [Court], to provide just satisfaction.”\n\n11.  As regards the remaining just satisfaction claims, the applicants and the Government each filed observations.\n\n12.  On 4 and 18 May 2016 the Government and Magyarországi Evangéliumi Testvérközösség, respectively, informed the Court of their continuing negotiations with a view to an agreement that would cover the period following 31 December 2014.\n\n13.  The Court finds it appropriate to reserve the questions related to the claims of Magyarországi Evangéliumi Testvérközösség and to adopt, at the same time, a partial judgment concerning the remaining applicants.\n\nTHE LAW\n\n14.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Pecuniary and non-pecuniary damage\n\n1.  The parties’ submissions\n\n15.  Subsequently to the agreements mentioned in paragraphs 7 and 10 above, and excluding Magyarországi Evangéliumi Testvérközösség (see paragraphs 12 and 13 above), only the applicants listed below maintained certain claims in respect of pecuniary and non-pecuniary damage, as follows.\n\n16.  Szim Shalom Egyház submitted that in 1998 and 2000 the Hungarian State and the umbrella organisation of Jewish religious communities in Hungary (Magyarországi Zsidó Hitközségek Szövetsége [MAZSIHISZ], Alliance of Hungarian Jewish Communities) concluded agreements with a view to compensating Jewish communities for the losses they had suffered during the Holocaust and the Communist era – with special regard to loss of real estate property – and to subsidise their activities. The compensation scheme was based on the legislation referred to in paragraph 33 of the principal judgment, notably on section 3 of the Church Funding Act which provides as follows:\n\n“Any pecuniary claim related to real estate properties that fall under the scope of Act no. XXXII of 1991 on settling the ownership of former church properties and whose restitution was not claimed in rem by the incorporated church ... may be transformed into the source of an annuity, which can be used to finance the religious and public-interest activities of the church. The disbursement of the annuity shall last until the incorporated church ceases to exist without legal successor.”\n\n17.  This applicant explained that on 31 January 2012 MAZSIHISZ and two other incorporated Jewish religious communities concluded another agreement, according to which MAZSIHISZ subrogated a substantial part of its annuity entitlement to those churches. The amount of the annuity was to be adjusted each year according to inflation. Paragraph 15 of the agreement stipulated that “if Hungarian Parliament recognises further Jewish organisations as churches”, MAZSIHISZ and the other two Jewish incorporated communities would conclude a separate agreement, in order to provide those newly recognised churches with the necessary financial sources. The agreement was acknowledged by a Government decision (1120/2012. (IV. 21.) Korm. határozat) enabling the State Treasury to disburse the annuity as agreed between the parties.\n\n18.  The Jewish religious communities conducted negotiations to secure the applicant’s participation in the annuity scheme and a redistribution plan had already been drafted by the time when the 2011 Church Act deprived the applicant of its church status. Had it not been so, the applicant would have been allegedly entitled to a share in the annuity.\n\n19.  Based on that draft distribution agreement, the applicant claimed, for the years 2012 to 2014, a total sum of 148,156,298 Hungarian forints (HUF), approximately 487,000 euros (EUR).\n\nIt further claimed interests at a rate equal to the double of the marginal lending rate of the Hungarian National Bank for the period between the end of the relevant years, respectively, and the date of the delivery of the Court’s judgment. According to the applicant’s calculations, those interests amounted, as of 15 September 2015, to HUF 11,611,172 (EUR 37,500).\n\nIn sum, the applicant claimed HUF 159,767,470 (EUR 524,500) in respect of pecuniary damage.\n\n20.  Magyar Reform Zsidó Hitközségek Szövetsége Egyház, with a reasoning similar to that of Szim Shalom Egyház, claimed HUF 72,116,864 (EUR 232,600) in respect of the loss of expected share in the compensation annuity, as well as HUF 5,651,878 (EUR 18,200) in interests, amounting to a total sum of HUF 77,768,742 (EUR 250,800).\n\n21.  ANKH Az Örök Élet Egyháza (in application no. 41553/12) claimed EUR 118,000 in respect of loss of personal income tax donations and the corresponding supplementary State subsidy (see paragraph 25, fourth sentence, as well as section 4 of the Church Funding Act cited in paragraph 33 of the principal judgment).\n\n22.  It further claimed HUF 265,000,000 (EUR 883,000) in respect of loss of regular offerings from believers as well as from external persons; HUF 13,000,000 (EUR 43,000) for loss of State subsidies; HUF 10,000,000 (EUR 33,000) for its exclusion from religious teaching and religious activities in prisons and in the army, resulting in the loss of prospective believers; HUF 6,500,000 (EUR 21,000) in respect of grants it could have allegedly obtained via different calls for project proposals had it not been for the loss of its church status; HUF 24,500,000 (EUR 82,000) in respect of loss of expected gain from various public events as well as the marketing of religious objects and printed material; HUF 8,100,000 (EUR 27,000) in respect of loss of income from various immovable properties; HUF 5,000,000 (EUR 17,000) for the frustration of the purchase of a share in a real property; HUF 240,000,000 (EUR 800,000) in respect of depreciation of a land plot due to the failure of its re-qualification as non-agricultural territory; HUF 10,000,000 (EUR 33,000) for frustration of contract opportunities; HUF 1,000,000 (EUR 3,000) for the costs of software development; HUF 16,000,000 (EUR 53,000) for the material degradation of its properties due to the lack of resources for guarding and protection; and HUF 4,000,000 (EUR 13,000) for the increased administrative costs.\n\n23.  The applicant further contended that the 2011 Church Act entailed the frustration of the activity of certain specific religious institutions functioning within its framework. Notably, its “Cosmic Vitality Clinic” where the applicant’s main spiritual healer had been serving, had to close down because the healer moved abroad. This allegedly caused a damage of HUF 50,000 (EUR 170) per working days, and a further HUF 4,000,000 (EUR 13,000) resulting from the futility of investments in the Clinic. The entities called “Horus of Malta Spiritual Order”, “Isis of Malta Charity” and “ANKH Foundation for the Security”, all attached to the applicant, also ceased their activity due to the 2011 Church Act. The damage relating to the former two entities amounted, respectively, to 20 and 10 per cent of the total damage otherwise sustained by the applicant, while the collapse of the latter one allegedly caused a damage of HUF 2,000,000 (EUR 7,000).\n\n24.  In respect of non-pecuniary damage, the applicant claimed EUR 500,000 plus a per capita compensation for the non-pecuniary damage suffered by its believers individually. In the latter respect, the applicant calculated with 10,000 believers and requested the Court to set the per capita amount at its discretion.\n\n25.  Dharmaling Magyarország Buddhista Egyház claimed HUF 39,349,918 in respect of loss of personal income tax donations and the corresponding supplementary State subsidy plus accrued interests in the amount of HUF 2,793,516. In total, the applicant claimed HUF 42,143,434 (EUR 141,260) in respect of pecuniary damage.\n\n26.  The applicant further claimed EUR 100,000 in respect of non-pecuniary damage.\n\n27.  Mantra Magyarországi Buddhista Egyháza (in application no. 41553/12) claimed HUF 171,873,224 (EUR 573,000) in respect of loss of personal income tax donations and the corresponding supplementary State subsidy. It further claimed HUF 24,000,000 (EUR 80,000) for the loss of opportunity to participate in various calls for project proposals; HUF 5,650,000 (EUR 19,000) for the loss of expected gain from religious events as well as from the marketing of religious objects and printed material; HUF 7,455,000 (EUR 25,000) for the loss of regular offerings from believers and external persons; and HUF 1,852,302 (EUR 6,000) for costs of administrative tasks related to the modification of the applicant’s legal status. In total, with accrued interests, it claimed HUF 230,312,361 (EUR 768,000).\n\n28.  The applicant further claimed HUF 109,297,372 (EUR 365,000) in respect of non-pecuniary damage.\n\n29.  Szangye Menlai Gedün, a Gyógyító Buddha Közössége Egyház (in application no. 41553/12) claimed HUF 17,530,925 (EUR 58,000) in respect of loss of personal income tax donations and the supplementary State subsidy and HUF 2,611,680 (EUR 9,000) in respect of interests.\n\n30.  In respect of non-pecuniary damage it further claimed EUR 100,000.\n\n31.  Univerzum Egyháza (in application no. 41553/12) claimed HUF 28,481,942 (EUR 95,000) in respect of loss of personal income tax donations and the supplementary State subsidy.\n\n32.  It further claimed HUF 31,298,000 (EUR 100,000) in non-pecuniary damage.\n\n33.  Usui Szellemi Iskola Közösség Egyház (in application no. 41553/12) claimed HUF 54,000,000 (EUR 180,000) in respect of loss of personal income tax donations and the supplementary State subsidy; HUF 350,000,000 (EUR 1,167,000) on account of the decrease in the number of persons offering personal income tax donations; HUF 158,244,000 (EUR 527,000) for a “decrease” in the contributions collected for the community’s financing and, as a separate demand, HUF 400,000,000 (EUR 1,333,000) for a “drastic decrease” in the same income; HUF 294,800,000 (EUR 983,000) in respect of loss of State subsidies; as well as HUF 500,000,000 (EUR 1,667,000) for the closure of ten out of the applicant’s twelve venues for healing. In total, the applicant claimed HUF 1,757,044,000 (EUR 5,857,000) in respect of pecuniary damage.\n\n34.  In respect of non-pecuniary damage, the applicant claimed HUF 105,000,000 for the desertion of its spiritual teachers and monks; HUF 30,000,000 for the cancellation of pilgrimages and study visits; HUF 5,000,000 for medical damage; HUF 120,000,000 for the dispersal of twelve of its sub-communities; and HUF 30,000,000 for its disenfranchisement and tarnished reputation. In total under the head of non-pecuniary damage the applicant claimed HUF 290,000,000 (EUR 967,000).\n\n35.  Út és Erény Közössége Egyház (in application no. 41553/12) submitted that, prior to the removal of its church status, it had been involved in social activities at several places in Hungary, pursuing the teachings of Taoism. In particular, it maintained twelve centres providing different kinds of services for people in need, such as care for disabled persons and addicts, domiciliary help, social-care catering and child care. When it became clear that the applicant would no longer be entitled to State subsidies, it decided to transfer, as of 1 July 2011, its institutions and immovable property free of charge to the Hungarian Baptist Aid so as to ensure the maintenance of the services. In January 2013 the same institutions were transferred to the Hungarian Islamic Community.\n\n36.  The applicant claimed HUF 10,266,667 (EUR 34,000) in respect of loss of personal income tax donations; HUF 36,500,000 (EUR 122,000) for the decrease of donations coming from believers and benefactors; HUF 126,400,000 (EUR 421,000) in respect of the real property which it decided to cede under the pressure of circumstances; HUF 192,048,061 (EUR 640,000) in respect of grants it could have allegedly obtained via different calls for project proposals had it not been for the loss of its church status; HUF 1,249,297,313 (EUR 4,164,000) in respect of the usually unused part of the State subsidy for the operation of the applicant’s social institutions; HUF 1,620,250,825 (EUR 5,401,000) for the loss of contributions required from those benefiting from the applicant’s services; and HUF 4,064,000 (EUR 14,000) for legal costs related to the modification of the applicant’s legal status.\n\nIn total, the applicant claimed HUF 3,238,826,866 (EUR 10,796,000) in respect of pecuniary damage.\n\n37.  The applicant further claimed HUF 100,000,000 (EUR 333,000) in respect of non-pecuniary damage.\n\n38.  The applicant’s religious leader, Mr K. Szűcs also submitted a claim for HUF 50,000,000 (EUR 167,000) in respect of non-pecuniary damage personally suffered.\n\n39.  As regards the claim of the Jewish religious communities (see paragraphs 16 to 20 above), the Government argued that the relevant legislation did not prevent the communities concerned from amending their agreement of 31 January 2012 in order to extend the annuity scheme to the applicants. They underlined that the 2013 amendment of the 2011 Church Act entitled all types of religious communities to use the word “church” in their names (see paragraph 23 of the principal judgment). Accordingly, since the applicants were to be considered churches, they could have sought in justice the enforcement of the provision in paragraph 15 of the agreement concluded between the three incorporated Jewish religious communities. Instead, the applicants turned directly to the Court. In the Government’s view, there was therefore no basis for their claim to be granted, for want of the exhaustion of domestic legal avenues.\n\n40.  As regards the applicants with whom no partial agreement had been concluded, the Government submitted, on a general note, that it considered well-founded only the claims that concerned State subsidies intended to support faith-related activities, the supplementary State subsidies to public-interest tasks (social care and education) which were actually performed by the respective applicants, the costs incurred in the course of the domestic proceedings, as well as the default interest on those sums.\n\n41.  In respect of the claims for subsidies not granted to churches as substantive right but as a function of other conditions (in particular, grants obtainable via calls for project proposals or subsidies for public-interest services which were not actually provided or in respect of which they had not had an agreement with the State even before the entry into force of the 2011 Church Act) the Government did not find any causal link to be established.\n\n42.  In their submissions concerning the lost tax donations, the Government applied a calculation method based on the amount of the income tax donations in the last year when those donations had been validly registered by the Tax Authority for the respective applicants as well as the number of persons from whom those donations had been received. They then indexed that amount according to the general tendency of such donations among incorporated churches in the years following the entry into force of the 2011 Church Act and the amendment of the rules concerning the supplementary State subsidy. This calculation method was accepted by the nine applicants who reached a partial or full agreement on just satisfaction with the Government.\n\n43.  In application of those general considerations, the Government invited the Court to establish the amount of just satisfaction in respect of pecuniary damage as follows:\n\n(a)  ANKH Az Örök Élet Egyháza: EUR 23,000;\n\n(b)  Dharmaling Magyarország Buddhista Egyház: EUR 63,000;\n\n(c)  Mantra Magyarországi Buddhista Egyháza: EUR 100,000;\n\n(d)  Szangye Menlai Gedün, a Gyógyító Buddha Közössége Egyház: EUR 27,000;\n\n(e)  Univerzum Egyháza: EUR 38,000;\n\n(f)  Usui Szellemi Iskola Közösség Egyház: EUR 73,000;\n\n(g)  Út és Erény Közössége Egyház: EUR 26,000.\n\n44.  In respect of non-pecuniary damage, the Government accepted part of the applicants’ claims as follows:\n\n(a)  for ANKH Az Örök Élet Egyháza: EUR 13,000;\n\n(b)  for Dharmaling Magyarország Buddhista Egyház: EUR 7,100;\n\n(c)  for Mantra Magyarországi Buddhista Egyháza: EUR 6,100;\n\n(d)  for Szangye Menlai Gedün, a Gyógyító Buddha Közössége Egyház: EUR 20,400;\n\n(e)  for Univerzum Egyháza: EUR 15,300;\n\n(f)  for Usui Szellemi Iskola Közösség Egyház: EUR 5,600;\n\n(g)  for Út és Erény Közössége Egyház: EUR 6,600;\n\n(h)  for Mr Szűcs: none.\n\n2.  The Court’s assessment\n\n45.  The Court reiterates that a judgment in which it finds a breach imposes on the respondent State a legal obligation to put an end to the breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach. The Contracting States that are parties to a case are in principle free to choose the means whereby they will comply with a judgment in which the Court has found a breach. This discretion as to the manner of execution of a judgment reflects the freedom of choice attaching to the primary obligation of the Contracting States under the Convention to secure the rights and freedoms guaranteed (Article 1). If the nature of the breach allows of restitutio in integrum, it is for the respondent State to effect it, the Court having neither the power nor the practical possibility of doing so itself. If, on the other hand, national law does not allow – or allows only partial – reparation to be made, Article 41 empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate (see, among many authorities, Papamichalopoulos and Others v. Greece (Article 50), 31 October 1995, § 34, Series A no. 330B; Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, §§ 3233, ECHR 2000XI; and Kurić and Others v. Slovenia (just satisfaction) [GC], no. 26828/06, § 80, ECHR 2014).\n\n46.  There must be a clear causal connection between the damage claimed by the applicants and the violation of the Convention. In appropriate cases, this may include compensation in respect of loss of earnings (see, among other authorities, Barberà, Messegué and Jabardo v. Spain (Article 50), 13 June 1994, § 16-20, Series A no. 285C; and Kurić, cited above, § 81).\n\n47.  A precise calculation of the sums necessary to make complete reparation (restitutio in integrum) in respect of the pecuniary losses suffered by the applicants may be prevented by the inherently uncertain character of the damage flowing from the violation. An award may still be made notwithstanding the large number of imponderables involved in the assessment of future losses, though the greater the lapse of time involved, the more uncertain the link becomes between the breach and the damage. The question to be decided in such cases is the level of just satisfaction, in respect of both past and future pecuniary losses, which it is necessary to award each applicant, the matter to be determined by the Court at its discretion, having regard to what is equitable (see, mutatis mutandis, The Sunday Times v. the United Kingdom (no. 1) (Article 50), 6 November 1980, § 15, Series A no. 38; and Kurić, cited above, § 82).\n\n48.  The Court further notes that where a loss of earnings (lucrum cessans) is alleged, it must be conclusively established and must not be based on mere conjecture or probability (see Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 219, ECHR 2012).\n\n49.  The Court notes at the outset that on 10 November 2015 members of the Fidesz-KDNP governing coalition submitted a bill with a view to amending the 2011 Church Act. However, the bill was rejected by Parliament on 15 December 2015. As a result, the applicants’ situation has remained unchanged since the principal judgment was delivered.\n\n50.  Apart from Szim Shalom Egyház and Magyar Reform Zsidó Hitközségek Szövetsége Egyház (and excluding Magyarországi Evangéliumi Testvérközösség), all other applicants submitted claims in respect of the loss of personal income tax donations, the corresponding supplementary State subsidy and default interests.\n\n51.  The Government accepted those claims in principle and challenged only the applicants’ calculation of the respective amounts due.\n\n52.  In view of the Government’s position, the Court accepts that the applicants sustained some pecuniary damage in this connection.\n\n53.  The Court observes that the Government proposed compensation for the damage which occurred in the years 2012 to 2014 on the basis of a method which was accepted by nine applicants in the negotiations (see paragraph 42 above).\n\n54.  The applicants followed divergent approaches in their calculations.\n\nANKH Az Örök Élet Egyháza did not challenge the method applied by the Government; rather, it simply specified an amount allegedly representing an “average” of regular donations. Moreover, in the documents submitted to the Court the applicant first claimed HUF 22,000,000 under this head, than modified its claim to EUR 118,000 (approximately HUF 35,400,000), without providing any kind of explanation for this amendment.\n\nDharmaling Magyarország Buddhista Egyház calculated with an average of several years, rather than with the amount of most recent valid donations as proposed by the Government.\n\nMantra Magyarországi Buddhista Egyháza took the aggregate amount received by five incorporated Buddhist churches each year between 2012 and 2015 and claimed one fifth of those sums.\n\nSzangye Menlai Gedün, a Gyógyító Buddha Közössége Egyház and Univerzum Egyháza claimed compensation also for 2011.\n\nUsui Szellemi Iskola Közösség Egyház calculated with a prospective increase of fifty per cent per year in the volume of the donations, based on a tendency of three years from 2009.\n\nLastly, Út és Erény Közössége Egyház argued that the Government’s calculation method failed to take into account the “specific tendencies” which were relevant to its situation (namely, that as a recently founded church it was in a stage of intensive expansion in terms of the number of donators); it only assessed a “general tendency” inferred from the volume of donations received by other churches.\n\n55.  The Court is not persuaded by the applicants’ approaches which appear to be speculative in many of their elements. Moreover, as regards the method proposed by Mantra Magyarországi Buddhista Egyháza, the Court is of the view that the applicant’s way of calculation does not seem to take into account the inevitable differences between the number of believers and donators of each church (for example, in 2010 the five incorporated Buddhist churches received donations from 4787, 3034, 1628, 1225 and 1121 persons respectively, whereas the applicant had only 577 donators). The Court further notes that, according to publicly available information published by the Tax Authority, Szangye Menlai Gedün, a Gyógyító Buddha Közössége Egyház and Univerzum Egyháza did receive tax donations in 2011.\n\n56.  Therefore the Court finds it reasonable to follow, as a basis for its calculation, the Government’s method as outlined in paragraph 42 above. Notably, this method reflects more objectively the losses sustained by the applicants in that it is based on a time period closer to the alleged loss of gains and takes into account the actual tendency of tax donations and the relevant legislative changes. At the same time, it is also appropriate to increase the amounts proposed by the Government for the period 2012 to 2014 proportionately, in order to provide compensation for the period that has elapsed since the end of 2014, during which the applicants’ situation has not improved (see paragraph 49 above).\n\n57.  Three applicants (ANKH Az Örök Élet Egyháza, Mantra Magyarországi Buddhista Egyháza and Út és Erény Közössége Egyház) claimed compensation in respect of their loss of opportunity to participate in calls for project proposals open to incorporated churches only.\n\n58.  The Government were of the view that there was no causal link between the violation of the applicants’ Convention rights and their claims for subsidies not granted as of right but dependent on further conditions.\n\n59.  As regards ANKH Az Örök Élet Egyháza and Mantra Magyarországi Buddhista Egyháza, the Court notes that they did not substantiate their participation in such calls for projects prior to the entry into force of the 2011 Church Act.\n\nAs far as Út és Erény Közössége Egyház is concerned, the Court observes that, by the time of the loss of its church status, the applicant had already ceded all its institutions providing public-interest services in respect of which it could have applied for grants distributed via calls for projects.\n\n60.  Therefore, the Court is of the view that the applicants did not suffer an effective loss of opportunities in connection with their ineligibility for grants distributed via calls for public-interest project proposals.\n\n61.  ANKH Az Örök Élet Egyháza and Usui Szellemi Iskola Közösség Egyház also claimed compensation for their alleged loss of State subsidies under a different head than that mentioned in paragraph 50 above.\n\n62.  As regards, on the one hand, ANKH Az Örök Élet Egyháza, the Court observes that the Government did not refute the applicant’s allegation according to which it had received, prior to the entry into force of the 2011 Church Act, a subsidy for the purposes of religious teaching. According to the applicant’s submission, that subsidy amounted to HUF 1,184,000 (EUR 4,000) in 2010 alone. The Court further notes that the Government found acceptable the claims concerning State subsidies intended to support faith-related activities (see paragraph 40 above). Therefore, without speculating on the amount of subsidies which the applicant would have obtained if the violation of the Convention had not occurred, the Court considers that it is reasonable to award the applicant just satisfaction under this head, on an estimated basis.\n\n63.  On the other hand, the Court notes that Usui Szellemi Iskola Közösség Egyház stated in its observations that its activities had never been financed by the Hungarian State. In the light of this submission, the Court is of the view that the applicant did not suffer any loss of earnings with respect to its failure to receive State subsidies subsequently to the entry into force of the 2011 Church Act, any such claim being purely speculative.\n\n64.  ANKH Az Örök Élet Egyháza, Mantra Magyarországi Buddhista Egyháza and Út és Erény Közössége Egyház requested just satisfaction in respect of the costs they incurred in the course of modification of their legal status incumbent on them following the entry into force of the 2011 Church Act.\n\n65.  The Court notes that the Government accepted that claim to the extent of the expenses reasonably incurred in relation with the applicants’ change of status.\n\n66.  The Court thus finds it reasonable to award the above applicants just satisfaction under this head.\n\n67.  Four applicants (ANKH Az Örök Élet Egyháza, Mantra Magyarországi Buddhista Egyháza, Usui Szellemi Iskola Közösség Egyház and Út és Erény Közössége Egyház) claimed further compensation under other heads, in particular in respect of their alleged loss of offerings or contributions coming from existing or prospective believers as well as external persons; loss of expected gain from religious events, from the marketing of religious objects and printed material; loss of title or income related to various immovable properties; damage resulting from the frustration of contracts; depreciation of properties; loss of earnings in relation with the usually unused part of the State subsidy for the operation of social institutions; and frustration of the activity of specific institutions functioning within their framework.\n\n68.  In the Court’s view, the applicants have not provided sufficient evidence for the establishment of a causal connection between those heads of damage and the breach found in the principal judgment.\n\nTherefore, the Court rejects these claims.\n\n69.  The Court considers that the violation it has found in the principal judgment must have caused the applicant entities enumerated in paragraph 44, points (a) to (g) some non-pecuniary damage, which it will take into account, to the same extent in each case, for the calculation of the global awards.\n\n70.  The Court further considers that, as regards the claim in respect of non-pecuniary damage made by Mr Szűcs (the religious leader of Út és Erény Közössége Egyház), the finding of a violation in the principal judgment constituted sufficient just satisfaction for him, alike for the ministers of other applicants who had made similar claims (see paragraph 130 of the principal judgment).\n\n71.  The Court reiterates that Szim Shalom Egyház and Magyar Reform Zsidó Hitközségek Szövetsége Egyház claimed, respectively, HUF 77,768,742 (EUR 250,800) and HUF 159,767,470 (EUR 524,500) in respect of pecuniary damage; whereas the Government contested those claims in their entirety.\n\n72.  The Court observes that the agreement of 31 January 2012 on which the applicants based their claim (see paragraph 17 above) was a unilateral undertaking on the side of MAZSIHISZ to share the annuity with fellow Jewish religious communities. It is important to note that those fellow communities did not become directly entitled to receive a share from the compensation annuity in pursuit of section 3 of the Church Funding Act. Rather, it was MAZSIHISZ that remained in an exclusive legal relationship with the State and simply allowed, at its discretion, other churches to have a share from the annuity. In the Court’s view, nothing appears to preclude the incorporated Jewish religious communities from sharing the annuity with other Jewish communities if they wish so, and that irrespective of the legal status of the community to be included in the scheme.\n\n73.  The Court further notes the parties’ divergent positions as to the availability of a domestic remedy enabling the applicants to seek the enforcement of that agreement, in particular paragraph 15 thereof. The Court does not find it appropriate to adopt a stance on that question closely related to the interpretation of domestic law. In any event, the Court is of the view that there is no sufficiently established causal link between the applicants’ alleged pecuniary damage and the violation of their Convention rights. Notably, in the principal judgment the Court criticised the removal of the applicants’ church status altogether and the differentiation between “incorporated churches” and “organisations performing religious activities” – rather than the applicants’ inability to obtain incorporated church status which is precisely the ground underlying their present claims. However, the circumstances of the case do not demonstrate that the applicants could have obtained that latter status had the violation of their Convention rights not taken place.\n\n74.  Thus, in the absence of the requisite causal link, the Court rejects the above-mentioned applicants’ claims for pecuniary damage.\n\n75.  In application of the principles and general considerations outlined in paragraphs 50 to 70 above, the Court awards the applicants just satisfaction on the basis of equity, in respect of pecuniary and non-pecuniary damage, all heads combined, as follows:\n\nB.  Costs and expenses\n\n1.  The parties’ submissions\n\n76.  Subsequently to the agreements mentioned in paragraphs 7 and 10 above, and excluding Magyarországi Evangéliumi Testvérközösség (see paragraphs 12 and 13 above) only the applicants listed below maintained certain claims in respect of costs and expenses incurred before the Court. These claims are as follows:\n\n(a)  Szim Shalom Egyház and Magyar Reform Zsidó Hitközségek Szövetsége Egyház claimed, jointly, EUR 4,000 plus value-added tax (VAT). This sum corresponds to 20 hours of legal work billable by their lawyer at an hourly rate of EUR 200 plus VAT;\n\n(b)  ANKH Az Örök Élet Egyháza: HUF 600,000 (EUR 2,000) plus VAT;\n\n(c)  Dharmaling Magyarország Buddhista Egyház: EUR 2,500 plus VAT;\n\n(d)  Mantra Magyarországi Buddhista Egyháza: HUF 600,000 (EUR 2,000) plus VAT;\n\n(e)  Szangye Menlai Gedün, a Gyógyító Buddha Közössége Egyház: HUF 600,000 (EUR 2,000) plus VAT;\n\n(f)  Univerzum Egyháza: HUF 600,000 (EUR 2,000) plus VAT;\n\n(g)  Usui Szellemi Iskola Közösség Egyház: HUF 600,000 (EUR 2,000) plus VAT;\n\n(h)  Út és Erény Közössége Egyház: EUR 2,760 plus VAT.\n\n77.  In respect of the claims submitted by Szim Shalom Egyház and Magyar Reform Zsidó Hitközségek Szövetsége Egyház, the Government argued that the partial agreements concluded with those applicants already covered the costs and expenses incurred by them.\n\n78.  The Government accepted the claims of the remaining applicants enumerated in points (b) to (h) in paragraph 76 above to the extent of HUF 600,000 (EUR 2,000) each, including VAT.\n\n2.  The Court’s assessment\n\n79.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum.\n\n80.  In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award each of the applicants listed in points (b) to (h) of paragraph 76 above EUR 2,000 to cover all costs and expenses.\n\n81.  As regards the claims put forward by Szim Shalom Egyház and Magyar Reform Zsidó Hitközségek Szövetsége Egyház, the Court notes the provisions contained in their partial agreements with the State (see paragraph 10 above). Having regard to that declaration, the Court is of the view that the applicants can maintain claims of costs and expenses only with respect to the period following 31 December 2014. It therefore considers reasonable to award them, jointly, EUR 800 to cover all outstanding costs and expenses.\n\nC.  Default interest\n\n82.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\n1.  Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by Mr Szűcs (Út és Erény Közössége Egyház, application no. 41553/12);\n\n2.  Holds that the questions as to the application of Article 41 in respect of the claims of Magyarországi Evangéliumi Testvérközösség (application no. 54977/12) are not ready for decision and accordingly,\n\n(a)  further reserves the said questions;\n\n(b)  invites the Government and the applicant to notify the Court, within six months from the adoption of the present judgment, of any agreement that they may reach;\n\n(c)  reserves the further procedure and delegates to the President of the Chamber the power to fix the same if need be;\n\n3.  Holds\n\n(a)  that the respondent State is to pay the remaining applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n4.  Dismisses the remainder of the applicants’ claim for just satisfaction.\n\nDone in English, and notified in writing on 28 June 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.\n\nIn application no. 70945/11: Magyar Keresztény Mennonita Egyház and Mr Jeremiás Izsák-Bács;\n\nin application no. 23611/12: Evangéliumi Szolnoki Gyülekezet Egyház and Mr Péter János Soós;\n\nin application no. 26998/12: Budapesti Autonóm Gyülekezet and Mr Tamás Görbicz;\n\nin application no. 41150/12: Szim Salom Egyház and Mr Gergely Gusztáv Guba;\n\nin application no. 41155/12: Magyar Reform Zsidó Hitközségek Szövetsége Egyház and Ms László Mátyásné Bruck;\n\nin application no. 41463/12: European Union for Progressive Judaism;\n\nin application no. 54977/12: Magyarországi Evangéliumi Testvérközösség;\n\nin application no. 56581/12: Magyarországi Biblia Szól Egyház;\n\nin application no. : ANKH Az Örök Élet Egyháza, Árpád Rendjének Jogalapja Tradícionális Egyház, Dharmaling Magyarország Buddhista Egyház, Fény Gyermekei Magyar Esszénus Egyház, Mantra Magyarországi Buddhista Egyháza, Szangye Menlai Gedün A Gyógyító Buddha Közössége Egyház, Univerzum Egyháza, Usui Szellemi Iskola Közösség Egyház, Út és Erény Közössége Egyház.","title":""}
{"_id":"passage_617","text":"PROCEDURE\n\n1.  The case originated in an application (no. 2937/04) against  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Konstantin Eduardovich Vinokurov (“the applicant”), on 24 November 2003.\n\n2.  The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.\n\n3.  On 16 October 2007 the Court declared the application partly inadmissible and decided to communicate the complaint under Article 5 § 3 concerning the length of the applicant's detention on remand to the Government. It also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n4.  The applicant was born in 1962 and lives in the city of .\n\n5.  On 30 March 1998 criminal proceedings were instituted against the applicant, being a director of a small private company, and Ms E., a chief accountant of the company, on suspicion of credit fraud.\n\n6. According to the materials in the case-file, on 3 September 1998 the Prosecutor of the Leninsky District of Lugansk ordered the applicant's detention on remand. The parties did not provide a copy of that order.\n\n7.  On 4 September 1998 the proceedings were suspended since the applicant failed to appear before the investigator. On the same date he was put on the list of wanted persons.\n\n8.  On 27 September 2001 the applicant, who at that time resided in , was arrested by the Russian police pursuant to an international warrant for his arrest issued by the Ukrainian authorities.\n\n9.  According to the Government's observations, on 2 October 2001 the preventive measure of detention on remand was upheld. The Government failed to provide a copy of that order.\n\n10.  On 22 October 2001 the Prosecutor General's Office of Ukraine made a request to the Prosecutor General's Office of the  for the applicant's extradition under the 1993 Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Cases (the “Minsk Convention”). On 25 October 2010 the request was granted.\n\n11.  On 1 February 2002 the Prosecutor of the Leninsky District of Lugansk extended the applicant's detention on remand until 15 March 2002.\n\n12.  Once in  on 6 February 2002, the applicant was detained on remand.\n\n13.  On 5 March 2002 the applicant was charged with financial fraud and forgery.\n\n14.  Between 5 March 2002 and 21 May 2002 the applicant was acquainted himself with the case-file.\n\n15.  On 21 May 2002 the applicant asked the investigator to replace the detention with another preventive measure alleging that he had health problems. On the same date the request was dismissed since the applicant failed to provide any proves in support of his allegations.\n\n16.  On 2 July 2002 the Leninsky District Prosecutor's Office of Lugansk submitted the applicant's case to the court for examination on the merits.\n\n17.  On 15 August 2002 the Leninsky District Court of Lugansk (hereafter “the ”) held a preparatory hearing. It found that the bill of indictment needed redrafting. The case-file was sent back to the Prosecutor's Office. The  also rejected the applicant's request for release, having found that the detention on remand had been ordered at the investigation stage in accordance with law and that there was no reason to replace it with another preventive measure.\n\n18.  On 20 September 2002 the applicant's criminal case was sent to the . On 4 November 2002 the latter terminated the criminal proceedings against Ms E.\n\n19.  On 4 October 2002, 9 December 2002, 10 December 2002, 19 December 2002 and on an unspecified date in June 2003 the applicant asked the  to replace the detention on remand with another preventive measure. On 4 November 2002, 9 December 2002, 16 December 2002, 10 January 2003 and 27 June 2003 the  respectively dismissed his requests, having found that the detention on remand had been ordered at the investigation stage in accordance with law and that there was no reason to replace it with another preventive measure.\n\n20.  On 21 July 2003 the  convicted the applicant of financial fraud and sentenced him to one year, nine months and twenty four days' imprisonment, less the time spent in detention pending extradition in Russia and in detention on remand in . This sentence meant the applicant's immediate release since he had already served it.\n\nII.  RELEVANT DOMESTIC LAW\n\n21.  Provisions of the Code of Criminal Procedure of 28 December 1960 on preventive measures are set out in Nevmerzhitsky v. Ukraine (no. 54825/00, § 54, ECHR 2005II (extracts)).\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION\n\n22.  The applicant complained that the duration of his pre-trial detention was excessive. He invoked Article 5 § 3 of the Convention, which provides, in so far as relevant, as follows:\n\nA.  Admissibility\n\n23.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n24.  The Government maintained that the domestic authorities had grounds for holding the applicant in custody, given that he had absconded from justice. They further considered that the domestic authorities conducted the investigation with due diligence given the complexity of the case.\n\n25.  The applicant made no observations.\n\n26.  The Court observes that in the present case, while the applicant had already been detained in Russia prior to his extradition, the period to be taken into consideration for the purposes of Article 5 § 3 of the Convention started on 6 February 2002, when the applicant was detained on remand in Ukraine, and ended on 21 July 2003. Therefore it lasted one year, five months, and thirteen days. The time of the applicant's detention is not short in absolute terms (see and compare, Nedyalkov v. Bulgaria, no. 44241/98, § 61, 3 November 2005, and Rokhlina v. Russia, no. 54071/00, § 60, 7 April 2005).\n\n27.  The Court recalls that the issue of whether a period of detention is reasonable cannot be assessed in abstracto. This must be assessed in each case according to its special features, the reasons given in the domestic decisions and the well-documented facts mentioned by the applicant in his applications for release. Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty (see, among others, Labita v. Italy [GC], no. 26772/95, § 153, ECHR 2000-IV).\n\n28.  The Court observes that the risk of the applicant's absconding might have justified the initial orders on the applicant's detention. However, the Court notes that, thereafter, the  did not advance any grounds whatsoever for maintaining the applicant's detention, simply stating that the previously chosen preventive measure was correct. The Court reiterates that Article 5 § 3 of the Convention requires that after a certain lapse of time the persistence of a reasonable suspicion does not in itself justify deprivation of liberty and the judicial authorities should give other grounds for continued detention (see Jabłoński v. Poland, no. 33492/96, § 80, 21 December 2000, and I.A. v. France, no. 28213/95, § 102, Reports of Judgments and Decisions 1998-VII). Those grounds, moreover, should be expressly mentioned by the domestic courts (see Iłowiecki v. Poland, no. 27504/95, § 61, 4 October 2001). No such reasons were given by the courts in the present case. Furthermore, at no stage did the domestic authorities consider any alternative preventive measures instead of detention.\n\n29.  The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 5 § 3 of the Convention.\n\nII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n30.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\n31.  The applicant did not submit a claim for just satisfaction within the time-limit allotted by the Court. Accordingly, the Court considers that there is no call to award him any sum on that account.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Declares the remainder of the application admissible;\n\n2.  Holds that there has been a violation of Article 5 § 3 of the Convention;\n\nDone in English, and notified in writing on 15 July 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_428","text":"PROCEDURE\n\n1.  The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the dates indicated in the appended table.\n\n2.  The Russian Government were given notice of the applications.\n\nTHE FACTS\n\n3.  The list of applicants and the relevant details of the applications are set out in the appended table.\n\n4.  The applicants complained of the inadequate conditions of detention during their transport. Some applicants also raised complaints under other Convention provisions.\n\nTHE LAW\n\nJOINDER OF THE APPLICATIONS\n\n5.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.\n\nJURISDICTION\n\n6.  The Court observes that the facts giving rise to the alleged violations of the Convention occurred prior to 16 September 2022, the date on which the Russian Federation ceased to be a party to the Convention. The Court therefore decides that it has jurisdiction to examine the present applications (see Fedotova and Others v. Russia [GC], nos. 40792/10 and 2 others, §§ 6873, 17 January 2023).\n\nALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION\n\n7.  The applicants complained principally of the inadequate conditions of detention during their transport. They relied on Article 3 of the Convention.\n\n8.  The Court notes that the applicants were detained in poor conditions during transport. The details of the applicants’ detention are indicated in the appended table. The Court refers to the principles established in its caselaw regarding cramped and defective conditions during the transit of prisoners (see Tomov and Others v. Russia, nos. 18255/10 and 5 others, §§ 124-27, 9 April 2019). It reiterates in particular that a strong presumption of a violation arises when detainees are transported in conveyances offering less than 0.5 square metres of space per person, regardless of whether such cramped conditions result from an excessive number of detainees being transported together or from the restrictive design of compartments (ibid., § 125). As regards longer journeys, factors such as a failure to arrange an individual sleeping place for each detainee or to secure an adequate supply of drinking water and food or access to the toilet seriously aggravate the situation of prisoners during transfers and are indicative of a violation of Article 3 (ibid., § 127).\n\n9.  In the leading case of Tomov and Others (cited above), the Court already found a violation in respect of issues similar to those in the present case.\n\n10.  Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the applicants’ conditions of detention during their transport were inadequate.\n\n11.  These complaints are therefore admissible and disclose a breach of Article 3 of the Convention.\n\nOTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW\n\n12.  The applicants whose names are listed in the appended table also complained under Article 13 of the Convention of the lack of an effective remedy for their complaints about poor conditions of detention during transport and under Article 3 about the use of metal cages in courtrooms. These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose a violation of the Convention in the light of its findings in Tomov and Others (cited above, §§ 143-56) and Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, ECHR 2014 (extracts), respectively.\n\nAPPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n13.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\n14.  Regard being had to the documents in its possession and to its caselaw (see, in particular, Pukhachev and Zaretskiy v. Russia, nos. 17494/16 and 29203/16, 16 November 2017), the Court considers it reasonable to award the sums indicated in the appended table.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\nDecides to join the applications;\n\nHolds that it has jurisdiction to deal with these applications as they relate to facts that took place before 16 September 2022;\n\nDeclares the applications admissible;\n\nHolds that these applications disclose a breach of Article 3 of the Convention concerning the inadequate conditions of detention during transport;\n\nHolds that there have been violations of Article 3 of the Convention, and of Article 13 of the Convention, taken in conjunction with Article 3, in respect of the applicants who complained about their placement in a metal cage in courtrooms and about the lack of an effective domestic remedy to complain about poor conditions of detention during transport (see the appended table);\n\nHolds\n\nthat the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;\n\nthat from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default during the default period plus three percentage points.\n\nDone in English, and notified in writing on 26 October 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_979","text":"PROCEDURE\n\n1.  The case originated in an application (no. 46349/09) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Andrey Vladimirovich Smolentsev (“the applicant”), on 8 August 2009.\n\n2.  The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.\n\n3.  The applicant alleged, in particular, that he had suffered illtreatment at the hands of the police and that the domestic authorities had failed to conduct a prompt and effective investigation into his complaints.\n\n4.  On 22 May 2012 the above complaint was communicated to the Government.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n5.  The applicant was born in 1976 and lives in Barnaul. He has been disabled since childhood and has lacked legal capacity since 1999. The application was brought on his behalf by his mother.\n\nA.  Applicant’s arrest, alleged ill-treatment and criminal proceedings against him\n\n6.  At about 5 p.m. on 28 August 2007 the applicant was arrested on suspicion of robbery and taken to Industrialniy district police station, Barnaul (Индустриальный РОВД г. Барнаула, “the Industrialniy ROVD”) by Officers K., S. and Ch., who allegedly beat him when they arrived at the police station.\n\n7.  A report on the applicant’s arrest was drawn up at 9 p.m., following which the applicant’s mother was informed about his arrest. She arrived at the police station shortly afterwards. The applicant complained, in the presence of his mother and a lawyer, that he felt unwell and that he had been beaten by the police officers who had arrested him.\n\n7.  A report on the applicant’s arrest was drawn up at 9 p.m., following which the applicant’s mother was informed about his arrest. She arrived at the police station shortly afterwards. The applicant complained, in the presence of his mother and a lawyer, that he felt unwell and that he had been beaten by the police officers who had arrested him.\n\n8.  An ambulance was called to the police station at 10.29 p.m. on 28 August. The applicant was diagnosed as having facial and chest contusions. He told the ambulance medics that he had been physically assaulted by the police.\n\n8.  An ambulance was called to the police station at 10.29 p.m. on 28 August. The applicant was diagnosed as having facial and chest contusions. He told the ambulance medics that he had been physically assaulted by the police.\n\n9.  Another ambulance was called for the applicant at 12.24 a.m. on 29 August 2007, to the temporary detention facility. He was diagnosed as having a contusion on the soft tissues of the face and an X-ray examination was recommended. The applicant told the medics that he had injured himself while drunk two days previously after falling down and hitting his head on the ground.\n\n9.  Another ambulance was called for the applicant at 12.24 a.m. on 29 August 2007, to the temporary detention facility. He was diagnosed as having a contusion on the soft tissues of the face and an X-ray examination was recommended. The applicant told the medics that he had injured himself while drunk two days previously after falling down and hitting his head on the ground.\n\n10.  The applicant was taken to hospital the same day for the X-ray examination and was diagnosed as having a closed fracture of his nose bones with displacement of bone fragments and a chest contusion. He gave the same explanation for the injuries as he had given previously that day to the ambulance medics at the temporary detention facility.\n\n11.  Upon admission to the temporary detention facility, staff seized, among other items, a pledge ticket for a silver chain and cross which were in pawn until 5 September 2007 (worth 4,840 Russian roubles (RUB) and RUB 990 respectively).\n\n12.  On 30 August 2007 the Industrialniy District Court of Barnaul (“the District Court”) ordered the applicant to be kept under arrest for an additional forty-eight hours, until 2.30 p.m. on 1 September 2007.\n\n13.  On 1 September 2007 the applicant was released.\n\n14.  On the same day the District Court granted an application from the investigator to place the applicant in a psychiatric hospital for a psychiatric forensic examination.\n\n15.  On 4 September 2007 the applicant was admitted to a psychiatric hospital, where he stayed until 4 October 2007.\n\n16.  On 4 October 2007 the report on the forensic psychiatric examination of the applicant was concluded. It established that at the time of the events in question the applicant could understand and take responsibility for his actions.\n\n17.  On 11 October 2007 the pawn shop ticket was returned to the applicant.\n\n17.  On 11 October 2007 the pawn shop ticket was returned to the applicant.\n\n18.  On 9 November 2007 the applicant underwent planned surgery for a fracture of the nose (rhinoplasty).\n\n19.  On 17 March 2008 the criminal proceedings against the applicant were discontinued owing to a lack of evidence of his involvement in the crime in question.\n\nB.  Investigation of the alleged ill-treatment\n\n20.  On 29 August 2007 the applicant’s mother complained to the prosecutor’s office that the applicant had been beaten by the police.\n\n20.  On 29 August 2007 the applicant’s mother complained to the prosecutor’s office that the applicant had been beaten by the police.\n\n20.  On 29 August 2007 the applicant’s mother complained to the prosecutor’s office that the applicant had been beaten by the police.\n\n21.  On 19 September 2007 a forensic medical expert held that the closed fracture of the applicant’s nose had been caused by a blow from a hard, blunt object with a limited area of impact and that it had resulted in moderately severe health damage. The report went on to say that the injury had occurred shortly before the applicant had sought medical assistance and that it could have been caused on 28 August 2007. The possibility of the injury being caused by a fall or that the applicant had inflicted it on himself was excluded. The diagnosis of a chest contusion was found to be unsubstantiated by the information in the medical documents.\n\n1.  Refusals to open criminal proceedings against the police officers\n\n1.  Refusals to open criminal proceedings against the police officers\n\n22.  On 4 October, 25 November and 24 December 2007, and 1 February and 15 March 2008 the prosecutor’s office refused to institute criminal proceedings against the police officers who had allegedly ill-treated the applicant for lack of the constituent elements of a crime in their actions. The applicant’s statements were found to be contradictory and not consistent with the injuries sustained. The applicant’s mother had not witnessed the alleged beatings and, because the applicant was mentally disabled and had been inebriated when arrested, his statements were assessed in critical fashion. There was also evidence that the applicant had possibly had injuries prior to his arrest. The initial refusal to institute criminal proceedings referred to the following evidence:\n\n-  the statements of the applicant’s mother, who submitted that the applicant had had no injuries when he had left home on 28 August 2007 and that she had found him at the police station later that day with a swollen face, bruises on his back and with his clothes covered in blood;\n\n-  a statement by the applicant’s mother that on 26 August 2007 she had witnessed a quarrel between her son and a certain Kar., that she had called the police and that the police had helped her take the applicant home;\n\n-  statements by a witness, B., who had seen the applicant on 28 August 2007, shortly before his arrest, drunk, but without any visible injuries; B. later saw police officers escorting the applicant to a police car, with the applicant showing no resistance. B. did not see the police officers using physical force against the applicant;\n\n-  the applicant’s statements on the circumstances of his arrest. He submitted, in particular, that the beatings had taken place at the back entrance to the police station and in an out-of-the-way office inside the police station; the police officers had hit him with truncheons on his back, bottom and legs (at least four to five blows), and had then punched him on the head and nose (no less than seven to ten blows). The applicant had started bleeding and the officers had threatened him, warning him not to tell anyone about the beatings;\n\n-  information on the applicant’s health and his disability, as well as his previous criminal and administrative offence records;\n\n-  documents on the applicant’s arrest;\n\n-  documents on the ambulance doctors’ examination of the applicant on 28 August 2007 in connection with complaints of a bleeding nose and chest pain;\n\n-  the forensic medical report of 19 September 2007 (see paragraph 21 above);\n\n-  statements by Officers S. and K. on the circumstances of the applicant’s arrest. In particular, they submitted that when the applicant had seen them he had started to run in the opposite direction. He had stumbled and fallen forward onto the pavement. When they had lifted him up they had noticed that he had old abrasions on the left side of his face and a bleeding nose, probably from falling on the pavement. His breath had also smelt of alcohol. The applicant had then been escorted to the police car and taken to the police station. He had not resisted arrest and no physical force had been applied to him;\n\n-  statements by Officer Ch., who had been waiting for S. and K. in the police car. He submitted that he had seen S. and K. escorting the applicant to the car and that the applicant had been visibly drunk. He had had abrasions and dried blood on his face and his clothes had been dirty. No physical force had been used against him;\n\n-  statements by police officers on duty at the police station on 28 August 2007 about the absence of any conflict situations there on that day or any complaints of ill-treatment from the applicant;\n\n-   statements by Ts., A., D., detained at the police station at the same time as the applicant. They submitted that they had not witnessed any clashes between the applicant and the police and had not seen the police use physical force against him;\n\n-  statements by the investigator, N., who had questioned the applicant on 28 August 2007 and to whom he had explained that his injuries (a scratch on the face and a swollen nose) had been sustained while he was drunk, either by falling down or in some other way, the applicant had not remembered exactly. The investigator had later called the applicant’s mother. After she had arrived, the applicant had started complaining that he felt unwell and that he had been beaten by the police, after which an ambulance had been called for him;\n\n-  statements by the investigator D., who said that she had questioned the applicant on 31 August 2007 at the temporary detention facility. He had stated that he had been drinking in the courtyard of his house on 26 August 2007 and had picked a fight with a certain Kar., with whom he had drunk before;\n\n-  information from the temporary detention facility on the applicant’s injuries at the time of his admission (a closed fracture of the nasal bones and an abrasion on the left cheek) and a handwritten note from the applicant to the effect that he had received the injuries after falling down while in an inebriated state and that he had no complaints about the law-enforcement bodies;\n\n-  statements by a certain R., who submitted that on 26 August 2007 the applicant and her husband Kar. had been drinking together and had had a quarrel.\n\nThe subsequent decisions also took into account the following evidence:\n\n-  statements by Kar., who submitted that he had been drinking alcohol with the applicant on 25 August 2007, that they had been so drunk they could not walk in a straight line and had had to hold to one another, and that on their way home they had fallen down several times. On 26 August 2007 Kar. and the applicant had again spent all day drinking together, but had had no arguments. He could not remember whether the applicant had had any injuries on 25 and 26 August 2007;\n\n-  an additional forensic medical report of 18 December 2007 which showed that the injury could have been caused on 26 August 2007 but that it could not have been caused by the applicant’s falling down;\n\n-  statements by the doctors who examined the applicant on 28 and 29 August 2007 and performed the X-ray examination and by the expert who conducted the initial forensic medical examination.\n\n23.  The supervising authority set aside all those decisions, except for the most recent one, as unfounded and ordered additional pre-investigation inquiries.\n\n2.  Institution of criminal proceedings against unidentified persons\n\n24.  In the meantime, on 13 December 2007 the chief of inquiries at the investigations department of the Industrialniy ROVD instituted criminal proceedings against unidentified persons under Article 112 § 1 of the Criminal Code for the intentional infliction of moderately severe damage to the applicant’s health at an unidentified place and time, but no later than midnight of 19 September 2007.\n\n25.  On 14 February 2008, 11 March 2009, 20 October 2010 and 5 May 2012 forensic medical examinations of the applicant’s medical file were conducted. The conclusions of the examinations showed that the closed fracture of the nose and swelling of the soft tissues in the nasal area could have been caused between 26 August and 28 August 2007. It was not possible to completely exclude the possibility that the above injury had originated as the result of the impact of a slightly protruding object. The injured area was also accessible to the applicant himself. The report of 20 October 2010 excluded the possibility that the applicant had been injured by falling on the pavement while running away from Officers S. and K. given the absence of other injuries on prominent parts of his face (nose, cheekbones or forehead) or on other parts of his body (the stomach or his extremities).\n\n26.  On 12 January 2008 the chief of inquiries at the investigations department of the Industrialniy ROVD decided to suspend the investigation.\n\n27.  However, on 29 January 2008 the acting prosecutor of the Industrialniy District of Barnaul set that decision aside. He noted that the case file contained information that police officers at the Industrialniy ROVD had allegedly inflicted the applicant’s injuries and transferred the criminal case from the investigations department of the Industrialniy ROVD to the Barnaul investigations department of the investigation committee of the Altay Regional Prosecutor’s Office.\n\n28.  On 11 February 2008 the chief of inquiries at the investigations department of the investigation committee of the Altay Regional Prosecutor’s Office resumed the case.\n\n29.  On 13 February 2008 a witness, I., (the victim in the proceedings against the applicant on suspicion of robbery) submitted that when the alleged robbery had taken place, at about 3 p.m. on 28 August 2007, she had noticed that the applicant had an old abrasion on his face. She did not exclude the possibility that she could have scratched the applicant in the course of the struggle, but she had not hit him and had not seen any injuries on his face later that day when she had seen him at the police station.\n\n29.  On 13 February 2008 a witness, I., (the victim in the proceedings against the applicant on suspicion of robbery) submitted that when the alleged robbery had taken place, at about 3 p.m. on 28 August 2007, she had noticed that the applicant had an old abrasion on his face. She did not exclude the possibility that she could have scratched the applicant in the course of the struggle, but she had not hit him and had not seen any injuries on his face later that day when she had seen him at the police station.\n\n30.  On 16 February 2008 Officer Ch. was questioned as a witness.\n\n30.  On 16 February 2008 Officer Ch. was questioned as a witness.\n\n31.  On 11 April 2008 the proceedings were suspended for the second time. The decision mentioned that the operational-search activities conducted to identify the perpetrator of the assault had not led to any positive results. It provided no further details on the exact measures taken by the investigator.\n\n32.  On 16 April 2008 the deputy head of the investigations department set that decision aside and held that it was necessary to give the applicant victim status in the proceedings and question him. He also wanted to give the applicant’s mother the status of the applicant’s legal representative and question her, to carry out a comprehensive psychological and psychiatric examination of the applicant, to question a number of witnesses on the circumstances of the alleged ill-treatment (among them Officer S.), and to join references from work on Officers K., S. and Ch. to the case file.\n\n32.  On 16 April 2008 the deputy head of the investigations department set that decision aside and held that it was necessary to give the applicant victim status in the proceedings and question him. He also wanted to give the applicant’s mother the status of the applicant’s legal representative and question her, to carry out a comprehensive psychological and psychiatric examination of the applicant, to question a number of witnesses on the circumstances of the alleged ill-treatment (among them Officer S.), and to join references from work on Officers K., S. and Ch. to the case file.\n\n33.  On 17 April 2008 the applicant was given the status of a victim in the proceedings and was questioned as such. The applicant’s mother joined the proceedings as his legal representative and was questioned.\n\n33.  On 17 April 2008 the applicant was given the status of a victim in the proceedings and was questioned as such. The applicant’s mother joined the proceedings as his legal representative and was questioned.\n\n34.  On 19 May 2008 the proceedings were suspended for the third time, with reference to the fact that the operational-search activities to identify the perpetrator had not led to any positive result. However, on 21 May 2008 the deputy head of the investigations department set that decision aside and held that it was necessary to question the witnesses to establish all the relevant circumstances of the alleged ill-treatment.\n\n34.  On 19 May 2008 the proceedings were suspended for the third time, with reference to the fact that the operational-search activities to identify the perpetrator had not led to any positive result. However, on 21 May 2008 the deputy head of the investigations department set that decision aside and held that it was necessary to question the witnesses to establish all the relevant circumstances of the alleged ill-treatment.\n\n35.  Between May and August 2008 the head of the Industrialniy ROVD and the officers present there at the time of the applicant’s arrest were questioned as witnesses.\n\n35.  Between May and August 2008 the head of the Industrialniy ROVD and the officers present there at the time of the applicant’s arrest were questioned as witnesses.\n\n36.  Meanwhile, on 26 June 2008 a fourth decision on suspending the proceedings was taken. However, on 2 July 2008 the deputy head of the investigations department set the decision aside and listed in detail the investigative measures that were needed. They included questioning the police officers S., K. and Ch. about the circumstances of the applicant’s arrest, a forensic psychiatric examination of the applicant and, depending on the results of that examination, deciding on the possibility of carrying out identification parades involving the applicant and S., K. and Ch.\n\n36.  Meanwhile, on 26 June 2008 a fourth decision on suspending the proceedings was taken. However, on 2 July 2008 the deputy head of the investigations department set the decision aside and listed in detail the investigative measures that were needed. They included questioning the police officers S., K. and Ch. about the circumstances of the applicant’s arrest, a forensic psychiatric examination of the applicant and, depending on the results of that examination, deciding on the possibility of carrying out identification parades involving the applicant and S., K. and Ch.\n\n37.  On 7 August 2008 Officer K. was questioned as a witness.\n\n37.  On 7 August 2008 Officer K. was questioned as a witness.\n\n38.  The proceedings were suspended for the fifth time on 14 September 2008, but were again resumed on 29 September 2008. The acting head of the investigations department considered it necessary, inter alia, to put further questions to certain witnesses. He also wanted to carry out a comprehensive psychological and psychiatric forensic examination of the applicant and, depending on the results of that examination, to decide on the possibility of carrying out identification parades involving the applicant and S., K. and Ch. In addition, he wanted to request documents on the applicant’s hospital treatment after 4 September 2007 and join them to the case file and to carry out an additional forensic medical examination.\n\n38.  The proceedings were suspended for the fifth time on 14 September 2008, but were again resumed on 29 September 2008. The acting head of the investigations department considered it necessary, inter alia, to put further questions to certain witnesses. He also wanted to carry out a comprehensive psychological and psychiatric forensic examination of the applicant and, depending on the results of that examination, to decide on the possibility of carrying out identification parades involving the applicant and S., K. and Ch. In addition, he wanted to request documents on the applicant’s hospital treatment after 4 September 2007 and join them to the case file and to carry out an additional forensic medical examination.\n\n39.  On 23 October 2008 another witness, D., (an acquaintance of the applicant’s mother) stated that he had seen the applicant’s arrest on 28 August 2007. The applicant had been escorted by two people – one wearing a police uniform and the other in plain clothes. The applicant had not shown any resistance, had had no visible injuries and had not been subjected to physical force.\n\n40.  On 28 October 2008 the applicant had an additional forensic psychiatric examination, which established that at the time of the alleged beatings he could not correctly perceive the factual aspect of events or understand the meaning and nature of actions taken in his respect.\n\n40.  On 28 October 2008 the applicant had an additional forensic psychiatric examination, which established that at the time of the alleged beatings he could not correctly perceive the factual aspect of events or understand the meaning and nature of actions taken in his respect.\n\n41.  On 30 October and 8 November 2008 two witnesses, Z. and M., stated respectively that they had seen the applicant on 28 August 2007, shortly before his arrest, that he had been dressed tidily and had had no injuries on his body or blood stains on his clothes. They had later seen him being escorted by two police officers to a police car, the applicant had acted calmly, his clothes had been tidy and no physical force had been applied to him. A similar statement was made by the witness B.\n\n42.  On 14 November 2008 the investigator decided to suspend the proceedings for the sixth time. He relied on the results of the applicant’s forensic psychiatric examination of 28 October 2008 and therefore the impossibility for the investigation to rely on his statements, as well as the absence of eyewitnesses of the circumstances in which the applicant had received his injuries. However, on 30 December 2008 the District Court found that decision unlawful and unsubstantiated.\n\n43.  On 12 February 2009 the proceedings were resumed, only to be suspended for the seventh time on 12 March 2009 for the same reasons as given in the decision of 14 November 2008. However, on 7 April 2009 the District Court found the decision of 12 March 2009 unlawful and unsubstantiated, and on 14 May 2009 the proceedings were again resumed.\n\n44.  On 15 June 2009 the proceedings were yet again suspended. The decision said that the applicant’s statement about his alleged ill-treatment by the police officers S., K. and Ch. could not be admitted as evidence in view of the results of the forensic psychiatric examination of 28 October 2008. The applicant’s mother’s statements had derived from those of the applicant himself. There was no direct evidence proving that the applicant had sustained his injuries at the hands of S., K. and Ch. The fact that those officers had arrested the applicant and taken him to the Industrialniy ROVD had not proved that they had been involved in the alleged ill-treatment. Exhaustive measures had been taken to establish the time the applicant had sustained his injuries. The witnesses B., D. and Z., who had seen the applicant’s arrest, had stated that they had not seen the police officers use any physical force against him.\n\n45.  On 12 January 2010 the proceedings were resumed and subsequently suspended for the ninth time on 15 February 2010. The investigation established that on 28 August 2007 the applicant had been taken to the Industrialniy ROVD by Officers S., K. and Ch. The applicant had complained that those officers had beaten him after his arrest. According to the forensic medical examination of 14 February 2008, the applicant had had a closed fracture of bones in the nose and swelling of the soft tissues in the nasal area, which had been caused by the impact of a hard, blunt object and could have occurred between 26 August and 28 August 2007. The investigation had not confirmed any fact of ill-treatment of the applicant by S., K. and Ch. That was in accordance with the statements by the police officers, who had denied inflicting any injuries on the applicant, the witnesses who had seen the applicant’s arrest, the records of identification parades and other evidence. There had been no other evidence attesting directly to the fact that a crime had been committed by the police officers. In addition, the decision reiterated that the applicant’s statements could not be relied on in view of the results of the forensic psychiatric examination of 28 October 2008 and could not be a basis for bringing charges against the police officers. The mother’s statements had derived from those of the applicant and therefore could not be relied on either.\n\n46.  On 27 April 2010 the District Court found the decision of 15 February 2010 unlawful and unsubstantiated and on 1 June 2010 the proceedings were again resumed.\n\n46.  On 27 April 2010 the District Court found the decision of 15 February 2010 unlawful and unsubstantiated and on 1 June 2010 the proceedings were again resumed.\n\n47.  On 8 June 2010 P., an expert in psychiatry – a doctor of medical sciences and a professor – was questioned as a witness. He submitted that the conclusions of the psychiatric expert examination of 28 October 2008 on the applicant’s mental state at the time of the events in question were more consistent and reliable than those of the applicant’s previous psychiatric expert examination on 4 October 2007.\n\n48.  On 11 June 2010 the proceedings were suspended for the tenth time. The decision referred to the applicant’s arrest on 28 August 2007, his statement as to the alleged ill-treatment by the police officers S., K. and Ch., the results of the forensic medical examination of 14 February 2008 with a description of his injuries and the time they were inflicted, and the police officers’ denial of the alleged ill-treatment.\n\n49.  Proceedings were resumed on 12 July 2010. Formal confrontations were carried out between the witnesses B. and Z., Officer K. and Z., Officer Ch. and Z., the applicant and the investigator N., the applicant’s mother and N., the applicant and the police officer who had taken him from the Industrialniy ROVD to the temporary detention facility and had allegedly threatened him on their way there by warning him not to tell anyone about the beatings, and the applicant and Officer K.\n\n50.  On 19 July 2010 the proceedings were suspended for the eleventh time. The decision noted that it had been impossible to reconcile the statements of the police officers and the witnesses as to whether the applicant had had any injuries on his face at the time of his arrest. However, on 31 August 2010 the District Court found that decision unlawful and unjustified and the proceedings resumed again on 19 October 2010.\n\n50.  On 19 July 2010 the proceedings were suspended for the eleventh time. The decision noted that it had been impossible to reconcile the statements of the police officers and the witnesses as to whether the applicant had had any injuries on his face at the time of his arrest. However, on 31 August 2010 the District Court found that decision unlawful and unjustified and the proceedings resumed again on 19 October 2010.\n\n51.  On 21 August 2010 another police officer, S., was questioned as a witness (the case file contains no earlier record, if any, of the questioning of S. as a witness).\n\n52.  The proceedings were again suspended on 26 October 2010, 14 January, 10 February and 17 February 2011, and resumed respectively on 12 January, 8 February, 15 February and 7 April 2012. In addition to the previously collected evidence, the decisions on suspension relied on:\n\n-  statements by the investigator N.;\n\n-  statements by Ts., D. and Yer., detained at the police station at the same time as the applicant;\n\n-  a radiology laboratory assistant K. and the radiologist R.;\n\n-  an expert, Kl., on the nature of the applicant’s injuries;\n\n-  statements by Kar.;\n\n-  a statement by the witness, S., who submitted that she had seen a fight between the applicant and the witness I., but that she had not seen any injuries on the applicant’s body at that time;\n\n-  Kr., who submitted that she had seen no injuries on the applicant on 26 August 2007 and that when she had seen him on 1 September 2007 he had had a swollen nose. He had had no other visible injuries;\n\n-  a statement by the officer on duty at the temporary detention facility, P., who called an ambulance for the applicant on 29 August 2007;\n\n-  the ambulance medics who examined the applicant on 28 August and 29 August 2007, but who could not remember any circumstances of value to the investigation given the length of time since the events in question;\n\n-  the neurosurgeon R., who examined the applicant on 29 August 2007 at the hospital and submitted that he could have received his injuries several days prior to the examination;\n\n-  the lawyer M., present at the applicant’s questioning at the police station on 28 August 2007. Owing to the passage of time, he could not remember whether the applicant had any visible injuries or if he had told him anything about the circumstances of the alleged beatings.\n\n-  the lawyer M., present at the applicant’s questioning at the police station on 28 August 2007. Owing to the passage of time, he could not remember whether the applicant had any visible injuries or if he had told him anything about the circumstances of the alleged beatings.\n\n53.  On 10 May 2012 the proceedings were suspended for the sixteenth and last time. Taking into account the evidence that had been collected, the investigating authority came to the conclusion that the applicant had received his injuries no later than 10.37 p.m. on 28 August 2007 (the time of his examination by ambulance medics at the Industrialniy ROVD). However, it was impossible to make an objective and reliable conclusion as to the exact time and circumstances of the injuries. The results of the applicant’s psychiatric expert examination precluded the investigating authority from relying on the applicant’s submissions as evidence and there was no other evidence proving beyond doubt that his injuries had been inflicted in the circumstances he had described. In addition, the experts had arrived at the conclusion that the injury could have been caused anytime between 26 August and 28 August 2007.\n\nC.  Applicant’s attempts to have criminal proceedings instituted against a trainee police officer, I., and police officers A. and B.\n\n54.  According to the applicant, while the investigator was questioning him as a suspect on 28 August 2007, a trainee police officer, I., had taken the keys to his flat and had gone there and searched his room. A gold bracelet had allegedly gone missing after the search.\n\n55.  According to the applicant, Officers A. and B. had allegedly threatened him on the same day, warning him not to reveal that he had been beaten at the police station and to say instead that he had injured himself several days before in a fight.\n\n56.  From 2008 the applicant’s mother sought to have criminal proceedings instituted against I. and Officers A. and B. for abuse of position.\n\n57.  The investigator refused several times to institute criminal proceedings.\n\n58.  The most recent refusal to institute criminal proceedings against I. is dated 15 October 2009. On 10 December 2009 the Altay Regional Court found at final instance that the aforementioned decision was lawful and justified. It had been established that the applicant’s mother had let I. into the flat, answered his questions, and had then let him into the applicant’s room and helped him search it. It had also been established that the disappearance of a gold bracelet had been alleged long after the events complained of. For those reasons, there could not reasonably have been an expectation that the incident would be investigated.\n\n59.  The most recent refusal to institute criminal proceedings against A. and B. is dated 31 May 2010. The inquiry found no evidence to support the applicant’s allegations. There is no information in the case file as to whether the applicant challenged the lawfulness of that decision in court.\n\nD.  Civil proceedings for damages\n\n60.  The applicant’s mother brought civil proceedings against the Ministry of Finance on behalf of herself and the applicant, seeking compensation for non-pecuniary damage caused by the unlawful prosecution of the applicant and the resulting medical treatment. She also sought compensation for pecuniary damage, representing the cost of the silver chain and cross which could not be recovered from the pawnshop and other costs and expenses.\n\n61.  On 10 March 2010 the District Court granted the claim in part and ordered the Ministry of Finance to pay the applicant RUB 15,000 for the non-pecuniary damage caused by his unlawful prosecution. It refused the claim for recovery of the cost of the silver chain and cross, holding that the mother, as the applicant’s legal representative, could have recovered them from the pawnshop herself.\n\n62.  On 21 April 2010 the Altay Regional Court upheld the above judgment on appeal, increasing the amount awarded in respect of nonpecuniary damage to RUB 40,000. The court further held that the applicant’s mother had failed to submit any evidence that she had asked the investigator to return the pawnshop pledge ticket and that such a request had been refused.\n\nII.  RELEVANT DOMESTIC LAW\n\n63.  For a summary of the relevant domestic law on the prohibition of torture and other types of ill-treatment and the procedure for examining a criminal complaint see Manzhos v. Russia (no. 64752/09, §§ 21-27, 24 May 2016).\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION\n\n64.  The applicant complained that he had been ill-treated by the police and that no effective investigation had been carried out into his complaint. He relied on Article 3 of the Convention, which reads as follows:\n\n“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”\n\n65.  The Government supported the conclusions of the domestic investigating authority and submitted that there had been no violation of the applicant’s rights under Article 3.\n\nA.  Admissibility\n\n66.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n1.  The State’s obligation to conduct an effective investigation\n\n67.  The Court reiterates that where an individual makes a credible assertion that he or she has suffered treatment infringing Article 3 at the hands of the police or other similar agents of the State, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. That investigation should be capable of leading to the identification and – if appropriate – punishment of those responsible. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice, and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000IV, and Armani Da Silva v. the United Kingdom [GC], no. 5878/08, § 233, 30 March 2016).\n\n68.  The investigation into serious allegations of ill-treatment must be both prompt and thorough. The authorities must always make a serious attempt to find out what happened, and should not rely on hasty or illfounded conclusions to close their investigation or as the basis of their decisions. They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence. Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard (see Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08, § 322, ECHR 2014 (extracts), and Kopylov v. Russia, no. 3933/04, § 133, 29 July 2010). Furthermore, the investigation must be independent, impartial and subject to public scrutiny (see Mesut Deniz v. Turkey, no. 36716/07, § 52, 5 November 2013). It should result in a reasoned decision to reassure a concerned public that the rule of law has been respected (see, mutatis mutandis, Kelly and Others v. the United Kingdom, no. 30054/96, § 118, 4 May 2001).\n\n69.  The Court observes that on 29 August 2007 the applicant’s mother, acting as the applicant’s legal representative, complained to the prosecutor’s office that on 28 August 2007 her son had been subjected to illtreatment at the Industrialniy ROVD. The matter was, hence, duly brought before the competent authorities at a time when they could reasonably have been expected to investigate the circumstances in question.\n\n70.  The complaint was substantiated by reference to reports on the applicant’s examination by ambulance paramedics on 28 August and 29 August 2007 and an examination at the hospital on 29 August 2007, attesting to a closed fracture of the nose bones with displacement of fragments and a chest contusion (see paragraphs 8-10 above). The claim was therefore shown to be “arguable” and the domestic authorities were placed under an obligation to conduct an effective investigation satisfying the above-mentioned requirements of Article 3 of the Convention.\n\n71.  The Court notes that in the period between 4 October 2007 and 15 March 2008 the domestic authorities carried out five rounds of “preinvestigation inquiries” into the applicant’s complaint under Article 144 of the Russian Code of Criminal Procedure (проверка по заявлению о преступлении). During that period, the domestic authorities took five decisions to refuse the institution of criminal proceedings against police officers for lack of the constituent elements of a crime in their actions. In the meantime, however, on 13 December 2007 criminal proceedings were instituted against unidentified persons for the intentional infliction of moderately severe damage to the applicant’s health.\n\n72.  The Court found in Lyapin v. Russia (no. 46956/09, 24 July 2014) that in cases of credible allegations of treatment proscribed under Article 3 of the Convention, it was incumbent on the authorities to open a criminal case and conduct an investigation, a “pre-investigation inquiry” alone not being capable of meeting the requirements of an effective investigation under Article 3 (ibid., §§ 128-40). It further found in Razzakov v. Russia (no. 57519/09, 5 February 2015) that a delay in commencing a criminal investigation into credible assertions by the applicant (in that case amounting to five months) had had an unavoidable and significant adverse impact on the investigation, considerably undermining the investigating authority’s ability to secure evidence of the alleged illtreatment (ibid., § 61).\n\n73.  The Court observes that in the present case the delay in opening a criminal case related to the applicant’s complaint of ill-treatment amounted to over three months. The proceedings were subsequently suspended on sixteen occasions in the period between 12 January 2008 and 10 May 2012 on the grounds of it being impossible to identify those responsible for the applicant’s injuries, and they appear to be ongoing to the present day (see paragraphs 26-53 above). Several initial decisions suspending the proceedings were taken without basic investigative measures to establish the circumstances of the alleged ill-treatment (see paragraphs 26, 31, 34, 36 and 38 above). In particular, the applicant was not given victim status and questioned as a victim until four months after the institution of criminal proceedings (see paragraph 33 above). The police officers whom the applicant indicated as the alleged perpetrators were questioned quite late in the proceedings: Officer Ch. was questioned two months after the institution of criminal proceedings, Officer K. almost eight months after and Officer S. two years and eight months after the institution of criminal proceedings (see paragraphs 30, 37 and 51 above). The questioning of other witnesses who had seen the applicant during his arrest and of those who had seen him at the police station thereafter was not carried out with due swiftness either (see paragraphs 35, 39 and 41 above). It took the domestic authorities over a year and seven months to address the contradictory results of the applicant’s psychiatric expert examinations of 4 October 2007 and 28 October 2008 (see paragraph 47 above).\n\n74.  Regard being had to the foregoing, the Court finds that the threemonth delay in opening a criminal case in connection with the applicant’s allegations of being beaten by the police officers at Industrialniy ROVD and the subsequent handling of the criminal proceedings, which are still going on ten years after the events complained of, show that the authorities failed in their obligation to conduct an effective investigation of the applicant’s allegations of police assault.\n\n75.  Accordingly, there has been a violation of Article 3 of the Convention in its procedural aspect.\n\n2.  The applicant’s alleged ill-treatment\n\n76.  The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see Kudła v. Poland [GC], no. , § 90, ECHR 2000XI; see also Bouyid v. Belgium [GC], no. 23380/09, § 81, ECHR 2015).\n\n77.  In order for ill-treatment to fall within the scope of Article 3 it must attain a minimum level of severity. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25).\n\n78.  Where allegations are made under Article 3 of the Convention the Court must apply a particularly thorough scrutiny. Where domestic proceedings have taken place, however, it is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for those courts to assess the evidence before them. Although the Court is not bound by the findings of domestic courts, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by those courts (see Gäfgen v. Germany [GC], no. 22978/05, § 93, ECHR 2010).\n\n79.  In assessing the evidence on which to base a decision as to whether there has been a violation of Article 3, the Court adopts the standard of proof “beyond reasonable doubt”. Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Jalloh v. Germany [GC], no. , § 67, ECHR 2006IX).\n\n80.  Where an individual is taken into police custody in good health and is found to be injured on release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which a clear issue arises under Article 3 (see Ribitsch v. Austria, 4 December 1995, § 34, Series A no. 336, and Selmouni v. France [GC], no. , § 87, ECHR 1999V).\n\n81.  The Court observes that on 28 August 2007 the applicant was arrested and taken to the Industrialniy ROVD, where he was allegedly illtreated by police officers. On the same day an ambulance was called to the police station for the applicant and, several hours later on the following day, one was called to the temporary detention facility and the applicant was found to have face and chest contusions. On 29 August 2007 the applicant was taken to hospital for an X-ray, which showed that he had a closed fracture of the nose bones with displacement of fragments (see paragraphs 8-10 above).\n\n82.  The Court also observes that after six forensic medical examinations experts concluded that the closed fracture of the applicant’s nose and the swelling of the soft tissue in the nasal area could have been caused between 26 August and 28 August 2007; that it could not be completely excluded that the above injury had originated as the result of the impact of a limited protruding object; and that the injured area had also been accessible to the applicant himself. The experts excluded the possibility that the applicant had injured himself by falling on the pavement while running away from Officers S. and K. (as alleged by them) given the absence of any other injuries on prominent parts of his face (nose, cheekbones, forehead) or any other parts of his body (see paragraphs 21, 22 and 25 above).\n\n83.  The Court considers that the medical evidence, along with the allegation that the ill-treatment took place while the applicant was in police custody, created a presumption of fact that the applicant was subjected to ill-treatment at the hands of State agents. That required the Government to provide a satisfactory and convincing explanation as to how the applicant’s injuries could have been caused.\n\n84.  On the basis of all the material placed before it, the Court finds that neither the authorities at the domestic level nor the Government in the proceedings before the Court have advanced any explanation as to the origin of the applicant’s injuries. The Court concludes therefore that the Government have not satisfactorily established that the applicant’s injuries were caused in any other way than by the alleged treatment he suffered at the hands of the police officers on the premises of the Industrialniy ROVD.\n\n85.  Accordingly, having regard to the nature of the applicant’s injuries, the Court concludes that the State is responsible under the substantive aspect of Article 3 on account of the inhuman and degrading treatment to which the applicant was subjected while in the Industrialniy ROVD.\n\nII.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION\n\n86.  The Court has examined the rest of the complaints submitted by the applicant. However, having regard to all the material in its possession, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly illfounded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.\n\nIII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n87.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damages\n\nA.  Damages\n\n88.  The applicant claimed 60,000 euros (EUR) in respect of pecuniary damage (including medical expenses, photocopying, postal and translation expenses, lawyer’s fees, and telephone and travel expenses) and EUR 130,000 in respect of non-pecuniary damage.\n\n89.  The Government submitted that the applicant’s claim in respect of pecuniary damage was unsubstantiated and that his claim for non-pecuniary damage was excessive. They argued that any finding of a violation by the Court would in itself constitute sufficient just satisfaction.\n\n90.  The Court reiterates that there must be a clear causal connection between the pecuniary damage claimed by an applicant and the violation of the Convention found (see, among other authorities, Çakıcı v. Turkey [GC], no. 23657/94, § 127, ECHR 1999IV). In that connection, the Court first of all notes its finding of a violation of Article 3 of the Convention on account of the police’s ill-treatment of the applicant. Furthermore, it has regard to the medical documents submitted by the applicant, confirming that he had surgery for his injury (see paragraph 18 above) and incurred related medical expenses. The Court finds that there is a clear causal connection between the treatment for the injury sustained by the applicant and the violation of Article 3 of the Convention found above. Having regard to the documents in its possession, the Court awards the applicant EUR 500 in that regard.\n\n91.  The Court considers it appropriate to deal with the photocopying, postal and translation expenses, lawyer’s fees, and the telephone and travel expenses claimed by the applicant under the head of costs and expenses.\n\n92.  In so far as non-pecuniary damage is concerned, the Court notes that it has found a violation of the applicant’s right under Article 3 of the Convention not to be subjected to inhuman or degrading treatment. In those circumstances, the Court considers that the applicant’s suffering and frustration cannot be compensated for by a mere finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 20,000 in respect of non-pecuniary damage.\n\nB.  Costs and expenses\n\n93.  As mentioned above (see paragraph 88 above), the applicant claimed costs and expenses incurred in the domestic proceedings and in the proceedings before the Court.\n\n94.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,000, covering costs under all heads.\n\nC.  Default interest\n\n95.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\n1.  Declares the complaint under Article 3 of the Convention admissible and the remainder of the application inadmissible;\n\n2.  Holds that there has been a violation of Article 3 of the Convention under its substantive and procedural limbs;\n\n3.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n4.  Dismisses the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 25 July 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_277","text":"PROCEDURE\n\n1.  The case originated in two applications (nos. 32541/08 and 43441/08) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Russian nationals, Mr Aleksandr Sergeyevich Svinarenko and Mr Valentin Alekseyevich Slyadnev (“the applicants”), on 5 May 2008 and 2 July 2008 respectively.\n\n2.  The applicants were represented by Mr V.G. Palchinskiy and Mr Ye.F. Plotnikov respectively, lawyers practising in Magadan. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the  at the European Court of Human Rights.\n\n3.  The applicants alleged, in particular, that their placement in a metal cage in the courtroom had been contrary to Article 3 of the Convention and that the length of the criminal proceedings against them had been excessive.\n\n4.  On 23 October 2008 the applications were communicated to the Government. It was also decided to rule on the admissibility and merits of the applications at the same time (Article 29 § 1).\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n5.  The applicants were born in 1968 and 1970 respectively and live in the settlement of Sinegorye in the Yagodninskiy District of the Magadan Region.\n\nA.  Preliminary investigation\n\n6.  In 2002 the Far Eastern Federal Circuit Investigation Department of the Investigation Committee at the Ministry of the Interior brought a number of sets of criminal proceedings against a Mr Grishin.\n\n7.  On 24 September 2002 the first applicant was questioned as one of the suspects in those proceedings. On 9 October 2002 he was arrested. In a decision of 12 November 2002 ordering his detention on remand, the Magadan Town Court noted that the crimes he was charged with had been committed during a three-year probation period under a judgment of the Magadan Region Yagodninskiy District Court of 13 April 2001 convicting him of theft and imposing on him a conditional sentence of five years’ imprisonment. It also noted that he had negative references from his place of residence and that he had breached his undertaking to appear before the investigating authority. According to the final charges against the first applicant, he was accused of robbery with violence against Mr A.S. and Mrs T.S. in September 2002 as a member of a gang led by Mr Grishin, and of the illegal acquisition, storage, transportation and carrying of ammunition.\n\n8.  On 20 January 2003 the second applicant, who was serving a sentence of imprisonment after his conviction by the Magadan Region Yagodninskiy District Court on 26 July 2002 for negligent infliction of death under Article 109 § 1 of the Criminal Code of the Russian Federation (“the CC”), was questioned as one of the suspects in the proceedings brought against Mr Grishin. On 22 January 2003 he was charged with the following crimes:\n\n(i)  establishing an armed gang under Mr Grishin’s leadership and participating in the gang’s attacks on citizens from October 2001 to September 2002 – under Article 209 § 1 of the CC;\n\n(ii)  the robbery in October 2001 of Mr V.B., the director of a private goldrefining company, with the use of weapons and violence endangering life and health and a threat to use such violence, by an organised group, with the aim of misappropriating another’s property of substantial value – under Article 162 § 3 of the CC;\n\n(iii)  illegal storage and transportation of precious metals (industrial gold stolen from Mr V.B.) of substantial value by an organised group in October 2001 – under Article 191 § 2 of the CC;\n\n(iv)  extortion (from Mr V.B.) in October 2001 with the aim of obtaining a right to property under the threat of the use of violence, repeatedly, by an organised group – under Article 163 § 3 of the CC;\n\n(v)  the robbery of Mr Ya.B. in October 2001 with the use of weapons and violence endangering life and health and the threat to use such violence, by a group of persons according to a premeditated plan, repeatedly, by means of illegal entry into a dwelling with the aim of misappropriating another’s property of substantial value – under Article 162 § 3 of the CC; and\n\n(vi)  illegal acquisition, storage, transfer, transportation and carrying of firearms, repeatedly, by an organised group in October 2001 – under Article 222 § 3 of the CC.\n\n9.  On 11 April 2003 the Magadan Region Khasynskiy District Court found the second applicant to be eligible, in view of his orderly behaviour and positive references, for early conditional release one year and three months ahead of the term of two years and three months to which he had been sentenced under the Yagodninskiy District Court’s judgment of 26 July 2002.\n\n10.  On 24 April 2003 the  ordered the second applicant’s remand in custody pending the current criminal proceedings against him. It noted, inter alia, that he was accused of grave crimes which had been committed during a three-year probation period under the Yagodninskiy District Court’s judgment of 15 June 2001 convicting him of hooliganism and infliction of bodily harm and sentencing him conditionally to four years’ imprisonment.\n\n11.  On 20 May 2003 the investigation was completed and the defence received access to the case file.\n\n12.  On 13 August 2003 the  found that the second applicant had been deliberately delaying the examination of the case file and set a time-limit for the examination at 5 September 2003.\n\nB.  Jury trial\n\n1.  First set of proceedings\n\n13.  On 19 September 2003 the case was sent for trial to the Magadan Regional Court, which scheduled for 2 October 2003 and held from 16 October to 26 December 2003 a preliminary hearing to decide on numerous requests by the applicants and their two co-defendants concerning the admissibility of the evidence and other procedural issues, as well as to prepare the jury trial requested by the defendants. During this period the hearing was postponed for about four weeks at the co-defendants’ request.\n\n14.  As a result of the preliminary hearing, on 26 December 2003 the  ordered that the case be examined at an open hearing by a jury on 23 January 2004. On that day fewer than twenty candidate jurors appeared before the court instead of the fifty invited and the court, therefore, ordered that another 100 candidate jurors be summoned.\n\n15.  On 13 February 2004 a jury was formed and the jurors were sworn in.\n\n16.  The  held about thirty court sessions, during which it decided various procedural issues, such as the replacement of some jurors, the exclusion or examination of certain evidence and the ordering of expert opinions. It examined the evidence, including the testimony of the victims, witnesses and experts, and heard the defendants. The hearing was adjourned for two weeks as one of the defence lawyers could not attend.\n\n17.  On 15 June 2004 the prosecution amended one of the robbery charges against the second applicant (concerning Mr Ya.B.) to the milder charge of “arbitrary unlawful acts with the use of violence”, under Article 330 § 2 of the CC.\n\n18.  On 22 June 2004 the jury found the applicants not guilty. They were released in the courtroom. On 29 June 2004 the  delivered a judgment in which they were acquitted and their right to rehabilitation was acknowledged.\n\n19.  The co-defendants and the prosecution appealed against the trial court’s judgment. On 7 December 2004 the Supreme Court examined the case on appeal and quashed the judgment on the grounds, inter alia, that some of the jurors had concealed information about their family members’ criminal records although they had been obliged to disclose such information to the parties and the court at the time of their selection, and that the presiding judge had failed to sum up all the evidence in his directions to the jury, in particular the victims’ and witnesses’ statements. It remitted the case to the  for fresh examination.\n\n2.  Second set of proceedings\n\n20.  On 21 December 2004 the  received the case file. It adjourned its hearing twice, on 31 January and 7 February 2005, as the second applicant’s lawyer had failed to appear.\n\n21.  In a decision of 8 February 2005 the  imposed on the defendants an undertaking not to leave their place of residence without its authorisation, to appear before it when summoned, and not to obstruct the proceedings.\n\n22.  The Regional Court’s decision of the same date to remit the case to the Magadan Regional Prosecutor for the rectification of errors in the indictment was appealed against by the defence and quashed as erroneous by the Supreme Court on 26 April 2005.\n\n23.  The hearing before the  was adjourned on 17 June 2005 as a result of the first applicant’s and a co-defendant’s failure to appear, for unknown reasons. It was adjourned again on 21 June 2005 owing to a co-defendant’s hospitalisation and the impossibility of examining the case in respect of the others in separate proceedings.\n\n24.  The hearing resumed on 22 November 2005. On that day, however, fewer than twenty candidate jurors appeared before the court instead of the thirty invited and the court, therefore, ordered that another 100 candidate jurors be summoned.\n\n24.  The hearing resumed on 22 November 2005. On that day, however, fewer than twenty candidate jurors appeared before the court instead of the thirty invited and the court, therefore, ordered that another 100 candidate jurors be summoned.\n\n24.  The hearing resumed on 22 November 2005. On that day, however, fewer than twenty candidate jurors appeared before the court instead of the thirty invited and the court, therefore, ordered that another 100 candidate jurors be summoned.\n\n25.  On 6 December 2005 the  ordered that the applicants and the other two defendants be detained on remand. It noted the applicants’ previous convictions, the serious charges against them, and the fact that during the preliminary investigation and the current trial some of the witnesses had expressed fears of unlawful behaviour by the defendants. In its decision it did not give any details concerning the fears referred to, or the names of the defendants concerned. The first applicant’s appeal against the detention order, in which he argued, inter alia, that the witnesses’ fears did not relate to him, was dismissed. The applicants’ detention was subsequently extended for similar reasons.\n\n25.  On 6 December 2005 the  ordered that the applicants and the other two defendants be detained on remand. It noted the applicants’ previous convictions, the serious charges against them, and the fact that during the preliminary investigation and the current trial some of the witnesses had expressed fears of unlawful behaviour by the defendants. In its decision it did not give any details concerning the fears referred to, or the names of the defendants concerned. The first applicant’s appeal against the detention order, in which he argued, inter alia, that the witnesses’ fears did not relate to him, was dismissed. The applicants’ detention was subsequently extended for similar reasons.\n\n25.  On 6 December 2005 the  ordered that the applicants and the other two defendants be detained on remand. It noted the applicants’ previous convictions, the serious charges against them, and the fact that during the preliminary investigation and the current trial some of the witnesses had expressed fears of unlawful behaviour by the defendants. In its decision it did not give any details concerning the fears referred to, or the names of the defendants concerned. The first applicant’s appeal against the detention order, in which he argued, inter alia, that the witnesses’ fears did not relate to him, was dismissed. The applicants’ detention was subsequently extended for similar reasons.\n\n26.  On 9 December 2005 the jury was formed and the court held hearings on 12, 20 and 23 December 2005. On the last-mentioned date one of the co-defendants was granted leave to retain a new lawyer. On 27 December his new lawyer failed to appear and the hearing was adjourned until 10 January 2006, 1-9 January being non-working days. The  continued the examination of the case in January. It ruled on numerous procedural requests by the defence, in particular, challenges to the presiding judge and the prosecutor.\n\n27.  As the witnesses and victims who lived in Sinegorye had failed to appear at the hearings several times, on 17 January the court ordered them to be brought before it by force. The hearing was adjourned on 20 January until 27 January and on 26 February until 10 March 2006 pending the execution of that order.\n\n28.  The examination of the case continued in February, March, April and May 2006. During this time the hearing was adjourned on a number of occasions for about four weeks in total at the request of jurors who could not participate, and for about a week at the request of one of the defence lawyers, who was ill. On 2 June 2006 the presiding judge declared the examination of the evidence closed. In five sessions in June 2006 the  heard the parties’ pleadings. It announced a break from 14 July until 3 October 2006 in view of the fact that several jurors were leaving for summer holidays in central .\n\n29.  The hearing resumed on 3 October 2006. Having consulted the parties, the court decided that they would repeat their pleadings. They did so on 6, 12 and 19 October and 2 November 2006. The preparation of questions to be put to the jury followed. The jury delivered its verdict on 17 November 2006. The first applicant was found not guilty and was released in the courtroom.\n\n30.  On 5 December 2006, after an examination of the legal issues during the sessions held in November and December, the  delivered its judgment. The first applicant was acquitted and his right to rehabilitation was acknowledged. The second applicant was convicted of extortion (from Mr V.B.), and arbitrary unlawful acts with the use of violence (in respect of Mr Ya.B.), and was sentenced to seven years’ imprisonment, which took into account his 2001 conviction, in respect of which the conditional sentence was revoked, and acquitted on the remaining charges. His detention on remand was to continue until the judgment took effect.\n\n31.  On 6 June 2007 the Supreme Court examined the appeals against the judgment lodged by Mr Grishin, one of the victims and the prosecution. It found a violation of the rules pertaining to a criminal trial by the defendants and their lawyers, who had abused their rights and, despite the presiding judge’s warnings, discussed, in the jurors’ presence, issues which fell outside the scope of their competence, such as the alleged falsification of evidence, alleged violations of the law when obtaining evidence, for example, by the torturing one of the defendants, and the allegation that a certain victim had given statements on the investigators’ instructions. They had made remarks which did not concern the issues to be decided by the jury and which had been aimed at discrediting the evidence against them, thus creating a negative impression of the victims and the presiding judge, and a positive one of themselves. This was held to have unlawfully influenced the jury’s verdict. It was also noted that the jury’s verdict had not been entirely clear as some of the answers had been contradictory. The Supreme Court quashed the judgment and remitted the case to the  for fresh examination. It also ordered that the second applicant should remain in custody.\n\n32.  In August 2007 the first applicant was detained on remand in connection with another set of criminal proceedings brought against him on suspicion of extortion allegedly committed in 2002.\n\n3.  Third set of proceedings\n\n33.  On 4 September 2007 the  received the case file and opened the proceedings. On 5 October 2007 fewer than twenty candidate jurors appeared before the  instead of the 100 invited and the court, therefore, ordered that another 150 candidate jurors be summoned.\n\n34.  On 2 November 2007 the selection of the jurors began. However, after a number of candidate jurors refused sit in the case, their number was still insufficient and the court ordered that another 150 candidate jurors be summoned. The same situation occurred on 22 November 2007.\n\n35.  The number of candidate jurors who appeared before the Regional Court was again insufficient on 11 December 2007 and 17 January 2008, which necessitated the summoning of an additional 200 and 250 persons respectively.\n\n36.  The jury was formed on 5 February 2008 and the trial commenced. The court held five or six sessions monthly from February to June 2008, two sessions in July, four in August (after a break for jurors’ holidays from 1 July to 18 August), eleven in September, six in October, ten in November and four in December 2008. Some of the sessions were held without the jury as they concerned various procedural issues, including the admissibility of evidence and requests for the examination of the evidence before the jury. The court examined the vast body of evidence, including the testimony of more than seventy victims and witnesses, and numerous expert reports.\n\n37.  For about a month the trial was delayed because Mr Grishin was ill. Some delay was due to difficulties in ensuring the appearance of a number of the victims and witnesses, who resided in remote settlements in Burkhala and Sinegorye or had moved to the central and other parts of the country.\n\n38.  On 13 February 2009 the  started hearing the parties’ pleadings.\n\n39.  On 7 March 2009 the jury returned a not guilty verdict in respect of the first applicant. It found the second applicant guilty of arbitrary unlawful acts and not guilty of the remaining charges.\n\n40.  On 12 March 2009 the  ordered the second applicant’s release on an undertaking not to leave his place of residence and that he would behave in a law-abiding manner.\n\n41.  On 19 March 2009 it delivered its judgment, acquitting the first applicant and finding as follows in respect of the second applicant:\n\nOn 11 October 2001 Grishin, Slyadnev and N.G., against whom the criminal proceedings were terminated owing to his death, had requested Ya.B. to repay a debt in the amount of 100,000 Russian roubles (RUB). Following his refusal, Grishin and N.G. had beaten him up. Slyadnev had beaten up S.K., who had witnessed Ya.B.’s beating. They had then taken Ya.B. to his home and Grishin had taken money from him in the amount of RUB 247,000.\n\n42.  The Regional Court considered that, given the gravity of the acts committed by Mr Grishin and the second applicant, as well as the specific circumstances, which characterised the crimes committed by them as brazen attacks on citizens using violence, threats and weapons, the deprivation of their liberty was the only proper punishment for each of them. The Regional Court convicted the second applicant under Article 330 § 2 of the CC for arbitrary unlawful acts with the use of violence, sentenced him to two years and ten months’ imprisonment, revoked the conditional sentence under his 2001 conviction as the new crime had been committed during the probation period, and, after adding the revoked conditional sentence, sentenced him to a total of four years and five months’ imprisonment, discharged him from serving the sentence in the part relating to the conviction under Article 330 § 2 as criminal liability had become time-barred, and found that he had served his sentence in the remaining part in view of his detention on remand from 24 April 2003 to 22 June 2004 and from 6 December 2005 to 12 March 2009, which amounted to four years, five months and six days in total. It acquitted him of the remaining charges.\n\n43.  On 23 July 2009 the Supreme Court dismissed an appeal by Mr Grishin and the prosecution and upheld the judgment.\n\nC.  Conditions in the courtroom\n\n44.  During the applicants’ detention on remand they were taken to the  from their detention facility by police guards. During the hearings they sat on a bench enclosed on four sides by a metal railing. The enclosure was 255 centimetres long, 150 centimetres wide and 225 centimetres high, with a doorway. The distance between the railing rods, which were 10 millimetres in diameter, was 19 centimetres.\n\n45.  According to the first applicant’s additional information, armed policemen were on guard near the caged dock. There were always two policemen per each detainee  eight policemen in total during the first two sets of proceedings and six policemen during the third set of trial proceedings.\n\nD.  Compensation proceedings\n\n46.  On 25 August 2009 the first applicant, who had been acquitted of all charges, brought proceedings for compensation in respect of pecuniary and nonpecuniary damage incurred as a result of the criminal proceedings against him, in particular, his detention on remand. On 23 October 2009 the  awarded him RUB 18,569 by way of damages. On 1 March 2010 the  awarded him RUB 50,000 in respect of non-pecuniary damage, to be paid by the Ministry of Finance.\n\nII.  RELEVANT DOMESTIC LAW\n\nA.  Code of Criminal Proceedings\n\n47.  Article 9 of the Code of Criminal Procedure of the  prohibits torture and inhuman or degrading treatment of a defendant or other participants in criminal proceedings.\n\nB.  Construction rules\n\n48.  Under the Rules on the Design and Construction of Courthouses, in force since 1 August 2000, courtrooms for the hearing of criminal cases must have a subzone for defendants and guards, which must be enclosed on four sides with a railing made of metal rods 14 millimetres in diameter, 220 centimetres high or extending up to the ceiling, with a doorway and a steelwire ceiling (paragraphs 5.4, 5.9 and 8.3 of the Rules СП 311042000, as approved by the Courts Administration Office at the Russian Federation Supreme Court on 2 December 1999). Access from the defendants’ cells in the courthouse to the courtroom must be through separate corridors and stairs and a separate entry to the courtroom. There must be metal detectors at the public entrance to the courthouse and metal bars on the windows in the courtroom (paragraphs 5.11, 8.1, 8.2 and 5.35 of the Rules).\n\nC.  The Ministry of the Interior internal regulations and their review by the Supreme Court\n\n49.  Under the Directions on the Functioning of Temporary Detention Centres and Police Guard and Convoy units, approved by Order no. 140 of Ministry of the Interior of the Russian Federation on 7 March 2006 (“Order no. 140”), suspects and accused are taken from their detention facility to the courthouse by police guards and are placed in the courtroom in a dock behind a barrier (“metal railing”). It is prohibited to take them to a courtroom which is not equipped with a barrier (“metal railing”). The same rules were contained in directions approved by Order no. 41 of the Ministry of the Interior of the  on 26 January 1996, which was in force before Order no. 140.\n\n50.  Both Orders were issued for internal use only. Applications challenging their legality on the basis of lack of official publication were dismissed by the Supreme Court of the Russian Federation, which found that they contained confidential information and had been registered with the Ministry of Justice of Russia (decision of 2 December 2002, as upheld by the appeal section of the Supreme Court on 24 April 2003 in respect of Order no. 41, and decision of 7 December 2011 in respect of Order no. 140).\n\n51.  Order no. 41 was also challenged before the Supreme Court by a Mr Sh. on the ground that its provision on keeping defendants behind a “metal railing” during their trials violated domestic law and the Convention in so far as they prohibited degrading treatment and guaranteed the right to a fair trial. The Supreme Court dismissed that appeal in a decision of 19 October 2004. It noted that the impugned provision concerned persons detained on remand by a court decision in accordance with the requirements of the Code of Criminal Procedure. The police were responsible for guarding and taking them to a courthouse from their detention facilities (Article 10 § 16 of the Law on Militia). The Rules on the Design and Construction of Courthouses provided for the installation of “metal railings” for defendants as one of the security requirements. Detention on remand was to be carried out in accordance with the principles of legality, fairness, the presumption of innocence, equality before the law, humanism, and respect for human dignity, and in accordance with the Constitution, the principles and norms of international law, and the international agreements of the Russian Federation, and must not be accompanied by torture or other acts aimed at the infliction of physical or moral suffering (the Federal Law on the Detention of Suspects and Defendants charged with Criminal Offences).\n\n52.  On 23 December 2004 the decision was upheld on appeal by the appeal section of the Supreme Court, which noted that, in so far as Mr Sh. had argued that he had actually been held in a “metal cage”, the disputed Order had not set out the technical characteristics of the “barrier (metal railing)”.\n\nTHE LAW\n\nI.  JOINDER OF APPLICATIONS\n\n53.  Given that the applications at hand concern similar facts and complaints and raise identical issues under the Convention, the Court decides to join them pursuant to Rule 42 § 1 of the Rules of Court.\n\nII.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION\n\n54.  The applicants complained that during their detention on remand they had appeared before the jury court in a metal cage, like “monkeys in a zoo”, and had thereby been subjected to humiliating treatment injuring their honour and dignity. They relied on Article 3 of the Convention, which provides:\n\n“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”\n\n55.  The Government submitted that keeping defendants in a metal cage in the courtroom was an ordinary security measure. Cages were permanently installed in courtrooms for hearing criminal cases in accordance with the detailed design contained in the Rules for the Construction and Design of Courthouses, approved by the Supreme Court of the  in 1999 (see paragraph 48 above). By Order no. 140, issued in 2006, the Ministry of Interior prohibited its convoy guards from taking suspects and accused to courtrooms which were not equipped with the cages (see paragraph 49 above).\n\n56.  The Government argued that it had not been the intention of the authorities to inflict any harm, subject the applicants to torture, humiliate them, make them endure physical or moral suffering, or cause them to feel like “monkeys in a zoo”. The applicants had failed to submit any information as to the physical or mental effect their placement in the “metal cage” had had on them, if there had been any such effect at all.\n\n57.  The first applicant submitted that his exposure to the public – the inhabitants of Sinegorye, where he lived, and Magadan, as well as the jury – in a metal cage, like a dangerous “animal” requiring high security measures, had humiliated him and caused him suffering. The second applicant added that it had prejudiced the jury against him.\n\n1.  Admissibility\n\n58.  The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes, therefore, that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring it inadmissible has been established. It must therefore be declared admissible.\n\n2.  Merits\n\n59.  The Court reiterates that Article 3 of the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see, for example, Labita v.  [GC], no. 26772/95, § 119, ECHR 2000IV).\n\n60.  Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the nature and context of the treatment, the manner and method of its execution, its duration, its physical or mental effects and, in some instances, the sex, age and state of health of the victim (see Kudła v. Poland [GC], no. 30210/96, § 91, ECHR 2000XI).\n\n61.  Where treatment humiliates or debases an individual, showing a lack of respect for, or diminishing, his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, it may be characterised as degrading and fall within the prohibition of Article 3 (see Pretty v. the , no. 2346/02, § 52, ECHR 2002III). The suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment (see Kudła, cited above, § 92).\n\n62.  The question whether the purpose of the treatment was to humiliate or debase the victim is a factor to be taken into account, but the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3 (see V. v. the  [GC], no. 24888/94, § 71, ECHR 1999IX). The public nature of the treatment may be a relevant factor, although it may be sufficient that the victim is humiliated in his or her own eyes (see Tyrer v. the United Kingdom, 25 April 1978, § 32, Series A no. 26).\n\n63.  A measure of restraint does not normally give rise to an issue under Article 3 where the measure has been imposed in connection with a lawful detention and does not entail a use of force, or public exposure, exceeding what is reasonably considered necessary. In this regard, it is important to consider, for instance, whether there is a danger that the person concerned might abscond or cause injury or damage (see Raninen v. Finland, 16 December 1997, § 56, Reports of Judgments and Decisions 1997VIII). In respect of a person deprived of his liberty, recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 (see Labita, cited above, § 120).\n\n64.  In applying the above principles to the case of Sarban v. Moldova, the Court found that keeping the applicant, who was ill, wore a surgical collar, was handcuffed and under guard, in a cage during hearings which were given much publicity, so that a doctor had to measure his blood pressure through the bars of the cage in front of the public, was a factor contributing to its finding that the applicant had been subjected to degrading treatment contrary to Article 3 (see Sarban v. Moldova, no. 3456/05, §§ 8890, 4 October 2005). In the case of Ramishvili and Kokhreidze v. Georgia, in which the applicants, who were public figures, were held in a cage and guarded by heavily armed men wearing black hood-like masks during the judicial review of their detention while the hearing was broadcast live throughout the country, the Court also found such treatment to have been degrading (see Ramishvili and Kokhreidze v. Georgia, no. 1704/06, § 101, 27 January 2009). It found likewise in two other cases in which applicants were kept in a cage during appeal proceedings (see Ashot Harutyunyan v. , no. 34334/04, §§ 126-129, 15 June 2010), or the entire trial (see Khodorkovskiy v. , no. 5829/04, §§ 125-126, 31 May 2011). The fact that the applicants were accused of non-violent crimes and had no previous convictions, together with their orderly behaviour and the absence of any evidence giving serious grounds for fears that they would resort to violence, abscond, or that their own safety would be at risk, were factors taken into account by the Court.\n\n65.  In the above cases it was not the placement in a cage as such but its unjustified or disproportionate use in the individual circumstances that led the Court to conclude that it was degrading. Similar considerations applied to the finding of a violation of Article 3 in the case of Gorodnitchev, where the applicant appeared at public hearings in handcuffs (see Gorodnitchev v. Russia, no. 52058/99, §§ 103-109, 24 May 2007) and, most recently, in the case of Piruzyan (see Piruzyan v. , no. 33376/07, §§ 6974, ECHR 2012 (extracts).\n\n66.  The Court notes that Armenia and , for example, have removed the cages from their courtrooms as a result of reforms (see Ashot Harutyunyan, cited above, § 118, and the Council of Europe Committee of Ministers’ Resolution CM/ResDH(2011)105). In  the cages are still used in many regions and, as the Government explained, this is a usual security measure applicable to any accused detained on remand. It can be seen from the Government’s submissions that the legal basis for such common practice is to be found in the construction rules for courthouses, and the Ministry of the Interior’s unpublished internal regulations (see paragraphs 4953 and 55 above). In their submissions to the Court the Government did not mention any alternative practices for the arrangement of courtrooms.\n\n67.  The applicants complained about their placement in a metal cage in the courtroom during the third round of their jury trial, when the first applicant was detained on remand in connection with another set of criminal proceedings brought against him and the second applicant was detained on remand pending the trial in question. No reasons were given by the trial court for subjecting them to such treatment.\n\n68.  The Court notes that the applicants were accused of violent crimes such as robbery (both applicants) and banditry (second applicant). They had previous convictions for theft (first applicant) and hooliganism, infliction of bodily harm and negligent infliction of death (second applicant). Furthermore, the witnesses’ fear of the defendants’ unlawful behaviour was cited among the grounds for their detention on remand.\n\n69.  At the same time, the Court notes that although the vague reference to witnesses’ fears appears in some of the detention orders, it is unclear, in the absence of any details or the names of the defendants concerned, given that there were four defendants on trial, whether those fears related to the applicants and whether they were justified (see paragraph 25 above). It further notes that shortly before the second applicant’s detention on remand the court had granted him early release from serving his sentence after his previous conviction in view of his orderly behaviour and positive references (see paragraph 9 above). There is nothing in the materials before the Court which would point to the applicants’ improper or violent behaviour during their trial. No arguments to the contrary have been advanced by the Government.\n\n70.  Noting that the applicants were constantly guarded by armed police officers, and that other security measures had also to be taken in the courtroom (see paragraphs 45 and 48 above), and having regard to the absence of any evidence capable of giving serious grounds for the fear that the applicants posed a danger to order and security in the courtroom, or would resort to violence or abscond, or that there was a risk to their own safety, the Court finds that their placement in the cage, where they were exposed to the public in the courtroom, was not justified. The Court considers that the impugned treatment humiliated the applicants in their own eyes and in those of the public and aroused in them feelings of anguish and inferiority amounting to degrading treatment.\n\n71.  There has accordingly been a violation of Article 3 of the Convention.\n\nIII.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION\n\n72.  The applicants complained that the length of the proceedings had been incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention, which reads, in so far as relevant, as follows:\n\n“In the determination of ... any criminal charge against him everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”\n\n73.  The Government contested the applicants’ argument.\n\n74.  The period to be taken into consideration began on 24 September 2002 in respect of the first applicant and on 20 January 2003 in respect of the second applicant. On those dates they were questioned as suspects in the case. It ended on 23 July 2009, when the trial court’s judgment was upheld on appeal. It thus lasted six years and ten months for the first applicant and six and a half years for the second applicant, with two levels of jurisdiction involved.\n\nA.  Admissibility\n\n75.  The Court notes that this complaint is not manifestly illfounded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n76.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case and the conduct of the applicant and the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999II).\n\n77.  The Court observes that the case was very complex. It comprised more than ten counts of serious crimes and four accused. It involved more than seventy victims and witnesses, many of whom resided in remote settlements situated more than 500 kilometres away from Magadan where the trial was held. Numerous expert reports were ordered and examined in the course of the trial.\n\n78.  The preliminary investigation in the case lasted less than a year. During that time the second applicant deliberately delayed the examination of the case file between 20 May and 13 August 2003 (see paragraphs 1112 above).\n\n79.  The applicants and their co-defendants, who were all represented by lawyers, chose a jury trial. The case was considered by a jury court three times, as the Magadan Regional Court’s judgment was twice set aside on appeal by the Supreme Court of the .\n\n80.  On the first occasion it took the Regional Court nine months to hold the jury trial and deliver its judgment in June 2004, when the applicants, who had been detained on remand, were acquitted and released. During that time the hearing was adjourned for about four weeks at the request of the codefendants, and for two weeks when one of the defence lawyers could not attend. It then took the Supreme Court six months to examine the case on appeal.\n\n81.  The Court considers that up to that point there had been no delays attributable to the authorities.\n\n86.  The appeal against the Regional Court’s second judgment was examined in six months, and on 6 June 2007 the judgment was quashed, this time on the ground, in particular, that the defendants and their lawyers had abused their rights and violated the jury trial procedure in an attempt to influence the jurors’ verdict. They thereby contributed to the resultant delay in the proceedings.\n\n87.  For a year and nine months, until the third judgment was delivered, and while the second applicant continued to be held on remand, the case lay dormant for three months before the  opened the proceedings in September 2007. Another five months passed before the jury was formed and the trial could begin, which then lasted for more than a year. The hearing was adjourned for about a month owing to a co-defendant’s illness. The appeal against the third judgment was examined in four months; on 23 July 2009 the appeal was rejected and the judgment was upheld.\n\n88.  Even though there were some delays for which the applicants or their co-defendants were responsible, and which do not engage the State’s responsibility, there were significant delays attributable to the State during the period when the case was pending before the trial court for the second and the third time which amounted to at least a year, and during that time the applicants were detained on remand, so that particular diligence was required on the part of the domestic courts to administer justice expeditiously (see Kalashnikov, cited above, § 132). While taking into account the complexity of the case and the difficulties which the Magadan Regional Court faced, the Court reiterates that the State remains responsible for the efficiency of its system, and the manner in which it provides for mechanisms to comply with the “reasonable time” requirement – whether by automatic time-limits and directions or some other method – is for it to decide. If a State allows proceedings to continue beyond the “reasonable time” prescribed by Article 6 of the Convention without doing anything to advance them, it will be responsible for the resultant delay (see Blake v. the United Kingdom, no. 68890/01, § 45, 26 September 2006).\n\n89.  Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.\n\n90.  There has accordingly been a breach of Article 6 § 1.\n\nIV.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION\n\n91.  As regards the applicants’ remaining complaints concerning, in particular, the appeal court’s quashing of their acquittal, the first applicant’s detention on remand, and the second applicant’s conviction and his claim that he was discriminated against compared to one of his co-defendants who remained at liberty while he was detained on remand, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.\n\n92.  It follows that these parts of the applications are manifestly illfounded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.\n\nV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n93.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n94.  Mr Svinarenko claimed 78,000 euros (EUR) in respect of nonpecuniary damage and EUR 2,000, representing the alleged loss of an unemployment allowance during the criminal proceedings against him, in respect of pecuniary damage. Mr Slyadnev claimed EUR 15,000 in respect of nonpecuniary damage and 2,000,000 Russian roubles (RUB), representing the alleged loss of income during his detention on remand, in respect of pecuniary damage.\n\n95.  The Government contested the claims.\n\n96.  The Court does not discern any causal link between the violations found and the pecuniary damage alleged; it therefore rejects these claims. On the other hand, it awards EUR 7,500 to each applicant in respect of nonpecuniary damage.\n\nB.  Costs and expenses\n\n97.  Mr Slyadnev also claimed RUB 317,476 which he had allegedly been ordered to pay by a domestic court for his legal representation in the domestic criminal proceedings against him.\n\n98.  The Government stated that the applicant had been ordered to pay RUB 175,000 to the federal budget in partial compensation for the legal costs borne by the State.\n\n99.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the violations of the Convention found, the documents in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings.\n\nC.  Default interest\n\n100.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n2.  Declares the complaints concerning the applicants’ placement in a “metal cage” and the length of the criminal proceedings against them admissible and the remainder of the applications inadmissible;\n\n3.  Holds that there has been a violation of Article 3 of the Convention on account of the applicants’ placement in a metal cage in the courtroom;\n\n4.  Holds that there has been a violation of Article 6 § 1 of the Convention on account of the length of the criminal proceedings against the applicants;\n\n5.  Holds\n\n(a)  that the respondent State is to pay each applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 7,500 (seven thousand five hundred euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, to be converted into Russian roubles at the rate applicable at the date of settlement;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n6.  Dismisses the remainder of the applicants’ claims for just satisfaction.\n\nDone in English, and notified in writing on 11 December 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_152","text":"PROCEDURE\n\n1.  The case originated in an application (no. 20746/05) against  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Ms Natalya Vladislavovna Fedorchuk (“the applicant”), on 18 May 2005.\n\n2.  The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.\n\n3.  On 24 October 2005 the Court decided to communicate the complaints concerning the length of the civil proceedings and the lack of remedies in that respect to the Government. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time.\n\nTHE FACTS\n\nTHE CIRCUMSTANCES OF THE CASE\n\n4.  The applicant was born in 1962 and lives in .\n\nA.  Criminal proceedings\n\n5.  In April 1997 the applicant instituted criminal proceedings against Mr V.S., accusing him of fraud and forgery. She contended that in 1995 she had prepared a notarially recorded power of attorney in his name with an intention to authorize him to sell her apartment. However, she had not handed the original document to him and left for , where she had worked until 1997. Having returned to , she had learned that Mr V.S. had sold her apartment to a certain Mr D.D., who had subsequently exchanged it for Mrs L.Ch.'s house.\n\n6.  Subsequently, an expert established that the particular copy of the power of attorney, which had been used by Mr V.S. for concluding the sale agreement, contained the applicant's forged signature.\n\n7.  On 30 April 1997 the criminal proceedings were suspended, as Mr V.S.'s whereabouts were unknown and he was placed on the national “wanted” list.\n\nB.  Civil proceedings\n\n8.  In April 1997 the applicant also instituted civil proceedings against Mrs L.Ch., Mr D.D., and Mr V.S., claiming restitution of the apartment.\n\n9.  On 30 June 1997 the Suvorovsky District Court of  (Суворовський районний суд м. Херсона) allowed the applicant's claim. This judgment became final.\n\n10.  On 28 November 1997 the Presidium of the  (“the ”; Херсонський обласний суд) quashed the judgment of 30 June 1997 following a supervisory protest of the Deputy Regional Prosecutor and remitted the case for a fresh consideration.\n\n11.  On 30 August 2000 Mr D.D. and Mrs L.Ch. lodged a counterclaim, maintaining that Mr V.S. had been duly authorized to sell the apartment.\n\n12.  On 5 September 2000 the  dismissed the applicant's claim and allowed the counterclaim. It recalled that the applicant had not officially revoked the authorization to sell her apartment, which had remained on the notary register, and so the forgery of a particular copy of the power of attorney had not made the sales agreement null and void. This judgment became final.\n\n13.  On 18 December 2000 the  quashed this judgment following a supervisory protest introduced by the Deputy Regional Prosecutor and remitted the case for a fresh consideration.\n\n14.  On 15 November 2002 the  dismissed the applicant's claim and allowed the counterclaim, having found that it could not invalidate the sales agreement solely on the basis of an expert opinion that a copy of the power of attorney had been forged. The applicant appealed pursuant a newly introduced appeal procedure.\n\n15.  On 5 March 2003 the  dismissed the applicant's appeal. On 17 March 2003 the applicant appealed in cassation.\n\n16.  On 19 November 2004 the Supreme Court rejected the applicant's request for leave to appeal in cassation.\n\n17.  In the course of the proceedings, the first-instance court scheduled some fifty hearings. Some twenty of them were adjourned on account of the defendants' absences. Some seven adjournments were attributable to the applicant's absences or her requests for adjournments. Four hearings were adjourned on account of both parties' absence.\n\nTHE LAW\n\nI.  COMPLAINT ABOUT THE UNREASONABLE LENGTH OF THE CIVIL PROCEEDINGS\n\n18.  The applicant complained that the length of the civil proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:\n\n“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”\n\n19.  The Government contested that argument.\n\n20.  The Court notes that the proceedings at issue were instituted in April 1997. However, the period to be taken into consideration began only on 11 September 1997, when the recognition by  of the right of individual petition took effect. Nevertheless, in assessing the reasonableness of the time that elapsed after that date, account must be taken of the state of proceedings at the time.\n\n21.  The period in question ended on 19 November 2004. It thus lasted seven years and two months for three levels of jurisdiction. The Court recalls, however, that it is appropriate to take into account only those periods when the case was actually pending before the courts, that is the periods when the authorities were under an obligation to determine the issue within a “reasonable time” (Golovko v. , no. 39161/02, § 49, 1 February 2007). Accordingly, the two-month period between 11 September and 28 November 1997 and the three-month period between 5 September and 18 December 2000, when there existed a final judgment in the case (paragraphs 10 and 13 above), should be excluded from the calculation. Thus, the period to be taken into consideration lasted six years and nine months.\n\nA.  Admissibility\n\n22.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n23.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).\n\n24.  The Court finds that the complexity of the case and the applicant's conduct alone cannot explain the overall length of the proceedings. It considers that a number of delays (in particular, remittals of the case for a fresh consideration after the judgments therein became final, prolonged period of inactivity in considering the applicant's cassation appeal and failures of the first-instance court to ensure the defendants' presence) are attributable to the Government.\n\n25.  The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above; Smirnova v. , no. 36655/02, 8 November 2005 and Golovko v. Ukraine, cited above).\n\n26.  Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.\n\n27.  There has accordingly been a breach of Article 6 § 1.\n\nII.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION\n\n28.  The applicant further complained that she had no effective remedies for her complaint concerning the excessive length of the proceedings. She relied on Article 13 of the Convention.\n\n29.  The Government considered that Article 13 was not applicable to the circumstances of the case as the applicant had not made out an arguable claim under Article 6 § 1.\n\n30.  The Court refers to its findings in paragraphs 22 and 27 above and notes that this complaint is linked to the applicant's complaint under Article 6 § 1. The Court finds that it must be declared admissible.\n\n31.  The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI). The Government did not indicate any such remedy available to the applicant.\n\n32.  The Court considers that in the present case there has been a violation of Article 13 of the Convention on account of the lack of a remedy under domestic law whereby the applicant could have obtained a ruling upholding her right to have her case heard within a reasonable time, as set forth in Article 6 § 1 of the Convention (see Efimenko v. , no. 55870/00, § 64, 18 July 2006).\n\nIII.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION\n\n33.  The applicant also complained under Article 6 § 1 about an allegedly unfair hearing and the outcome of the civil proceedings; about a lack of legal certainty in that the judges took opposing views; about partiality of the courts and the unreasonable length of the criminal proceedings against Mr V.S. Lastly, the applicant invoked Article 1 Protocol No. 1 to the facts of the present case.\n\n34.  Having carefully considered the applicant's submissions in the light of all the material in its possession, the Court finds that, insofar as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention.\n\n35.  It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§  3 and 4 of the Convention.\n\nIV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n36.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n37.  The applicant claimed 47,800 dollars (38,700 euros (EUR)) in respect of pecuniary damage and EUR 15,000 in respect of non-pecuniary damage.\n\n38.  The Government contested these claims.\n\n39.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 600 in respect of non-pecuniary damage.\n\nB.  Costs and expenses\n\n40.  The applicant also claimed 22,500 hryvnyas (EUR 3,780) in legal fees incurred in connection with her domestic and Convention proceedings. She presented receipts for a total amount of 14,000 hryvnyas (EUR 2,350).\n\n41.  The Government contested the claim.\n\nC.  Default interest\n\n44.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Declares the complaints concerning the excessive length of the civil proceedings and lack of effective remedies in this respect admissible and the remainder of the application inadmissible;\n\n2.  Holds that there has been a violation of Article 6 § 1 of the Convention;\n\n3.  Holds that there has been a violation of Article 13 of the Convention;\n\n4.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 800 (eight hundred euros) in respect of non-pecuniary damage, costs and expenses, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n5.  Dismisses the remainder of the applicant's claim for just satisfaction.\n\nDone in English, and notified in writing on 15 November 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_943","text":"PROCEDURE\n\n1.  The case originated in an application (no. 49526/07) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Anatoliy Vasylyovych Kuzmenko (“the applicant”), on 1 November 2007.\n\n2.  The applicant was represented by Mr D.Y. Piddubko, a lawyer practising in Chernigiv. The Ukrainian Government (“the Government”) were represented, most recently, by their Agent, Mr I. Lishchyna.\n\n3.  The applicant alleged, in particular, that he had had no access to a court in order to ventilate his complaint concerning an unlawful search of his flat.\n\n4.  On 23 October 2013 the application was communicated to the Government.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n5.  The applicant was born in 1974 and lives in Chernigiv.\n\n6.  On 25 January 2007 the Desnyanskiy District Court in Chernigiv (“the District Court”) issued a warrant to search the applicant’s flat for a mobile telephone, which had been reported stolen. The relevant part of the ruling read:\n\n“Acting investigator has applied to the court with a request to authorize search of the dwelling of [the applicant] ... with a view to locating a mobile telephone “Nokia7270” stolen from private entrepreneur [K.] ... [theft] having taken place on 2 December 2006 at night.\n\nDuring the hearing, the acting investigator and the prosecutor have supported their request ...\n\nHaving heard the acting investigator [and] the opinion of the prosecutor, and having examined the material of the criminal case, the court concludes that ... [it] has been provided with sufficient data indicating a possibility that the Nokia 7270 mobile telephone may be at the [applicant’s] place of residence.”\n\n7.  On 30 January 2007 the police searched the applicant’s flat in his presence and seized three mobile telephones, which, according to the applicant, belonged to him and his family members. As appears from a poorly legible copy of the list of the seized items prepared by the police, two of these telephones were apparently of Samsung and one – of Nokia make. According to the applicant, on an unspecified date the seized telephones were returned, and neither he nor any of his family members were ever indicted or involved in any other way in the criminal proceedings giving rise to the search warrant.\n\n8.  On 3 March 2007 the applicant lodged an administrative complaint with the District Court, alleging that his home had been searched arbitrarily and seeking moral damages for breaching inviolability of his home.\n\n9.  On 5 March 2007 the District Court refused to examine the above complaint, citing a lack of jurisdiction. It noted that all complaints regarding the unlawfulness of procedural actions by law-enforcement authorities taken in connection with a criminal investigation had to be lodged within the framework of relevant criminal proceedings based on Articles 234 and 236 of the Code of Criminal Procedure of Ukraine (“the CCP”), then in force.\n\n10.  The applicant appealed against that decision. He alleged that there was no meaningful opportunity for him to obtain redress on the basis of the CCP provisions, since a criminal court could only examine complaints concerning the actions of investigation authorities in the context of its examination of a criminal case. In the applicant’s situation, such a remedy would not be effective, since he had no procedural status in the criminal proceedings at issue, and had never been informed of the progress of those proceedings. Moreover, it was not certain whether or when the case would reach trial stage. However, as the applicant considered himself to have been a victim of an arbitrary search, regardless of the outcome of the relevant criminal investigation, he also considered that he had standing to bring an administrative complaint under Articles 2 and 4 of the Code of Administrative Justice of Ukraine (“the CAJ”).\n\n11.  On 15 May 2007 the Kyiv Administrative Court of Appeal rejected the appeal by the applicant, having essentially endorsed the findings of the first-instance court.\n\n12.  The applicant appealed in cassation. He reiterated the arguments raised in his ordinary appeal and additionally submitted that his claim against the police for non-pecuniary damages could not be examined and resolved within the framework of criminal proceedings against a third party.\n\n13.  On 13 May 2009 the Higher Administrative Court of Ukraine rejected the applicant’s cassation appeal.\n\nII.  RELEVANT DOMESTIC LAW\n\nA.  Constitution of Ukraine\n\n14.  The relevant provisions of the Constitution of Ukraine read:\n\n“Everyone shall be guaranteed the inviolability of his or her dwelling.\n\nAny entry into, examination of or search of the dwelling or other possession of a person shall not be permitted other than in accordance with a reasoned court decision.\n\nIn urgent cases connected to the saving of human life and the preservation of property, or the direct pursuit of criminal suspects, the law may provide for a different procedure for entering into, examining or searching the dwelling or other possession of a person.”\n\n“Human and citizens’ rights and freedoms are protected by the courts.\n\nEveryone is guaranteed the right to challenge in court the decisions, actions or omissions of bodies of State power, bodies of local self-government, officials and officers. ...\n\nEveryone has the right to protect his or her rights and freedoms from violations and illegal encroachments by any means not prohibited by law.”\n\nB.  1960 Code of Criminal Procedure of Ukraine (“the CCP”) (repealed with the effect from 19 November 2012)\n\n15.  The relevant provisions of the CCP, as formulated at the material time, read:\n\n“...Acts and decisions of bodies of inquiry may be appealed against to a court.\n\nComplaints concerning the acts and decisions of bodies of inquiry shall be examined by a first-instance court in the course of a preliminary hearing in the case, or during its examination on the merits, unless otherwise provided for by this Code.”\n\n“A search shall be carried out if there are sufficient grounds to believe that the means of committing an offence ... and other items and documents important to the case are kept on certain premises. ...\n\nA search of a person’s home and other possessions may be conducted only on the basis of a reasoned court decision, except for in urgent cases ... A court decision authorising a search is not open to appeal.”\n\n“... Complaints in respect of the acts of an investigating officer may be lodged with a court.\n\nComplaints in respect of the actions of an investigating officer shall be considered by a first-instance court in the course of a preliminary hearing in the case, or in the course of its consideration on the merits, unless otherwise provided for by this Code ...”\n\n“... A complaint regarding a prosecutor’s actions may be lodged with a court.\n\nComplaints regarding a prosecutor’s actions shall be considered by a first-instance court in the course of the preliminary consideration of the case, or in the course of its consideration on the merits, unless otherwise provided for by this Code.”\n\nC.  2005 Code of Administrative Justice of Ukraine (“the CAJ”)\n\n16.  The relevant provisions of the Code of Administrative Justice read:\n\n“1. The role of the administrative justice system shall be the protection of the rights, freedoms and interests of individuals, and the rights and interests of legal entities, in the field of public-law relations from violations by public authorities ...\n\n2. Any decisions, acts or omissions to act on the part of public authorities may be appealed against before the administrative courts, except in cases where the Constitution and laws of Ukraine set out a different procedure of judicial appeal against such decisions, acts or omissions to act ...”\n\n“...\n\n2.  Jurisdiction of the administrative courts shall cover all disputes in the public-law sphere, except disputes where the law establishes a different procedure for judicial resolution.”\n\n“1. The jurisdiction of the administrative courts shall cover legal relationships arising in the course of the exercise of public administrative powers by ... public authorities ...\n\n...\n\n3.  Jurisdiction of an administrative court shall not cover legal relationships in the public-law sphere:\n\n...\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION\n\n17.  The applicant complained that he had had no access to a court for the purposes of determining his claim concerning the purported unlawfulness of a search of his flat. He referred to Article 6 § 1 of the Convention, the relevant part of which reads:\n\n“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”\n\nA.  Admissibility\n\n18.  The Government alleged that this complaint was manifestly illfounded. In particular, proceedings concerning unlawful searches had to be brought under the procedure set out in Article 234 and other relevant provisions of the CCP. The applicant’s appeal to administrative courts had been a priori ineffective, and the competent domestic courts had advised him accordingly without delay. Not having attempted to lodge his complaint under the special procedure established by the CCP, the applicant could not allege that it was ineffective, or that he had had no opportunity to ventilate his complaint before the domestic courts.\n\n19.  The applicant disagreed. He reiterated the arguments raised in his appeals before the domestic courts in the administrative proceedings. In particular, he argued that a criminal court could only examine his complaint if and when the respective criminal case reached trial stage, and even assuming that the court ruled that the search had been unlawful, nothing in the domestic law suggested that the procedure entitled him to claim any financial or other compensation. Moreover, it was highly improbable that his complaint would be accepted for examination, as procedurally he had no standing in the criminal proceedings at issue.\n\n20.  The Court notes firstly that the civil nature of the right which the applicant was trying to assert in the domestic proceedings, and, accordingly, the applicability of Article 6 § 1 under its civil limb to the present complaint, is not in dispute between the parties. Regard being had to its case-law on the matter, the Court finds that Article 6 § 1 is applicable (see Veeber v. Estonia (no. 1), no. 37571/97, § 69, 7 November 2002; Shapovalov v. Ukraine, no. 45835/05, §§ 42-45, 31 July 2012; and Ravon and Others v. France, no. 18497/03, § 24, 21 February 2008).\n\n21.  The Court next observes that the Government allege, in substance, that the applicant has not used a proper avenue of redress and has therefore not exhausted an available domestic remedy for determination of his civil claim. It considers that this allegation is closely linked to the merits of the complaint at issue. The Court therefore decides to join it to the merits.\n\n22.  It further finds that the present complaint is not manifestly illfounded within the meaning of Article 35 § 3 (a) of the Convention and not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n23.  The applicant alleged that, by virtue of the refusal of the domestic courts to examine his complaint lodged under Articles 2 and 4 of the CAJ, he had been arbitrarily denied his right to a court to determine the merits of his complaint concerning the alleged unlawfulness of the search of his flat.\n\n24.  The Government disagreed.\n\n25.  The Court reiterates that the right of access to a court – that is, the right to institute proceedings before the courts in civil matters – constitutes an element which is inherent in the right set out in Article 6 § 1 of the Convention (see Golder v. the United Kingdom, 21 February 1975, § 36, Series A no. 18, and, as a recent authority, Baka v. Hungary [GC], no. 20261/12, § 120, 23 June 2016). However, the right of access to a court is not absolute and may be subject to limitations that do not restrict or reduce the access left to an individual in such a way or to such an extent that the very essence of the right is impaired (see Markovic and Others v. Italy [GC], no. 1398/03, § 99, ECHR 2006XIV, and Stanev v. Bulgaria [GC], no. 36760/06, § 230, ECHR 2012).\n\n26.  Insofar as the applicant in the present case complains that the domestic courts incorrectly interpreted the domestic law in denying him an opportunity to have his complaint considered under Articles 2 and 4 of the CAJ, it is not for the Court to substitute its own view for that of the domestic courts. It is primarily for the national courts to resolve problems of interpretation of domestic legislation. The Court’s role is confined to ascertaining whether the effects of such an interpretation are compatible with the Convention (see, among other authorities, Waite and Kennedy v. Germany [GC], no. 26083/94, § 54, ECHR 1999I).\n\n27.  As follows from the aforementioned decisions of the domestic courts in the applicant’s case (see paragraphs 9, 11 and 13 above) and the Government’s observations, the applicant’s claims raised under Articles 2 and 4 of the CAJ were not accepted for examination on the ground that there existed a different domestic procedure for the determination of these claims: namely, the procedure provided for by Article 234 and other accompanying provisions of the CCP. The applicant never resorted to this procedure, alleging that it was not such as to meet the Article 6 requirements.\n\n28.  It therefore falls on the Court to examine this procedure with a view to determining whether it could indeed provide the applicant with access to a court for the purposes of Article 6 of the Convention.\n\n29.  The Court notes that it has already examined the impugned CCP procedure in various other contexts, and has found that it could not qualify as accessible and such as to lead to determination of the applicants’ complaints raised under Articles 6 and 8 of the Convention and Article 1 of Protocol No. 1.\n\n30.  In particular, in the case of Merit v. Ukraine, the Court found that recourse to the aforementioned CCP procedure did not qualify as effective remedy within the meaning of Article 13 of the Convention in relation to the applicant’s complaint under Article 6 of the Convention concerning the length of the criminal proceedings in his case (see, for example, Merit v. Ukraine, no. 66561/01, §§ 65-66, 30 March 2004). In the case of Kotiy v. Ukraine, the Court has found that the procedure at issue did not enable the applicant to ventilate in a timely fashion his complaint under Article 8 of the Convention concerning lawfulness and proportionality of the seizure of his passport and his placement under an undertaking not to abscond (see Kotiy v. Ukraine, no. 28718/09, § 69, 5 March 2015). In the case of Zosymov v. Ukraine, the Court has recently found that the procedure at issue did not constitute an effective remedy within the meaning of Article 13 of the Convention with respect to the applicant’s complaints under Article 8 of the Convention and Article 1 of Protocol No. 1 about allegedly unlawful search and seizure of the applicant’s property (see Zosymov v. Ukraine, no. 4322/06, §§ 94-96, 12 July 2016. In all the above cases, the Court based its findings on the arguments, similar to those put forward by the applicant in the present case (see paragraph 19 above). More specifically, it has found that the procedure at issue did not afford the applicants a possibility to obtain direct and expeditious determination of their claims.\n\n31.  The Court finds that these considerations are pertinent in the present case in context of the applicant’s complaint under Article 6 § 1 about lack of access to a court. The Government have not presented any evidence that the applicant, who was not a party to the criminal case within the framework of which the search of his flat had been conducted, was eligible to institute court proceedings under Article 234 of the CCP or that his complaint lodged in accordance with this procedure could be examined by a court expeditiously, irrespective of when and whether the investigative authority identifies the perpetrator and commits him or her for trial. It has likewise not been shown that the criminal court would have had appropriate competence to redress the applicant’s complaint, including, if necessary, by awarding damages or applying another appropriate civil remedy.\n\n32.  The Court therefore finds that the applicant was not bound to exhaust the remedy provided for by Article 234 of the CCP before lodging the present complaint and dismisses the Government’s objection to this effect (see paragraph 18 above).\n\n33.  Regard being had to the fact that the domestic courts refused to examine the applicant’s complaint lodged under Articles 2 and 4 of the CAJ, referring him to a procedure which was neither accessible nor capable of leading to the direct and expeditious determination of the applicant’s civil claim, the Court considers that the applicant was denied the very essence of the right of access to a court.\n\n34.  Accordingly, there has been a violation of Article 6 § 1 of the Convention.\n\nII.  ALLEGED VIOLATION OF ARTICLE 8 AND OF ARTICLE 13 IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION\n\n35.  Relying on Articles 8 and 13 of the Convention, the applicant also complained that the search of his flat had been arbitrary and that he had no effective remedies in respect of the above complaint.\n\n36.  The Government did not provide any details concerning the criminal proceedings within the framework of which the disputed search had been ordered having informed the Court that the relevant file had no longer been available.\n\n37.  Having regard to the particular circumstances of the case and the submissions of the parties, the Court considers that the main legal question in the present application concerned the impossibility for the applicant to obtain judicial review of the substance of his complaint raised under Article 8. Having examined this question under Article 6 § 1 of the Convention, the Court considers that there is no need to give a separate ruling in respect of this part of the application (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014, with further references).\n\nIII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n38.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n39.  The applicant claimed 35,000 Ukrainian hryvnias (UAH) in respect of non-pecuniary damage.\n\n40.  The Government alleged that this claim was exorbitant and unsubstantiated.\n\n41.  The Court considers that the applicant must have suffered anguish and distress on account of the facts giving rise to the finding of a violation of Article 6 of the Convention in the present case. Ruling on an equitable basis, the Court awards him 1,500 euros (EUR) in respect of non-pecuniary damage.\n\nB.  Costs and expenses\n\n42.  The applicant did not lodge any complaint under this head. Accordingly, the Court finds there is no call to give an award.\n\nC.  Default interest\n\n43.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT\n\n1.  Decides, unanimously, to join to the merits of the complaint raised under Article 6 § 1 of the Convention the Government’s objection concerning non-exhaustion of domestic remedies and rejects it;\n\n2.  Declares, unanimously, the complaint raised under Article 6 § 1 of the Convention admissible;\n\n3.  Holds, unanimously, that there has been a violation of Article 6 § 1 of the Convention;\n\n4.  Holds, by five votes to two, that it is not necessary to examine the admissibility and merits of the complaints under Article 8 both taken alone and in conjunction with Article 13 of the Convention;\n\n5.  Holds, unanimously,\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n6.  Dismisses, unanimously, the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 9 March 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.\n\nIn accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Nußberger and Ranzoni is annexed to this judgment.\n\nWe have voted with the majority in favour of finding a violation of Article 6 § 1 of the Convention. Our disagreement relates to the finding “that it is not necessary to examine the admissibility and merits of the complaints under Article 8 both taken alone and in conjunction with Article 13 of the Convention” (point 4 of the operative provisions). We are of the opinion that the application should have been analysed separately under Article 8.\n\nThe majority state in paragraph 37 of the judgment “that the main legal question in the present application concerned the impossibility for the applicant to obtain judicial review of the substance of his complaint raised under Article 8”. However, we would point to the difference in the nature of the interests protected by Article 6, namely procedural safeguards, and by Article 8, namely ensuring proper respect for, inter alia, private life and protecting the individual against arbitrary interference by the public authorities. With regard to the particular circumstances of the case, we consider that the complaint under Article 8 goes beyond the fair-trial aspect of Article 6.\n\nThe searching of residential premises entailing, as here, the seizure of electronic equipment constitutes interference with the “private life” and “home” of those concerned. The Court has consistently held that the Contracting States may consider it necessary to resort to such measures in order to obtain physical evidence of certain offences. However, it will assess whether the reasons put forward to justify such measures were relevant and sufficient, and, in particular, whether the proportionality principle has been adhered to. The Court must ensure that the relevant legislation and practice afford individuals adequate and effective safeguards against abuse (see K.S. and M.S. v. Germany, no. 33696/11, § 44, 6 October 2016, with further references). The fact that a search is based on a warrant issued by a judge does not necessarily amount to a sufficient safeguard. It also matters, inter alia, whether prior judicial scrutiny was properly carried out and whether the legal framework and the limits on the powers exercised afforded adequate protection against arbitrary interference by the authorities (see Posevini v. Bulgaria, no. 63638/14, § 70, 19 January 2017 [not yet final]; Vinci Construction and GTM Génie Civil et Services v. France, nos. 63629/10 and 60567/10, § 79, 2 April 2015; and K.S. and M.S. v. Germany, § 45, cited above).\n\nIn this respect, we first note that the search warrant (see paragraph 6 of the judgment) lacked any details concerning the criminal proceedings within the framework of which the search was ordered, and that the wording of the warrant casts doubt on whether prior judicial scrutiny was properly carried out. The absence of such scrutiny may be counterbalanced by the possibility of an ex post factum judicial review of the search and seizure (see Heino v. Finland, no. 56720/09, § 45, 15 February 2011, with further references). However, in the present case the Government have not shown that such an effective remedy was available (see paragraph 31 of the judgment).\n\nFurthermore, the police, when conducting the house search, clearly overstepped the limits of the warrant in so far as they seized three mobile phones (two Samsungs and one Nokia), whereas the search warrant referred only to one specific “Nokia 7270 mobile telephone” (see paragraphs 6 and 7 of the judgment). This abuse of power occurred without the legal framework and practice affording the applicant any adequate and effective safeguards against such arbitrary interference with his right to respect for his private life.\n\nThe aforementioned shortcomings are not sufficiently covered by the finding of a violation of Article 6 of the Convention. Against this background, we are of the opinion that the complaint under Article 8 of the Convention should have been assessed separately and that the Court should have found a violation also in this regard.\n\nThe aforementioned shortcomings are not sufficiently covered by the finding of a violation of Article 6 of the Convention. Against this background, we are of the opinion that the complaint under Article 8 of the Convention should have been assessed separately and that the Court should have found a violation also in this regard.","title":""}
{"_id":"passage_381","text":"PROCEDURE\n\n1.  The case originated in an application (no. 9907/02) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Ms Emine Araç (“the applicant”), on 22 October 2001.\n\n2.  The applicant was represented by Mr M. Muller and Mr T. Otty, lawyers practising in London, and by Mr H. Tuna in . The Turkish Government (“the Government”) were represented by their Agent.\n\n3.  The applicant alleged that the facts of the case disclosed a breach by the respondent State of its obligations under Article 6 § 1 of the Convention.\n\n4.  On 19 September 2006 the Court declared the application partly inadmissible and decided to give notice to the Government of the complaint under Article 6 § 1 of the Convention. In accordance with Article 29 § 3 of the Convention, it also decided to examine the admissibility and merits of the case at the same time.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n5.  The applicant was born in 1973 and lives in .\n\n6.  On 24 September 1998 the applicant, a student in the Faculty of Theology of İnönü University in , sought to enrol in the Faculty of Theology of Marmara University. For that purpose she provided, among other materials, an identity photograph which showed her wearing a headscarf.\n\n7.  On 1 October 1998 the Faculty of Theology of Marmara University replied to the applicant, informing her that the identity photograph she had supplied did not comply with the regulations in force and that where this was the case, the person concerned could not be enrolled.\n\n8.  On an unspecified date the applicant lodged an application for judicial review with the . She requested, in particular, that the refusal of the administrative authorities be set aside as being in breach of her rights.\n\n9.  In a judgment of 23 September 1999, the  rejected the application, finding that the authorities’ refusal had been in accordance with the regulations in force. The court considered, in particular, that the applicant had submitted an identity photograph which did not conform to the regulations, which stipulated that “photographs must show the subject facing forward and be less than six months old, so that the person concerned is readily identifiable; the head and neck must also be uncovered” (Article 4 § 1 (f) of the Guide for University Applicants adopted by the Higher Education Board on 17 April 1998).\n\n10.  Following an appeal by the applicant on points of law, the  upheld the judgment of 23 September 1999, finding it to have been in accordance with the law and the procedural rules. The relevant parts of the  judgment read as follows:\n\n“Summary of the request: ...\n\nOpinion of Mrs Serpil K. Erdoğan, investigating judge of the : the judge is of the opinion that the appeal should be dismissed and the first-instance judgment upheld.\n\nOpinion of Mr H. Hüseyin Tok, State Counsel (savcı) at the : the grounds of appeal set out in the statement of grounds do not correspond to those enumerated in Article 49 § 1 of the Code of Administrative Procedure. In view of the juridical and legal arguments on which the first-instance judgment was based, these grounds cannot be said to require the quashing of the impugned judgment ...”\n\nII.  RELEVANT DOMESTIC LAW AND PRACTICE\n\n11.  Article 42 of the Constitution reads as follows:\n\n“No one may be deprived of the right to instruction and education.\n\nThe scope of the right to education shall be defined and regulated by law.\n\nInstruction and teaching shall be provided under the supervision and control of the State in accordance with the principles and reforms of Atatürk and contemporary scientific and educational methods. No educational or teaching institution may be set up that does not follow these rules.\n\n...”\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION\n\n12.  The applicant submitted that the proceedings before the  had been unfair. She relied on Article 6 § 1 of the Convention, the relevant part of which provides:\n\n“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”\n\n13.  The Government contested that argument.\n\nA.  Admissibility\n\n14.  The Government argued, as their main submission, that Article 6 § 1 was inapplicable in the instant case, as the case brought before the administrative courts had not related to civil rights and obligations. The applicant had brought an action seeking the setting-aside of public-law regulations adopted by the university authorities. The Government further pointed out that in its decision in André Simpson v. the United Kingdom (no. 14688/89, Commission decision of 4 December 1989, Decisions and Reports (DR) 64, p. 196), the Commission had held that Article 6 was inapplicable to proceedings concerning the laws on education. In particular, it had found that “the right not to be denied elementary education” fell within the domain of public law, since it had no private-law analogy and no repercussions on private rights or obligations.\n\n15.  The applicant submitted that Article 6 was applicable in the instant case.\n\n16.  According to the Court’s settled case-law, the phrase “determination of ... civil rights and obligations” covers all proceedings the result of which is decisive for [such] rights and obligations (see Ringeisen v. , 16 July 1971, § 94, Series A no. 13). A tenuous connection or remote consequences do not suffice for Article 6 § 1: civil rights and obligations must be the object – or one of the objects – of the dispute (contestation) and the result of the proceedings must be directly decisive for such a right (see Le Compte, Van Leuven and De Meyere v. Belgium, 23 June 1981, § 47, Series A no. 43).\n\n17.  In the instant case it seems clear that a “dispute” arose following the decision taken by the Faculty of Theology of Marmara University on 1 October 1998 not to enrol the applicant, who had supplied an identity photograph which did not comply with the regulations in force (see paragraph 7 above). This dispute, which was genuine and serious, related to the actual existence of the right asserted by the applicant to continue the university studies she had begun at the Faculty of Theology of İnönü University. The outcome of the proceedings in question was capable of leading to the setting-aside of the impugned decision, namely the refusal to enrol the applicant; it was thus directly decisive for the right at issue.\n\nConsequently, the Court must simply ascertain whether Ms Araç’s right to continue her theology studies was a civil right within the meaning of Article 6 § 1.\n\n18.  The Court reiterates that, although it has found the concept of “civil rights and obligations” to be autonomous, it has also held that, in this context, the legislation of the State concerned is not without importance (see König v. , 28 June 1978, § 89, Series A no. 27). Whether or not a right is to be regarded as civil within the meaning of that term in the Convention must be determined by reference not only to its legal classification but also to its substantive content and effects under the domestic law of the State concerned. Moreover, the Court, in the exercise of its supervisory function, must also take account of the object and purpose of the Convention (see Perez v. France [GC], no. 47287/99, § 57, ECHR 2004I).\n\n19.  The Court observes at the outset that, in view of the wording of Article 42 of the Turkish Constitution (see paragraph 11 above), the applicant, who was a student in the Faculty of Theology of İnönü University, could make an arguable claim that Turkish law conferred on her the right to enrol in the Faculty of Theology of Marmara University provided she satisfied the statutory conditions. She was refused enrolment not because she failed to satisfy one of these conditions, but because of her failure to comply with a formal requirement laid down by the regulations in question.\n\n20.  According to the Government, the regulation of enrolment in highereducation establishments was a matter falling within the sphere of public law. In the Court’s view, however, this public-law aspect does not suffice to exclude the right in question from the category of civil rights within the meaning of Article 6 § 1. It further points out that in several cases (see, in particular, König and Le Compte, Van Leuven and De Meyere, both cited above; Benthem v. the Netherlands, 23 October 1985, Series A no. 97; and Feldbrugge v. the Netherlands, 29 May 1986, Series A no. 99), State intervention by means of a statute or delegated legislation has not prevented the Court from finding the right in issue to have a private, and hence civil, character. Proceedings which fall within the sphere of “public law” in the domestic legal order may come within the scope of Article 6 § 1 where their outcome is decisive for civil rights and obligations.\n\n21.  In addition, in the Kök v. Turkey judgment (no. 1855/02, § 36, 19 October 2006), the Court found Article 6 to be applicable to a dispute concerning the setting-aside of the authorities’ refusal to authorise the applicant to practise a medical specialisation. It also found that, where a State confers rights which can be enforced by means of a judicial remedy, these can, in principle, be regarded as civil rights within the meaning of Article 6 § 1 (see, along the same lines, Tinnelly & Sons Ltd and Others and McElduff and Others v. the United Kingdom, 10 July 1998, § 61, Reports of Judgments and Decisions 1998IV).\n\n22.  It is important also to emphasise that Ms Araç was not affected in her relations with the public authorities as such, acting in the exercise of discretionary powers, but simply in her personal capacity as the user of a public service. Hence, she was challenging the regulations in force, which she considered prejudicial to her right to continue her studies in a highereducation establishment.\n\n23.  Furthermore, in its recent case-law the Court, leaving the door open for the application of Article 6 to the right to education, has consistently examined whether proceedings concerning the regulations on higher education conform to the requirements of Article 6 § 1 (see, by way of example, Mürsel Eren v. Turkey (dec.), no. 60856/00, 6 June 2002; D.H. and Others v. the Czech Republic (dec.), no. 57325/00, 1 March 2005; and Tig v. Turkey (dec.), no. 8165/03, 24 May 2005).\n\n24.  Accordingly, given the importance of the applicant’s right to continue her higher education (as regards the key role and importance of the right of access to higher education, see Leyla Şahin v.  [GC], no. 44774/98, § 136, ECHR 2005XI), the Court does not doubt that the limitation in question, imposed by the regulations in issue, fell within the scope of the applicant’s personal rights and was therefore civil in character.\n\n25.  In the light of the foregoing, and given that the lawfulness of proceedings concerning a civil right was capable of being challenged by means of a judicial remedy, of which the applicant made use, the Court considers that a dispute (contestation) concerning a “civil right” arose in the instant case and was determined by the Administrative Court.\n\nArticle 6 § 1 is therefore applicable in the present case.\n\n26.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. The remainder of the application must therefore be declared admissible.\n\nB.  Merits\n\n27.  The Court points out that it has previously considered a complaint similar to that made by the applicant and found a violation of Article 6 § 1 of the Convention because the applicant’s right to adversarial proceedings before the Supreme Administrative Court had been infringed, in view of the nature of the observations of Principal State Counsel at the Supreme Administrative Court and the inability of the applicant to respond to them in writing (see, mutatis mutandis, Göç v. Turkey [GC], no. 36590/97, § 58, ECHR 2002-V, and Meral v. Turkey, no. 33446/02, §§ 32-39, 27 November 2007). Having examined the present case it considers that the Government have not adduced any convincing fact or argument capable of justifying a different conclusion on this occasion.\n\n28.  Accordingly, there has been a violation of Article 6 § 1.\n\nII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n29.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n30.  The applicant claimed 32,500 euros (EUR) for the pecuniary damage she had allegedly sustained. She claimed to have sustained non-pecuniary damage, but left the amount of compensation to the Court’s discretion.\n\n31.  The Government contested the applicant’s claims.\n\n32.  The Court fails to discern any causal link between the violation found and the non-pecuniary damage alleged; it therefore rejects this claim. However, it considers that the applicant must have sustained some nonpecuniary damage, which has been sufficiently compensated by the finding of a violation (see Meral v. Turkey, no. 33446/02, § 58, 27 November 2007).\n\nB.  Costs and expenses\n\n33.  The applicant claimed a total of 4,426.60 pounds sterling (GBP) and 6,710.40 Turkish liras (TRY) for fees and costs incurred in the course of her application. Her claim comprised:\n\n–  the fees of the lawyers of the Kurdish Human Rights Project: K. Yıldız – GBP 712.50 (4 hours and 15 minutes’ work); L. Claridge – GBP 2,437.50 (16 hours and 45 minutes’ work) and H. Tuna – TRY 5,940 (13 hours and 30 minutes’ work);\n\n–  translation costs: TRY 625.40 and GBP 1,228.60;\n\n–  miscellaneous expenditure: GBP 48 and TRY 145.\n\n34.  The applicant furnished proof of payment in respect of the translation costs and certain costs incurred in the proceedings before the domestic courts. Her lawyers requested that the sums awarded under that head be paid into their bank account in the .\n\n35.  The Government disputed the claim made by the applicant’s representatives, which it considered excessive. They pointed out that only expenses actually incurred could be reimbursed; the applicant or her representatives must produce documents supporting any claim for costs and expenses. Furthermore, lists or overall figures could not be accepted as relevant or constitute proof of the alleged expenditure, which had to be reasonable in amount and have been necessary. All claims for expenses had to be supported by invoices and each item of expenditure had to be substantiated by supporting documents.\n\n36.  The Court reiterates that in order for costs to be included in an award under Article 41 of the Convention, it must be established that they were actually and necessarily incurred and reasonable as to quantum (see Nikolova v. Bulgaria [GC], no. 31195/96, § 79, ECHR 1999II).\n\n37.  In the instant case, in view of the details supplied by the applicant, the Court is not convinced that all the costs claimed by the lawyers of the Kurdish Human Rights Project were necessarily incurred, especially since no proof of payment of their fees was submitted. Accordingly, taking into account the awards made previously in comparable cases (see Meral, cited above, § 61) and the work carried out in the proceedings before it, the Court awards the applicant EUR 1,500.\n\nC.  Default interest\n\n38.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Declares the remainder of the application admissible;\n\n2.  Holds that there has been a violation of Article 6 § 1 of the Convention;\n\n3.  Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant;\n\n4.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,500 (one thousand five hundred euros) in respect of costs and expenses, to be converted into Turkish liras at the rate applicable at the date of settlement, plus any tax that may be chargeable to the applicant;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n5.  Dismisses the remainder of the applicant’s claim for just satisfaction.\n\nDone in French, and notified in writing on 23 September 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_81","text":"PROCEDURE\n\n1.  The case was referred to the Court by the applicants on 12 August 1999 and by the European Commission of Human Rights (“the Commission”) on 15 September 1999, within the three-month period laid down by former Articles 32 § 1 and 47 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”). It originated in an application (no. 28369/95) against the Kingdom of the Netherlands lodged with the Commission under former Article 25 of the Convention by two Netherlands nationals, Ms Eveline E.C.H. Camp and Mr Sofian A. Bourimi (“the applicants”), on 18 August 1995. The applicants were represented by their counsel. The Netherlands Government (“the Government”) were represented by their Agents, Mr R. Böcker and Ms J. Schukking, of the Netherlands Ministry of Foreign Affairs.\n\nThe Commission's request referred to former Articles 44 and 48 of the Convention and to the declaration whereby the Netherlands recognised the compulsory jurisdiction of the Court (former Article 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 8 of the Convention or Article 14 taken in conjunction with Article 8.\n\n2.  On 20 September 1999 a panel of the Grand Chamber decided, pursuant to Article 5 § 4 of Protocol No. 11 to the Convention and Rules 100 § 1 and 24 § 6 of the Rules of Court, that the application would be examined by one of the Sections. It was, thereupon, assigned to the First Section.\n\n3.  The Chamber constituted within that Section included ex officio Mrs W. Thomassen, the judge elected in respect of the Netherlands (Article 27 § 2 of the Convention and Rule 26 § 1 (a)), and Mrs E. Palm, President of the Section (Rules 12 and 26 § 1 (a)). The other members designated by the latter to complete the Chamber were Mr L. Ferrari Bravo, Mr R. Türmen, Mr J. Casadevall, Mr B. Zupančič and Mr T. Panţîru.\n\n4.  From October 1999 to January 2000 friendly-settlement negotiations took place between the parties which proved unsuccessful.\n\n5.  On 14 March 2000 the Chamber decided to hold a hearing (Rule 59 § 2).\n\n6.  In accordance with Rule 59 § 3, the President of the Chamber invited the parties to submit memorials on the issues arising in the application. The Registrar received the applicants' and the Government's memorials on 29 March and 21 April 2000 respectively.\n\n7.  The hearing took place in public in the Human Rights Building, Strasbourg, on 6 June 2000 .\n\nThere appeared before the Court:\n\nThe Court heard addresses by Ms Dosker, Ms van der Grinten and Mr Böcker.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n8.  On 24 September 1992 Ms Camp's partner, Mr Abbie Bourimi, died without having recognised (erkenning) the child she was carrying at that time and without leaving a will. Ms Camp and Mr A. Bourimi had been living together in a house owned by the latter. They had been intending to marry, but a wedding scheduled for April 1992 had been postponed due to the death of Ms Camp's mother.\n\n9.  The parents of Mr A. Bourimi believed neither that the child Ms Camp was carrying had been fathered by their son nor that their son had intended to marry Ms Camp. Consequently, they considered themselves and their other children to be their son's heirs. On 22 October 1992, contrary to the wishes of Ms Camp, Mr A. Bourimi's parents, together with five other relatives, moved into the house which had belonged to their son. Thereupon, Ms Camp moved out of the house.\n\n10.  On 2 November 1992 Ms Camp requested the President of the Roermond Regional Court (Arrondissementsrechtbank) in summary proceedings (kort geding) to grant an injunction ordering the parents to vacate the house pending the winding up of Mr A. Bourimi's estate. Furthermore, on 3 November 1992, she requested the Queen to grant letters of legitimation (brieven van wettiging – see paragraphs 16-18 below) in respect of the child she was carrying.\n\n11.  The President of the Regional Court refused to grant the injunction on 19 November 1992 but this decision was quashed by the 'sHertogenbosch Court of Appeal (Gerechtshof) on 2 June 1993. The Court of Appeal considered that Ms Camp had adduced sufficient evidence to corroborate her claim that she had been living with Mr A. Bourimi in his house for a considerable time, that they had intended to get married and that Mr A. Bourimi was Sofian's father. In view of the fact that it therefore seemed likely that letters of legitimation would be granted and Sofian would thus emerge as Mr A. Bourimi's sole heir, the Court of Appeal found that it was Ms Camp's right and in her interest in her capacity of mother and guardian to be given possession of the house. The Court of Appeal accordingly ordered the parents of Mr A. Bourimi to vacate the house. The parents subsequently filed an appeal on points of law (beroep in cassatie) to the Supreme Court (Hoge Raad).\n\n12.  Meanwhile, on 20 November 1992, Sofian Bourimi was born. Since he was illegitimate and had not been recognised by his father, he was initially given the family name of his mother. On 21 October 1994 the Supreme Court issued advice in favour of the granting of letters of legitimation. Such letters were granted on 4 November 1994 and Sofian took on the family name of his father.\n\n13.  On 24 February 1995 the Supreme Court quashed the decision of the Court of Appeal of 2 June 1993. It considered that the letters of legitimation did not have retroactive force from the time of Mr A. Bourimi's death and that therefore Sofian could not inherit from him. As regards Ms Camp's argument that this outcome was contrary to Article 8 of the Convention and Article 14 taken in conjunction with Article 8, the Supreme Court held that the establishment of the consequences of an incompatibility of Netherlands law with these provisions of the Convention went beyond the task of the judiciary.\n\n14.  The Supreme Court referred the case back to the Court of Appeal, which was to examine whether other circumstances existed justifying a judicial order to the effect that Mr A. Bourimi's parents vacate the house – such as the fact that Ms Camp had been living in the house for a considerable time. On 4 June 1996 the Court of Appeal struck the case out in view of the fact that the parties to the proceedings had reached an agreement to the effect that Ms Camp and Sofian would vacate the house.\n\n15.  The estate of Mr A. Bourimi was distributed amongst the heirs (that is, his parents and siblings) on 9 February 2000 by a notary (notaris).\n\nII.  RELEVANT DOMESTIC LAW\n\n16.  Legally recognised family ties (familierechtelijke betrekkingen) between a father, his relatives and a child exist where a child is born to married parents or if it is born within 307 days following the dissolution of the marriage (Article 1:197 of the Civil Code (Burgerlijk Wetboek – “CC”)). An illegitimate child will have a legally recognised family relationship with its father (who does not have to be the biological father) and the latter's relatives if it has been recognised (erkenning) by the father, either before or after its birth (Article 1:222 CC). At the relevant time, moreover, a legally recognised family relationship would also be created by the granting of letters of legitimation (Article 1:215 CC).\n\n17.  \tParagraph 2 of Article 1:215 provided as follows:\n\n“The request for letters of legitimation may also be made if the man, who, aware of her pregnancy, and intending to marry the mother, died before the birth of the child without having recognised it.”\n\n18.  It appears from the explanatory memorandum (Memorie van Toelichting) to this provision that the intention to marry the mother, which, if carried out, would have resulted in the birth of a legitimate child, replaced the recognition required by Article 1:222 CC for the establishment of a legally recognised family relationship.\n\nA request for letters of legitimation could be made by the child's mother or, after her death, by the child itself. No time-limit was attached to a request for such letters. According to Article 1:219 § 1 CC, legitimation pursuant to Article 1:215 took effect from the day on which letters of legitimation were granted.\n\n19.  On 1 April 1998 the Civil Code was amended. The option of letters of legitimation was replaced by a judicial declaration of paternity (gerechtelijke vaststelling van vaderschap, Article 1:207 CC). A declaration of paternity has retroactive force from the time of the child's birth but it does not affect adversely any rights acquired in good faith by third parties.\n\n20.  According to Article 4:879 § 1 CC only those persons who have a legally recognised family relationship with a person who has died intestate may inherit from this person. Furthermore, the heir must have existed at the time of death. (Article 4:883 CC). However, according to Article 1:2 CC, a child who has been conceived but has not yet been born is considered as having already been born when his or her interests so require.\n\n21.  According to the rules of intestacy, if a deceased does not leave any children with whom he has a legally recognised family relationship or a spouse, his parents and siblings will inherit from him (Article 4:901 CC). If there are such children or a spouse, the parents and siblings are excluded from the inheritance (Articles 4:899 and 4:899a CC).\n\nproceedings before the commission\n\n22.  The applicants applied to the Commission on 18 August 1995. They complained that, contrary to Article 8 of the Convention and Article 14 taken in conjunction with Article 8, the letters of legitimation did not have retroactive force from the time of Mr A. Bourimi's death.\n\n23.  On 8 September 1997 the Commission declared the application admissible.\n\n24.  In its report of 23 April 1999 (former Article 31 of the Convention) [Note by the Registry. The report is obtainable from the Registry.], the Commission expressed the unanimous opinion that there had been no violation of Article 8 either in respect of the family life between the two applicants or in respect of Ms Camp's family life with the relatives of Mr A. Bourimi, that it was not necessary to examine under Article 8 of the Convention the complaint relating to Sofian's family life with the relatives of his father, and that there had been a violation of Article 14 of the Convention taken in conjunction with Article 8 in respect of Sofian.\n\nTHE LAW\n\nI.  alleged violation of article 8 of the Convention\n\n25.  The applicants complained that they were hindered in the development of a family life with each other and with the relatives of Mr A. Bourimi. They relied on Article 8 of the Convention, which provides:\n\n“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.\n\n2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”\n\n26.  The applicants maintained that the legal framework in place meant that no legally recognised family ties existed between Sofian and his father and the latter's relatives until the granting of letters of legitimation. As a result, Sofian's integration into his family – including that of his father – from birth was not rendered possible. This affected the development of normal family ties between Ms Camp and Sofian but also between each of the applicants and the relatives of Mr A. Bourimi. The impossibility for Sofian to take on his father's family name until the granting of letters of legitimation and the impossibility of inheriting from his father created a situation where Sofian was treated less favourably than a legitimate child.\n\n27.  The Government agreed with the Commission in that they failed to see how the relationship between Ms Camp and Sofian could have been affected to an appreciable extent, either prior to or after the granting of letters of legitimation, by the fact that the family ties between Sofian and his deceased father were not legally recognised when Sofian was born. Similarly, the Government were of the opinion that it had not been substantiated in what way the relationship between Ms Camp and the relatives of Mr A. Bourimi – even assuming this could be characterised as constituting “family life” within the meaning of Article 8 – had been adversely affected.\n\n28.  The Court reiterates that the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities (see, for example, the Johnston and Others v. Ireland judgment of 18 December 1986, Series A no. 112, p. 25, § 55). It considers that the absence of legally recognised family ties between Sofian and his father did not constitute an interference by the public authorities with the family life of Sofian and his mother who, as far as the Court is aware, have always lived together. Furthermore, and without embarking on an examination of the question whether the ties between Ms Camp and the relatives of Mr A. Bourimi are to be equated with “family life”, the Court does not find that obstacles to the development of those ties were imputable to an action or lack of action on the part of the authorities.\n\nAccordingly, the Court finds that there has been no violation of Article 8 of the Convention in respect of family life either between Ms Camp and Sofian or between Ms Camp and the relatives of Mr A. Bourimi.\n\n29.  The Court further observes that the complaint in respect of the family life between Sofian and his father's relatives is closely related to the applicants' contention that the law in force allowed these relatives to treat Sofian differently from a child who, unlike Sofian, had a legally recognised family relationship with its father from birth. The Court considers that this issue falls more appropriately to be examined under Article 14 of the Convention taken in conjunction with Article 8.\n\nii.  alleged violation of article 14 of the Convention taken in conjunction with article 8\n\n30.  The applicants complained that Sofian was treated differently from children who had the status of legitimate children from birth, in breach of Article 14 of the Convention taken in conjunction with Article 8. Article 14 provides:\n\n“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”\n\n31.  In the opinion of the applicants, no weighty reasons existed which could justify the situation whereby only children who had a legally recognised family relationship with their father at the time of the latter's death could inherit from that father. They agreed with the Commission that in the instant case such justification could not be found in the need to protect other heirs from having to give up a lawfully obtained inheritance.\n\n32.  The Government argued that the reason for the difference in treatment lay in the provision of a general protection of the legitimate interests of third parties, in particular other heirs, in cases where family ties were established through letters of legitimation. They argued in this respect that heirs should enjoy the certainty that they would not have to give up a lawful inheritance to a descendant of the deceased who might turn up unexpectedly years later. The protection of their interests was achieved by denying retroactive force to letters of legitimation. Although the Government recognised that in certain circumstances the result of this system could be less than ideal – for which reason the relevant legislation had now been changed – this was not necessarily tantamount to a violation of the Convention. Moreover, Netherlands law offered several possibilities, such as the recognition by Sofian's father of the unborn child or his making of a will, which would have prevented the situation with which the applicants were confronted.\n\n33.  The Court has previously examined alleged differences in treatment in matters of succession both under Article 14 taken in conjunction with Article 8 (see the Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, p. 24, § 54, and the Vermeire v. Belgium judgment of 29 November 1991, Series A no. 214-C, p. 83, § 28) and under Article 14 taken in conjunction with Article 1 of Protocol No. 1 (see the Inze v. Austria judgment of 28 October 1987, Series A no. 126, p. 18, § 40, and Mazurek v. France, no. 34406/97, § 43, ECHR 2000-II). In the present case, Article 14 has been relied on in conjunction with Article 8, and the Court will therefore examine this issue in the light of these two provisions.\n\n34.  As the Court has consistently held, Article 14 of the Convention complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (see, among many other authorities, the Van Raalte v. the Netherlands judgment of 21 February 1997, Reports of Judgments and Decisions 1997-I, p. 184, § 33).\n\n35.  Despite the fact that Article 8 does not as such guarantee a right to inherit, the Court has previously accepted that matters of intestate succession between near relatives nevertheless fall within the scope of that provision as they represent a feature of family life (see the Marckx judgment cited above, pp. 23-24, §§ 52-53). The fact that Mr A. Bourimi's death occurred before Sofian was born is no reason for the Court to adopt a different approach in the present case.\n\nIt follows that Article 14 taken in conjunction with Article 8 applies.\n\n36.  The Court observes that Sofian, whose family ties with his father were not legally recognised until letters of legitimation had been granted, was unable to inherit from his father, unlike children who did have such ties either because they were born in wedlock or had been recognised by their father. This undoubtedly constitutes a difference in treatment between persons in similar situations, based on birth.\n\n37.  For the purposes of Article 14 a difference in treatment is discriminatory if it “has no objective and reasonable justification”, that is if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised”. Moreover, the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see the Karlheinz Schmidt v. Germany judgment of 18 July 1994, Series A no. 291-B, pp. 32-33, § 24).\n\n38.  According to the Court's case-law, very weighty reasons need to be put forward before a difference in treatment on the ground of birth out of wedlock can be regarded as compatible with the Convention (see the Inze v. Austria judgment cited above, p. 18, § 41, and Mazurek, cited above, § 49).\n\nAs noted above (paragraph 36), in the instant case Sofian was treated differently not only from children born in wedlock but also from children who, although born out of wedlock, had been recognised by their father. Although the letters of legitimation took the place of such recognition (see paragraph 18 above), Sofian was nevertheless still unable to inherit from his father. In the Court's view, similarly weighty reasons are required for this latter difference to be compatible with the Convention in the circumstances of the present case. The Court observes in this respect that there was no conscious decision on the part of Mr A. Bourimi not to recognise the child Ms Camp was carrying. On the contrary, he had intended to marry Ms Camp and letters of legitimation had been granted precisely because his untimely death had precluded that marriage (see paragraphs 8, 12 and 17-18 above). In these circumstances, the Court cannot accept the Government's arguments as to how Mr A. Bourimi might have prevented his son's present predicament (see paragraph 32 above).\n\n39.  Although the protection of the rights of other heirs may constitute a legitimate aim, when it comes to the question of the proportionality of the means chosen to achieve this aim the Court observes that Sofian was not a descendant of whose existence the other heirs were unaware. Here, there is no indication that the exigencies of the situation required the level of protection that was afforded to Mr A. Bourimi's parents and siblings to the detriment of his son. The Court considers that in these circumstances Sofian's exclusion from his father's inheritance was disproportionate. Accordingly, there has been a breach of Article 14 of the Convention taken in conjunction with Article 8 in respect of Sofian.\n\niii.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n40.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\n41.  The applicants submitted that their claims for just satisfaction related solely to the breach of Article 14 of the Convention taken in conjunction with Article 8.\n\n42.  The Government argued that, given the subsidiary nature of the provision, there was no room for application of Article 41 since it could not be excluded that the applicants would be successful if they lodged judicial proceedings for tort against the State.\n\nAlternatively, the Government were of the opinion that the reasons why Ms Camp and Mr A. Bourimi had not availed themselves of other legal possibilities to establish a legally recognised family relationship between father and child, such as recognition or the making of a will, fell within the private sphere. Therefore, any financial or emotional prejudice suffered as a result should not be fully attributed to the Government.\n\n43.  The Court considers relevant, in the first place, that to oblige the applicants to commence an action for tort in the Netherlands would prolong the total length of the proceedings relating to the applicants' rights under the Convention even more (see the De Wilde, Ooms and Versyp v. Belgium judgment of 10 March 1972 (Article 50), Series A no. 14, pp. 8-9, § 16, and the Barberà, Messegué and Jabardo v. Spain judgment of 13 June 1994 (Article 50), Series A no. 285C, p. 57, § 17).\n\nIn this context it is further observed that it has not been established by the Government that proceedings for tort would be successful.\n\n44.  Moreover, the Court recalls its case-law under former Article 50 of the Convention to the effect that just satisfaction may be granted by the Court unless a national law remedy is able to bring about a result as close to restitutio in integrum as possible in the nature of things (see, for example, the De Wilde, Ooms and Versyp judgment cited above, pp. 9-10, § 20; the Ringeisen v. Austria judgment of 22 June 1972 (Article 50), Series A no. 15, p. 8, § 21; and the Sunday Times v. the United Kingdom judgment of 6 November 1980 (Article 50), Series A no. 38, pp. 8-9, § 13). The question arises whether proceedings for tort, or any other kind of proceedings for that matter, would indeed be capable of bringing about such a result in the present case given that the impossibility for Sofian to obtain the status of heir of his father would not be remedied.\n\nFinally, the Court observes that the Government have declined to give the applicants the compensation which they claimed (see paragraph 4 above; see also the De Wilde, Ooms and Versyp judgment cited above, pp. 9-10, § 20, and the Ringeisen judgment cited above, p. 9, § 22).\n\n45.  Consequently, the Court considers that it should examine the merits of the applicants' claims for just satisfaction.\n\n46.  In addition, the Court cannot accept the Government's argument to the effect that they should not be held fully responsible for the entire financial consequences of private choices made by Ms Camp and Mr A. Bourimi. The Court has already rejected this argument when considering the merits and reiterates, under this head, its reasons for doing so (see paragraph 38 above). It would add that Sofian's parents, who had intended to get married, could hardly have been expected to anticipate that he would become the victim of discriminatory legislation.\n\nA.  Damage\n\n1.  Pecuniary damage\n\n47.  The applicants claimed a total of 560,844.75 Netherlands guilders (NLG), this amount comprising the current value of the estate of Mr A. Bourimi, a sum of money which he had in his possession on the day he died and which had been handed over to his parents, as well as an amount of overpaid income tax which had been given to the deceased's parents by the tax authorities.\n\nIn respect of the current value of the estate, the applicants based themselves on a letter dated 14 March 2000 from the notary in charge of the winding up of the estate.\n\nThe applicants also sought compensation for removal expenses incurred by Ms Camp on two occasions. They estimated these costs at NLG 30,000.\n\nFinally, the applicants submitted that pecuniary damage had been caused by the necessity to pay rent whereas they could have lived virtually for free in Mr A. Bourimi's house had this been inherited by Sofian.\n\n48.  The Government argued that the value of the estate should be determined at the time of death of Mr A. Bourimi, and that developments which occurred or assets which were acquired after his death should have no bearing on this determination.\n\nThey further refuted that there was any connection between a violation of the Convention and the applicants' moving out of the house.\n\n49.  The Court accepts that Sofian suffered pecuniary damage the amount of which is equivalent to the value of his father's estate, which he would have obtained had he had a legally recognised family relationship with his father at the time of the latter's death (see the Vermeire judgment cited above, p. 84, § 31).\n\nAs to the time at which the value of the estate falls to be determined, the Court observes that the estate was distributed amongst the heirs on 9 February 2000 (see paragraph 15 above). Consequently, it was the value which the estate had at that time which Sofian would have obtained.\n\nThe Court further considers that the sums of money transmitted to the parents of Mr A. Bourimi prior to the distribution of the estate also qualify for compensation under this head.\n\nAs to removal expenses and rent, the Court notes that these items have not been sufficiently quantified. Moreover, Ms Camp left the house after reaching a settlement to that effect with the heirs of Mr A. Bourimi and at a time when the legal proceedings concerning her claim to remain in the house had not yet been concluded (see paragraph 14 above).\n\nNoting that the bulk of the estate was only distributed very recently rather than shortly after Mr A. Bourimi's death in 1992, the Court does not deem it appropriate to make an award for statutory interest.\n\n50.  The Court consequently awards Sofian NLG 560,844.75 in respect of pecuniary damage, which amount is to be paid to, and held by, Ms Camp for Sofian.\n\n2.  Non-pecuniary damage\n\n51.  The applicants submitted that they had suffered frustration, distress and anxiety in which respect they deemed compensation in the amount of NLG 50,000 reasonable.\n\nThe Government were of the view that any finding of a violation would constitute sufficient just satisfaction under this head.\n\n52.  Even though the finding of a violation of the Convention concerned Sofian only, the Court accepts that Ms Camp also suffered distress. Taking its decision on an equitable basis, the Court awards the applicants compensation in the amount of NLG 6,750.\n\nB.  Costs and expenses\n\n53.  The applicants claimed an amount of NLG 71,670 for lawyers' fees and costs incurred in bringing the application. They added that the complaint concerning the difference in treatment had occupied most of the time which their legal representatives had spent on the case.\n\nThey also sought reimbursement in the amount of NLG 904.75 for the fees of the notary who had provided the applicants with written statements of the contents and value of the estate.\n\n54.  The Government regarded the lawyers' fees as exaggerated. Moreover, they submitted that the question whether both or only one of the applicants are or is a victim of a violation of the Convention should also be taken into account.\n\n55.  In relation to the claim for costs of legal representation the Court, deciding on an equitable basis, awards the applicants the sum of NLG 30,000, together with any value-added tax that may be chargeable, less the amounts received by way of legal aid from the Council of Europe.\n\nIt further considers that the notary's fees also qualify for compensation in the present context. In respect of this claim, therefore, the Court awards the applicants the sum of NLG 904.75.\n\nC.  Default interest\n\n56.  According to the information available to the Court, the statutory rate of interest applicable in the Netherlands at the date of adoption of the present judgment is 6% per annum.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Holds that there has been no violation of Article 8 of the Convention in respect of family life either between Ms Camp and Sofian or between Ms Camp and the relatives of Mr A. Bourimi;\n\n2.  Holds that it is not necessary to decide on the complaint of a violation of Article 8 of the Convention in respect of family life between Sofian and the relatives of Mr A. Bourimi;\n\n3.  Holds that there has been a violation of Article 14 of the Convention taken in conjunction with Article 8 in respect of Sofian;\n\n4.  Holds\n\n(a)  that the respondent State is to pay the applicants, within three months, the following sums:\n\n(i) NLG 560,844.75 (five hundred and sixty thousand eight hundred and forty-four Netherlands guilders seventy-five cents) for pecuniary damage, to be held by Ms Camp for Sofian;\n\n(ii) NLG 6,750 (six thousand seven hundred and fifty Netherlands guilders) for non-pecuniary damage;\n\n(iii) NLG 30,904.75 (thirty thousand nine hundred and four Netherlands guilders seventy-five cents) for costs and expenses, together with any value-added tax that may be chargeable, less the amounts received by way of legal aid from the Council of Europe;\n\n(b)  that simple interest at an annual rate of 6% shall be payable from the expiry of the above-mentioned three months until settlement;\n\n5.  Dismisses the remainder of the applicants' claims for just satisfaction.\n\nDone in English, and notified in writing on 3 October 2000, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_298","text":"PROCEDURE\n\n1.  The case originated in an application (no. 36677/97) against the  lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a French company, S.A. Dangeville (“the applicant company”), on 6 March 1997.\n\n2.  The applicant company was represented by Mr D. Garreau, a member of the Conseil d'Etat and Court of Cassation Bar. The French Government (“the Government”) were represented by their Agent, Mr R. Abraham, Director of Legal Affairs at the Ministry of Foreign Affairs.\n\n3.  The applicant company alleged, in particular, that its right to the peaceful enjoyment of its possessions had been infringed and that it had been discriminated against.\n\n4.  The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).\n\n5.  The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.\n\n6.  By a decision of 12 September 2000 the Court declared the application partly admissible [Note by the Registry. The Court's decision is obtainable from the Registry].\n\n7.  The applicant company and the Government each filed observations on the merits (Rule 59 § 1).\n\n8.  On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Second Section (Rule 52 § 1).\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n9.  Under the General Tax Code as worded until 31 December 1978 the applicant company was liable to value-added tax (VAT) on its commercial activity. It paid a total of 291,816 French francs (FRF) in VAT on its 1978 transactions.\n\n10.  Article 13-B-a of the Sixth Directive of the Council of the European Communities dated 17 May 1977 granted an exemption from VAT for “insurance and reinsurance transactions, including related services performed by insurance brokers and insurance agents”. That provision was to come into force on 1 January 1978.\n\n11.  On 30 June 1978 the Ninth Directive of the Council of the European Communities dated 26 June 1978 was notified to the . It granted  an extension of time – until 1 January 1979 – in which to implement the provisions of Article 13-B-a of the Sixth Directive of 1977. Since such directives have no retroactive effect, the Sixth Directive ought nonetheless to have been applied from 1 January to 30 June 1978.\n\n12.  Relying on the Sixth Directive, the applicant company sought reimbursement of the VAT it had paid for the period from 1 January to 31 December 1978, which it considered had not been due as the Ninth Directive had no retroactive effect. It also brought an action in damages against the State for failing to bring French law into line with the Sixth Directive within the prescribed period, thereby causing it to sustain damage equal to the amount of the VAT paid. It claimed reimbursement of the VAT paid or, failing that, the amount attributable to the period from 1 January 1978 to the date the Sixth Directive had come into force.\n\n13.  The  dismissed its claims in a judgment of 8 July 1982. It held, inter alia, that it was clear from the Treaty of the European Communities that while directives placed an obligation on States to achieve a particular result, the choice of the appropriate means of implementing a directive in domestic law lay within the sole discretion of the national authorities, such that individuals and private bodies could not rely directly on a directive to defeat a provision of domestic law.\n\n14.  On 10 June 1982 a claim by another firm of insurance brokers, S.A. Revert et Badelon, for the reimbursement of VAT paid on its transactions in 1978 was dismissed by the  for the same reasons.\n\n15.  In a further development, the authorities directed in an administrative circular issued on 2 January 1986:\n\n“... no further action shall be taken to collect sums remaining due at the date of publication of this circular from insurance brokers who have failed to charge value-added tax on their transactions between 1 January and 30 June 1978 and have received supplementary tax assessments as a result.”\n\n16.  In a judgment of 19 March 1986 the Conseil d'Etat dismissed an appeal by the applicant company. It held that individuals and private bodies were not entitled to rely on the provisions of a European directive that had yet to be transposed into domestic law and declared the action in damages inadmissible, as the applicant company had omitted to apply in the first instance to the tax authorities. The main points in its judgment were as follows.\n\n17.  As regards the first head of claim:\n\n“Article 189 of the Treaty Establishing the European Community of 25 March 1957 makes it clear that, while Council directives are binding upon each member State 'as to the result to be achieved' and while in order to achieve the prescribed results the national authorities are required to adapt the legislation of the member States to comply with the directives addressed to them, it is solely for those authorities to decide how to give effect to the directives in domestic law. Thus, regardless of any instructions they may contain for the member States, directives cannot be pleaded in aid of tax appeals by nationals of those States. It is common ground that appropriate measures to implement the aforementioned Sixth Directive in domestic law had yet to be taken at the time of the relevant reference period for taxation purposes. In these circumstances, the said Directive, which, contrary to what was submitted by the appellant company, does not constitute a regulation within the meaning of the aforementioned Treaty, has in any event no bearing on the application of the preceding statutory provisions, in particular, Article 256 of the General Tax Code ...”\n\n18.  As regards the second head of claim:\n\n“The  did not rule on the claim made in the alternative during the course of the proceedings by the company for compensation in the sum of FRF 291,816. That part of the impugned judgment is therefore defective procedurally and must be quashed.\n\nIn the present circumstances, an immediate examination and determination of the claim which the court below omitted to decide is called for.\n\nBy virtue of the provisions of Article R.89 of the Administrative Courts Code and Article 1 of the decree of 11 January 1965, proceedings may only be brought in the administrative courts by way of an appeal against a decision. S.A. Jacques Dangeville has not produced any decision that shows that the administrative authority refused to pay it the claimed compensation of FRF 291,816; it has not even produced a request to the authority for that amount. Accordingly, in the absence of a prior decision, its claim to compensation is inadmissible ...”\n\n19.  As the second claim had been dismissed on procedural grounds owing to the applicant company's failure to apply in the first instance to the tax authorities, the applicant company made a further claim for reparation, this time after following the prescribed procedure. To that end, it had sent the Minister of the Budget a claim for reparation comprising two limbs on 16 March 1987. In the first, it alleged that the State was at fault for failing to transpose the Sixth Directive into domestic law within the prescribed period and for continuing to apply a provision of French law that no longer complied with Community law. In the second, it argued that the State was strictly liable for failing to maintain an equal distribution of public burdens following the issue of the circular of 2 January 1986.\n\n20.  The claim was rejected by the Minister. An appeal by the applicant company to the  was dismissed on 23 May 1989.\n\n21.  In a judgment of 1 July 1992 the Paris Administrative Court of Appeal, sitting as a full court, quashed part of the judgment of the . It held that the State had been at fault and ordered it to pay the applicant company compensation for its loss in the sum of FRF 129,845, being the amount of VAT overpaid, together with compound statutory interest.\n\n22.  The main points made by the Administrative Court of Appeal in its judgment were as follows:\n\n“The principle of State liability:\n\nUnder the provisions of the Treaty establishing the European Economic Community, and in particular Article 5 thereof, the French State is required to take all appropriate measures to ensure fulfilment of its obligations under the Treaty. These include an obligation to nullify all the illegal consequences of a violation of Community law either directly or, in default, by providing effective reparation for the resulting damage. It follows that the fact that a taxpayer which alleges that it has been taxed on the basis of a statutory provision that is incompatible with the objectives of a Community directive has first referred the issue of taxation to the tax court, which refused to accept that such incompatibility could serve as a cause of action, cannot by itself render inadmissible a claim made by the taxpayer on the basis of the obligations arising under the aforementioned Treaty for reparation for the damage it has sustained as a result of a failure to transpose the objectives of the directive into domestic law.\n\nBy Article 13-B-a of the Sixth Directive of the Council of the European Economic Communities dated 17 May 1977 the legislation of member States was required from 1 January 1978 onwards to exempt from value-added tax insurance and reinsurance transactions, including related services performed by insurance brokers and insurance agents. Although the Ninth Directive of 26 June 1978, which was notified to the French State on 30 June 1978, granted France an extension of time – until 1 January 1979 – in which to transpose the provisions of the Sixth Directive, it is construed by the Court of Justice of the European Economic Communities as having no retroactive effect. Thus, the provisions of Article 256 of the General Tax Code as worded prior to 1 January 1979 requiring payment of value-added tax on insurance broking activities of the type carried on by the Jacques Dangeville company were for the period from 1 January to 30 June 1978 incompatible with the objectives set by the Sixth Directive. Accordingly, contrary to the 's decision, the applicant company's claim that the State is liable for the situation that has thus arisen and should be ordered to make good the loss it has sustained as a result of the illegal situation brought about by its being required to pay value-added tax for the above-mentioned period is well-founded.\n\nDamage:\n\nIn view of the fact that insurance brokers are remunerated on the basis of a percentage calculated by the insurers of the premiums paid by the latter's customers, the value-added tax paid by the Jacques Dangeville company was not passed on to their customers or invoiced. Thus, the damage for which the company is entitled to claim reparation is equal to the amount of the value-added tax it paid for the period from 1 January to 30 June 1978 and comes to FRF 129,845.86.”\n\n23.  The tax authorities appealed to the Conseil d'Etat.\n\n24.  In its pleading lodged on 23 May 1995 the applicant company set out the following ground of defence:\n\n“... in the instant case the rule that taxpayers should bear the tax burden equally has been contravened by the introduction of measures treating people in the same position differently, since a circular dated 2 January 1986 purported to rule that insurance brokers who had not paid VAT on their transactions between 1 January 1978 and 30 June 1978 and had received supplementary tax assessments as a result would no longer be required to pay the sums they continued to owe on that account at the date the circular was published.\n\nThis is a particularly clear breach of the rule that public liabilities must be borne equally. It is also unjust, as it resulted in discrimination between persons liable to VAT, with those who have paid the tax being adversely affected and those who refrained from doing so deriving a benefit.”\n\n25.  By a judgment of 30 October 1996 the Conseil d'Etat, sitting as a full court, quashed that judgment and dismissed all the applicant company's claims. It held that the applicant company was not entitled to seek through an action in damages a remedy it had been refused in tax proceedings in a decision that gave rise to an estoppel by record, namely the judgment of 26 February 1986.\n\n26.  The essence of the Conseil d'Etat's decision was as follows:\n\n“The documents in the file submitted to the Paris Administrative Court of Appeal show that by a decision of 19 March 1986 the Conseil d'Etat, acting in its judicial capacity, dismissed a claim by S.A. Jacques Dangeville seeking reimbursement of value-added tax it had paid for the period from 1 January to 31 December 1978, inter alia, on the ground that its liability to that tax had arisen from the application of statutory provisions that were incompatible with the objectives of the Sixth Directive of the Council of the European Communities of 17 May 1977. The claim by S.A. Jacques Dangeville which the Administrative Court of Appeal examined in the impugned judgment was for payment of 'compensation' in an amount equal to the amount of value-added tax that had thus been paid, by way of reparation for the 'damage' which that tax liability had caused the company to sustain, on the ground that that damage was attributable to the French State's delay in transposing the objectives of the Directive into domestic law. It follows that, as submitted by the Minister of the Budget, the Paris Administrative Court of Appeal erred in law in holding that the fact that the company '[had] first referred the issue of taxation to the tax court' did not render inadmissible a claim for reparation in which the only alleged damage was the damage resulting from the payment of the tax. The Minister of the Budget's application to have the impugned judgment overturned is accordingly founded to the extent that the Administrative Court of Appeal upheld in part the claims made by S.A. Jacques Dangeville in its submissions ...”\n\n27.  On the same day the Conseil d'Etat delivered judgment on an appeal lodged on 23 August 1982 by S.A. Revert et Badelon against the 's judgment of 10 June 1982. The Conseil d'Etat did not follow the line it had taken in its judgment of 26 February 1986 in the applicant company's case, but instead declared S.A. Revert et Badelon's appeal on points of law admissible, holding that the company was entitled to rely on the provisions of the Sixth Directive and should be granted a release from the contested tax liability – for which there was no statutory basis as the statutory provisions conflicted with the objectives of the Directive – for the sums erroneously paid for the period from 1 January to 30 June 1978.\n\n28.  The Government Commissioner lodged submissions that were common to the applicant company's and S.A. Revert et Badelon's cases. He pointed out that the factual and legal issues in each were identical, saying:\n\n“... [the file in the case of S.A. Revert et Badelon] raises the same issue of law as that decided by this court on 19 March 1986 on the appeal of the Jacques Dangeville company. The period concerned is the same and the applicable instruments identical. The appellant company, which runs the Revert et Badelon firm, has an activity as insurance brokers which is indistinguishable from that of the Dangeville company ...”\n\n29.  He added:\n\n“... I invite you to quash the judgment of the Paris Administrative Court of Appeal which upheld the Dangeville company's claims for compensation. It has been that company's misfortune to have its tax claim decided too early. I am conscious that the resulting outcome in its case may appear unjust. I am, however, mindful that upholding the judgment in its favour would mean your making an exception to the principles on which your decision-making process is based that would unreasonably undermine the stability of legal situations created by judicial decision. One isolated case based, moreover, on transitional difficulties, cannot serve to justify making such an exception ...”\n\n30.  In finding in favour of S.A. Revert et Badelon in its judgment of 30 October 1996, the Conseil d'Etat held as follows:\n\n“Firstly, by virtue of Article 1 of the Sixth Directive of the Council of the European Communities of 17 May 1977 the member States were required to take appropriate measures by no later than 1 January 1978 in order to bring their systems of value-added tax in line with the objectives of the Directive. Although the Ninth Directive of 26 June 1978, which was notified to the French State on 30 June 1978, granted France an extension of time – until 1 January 1979 – in which to transpose the provisions of the Sixth Directive, it is construed by the Court of Justice of the European Economic Communities as having no retroactive effect. Thus, before 30 June 1978 it was unable to afford the French authorities a defence for their failure to enact provisions complying with the objectives of the Sixth Directive on time.\n\nFurther, in so far as they make dealings by insurance brokers liable to value-added tax when the remuneration for them does not take the form of commission or brokerage set by statute or regulations, Articles 256 and 261-4-1o of the General Tax Code, which were enacted by the Law of 6 January 1966 and remained in force until amended by the Law of 29 December 1978, are not compatible with the objectives of the provisions of sub-paragraph (a) of Article 13-B of the Sixth Directive, which exempts from value-added tax all insurance and reinsurance transactions performed by insurance brokers or agents. Accordingly, it is to that extent necessary to rule that those provisions of Articles 256 and 261-4-1o were inapplicable for the period from 1 January to 30 June 1978. It follows that the submission by the S.A. Revert et Badelon firm, which carries on an activity as insurance brokers, that there was no basis in law for the demand for it to pay value-added tax on its business dealings during the period from 1 April to 30 June 1978 is well-founded.\n\nHowever, for the period from 1 July to 31 December 1978 the company is not entitled to rely on the incompatibility of Articles 256 and 261-4-1o of the General Tax Code with the objectives of the provisions of sub-paragraph (a) of Article 13-B of the Sixth Directive, as the time-limit by which France was required to bring its legislation into line with that Directive was extended to 1 January 1979 by the Ninth Directive. Subsequently, the applicant company was rightly charged value-added tax for the period from 1 July to 31 December 1978 on the basis of the provisions of Articles 256 and 261-4-1o of the General Tax Code that remained applicable.\n\nIt follows from the foregoing that the sole valid submission made by the S.A. Revert et Badelon firm is that the  erred in its impugned judgment in dismissing its claim for the periods from 1 to 29 February 1978 and 1 April to 30 June 1978 ...”\n\nII.  RELEVANT LAW AND PRACTICE\n\nA.  Community law\n\n1.  General principles\n\n31.  As regards the principle of the “precedence of the Community legal system”, see, among other authorities, the following judgments of the Court of Justice of the European Communities (CJEC): Case 6/64, Costa v. E.N.E.L. [1964] European Court Reports (ECR) 585 (“By contrast with ordinary international treaties, the EEC treaty has created its own legal system which, on the entry into force of the treaty, became an integral part of the legal systems of the Member States and which their courts are bound to apply”); Case 34/73, Fratelli Variola Spa v. Amministrazione italiana delle Finanze [1973] ECR 981; and Case 106/77, Amministrazione delle Finanze dello Stato v. Simmenthal [1978] ECR 629.\n\n32.  CJEC, Case 26/62, Van Gend en Loos v. Administratie der Belastingen [1963] ECR 1:\n\n“Independently of the legislation of Member States, Community law not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage.”\n\n33.  CJEC, Case 309/85, Barra v. Belgian State and City of Liège [1988] ECR 355, paragraphs 17 and 18:\n\n“The right to repayment of amounts charged by a  in breach of the rules of Community law is the consequence and complement of the rights conferred on individuals by the Community provisions as interpreted by the Court. Whilst it is true that repayment may be sought only in the framework of the conditions as to both substance and form laid down by the various national laws applicable thereto, the fact nevertheless remains that those conditions may not be so framed as to render virtually impossible the exercise of rights conferred by Community law.”\n\n2.  The Directives\n\n34.  CJEC, Case 8/81, Becker v. Finanzamt Münster-Innenstadt  [1982] ECR 53, paragraphs 19, 20 and 24:\n\n“Wherever a directive is correctly implemented, its effects extend to individuals through the medium of the implementing measures adopted by the Member State concerned ... However, special problems arise where a Member State has failed to implement a directive correctly and, more particularly, where the provisions of the directive have not been implemented by the end of the period prescribed for that purpose ... A Member State which has not adopted the implementing measures required by the directive within the prescribed period may not plead, as against individuals, its own failure to perform the obligations which the directive entails.”\n\n35.  CJEC, Joined Cases C-178/94, C-179/94, C-188/94, C-189/94 and\nC-190/94, Erich Dillenkorfer and others v. Bundesrepublik Deutschland [1996] ECR I-4845, paragraph 29:\n\n“Failure to take any measure to transpose a directive in order to achieve the result it prescribes within the period laid down for that purpose constitutes per se a serious breach of Community law and consequently gives rise to a right of reparation for individuals suffering injury ...”\n\nCJEC, Joined Cases C-6/90 and C-9/90, Francovich and Bonifaci v. Italian Republic [1991] ECR I-5357, paragraph 36:\n\n“A further basis for the obligation of Member States to make good such loss and damage is to be found in Article 5 of the Treaty, under which the Member States are required to take all appropriate measures, whether general or particular, to ensure fulfilment of their obligations under Community law. Among these is the obligation to nullify the unlawful consequences of a breach of Community law.”\n\n36.  CJEC, Case 188/95, Fantask and others v. Industriministeriet [1997] ECR I-6783, paragraphs 42, 48 and 52:\n\n“By its seventh question, the national court essentially asks whether Community law prevents a Member State from relying on a limitation period under national law to resist actions for the recovery of charges levied in breach of the Directive as long as that Member State has not properly transposed the Directive ... The Court has thus acknowledged, in the interests of legal certainty which protects both the taxpayer and the authority concerned, that the setting of reasonable limitation periods for bringing proceedings is compatible with Community law. Such periods cannot be regarded as rendering virtually impossible or excessively difficult the exercise of rights conferred by Community law, even if the expiry of those periods necessarily entails the dismissal, in whole or in part, of the action brought (see, in particular, Case 33/76 Rewe v. Landwirtschaftskammer Saarland [1976] ECR 1989, paragraph 5, Case 45/76 Comet v. Produktschap voor Siergewassen [1976] ECR 2043, paragraphs 17 and 18, and Case 261/95 Palmisani v. Istituto Nazionale della Previdenza Sociale [1997] ECR I-0000, paragraph 28) ... The reply to the seventh question must therefore be that Community law, as it now stands, does not prevent a Member State which has not properly transposed the Directive from resisting actions for the repayment of charges levied in breach thereof by relying on a limitation period under national law which runs from the date on which the charges in question became payable, provided that such a period is not less favourable for actions based on Community law than for actions based on national law and does not render virtually impossible or excessively difficult the exercise of rights conferred by Community law.”\n\n3.  Lack of retrospective effect for the Ninth Directive and period of application of the Ninth Directive in 1978\n\n37.  CJEC, Case 70/83, Kloppenburg v. Finanzamt Leer [1984] ECR 1075, paragraphs 11-14:\n\nIt is necessary to emphasise, as the Court has already done on several occasions, that Community legislation must be unequivocal and its application must be predictable for those who are subject to it. Postponement of the date of entry into force of a measure of general application, although the date initially specified has already passed, is in itself liable to undermine that principle. If the purpose of an extension is to deprive individuals of the legal remedies which the first measure has already conferred upon them, such an effect in practice raises the question of the validity of the amending measure.\n\nHowever, such a question of validity could arise only if the intention to produce the above-mentioned effect were expressly stated in the amending measure. That is not so in the case of the Ninth Directive. The text of that Directive merely extends the period for transposing the Sixth Directive into national law in favour of those Member States which were unable to complete, within the period initially prescribed, the legislative procedure required for amending their legislation on value-added tax. It contains nothing to indicate that the extension alters the position of economic operators in relation to transactions carried out by them prior to the entry into force of the measure altering the period allowed for implementation.\n\nIt follows that the Ninth Directive must be interpreted as not having retroactive effect in that regard.\n\nThe answer to the question raised should therefore be that in the absence of the implementation of the Sixth Council Directive, 77/388/EEC, of 17 May 1977, on the Harmonisation of the Laws of the Member States relating to Turnover Taxes – Common System of Value-Added Tax; Uniform Basis of Assessment, it was possible for the provision concerning the exemption of the negotiation of credit ... to be relied upon by a credit negotiator in relation to transactions carried out between 1 January and 30 June 1978 ...”\n\nB.  Domestic case-law\n\n1.  Conseil d'Etat\n\n38.  Judicial Assembly, 22 December 1978, ministre de l'Intérieur v. Cohn-Bendit, Recueil Lebon:\n\n“... Article 56 of the Treaty establishing the European Economic Community dated 25 March 1957, which does not contain any provision empowering bodies of the European Communities to make regulations on public-policy grounds that are directly applicable in the member States, provides that the coordination of provisions laid down by law or regulation 'providing for special treatment for foreign nationals on grounds of public policy, public security or public health' shall be assured by directives issued by the Council on a proposal from the Commission and after consulting the Assembly. It is clear from Article 189 of the Treaty of 25 March 1957 that while such directives are binding upon each member State 'as to the result to be achieved' and while in order to achieve the prescribed results the national authorities are required to adapt the legislation and regulations of the member States to comply with the directives addressed to them, it is solely for those authorities to determine the form implementation of the directives will take and to decide, subject to supervision by the domestic courts, how to give effect to the directives in domestic law. Thus, regardless of any instructions they may contain for the member States, directives cannot be pleaded in aid of appeals by nationals of those States against individual administrative acts. It follows that Mr Cohn-Bendit's submission to the Paris Administrative Court in support of his application for an order quashing the Minister of the Interior's decision of 2 February 1976, on the ground that it contravened the provisions of the Directive issued on 25 February 1964 by the Council of the European Communities with a view to coordinating, in accordance with the conditions laid down by Article 56 of the Treaty of Rome, the special measures taken to control the movement and residence of aliens on grounds of public policy, public security or public health, is unfounded. Accordingly, in the absence of any contention that the regulatory measures taken by the French Government in order to comply with the directives issued by the Council of the European Communities are unlawful, the decision to be taken on Mr Cohn-Bendit's appeal cannot under any circumstances turn upon the interpretation of the Directive of 25 February 1964. It follows, without there being any need to examine the grounds of the appeal, that the Minister of the Interior's submission is well-founded, namely the Paris Administrative Court erred in its impugned judgment of 21 December 1977 in referring to the Court of Justice of the European Communities the issues concerning the interpretation of that Directive and staying the proceedings pending the Court of Justice's decision ...”\n\n39.  Judicial Assembly, 20 October 1989, Nicolo, Recueil Lebon, p. 190:\n\n“By section 4 of Law no. 77-729 of 7 July 1977 governing the Election of the Representatives of the Assembly of the European Communities 'the territory of the Republic forms a single constituency' for the purposes of the election of the French representatives to the European Parliament. By virtue of that statutory provision, taken together with Articles 2 and 72 of the Constitution of 4 October 1958, which lay down that the overseas départements and territories are integral parts of the , those départements and territories are necessarily included in the single constituency within which the election of representatives to the European Parliament takes place. Article 227-1 of the Treaty of 25 March 1957 establishing the European Economic Community provides: 'This Treaty shall apply to the .' The aforesaid rules set out in the Law of 7 July 1977 are not incompatible with the clear provisions of the aforementioned Article 227-1 of the Treaty of Rome ...”\n\n40.  Judicial Assembly, 28 February 1992,  Rothmans International  et  Philip Morris France, Recueil Lebon, p. 20:\n\n“Article 37 of the Treaty establishing the European Economic Community  provides: 'Member States shall progressively adjust any State monopolies of a commercial character so as to ensure that when the transitional period has ended no discrimination regarding the conditions under which goods are procured and marketed exists between nationals of Member States.' Article 5-1 of the Directive of the Council of the European Communities dated 19 December 1972, which was issued with a view to implementing those provisions with regard to manufactured tobacco and the provisions of Article 30 of the Treaty, which prohibits quantitative restrictions and all measures having equivalent effect, provides: 'Manufacturers and importers shall be free to determine the maximum retail selling price for each of their products. This provision may not, however, hinder implementation of the national systems of legislation regarding the control of price levels or the observance of imposed prices.' As the Court of Justice of the European Communities ruled in finding infringements in its judgments of 21 June 1983 and 13 July 1988, the only provisions whose application is reserved by Article 5-1 of the Directive are provisions of national legislation of a general nature that are intended to curb increases in prices. The aforementioned provisions of section 6 of the Law of 24 May 1976 confer on the government a special power to fix the price of tobacco imported from member States of the European Community, independently of the application of the national legislation regarding the control of price levels. They thus enable the government to fix the sale price of imported tobacco in conditions that were not contemplated by Article 5-1 of the Directive of 19 December 1972 and are incompatible with the objectives set out in that Directive. It follows from this that Article 10 of the decree of 31 December 1976 referred to above, which was issued on the basis of section 6 of the Law of 24 May 1976, which must be regarded as inapplicable, is itself devoid of statutory basis. In view of the foregoing, the Minister of the Economy, Finance and the Budget was not entitled in law tacitly to reject the applications by the companies Rothmans International France and Philip Morris France for permission to raise the price of products they imported or distributed as wholesalers by fifty centimes on 1 September 1983. Accordingly, the said decisions must be quashed ...”\n\n2.  Court of Cassation\n\n41.  Mixed Division, 24 May 1975, Administration des douanes v. Société des cafés Jacques Vabre, Sarl J. Weigel et Cie, (Court of Cassation, Bulletin no. 4):\n\n“... the Treaty of 25 March 1957, which, by virtue of Article [55] of the Constitution, ranks above legislation, establishes a separate branch of law which is integrated into the legal systems of the member States. Owing to that special characteristic, the branch of law set up by the Treaty is directly applicable to nationals of those States and binding on their courts ... Accordingly, the Court of Appeal's decision that Article 95 of the Treaty should be applied in the instant case, to the exclusion of Article 265 of the Customs Code, even though the latter provision is the more recent, was correct and not beyond the Court of Appeal's powers ...\n\nSince, in the Community legal system, infringements by member States of the European Economic Community of their obligations under the Treaty of 25 March 1957 are actionable under Article 170 of the said Treaty, the plea of lack of reciprocity is not available in the domestic courts ...”\n\n3.  Legal theory\n\n42.  Extracts from Institutions administratives – Droit administratif, by Georges Dupuis and Marie-José Guédon, published by Armand Colin, , 1986, pp. 87-88:\n\n“The Court of Cassation drew the logical conclusions from the fact that the two legal systems are superimposed: in the event of a conflict between a statute and a Community norm, only the latter is applicable, even if it is prior in time. Consequently, French courts will refuse to apply French law if it is contrary to European law. In other words, they carry out a form of verification of the compatibility of the statute with Community law that is very similar to a review of constitutionality. Basically, the reasoning of the Court of Cassation extends the principle established by Article 55 of the Constitution that international treaties take precedence over statutes. The Court of Cassation relies on two series of arguments: firstly, implicit in the initial treaties is a move towards abandonment of sovereignty by the States and the creation of genuine supra-sovereignty in favour of the Community bodies. Secondly, since the national courts are responsible for applying the provisions emanating from that supra-sovereignty directly, they cannot give precedence to domestic law as, in this system, it is necessarily infra-sovereign (Court of Cassation, Société des cafés Jacques Vabre, 24 May 1975 ...).\n\nThe Conseil d'Etat rejects such reasoning (Conseil d'Etat, 1 March 1968, Syndicat général des fabricants de semoule de France ...; Conseil d'Etat, 22 December 1978, ministre de l'Intérieur v. Cohn-Bendit ...). It has shown itself to be 'essentially a national jurisdiction, which is persuaded of the excellence of the national system and has resolved to act as the guardian of national legality' (C.-A. Colliard, Le juge administratif français et le droit communautaire, Mélanges offerts à Marcel Waline, LGDJ, Paris, 1974, p. 187; Bruno Genevois 'Le Conseil d'Etat et l'ordre juridique communautaire', EDCE [Studies and documents of the Conseil d'Etat], 1979-1980, p. 73; Reports and Studies Committee of the Conseil d'Etat, 'Droit communautaire et droit français', EDCE, 1981-1982, p. 215), notably in two ways. Firstly, it has proscribed all verification of the compatibility of legislation with Community law: according to a Government Commissioner, the administrative courts 'may not criticise or disregard a statute, even on the ground that it violates international law or, more particularly, Community law'. Secondly, on a more specific point, the Conseil d'Etat has chosen not to follow the case-law of the Court of Justice of the European Communities that has blurred the distinction between regulations and directives... The Conseil d'Etat affirms, on the contrary, [that] 'regardless of any instructions they may contain' [directives] cannot be pleaded in aid of an application for review of an individual act. Directives do, however, impose an obligation on the national authorities to adapt their legislation and regulations so as to comply with the directive (see Cohn-Bendit, cited above). Consequently, nationals of member States may challenge the validity of domestic regulatory measures by reference to the Community directives which they purport to implement or which they disregard.”\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1\n\n43.  The applicant company alleged a violation of its right of property set out in the second sentence of the first paragraph of Article 1 of Protocol No. 1, which provides:\n\n“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.\n\nThe preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”\n\nA.  Existence of possessions within the meaning of Article 1 of Protocol No. 1\n\n44.  The applicant company submitted that it held a definite, immediately payable debt that could be assimilated to an asset as that term was used in Van Marle and Others v. the Netherlands (judgment of 26 June 1986, Series A no. 101, p. 13, § 41), since it had paid the tax as a result of a situation which the Administrative Court of Appeal and the Government Commissioner in the Conseil d'Etat considered to be unlawful. It also had a legitimate expectation of recovering its debt. From 1 January to 30 June 1978 the French value-added tax (VAT) legislation had contravened Community law as set out in Article 13-B-a of the Sixth Directive of 17 May 1977. The applicant company pointed out that the administrative circular of 2 January 1986 had been issued before the Conseil d'Etat's judgment of 19 March 1986 dismissing its appeal. It had therefore been on the basis of that administrative circular that its second appeal, alleging both fault on the part of the State for failing to transpose the Sixth Directive into domestic law and strict State liability for failing to maintain equality between public burdens, had been lodged.\n\nWhen it lodged its second appeal it therefore had a legitimate expectation within the meaning of the Court's judgment in Pressos Compania Naviera S.A. and Others v. Belgium (judgment of 20 November 1995, Series A no. 332) that its claim would be upheld, as a result of the issue of the administrative circular and the consequences it entailed. In addition, the administrative courts did accept jurisdiction to verify the compatibility of international and French norms, as the new precedent laid down in 1996 in  Revert et Badelon did no more than to apply a line of authorities that dated back to 1989 to tax proceedings (Conseil d'Etat, 20 October 1989, Nicolo, Recueil 190). The Conseil d'Etat had in several earlier decisions held that the State's responsibility was engaged in the event of a violation of Community law, in particular, if it was at fault for allowing an illegal situation to develop through the incompatibility of a domestic measure with a community directive (Judicial Assembly of the Conseil d'Etat, 28 February 1992, Arizona Tobacco Products and S.A. Philip Morris France). It followed that the judgment of the Administrative Court of Appeal was not an isolated authority and, indeed, it was only overturned by the Conseil d'Etat on procedural grounds based on the “classification of proceedings” rule (principe de la distinction des contentieux) .\n\nThe applicant company added that at the time its claim for compensation was lodged the classification of proceedings rule was only relative in scope, since as long ago as 1963 the Conseil d'Etat had declared, in a case in which the legal causes of action were identical, that a claim for compensation based on the illegality of an act was admissible, even though an application to have the act set aside as being ultra vires had previously been dismissed (Conseil d'Etat, 3 May 1963, Alaux, Recueil 261).\n\nLastly, since the implementation of the administrative circular of 1986 had created a difference in treatment between taxpayers of the same category, it afforded at minimum a basis on which the applicant company could lay claim to its debt by a second application for compensation (see National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society v. the United Kingdom, judgment of 23 October 1997, Reports of Judgments and Decisions 1997-VII). By exempting from liability those companies which had not paid the VAT, the tax authorities had acknowledged that they were under no obligation to pay it under domestic law and had thereby acknowledged their error.\n\n45.  The Government contended that the applicant company had not shown that it had had a legitimate expectation that could be regarded as a possession within the meaning of Article 1 of Protocol No. 1 when it issued its second action (see Pressos Compania Naviera S.A. and Others, cited above). There were two primary reasons why the applicant company's new appeal could not succeed. Firstly, its action had been brought on the basis that the tax authorities had been at fault in imposing the tax, whereas the existence of any such fault was necessarily excluded by the Conseil d'Etat's ruling in its judgment on the first appeal that the tax in issue had been lawfully levied. As regards the Paris Administrative Court of Appeal's judgment of 1 July 1992 allowing the applicant company's appeal, the Government argued that it was not in line with the case-law at the time the second appeal was lodged. Secondly, the Government referred to the “classification of remedies” rule (règle de la distinction des voies de recours), which, as the Conseil d'Etat had held in its judgment of 30 October 1996, precluded the applicant company from successfully bringing an action in tort after failing in its tax appeal.\n\n46.  The Court notes that, by requiring payment of VAT on transactions negotiated by insurance brokers during the period from 1 January to 30 June 1978, the French legislation was incompatible with the provisions of Article 13-B-a of the Sixth Directive of the Council of the European Communities of 17 May 1977, which was directly applicable from 1 January 1978 for the period concerned. This is apparent from the Sixth and Ninth Directives, the relevant case-law of the Court of Justice of the European Communities (CJEC – see paragraphs 31-37 above), the administrative circular of 2 January 1986 (see paragraph 15 above) and the terms of the Conseil d'Etat's judgment of 30 October 1996 in  Revert et Badelon (see paragraph 30 above). However, it is common ground that, even though it carried on business as insurance brokers, the applicant company paid VAT for the period from 1 January to 30 June 1978. Indeed, the Administrative Court of Appeal found in favour of the applicant company on 1 July 1992 in the second set of proceedings.\n\nThe Court further notes that since its judgment in Nicolo of 20 October 1989 the Conseil d'Etat has been willing to verify the compatibility of French norms with international norms (see paragraph 39 above). Furthermore, the Conseil d'Etat had already held in a previous case before ruling on the applicant company's second appeal that the State was liable for a violation of Community law owing to the incompatibility of a domestic measure (see paragraph 40 above).\n\n47.  As to the “the classification of remedies” rule relied on by the Government, the Court notes that right from its first appeal the applicant company's claim was based on a Community norm that was perfectly clear, precise and directly applicable. That right did not disappear with the Conseil d'Etat's judgment of 1986 and, consequently, survived during the second set of proceedings. Further, the Court reiterates that the fact that the Conseil d'Etat relied on a long-standing principle cannot by itself justify a failure to comply with the present requirements of European law (see, mutatis mutandis, Delcourt v. Belgium, judgment of 17 January 1970, Series A no. 11, p. 19, § 36). It points out in that connection that the Convention is a living instrument that must be interpreted in the light of present-day conditions and the notions currently prevailing in democratic States (see, among other authorities, Burghartz v. Switzerland, judgment of 22 February 1994, Series A no. 280-B, p. 29, § 28). The procedural rule regarding the “classification of proceedings” cannot therefore cause a substantive right created by the Sixth Directive to disappear.\n\n48.  In the light of the foregoing, the Court finds that the applicant company had a valid claim against the State when it lodged its two appeals for the VAT paid in error for the period from 1 January to 30 June 1978. A claim of that nature “constituted an asset” and therefore amounted to a “possession” within the meaning of the first sentence of Article 1 of Protocol No. 1, which was accordingly applicable in the present case (see, among other authorities, Pressos Compania Naviera S.A. and Others, cited above, p. 21, § 31).\n\nIn any event, the Court considers that the applicant company had at least a legitimate expectation of being able to obtain the reimbursement of the disputed sum (see Pine Valley Developments Ltd and Others v. Ireland, judgment of 29 November 1991, Series A no. 222, p. 23, § 51).\n\nB.  Whether there was an interference and the applicable rule\n\n49.  Under the Court's case-law, Article 1 of Protocol No. 1, which guarantees in substance the right of property, comprises three distinct rules. The first, which is expressed in the first sentence of the first paragraph and is of a general nature, lays down the principle of peaceful enjoyment of property. The second rule, in the second sentence of the same paragraph, covers deprivation of possessions and makes it subject to certain conditions. The third, contained in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest. The second and third rules, which are concerned with particular instances of interference with the right to peaceful enjoyment of property, must be construed in the light of the general principle laid down in the first rule (see, among other authorities, Sporrong and Lönnroth v. Sweden, judgment of 23 September 1982, Series A no. 52, p. 24, § 61; Gasus Dosier-und Fördertechnik GmbH v. the Netherlands, judgment of 23 February 1995, Series A no. 306-B, pp. 46-47, § 55, and p. 49, § 62; Pressos Compania Naviera S.A. and Others, cited above, pp. 21-22, § 33; and Phocas v. France, judgment of 23 April 1996, Reports 1996-II, pp. 541-42, § 51).\n\n50.  The Conseil d'Etat's judgment of 30 October 1996 deprived the applicant company of its right to have its claim for reimbursement of the amount it had overpaid in VAT examined. The Court further notes that in its first judgment of 26 February 1986 the Conseil d'Etat refused to uphold the applicant company's claim, notwithstanding the provisions of the Sixth Directive and of the administrative circular of 2 January 1986 which exempted insurance brokers from the obligation to pay VAT for the period from 1 January to 30 June 1978. In that connection, it is noteworthy that the administrative circular concerned only taxpayers who had received a supplementary tax assessment for failing to pay the VAT in issue. Those decisions entailed an interference with the right which the applicant company was entitled to assert under Community law and the applicable administrative circular for the reimbursement of debt and, consequently, with the right of all persons, and in particular the applicant company, to the peaceful enjoyment of their possessions.\n\n51.  The Court notes that the applicant company complained that it had been deprived of its possessions within the meaning of the second sentence of the first paragraph of Article 1. It is true that an interference with the exercise of claims against the State may constitute such a deprivation of  possessions (see Pressos Compania Naviera S.A. and Others cited above, p. 22, § 34). However, as regards the payment of a tax, a more natural approach might be to examine the complaints from the angle of a control of the use of property in the general interest “to secure the payment of taxes”, which falls within the rule in the second paragraph of Article 1 (see  Building Societies, cited above, p. 2353, § 79).\n\nThe Court considers it unnecessary to decide this issue, since the two rules are not “distinct” in the sense of being unconnected, are only concerned with particular instances of interference with the right to peaceful enjoyment of property and must, accordingly, be construed in the light of the principle enunciated in the first sentence of the first paragraph. The Court will therefore examine the interference in the light of the first sentence of the first paragraph of Article 1.\n\nC.  Whether the interference was justified\n\n52.  For the purposes of the first sentence of the first paragraph, the Court must determine whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights (see Sporrong and Lönnroth, cited above, p. 26, § 69).\n\n1.  The general interest\n\n53.  The applicant company rejected the Government's submission that the requirement of lawfulness had been complied with, contending that it was contrary to that requirement to allow the “classification of proceedings” rule to prevail over the rule that Community directives enjoyed primacy. It submitted in particular that the “classification of proceedings” rule and the estoppel by record relied on by the Government were only relative in scope, as had being confirmed by recent decisions of the Conseil d'Etat and the CJEC. It should therefore have been allowed to assert the rights it held by virtue of a Community directive. Since it had been prevented from obtaining satisfaction from the tax courts when the first judgment was delivered in 1986, it had been obliged to issue a second set of proceedings for compensation in order to obtain satisfaction.\n\n54.  The Government argued that even assuming, purely for the sake of argument, that the applicant company had been deprived of a legitimate expectation by the decisions of the domestic courts, those decisions complied with the lawfulness requirement and constituted a proportionate measure taken in the public interest. As regards compliance with the lawfulness requirement, the Government said in particular that the claim had been dismissed on the basis of established jurisprudential principles applicable to both private and public law. In ruling that the applicant company's claim was estopped per rem judicatam as a result of its first judgment of 1986, the Conseil d'Etat had applied the “classification of remedies” rule, which prevented a party from bringing an action under the general law of tort for a remedy it had been refused under a special procedure. The justification for the rule lay in the need to ensure compliance with special rules applicable to contentious proceedings, or at least to prevent their being circumvented in a way that rendered them meaningless. Without such a rule, there was a risk of identical situations been treated differently and of a direct breach of the res judicata rule. Lastly, with regard to the compatibility of the “classification of remedies” rule with Community law, the Government argued that the decision of the CJEC in Emmott (C-208/90, Emmott v. Minister for Social Welfare and Attorney General [1991] ECR I-4269) was no longer good law, as, since its Fantask decision of 2 December 1997 (C-188/95, Fantask and others v. Industriministeriet [1997] ECR I-6783), the CJEC now accepted that, subject to certain conditions, it was for the domestic legal system of each member State to lay down the detailed procedural rules for actions seeking the recovery of sums wrongly paid. The “classification of remedies” rule was not, therefore, at variance with the CJEC's case-law.\n\nThe Government also maintained that the administrative circular took the general interest into account and answered the need to ensure the primacy of Community law.\n\n55.  The Court considers that the administrative circular of 2 January 1986 was intended to bring domestic law into line with the relevant provisions of the Sixth Directive of 1977. That, in the Court's view, is clearly a legitimate objective consistent with Article 1 of Protocol No. 1.\n\n56.  With regard to the judgments of the Conseil d'Etat, the Court notes that the Government's case is based on the application of an established jurisprudential principle, namely the “classification of remedies” or “classification of proceedings” rule. The rule prevents a claim being brought under the general law of tort for a remedy that has previously been refused in a special form of action. According to the Government, the Conseil d'Etat had merely applied that rule when it held that the first judgment of 1986 gave rise to an estoppel by record.\n\nWith regard to the argument concerning the application of the “classification of remedies” rule, the Court need only refer to its preceding observations (see paragraph 47 above) and sees no reason to adopt a different approach when assessing the “general interest”. Furthermore, in the circumstances of the present case the Conseil d'Etat's particularly strict interpretation of that procedural rule deprived the applicant company of the sole domestic procedure that was capable of affording it a sufficient remedy to ensure compliance with the provisions of Article 1 of Protocol No. 1 (see, mutatis mutandis, Miragall Escolano and Others v. Spain, nos. 38366/97, 38688/97, 40777/98, 40843/98, 41015/98, 41400/98, 41446/98, 41484/98, 41487/98 and 41509/98, § 38, ECHR 2000-I).\n\nThe Court can discern no other reason that could serve to justify on general-interest grounds the Conseil d'Etat's refusal to give effect to a directly applicable provision of Community law. As to the CJEC's Fantask judgment cited by the Government (see paragraph 54 above), the Court fails to see why it should offer any justification either, since it deals with time-limits for appeals and reliance on limitation periods under national law to resist actions for repayment of charges when they become payable, and not, as in the instant case, a refusal to take the right to reimbursement itself into account (see paragraph 36 above).\n\n57.  In any event, the Court notes that the interference resulted not from any legislative intervention, but on the contrary from the legislature's failure to bring the domestic law into line with a Community directive, such that the relevant administrative courts were forced to rule on that issue. The Court can but note that charging VAT on the activities of insurance brokers for the period from 1 January to 30 June 1978 contravened Article 13-B-a of the Sixth Directive of the Council of European Communities of 17 May 1977. The French authorities sought to render French law compliant by issuing the administrative circular of 2 January 1986. In its judgment of 19 March 1986, the Conseil d'Etat likewise failed to have due regard to the effects of the incompatibility of French law with Community law, notwithstanding the applicant company's failure to draw its attention to that point. The Court further notes that the Conseil d'Etat's case-law regarding verification of the conformity of national law with international law has substantially evolved since 1989 (see paragraphs 39-40 above) and that the applicant company successfully appealed to the Paris Administrative Court of Appeal (see paragraphs 21-22 above).\n\nIt further notes that the domestic authorities appear to have had difficulty in comprehending Community law, a fact that is, incidentally, confirmed by the Conseil d'Etat's reference in its  Revert et Badelon decision to “... [the] failure [of the French authorities] to enact provisions that were consistent with the objectives of the Sixth Directive on time”. Thus, the administrative circular bringing French law into line with the Sixth Directive was not issued until 2 January 1986, that is to say more than seven years after the Ninth Directive was notified to the French State (see paragraph 11 above), and in any event concerned only those taxpayers who had refused to the pay the VAT concerned. It is true that the Government have explained that by not referring to the case of taxpayers who had already paid the VAT, the administrative circular left open the possibility of a court action for reimbursement. However, the Conseil d'Etat did not share that view, as it dismissed the applicant company's first appeal more than two and a half months after the administrative circular was issued. Lastly, the Court notes that the Court of Cassation – the highest ranking judicial court – has for its part already accepted that it has jurisdiction to verify whether a domestic norm is consistent with international law (see paragraph 41 above). In the Court's view, the applicant company cannot be required to suffer the consequences of the difficulties that were encountered in assimilating Community law or of the divergences between the various national authorities.\n\n58.  In the light of the foregoing, the Court finds that the interference with the applicant company's right to the peaceful enjoyment of its possessions was not required in the general interest.\n\n2.  Whether a fair balance was struck between the competing interests\n\n59.  The applicant company said that there was no justification for the interference with its right to the peaceful enjoyment of its possessions, as the judgment dismissing its appeal in 1986 had been preceded by the administrative circular of 2 January 1986, which itself did no more than conform to the requirements of the Sixth Directive of 1977. Nor was the interference justified by the 1996 judgment, as the Conseil d'Etat had dismissed the applicant company's second appeal merely on the grounds that it was inadmissible, without ruling on the merits. The applicant company submitted that no estoppel by record had arisen, since there had been no identity of subject matter between its actions for restitution of the VAT and in tort: the former was based on the failure to transpose the Sixth Directive within the prescribed period, while the latter concerned the application of invalid statutory provisions.\n\nThe applicant company also explained that it was prevented by law from effecting a set-off between VAT and employment tax and that three expert witnesses had attested that it could not pass on to its customers the VAT it had paid.\n\nThe applicant company observed that, contrary to Article 1 of Protocol No. 1 and the Court's case-law, it had ultimately been deprived of any compensation from the French authorities, as it had been its misfortune to have its tax appeal heard prematurely and to be denied the guarantees enjoyed by S.A. Revert et Badelon. It therefore contended that it had been a victim of the difficulties caused by the Conseil d'Etat's case-law, which it said constituted an “individual and excessive burden” such that “the fair balance which should [have been] struck between the protection of the right of property and the requirements of the general interest [had been] upset” (see Hentrich v. France, judgment of 22 September 1994, Series A no. 296).\n\n60.  As to whether the restriction on the applicant company's rights struck a fair balance between the competing interests, the Government said, inter alia, that the Conseil d'Etat had stood by its established principles for two reasons. Firstly, the fact that the applicant company had restricted its action to a tax appeal had not deprived it of the possibility of asserting its rights. Secondly, to have made an exception would have meant unreasonably undermining the principle of legal certainty. Lastly, the Government noted that, since the applicant company had shown that the “classification of remedies” principle was relative in its effects, in particular owing to the requirement for identity of subject matter, it could have taken that factor into account when preparing its second appeal and based its claim not on the VAT paid, an issue that had been dealt with in 1986, but on the commercial and financial damage actually sustained. Thus, the inadmissibility of the applicant company's appeal was the result of its choice of cause of action and had by no means been inevitable.\n\nThe administrative circular was based on an objective difference in the situation of the companies concerned. Furthermore, it had not placed exempted companies in a radically different situation from those that were not: companies such as the applicant company that had been charged VAT could deduct the VAT they had paid and pass it on to their customers, notably by increasing the prices they invoiced for their services. While it was true that the exempted companies had the benefit of the unpaid VAT, the corollary of that was that they could not pass it on to their customers. The complaint was therefore in any event manifestly ill-founded.\n\n61.  The Court finds that in the instant case the interference with the applicant company's right to the peaceful enjoyment of its “possessions” was disproportionate. Both the negation of the applicant company's claim against the State and the absence of domestic procedures affording a sufficient remedy to ensure the protection of the applicant company's right to the peaceful enjoyment of its possessions upset the fair balance that must be maintained between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights (see, mutatis mutandis, Phocas, cited above, pp. 544-45, § 60).\n\nD.  Conclusion\n\n62.  Consequently, there has been a violation of Article 1 of Protocol No. 1.\n\nII.  ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No. 1\n\n63.  The applicant company alleged a violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1. Article 14 provides:\n\n“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”\n\n64.  The applicant company submitted that by adopting the administrative circular abandoning proceedings against companies that had not paid the VAT, the authorities had been guilty of discrimination by giving those who had defaulted on their tax an advantage over law-abiding taxpayers; that discrimination had been compounded by the authorities' failure to take action to refund the sums which the law-abiding taxpayers had paid in error.\n\nIt pointed out that in National & Provincial Building Society, the Court held that there had been no violation after noting that the applicant building societies had failed to take proceedings challenging the regulations in issue and were accordingly not in the same situation as that of the Woolwich Building Society. It noted that although in Fredin v. Sweden the Court had found no violation of Article 14, on the ground that different classes of complainants could be created (judgment of 18 February 1991, Series A no. 192), it had ruled that a distinction made to the detriment of persons whose situations were similar was discriminatory (see Darby v. Sweden, judgment of 23 October 1990, Series A no. 187). In the instant case, the applicant company said that it was in an identical situation to all those companies carrying on business as insurance brokers who had not paid VAT for 1978 by the time the administrative circular was issued on 2 January 1986. The difference in treatment was directly attributable to the administrative circular, which excluded from its ambit only those businesses that had paid VAT voluntarily. While it was true that the latter were entitled to request a refund of the VAT, the Conseil d'Etat had dismissed the applicant company's claim for such a refund. In practice, an application for judicial review of the administrative circular, which as a regulatory circular was in any event not amenable to such review, would have had no effect.\n\nThe applicant company argued that the administrative circular did not pursue a legitimate aim and that the means used were not reasonably proportionate to the aim pursued. If the purpose of the administrative circular had been to transpose the Sixth Directive of 1977 into domestic law, there was no justification for the difference in treatment between the companies concerned by the Sixth Directive. Those companies that had voluntarily paid the VAT, even though it had been levied unlawfully, had not received any benefit in exchange.\n\nLastly, the applicant company contended that it had received less favourable treatment than S.A. Revert et Badelon. Both companies had paid the same tax, made an initial claim for a refund, appealed to the administrative court and, following the dismissal of their claims, lodged almost simultaneous appeals to the Conseil d'Etat in 1982. The Conseil d'Etat had dismissed the applicant company's appeal in 1986, whereas S.A. Revert et Badelon's appeal papers had been lost and consideration of the appeal consequently delayed until it was set down for hearing at the same session as the applicant company's second appeal. The Conseil d'Etat reached different decisions in the two cases, notwithstanding the fact that the legal position of the two companies was identical, the sole difference being that S.A. Revert et Badelon's case file had been mislaid by the Conseil d'Etat for several years. The appeal by S.A. Revert et Badelon was not heard until ten years after the applicant company's and it benefited from favourable developments in the case-law.\n\n65.  The Government considered that neither the decisions of the Conseil d'Etat nor the administrative circular adopted on 2 January 1986 by the tax authorities amounted to discrimination. The decisions in the applicant company's case and in  Revert et Badelon did not concern the same issue of law or appellants in identical situations. The European Court of Human Rights had held that there could be no discrimination unless the difference in treatment concerned persons in identical situations (see Lithgow and Others v. the United Kingdom, judgment of 8 July 1986, Series A no. 102, and Johnston and Others v. Ireland, judgment of 18 December 1986, Series A no. 112). The Government noted that the appeals lodged concurrently with the applicant company's first appeal had likewise been dismissed. Nonetheless, the Government accepted that the 1986 decisions of the Conseil d'Etat on the applicant company's appeal and its decision on Revert et Badelon's appeal were at variance. The reason for the difference was that the Conseil d'Etat, which in this instance had identical arguments before it, decided in the second case – which, ten years after the first, raised the same question of law – to depart from its previous case-law. Changes in the case-law, which by definition entailed a conflict between decisions delivered before and after the change, could not be regarded as violating Article 14. For them to be regarded otherwise would be contrary to the Court's traditional interpretation of the provisions of Article 14 (see Case relating to certain aspects of the laws on the use of languages in education in Belgium (merits), judgment of 23 July 1968, Series A no. 6).\n\nThe Government said that the indisputable effect of the administrative circular of 2 January 1986 was to put the applicant company in an ostensibly less favourable position than that of the companies referred to in the circular. As the “Belgian linguistic” case showed, the Court took into consideration the extent of the difference in treatment and whether it was proportionate to the situation of the persons concerned. The States thus enjoyed a margin of appreciation that varied according to the circumstances, the domain and the background (see James and Others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98). In the instant case the administrative circular had been issued because of the primacy of the Community norm, in accordance with an undertaking given to the Commission of the Communities. The circular was therefore in the public interest and satisfied an existing legal obligation, but without depriving the companies concerned of their prospects of recovering the tax in the pending legal proceedings. Furthermore, the difference in treatment was based on an objective difference in the situation of the companies concerned. Some of the companies had decided not to seek a refund of the tax, while others had made an application to the courts for a refund which, in view of the genuine doubt as to the validity of the tax liability, the authorities had, as in the instant case, quite legitimately left for the courts to decide in the proceedings that were pending at that stage. Lastly, the authorities had logically enough, in view of the high degree of uncertainty over their outcome, chosen not to issue proceedings against those companies that had simply refrained from paying the tax. The Government noted that the Court had recognised that it was legitimate for public authorities to treat companies differently, depending on whether or not the company concerned had chosen to bring proceedings (see National & Provincial Building Society, cited above).\n\nLastly, the Government argued that the difference in treatment had to be put into perspective, since companies which, like the applicant company, had paid the VAT had enjoyed an exemption from employment tax and had been able to pass on all or part of the VAT to their customers, unlike the companies that had not paid the VAT.\n\n66.  In the light of its finding in paragraphs 61 and 62 above, the Court considers that no separate examination of this complaint is necessary.\n\nIII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n67.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n68.  The applicant company sought payment of the sum of 291,816 French francs (FRF), being the amount of VAT it had paid for the year 1978. As regards the Government's argument that it would have had to pay employment tax had it enjoyed an exemption from VAT, the applicant company referred to the relevant provisions of the Code of Tax Procedure, which precluded any set-off between employment tax and VAT. As to the possibility of passing the VAT on to its customers, it produced, inter alia, three witness statements that showed that brokers' remuneration took the form of commission paid directly and exclusively by the insurance companies without any payment on the part of the insured, such that VAT that had been paid could not be passed on.\n\n69.  The Government submitted that any damage to which the applicant company might be entitled was not the sum it had paid in VAT for 1978 but that sum less both the employment tax it would have had to pay had it enjoyed an exemption from VAT and the amount of VAT it had passed on to customers in its price lists. The Government added that they were unable to state the exact amount of employment tax concerned, since the events in issue had taken place more than twenty years ago and the tax authorities had not retained the tax returns and other documents necessary to perform a calculation.\n\n70.  The Court finds that while the applicant company may have sustained non-pecuniary damage, the present judgment provides sufficient compensation for it. However, as regards pecuniary damage, in view of the violation which the Court has found of Article 1 of Protocol No. 1, the most suitable form of reparation would be reimbursement of the VAT that was unduly paid for the period from 1 January to 30 June 1978. As to the sums which the Government say should have been deducted from the VAT paid for 1978, the Court notes, firstly, that it has not been clearly demonstrated that employment tax would have been payable and, in any event, it is now impossible to calculate the amount. Secondly, the applicant company has produced witness statements that show that, owing to the nature of its activity, it could not pass on the VAT to its customers (see also, on this point, paragraphs 22 and 69 above). Above all, the Court observes that it has not been alleged, still less demonstrated (see paragraph 69 above), that such amounts were claimed from S.A. Revert et Badelon by way of set-off after its successful appeal to the Conseil d'Etat. Nor is there any reference in the Conseil d'Etat's judgment to any obligation to deduct certain sums from the amount of the VAT that was to be refunded. The applicant company has furnished documents showing that the amount of VAT for the period in issue (taking into account the fact that there was a one month's gap before it received commission on the premiums enacted by the insurance companies) comes to FRF 142,568.09, that is to say 21,734.49 euros (EUR). In the light of the foregoing, the Court awards that sum to the applicant company for pecuniary damage.\n\nB.  Costs and expenses\n\n71.  The applicant company sought payment of FRF 139,000 net of tax, that is to say EUR 21,190,41, for the costs and expenses it had incurred in the Administrative Court, the Paris Administrative Court of Appeal, the Conseil d'Etat and the European Court of Human Rights.\n\n72.  The Government contended that those amounts were excessive, since the decisions which the applicant company alleged were at the origin of its loss, namely the decisions delivered by the Conseil d'Etat as a final court of appeal and the administrative circular of 2 January 1986, had at no stage been contested before the domestic courts. Accordingly, only the costs incurred before the Convention institutions could, subject to being proved, be taken into account.\n\n73.  The Court points out that it has already ruled in its decision of 12 September 2000 that the applicant company has satisfied the rule on the exhaustion of domestic remedies, notably as regards any need to appeal against the administrative circular itself. As a subsidiary consideration, the Court has found no statutory provision of domestic law that would allow a decision delivered by the Conseil d'Etat as a final court of appeal to be challenged. It cannot, therefore, be contended that the applicant company has failed to refer its complaints to the relevant courts. On the contrary, in its second appeal, it expressly sought an order for the reimbursement of the overpaid VAT and, accordingly, reparation from the domestic courts for the complaint it has made to the Court.\n\nAs regards the amount of the applicant company's claim, the Court finds that it has been substantiated by Mr Garreau, who defended the applicant company's interests before the Court, the , the Administrative Court of Appeal and the Conseil d'Etat. Accordingly, the Court awards the applicant company EUR 21,190.41 for costs and expenses.\n\nC.  Default interest\n\n74.  According to the information available to the Court, the statutory rate of interest applicable in  at the date of adoption of the present judgment is 4.26% per annum.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Holds that there has been a violation of Article 1 of Protocol No. 1;\n\n2.  Holds that no separate examination of the complaint of a breach of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 is necessary;\n\n3.  Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant company;\n\n4.  Holds\n\n(a)  that the respondent State is to pay the applicant company, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate of 4.26% per annum;\n\n5.  Dismisses the remainder of the applicant's claim for just satisfaction.\n\nDone in French, and notified in writing on 16 April 2002, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_940","text":"PROCEDURE\n\n1.  The case originated in an application (no. 66802/01) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Gennadiy Valentinovich Dorokhov (“the applicant”), on 21 July 2000.\n\n2.  The applicant, who had been granted legal aid, was represented by Ms L.I. Alekseyeva, a lawyer practising in . The Russian Government (“the Government”) were represented by Mr P. Laptev, the former Representative of the  at the European Court of Human Rights.\n\n3.  The applicant alleged that the conditions of detention in the remand prison where he had been placed pending investigation and trial had amounted to inhuman and degrading treatment. He further complained that he had had no fair hearing of his case, since the court had refused to call certain witnesses.\n\n4.  By a decision of 30 June 2005, the Court declared the application partly admissible.\n\n5.  The applicant and the Government each filed further written observations (Rule 59 § 1). The Chamber decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine).\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n6.  The applicant was born in 1967 and lives in .\n\nA.  Criminal investigation and detention\n\n7.  The applicant used to work as a public prosecutor. In 1998 the police charged him with blackmail and abuse of office. They alleged that the applicant had extorted several cars from the managers of a car repair shop, threatening to harass their business with criminal investigations. Thus, according to the prosecution, in 1997 the applicant was given a car in exchange for the discontinuation of the investigation into the allegedly illegal activities of the shop. Some time later he received from them another car of the same model. In 1998 he was given a new car which was more expensive than the previous one. The prosecution also accused the applicant of illegal possession of firearms, namely a gas handgun found at his place during the search.\n\n8.  On 2 October 1998, the police arrested the applicant and detained him in remand prison IZ–48/1, Matrosskaya Tishina, in . On admission to the prison, the applicant was put in cell no. 210. The rest of the time he spent in four other cells, namely cells nos. 212, 260, 739 and 740.\n\n1.  Cell 212\n\n9.  On 8 February 1999, the applicant was put into cell no. 212. The parties’ descriptions of this cell differ.\n\n10.  According to the applicant, the environment in this cell was so poor that he developed a skin rash.\n\n11.  According to the Government, that cell measured 18.8 square metres and had six bunk beds. The cell had cold running water, a sink, and a toilet partitioned off from the rest of the cell. The prisoners’ food met quality standards established by regulations. There was no infection in the cell. The prisoners had an hour’s daily exercise. Once a week they had a bath and received fresh bedding.\n\n2.  Cell 260\n\n12.  On 11 February 1999, the applicant was moved to cell no. 260. The parties’ descriptions of this cell differ too.\n\n13.  According to the applicant, this cell measured about 30 square metres and housed between eighteen and twenty-nine prisoners at different times (or twenty-five on average). Because the cell was overcrowded, during most of the seven months he was there the applicant had to share his bunk bed with other prisoners. But even on those few occasions when he had the bed to himself, he could not sleep because the lights and TV were always on, the ventilation was always off, and the prisoners talked day and night. Metal shutters covered both windows, keeping fresh air out. The toilet was not partitioned off from the rest of the cell and was in front of the guards’ peephole.\n\n14.  According to the Government, that cell measured 38.9 square metres and had eighteen bunk beds. The cell had cold running water, a sink, and a toilet partitioned off from the rest of the cell. The prisoners’ food met statutory standards of quality. There was no infection in the cell. The prisoners had an hour’s daily exercise. Once a week they had a bath and received fresh bedding.\n\n15.  Following the admissibility decision the applicant produced a written statement by Mr M., who had been detained in cell no. 260 between September 1997 and December 1999. He confirmed the applicant’s account of the conditions of detention there, namely that periodically the cell held up to twenty-nine people.\n\n3.  Cells 739 and 740\n\n16.  On 19 May 1999, the applicant was moved to cell no. 739, then to cell no. 740. These were hospital cells, and the applicant was put there while being treated for a broken leg.\n\n17.  According to the Government, the area of the cells was 21.6 square metres and 24.5 square metres correspondingly. The first cell was equipped with four bunk beds and the second one had eight.\n\n18.  According to the applicant, even though the prison administration knew that he was a former prosecutor, he had to share these cells with ordinary criminals. With a broken leg, the applicant would have been helpless had the criminals wished to attack him in revenge.\n\n19.  According to the Government, the applicant was detained separately from ordinary criminals.\n\n20.  On 7 June 1999, the applicant was returned to cell no. 260, where he stayed until his removal from the prison on 4 February 2000.\n\nB.  Trial\n\n21.  On 31 March 1999, on termination of the investigation the applicant and his lawyer were given access to the materials of the case file. On an unspecified date later the prosecution submitted the case file with the bill of indictment to the Zamoskvoretskiy District Court of Moscow for trial. The applicant was accused of having received three cars from the managers of the car repair shop as a bribe. The applicant was also accused of illegal possession of firearms.\n\n22.  On 9 June 1999, referring to Article 223 of the Code of Criminal Procedure the applicant requested the District Court to summon two additional witnesses, Ms V. and Ms G. In his words, those witnesses worked in the prosecutor’s office at the material time; they had seen him pay for the first of the allegedly extorted three cars and therefore could arguably provide evidence for his acquittal. He indicated in his request that in the course of the pre-trial investigation he had asked for those people to be questioned but it had been refused.\n\n23.  The request of 9 June 1999 was received by the administration of the detention facility the next day. However, it is unclear when they posted it.\n\n24.  On 18 June 1999 the judge of the District Court examined the materials of the case file in camera and found the case ready for trial. The parties disagree as to whether the applicant’s request under Article 223 to call Ms V. and Ms G. had reached the court by that date: according to the applicant, it must have reached the court well before 18 June 1999; according to the Government, the request reached the court only on 23 June 1999, so the judge was unable to examine it.\n\n25.  At the first hearing preceding the examination of the case on the merits the court asked the applicant whether he wished to call additional witnesses. The parties disagree as to whether the applicant used this opportunity to call Ms V. and Ms G.: according to the Government, he did not; according to the applicant, he did. From the transcript of the hearing provided by the applicant, it appears that the first hearing took place on 28 October 1999. The applicant asked the District Court to examine his request lodged earlier under Article 223 of the CCrP. The District Court replied that that motion had been received after the assignment of the case for trial. However, the District Court noted that it would be examined later, at the preliminary hearing stage.\n\n26.  The applicant agreed that he was a client of the car repair shop and knew its managers. He also confirmed that he had bought several cars from them. However, in his words, those cars were sold to him and were not given as a bribe, as the prosecution suggested. He indicated that in mid-July 1997 Ms V. had seen him paying for the car; he had paid Mr Sh., who acted as an intermediary between the applicant and the car repair shop. The applicant also testified that Ms G. had been present at the time when he had handed money to Mr Sh., and that later the applicant had told her about the deal. In his words, he gave money to Mr Sh. in a closed envelope and did not specify what was in it, since Mr Sh. knew that it was money for the car. Later in the course of the trial the applicant referred on three occasions to the episode of July 1997 where Ms V. and Ms G. had been present.\n\n27.  The court made several attempts to secure the attendance of Mr Sh. at the trial. However, Mr Sh. was absent from his address and according to his mother his whereabouts were unknown. The court decided to proceed with the case in his absence and read out the testimonies of that witness given during the face-to-face confrontation with the applicant.\n\n28.  At the trial several witnesses were heard. The court heard Mr Br., Mr S., Mr G. and Mr A., who worked at the shop at the material time and had contacts with the accused. They stated that the applicant had threatened them with criminal prosecution and that they had bribed him with the cars. They had also given him cash, to be transferred to other law-enforcement agencies for their “protection”. The court also heard Mr B-k., who had bought the third car in Germany for the applicant. In his words, he had received the money for that car from Mr A., the managers of the car repair shop. Ms P., who had worked in the prosecutor’s office at the material time, testified at the trial that the applicant had asked her to suspend the investigation into the activities of the shop. Some time later the applicant had asked her to help the shop to obtain several licences necessary for their professional activities.\n\n29.  The court further examined written statements from several witnesses obtained by the police during the preliminary investigation. It also examined material evidence and documents seized by the prosecution authorities which related to the applicant’s professional activities.\n\n30.  Finally, the court examined wiretapping records made secretly by the Federal Security Service in the applicant’s office. The court noted that the wiretapping had been authorised by the Moscow City Court at the request of the Federal Security Service and therefore was admissible evidence. In the court’s opinion, the records of his telephone conversations corroborated the testimonies of witnesses heard at the trial and those questioned by the investigative authorities.\n\n31.  The examination of evidence was followed by pleadings by both parties. The applicant pleaded not guilty.\n\n32.  On 15 November 1999, the court convicted the applicant as charged and sentenced him to seven years’ imprisonment.\n\n33.  After the trial, on 20 December 1999, the applicant asked the court to correct record of the hearing, because his request to call Ms V. and Ms G. had been omitted from the transcript of the first day of the hearing (28 October 1999). On 17 January 2000 the court refused to change the record, on the ground that it was true as it was.\n\n34.  The applicant appealed. In the points of appeal he indicated that on 28 November 1998 he had requested the District Court to call witnesses Ms V. and Ms G., who could have confirmed that the applicant had paid for the cars. However, in the applicant’s words the court had ignored that request.\n\n35.  On 1 March 2000, the Moscow City Court upheld the conviction on appeal, without, however, examining the applicant’s argument about witnesses Ms V. and Ms G.\n\nII.  RELEVANT DOMESTIC LAW AND PRACTICE\n\nII.  RELEVANT DOMESTIC LAW AND PRACTICE\n\n36.  Under Article 21 of the Detention Act of 1995, all detainees’ correspondence should go through the administration of the remand prison. Letters addressed to the courts should be posted by the administration within one day of their receipt from the detainee.\n\n37.  At the time of the relevant events the Code of Criminal Procedure of 1960 (“the old CCrP”) was in force. Under Article 46 of that code the accused had the right to lodge procedural requests with the trial court.\n\n38.  Under Article 221 of the old CCrP, after having received the case file from the prosecution with the bill of indictment, the judge, sitting in camera and without the parties, should decide whether or not the case is ready for trial. Under Articles 222 and 223 the judge should also examine written requests lodged by the defence. If the case is ready for trial the judge fixes the date for the preliminary hearing and draws up a list of witnesses to be called. This stage of the proceedings is called “assignment of the case to trial”.\n\n39.  The trial commences with a preliminary hearing. Under Article 276 of the old CCrP, the judge should ask the parties whether they wish to call additional witnesses. If such a request is made, the court should hear the parties on that matter and give decision in the form of a ruling, which should be reasoned. The court may also call new witnesses of its own motion.\n\n40.  In 1975 the Supreme Court of the  in a plenary session adopted Ruling no. 5, in which it directed the lower courts as follows:\n\n“Requests received after the case has been assigned to trial but before the trial has begun, should be examined at the preliminary hearing. However, in order to secure their prompt examination the presiding judge may make certain preparatory arrangements beforehand (requests for information, references, and so on).”\n\nThe rulings of the Supreme Court adopted in plenary sessions had the force of law. Ruling no. 5, as amended later, was in force at the time of relevant events.\n\n41.  After the preliminary hearing the court passes to the stage of “judicial investigation” (sudebnoye sledstviye, Chapter 23 of the old CCrP). This is the part of the trial when the court and the parties examine the evidence, hear and question witnesses, experts and so on. Once the “judicial investigation” is over, the court asks the parties whether they want to supplement the “judicial investigation” with any new elements of proof (Article 294 of the Code). At this moment the defence may ask again for new witnesses to be called.\n\n42.  Following the “judicial investigation” the trial passes to the stage of pleadings. The accused person has the right to pronounce a speech called “the last word”. If in this “last word” he informs the court of important new elements of the case, the court should reopen the “judicial investigation” (Article 297 of the Code).\n\n43.  Article 264 regulates the keeping of a trial record in the first instance court. It does not require a verbatim record of the trial to be kept, but “a detailed record of the submissions”. In practice, if a verbatim record exists, it is not attached to the official trial record. A party to the proceedings may challenge before the presiding judge the accuracy of the official record within three days of receiving a copy of it.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION\n\n44.  The applicant complained under Article 3 of the Convention that the conditions in the remand prison had been inhuman. Article 3 reads as follows:\n\n“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”\n\nA.  The parties’ submissions\n\n45.  The Government submitted, referring to their description of the cells, that the prison conditions were satisfactory. The prison was indeed overcrowded, but no worse than any other Russian prison in those years. Moreover, the authorities had had no intention of making him suffer. According to the Government, it was impossible to establish how many people had been detained with the applicant at the relevant time, since the official records had been destroyed in 2004 following the expiration of their storage period.\n\n46.  Further, in the Government’s submissions, the applicant had always been provided with an individual sleeping place and necessary bedding: a mattress, a blanket, a pillow, two bed sheets and a pillowcase. The Government also provided written statements by prison guards. They confirmed that at the relevant time cells nos. 212, 260, 739 and 740 had contained “former officials [of law enforcement agencies]”.\n\n47.  Finally, in recent years conditions in the prison had improved significantly. Thus, in 2004 the number of detainees in the remand prison where the applicant had been detained was 2.2 times lower than in 1998.\n\n48.  The applicant insisted, referring to his description of the cells, that the prison conditions had been unsatisfactory. His case was not unique: the Court knew from other cases that conditions in Russian prisons were very poor. The authorities had intended to make him suffer because they had deliberately placed him in a cell with ordinary criminals. Furthermore, the recent improvements in general prison conditions were of no consequence for his case.\n\nB.  The Court’s assessment\n\n49.  An outline of the Court’s case-law under Article 3 of the Convention concerning the conditions of detention can be found in a number of judgments concerning Russia (see, in particular, Kalashnikov v. Russia, no. 47095/99, §§ 95 et seq., ECHR 2002VI, and Mayzit v. Russia no. 63378/00, §§ 34 et seq., 20 January 2005), and the Court does not consider it necessary to repeat it here.\n\n50.  As to the complaint that the applicant had been placed in a cell with hostile cellmates, the parties disagreed about the facts. However, in the Court’s view, there is no need to resolve this disagreement. Even if the cellmates did hold something against the applicant, there is no evidence that they actually mistreated him in any way. Their potential aggression never materialised, and the mere fear of ill-treatment in the circumstances of the case does not seem to be real enough to raise an issue under Article 3.\n\n51.  As to the physical conditions of detention, the parties’ accounts also differ in many respects. The Court will consequently start with an issue that lends itself to more or less precise quantification, namely that of the overcrowding of the cells where the applicant had been detained, in particular, in cell no. 260.\n\n52.  The Court emphasises that it cannot but welcome the efforts of the domestic authorities aimed at the improvement of the conditions of detention in Russian prisons by reducing the overall number of detainees (see paragraph 47 above). However, the Court’s task within the present case is to examine the applicant’s personal situation as it was at the relevant time. The Court notes that the applicant stayed in remand prison IZ 48/1 between 2 October 1998 and 4 February 2000. Therefore, the Government’s argument that the number of detainees in 2004 was significantly lower than in 1998 is irrelevant.\n\n53.  The Government admitted that the cells where the applicant had been detained had been overcrowded. The Government’s assertion that the applicant had been assigned an “individual sleeping place” does not contradict this fact – the same sleeping place could have well been assigned to another detainee or detainees. The Government were unable to provide any figures as to the exact number of detainees there since the relevant records had been destroyed. At the same time they did not claim that the applicant’s account in respect of the number of detainees was untrue.\n\n54.  The Court recalls its findings in Mayzit v. Russia, cited above, § 40, where it held as follows:\n\n“From similar cases (see Kalashnikov v. Russia, cited above) the Court is aware that overcrowding in pre-trial detention facilities is a general problem in  (ibid., § 93). In these circumstances the Court does not find it of crucial importance to determine the exact number of inmates in the cells during the periods concerned. The material available suggests that at any given time there would be less than two square metres of space per inmate. Thus, in the Court’s view the cells were overcrowded, something which in itself raises an issue under Article 3 of the Convention.”\n\n55.  The Court further noted that for nine months the applicant in that case had been confined to his cell with very limited space for himself. It transpires from the judgment that the severe and prolonged overcrowding of the cell was sufficient for the Court to find a violation of Article 3 of the Convention (ibid., §§ 41 and 42).\n\n56.  By contrast, in other cases no violation of Article 3 was found, as the restricted space for sleeping was compensated for by the freedom of movement enjoyed by the detainees during the daytime (see Valašinas, cited above, §§ 103 and 107, and Nurmagomedov v. Russia (dec.), no. 30138/02, 16 September 2004).\n\n57.  In the present case the Court observes that the applicant spent about ten months in cell no. 260. He claimed that within that period the cell, measuring thirty square metres, contained twenty-five people on average. The applicant’s account was confirmed by his former cell-mate Mr M. In the absence of any official data as to the number of detainees, the Court accepts the applicant’s account and concludes that the cell was severely overcrowded (less than two square metres of space per inmate).\n\n58.  The Court further notes that such a long period of detention in cramped conditions must have caused him serious physical discomfort and mental suffering. The one-hour exercise periods were not sufficient to attenuate the negative effects of the overcrowding in the cells. Furthermore, such overcrowding precluded any privacy in everyday life, which is in itself a very traumatising experience. It is true that the authorities had not intended to humiliate the applicant or make him suffer. However, that does not remove the situation complained of from the scope of Article 3 of the Convention (see, for example, Peers v. Greece, no. 28524/95, § 74, ECHR 2001-III).\n\n59.  In sum, the above factors are sufficient to conclude that, as regards cell no. 260, the applicant was detained in degrading conditions, in breach of Article 3. Since the issue of severe and prolonged overcrowding of the cell in itself warrants a finding of a violation of Article 3, the Court will not go any further and explore other aspects of the conditions of detention in detention facility no. IZ-48/1.\n\n60.  The Court therefore finds that there has been a violation of Article 3 of the Convention on account of the conditions of the applicant’s detention.\n\nII.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION\n\n61.  The applicant complained under Article 6 § 3 (d) of the Convention that the court had not questioned crucial witnesses on his behalf. Article 6 § 3, as far as relevant, reads as follows:\n\n“Everyone charged with a criminal offence has the following minimum rights:\n\n...\n\n(d)  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him ...”\n\nA.  The parties’ submissions\n\n62.  The Government argued that the applicant’s rights had not been interfered with for the following reasons. First, requests to call witnesses were usually examined at preparatory hearings. But the court had been unable to examine the applicant’s request because it had been received after the preparatory hearing, namely on 23 June 1999. Second, since the applicant had not repeated the request at the main hearing, the court had had no reason to call Ms V. and Ms G.\n\n63.  The applicant insisted on his complaint for the following reasons. First, for a careful reader of the prosecution file the necessity of calling Ms V. and Ms G. was self-evident. Second, the request must have reached the court well before the preparatory hearing, because the prison administration usually dispatched prisoners’ mail within one day. Third, even if the request had reached the court late, the court should have answered it as soon as it came. Fourth, the applicant had repeated the request in the main hearing, in his last plea, and in his appeal.\n\nB.  The Court’s assessment\n\n1.  General principles\n\n64.  The Court points out that the guarantees of paragraph 3 (d) of Article 6 are specific aspects of the right to a fair trial set forth in paragraph 1 of this Article, cited above. Consequently, the Court will consider the complaint concerning the failure to call witnesses Ms V. and Ms G. at the hearing under the two provisions taken together (see Asch v. Austria, judgment of 26 April 1991, Series A no. 203, p. 10, § 25).\n\n65.  The Court further reiterates that the right to call witnesses for the defence is not absolute and can be limited in the interests of the proper administration of justice. As a general rule, it is for the national courts to assess the evidence before them as well as the relevance of the evidence which defendants seek to adduce. More specifically, Article 6 § 3 (d) leaves it primarily to them to assess whether it is appropriate to call witnesses; it does not require the attendance and examination of every witness on the accused’s behalf: its essential aim, as it is indicated by the words “under the same conditions”, is full equality of arms in the matter (see, for example, Vidal v. Belgium, judgment of 25 March 1992, Series A no. 235-B, pp. 3233, § 33). In respect of witnesses on behalf of the accused, only exceptional circumstances could lead the Court to conclude that a refusal to hear such witnesses violated Article 6 of the Convention (see Bricmont v. Belgium, judgment of 7 July 1989, Series A no. 158, § 89).\n\n66.  Finally, the Court reiterates that its task is to ascertain whether the proceedings in their entirety, including the way in which evidence was taken and examined at the trial, were fair (see Asch, cited above, p. 10, § 26).\n\n2.  Application of those principles in the present case\n\n67.  The first point of controversy is whether or not the applicant made his request to call witnesses in an appropriate manner. The Court notes in this respect that on 9 June 1999 the applicant asked the court to summon two witnesses: Ms V. and Ms G. That request was lodged through the administration of the remand prison, as provided by the Detention Act 1995. The applicant’s letter was dispatched by the prison administration or should have been dispatched (see paragraph 36 above) on 10 June 1999. However, according to the Government, the letter reached the court only on 23 June 2003, which was almost a week after the case had been assigned to trial and the necessary arrangements had been made.\n\n68.  The Government may be understood as claiming that the belated receipt of the request absolved the court from the duty to examine it. However, the Court notes that under Russian law the applicant had no other choice but to dispatch his request through the prison administration (see § 36). In such circumstances it was for the prison administration to ensure that it was delivered within a reasonable time. Given that the remand prison and the court were situated in the same city, the two weeks’ delivery time seems to be unusually long. It raises certain doubts as to when the request of 9 June 1999 was posted by the prison administration.\n\n69.  Be that as it may, there is no need to speculate on this matter. The Court observes that Ruling no. 5 of 1975 by the Supreme Court clearly required the judge to examine the applicant’s request at the preliminary hearing, even if it was received after the assignment of the case to trial. The Government did not explain why the court had failed to do so.\n\n70.  The applicant further alleged that during the trial he had repeated his request to call Ms V. and Ms G. The trial record did not contain any reference to such a request. However, the Court notes that at the first hearing the presiding judge clearly stated that he would return to the requests lodged under Article 223 later, which could have been reasonably interpreted as relating to the applicant’s request to call Ms V. and Ms G. Further, in the course of the trial the applicant’s lawyer drew the court’s attention to those two witnesses. Finally, the court of appeal remained silent about the reasons why the first-instance court had not summoned Ms G. and Ms V. If it was just for a simple omission or laxity on the part of the applicant, who had not made himself sufficiently clear, the court of appeal could have easily have said so. In such circumstances the Court concludes that the defence employed all lawful means at their disposal to obtain the attendance of the two witnesses.\n\n71.  The Court thus concludes that the applicant made a reasonable effort to obtain the attendance of witnesses in his defence. The Government’s objection should therefore be dismissed. The next question to answer is whether the trial court, by not securing their attendance, breached the applicant’s right under Article 6 § 3 (d).\n\n72.  The Court notes that, according to the prosecution, in 1997 the applicant had received the first car as a bribe. The applicant claimed that he had bought it and that Ms V. and Ms G. had seen him pay for it. In his request of 9 June 1999 the applicant explained what Ms V. and Ms G. would say and indicated their whereabouts. Therefore, the request to call witnesses was sufficiently reasoned, relevant to the subject matter of the accusation and could arguably have led to the applicant’s acquittal (see, in this respect, Perna v.  [GC], no. 48898/99, § 29, ECHR 2003V, and Guilloury v. France, no. 62236/00, § 64, 22 June 2006). In other words, it was not a clearly vexatious request to which the court was not supposed to answer.\n\n73.  The Court further notes that the applicant’s offer to produce evidence was implicitly rejected by the trial court, without any reasons having been given. Moreover, the court of appeal did not address the applicant’s argument concerning the refusal of the lower court to call witnesses. The Court further notes that the applicant asked the first instance court to rectify the hearing record by putting on it his request to call Ms V. and Ms G. However, that request was rejected (see paragraph 33 above).\n\n74.  The Court reiterates that the applicant’s request was clearly relevant to the subject matter of the accusation. However, as was confirmed by the defence in the course of the trial, neither Ms V. nor Ms G. had seen him paying money for the car to Mr Sh. In his words, he handed Mr Sh. a closed envelope and did not say what was inside. Only afterwards did he mention to Ms G. that he had paid money for the car to Mr Sh. In sum, the probative value of the testimony of Ms G. and Ms V. was very low. On the contrary, the arguments in favour of the applicant’s guilt were quite weighty. Several people testified at the trial that they had bribed him with the car. Therefore, even if Ms G. and Ms V. had been called and heard, their testimony would most likely not have led to the applicant’s acquittal. The Court reiterates in this respect that, although the silence of the trial court and the court of appeal in that respect is regrettable, regard must be had to the proceedings as a whole. In Vidal, cited above, the applicant’s conviction rested mostly on the materials of the case file and the testimonies of the co-defendants (§ 34). In the present case, on the contrary, the conviction was supported by a solid evidentiary base, in particular by the testimonies of several independent witnesses given at the trial. In view of that it is possible to distinguish the present case from Vidal, cited above.\n\n75.  The Court concludes that the implicit refusal of the domestic courts to call witnesses for the defence, in the particular circumstances of the case, did not affect the overall fairness of the trial. Therefore, there has been no violation of Article 6 § 3 (d) taken in conjunction with Article 6 § 1.\n\nIII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n76.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\n77.  Under Article 41 the applicant claimed 500,000  dollars. In his words, he needed that money to compensate his material losses, including legal costs, to carry out a public campaign for the restoration of his good name, and to cover expenses for medical treatment for himself and the members of his family.\n\n78.  The Government maintained that the applicant’s claims under Article 41 were unsubstantiated and unreasonable. As to the non-pecuniary damage allegedly sustained by him, the Government noted that only two of his complaints had been declared admissible. Further, the applicant had not substantiated his claims in so far as they related to any “material loss” allegedly sustained by him.\n\n81.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT\n\n1.  Holds unanimously that there has been a violation of Article 3 of the Convention on account of conditions of the applicant’s detention;\n\n2.  Holds by five votes to two that there has been no violation of Article 6 § 3 (d) taken in conjunction with Article 6 § 1 of the Convention on account of the failure of the court to call witnesses for the defence;\n\n3.  Holds unanimously\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 7,000 (seven thousand euros) in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of settlement, plus any tax that may be chargeable;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n4.  Dismisses unanimously the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 14 February 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.\n\nIn accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the joint partly dissenting opinion of Judges Lorenzen and Tsatsa-Nikolovska is annexed to this judgment.\n\nWhile we agree with the majority that there has been a violation of Article 3 of the Convention, we are not able to find that there has been no violation of Article 6 § 3 (d) taken in conjunction with 6 § 1 of the Convention.\n\nAccording to Article 6 § 3 (d) everyone has a right “... to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him”. It has been the Court’s constant case-law that this article does not grant an unlimited right to have witnesses heard and that it is primarily for national courts to assess whether witnesses requested by the defence to be heard are relevant to the case. Only in exceptional circumstances would a refusal to hear such witnesses violate Article 6, cf. paragraph 65 of the judgment. However, in our opinion the article implies that when a request by the defence to hear witnesses is not accepted, the national court should – unless the witnesses are clearly irrelevant – give a reasoned decision why it is not appropriate to call them.\n\nIn the present case the applicant at the investigation stage requested to hear two witnesses and gave reasons why he considered them important. However, the request only reached the trial judge after the case was found ready for trial – either because the prison authorities forwarded it belatedly or because of a clerical error in the District Court. The parties disagree as to what the applicant answered to a question of the trial court whether he wanted to call additional witnesses, but it appears from the transcript of the hearing on 28 October 1999 that the court knew about his earlier request and noted that it would be examined later, at the preliminary hearing stage. However, it does not appear that the District Court took any decision in that respect. Nor did the appeal court examine his complaint that his request was left unanswered by the District Court.\n\nThe majority considers that the applicant’s request was “clearly relevant” and that the silence of the national courts in that respect is “regrettable”. We can of course agree to that, but not to the majority’s approach that in such circumstances it is for the Court to assume the role of the national courts and assess what would have been the possible importance of statements from those witnesses had they been called. In our opinion the total failure of the national courts to examine and give a reasoned decision to a request to have relevant witnesses heard is not compatible with the requirements of Article 6 § 3 (d) taken in conjunction with Article 6 § 1 of the Convention. Accordingly there has been a violation of those articles.\n\nThe majority considers that the applicant’s request was “clearly relevant” and that the silence of the national courts in that respect is “regrettable”. We can of course agree to that, but not to the majority’s approach that in such circumstances it is for the Court to assume the role of the national courts and assess what would have been the possible importance of statements from those witnesses had they been called. In our opinion the total failure of the national courts to examine and give a reasoned decision to a request to have relevant witnesses heard is not compatible with the requirements of Article 6 § 3 (d) taken in conjunction with Article 6 § 1 of the Convention. Accordingly there has been a violation of those articles.","title":""}
{"_id":"passage_295","text":"PROCEDURE\n\n1.   The case was referred to the Court by the European Commission of Human Rights (\"the Commission\") on 14 May 1987, within the three-month period laid down by Article 32 § 1 and Article 47 (art. 32-1, art. 47) of the Convention. It originated in an application (no. 10126/82) against  lodged with the Commission under Article 25 (art. 25) by an association called Plattform \"Ärzte für das Leben\" (\"Doctors for the right to life\" Campaign, \"Plattform\") on 13 September 1982.\n\nThe Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to ’s declaration recognising the compulsory jurisdiction of the Court (Article 46) (art. 46). The purpose of the request was to obtain a decision from the Court as to whether or not the facts of the case disclosed a breach by the respondent State of its obligations under Article 13 (art. 13) of the Convention.\n\n2.   In response to the enquiry made in accordance with Rule 33 § 3 (d) of the Rules of Court, the applicant association stated that it wished to take part in the proceedings pending before the Court and designated the lawyer who would represent it (Rule 30).\n\n3.   The Chamber of seven judges to be constituted included ex officio Mr. F. Matscher, the elected judge of Austrian nationality (Article 43 of the Convention) (art. 43), and Mr. R. Ryssdal, the President of the Court (Rule 21 § 3 (b)). On 23 May 1987, in the presence of the Registrar, the President of the Court drew by lot the names of the other five members, namely Mr. J. Pinheiro Farinha, Mr. R. Macdonald, Mr. J. Gersing, Mr. A. Spielmann and Mr. A.M. Donner (Article 43 in fine of the Convention and Rule 21 § 4) (art. 43). Subsequently, Mr. F. Gölcüklü and Mr. J.A. Carrillo Salcedo, substitute judges, replaced Mr. Donner and Mr. Gersing, who were unable to attend (Rules 22 § 1 and 24 § 1).\n\n4.   On 20 June 1987, the President gave the applicant association’s counsel leave to use the German language (Rule 27 § 3).\n\n5.   Having assumed the office of President of the Chamber (Rule 21 § 5) and, after consulting - through the Registrar - the Agent of the Austrian Government (\"the Government\"), the Delegate of the Commission and the lawyer for the applicant association, Mr. Ryssdal\n\n(a) decided on 8 July 1987 that there was no need at that stage to arrange for written pleadings to be filed (Rule 37 § 1);\n\n(b) directed on 3 November 1987 that the oral proceedings should commence on 21 March 1988 (Rule 38).\n\n6.   On 16 September 1987, the Registrar received the applicant association’s claims under Article 50 (art. 50) of the Convention.\n\n7.   The hearing was held in public in the Human Rights Building, , on the appointed day. The Court had held a preparatory meeting immediately beforehand.\n\nThere appeared before the Court:\n\n- for the Government\n\n- for the Commission\n\n- for the applicant association\n\nThe Court heard addresses by Mr. Türk and Mr. Okresek for the Government, by Mr. Batliner for the Commission and by Mr. Adam for the applicant association, as well as their replies to its questions.\n\nAS TO THE FACTS\n\n8.   Plattform \"Ärzte für das Leben\" is an association of doctors who are campaigning against abortion and are seeking to bring about reform of the Austrian legislation on the matter. In 1980 and 1982 it held two demonstrations which were disrupted by counter-demonstrators despite the presence of a large contingent of police.\n\nI.   THE DEMONSTRATION AT STADL-PAURA\n\nA. Planning of the demonstration\n\n9.   The applicant association decided to hold a religious service at  (Upper Austria) on 28 December 1980, after which there would be a march to the surgery of a doctor who carried out abortions. As required under section 2 of the Assembly Act of 1953 (see paragraph 40 of the Commission’s report), it gave notice, on 30 November, to the police authority for the district of Wels-Land. The police made no objection and gave the participants permission to use the public highway. The police did, however, have to ban two other planned demonstrations, which were announced subsequently by supporters of abortion, as these demonstrations were to be held at the same time and in the same place as the Plattform demonstration.\n\n10.   As the organisers feared that incidents might occur nonetheless, they sought - shortly before the beginning of the march - to change their plans, in consultation with the local authorities. They gave up the idea of demonstrating outside the doctor’s surgery and decided instead to march to an altar erected on a hillside quite a distance away from the church and hold a religious ceremony there.\n\n11.   The police representatives pointed out to them that the main body of the police officers had already been deployed along the route originally planned and that because of the lie of the land the new route was not suited to crowd control. They did not refuse to provide protection but stated that - irrespective of the route chosen or to be chosen - it would be impossible to prevent counter-demonstrators from throwing eggs and disrupting both the march and the religious service.\n\nB. The incidents\n\n12.   During the mass, a large number of counter-demonstrators - who, it seems, had not given the notice required under the Assembly Act - assembled outside the church and were not dispersed by the police. They disrupted the march to the hillside by mingling with the marchers and shouting down their recitation of the rosary. The same thing happened at the service celebrated in the open air: some five hundred people attempted to interrupt it using loudspeakers and threw eggs and clumps of grass at the congregation.\n\n13.   At the end of the ceremony, when tempers had risen to the point where physical violence nearly broke out, special riot-control units - which had until then been standing by without intervening - formed a cordon between the opposing groups, and this enabled the procession to return to the church.\n\n14.   In a letter to the Upper Austrian Safety Authority, the chairman of the association described the counter-demonstrators’ behaviour as \"relatively peaceful\": on other occasions, the opponents of Plattform had attacked the association’s members and had assaulted policemen.\n\nC. Remedies pursued after the demonstration\n\n1. Remedies sought by the association itself\n\n(a) Disciplinary complaint\n\n15.   On 21 January 1981, the applicant association lodged a disciplinary complaint (Dienstaufsichtsbeschwerde - see paragraphs 47-50 of the Commission’s report) alleging that the local police had failed to provide sufficient protection for the demonstration.\n\nThe Upper Austrian Safety Authority considered that the behaviour of the police had been irreproachable and it decided not to take any disciplinary measures against them. It referred to the difficulty of completely protecting an open-air demonstration from verbal abuse and from missiles which were not likely to cause the participants any physical harm. The Authority added that, in not intervening, the police had been prompted by the concern to avoid more serious trouble.\n\n(b) Constitutional appeal\n\n16.   Plattform subsequently lodged an appeal with the  (Verfassungsbeschwerde - see paragraphs 41-43 of the Commission’s report); in the association’s submission the local authorities’ failure to act had in the instant case allowed an infringement of the freedoms of assembly and religious observance, both of which were guaranteed by the Austrian Constitution.\n\nOn 11 December 1981, the  heard evidence from several witnesses with a view to establishing the facts sufficiently clearly. In a judgment on 1 March 1982, it held that it had no jurisdiction and consequently declared the appeal inadmissible. It noted that the applicant association’s complaint was clearly not directed against a \"decision\" or acts of direct administrative coercion within the meaning of Article 144 of the Constitution (see Official Collection of the Judgments of the , no. 9334/1982).\n\n2. Proceedings taken officially\n\n(a) Ordinary criminal proceedings\n\n17.   Plattform did not take any ordinary criminal proceedings by lodging a complaint or by bringing a subsidiary private prosecution (\"Subsidiaranklage\" - see paragraphs 58-64 of the Commission’s report).\n\nThe Upper Austrian Safety Authority and the local police, however, opened investigation proceedings against a person or persons unknown for disruption of a meeting. For its part, a private organisation, the \"Österreichische Bürgerinitiative zum Schutz der Menschenwürde\", lodged a complaint against one of the counter-demonstrators, a member of parliament, alleging obstruction of a religious ceremony and incitement to hatred under Articles 188, 189 and 283 of the Criminal Code as well as an offence against section 2 of the 1953 Assembly Act. Complaints were also lodged against two other people.\n\nThe  public prosecutor discontinued the proceedings on 1 April 1981, however, under Article 90 of the Code of Criminal Procedure.\n\n(b) Administrative criminal proceedings\n\n18.   One person caught in the act of throwing eggs was fined 1,000 Austrian schillings under section IX of the law enacting the Administrative Proceedings Acts (see paragraph 66 of the Commission’s report).\n\nII.   THE  DEMONSTRATION\n\n19.   The competent police authority gave permission for a second demonstration against abortion to be held in the cathedral square in  on 1 May 1982. An anniversary meeting was due to be held in the square by the Socialist Party on the same day, but it had to be cancelled because notice of it had been given after the applicant association had given notice of its own meeting.\n\nThe demonstration began at 2.15 p.m. and ended with an hour of prayers inside the cathedral.\n\nAt about 1.30 p.m. some three hundred and fifty people angrily shouting their opposition had passed through the three archways which provide access to the square and gathered outside the cathedral. A hundred policemen formed a cordon around the Plattform demonstrators to protect them from direct attack. Other trouble was caused by sympathisers of an extreme right-wing party, the NDP, who voiced their support for Plattform. The police asked the association’s chairman to order these people to disperse, but without success.\n\nIn order to prevent the religious ceremony being disrupted, the police cleared the square.\n\n20.   No proceedings were taken after these incidents, and in view of the ’s decision of 1 March 1982 the applicant association considered that a second appeal would have served no purpose.\n\nPROCEEDINGS BEFORE THE COMMISSION\n\n21.   The Plattform \"Ärzte für das Leben\" association applied to the Commission on 13 September 1982 (application no. 10126/82). It claimed that it had not had sufficient police protection during the demonstrations it had held on 28 December 1980 at Stadl-Paura and on 1 May 1982 at Salzburg; it submitted that there had been a violation of Articles 9, 10 and 11 (art. 9, art. 10, art. 11) of the Convention. It also relied on Article 13 (art. 13), claiming that the Austrian legal system did not provide an \"effective remedy before a national authority\" to ensure the effective exercise of the rights in question.\n\n22.   On 17 October 1985, the Commission declared inadmissible, as being manifestly ill-founded, the complaints under Articles 9, 10, and 11 (art. 9, art. 10, art. 11); on the other hand, it declared admissible the complaint under Article 13 (art. 13). In its report of 12 March 1987 (Article 31) (art. 31), it unanimously held that there had been no violation of this Article (art. 13).\n\nThe full text of the Commission’s opinion, together with a summary made by the Commission of the relevant domestic law and practice, is reproduced as an annex to this judgment.\n\nFINAL SUBMISSIONS MADE TO THE COURT\n\n23.   At the hearing on 21 March 1988, the Government requested the Court to hold that \"the provisions of Article 13 (art. 13) of the European Convention on Human Rights [had] not been infringed and that the facts which gave rise to the dispute accordingly disclose[d] no violation of the Convention\".\n\nAS TO THE LAW\n\n24.   The applicant association stated that no effective remedy was available to it in  for its complaint under Article 11 (art. 11); it relied on Article 13 (art. 13), which provides:\n\n\"Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.\"\n\n25.   The Government’s main submission was that Article 13 (art. 13) applied only where a substantive provision of the Convention had been infringed. As evidence of this, they cited the French text, containing the words \"ont été violés\", which in their view were clearer than the corresponding English terms (\"are violated\").\n\nThe Court does not accept this submission. Under its case-law, Article 13 (art. 13) secures an effective remedy before a national \"authority\" to anyone claiming on arguable grounds to be the victim of a violation of his rights and freedoms as protected in the Convention; any other interpretation would render it meaningless (see, as the most recent authority, the Boyle and Rice judgment of 27 April 1988, Series A no. 131, p. 23, § 52).\n\n26.   Although it declared the complaint under Article 11 (art. 11) inadmissible as being manifestly ill-founded, the Commission considered it arguable for the purposes of Article 13 (art. 13). The Government thought it contradictory to declare one and the same complaint to be manifestly ill-founded under a substantive provision and yet arguable under Article 13 (art. 13).\n\n27.   The Court does not propose to give an abstract definition of the notion of \"arguability\". In order to ascertain whether Article 13 (art. 13) was applicable in the instant case, it is sufficient that it should determine, in the light of the facts of the case and the nature of the legal issue or issues raised, whether the claim that the requirements of Article 11 (art. 11) had not been complied with was arguable notwithstanding that the Commission dismissed it as manifestly ill-founded. The latter’s decision on admissibility may provide the Court with useful pointers as to the arguability of the relevant claim (see the Boyle and Rice judgment previously cited, Series A no. 131, pp. 23-24, §§ 54-55).\n\n28.   Before the Commission, Plattform complained that the Austrian authorities had disregarded the true meaning of freedom of assembly by having failed to take practical steps to ensure that its demonstrations passed off without any trouble.\n\n29.   In the Government’s submission, Article 11 (art. 11) did not create any positive obligation to protect demonstrations. Freedom of peaceful assembly - enshrined in Article 12 of the Austrian Basic Law of 1867 - was mainly designed to protect the individual from direct interference by the State. Unlike some other provisions in the Convention and the Austrian Constitution, Article 11 (art. 11) did not apply to relations between individuals. At all events, the choice of the means to be used in a given situation was a matter for the State’s discretion.\n\n30.   In its decision of 17 October 1985 on admissibility, the Commission dealt at length with the question whether Article 11 (art. 11) impliedly required the State to protect demonstrations from those wishing to interfere with or disrupt them. It answered this question in the affirmative.\n\n31.   The Court does not have to develop a general theory of the positive obligations which may flow from the Convention, but before ruling on the arguability of the applicant association’s claim it has to give an interpretation of Article 11 (art. 11).\n\n32.   A demonstration may annoy or give offence to persons opposed to the ideas or claims that it is seeking to promote. The participants must, however, be able to hold the demonstration without having to fear that they will be subjected to physical violence by their opponents; such a fear would be liable to deter associations or other groups supporting common ideas or interests from openly expressing their opinions on highly controversial issues affecting the community. In a democracy the right to counter-demonstrate cannot extend to inhibiting the exercise of the right to demonstrate.\n\nGenuine, effective freedom of peaceful assembly cannot, therefore, be reduced to a mere duty on the part of the State not to interfere: a purely negative conception would not be compatible with the object and purpose of Article 11 (art. 11). Like Article 8 (art. 8), Article 11 (art. 11) sometimes requires positive measures to be taken, even in the sphere of relations between individuals, if need be (see, mutatis mutandis, the X and Y v. the Netherlands judgment of 26 March 1985, Series A no. 91, p. 11, § 23).\n\n33.   Concurring with the Government and the Commission, the Court finds that Austrian law is concerned to protect demonstrations by such positive action. For example, Articles 284 and 285 of the Criminal Code make it an offence for any person to disperse, prevent or disrupt a meeting that has not been prohibited, and sections 6, 13 and 14(2) of the Assembly Act, which empower the authorities in certain cases to prohibit, bring to an end or disperse by force an assembly, also apply to counter-demonstrations (see paragraphs 54 and 40 of the Commission’s report).\n\n34.   While it is the duty of Contracting States to take reasonable and appropriate measures to enable lawful demonstrations to proceed peacefully, they cannot guarantee this absolutely and they have a wide discretion in the choice of the means to be used (see, mutatis mutandis, the Abdulaziz, Cabales and Balkandali judgment of 28 May 1985, Series A no. 94, pp. 33-34, § 67, and the Rees judgment of 17 October 1986, Series A no. 106, pp. 14-15, §§ 35-37). In this area the obligation they enter into under Article 11 (art. 11) of the Convention is an obligation as to measures to be taken and not as to results to be achieved.\n\n35.   In the applicant association’s submission, the police remained entirely passive at each of the two demonstrations in issue. The Government and the Commission disagreed; in their view, immediate intervention was not justified in the absence of any serious assaults and would inevitably have provoked physical violence.\n\n36.   The Court does not have to assess the expediency or effectiveness of the tactics adopted by the police on these occasions but only to determine whether there is an arguable claim that the appropriate authorities failed to take the necessary measures.\n\n37.   As regards the incidents at Stadl-Paura on 28 December 1980 (see paragraphs 9-13 above), it must first be noted that the two demonstrations planned by supporters of abortion, which were due to be held at the same time and place as Plattform’s demonstration (of which notice had been given on 30 November) had been prohibited. Furthermore, a large number of uniformed and plain-clothes policemen had been deployed along the route originally planned, and the police representatives did not refuse the applicant association their protection even after it decided to change the route despite their objections. Lastly, no damage was done nor were there any serious clashes; the counter-demonstrators chanted slogans, waved banners and threw eggs or clumps of grass, which did not prevent the procession and the open-air religious service from proceeding to their conclusion; special riot-control units placed themselves between the opposing groups when tempers had risen to the point where violence threatened to break out.\n\n38.   For the 1982 demonstration in Salzburg (see paragraph 19 above) the organisers had chosen the date of 1 May, the day of the traditional Socialist march which had to be cancelled - as regards the cathedral square - because the applicant association had given notice of its demonstration earlier. Furthermore, a hundred policemen were sent to the scene to separate the participants from their opponents and avert the danger of direct attacks; they cleared the square so as to prevent any disturbance of the religious service.\n\n39.   It thus clearly appears that the Austrian authorities did not fail to take reasonable and appropriate measures.\n\nNo arguable claim that Article 11 (art. 11) was violated has thus been made out; Article 13 (art. 13) therefore does not apply in the instant case.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\nHolds that there has been no violation of Article 13 (art. 13).\n\nDone in English and in French, and delivered at a public hearing in the Human Rights Building, , on 21 June 1988.","title":""}
{"_id":"passage_567","text":"INTRODUCTION\n\n1.  The present application concerns a breach of Article 1 of Protocol No. 1 to the Convention in relation to the disproportionate amount of rent received by the applicants, and the effectiveness of the available remedies in this regard.\n\nTHE FACTS\n\n2.  The applicant was born in 1956 and lives in St. Julians. The applicant was represented by Dr M. Camilleri and Dr E. Debono, lawyers practising in Valletta.\n\n3.  The Government were represented by their Agents, Dr C. Soler, State Advocate, and Dr J. Vella, Advocate at the Office of the State Advocate.\n\n4.  The facts of the case, as submitted by the parties, may be summarised as follows.\n\nBackground to the case\n\n5.  The applicant owns an interlinked property, situated at No. 3 St. Paul’s Square, and 8 Triq Rocca, Mdina, Malta whose sole ownership she acquired, by contract of division in 2016 following the division of the inheritance of her mother.\n\n6.  On 1 January 1973, the applicant’s ancestors rented the property under title of lease (Article 5 of the Chapter 158 of the Laws of Malta, the Housing (Decontrol) Ordinance (hereinafter “the Ordinance”)), to a third party, for twenty-five years, at 25 British pounds (GBP) per month (GBP 300 per year).\n\n7.  The contract expired on 31 December 1998. However, the tenant relied on Act XXIII of 1979 amending the Ordinance to continue retaining the property under title of lease, at a rent agreed by the parties of approximately 1,398 euros (EUR) per year (while the rent applicable by law was EUR 300 per year). As of January 2013, the rent was paid in accordance with the increase established by law, namely EUR 1,977 per year and later, as of 2016, EUR 2,005 per year.\n\nConstitutional redress proceedings\n\n8.  In 2017 the applicant instituted constitutional redress proceedings claiming that the provisions of the Ordinance as amended by Act XXIII of 1979  which granted tenants the right to retain possession of the premises under a lease  imposed on her as owner a unilateral lease relationship for an indeterminate time without reflecting a fair and adequate rent, in breach of, inter alia, Article 1 of Protocol No. 1 to the Convention. The applicant argued that she had needed the property for herself and for her family. She asked the court for compensation for the losses incurred (since 1999, when the lease was extended by operation of law) and to order the eviction of the tenants.\n\n9.  According to the court-appointed expert the sale value in 2017 was EUR 1,780,000 and the annual rental value was estimated as being in 2017 EUR 40,050, and in 1998 as being EUR 19,224.\n\n10.  By a judgment of 7 November 2017 the Civil Court (First Hall) in its constitutional competence found a violation of the applicant’s property rights, having considered the huge disproportion in the rents paid compared to the market value (only 5%). It awarded EUR 10,000 in compensation and ordered the eviction of the tenants who could no longer rely on the protection of the impugned law. No costs were to be paid by the applicant.\n\n10.  By a judgment of 7 November 2017 the Civil Court (First Hall) in its constitutional competence found a violation of the applicant’s property rights, having considered the huge disproportion in the rents paid compared to the market value (only 5%). It awarded EUR 10,000 in compensation and ordered the eviction of the tenants who could no longer rely on the protection of the impugned law. No costs were to be paid by the applicant.\n\n11.  The defendants appealed and in her pleadings in defence the applicant asked the court to reject their appeals. In particular the Government argued that the first-instance court gave no explanation as to how it calculated the compensation, which they deemed excessive.\n\n12.  By a judgment of 14 December 2018 the Constitutional Court confirmed the first-instance judgment but revoked the order of eviction of the tenants and ordered that 1/4 costs of the State and 2/3 costs of the tenants on appeal be paid by the applicant.\n\n12.  By a judgment of 14 December 2018 the Constitutional Court confirmed the first-instance judgment but revoked the order of eviction of the tenants and ordered that 1/4 costs of the State and 2/3 costs of the tenants on appeal be paid by the applicant.\n\n13.  In particular it considered the State’s challenge to the amount of compensation awarded by the first-court to be frivolous, since in the light of the huge disproportion in the rent received, had it not been for the order that the tenant could no longer rely on the relevant law to maintain possession of the premises [previously accompanied by an eviction order], such compensation would have been considered very mild (“tenwu ħafna”).\n\nOther information\n\n14.  Despite the order of the Constitutional Court to the effect that the tenant could no longer rely on the relevant law, the applicant submitted that eviction proceedings were hindered due to the introduction of Act XXVII of 2018 which provided that despite a judgment in favour, it shall not be lawful for the owner to proceed to request the eviction of the occupier without first availing himself of the new procedure provided by that law.\n\n15.  In particular, in 2018 the applicant instituted proceedings before the Rent Regulation Board (hereinafter RRB), asking for, in line with the findings of the constitutional jurisdictions in her case, a declaration that the tenants could no longer rely on the law to maintain title to the property and in consequence to order the eviction of the tenants. Subsidiarily, in the event that the RRB did not uphold such request, it asked that the tenants be subject to a means test and, if they qualified for protection under the law, that the rent be increased according to law. Alternatively, that if they did not satisfy the requirements for protection, that eviction be ordered and the rent increased until then, as stipulated by law.\n\n15.  In particular, in 2018 the applicant instituted proceedings before the Rent Regulation Board (hereinafter RRB), asking for, in line with the findings of the constitutional jurisdictions in her case, a declaration that the tenants could no longer rely on the law to maintain title to the property and in consequence to order the eviction of the tenants. Subsidiarily, in the event that the RRB did not uphold such request, it asked that the tenants be subject to a means test and, if they qualified for protection under the law, that the rent be increased according to law. Alternatively, that if they did not satisfy the requirements for protection, that eviction be ordered and the rent increased until then, as stipulated by law.\n\n15.  In particular, in 2018 the applicant instituted proceedings before the Rent Regulation Board (hereinafter RRB), asking for, in line with the findings of the constitutional jurisdictions in her case, a declaration that the tenants could no longer rely on the law to maintain title to the property and in consequence to order the eviction of the tenants. Subsidiarily, in the event that the RRB did not uphold such request, it asked that the tenants be subject to a means test and, if they qualified for protection under the law, that the rent be increased according to law. Alternatively, that if they did not satisfy the requirements for protection, that eviction be ordered and the rent increased until then, as stipulated by law.\n\n16.  By a judgment of 19 February 2020, the RRB considered that it could not uphold the applicant’s main request which was based on the Constitutional Court’s judgment. Relying on the case of Robert Galea vs. Major John Ganado, Court of Appeal judgment of 25 February 2019, it noted that by means of Act XXVII of 2018, which entered into force on 10 July 2018 with retroactive effect as from 10 April 2018, the Ordinance was amended to include a new Article 12B which brought to nothing (taf iġib fix-xejn) the judgments of the constitutional jurisdictions. Article 12B provided that where the lease had lapsed due to a court judgment it shall nonetheless not be lawful for the owner to proceed to request the eviction of the occupier without first availing himself of the procedure under the same provision. The RRB considered that the new Article 12B applied in the present case and therefore it could not be said that the lease came to an end by means of the judgment of the Constitutional Court of 14 December 2018.\n\n16.  By a judgment of 19 February 2020, the RRB considered that it could not uphold the applicant’s main request which was based on the Constitutional Court’s judgment. Relying on the case of Robert Galea vs. Major John Ganado, Court of Appeal judgment of 25 February 2019, it noted that by means of Act XXVII of 2018, which entered into force on 10 July 2018 with retroactive effect as from 10 April 2018, the Ordinance was amended to include a new Article 12B which brought to nothing (taf iġib fix-xejn) the judgments of the constitutional jurisdictions. Article 12B provided that where the lease had lapsed due to a court judgment it shall nonetheless not be lawful for the owner to proceed to request the eviction of the occupier without first availing himself of the procedure under the same provision. The RRB considered that the new Article 12B applied in the present case and therefore it could not be said that the lease came to an end by means of the judgment of the Constitutional Court of 14 December 2018.\n\n17.  In relation to the means test it noted that the tenants had declared to possess EUR 800 in cash and to have an unquantified part of an inheritance which included a property in Valletta (which was the subject of ongoing proceedings concerning its title). They also declared to live off a pension plus an annual income of EUR 600 and 1/5 of the rent on two properties in Rabat. The RRB thus considered that they fulfilled the means test requirements to be considered persons of limited means and therefore in need of protection. It noted that the applicant’s property had a sale value of EUR 2.2 million and that a rent equivalent to 2 % of the sale value of the property (the maximum allowed by law) would amount to an annual rent of EUR 44,000.\n\n18.  Having considered the age and limited means of the tenants and that the applicant had not shown that she would suffer a disproportionate burden (all criteria under Article 12B (6) of the Ordinance) the RRB considered that a gradual increase in rent would be appropriate. It thus increased the rent (as from the date of its judgment) to EUR 16,500 annually for the first two years (amounting to 0.75 % of the market value); to EUR 22,000 for the subsequent two years (amounting to 1 % of the market value) and to EUR 27,500 for the subsequent two years (amounting to 1.25 % of the market value). The RRB noted that the tenants could apply to the Housing Authority for the relevant subsidy.\n\n18.  Having considered the age and limited means of the tenants and that the applicant had not shown that she would suffer a disproportionate burden (all criteria under Article 12B (6) of the Ordinance) the RRB considered that a gradual increase in rent would be appropriate. It thus increased the rent (as from the date of its judgment) to EUR 16,500 annually for the first two years (amounting to 0.75 % of the market value); to EUR 22,000 for the subsequent two years (amounting to 1 % of the market value) and to EUR 27,500 for the subsequent two years (amounting to 1.25 % of the market value). The RRB noted that the tenants could apply to the Housing Authority for the relevant subsidy.\n\n19.  The tenants appealed against the judgment, but later withdrew their appeal and the property was returned vacant to the applicant on an unspecified date.\n\nRELEVANT LEGAL FRAMEWORK\n\n20.  The relevant domestic law is set out in Anthony Aquilina v. Malta (no. 3851/12, §§ 27-28, 11 December 2014) and Cauchi v. Malta (no. 14013/19, § 38, 25 March 2021).\n\nTHE LAW\n\nALLEGED VIOLATION OF ARTICLE 1 of Protocol no. 1 tO THE CONVENTION\n\n21.  The applicant complained that she was still a victim of the violation of Article 1 of Protocol No. 1 upheld by the domestic courts given the low amount of compensation awarded, as well as the fact that there had been no order to evict the tenants. The provision reads as follows:\n\n“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.\n\nThe preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”\n\nAdmissibility\n\nVictim status\n\nThe parties’ submissions\n\n22.  The Government submitted that the applicant had lost her victim status as the domestic courts had expressly acknowledged the violation and awarded appropriate redress, namely compensation of EUR 10,000 covering both pecuniary and non-pecuniary damage.\n\n23.  The applicant submitted that she was still a victim of the violation upheld by the domestic courts, because the latter had not awarded sufficient compensation for the breach and had not brought the violation to an end. She noted that the rental income in 1998 was calculated at EUR 19,224 per annum and EUR 40,050 in 2017, while she had only been awarded EUR 10,000. The Constitutional Court had moreover revoked the eviction order, leaving her at the mercy of the tenants, given that she could no longer evict them due to the introduction of the new Article 12B of the Ordinance.\n\nThe Court’s assessment\n\n24.  The Court reiterates its general principles concerning victim status as set out in Apap Bologna v. Malta (no. 46931/12, §§ 41 and 43, 30 August 2016).\n\n25.  In the present case, the Court notes that there has been an acknowledgment of a violation by the domestic courts. As to whether appropriate and sufficient redress was granted, the Court considers that even though the market value is not applicable and the rent valuations may be decreased due to the legitimate aim at issue, a global award of EUR 10,000 covering pecuniary and non-pecuniary damage for a property with a rental value of, for example, EUR 40,050 in 2017, is clearly insufficient for a violation persisting for various years. The Court notes that even the Constitutional Court remarked that the award had been very mild (see paragraph 13 above).\n\n26.  That would be enough to find that the redress provided by the domestic court in the present case did not offer sufficient relief to the applicant, who thus retains victim status for the purposes of this complaint (see, mutatis mutandis, Portanier v. Malta, no. 55747/16, § 24, 27 August 2019).\n\n27.  However, the Court also notes that the Constitutional Court failed to bring the violation to an end. In particular, it failed to order the eviction of the tenants (explicitly revoking the eviction order made by the first-instance court) or alternatively to award a higher future rent. While it ordered that the tenant could no longer rely on Article 5 of the Ordinance (at issue in the present case) the Court cannot ignore that at the time of judgment, namely December 2018, the amendments to the Ordinance had already been promulgated and entered into force (compare Cauchi v. Malta, no. 14013/19, § 30, 25 March 2021). The latter, in particular the new Article 12B (11) of the Ordinance, provided that it would not be lawful for the owner to proceed to request the eviction of the occupier without first availing him or herself of the provisions of that Article. As a result, when the applicant attempted to enforce the order of the Constitutional Court before the RRB, the latter held that Article 12B applied in the present case, with the result that the Constitutional Court’s declaration no longer had any useful effect (see paragraph 16 above). It follows that the declaration of the Constitutional Court in the present case cannot be considered to have had any effect in bringing the violation to an end, so much so that nearly two years after the Constitutional Court judgment - until the tenants left the property of their own motion on an unspecified date in 2020 - the applicant continued to suffer the same violation of her property rights.\n\n27.  However, the Court also notes that the Constitutional Court failed to bring the violation to an end. In particular, it failed to order the eviction of the tenants (explicitly revoking the eviction order made by the first-instance court) or alternatively to award a higher future rent. While it ordered that the tenant could no longer rely on Article 5 of the Ordinance (at issue in the present case) the Court cannot ignore that at the time of judgment, namely December 2018, the amendments to the Ordinance had already been promulgated and entered into force (compare Cauchi v. Malta, no. 14013/19, § 30, 25 March 2021). The latter, in particular the new Article 12B (11) of the Ordinance, provided that it would not be lawful for the owner to proceed to request the eviction of the occupier without first availing him or herself of the provisions of that Article. As a result, when the applicant attempted to enforce the order of the Constitutional Court before the RRB, the latter held that Article 12B applied in the present case, with the result that the Constitutional Court’s declaration no longer had any useful effect (see paragraph 16 above). It follows that the declaration of the Constitutional Court in the present case cannot be considered to have had any effect in bringing the violation to an end, so much so that nearly two years after the Constitutional Court judgment - until the tenants left the property of their own motion on an unspecified date in 2020 - the applicant continued to suffer the same violation of her property rights.\n\n28.  It follows that the domestic courts did not offer sufficient relief to the applicant, who thus retains victim status for the purposes of this complaint and the Government’s objection is dismissed.\n\nNon-exhaustion\n\nThe parties’ submissions\n\n29.  The Government submitted that the applicant had failed to exhaust domestic remedies as she had failed to appeal to the Constitutional Court, despite the fact that both the Government and the tenants had appealed the first-instance judgment finding in favour of the applicant. In that situation the Constitutional Court - who also commented on the low amount of compensation - bound by the appeals before it and the lack of an appeal by the applicant, could not have increased the compensation, but only confirmed it or lowered it. This was also recently confirmed in the Constitutional Court judgment of 23 November 2020 in the names of Cassar Barbara vs Attorney General et.\n\n29.  The Government submitted that the applicant had failed to exhaust domestic remedies as she had failed to appeal to the Constitutional Court, despite the fact that both the Government and the tenants had appealed the first-instance judgment finding in favour of the applicant. In that situation the Constitutional Court - who also commented on the low amount of compensation - bound by the appeals before it and the lack of an appeal by the applicant, could not have increased the compensation, but only confirmed it or lowered it. This was also recently confirmed in the Constitutional Court judgment of 23 November 2020 in the names of Cassar Barbara vs Attorney General et.\n\n30.  The Government considered that the Constitutional Court was an effective remedy and relied on six examples where the Constitutional Court had increased the compensation awarded by the first-instance court, namely Angela sive Gina Balzan vs the Honourable Prime Minister (14/2015) of 31 January 2018 (from EUR 15,000 to 20,000), Azzopardi Josephine proprio et nominee vs the Honourable Prime Minister (93/2014) of 31 January 2019 (from EUR 5,000 to 20,000), Azzopardi Josephine proprio et nominee vs the Honourable Prime Minister (6/2015) of 29 November 2019 (from EUR 20,000 to 38,000), Angela sive Gina Balzan vs the Honourable Prime Minister (16/2015/1) of 8 October 2020 (from EUR 15,000 to 70,000), Michael Farrugia vs the Attorney General et of 6 October 2020 (no increase in pecuniary damage but EUR 5,000 in nonpecuniary damage were added), and Giovanni Bartoli et vs Carmel Calleja also of 6 October 2020 (from EUR 15,000 to 25,000 in pecuniary damage and EUR 5,000 in non-pecuniary damage were added). They noted that even the applicant admitted (see paragraph 40 below) that sometimes the Constitutional Court increased the compensation precisely due to the value of the property, as for example, in the last-mentioned case.\n\n31.  They also submitted that the Constitutional Court had abandoned its practice of reducing compensation on the basis that applicants had delayed initiating proceedings. Indeed, it had started to follow the Court’s findings in relation to that issue, as set out in Montanaro Gauci and Others v. Malta (no. 31454/12, § 45, 30 August 2016), as it had done, for example, in Ian Peter Ellis pro et noe vs Major Alfred Cassar Reynaud et of 27 January 2017.\n\n32.  It therefore could not be said with certainty that there had been no prospects of success, and by failing to appeal the applicant had denied the domestic courts the opportunity of developing their case-law.\n\n33.  The Government further considered that in so far as her complaint appeared also to include a claim that Article 12B of the Ordinance also infringed her property rights (see paragraph 48 below), such a claim had never been brought before the domestic courts.\n\n34.  The applicant submitted that an appeal to the Constitutional Court was not an effective remedy in the context of a challenge to rent laws as in the present case. She submitted that, even after the case of Amato Gauci v. Malta (no. 47045/06, 15 September 2009) the Constitutional Court had continued to reject such claims, for one reason or another. She cited, for example, a series of Constitutional Court judgments overturned by the Court (see Emanuel Said Ltd vs Carmel Zammit and Doris Attard Cassar et of 5 July 2011 (25/2008/1); Franco Buttigieg et vs the Attorney General of 6 February 2015 (70/2012 JA)); and Anthony Aquilina vs the Attorney General et al of 13 April 2018).\n\n35.  Alternatively, when such claims had been upheld, the compensation awarded by the first-instance constitutional jurisdiction had been systematically reduced by the Constitutional Court. The applicant relied on the case of Dr Cedric Mifsud and Dr Michael Camilleri (as special mandatories) vs the Attorney General and Andrè Azzopardi of 25 October 2013, where the Constitutional Court had reduced the compensation from EUR 30,000 to 15,000 on the basis that the applicants had taken too long to initiate proceedings; and Maria Ludgarda Borg et vs Rosario Mifsud et of 29 April 2016, with similar circumstances. In this connection, the applicant submitted that before the case of Amato Gauci (cited above), the Constitutional Court would not find a breach of human rights in such situations. Therefore, any action in the Maltese courts before 2010 would have failed. Owners thus could not have been blamed for initiating proceedings at that time.\n\n36.  The applicant further relied on the above-mentioned case of Ian Peter Ellis pro et noe, where the Constitutional Court had reduced the award from EUR 50,000 to 15,000; Alessandra Radmilli vs Joseph Ellul et of 14 December 2018, where it had reduced the compensation from EUR 31,000 to 25,000; Maria Stella sive Estelle and John Azzopardi Vella vs the Attorney General, decided on 30 September 2016, where it had reduced the compensation from EUR 20,000 to 5,000; and Rebecca Hyzler vs Attorney General et, of 29 March 2019, where the Constitutional Court reduced the compensation from EUR 20,000 to 15,000.\n\n37.  The applicant also considered that while the Constitutional Court could evict tenants, it had refused to do so, thus failing to rectify the breach. She relied on Portanier (cited above) and gave, as an example, her own case.\n\n38.  Furthermore, while the Constitutional Court had more recently taken the approach of ordering that tenants could no longer rely on the impugned law to retain title to property (see Portanier, cited above, § 49), the applicant noted that that approach had become inconsistent following the amendments to the Ordinance in 2018 (by Act XXVII of 2018), it having been applied to some cases but not to others. In Chemimart Ltd vs the Attorney General, also of 14 December 2018, the Constitutional Court had confirmed the amount of compensation of EUR 5,000 and the order that the tenants could not rely on the provisions of the Ordinance to continue to reside in the property, knowing that in the meantime amendments had been introduced giving rise to a contradiction.\n\n39.  In the case of Brian Psaila vs Attorney General et al, decided by the Constitutional Court on 27 March 2020, the latter had upheld the part of the judgment of the first-instance court stating that the tenants could not rely on – in that case – Article 12 of the Ordinance to continue residing in the property, considering however that they could have title under the new Article 12B of the Ordinance. In the applicant’s view, this was contradictory because title under Article 12B was dependent on title acquired under the principal Article 12 of the Ordinance. Be that as it may, the situation as it stood was one where the Constitutional Court would find that the law in question did not apply between the parties, but would not order eviction. It opted instead to open the door for applicants to initiate eviction proceedings – at least on paper – knowing, however, that in practice and in law such an eviction could not be successful because the RRB would reject the claim in line with the newly enacted Article 12B (11) of the Ordinance, which did not allow for such action, as shown by the decision in her own case.\n\n39.  In the case of Brian Psaila vs Attorney General et al, decided by the Constitutional Court on 27 March 2020, the latter had upheld the part of the judgment of the first-instance court stating that the tenants could not rely on – in that case – Article 12 of the Ordinance to continue residing in the property, considering however that they could have title under the new Article 12B of the Ordinance. In the applicant’s view, this was contradictory because title under Article 12B was dependent on title acquired under the principal Article 12 of the Ordinance. Be that as it may, the situation as it stood was one where the Constitutional Court would find that the law in question did not apply between the parties, but would not order eviction. It opted instead to open the door for applicants to initiate eviction proceedings – at least on paper – knowing, however, that in practice and in law such an eviction could not be successful because the RRB would reject the claim in line with the newly enacted Article 12B (11) of the Ordinance, which did not allow for such action, as shown by the decision in her own case.\n\n40.  As to the cases relied on the by the Government (see paragraph 30 above), the applicant noted that in the Balzan case the Constitutional Court had increased the compensation because it had wanted to keep the amount of compensation awarded in line with other cases. Moreover, the title of lease in that case was under Article 12A of the Ordinance, and the ECHR had already found that during a certain amount of years the applicants could have evicted the tenants. As to the two other Aquilina cases – only two of fifteen cases lodged by the same person and concerning the same legal provision – the Constitutional Court had increased the damages in one case because the first-instance court had only awarded compensation in respect of non-pecuniary damage (known in domestic law as moral damage), and in the second case because of the value of the property (as was the case in Giovanni Bartoli et vs Carmel Calleja). However, in another of the cases lodged by the same person, namely Azzopardi Josephine proprio et nominee vs the Honourable Prime Minister (72/2015), the Constitutional Court had decreased the award from EUR 98,000 to 20,000, which had been the standard sum it had been awarding in the cases lodged by Mr. Azzopardi. As to the case of Michael Farrugia, the Constitutional Court had not increased the pecuniary damage but solely awarded non-pecuniary damage which had not been awarded by the first-instance court.\n\nThe Court’s assessment\n\n41.  The Court reiterates its general principles as set out in Cauchi, cited above, §§ 45-50.\n\n42.  In Cauchi, §§ 55 and 77, the Court has already found that, bearing in mind the parties submissions which were nearly identical to those in the present case and the Court’s case-law on the matter, at the end of 2018, following the first-instance judgment in the applicant’s case, an appeal to the Constitutional Court could not be considered an effective remedy, and that it was therefore not unreasonable for her to come directly to the Court (in the absence of an appeal by the defendants).\n\n42.  In Cauchi, §§ 55 and 77, the Court has already found that, bearing in mind the parties submissions which were nearly identical to those in the present case and the Court’s case-law on the matter, at the end of 2018, following the first-instance judgment in the applicant’s case, an appeal to the Constitutional Court could not be considered an effective remedy, and that it was therefore not unreasonable for her to come directly to the Court (in the absence of an appeal by the defendants).\n\n43.  The Court notes that the additional cases relied on by the Government to substantiate their contention that the Constitutional Court is an effective remedy in this type of complaint are all dated 2020. Thus, while there appears to be a good indication that the Constitutional Court’s practice is evolving, nothing has been brought to the Court’s attention to dispel its earlier conclusions that the Constitutional Court could not be considered an effective remedy at the relevant time, namely 2017-2018.\n\n44.  It is true that in the present case, given that the other parties appealed and that the award of the first-instance court had been extremely low, it may have been more appropriate for the applicant to attempt this avenue nonetheless, at least by means of a cross-appeal. Indeed, it can be understood that the applicant, having obtained the eviction of the tenant at first-instance, might have been ready to forego the adequate compensation for the past violation and not risk an appeal instance which would certainly (as in fact happened) revoke the eviction order in case of a cross-appeal by the Government or the tenant. However, the way things turned out, the Government and the tenant did appeal, thus at that stage the applicant had little to lose (save for costs) by lodging a cross-appeal. Nevertheless, and in the interests of coherence, given the ineffectiveness of an appeal before the Constitutional Court at the time, the applicant cannot be blamed for having, in line with this Court’s case-law as it stood at the relevant time, failed to appeal to the Constitutional Court.\n\n45.  It follows that the Government’s objection that the applicant failed to exhaust domestic remedies by not appealing to the Constitutional Court is dismissed.\n\n46.  In so far as the Government raised an objection in relation to the applicant’s arguments in relation to Article 12B, which had never been brought before the domestic courts, the Court considers that bearing in mind its findings at paragraph 53 below, it is not necessary to deal with this objection.\n\nConclusion\n\n47.  The Court notes that complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.\n\nMerits\n\nThe parties’ submissions\n\nThe parties’ submissions\n\n48.  The applicant submitted that on the termination of the rent agreement an excessive and disproportionate burden was put on her due to the extension of the tenants’ rights at law for an inconsequential rent. Moreover, there had been no procedural safeguards available to her. She relied on the general principles and conclusions established in the Court’s case-law concerning such cases. She also considered that the new Article 12B did nothing to ameliorate the situation and only continued to perpetrate the breach of her rights.\n\n49.  The Government submitted that there had been no violation of the invoked provision, and in any event the Constitutional Court had awarded the applicant compensation. Subsequent to that judgment the applicant could rely on Article 12B to ameliorate her situation.\n\nThe Court’s assessment\n\n50.  The Court refers to its general principles as set out, for example, in Amato Gauci (cited above, §§ 52-59).\n\n51.  Having regard to the findings of the domestic courts relating to Article 1 of Protocol No. 1, the Court considers that it is not necessary to reexamine in detail the merits of the complaint. It finds that, as established by the domestic courts, the applicant was made to bear a disproportionate burden. Moreover, as the Court has already found in the context of the applicant’s victim status (see paragraph 28 above), the redress provided by the domestic courts did not offer sufficient relief to the applicant.\n\n51.  Having regard to the findings of the domestic courts relating to Article 1 of Protocol No. 1, the Court considers that it is not necessary to reexamine in detail the merits of the complaint. It finds that, as established by the domestic courts, the applicant was made to bear a disproportionate burden. Moreover, as the Court has already found in the context of the applicant’s victim status (see paragraph 28 above), the redress provided by the domestic courts did not offer sufficient relief to the applicant.\n\n52.  The Court finds it opportune to note, however, that while it would appear that the interference started in 1999 on the end of the rent agreement, for the years 1999-2012 the rent being received by the applicant was one agreed by both parties and which amounted to nearly four times that provided by law. It was later increased according to law. The Court observes that domestic courts were silent on the matter. Admittedly, while the applicant’s power to negotiate was not unfettered given the circumstances, the applicant has not submitted that the agreement with the tenants at the time had been hindered by any related considerations. Thus, while it would generally be for the domestic courts to examine such issues, in the absence of any considerations in this respect at the domestic level, the Court will limit itself to take this into account only for the purposes of the compensation it will award under Article 41 of the Convention.\n\n52.  The Court finds it opportune to note, however, that while it would appear that the interference started in 1999 on the end of the rent agreement, for the years 1999-2012 the rent being received by the applicant was one agreed by both parties and which amounted to nearly four times that provided by law. It was later increased according to law. The Court observes that domestic courts were silent on the matter. Admittedly, while the applicant’s power to negotiate was not unfettered given the circumstances, the applicant has not submitted that the agreement with the tenants at the time had been hindered by any related considerations. Thus, while it would generally be for the domestic courts to examine such issues, in the absence of any considerations in this respect at the domestic level, the Court will limit itself to take this into account only for the purposes of the compensation it will award under Article 41 of the Convention.\n\n52.  The Court finds it opportune to note, however, that while it would appear that the interference started in 1999 on the end of the rent agreement, for the years 1999-2012 the rent being received by the applicant was one agreed by both parties and which amounted to nearly four times that provided by law. It was later increased according to law. The Court observes that domestic courts were silent on the matter. Admittedly, while the applicant’s power to negotiate was not unfettered given the circumstances, the applicant has not submitted that the agreement with the tenants at the time had been hindered by any related considerations. Thus, while it would generally be for the domestic courts to examine such issues, in the absence of any considerations in this respect at the domestic level, the Court will limit itself to take this into account only for the purposes of the compensation it will award under Article 41 of the Convention.\n\n53.  Furthermore, the Court considers that – without having to address the effectiveness or otherwise of the procedure introduced by Act XXVII of 2018 for the purposes of this complaint – even assuming that the new Article 12B of the Ordinance provided for any relevant and effective safeguards, these had no bearing on the situation suffered by the applicant until the introduction of these amendments in 2018. It is also unclear whether they had any bearing thereafter given that the judgment of the RRB delivered in 2020 had been appealed by the tenants – appeal which was later withdrawn, the tenants having opted to vacate the property (see paragraph 19 above).\n\n54.  The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 1 of Protocol No. 1 to the Convention.\n\nALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION\n\n55.  The applicant complained that constitutional redress proceedings were not an effective remedy for the purposes of Article 13 of the Convention in conjunction with Article 1 of Protocol No. 1. Article 13 reads as follows:\n\n“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”\n\nAdmissibility\n\n56.  The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.\n\nMerits\n\nThe parties’ submissions\n\n57.  Relying on the Court’s case-law, particularly Apap Bologna (cited above), which applied equally to the present case, the applicant submitted that she had not had an effective remedy in relation to the breach of her property rights, as required by Article 13 of the Convention. In particular, the domestic courts had systemically failed to prevent the continuation of the violation and provide adequate redress, as had happened in her case. She emphasized that when eviction was ordered by the first instance-court it would be revoked by the Constitutional Court as happened in her case. Furthermore, she considered that the introduction of Article 12B of the Ordinance in 2018 showed a continued reluctance by the State to provide an adequate remedy.\n\n58.  The Government insisted that constitutional redress proceedings, including an appeal to the Constitutional Court, were effective remedies in relation to the applicant’s complaint on the basis of submissions similar to those made in previous cases. In relation to the Constitutional Court (relying on specific cases where it had increased compensation on appeal (see paragraph 30 above)), they considered that the applicant had of her own volition chosen not to appeal, despite a possibility of success, and that this should militate against the finding of a violation of Article 13.\n\n59.  They further considered that eviction would not always be necessary, and that it would be draconian to evict a tenant, outside of the context of an Article 6 compliant procedure to that effect. They insisted that eviction should only be ordered by the competent court, because the result of eviction proceedings was not automatic. They considered that an individual may wish to argue that he has another title to the property (as for example a contract between the parties), which did not derive from the impugned law. In this connection the Government relied on the case of Robert Galea v Major John Ganado (no. 41/2017), decided by the RRB on 24 September 2018 and by the Court of Appeal on 25 February 2019, where, however, both courts found that the tenants had no other title to the property (as the contract between the parties had ultimately been based on the impugned law and could not be seen separately). The Government was of the view that the most reasonable remedy would be monetary compensation which remedies the past violation and prevents any future violation.\n\n60.  Moreover, the Government argued that even if constitutional remedies were deemed to be insufficient, the aggregate of the remedies available to the applicant satisfied the requirements of Article 13. They referred to the new Article 12B of the Ordinance, which provided the applicant with the possibility of evicting the tenants and requesting an increase in rent – the latter the applicant in fact obtained at first instance.\n\nThe Court’s assessment\n\n61.  The Court reiterates its general principles as set out in Apap Bologna v. Malta (no. 46931/12, §§ 76-79, 30 August 2016).\n\n62.  The Court has repeatedly found that although constitutional redress proceedings are an effective remedy in theory, they are not so in practice in cases such as the present one. In consequence, they cannot be considered an effective remedy for the purposes of Article 13 in conjunction with Article 1 of Protocol No. 1 concerning arguable complaints in respect of the rent laws in place, which, though lawful and pursuing legitimate objectives, impose an excessive individual burden on applicants (see Portanier, cited above, § 53).\n\n63.  The Court refers to its findings at paragraph 43 above and considers that in the present case an appeal to the Constitutional Court could not be considered an effective remedy at the material time. Indeed, quite apart from the issue of compensation, in the present case, as with its constant practice, the Constitutional Court revoked the eviction order made by the first-instance court, leaving the applicant with an order which was of no consequence given the 2018 amendments (see Cauchi, cited above, § 31), as a result of which she remained a victim of the violation (see paragraph 28 above).\n\n64.  In so far as the Government relied on the new procedure introduced under Article 12B of the Ordinance, the Court notes that this new procedure introduced in 2018 was only available to the applicant after she lodged her constitutional application and a few months before it was decided by the Constitutional Court. Its effectiveness is thus to be examined as a remedy following the finding of a violation by a domestic court. Indeed, the Court has also already found that this was not effective in circumstances similar to those of the present case (ibid., § 85). Moreover, in the present case as it developed (see paragraph 17-19 above), those proceedings do not appear to have had any consequence on the applicant’s situation.\n\n65.  The foregoing considerations are sufficient to enable the Court to conclude that the aggregate of the remedies proposed by the Government did not provide the applicant with an effective remedy.\n\n66.  There has accordingly been a violation of Article 13 of the Convention in conjunction with Article 1 of Protocol No. 1 to the Convention.\n\nALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION\n\n67.  The applicant complained that the introduction of Act XXVII of 2018 impeded the execution of the judgment in her favour, as a result of which she considered that she was suffering a breach of Article 6 § 1 of the Convention, which reads as follows:\n\n“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”\n\n68.  The Government submitted that the applicant had failed to bring a new set of constitutional redress proceedings in relation to her complaints under Article 6. Thus, the Maltese constitutional jurisdictions had not had the opportunity to assess whether Article 12B of the Ordinance complied with the Convention, thereby denying the Court the benefit of the views of the domestic courts.\n\n69.  The applicant considered that just as much as she was not required to institute a new set of constitutional redress proceedings to complain under Article 13 she should not be made to do so for a complaint of nonenforcement under Article 6. All these complaints were connected to her main Article 1 of Protocol No. 1 complaint which had been upheld by the domestic courts. She noted that Act XXVII of 2018 introducing Article 12B had entered into force in April 2018, that is, while her constitutional redress proceedings had been underway. At the time, she had had a legitimate expectation, based on caselaw, that following the judgment in her favour she would be able to start proceedings to evict the tenants. However, Article 12B (11) had put a stop to that expectation. She was of the view that in such a situation she should not be required to restart constitutional redress proceedings to seek to put an end to the breach of her rights under Article 1 of Protocol No. 1 which had persisted over so many years.\n\n70.  In Cauchi (cited above, § 96), concerning the same complaint, the Court has already considered that there was no suggestion that the constitutional jurisdictions would not be an effective remedy for the purposes of this type of complaint, and the Court found that there were no special circumstances absolving the applicant in that case from the requirement to exhaust domestic remedies in this regard. In the present case, nothing has been brought to the Court’s attention capable of altering that finding. The Government’s objection is accordingly upheld.\n\n71.  It follows that the complaint is inadmissible for nonexhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.\n\nAPPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n72.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nDamage\n\n73.  The applicant claimed 600,000 euros (EUR) in respect of pecuniary damage for all the violations complained of, which persisted beyond 2018, in view of the value of the property as determined by the expert in the domestic proceedings. She also claimed EUR 15,000 in non-pecuniary damage.\n\n74.  The Government submitted that there had been no explanation as to the applicant’s calculation in respect of pecuniary damage. Moreover, the applicant had already received around EUR 30,000 in rent from the tenants and EUR 10,000 by the domestic courts. In any event, they considered that simply adding up the alleged loss of rent would yield the applicant an unjustified profit for the following reasons: (i) they were only estimates, and not amounts that the applicant would certainly have obtained; (ii) it could not be assumed that the property would have been rented out for the whole period if the tenants had not been protected by the Ordinance  particularly given the boom in property prices over recent years; (iii) the tenants had had to maintain the property in a good state of repair; and (iv) the measure had been in the public interest and thus the market value was not called for. The Government also considered that the claim for non-pecuniary damage was excessive.\n\n75.  The Court must proceed to determine the compensation to which the applicant is entitled for the loss of control, use and enjoyment of the property which she has suffered at least until 2019, as it is unclear at what date in 2020 the property was vacated.\n\n76.  The Court notes that quite apart from the fact that the experts estimated the annual rental value as being in 2017 EUR 40,050, and in 1998 as being EUR 19,224, the applicant has not explained her calculation. Thus, the Court, in assessing the pecuniary damage sustained by the applicant, has as far as appropriate, considered the estimates provided and had regard to the information available to it on rental values in the Maltese property market during the relevant period (see, inter alia, Portanier, cited above, § 63).\n\n77.  It has also bore in mind, the considerations applicable in this type of case as set out in Cauchi (cited above, §§ 103-104). With particular reference to the present case, the Court points out two further considerations. It notes that the property is of a relevantly high standing (valued at EUR 2.2 million) and therefore the probability of it having been rented out all throughout is less than in the usual cases dealing with standard residential property. Further, as noted in paragraph 52 above, the rent received as from 1999 was one agreed by both parties which amounted to nearly four times that provided by law. Thus, the owners must have been more or less satisfied for at least a number of years thereafter, following which the rent increased according to law.\n\n78.  The rent received and the award of the domestic court, which if not yet paid remains payable, have also been deducted, and interest added to the resulting award (see Cauchi, cited above §§ 104-106).\n\n79.  Bearing in mind all the above, the Court awards the applicant EUR 110,000 in pecuniary damage.\n\n80.  Furthermore, the Court considers that the applicant must have experienced feelings of stress and anxiety, having regard to the duration of the breach, heightened by the ineffectiveness of the available remedies. It therefore awards her EUR 10,000 in respect of nonpecuniary damage, plus any tax that may be chargeable.\n\nCosts and expenses\n\n81.  The applicant also claimed EUR 3,000 for the costs and expenses she claims to have incurred in legal fees.\n\n82.  The Government submitted that no proof of payment had been put forward.\n\n83.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the above criteria, the Court rejects the claim for costs and expenses as no proof of payment to that effect has been submitted.\n\nDefault interest\n\n84.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\nDeclares the complaints concerning Article 1 of Protocol No. 1 to the Convention alone and in conjunction with Article 13 admissible and the remainder of the application inadmissible;\n\nHolds that there has been a violation of Article 1 of Protocol No.1 to the Convention;\n\nHolds that there has been a violation of Article 13 of the Convention in conjunction with Article 1 of Protocol No.1 to the Convention;\n\nHolds\n\nthat the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:\n\nthat from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\nDismisses the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 7 October 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_296","text":"PROCEDURE\n\n1.  The case originated in an application (no. 17656/06) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Zbigniew Szparag (“the applicant”), on 12 April 2006.\n\n2.  The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. .\n\n3.  On 22 June 2009 the President of the Fourth Section decided to give notice of the application to the Government. It was also decided that the Committee would rule on the admissibility and merits of the application at the same time (Article 29 § 1 of the Convention).\n\n4.  In accordance with Protocol No. 14, the application was allocated to a Committee.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\nA. Criminal proceedings against the applicant\n\n5.  The applicant was born in 1976. He is currently serving a prison sentence in Wołów prison.\n\n6.  On 23 August 2005 the Kłodzko District Court convicted the applicant of sexual abuse of a minor and sentenced him to five years' imprisonment. The applicant appealed.\n\n7.  On 20 February 2006 the Świdnica  upheld the firstinstance judgment. On a later unknown date the applicant requested that a legalaid lawyer be assigned to the case to prepare a cassation appeal. On 10 April 2006 the court allowed his request. The court's decision was served on the applicant on 20 April 2006.\n\n8.  By a letter to the court dated 11 May 2006 the lawyer refused to prepare a cassation appeal, finding no grounds for it. This letter was subsequently forwarded by the court to the applicant.\n\n9.  On 6 June 2006 the applicant requested the court to assign a new legalaid lawyer to the case. In letters to the applicant dated 14 June and 10 July 2006 the court refused to do so. The court referred to the legal-aid lawyer's refusal of 11 May 2006.\n\n10.  Neither in the letter accompanying the lawyer's refusal of 11 May 2005 nor in its later letters the court informed the applicant of his further procedural rights.\n\nB. Other proceedings\n\n11.  On an unknown date in 2005 the applicant instituted criminal proceedings alleging that correspondence sent by him to courts, prosecutors and other authorities had been destroyed by prison officers. On 22 August 2005 the Kłodzko District Prosecutor refused to institute proceedings in the case. On 30 November 2005 the Kłodzko District Court upheld the decision of the Kłodzko District Prosecutor.\n\n12.  On an unknown date in 2006 the applicant, who was serving a prison sentence, filed a request for temporary leave. On 6 July 2006 the Gdańsk District Court dismissed his request. On 15 September 2006 the  dismissed his appeal as unfounded.\n\n13.  On a later date in 2006 the applicant requested the penitentiary judge to grant him another temporary leave. On 9 October 2006 the judge refused his request. On 21 December 2006 the  dismissed his appeal as unfounded.\n\n14.  In 2005 the applicant requested that criminal proceedings be instituted against a judge examining his case, alleging that he had destroyed certain documents from his case file. On 6 December 2006 the Kłodzko District Prosecutor refused the request. On 11 February 2008 the Nysa District Court upheld this decision.\n\n15.  In criminal proceedings concerning an assault against the applicant by his fellow-prisoner, on 29 June 2007 the Kwidzyn District Court convicted the accused and sentenced him to 10 months' imprisonment. The court also obliged him to pay the applicant damages in the amount of PLN 8,000.\n\nII.  RELEVANT DOMESTIC LAW AND PRACTICE\n\n16.   The relevant domestic law and practice concerning the procedure for lodging cassation appeals with the Supreme Court against judgments of the appellate courts are stated in the Court's judgments in the cases of Kulikowski v. Poland, no. 18353/03, §§ 19-27, ECHR 2009... (extracts) and Antonicelli v. Poland, no. 2815/05, §§ 14-22, 19 May 2009).\n\n17.  In particular, on 26 February 2002 the Supreme Court examined a situation where a legal-aid lawyer had refused to represent a convicted person for the purposes of cassation proceedings, finding that a cassation appeal would offer no prospects of success. It held that in such a situation the appellate court was obliged to instruct the defendant that the timelimit for lodging a cassation appeal started to run only on the date on which the defendant was served with the lawyer's refusal and not on the earlier date when the judgment of the appellate court was served on the defendant himself. It stated that it was not open to doubt that a defendant faced with a legal-aid lawyer's refusal had the right to take other measures to seek legal assistance necessary for effective lodging of a cassation appeal (III KZ 87/01). The Supreme Court reiterated its position in a decision of 6 May 2008 and in a number of similar decisions given in 2008. It observed that there had been certain discrepancies in the judicial practice as to the manner in which the time-limit in such situations was calculated, but the strand of the case-law launched by the decision given in February 2002 was both dominant and correct, and also accepted by doctrine as providing to defendants adequate procedural guarantees of access to the Supreme Court within a reasonable time frame (II KZ 16/08).\n\n18.  In its decision of 25 March 1998 the Supreme Court stated that the refusal of a legal-aid lawyer to lodge a cassation appeal did not constitute a valid ground for granting retrospective leave to lodge such an appeal by another lawyer out of time (V KZ 12/98). It confirmed this ruling in a further decision of 1 December 1999. The Supreme Court observed that the court could only assign a new legal-aid lawyer to the case if it were shown that the first lawyer had been negligent in his or her task of assessing whether a cassation appeal had any prospects of success. If this were not the case, a court was not obliged to assign a new legal-aid lawyer to represent the convicted person and its refusal was not subject to appeal (III KZ 139/99). The Supreme Court reiterated its position in a number of other decisions (e.g. II KZ 11/02, II KZ 36/02).\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 6 § 1 IN CONJUNCTION WITH ARTICLE 6 § 3 (c ) OF THE CONVENTION\n\n19.  The applicant complained that as a result of the legal-aid lawyer's refusal to draft a cassation appeal he had been denied effective access to the Supreme Court. He relied on Article 6 § 1 taken together with Article 6 § 3 (c) of the Convention. Those provisions, in so far as relevant, read:\n\n“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”\n\n3.  Everyone charged with a criminal offence has the following minimum rights: ...\n\n(c)  to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;”\n\nA. Admissibility\n\n20.   The Government argued that the applicant had failed to avail himself of the applicable domestic remedies. He should have hired a lawyer of his own choice with a view to submitting a cassation appeal on his behalf. Had a relevant time-limit already expired by the time when a privately hired lawyer lodged such an appeal, it would have been open to the applicant to request a retrospective leave to appeal out of time.\n\n21.  The applicant disagreed.\n\n22.  The Court notes that legal representation was mandatory for the purposes of preparing a cassation appeal. However, in the applicant's case the courts, by granting the applicant legal aid, acknowledged his lack of financial resources. In such circumstances, the Court considers that the applicant should not therefore have been required to embark on further attempts to obtain legal assistance with a view to lodging a cassation appeal for the purposes of exhaustion of domestic remedies (see Seliwiak v. Poland, no. 3818/04, § 47, 21 July 2009). In so far as the Government argued that a privately hired lawyer could have subsequently sought retrospective leave to appeal out of time, the Court considers that the Government's preliminary objection under this head is closely linked to the merits of the applicant's complaint. Accordingly, it decides to join its examination to the merits of the case.\n\n23.  The Court notes that this complaint is not manifestly illfounded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB. Merits\n\n24.  The applicant submitted that he had been granted legal aid for the purposes of lodging a cassation appeal. However, he had been ultimately deprived of access to the Supreme Court because that lawyer refused to prepare a cassation appeal in his case and he was left in uncertainty as to his legal position.\n\nThe Government submitted the legal-aid lawyer was independent in the exercise of her obligations.  of legal profession was crucial for effective functioning of fair administration of justice. It was not the State's role to oblige a lawyer, whether appointed under legal-aid scheme or not, to lodge a remedy contrary to his or her opinion regarding the prospects of success for such a remedy. The responsibility of the State was to ensure a requisite balance between, on the one hand, effective enjoyment of access to justice and the independence of the legal profession on the other. They referred to the Court's judgment in the case of Siałkowska v. Poland, no. 8932/05, § 112, 22 March 2007).\n\nIn the present case the legalaid lawyer had acted with requisite diligence. She had prepared her opinion together with grounds for it within a short time. The courts examined the applicant's requests to be granted legal assistance under legalaid scheme twice and found nothing to reproach the legal-aid lawyer for.\n\n25.  The Court first notes that the guarantees in paragraph 3 of Article 6 are specific aspects of the right to a fair trial in criminal proceedings as set forth in paragraph 1 of the same Article. Accordingly, the applicant's complaint will be examined under these provisions taken together (see, among other authorities, Benham v. the United Kingdom, judgment of 10 June 1996, Reports of Judgments and Decisions 1996-III, p. 755, § 52, and Bobek v. Poland, no. 68761/01, § 55, 17 July 2007).\n\nFurthermore, the Court has already had occasion to set out at length the relevant principles derived from its case-law in this area (Kulikowski v. Poland, no. 18353/03, ECHR 2009... (extracts); Antonicelli v. Poland, no. 2815/05, 19 May 2009; Arciński v. Poland, no. 41373/04, 15 September 2009). It adopts those principles for the purposes of the instant case.\n\n26.  In the present case the court informed the applicant about the legal-aid lawyer's refusal by a letter of unknown date. In its further letters the court refused to appoint a new lawyer under legalaid scheme. The court referred to the legalaid lawyer's refusal of 11 May 2006.\n\nThe court's letters did not contain any information concerning the applicant's procedural rights. In particular, the court did not inform him that under the case-law of the Supreme Court, adopted in 2002, the time-limit for lodging a cassation appeal started to run only on the date on which the defendant was served with the legal-aid lawyer's refusal. The failure to clarify the applicant's legal situation, given that at that time he was not represented by a lawyer, meant that he had no way of knowing when the time-limit for lodging a cassation appeal started to run and what steps, if any, he had at his disposal to pursue the cassation proceedings, for instance by trying to find another lawyer who might be persuaded to file a cassation appeal on his behalf. In so far as the Government argued that the applicant should have hired a lawyer and that the lawyer could have requested retrospective leave to appeal out of time, the Court notes that the applicant had no way of knowing when the time-limit started to run.\n\nThe Court observes that the procedural framework governing the making available of legal aid for a cassation appeal in criminal cases, as described above, is within the control of the appellate courts. When notified of a legalaid lawyer's refusal to prepare a cassation appeal, it is entirely appropriate and consistent with fairness requirements, that an appeal court indicate to an appellant what further procedural options are available to him or her (see Kulikowski v. Poland, cited above, § 70; Antonicelli v. Poland, cited above, § 45; Jan Zawadzki v. Poland, no. 648/02, § 16, 6 July 2010). However, in the instant case this requirement was not complied with, with the result that the applicant's right of access to the Supreme Court was not secured in a “concrete and effective manner”.\n\n27.  Accordingly, having regard to the above deficiency, there has been a violation of Article 6 § 1 in conjunction with Article 6 § 3 (c) of the Convention.\n\nII.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION\n\n28.  The applicant complained under Article 6 of the Convention about the outcome and unfairness of all sets of proceedings, summarised in paragraphs 10 – 14 above.\n\n29.  However, even assuming that this provision of the Convention is applicable to the proceedings concerned, the Court reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I, with further references).\n\n30.  In the present case, even assuming that the requirement of exhaustion of domestic remedies was satisfied, the Court notes that the applicant did not allege any particular failure to respect his right to a fair hearing on the part of the relevant courts. Indeed, his complaints are limited to a challenge to the result of the proceedings. Assessing the circumstances of the case as a whole, the Court finds no indication that the impugned proceedings were conducted unfairly.\n\n31.  It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.\n\nIII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n32.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\n33.  The applicant requested the Court to award him just satisfaction and requested the Court to quantify the proper amount. He did not make any claim for reimbursement of costs and expenses.\n\n34.  The Court accepts that the applicant has suffered non-pecuniary damage which is not sufficiently compensated by the finding of a violation. Making its assessment on an equitable basis and having regard to the circumstances of the case, the Court awards the applicant EUR 1,000 under this head.\n\n35.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Joins to the merits the Government's preliminary objection based on non-exhaustion of domestic remedies;\n\n2.  Declares admissible the applicant's complaint concerning lack of access to a court and the remainder of the application inadmissible;\n\n3.  Holds that there has been a violation of Article 6 § 1 of the Convention in conjunction with Article 6 § 3 (c);\n\n4.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months, EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Polish zlotys at the rate applicable at the date of settlement;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.\n\nDone in English, and notified in writing on 5 October 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_7","text":"PROCEDURE\n\n1.  The case originated in an application (no. 36755/06) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Moldovan national, Ms Ecaterina Fomin (“the applicant”), on 17 August 2006.\n\n2.  The applicant was represented by Mr V. Zeamă from “Lawyers for Human Rights”, a non-governmental organisation based in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu.\n\n3.  The applicant alleged, in particular, that the courts had failed to give sufficient reasons for the judgments convicting her of an administrative offence and had imposed a penalty on her despite the expiry of the statutory time-limit for doing so.\n\n4.  On 9 December 2008 the Court decided to communicate the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (former Article 29 § 3).\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n5.  The applicant was born in 1959 and lives in Soroca.\n\n6.  The applicant works as a technician for a State telephone company. On 9 June 2005 she called R. over the phone and they arranged for the applicant to visit R. at her house situated on Viilor str. no. 15/36 in Soroca in order to verify the functioning of the phone line installed there. Some twenty minutes later when she came to R.’s home, she was met by R. who, according to the applicant, started shouting at her and calling her names.\n\n7.  The applicant called the police from her mobile phone, but was told that she needed to go to the police station in person in order to make a written complaint. She decided to go back to her workplace and told her superior about the incident, but was advised to forget about it. She was told that R. had already called her superior to complain about an alleged assault on her by the applicant.\n\n7.  The applicant called the police from her mobile phone, but was told that she needed to go to the police station in person in order to make a written complaint. She decided to go back to her workplace and told her superior about the incident, but was advised to forget about it. She was told that R. had already called her superior to complain about an alleged assault on her by the applicant.\n\n8.  R. complained to the police that the applicant had assaulted her on 9 June 2005. According to R.’s complaint, the applicant had entered her apartment situated on Viilor str. 15 apartment 36 without authorisation and started ripping the phone lines off the wall and insulting her with offensive language. The applicant had then gone to the cellar and destroyed the phone socket and phone lines. She had been extremely irritated and one could smell alcohol on her breath. Finally, she had hit R. in the face and left. R.’s husband wrote a similar complaint, also noting Viilor str. 15 as being the address of the apartment where the incident had taken place.\n\n9.  On 11 July 2005 the local police filed a report confirming that the applicant had committed an administrative offence by insulting R. The report attested that on 9 June 2005 the applicant had entered R.’s apartment without authorisation, insulted her with offensive language and then hit her in the face, causing her physical harm.\n\n10.  On 26 July 2005 the Soroca District Court found the applicant guilty of the administrative offence of hooliganism.\n\n11.  On an unknown date the Bălţi Court of Appeal sent the case for a rehearing.\n\n11.  On an unknown date the Bălţi Court of Appeal sent the case for a rehearing.\n\n12.  The applicant submitted statements from five companies she had visited on 9 June 2005, all confirming that she had been polite and not under the influence of alcohol that day, which contradicted R.’s statements concerning the applicant’s aggressiveness and alcohol consumption. She also submitted a certificate confirming that no repair of the phone lines at R.’s home or office had been asked for on 9 June 2005 or thereafter, and evidence that after her alleged visit phone calls had been made from both phone lines. That proved, in the applicant’s opinion, that the statements in R.’s complaint concerning the ripping out of the phone line and phone socket had been untrue. She submitted further evidence proving that her company had a contract to service the phone line installed at R.’s place, that she had been asked to verify a number of phone lines on 9 June 2005, including that at R.’s place, and evidence of the applicant’s call to the police on 9 June 2005.\n\n12.  The applicant submitted statements from five companies she had visited on 9 June 2005, all confirming that she had been polite and not under the influence of alcohol that day, which contradicted R.’s statements concerning the applicant’s aggressiveness and alcohol consumption. She also submitted a certificate confirming that no repair of the phone lines at R.’s home or office had been asked for on 9 June 2005 or thereafter, and evidence that after her alleged visit phone calls had been made from both phone lines. That proved, in the applicant’s opinion, that the statements in R.’s complaint concerning the ripping out of the phone line and phone socket had been untrue. She submitted further evidence proving that her company had a contract to service the phone line installed at R.’s place, that she had been asked to verify a number of phone lines on 9 June 2005, including that at R.’s place, and evidence of the applicant’s call to the police on 9 June 2005.\n\n13.  On 19 December 2005 the Soroca District Court found the applicant guilty of the administrative offence of insult (injuria). The decision was an almost word-for-word copy of that adopted on 26 July 2005 and reads as follows in its entirety:\n\n“Decision concerning the administrative offence under Article 471-1 of the Code of Administrative Offences, 19 December 2005\n\nJudge [V. N.] of the Soroca District Court, having examined the case concerning the administrative offence regarding [the applicant, her address and workplace], has found:\n\nOn 9 June 2005 at 12.20 p.m. [the applicant] entered [R.’s] apartment situated on Mateevici str. 1,  without authorisation and started shouting and calling her names, thus denigrating [R.’s] honour and dignity, therefore committing the administrative offence provided for in Article 473 (1) of the Code of Administrative Offences.\n\nThe allegation that [the applicant] hit the victim has not been confirmed.\n\nIn view of the above, relying on [relevant procedural provisions of the Code of Administrative Offences], the court decides:\n\nTo impose a fine on [the applicant] in the amount of ten conventional units amounting to 200 [Moldovan] lei.\n\nThis decision may be appealed against within 10 days to the Bălţi Court of Appeal”.\n\nThis decision may be appealed against within 10 days to the Bălţi Court of Appeal”.\n\n14.  In her appeal in cassation the applicant submitted that there was no evidence whatsoever that she had ever been in R.’s apartment at Mateevici str. or shouted at her. The court had not given any ground for the decision such as a document, witness statement or anything other than the statements by R. and her husband. Moreover, she had visited R. at her address at Viilor str. no. 15 and not at Mateevici str. no. 1 as stated in the decision. Finally, the court had disregarded Article 37 of the Code of Administrative Offences (see below), according to which no administrative penalty could be imposed after three months from the date on which the offence had been committed.\n\n14.  In her appeal in cassation the applicant submitted that there was no evidence whatsoever that she had ever been in R.’s apartment at Mateevici str. or shouted at her. The court had not given any ground for the decision such as a document, witness statement or anything other than the statements by R. and her husband. Moreover, she had visited R. at her address at Viilor str. no. 15 and not at Mateevici str. no. 1 as stated in the decision. Finally, the court had disregarded Article 37 of the Code of Administrative Offences (see below), according to which no administrative penalty could be imposed after three months from the date on which the offence had been committed.\n\n15.  On 8 February 2006 the Bălţi Court of Appeal upheld the lower court’s decision. The court’s decision started by stating that:\n\n“By its decision [of 19 December 2005] the [lower court] imposed an administrative penalty on [the applicant] because on 9 June 2005 she insulted [R.] in her apartment situated on Mateevici str. in Soroca, thus denigrating [R.’s] honour and dignity.”\n\nIt then summarised the applicant’s appeal. The court further found that the lower court had properly applied the procedural law by summoning the parties and explaining their rights to them and by verifying all the circumstances of the case. It correctly dismissed the part of the complaint that the applicant had hit R., since during the court hearing R. herself had denied having been hit. The court reduced the fine to 136 Moldovan lei (8.80 euros (EUR)), using a slightly different manner of calculating the amount of the fine. That decision was final. Its text was accessible at the Soroca District Court, where it arrived on 20 February 2006.\n\nII.  RELEVANT DOMESTIC LAW\n\nII.  RELEVANT DOMESTIC LAW\n\n16.  The relevant provisions of the Code of Administrative Offences (“the CAO”) read as follows:\n\n“Section 47/3. Insult\n\nInsult, that is, the intentional denigration of honour and dignity of a person through an action, verbally or in writing, shall be punished by a fine of seven to fifteen conventional units or by administrative detention of up to fifteen days.\n\nSection 266. Circumstances to be clarified during the examination of the case concerning an administrative offence.\n\nThe authority (official) shall clarify during the examination of the case concerning an administrative offence: whether an administrative offence has been committed; whether the person is guilty of having committed it; whether (s)he should be subjected to administrative responsibility; whether there are circumstances attenuating or aggravating responsibility; whether pecuniary damage was caused; whether there are grounds for forwarding the materials concerning the administrative offence for examination by a public association, the staff [of his/her employer]; as well as other circumstances which are important for the examination of the case.”\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION\n\n17.  The applicant complained under Article 6 of the Convention that the courts had not given sufficient reasons for their decisions convicting her of an administrative offence. The relevant part of Article 6 reads as follows:\n\n“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”\n\nA.  As to the admissibility\n\n18.  The Government did not dispute the applicability of Article 6 to the present case. For its part, the Court recalls that it has already established that “in principle, the general character of the Code of Administrative Offenses (“the CAO”) and the purpose of the penalties, which are both deterrent and punitive, suffice to show that for the purposes of Article 6 of the Convention the applicant was charged with a criminal offence” (Ziliberberg v. Moldova, no. 61821/00, § 33, 1 February 2005). It does not see any reason to depart from that finding in the present case. Accordingly, Article 6 was applicable to the applicant’s case under its criminal head.\n\n19.  The Court must further determine whether the applicant’s complaints are admissible under Article 35 of the Convention, as amended by Protocol No. 14 to the Convention which entered into force on 1 June 2010.\n\n20.  The Court notes in particular that in accordance with Article 35 § 3 b) in fine a case can be declared inadmissible only if it has been “duly considered by a domestic tribunal”. The Court finds that in the present case the answer to the question whether the case was duly considered by a domestic tribunal is closely related to the substance of the complaint under Article 6 of the Convention. It therefore joins the examination of this issue to the merits.\n\n21.  The Court notes moreover that the application is not manifestly illfounded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  As to the merits\n\n22.  The applicant considered that the courts had not given any details as to why they had accepted R.’s version of events and convicted the applicant, despite the evidence which she had adduced to challenge that version of events.\n\n23.  The Government considered that the courts had fully examined the case including all the evidence submitted by the applicant, as was clear from the minutes of the court hearings. The application was thus of a “fourth-instance” nature. They noted that the appellate court was not obliged by law to give reasons and could write a short version of its judgment.\n\n23.  The Government considered that the courts had fully examined the case including all the evidence submitted by the applicant, as was clear from the minutes of the court hearings. The application was thus of a “fourth-instance” nature. They noted that the appellate court was not obliged by law to give reasons and could write a short version of its judgment.\n\n24.  The Court reiterates that the effect of Article 6 § 1 is, inter alia, to place a “tribunal” under a duty to conduct a proper examination of the submissions, arguments and evidence, without prejudice to its assessment or to whether they are relevant for its decision, given that the Court is not called upon to examine whether arguments are adequately met (see Perez v. France [GC], no. 47287/99, § 80, ECHR 2004I, and Buzescu v. Romania, no. 61302/00, § 63, 24 May 2005). Nevertheless, although Article 6 § 1 obliges courts to give reasons for their decisions, it cannot be understood as requiring a detailed answer to every argument (see Van de Hurk v. the Netherlands, 19 April 1994, §§ 59 and 61, Series A no. 288, and Burg v.  (dec.), no. 34763/02, ECHR 2003-II). The extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case (see Ruiz Torija v. Spain and Hiro Balani v. Spain, 9 December 1994, Series A nos. 303-A and 303-B, § 29 and § 27 respectively; and Helle v. Finland, 19 December 1997, § 55, Reports of Judgments and Decisions 1997VIII).\n\n25.  In Ruiz Torija v. Spain (cited above, §§ 29-30) the Court found that the failure of the domestic court to deal with the applicant’s contention that the court action against her had been time-barred amounted to a violation of Article 6 of the Convention. Similar failures to give sufficient reasons resulted in findings of violations of Article 6 of the Convention in Hiro Balani (cited above, §§ 27-28); Suominen v. Finland, no. 37801/97, §§ 3438, 1 July 2003; Salov v. Ukraine, no. 65518/01, § 92, ECHR 2005VIII (extracts); Popov v. Moldova (no. 2), no. 19960/04, §§ 4954, 6 December 2005; and Melnic v. Moldova, no. 6923/03, §§ 3944, 14 November 2006.\n\n26.  In the present case, the Court observes that the applicant was convicted of insulting R. in her apartment on 9 June 2005. It also notes that the judgment of the first-instance court started by stating, from the very beginning, that the applicant had committed the offence (see paragraph 13 above). No other reason was given either for finding the applicant guilty or for dismissing her arguments aimed at challenging R.’s version of events.\n\n27.  Similarly, while the Court of Appeal’s judgment was longer, it too started from the established fact of the applicant’s guilt and moved on to whether the lower court had observed procedure before dealing with the issue of the penalty imposed on the applicant (see paragraph 15 above).\n\n28.  Moreover, the Court finds it strange that the domestic courts did not comment in any manner on the fact that the complaint made by R. and her husband referred to one address (Viilor str.), while the applicant was convicted of insulting R. at another address (Mateevici str., see paragraphs 8, 13 and 15 above). This could not be seen as a simple typographical mistake, because the applicant had made an express argument in this regard to the Court of Appeal (see paragraph 14 above), which did not comment.\n\n29.  Finally, the applicant submitted a number of additional arguments, supported by evidence, aimed at undermining the veracity of the statements made by R. and her husband (see paragraph 12 above), including their admission to the courts that R. had not been hit by the applicant, contrary to their initial statements made to the police (see paragraphs 8 and 13 above). The domestic courts did not react in any manner to these arguments.\n\n30.  The Court recalls that it is primarily for the domestic courts to decide on the admissibility of evidence and on its relevance and weight to be given in reaching a judgment. However, in the present case the domestic courts have failed to even mention, let alone address, any of the applicant’s arguments challenging the veracity of the plaintiff’s statements, or to explain why they accepted the plaintiff’s version of events.\n\n31.  The Court reiterates its findings in the case of Suominen v. Finland, (cited above, § 37) as follows:\n\n“... a further function of a reasoned decision is to demonstrate to the parties that they have been heard. Moreover, a reasoned decision affords a party the possibility to appeal against it, as well as the possibility of having the decision reviewed by an appellate body. It is only by giving a reasoned decision that there can be public scrutiny of the administration of justice (c.f. Hirvisaari v. Finland, no. 49684/99, § 30, 27 September 2001, unreported).”\n\nThe right to be heard therefore includes not only the possibility to make submissions to the court, but also a corresponding duty of the court to show, in its reasoning, the reasons for which the relevant submissions were accepted or rejected. This duty is always subject to the proviso that a court may consider it unnecessary to respond to arguments which are clearly irrelevant, unsubstantiated, abusive or otherwise inadmissible owing to clear legal provisions or well-established judicial practice in respect of similar types of arguments.\n\n32.  The Court finds that the applicant’s arguments in the present case, such as those undermining R.’s credibility or those concerning the discrepancy between the address of the alleged wrongdoing as described in R.’s complaint and that mentioned in the courts’ decisions, were not clearly inadmissible and were supported by evidence. Moreover, the first-instance court’s failure to give any reasons for finding the applicant guilty of the offence hindered her from appealing in an effective way against her conviction.\n\n33.  Moreover, it is apparent that the domestic courts did not comply with their duty under Section 266 of the Code of Administrative Offences (see paragraph 16 above), notably by failing to verify whether an administrative offence had indeed been committed by the applicant.\n\n34.  In the light of the foregoing considerations, the Court considers that the applicant did not have the benefit of fair proceedings (see Suominen v. Finland, cited above, § 38 and Grădinar v. , no. 7170/02, § 117, 8 April 2008). Since the domestic courts have failed to deal in any manner with the applicant’s arguments and evidence or to specify the reasons underlying her conviction, the Court finds that the case has not been “duly considered by a domestic tribunal”. Accordingly, the Court concludes that the criterion introduced in Protocol No. 14 to the Convention is not applicable in the present case and that there has been a violation of Article 6 § 1.\n\nII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n35.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Pecuniary damage\n\n36.  The applicant claimed EUR 8.80 in compensation for the pecuniary damage caused to her, representing the amount of fine imposed on her.\n\n37.  The Government considered that this claim should be rejected since the applicant had been fined in strict conformity with the law.\n\n38.  The Court observes that it has found a violation of Article 6 § 1 of the Convention in respect of the domestic courts’ failure to give sufficient reasons for the applicant’s conviction. However, it will not speculate as to the outcome of the proceedings against the applicant, had the courts given reasons for their decisions. It therefore makes no award in this respect.\n\nB.  Non-pecuniary damage\n\n39.  The applicant claimed EUR 10,000 in compensation for the non-pecuniary damage caused to her as a result of the courts’ failure to give reasons for her conviction.\n\n40.  The Government considered that the applicant’s claim was exaggerated.\n\n41.  The Court considers that the applicant’s conviction without sufficiently specifying the underlying reasons has clearly caused the applicant non-pecuniary damage. In the Court’s view, this finding does not in itself afford sufficient just satisfaction in this respect (see, for instance, Suominen v. Finland, cited above, § 43). Judging on an equitable basis, the Court awards the applicant EUR 1,200 for non-pecuniary damage.\n\nC.  Costs and expenses\n\n42.  The applicant claimed EUR 1,100 for legal costs. She relied on a contract with her lawyer, as well as a detailed time-sheet of the hours which her lawyer had spent working on the case.\n\n43.  The Government considered that the applicant’s claim was exaggerated, and disputed the number of hours worked and the hourly rate charged.\n\n44.  The Court reiterates that costs and expenses will not be awarded under Article 41 unless it is established that they have been actually and necessarily incurred and are also reasonable as to quantum (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI).\n\n45.  In the present case, regard being had to the documents in its possession and the above criteria, the Court awards the applicant EUR 1,000 for costs and expenses.\n\nD.  Default interest\n\n46.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT\n\n1.  Declares by a majority the application admissible;\n\n2.  Holds by five votes to two that there has been a violation of Article 6 § 1 of the Convention;\n\n3.  Holds by five votes to two\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Moldovan lei at the rate applicable at the date of settlement:\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n4.  Dismisses unanimously the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 11 October 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.\n\nIn accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge López Guerra joined by Judge Gyulumyan is annexed to this judgment.\n\nThe ruling given by the Section in the present case refers to a fine imposed by a Moldovan court amounting to a total of 8.80 euros. That fine was the result of domestic proceedings involving two levels of jurisdiction and four court rulings by the Soroca District Court on 26 July 2005; the Bălţi Court of Appeal on an unknown date (paragraph 11); the Soroca District Court again, on 19 December 2005; and finally by the Bălţi Court of Appeal again, on 8 February 2006.\n\nTo address the merits, given the nature of the proceedings, which dealt with a verbal dispute between the applicant and another person, the insignificant amount of the penalty imposed, the fact that the case was heard four times by domestic courts and the handling of the case by those courts as described in the Section judgment, I cannot find any violation of Article 6 § 1 of the Convention. Concerning the alleged lack of reasoning in the domestic judicial rulings, as the Section’s judgment points out (paragraph 25), Article 6 § 1 does not require the courts to answer the parties’ arguments in any specific detail. Indeed, cases such as the present one dealing with minor administrative offences can certainly be adequately adjudicated in oral proceedings, hearing the parties’ claims, stating the facts as found, deciding the case and citing the applicable norms in a summary judgment. This was the procedure followed by the Soroca District Court. Moreover, the Bălţi Court of Appeal subsequently delivered a longer judgment, which provided an analysis of the applicant’s complaint (paragraph 15).\n\nThe present dissent refers, therefore, to the Section’s ruling on the merits of this case. But I also strongly question whether the Court should have ruled on the merits in the first place. The Section posed the question as to whether the applicant’s complaints were inadmissible under Article 35 § 3 (b) of the Convention concerning the absence of any significant disadvantage to the applicant. The Section was certainly justified in posing that question in view of the reduced amount of the fine imposed, as well as the fact that the issue raised by the applicant has been amply dealt with by the Court. But the Section decided in favour of admission because it concluded that the question as to whether the case had been duly considered by a domestic tribunal (provided for under Article 35 § 3 (b) of the Convention) was closely related to the applicant’s complaint under Article 6. In my opinion, this approach, which equates an examination of the existence of due consideration by a domestic tribunal with the examination of the Article 6 requisites for a fair trial, is contrary to the very terms of Article 35 § 3 (b). In accordance with the Court’s case-law in Holub v. the  ((dec.), no. 24880/05, 14 December 2010), the requirement of having been “duly considered” should not be interpreted as strictly as the requirements of a fair trial. Thus the Section’s interpretation voids the content of Article 35 § 3 (b), which represents a reflection of the principle of subsidiarity, and the guarantee that the Court shall examine any complaint brought before it which has not been duly considered by a domestic tribunal. Therefore, it would have been preferable to have declared this case inadmissible by virtue of Article 35 § 3 (b).\n\nThe present dissent refers, therefore, to the Section’s ruling on the merits of this case. But I also strongly question whether the Court should have ruled on the merits in the first place. The Section posed the question as to whether the applicant’s complaints were inadmissible under Article 35 § 3 (b) of the Convention concerning the absence of any significant disadvantage to the applicant. The Section was certainly justified in posing that question in view of the reduced amount of the fine imposed, as well as the fact that the issue raised by the applicant has been amply dealt with by the Court. But the Section decided in favour of admission because it concluded that the question as to whether the case had been duly considered by a domestic tribunal (provided for under Article 35 § 3 (b) of the Convention) was closely related to the applicant’s complaint under Article 6. In my opinion, this approach, which equates an examination of the existence of due consideration by a domestic tribunal with the examination of the Article 6 requisites for a fair trial, is contrary to the very terms of Article 35 § 3 (b). In accordance with the Court’s case-law in Holub v. the  ((dec.), no. 24880/05, 14 December 2010), the requirement of having been “duly considered” should not be interpreted as strictly as the requirements of a fair trial. Thus the Section’s interpretation voids the content of Article 35 § 3 (b), which represents a reflection of the principle of subsidiarity, and the guarantee that the Court shall examine any complaint brought before it which has not been duly considered by a domestic tribunal. Therefore, it would have been preferable to have declared this case inadmissible by virtue of Article 35 § 3 (b).","title":""}
{"_id":"passage_867","text":"SUBJECT MATTER OF THE CASE\n\n1.  The present case concerns the duration of the detention on remand of the first applicant, Mr I. Slavkov. It also concerns the freezing of the three applicants’ assets with a view to their prospective forfeiture as proceeds of crime.\n\n1.  The present case concerns the duration of the detention on remand of the first applicant, Mr I. Slavkov. It also concerns the freezing of the three applicants’ assets with a view to their prospective forfeiture as proceeds of crime.\n\n2.  Mr Slavkov was arrested on 20 October 2008 upon charges of participation in an organised criminal group created for the commission of money laundering, pimping, human trafficking and drug trafficking. He remained in detention until 11 July 2012 when he was released on bail; by that time the criminal proceedings against his group were pending before the first-instance Varna Regional Court. During the period of his detention the first applicant submitted twenty-two requests to be released, which were dismissed by the Varna Regional Court and the Varna Court of Appeal. On many occasions the domestic courts referred to the gravity of the charges against the applicant, the fact that his criminal group had been well-structured and armed and had functioned for some time before being dismantled, his leading position in it and his having “authority” in criminal circles; all these elements were seen as justifying a risk of the applicant reoffending, absconding or intimidating witnesses. The first applicant’s “aggressiveness” in the courtroom was also seen as an indication that he might reoffend or try to tamper with evidence. The domestic courts pointed out that the criminal proceedings were complex, that the hearings were being held at regular intervals, and that substantial delays had been caused by the defence.\n\n2.  Mr Slavkov was arrested on 20 October 2008 upon charges of participation in an organised criminal group created for the commission of money laundering, pimping, human trafficking and drug trafficking. He remained in detention until 11 July 2012 when he was released on bail; by that time the criminal proceedings against his group were pending before the first-instance Varna Regional Court. During the period of his detention the first applicant submitted twenty-two requests to be released, which were dismissed by the Varna Regional Court and the Varna Court of Appeal. On many occasions the domestic courts referred to the gravity of the charges against the applicant, the fact that his criminal group had been well-structured and armed and had functioned for some time before being dismantled, his leading position in it and his having “authority” in criminal circles; all these elements were seen as justifying a risk of the applicant reoffending, absconding or intimidating witnesses. The first applicant’s “aggressiveness” in the courtroom was also seen as an indication that he might reoffend or try to tamper with evidence. The domestic courts pointed out that the criminal proceedings were complex, that the hearings were being held at regular intervals, and that substantial delays had been caused by the defence.\n\n3.  In a judgment of 15 January 2013 the Varna Regional Court convicted the first applicant and his co-accused; its finding was that their criminal group had operated between 1996 and 2008. The applicant was sentenced to ten years’ imprisonment. However, the conviction and sentence were quashed by the Supreme Court of Cassation and the proceedings restarted from first instance, where they were still pending at the time of the latest communication from the parties in May 2023.\n\n3.  In a judgment of 15 January 2013 the Varna Regional Court convicted the first applicant and his co-accused; its finding was that their criminal group had operated between 1996 and 2008. The applicant was sentenced to ten years’ imprisonment. However, the conviction and sentence were quashed by the Supreme Court of Cassation and the proceedings restarted from first instance, where they were still pending at the time of the latest communication from the parties in May 2023.\n\n4.  In the meantime, the Commission for Uncovering Proceeds of Crime (hereinafter “the Commission”) opened proceedings and in December 2008 applied for the freezing of assets of the three applicants – Mr Slavkov, his wife and a company controlled by him (see the appended list), with a view to their prospective forfeiture as proceeds of crime. While the Commission could only apply for actual forfeiture after the close of the criminal proceedings, and if the first applicant was convicted, its preliminary investigation already showed that during the period under examination, between 1997 and 2008, Mr Slavkov and his wife had received lawful income equivalent to about 1,517 minimum monthly salaries (on the national courts’ use of such equivalents in similar situation, see Todorov and Others v. Bulgaria, nos. 50705/11 and 6 others, § 109, 13 July 2021), while the three applicants’ expenses had equalled 6,892 minimum monthly salaries. The Commission was thus of the view that it could be presumed that the assets owned by the applicants at that time, namely two flats in Varna, several cars and shares in several companies, were the proceeds of crime.\n\n4.  In the meantime, the Commission for Uncovering Proceeds of Crime (hereinafter “the Commission”) opened proceedings and in December 2008 applied for the freezing of assets of the three applicants – Mr Slavkov, his wife and a company controlled by him (see the appended list), with a view to their prospective forfeiture as proceeds of crime. While the Commission could only apply for actual forfeiture after the close of the criminal proceedings, and if the first applicant was convicted, its preliminary investigation already showed that during the period under examination, between 1997 and 2008, Mr Slavkov and his wife had received lawful income equivalent to about 1,517 minimum monthly salaries (on the national courts’ use of such equivalents in similar situation, see Todorov and Others v. Bulgaria, nos. 50705/11 and 6 others, § 109, 13 July 2021), while the three applicants’ expenses had equalled 6,892 minimum monthly salaries. The Commission was thus of the view that it could be presumed that the assets owned by the applicants at that time, namely two flats in Varna, several cars and shares in several companies, were the proceeds of crime.\n\n5.  In a decision of 13 January 2010 the Varna Court of Appeal froze those assets, save for a flat which was not subject to the freezing request. Injunctions were also imposed on bank accounts of the applicants in which, according to the Government, there were no funds.\n\n5.  In a decision of 13 January 2010 the Varna Court of Appeal froze those assets, save for a flat which was not subject to the freezing request. Injunctions were also imposed on bank accounts of the applicants in which, according to the Government, there were no funds.\n\n6.  Subsequently the applicants applied for the unfreezing of their assets, but their application was dismissed in a final decision of the Varna Court of Appeal of 1 November 2012. The domestic courts held that the continuing criminal proceedings against the first applicant justified the validity of the contested measures, and that at that stage it was impossible to assess the wellfoundedness of the prospective forfeiture application.\n\n6.  Subsequently the applicants applied for the unfreezing of their assets, but their application was dismissed in a final decision of the Varna Court of Appeal of 1 November 2012. The domestic courts held that the continuing criminal proceedings against the first applicant justified the validity of the contested measures, and that at that stage it was impossible to assess the wellfoundedness of the prospective forfeiture application.\n\n7.  The applicants’ assets described above remained frozen at the time of the latest communication from the parties in May 2023.\n\n7.  The applicants’ assets described above remained frozen at the time of the latest communication from the parties in May 2023.\n\n8.  Mr Slavkov complained under Article 5 § 3 of the Convention of the length of his detention on remand, and under Article 5 § 5 of the lack of an enforceable right to compensation in that regard. The three applicants complained under Article 1 of Protocol No. 1 of the freezing of their assets; they considered this measure unjustified and excessively lengthy.\n\nTHE COURT’S ASSESSMENT\n\nALLEGED VIOLATIONs OF ARTICLE 5 §§ 3 and 5 OF THE CONVENTION\n\nALLEGED VIOLATIONs OF ARTICLE 5 §§ 3 and 5 OF THE CONVENTION\n\n9.  The Government argued that Mr Slavkov could have claimed compensation under section 2(1)(2) of the State and Municipalities Liability for Damage Act, which provides for liability of the authorities for breaches of Article 5 of the Convention. However, the remedy at issue was introduced in December 2012 (see, for more details, Stefanov v. Bulgaria (dec.), no. 51127/18, § 48, 8 September 2020), while the applicant’s detention ended on 11 July 2012 (see paragraph 2 above), and the Court has already found that section 2(1)(2) has not been shown to apply to facts having occurred prior to its entry into force (see, for example, Kiril Andreev v. Bulgaria, no. 79828/12, §§ 31-41, 28 January 2016). In the present case the Government submitted a domestic judgment, given in 2015, where the provision at issue had been applied to facts having occurred in 2010, but one such decision is not sufficient to disprove the Court’s previous findings.\n\n9.  The Government argued that Mr Slavkov could have claimed compensation under section 2(1)(2) of the State and Municipalities Liability for Damage Act, which provides for liability of the authorities for breaches of Article 5 of the Convention. However, the remedy at issue was introduced in December 2012 (see, for more details, Stefanov v. Bulgaria (dec.), no. 51127/18, § 48, 8 September 2020), while the applicant’s detention ended on 11 July 2012 (see paragraph 2 above), and the Court has already found that section 2(1)(2) has not been shown to apply to facts having occurred prior to its entry into force (see, for example, Kiril Andreev v. Bulgaria, no. 79828/12, §§ 31-41, 28 January 2016). In the present case the Government submitted a domestic judgment, given in 2015, where the provision at issue had been applied to facts having occurred in 2010, but one such decision is not sufficient to disprove the Court’s previous findings.\n\n10.  The Government argued in addition that, even if the State and Municipalities Liability for Damage Act had been inapplicable, the applicant could have sought damage under the general law of tort. Similarly, he could have had recourse to a remedy aimed at providing compensation for excessive length of judicial proceedings. Still, the Government have submitted no domestic practice showing that these remedies could have been effective with regard to the complaints under examination.\n\n11.  Lastly, the Government pointed out that Mr Slavkov had not appealed against all refusals of the Varna Regional Court to order his release (see paragraph 2 above). He did however appeal against the majority of these refusals, and on each occasion they were upheld by the Varna Court of Appeal. The Court cannot therefore conclude that the applicant failed to make adequate use of the possibility under domestic law to seek release (see, for similar considerations, Bielski v. Poland and Germany, no. 18120/03, § 33, 3 May 2011).\n\n12.  In view of the above the Court dismisses the Government’s inadmissibility plea based on non-exhaustion of domestic remedies. It notes moreover that the complaints under examination are not manifestly illfounded within the meaning of Article 35 § 3 (a) of the Convention, or inadmissible on any other ground. They must therefore be declared admissible.\n\n13.  On the merits, the Government argued that the length of the first applicant’s detention had been reasonable, in view of the serious offence he had been charged with and “the undeniable factual and legal complexity of the case”. The applicant reiterated his complaints.\n\n14.  The general principles concerning the right to “trial within a reasonable time” or to release pending trial, as guaranteed by Article 5 § 3 of the Convention, have been summarized in Buzadji v. the Republic of Moldova ([GC], no. 23755/07, §§ 87-91, 5 July 2016).\n\n15.  The applicant’s detention on remand started on 20 October 2008 and lasted until 11 July 2012 when he was released on bail (see paragraph 2 above). Its duration was thus three years, eight months and twenty-one days.\n\n16.  The domestic courts justified the applicant’s continued detention on a number of grounds, as discussed in paragraph 2 above. While these grounds were indisputably “relevant”, and the Court sees no reason to doubt that the criminal case against the applicant was complex, it is not satisfied that the grounds relied on were “sufficient” to justify such lengthy detention on remand, in circumstances which, while apparently difficult, were not exceptional.\n\n17.  Having regard to its case-law on the subject, the Court concludes that the length of the first applicant’s detention on remand was excessive. There was therefore a violation of Article 5 § 3 of the Convention.\n\n18.  As to the first applicant’s complaint under Article 5 § 5, the Court refers to its finding that he did not have at his disposal an effective remedy to seek compensation for the violation of his rights under Article 5 § 3 (see Stanev v. Bulgaria [GC], no. 36760/06, § 184, ECHR 2012; and paragraphs 9-10 above). It follows that there has been a violation of Article 5 § 5 of the Convention as well.\n\nALLEGED VIOLATION of article 1 of protocol no. 1\n\n19.  The three applicants complained of the freezing of their assets upon a request by the Commission (see paragraph 8 above).\n\n20.  Those measures were imposed in 2010 (see paragraph 5 above), that is more than six months before the lodging of the present application on 4 June 2012. Any complaint related to the initial decision of the Varna Court of Appeal is therefore time-barred, under Article 35 § 1 of the Convention.\n\n21.  What the Court is competent to examine is the duration of the impugned measures – up to at least May 2023 – as well as the dismissal of the applicants’ request in 2012 to have these measures lifted (see paragraphs 6-7 above).\n\n22.  In previous cases before the Court where lengthy interlocutory measures gave rise to a violation of Article 1 of Protocol No. 1, the finding of a violation was based on an accumulation of factors. While the length of time during which the restrictions had remained in place was a crucial part of the Court’s assessment (see, for example, Uzan and Others v. Turkey, nos. 19620/05 and 3 others, §§ 207 and 212, 5 March 2019), the scope and nature of the restrictions and the availability or not of procedural guarantees were also relevant (see Shorazova v. Malta, no. 51853/19, § 113, 3 March 2022).\n\n23.  In the case at hand, the applicants’ assets were frozen with a view to their prospective forfeiture as proceeds of crime. The restrictions were ordered after the initiation of criminal proceedings against the first applicant (see paragraph 4 above). He is accused of participation in an organised criminal group created for the commission of money laundering, pimping, human trafficking and drug trafficking (see paragraph 2 above), that is an offence which clearly has the potential to yield financial gain.\n\n24.  The Commission found in its initial analysis that the expenditure of Mr Slavkov and his wife during the period under examination appeared to have substantially exceeded their income from lawful sources, and that this justified a preliminary conclusion that their assets could be the proceeds of crime (see paragraph 4 above). It was these assets which were subject to the interim measures (see paragraph 5 above); thus the scope of the measures at issue was not disproportionate vis-à-vis the prospective financial loss for the applicants in the event of a successful forfeiture claim (compare the situation in Karahasanoğlu v. Turkey, nos. 21392/08 and 2 others, § 153, 16 March 2021; contrast Džinić v. Croatia, no. 38359/13, §§ 73-80, 17 May 2016).\n\n25.  As stated by the Government and not disputed by the applicants, the first and second applicants could freely use and profit from their flat and car which are subject to injunctions. Accordingly, the interim measures complained of did not put at stake those two applicants’ living conditions (contrast Uzan and Others, cited above, § 212). Nor has it been claimed that the freezing of the third applicant’s cars has in any substantial manner affected its business activities (contrast JGK Statyba Ltd and Guselnikovas v. Lithuania, no. 3330/12, § 143, 5 November 2013), or that the freezing of the applicants’ shares in other companies affected the exercise of their membership rights or the companies’ functioning.\n\n26.  As to the refusal in 2012 to lift the impugned restrictions (see paragraph 6 above), once these measures were already ordered in 2010 – a decision which, as noted, the Court will not review – the Court does not find the approach of the domestic courts, namely their unwillingness to examine the well-foundedness of the Commission’s prospective forfeiture claim, inadequate or unreasonable. What was relevant at the time was that the pending criminal proceedings against the first applicant continued to justify the measures. After 2012 the applicants have not sought to have the measures lifted or modified, despite the fact that during these years the domestic practice on the forfeiture of proceeds of crime underwent important changes (see Todorov and Others, cited above, §§ 104107).\n\n27.  Consequently, for the considerations above the Court cannot conclude that the continued freezing of the applicants’ assets breached the requirements of Article 1 of Protocol No. 1.\n\n28.  It should also be noted that if the restrictions complained of turn out eventually to have been unjustified, namely if the proceedings against the first applicant do not result in an conviction, or a potential forfeiture claim is eventually rejected, the applicants will be, in principle, entitled to seek compensation at the domestic level (see Nedyalkov and Others v. Bulgaria (dec.), no. 663/11, §§ 91-100, 10 September 2013).\n\n29.  Accordingly, the complaint under examination is manifestly illfounded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.\n\nAPPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n30.  The Court found violations of the first applicant’s rights under Article 5 § 3 and Article 5 § 5 of the Convention. It will therefore only examine the claims related to these violations.\n\n31.  The first applicant claimed 448,900 euros (EUR) in non-pecuniary damage. The Government contested the claim. The Court, judging in equity, awards the applicant EUR 2,300 in non-pecuniary damage, plus any tax that may be chargeable to him.\n\n32.  As to costs and expenses, the three applicants claimed EUR 5,089 for their legal representation before the Court and for postage and translation. They submitted contracts and invoices. Having regard to the nature of the case, the documents in its possession, and the fact that it dismissed part of the application as inadmissible, the Court considers it reasonable to award the first applicant EUR 2,000 covering costs under all heads. To this should be added any tax that may be chargeable to the first applicant.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\nDeclares the complaints of the first applicant, Mr I. Slavkov, under Article 5 §§ 3 and 5 of the Convention admissible and the remainder of the application inadmissible;\n\nHolds that there has been a violation of Article 5 § 3 of the Convention;\n\nHolds that there has also been a violation of Article 5 § 5 of the Convention;\n\nHolds\n\nthat the respondent State is to pay Mr I. Slavkov, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:\n\nthat from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\nDismisses the remainder of the claims for just satisfaction.\n\nDone in English, and notified in writing on 17 October 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_904","text":"PROCEDURE\n\n1.  The case originated in an application (no. 52524/99) against the  lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Ms Barbara Falęcka (“the applicant”), on 8 July 1997.\n\n2.  The applicant was represented by Mr P. Sołhaj and Mr K. Tor, lawyers practising in . The Polish Government (“the Government”) were represented by their Agents, Mr K. Drzewicki and, subsequently, Ms. S. Jaczewska and Mr J. Wołąsiewicz, of the Ministry of Foreign Affairs.\n\n3.  On 4 March 2003 the Court decided to communicate the application. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time.\n\nTHE FACTS\n\n4.  The applicant was born in 1937 and lives in .\n\nA.  Facts prior to 1 May 1993\n\n5.  On 5 February 1987 the applicant lodged a claim for division of her matrimonial property with the Cracow District Court (Sąd Rejonowy).\n\n6.  The court held the first hearing on 15 July 1987.\n\n7.  Between 1987 and 1991 the court held 14 hearings (6 in 1987, 1 in 1988, 4 in 1989, 2 in 1990 and 1 in 1991).\n\nB.  Facts after 1 May 1993\n\n8.  On 16 November 1993 and 23 September 1994 the court held hearings.\n\n9.  On 5 June 1995 the court ordered that expert evidence be obtained. The expert opinion was delivered to the court on 11 January 1996.\n\n10.  On 25 August 1995, 17 April, 24 June and 23 September 1997 the court held hearings.\n\n11.  On an unspecified date in May 1998 the court decided to obtain fresh expert evidence. The expert submitted his report to the court on 26 June 1998.\n\n12.  On 31 August 1998 the court held a hearing.\n\n13.  On 29 December 1998 the court gave judgment.\n\n14.  During the proceedings the composition of the court changed 9 times.\n\n15.  The applicant several times complained to the President of the  about the slow conduct of the proceedings. In reply, the President admitted that the proceedings were indeed too long and informed the applicant that he would supervise their further conduct.\n\n16.  On an unspecified date in 1999 the applicant’s husband lodged an appeal against the first-instance judgment with the  (Sąd Okręgowy).\n\n17.  On 15 February 2000 the court dismissed the appeal.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION\n\n18.  The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, provided in Article 6 § 1 of the Convention. This provision which reads as follows:\n\n“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”\n\n19.  The Government contested that argument.\n\n20.  The period to be taken into consideration began only on 1 May 1993, when ’s declaration recognising the right of individual petition took effect. However, in assessing the reasonableness of the time that elapsed after that date, account must be taken of the state of proceedings at the time.\n\nThe period in question ended on 15 February 2000. It thus lasted approximately 13 years, of which 6 years, 9 months and 14 days fall within the Court’s jurisdiction ratione temporis.\n\nA.  Admissibility\n\n1.  Article 6 § 1\n\n21.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\n2.  Article 1 of Protocol No. 1\n\n22.  The applicant further complained in general terms that the length of the proceedings complained of had infringed her right to the peaceful enjoyment of possessions, as guaranteed by Article 1 of Protocol No. 1.\n\n23.  However, the Court considers that the material in its possession does not disclose any appearance of a violation of the applicant’s property rights.\n\nAccordingly, this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.\n\nB.  Merits\n\n24.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII, Humen v. Poland [GC], no. 26614/95, 15 October 1999, § 60).\n\n25.  The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above).\n\n26.  Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.\n\nThere has accordingly been a breach of Article 6 § 1.\n\nII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n27.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n28.  The applicant claimed 272,000 Polish zlotys (PLN) in respect of both pecuniary and non-pecuniary damage.\n\n29.  The Government contested these claims.\n\n30.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it considers that the applicant certainly suffered non-pecuniary damage, such as distress and frustration resulting from the excessive length of the proceedings. Accordingly, taking into account the circumstances of the case and making its assessment on an equitable basis, the Court awards the applicant 3,600 euros (EUR) in respect of non-pecuniary damage.\n\nB.  Costs and expenses\n\n31.  The applicant also claimed 71,600 PLN for the costs and expenses incurred before the domestic courts.\n\n32.  The Government contested the claim.\n\n33.  The Court notes firstly that the applicant failed to submit itemised particulars of her claim, together with the relevant supporting documents or vouchers, as required under Rule 60 of the Rules of Court. According to the Court’s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings.\n\nC.  Default interest\n\n34.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Declares the complaint concerning the length of the proceedings admissible and the remainder of the application inadmissible;\n\n2.  Holds that there has been a violation of Article 6 § 1 of the Convention;\n\n3.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 3,600 (three thousand six hundred euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n4.  Dismisses the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 5 October 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_44","text":"PROCEDURE\n\n1.  The case originated in an application (no. 11215/02) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Stanisław Ratajczyk (“the applicant”), on 23 July 2001.\n\n2.  The applicant was represented by Ms Magdalena Filipowicz, a lawyer practising in . The Polish Government (“the Government”) were represented by their Agents, Mr Krzysztof Drzewicki and, subsequently, Mr Jakub Wołąsiewicz\n\n3.  The applicant alleged that the length of civil proceedings in his case had exceeded a reasonable time.\n\n4. The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.\n\n5.  On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Fourth Section (Rule 52 § 1).\n\n6.  By a decision of 31 May 2005 the Court declared the application partly admissible.\n\nTHE FACTS\n\nTHE CIRCUMSTANCES OF THE CASE\n\n7.  The applicant was born in 1936 and lives in Namysłów.\n\n8.  The facts of the case, as submitted by the parties, may be summarised as follows.\n\n9.  On 1 September 1992 the applicant signed a lease contract with a cooperative. On 22 April 1993 the contract was terminated by the lessor and the applicant was barred from entering the leased premises.\n\n10.  On 21 July 1993 the applicant brought a civil action against the cooperative before the . He claimed that the lease contract had been terminated in breach of its provisions. He further alleged that as a result of the early termination he had suffered serious financial losses. He sought pecuniary damages and reimbursement of amounts he had paid in taxes in connection with the contract.\n\n11.  The first hearing in the case took place on 16 February 199. The following two hearings were held on 12 June 1995 and 2 February 1996. An expert was appointed at the latter hearing. The first-instance judgment was given on 30 April 1997.\n\n12.  On 25 July 1997 the applicant lodged an appeal with the appellate court. On 13 November 1997 the Court of Appeal in Łódź quashed the first-instance judgment and remitted the case for re-examination. It pointed out that the first-instance court had erred in the assessment of the evidence and that certain facts relevant for the outcome of the case required further clarification.\n\n13.  The , having re-examined the case, dismissed the applicant’s action on 30 June 1998. The applicant appealed on 29 July 1998. On 13 January 1999 the Court of Appeal again quashed the judgment of the  and remitted the case for re-examination. It stated that the first-instance court had partly failed to assess the evidence which was crucial for the case.\n\n14.  No hearings were held throughout 1999.\n\n15.  On 1, when the case was still pending before the , the applicant extended his claim.\n\n16.  On 16 February 2000 the  informed him that as a result of bankruptcy proceedings concerning the defendant co-operative, a motion had been lodged with the competent bankruptcy court to strike it out of the commercial register. The court stated that the final judgment would be given on 28 February 2000. This information notwithstanding, the case was closed only on 20 December 2000, when the  decided to discontinue the proceedings, considering that the defendant cooperative had been declared bankrupt and had been liquidated.\n\n17.  The applicant appealed against the decision on 18 January 2001. On 3 April 2001 the Łódź Court of Appeal dismissed it.\n\n18.  Parallel to these proceedings, the applicant tried to secure his claim in the bankruptcy proceedings concerning the co-operative. However, his request for the creation of a mortgage on a property of the cooperative was dismissed on the ground that in the first set of the proceedings the applicant had not obtained any judgment enabling him to secure his claim.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION\n\n19.   The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, provided in Article 6 § 1 of the Convention, which reads as follows:\n\n“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”\n\n20.  The Government contested that argument.\n\n21.  The period to be taken into consideration began on 21 July 1993 and ended on 3 April 2001. It thus lasted over seven years and eight months for two levels of jurisdiction.\n\n22.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).\n\n23.  The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above). The Court observes that in the present case the substantive law issues before the domestic courts were not complex as they concerned a simple lease contract of business premises. There were significant delays in the proceedings (§§ 13-16 above) and the applicant did not contribute to the length of the case apart from extending his claim once (see § 16 above). Moreover, the courts hearing the applicant’s case did not decide on its merits. The Court notes that the  informed the applicant on 16 February 2000 that the judgment in his case would be delivered on 28 February 2000. However, eventually the Regional Court waited a further ten months until the defendant had been declared bankrupt and had been liquidated, and then discontinued the proceedings on 20 December 2000 (§ 16). Thus, the applicant eventually was unable to effectively secure his claim in the bankruptcy proceedings concerning the defendant (§ 18).\n\n24.  Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.\n\nThere has accordingly been a breach of Article 6 § 1.\n\nII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n25.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n26.  The applicant claimed PLN 262,590 in respect of pecuniary and non-pecuniary damage.\n\n27.   The Government contested this claim.\n\n28.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, the Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis and having regard to its case-law in similar cases, it awards him EUR 4,200 under that head.\n\nB.  Costs and expenses\n\n29.  The applicant did not seek to be reimbursed for any costs and expenses in connection with the proceedings before the Court.\n\nC.  Default interest\n\n30.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.   Holds that there has been a violation of Article 6 § 1 of the Convention;\n\n2.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 4,200 (four thousand two hundred euros) in respect of non-pecuniary damage, to be converted into Polish zlotys at the rate applicable at the date of settlement, plus any tax that may be chargeable;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n3.  Dismisses the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 18 July 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_823","text":"PROCEDURE\n\n1.  The case originated in an application (no. 21759/15) against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Italian national, Ms Tiziana Pennino (“the applicant”), on 27 April 2015.\n\n2.  The applicant was represented by Mrs A. Mascia, a lawyer practising in Verona and Strasbourg. The Italian Government (“the Government”) were represented by their Agent, Mrs E. Spatafora, and their co-Agent, Mrs P. Accardo.\n\n3.  The applicant alleged that she had been ill-treated by the police and that the authorities had not carried out an effective investigation into her allegations.\n\n4.  On 25 April 2016 the application was communicated to the Government.\n\nTHE FACTS\n\nTHE CIRCUMSTANCES OF THE CASE\n\n5.  The applicant was born in 1969 and lives in Benevento.\n\nA.  The events of 2 April 2013\n\n6.  On 2 April 2013, between 1 and 1.15 p.m., the applicant was stopped by two officers of the Benevento municipal police while she was driving her car.\n\n7.  According to the applicant, the police officers checked her driver’s licence and her vehicle documents. An argument broke out between the applicant and the officers. In the applicant’s view, her nervous and hostile attitude led the police officers to suspect that she was intoxicated, which she denied. As the officers did not have the necessary equipment to perform a breathalyser test, they requested the assistance of the road police (Polizia Stradale). The applicant returned to her car. Once she had got back into the vehicle, one of the police officers pulled the car door open and dragged her out by the arm.\n\n8.  As recorded in the municipal police officers’ report of 3 April 2013, the applicant had been stopped because she had been driving in an erratic manner, braking suddenly and changing lanes abruptly. The applicant did not seem to be able to exit the vehicle by herself and had had to be assisted by one of the officers. The officers reported that they had smelt alcohol on her breath and that she had been unsteady on her feet. The applicant had insulted and threatened them.\n\n9.  At 1.30 p.m. traffic police officers arrived on the scene with the breathalyser equipment.\n\n10.  According to the applicant, she was not able to take the test because she was in a state of anxiety that had been exacerbated by one of the officers shouting at her that she was drunk. That had caused her to tremble and had meant she could not keep the breathalyser tube in her mouth. The applicant requested that carabinieri be called to the scene, but the request was denied.\n\n10.  According to the applicant, she was not able to take the test because she was in a state of anxiety that had been exacerbated by one of the officers shouting at her that she was drunk. That had caused her to tremble and had meant she could not keep the breathalyser tube in her mouth. The applicant requested that carabinieri be called to the scene, but the request was denied.\n\n11.  According to the traffic police report (annotazione di servizio della Polizia Stradale), the applicant agreed to be breathalysed, but did not blow into the device in the manner she had been told to do by the officers and refused to cooperate. At one point she had thrown the device’s mouthpiece into the face of one of the officers. The applicant was described as being in a “clearly altered” state, smelling strongly of alcohol and staggering.\n\n12.  The applicant was taken to the municipal police station (Comando di Polizia Municipale), where she arrived at approximately 1.50 p.m.\n\n13.  According to the applicant, once at the station the lieutenant on duty started drafting an offence report (verbale di contestazione) for driving under the influence of alcohol. The two officers who had stopped her in the street and escorted her to the station and another officer were also present. She repeatedly requested that she be allowed to use a telephone to let her family and her lawyer know of her whereabouts but her requests were denied. When she tried to pick up a telephone, one of the officers hit her in order to make her sit down. The same officer twisted her arms behind her back and handcuffed her, hurting her wrists. He then squeezed her buttocks and asked her if the handcuffs were tight enough. The applicant started screaming loudly and the officer removed the handcuffs in a violent manner. In doing so, he fractured the applicant’s right thumb and caused other injuries to her wrists. He then warned her not to cause further trouble and threatened her. The applicant left the station between 2.15 and 2.30 p.m. and proceeded further on foot as her car had been seized.\n\n13.  According to the applicant, once at the station the lieutenant on duty started drafting an offence report (verbale di contestazione) for driving under the influence of alcohol. The two officers who had stopped her in the street and escorted her to the station and another officer were also present. She repeatedly requested that she be allowed to use a telephone to let her family and her lawyer know of her whereabouts but her requests were denied. When she tried to pick up a telephone, one of the officers hit her in order to make her sit down. The same officer twisted her arms behind her back and handcuffed her, hurting her wrists. He then squeezed her buttocks and asked her if the handcuffs were tight enough. The applicant started screaming loudly and the officer removed the handcuffs in a violent manner. In doing so, he fractured the applicant’s right thumb and caused other injuries to her wrists. He then warned her not to cause further trouble and threatened her. The applicant left the station between 2.15 and 2.30 p.m. and proceeded further on foot as her car had been seized.\n\n14.  As recorded in the joint report issued on 3 April 2013 by the two municipal police officers who had stopped her in the street and the lieutenant on duty at the municipal police station, upon her arrival at the station the applicant had started threatening and insulting them. When the lieutenant started drafting the offence report, she grabbed a telephone from a desk and ran into the corridor. When the lieutenant tried to stop her, the applicant pushed him violently, causing him to fall. She then threw the telephone out of the window. The applicant, who was in an extremely agitated state, pushed and kicked the other two officers, and they eventually handcuffed her. When the applicant calmed down, the handcuffs were removed. The applicant ran out of the station, leaving her bag and personal belongings behind. Her vehicle and driver’s licence had been seized under road traffic legislation. The same account of the events is recorded in the offence notification (informativa di reato) filed by the directing commander of the Benevento municipal police with the Benevento public prosecutor on 3 April 2013.\n\n15.  According to the applicant, once she had left the station she got a lift to the emergency department of a local hospital, where she was examined.\n\n15.  According to the applicant, once she had left the station she got a lift to the emergency department of a local hospital, where she was examined.\n\n16.  At approximately 8 p.m. the applicant went to the State Police and attempted, unsuccessfully, to lodge a criminal complaint against the municipal police officers. According to the report of the officer on duty, the applicant complained that she had been assaulted by Benevento municipal police officers and that her finger had been fractured. When the officer informed her that the she could not file a criminal complaint because the station was closed, the applicant started speaking incoherently in a loud voice. Given her nervous and agitated state, the officer called the local questura (police headquarters) for backup. The applicant requested that an ambulance be called. The ambulance arrived at 8.30 p.m. and the applicant was examined by the ambulance medics. She was taken home by ambulance at approximately 9 p.m.\n\nB.  Criminal complaint against the police officers and the ensuing investigation\n\n17.  On 4 April 2013 the applicant lodged a criminal complaint against the two police officers who had stopped her in the street on 2 April 2013 and the other two officers who had been present at the municipal police station, but whose names she did not know, alleging assault and battery, infliction of bodily harm, abuse of office, and threats.\n\n17.  On 4 April 2013 the applicant lodged a criminal complaint against the two police officers who had stopped her in the street on 2 April 2013 and the other two officers who had been present at the municipal police station, but whose names she did not know, alleging assault and battery, infliction of bodily harm, abuse of office, and threats.\n\n18.  An investigation into the applicant’s allegations was initiated. Seven people identified by the applicant as witnesses (persone informate sui fatti) were interviewed. Two were people who stated they had seen one of the officers dragging the applicant out of her vehicle. One was the owner of a bar where the applicant had gone in order to call her former spouse once she had left the hospital on 2 April 2013. Another was the applicant’s former spouse, who stated that her alcohol intake was limited to consumption during meals. He further stated that because of a traumatic event in her life the applicant became agitated, trembled and had trouble expressing herself when subjected to stress. The other three were colleagues, who stated that the applicant had not appeared to be intoxicated when she had left her office on 2 April 2013. The police officers who had allegedly been involved in the ill-treatment were not interviewed, and neither was the applicant.\n\n18.  An investigation into the applicant’s allegations was initiated. Seven people identified by the applicant as witnesses (persone informate sui fatti) were interviewed. Two were people who stated they had seen one of the officers dragging the applicant out of her vehicle. One was the owner of a bar where the applicant had gone in order to call her former spouse once she had left the hospital on 2 April 2013. Another was the applicant’s former spouse, who stated that her alcohol intake was limited to consumption during meals. He further stated that because of a traumatic event in her life the applicant became agitated, trembled and had trouble expressing herself when subjected to stress. The other three were colleagues, who stated that the applicant had not appeared to be intoxicated when she had left her office on 2 April 2013. The police officers who had allegedly been involved in the ill-treatment were not interviewed, and neither was the applicant.\n\n19.  On 17 January 2014 the public prosecutor requested that the proceedings be discontinued. The basis of the request was that “the allegations in the criminal complaint are not confirmed by the statements made by the witnesses identified by the victim”.\n\n19.  On 17 January 2014 the public prosecutor requested that the proceedings be discontinued. The basis of the request was that “the allegations in the criminal complaint are not confirmed by the statements made by the witnesses identified by the victim”.\n\n20.  On 27 February 2014 the applicant lodged an objection against the prosecutor’s request to discontinue the proceedings. She complained about the lack of reasoning in the prosecutor’s request and alleged that the investigation had not been thorough. In that connection, she complained about the “total absence” of investigative measures with respect to the events that had occurred at the municipal police station and requested that the investigating judge order such measures without delay. Moreover, the applicant complained that she had not been questioned and requested that she be interviewed immediately. She also requested that officials interview the person who had taken her to the hospital when she had left the police station and other individuals. She also challenged the credibility of the official police reports, as they were in stark contrast with her account of the impugned events.\n\n20.  On 27 February 2014 the applicant lodged an objection against the prosecutor’s request to discontinue the proceedings. She complained about the lack of reasoning in the prosecutor’s request and alleged that the investigation had not been thorough. In that connection, she complained about the “total absence” of investigative measures with respect to the events that had occurred at the municipal police station and requested that the investigating judge order such measures without delay. Moreover, the applicant complained that she had not been questioned and requested that she be interviewed immediately. She also requested that officials interview the person who had taken her to the hospital when she had left the police station and other individuals. She also challenged the credibility of the official police reports, as they were in stark contrast with her account of the impugned events.\n\n21.  At a hearing on 22 September 2014 the applicant’s lawyer repeated the complaints and requests contained in the objection against the prosecutor’s request to discontinue the proceedings and reiterated, in particular, the request to conduct an investigation into the events that had occurred at the municipal police station.\n\n21.  At a hearing on 22 September 2014 the applicant’s lawyer repeated the complaints and requests contained in the objection against the prosecutor’s request to discontinue the proceedings and reiterated, in particular, the request to conduct an investigation into the events that had occurred at the municipal police station.\n\n22.  By an order of 3 October 2014, served on the applicant on 27 October 2014, the Benevento District Court preliminary investigations judge (giudice per le indagini preliminari) decided to discontinue the proceedings. The order stated that the evidence gathered during the preliminary investigation had not been sufficient to warrant indicting the officers. It stated that the victim’s allegations had not been corroborated by evidence and that further investigative measures, as requested by the victim, would have “no influence whatsoever”.\n\nC.  Criminal proceedings against the applicant\n\n23.  On 25 October 2013 the applicant was charged with a number of offences in connection with the events of 2 April 2013, including resisting a police officer, insulting a public official, and driving under the influence of alcohol. The applicant was also charged with causing bodily harm to a police officer.\n\n24.  On an unspecified date, the public prosecutor and the applicant reached a plea agreement with respect to the offence of bodily harm and requested that the judge proceed with the imposition of a sentence (applicazione della pena su richiesta delle parti).\n\n25.  On 21 November 2014 the Benevento preliminary hearings judge took note of the plea agreement and gave the applicant a suspended sentence of twenty-eight days’ imprisonment. On the same day, the preliminary hearings judge suspended the proceedings against the applicant in connection with the charges of resisting a police officer, insulting a public official and driving under the influence of alcohol. The applicant was placed on probation with a requirement that she perform community service.\n\nD.  Medical documentation\n\n1.  Medical reports in connection with the events of 2 April 2013\n\n1.  Medical reports in connection with the events of 2 April 2013\n\n26.  On 2 April 2013, the applicant went to the emergency department of a local hospital. At 6.42 p.m. she was examined by a radiologist, who established that her right thumb was fractured.\n\n27.  On 3 April 2013 the applicant returned to the emergency department. According to the medical report, the applicant arrived at the hospital in an agitated state, complaining about pain in several parts of her body. She was examined by a doctor who noted the presence of a splint on her right hand to treat a fracture. The doctor further noted the presence of bruising resulting from traumatic injury (trauma contusivo con ecchimosi) to the right thigh, right shoulder and left wrist.\n\n27.  On 3 April 2013 the applicant returned to the emergency department. According to the medical report, the applicant arrived at the hospital in an agitated state, complaining about pain in several parts of her body. She was examined by a doctor who noted the presence of a splint on her right hand to treat a fracture. The doctor further noted the presence of bruising resulting from traumatic injury (trauma contusivo con ecchimosi) to the right thigh, right shoulder and left wrist.\n\n28.  On 4 April 2013 the applicant went to a different hospital. She was examined by an orthopaedist, who confirmed the fracture of the thumb and the presence of bruises on her left thigh and on her back. The doctor recommended surgery to treat the fracture.\n\n2.  Expert psychological report submitted by the applicant in the course of the criminal proceedings against her (extracts)\n\n2.  Expert psychological report submitted by the applicant in the course of the criminal proceedings against her (extracts)\n\n29.  Owing to a traumatic event in her life, the applicant suffers from chronic post-traumatic stress disorder, which has evolved into a major depressive disorder. She also suffers from a disorder which is characterised by mood swings which are exacerbated in times of particular stress, by the consumption of alcohol or sleep deprivation. The disorder in question includes peaks of manic behaviour when the applicant loses contact with reality and experiences a sense of impending threat to her own safety and that of those around her. The applicant was prescribed drugs for insomnia in February 2013. Combining the drugs with even moderate amounts of alcohol can have the same consequences as excessive alcohol consumption.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION\n\n30.  The applicant complained that she had been illtreated by the police and that the investigation into her allegations had been neither thorough nor effective. She relied on Article 3 of the Convention, which reads as follows:\n\n“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”\n\nA.  Admissibility\n\n31.  The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n1.  General principles\n\n32.  In cases involving the substantive aspect of Article 3 concerning, in particular, allegations of ill-treatment by State agents, the relevant general principles were articulated by the Grand Chamber in Bouyid v. Belgium ([GC], no. 23380/09, § 81-90, ECHR 2015).\n\n33.  The Court reiterates, in particular, that in respect of a person who is deprived of his liberty, or, more generally, is confronted with law  enforcement officers, any recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is an infringement of the right set forth in Article 3 (ibid., § 88).\n\n34.  Allegations of ill-treatment contrary to Article 3 must be supported by appropriate evidence. To assess this evidence, the Court adopts the standard of proof “beyond reasonable doubt” but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (ibid., § 82).\n\n34.  Allegations of ill-treatment contrary to Article 3 must be supported by appropriate evidence. To assess this evidence, the Court adopts the standard of proof “beyond reasonable doubt” but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (ibid., § 82).\n\n35.  On this latter point the Court has explained that where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. The burden of proof is then on the Government to provide a satisfactory and convincing explanation by producing evidence establishing facts which cast doubt on the account of events given by the applicant. In the absence of such explanation, the Court can draw inferences which may be unfavourable for the Government. That is justified by the fact that persons in custody are in a vulnerable position and the authorities are under a duty to protect them. In Bouyid the Court found that the same principle held true in the context of an identity check in a police station or a mere interview on such premises (ibid., § 84).\n\n36.  The Court also pointed out in El-Masri v. the former Yugoslav Republic of Macedonia [GC] (no. 39630/09, § 155, ECHR 2012) that although it recognised that it must be cautious in taking on the role of a first-instance tribunal of fact where this was not made unavoidable by the circumstances of a particular case (see McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000), it had to apply a “particularly thorough scrutiny” where allegations were made under Article 3 of the Convention (see, mutatis mutandis, Ribitsch v. Austria, 4 December 1995, § 32, Series A no. 336, and Georgiy Bykov v. Russia, no. 24271/03, § 51, 14 October 2010), even if certain domestic proceedings and investigations had already taken place (see Cobzaru v. Romania, no. 48254/99, § 65, 26 July 2007).\n\n37.  In cases involving the investigation of allegations of ill-treatment, the general principles which apply in determining whether such an investigation was effective for the purposes of Article 3 were restated by the Grand Chamber, inter alia¸ in Mocanu and Others v. Romania ([GC], nos. 10865/09, 45886/07 and 32431/08, § 316-326 ECHR 2014 (extracts)).\n\n38.  In particular, any investigation of serious allegations of ill-treatment must be thorough. That means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or to use as the basis of their decisions (see Assenov and Others v. Bulgaria, 28 October 1998, § 103, Reports of Judgments and Decisions 1998VIII, and Batı and Others v. Turkey, nos. 33097/96 and 57834/00, § 136, ECHR 2004IV). They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence (see Tanrıkulu v. Turkey [GC], no. 23763/94, § 104, ECHR 1999IV, and Gül v. Turkey, no. 22676/93, § 89, 14 December 2000). Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard (see Boicenco v. Moldova, no. 41088/05, § 123, 11 July 2006).\n\n2.  Application to the present case\n\n2.  Application to the present case\n\n39.  The Court notes at the outset that the parties agree that the police used force against the applicant and that she sustained certain injuries as a result, namely contusions and a fractured finger. The Court also notes that the presence of certain injuries is supported by medical evidence (see paragraphs 26 - 28 above). The applicant contended that the finger had been fractured while she was at the municipal police station.\n\n40.  The Court notes that the essence of the disagreement between the parties concerns the exact circumstances in which the applicant sustained her injuries and whether recourse to physical force had been strictly necessary.\n\n41.  The Court considers that during the period the applicant spent at the police station the applicant can be viewed as having been under the control of the authorities. Thus, in contrast to cases in which it could not be established that the applicant had been under the control of the authorities, in the present case the Court concludes that the burden rests on the Government to provide a satisfactory and convincing explanation as to the circumstances in which the injuries were sustained and whether the force was made strictly necessary by the applicant’s own conduct (see Bouyid, cited above, §§ 83-84).\n\n42.  In their observations the Government argued that all the injuries, including the fractured finger, could plausibly and convincingly be explained by the applicant’s resistance to actions the police had taken to contain her incrementally agitated – and at times aggressive – behaviour. In their view therefore the force used against the applicant by the police officers had been made strictly necessary by her own conduct.\n\n43.  In support of their position they cited several elements attesting to the applicant’s agitated and altered state. First, they observed that witness statements about the applicant’s being sober prior to being stopped in the street did not exclude the possibility that she was intoxicated at the time she got behind the wheel of her vehicle. Second, they relied on the psychological report by the expert appointed by the applicant in the context of the criminal proceedings against her and highlighted the part stating that she had been taking medication which could have the same effect as excessive alcohol consumption when combined with even a very small amount of alcohol (see paragraph 29 above). They added that the report had been added to the investigation file and had been examined closely by the prosecutor and investigating judge. They also cited the report drawn up by the officer on duty at the Benevento police station where the applicant had attempted to file her criminal complaint, which described her as being extremely agitated (see paragraph 16 above). The Government further pointed out that the applicant’s aggressiveness was corroborated by the fact that one of the agents at the municipal police station had been pushed by the applicant and injured as a result. Moreover, the Government reiterated that criminal proceedings had been initiated against the applicant for offences against the police officers, including insulting a public official, and that the proceedings had ended with a plea agreement.\n\n43.  In support of their position they cited several elements attesting to the applicant’s agitated and altered state. First, they observed that witness statements about the applicant’s being sober prior to being stopped in the street did not exclude the possibility that she was intoxicated at the time she got behind the wheel of her vehicle. Second, they relied on the psychological report by the expert appointed by the applicant in the context of the criminal proceedings against her and highlighted the part stating that she had been taking medication which could have the same effect as excessive alcohol consumption when combined with even a very small amount of alcohol (see paragraph 29 above). They added that the report had been added to the investigation file and had been examined closely by the prosecutor and investigating judge. They also cited the report drawn up by the officer on duty at the Benevento police station where the applicant had attempted to file her criminal complaint, which described her as being extremely agitated (see paragraph 16 above). The Government further pointed out that the applicant’s aggressiveness was corroborated by the fact that one of the agents at the municipal police station had been pushed by the applicant and injured as a result. Moreover, the Government reiterated that criminal proceedings had been initiated against the applicant for offences against the police officers, including insulting a public official, and that the proceedings had ended with a plea agreement.\n\n44.  The Government stressed that the domestic investigation, which had been carried out in an effective and thorough manner, had not established that the events had occurred in the way described by the applicant, thus casting doubt on her account of what had happened. According to the Government, the information gathered from interviews with the individuals identified by the applicant during the course of the investigation had been insufficient to confirm her accusations against the municipal police officers, as confirmed by the investigating judge’s decision to discontinue the proceedings. Even if the witnesses had confirmed certain facts described by the applicant, her account had not been corroborated overall, as the witness statements had referred to ancillary matters. The Government also highlighted the coherence of the police officers’ account as opposed to the inconsistencies characterising the applicant’s account. In that regard, they pointed out that the police reports had provided a plausible explanation for the injuries sustained by the applicant, whereas the applicant’s account had not explained the police officer’s injuries and was, in their view, riddled with lacunae and contradictions.\n\n45.  In the circumstances of the present case, before examining the Government’s submissions, the Court wishes to reiterate that persons who are held in police custody or are even simply taken or summoned to a police station for an identity check or questioning, and more broadly all persons under the control of the police or a similar authority, are in a situation of vulnerability and the authorities are consequently under a duty to protect them (see Bouyid, cited above, § 107). In that regard, the Court recalls that Article 3 of the Convention establishes, as does Article 2, a positive obligation on the State to train its law-enforcement officials in such a manner as to ensure a high level of competence in their professional conduct so that no one is subjected to treatment that runs contrary to that provision (see Bouyid, cited above, § 108).\n\n46.  Turning to the arguments put forward by the Government, the Court notes that they hinge on a general reliance on the applicant’s agitated state and general statements about the need to use force as a reaction to such conduct. The Government have not provided specific details about how the events at the municipal police station unfolded, but referred in general terms to the account provided by the police officers, which they accepted as being plausible and coherent. No concrete attempt was made to explain, let alone substantiate, what may have led to the fracture of the applicant’s finger, despite the Government’s acknowledgement that the injury had occurred as a consequence of the use of force by the officers on the applicant.\n\n46.  Turning to the arguments put forward by the Government, the Court notes that they hinge on a general reliance on the applicant’s agitated state and general statements about the need to use force as a reaction to such conduct. The Government have not provided specific details about how the events at the municipal police station unfolded, but referred in general terms to the account provided by the police officers, which they accepted as being plausible and coherent. No concrete attempt was made to explain, let alone substantiate, what may have led to the fracture of the applicant’s finger, despite the Government’s acknowledgement that the injury had occurred as a consequence of the use of force by the officers on the applicant.\n\n47.  Against this backdrop, the Court will next examine whether some substantiation of the Government’s submissions emerges from the domestic investigation. In that connection, on the facts of the present case the Court considers that the provision of a satisfactory and convincing explanation as to the necessity of the use of force is closely related to the question of whether the national authorities have conducted an effective investigation capable of establishing the circumstances and the nature of the force used (see, mutatis mutandis, Mihhailov v. Estonia, no. 64418/10, § 112, 30 August 2016; Hilal Mammadov v. Azerbaijan, no. 81553/12, § 83, 4 February 2016; Balajevs v. Latvia, no. 8347/07, § 95, 28 April 2016; and Cemal Yılmaz v. Turkey, no. 31298/05, § 32, 7 February 2012).\n\n48.  The applicant contended that the investigation authorities had not made a serious attempt to find out what had happened in order to identify the origin of her injuries and the persons responsible for them. The Government submitted that the investigation had been conducted diligently, independently, and in a thorough manner.\n\n49.  For the reasons set out below, the Court is not persuaded that the investigation complied with the requirement of thoroughness as dictated by Article 3, in the sense that the authorities used their best endeavours to find out what happened or did not rely on hasty or ill-founded conclusions to close their investigation or as the basis of their decisions (see, amongst other authorities, Alberti v. Italy, no. 15397/11, § 62, 24 June 2014).\n\n50.  The Court notes at the outset that the investigation file shows no evidence of any investigative efforts directed towards the events that occurred in the municipal police station, although that is where the applicant alleged that the most important injuries had been inflicted. The Court further notes that the applicant explicitly complained about the lack of investigative measures concerning the events that had taken place at the station to the domestic authorities (see paragraph 20 above). The only documents which relate to the events at the municipal police station are reports by the municipal police officers (see paragraph 14 above). All the other documents contained in the investigation concern the events that took place in the street after the applicant had been stopped on suspicion of driving under the influence of alcohol.\n\n51.  The focus of the investigation on the latter events, as opposed to the events at the station, is also reflected in the fact that the interviews with witnesses were limited to the individuals identified by the applicant in her criminal complaint, as is also conceded by the Government in their observations. With the exception of the person who lent his telephone to the applicant after she had left the hospital, the individuals identified by the applicant were connected either to the events in the street or attested to the applicant’s being sober and her personal circumstances (see para 18 above). In addition, the Court notes that neither the police officers involved in the impugned events, nor the applicant, were interviewed.\n\n52.  Another aspect which the Court finds to be problematic in so far as the thoroughness of the investigation is concerned is the extremely succinct reasoning in the prosecutor’s request to discontinue the proceedings and the investigating judge’s decision to that effect (see paragraphs 19 and 22 above). The Court underlines in this respect that the prosecutor’s request appears to be drafted in a standardised manner. The investigating judge’s decision is similarly laconic. It contains generic formulations to the effect that the evidence gathered during the preliminary investigation was not sufficient to warrant indicting the officers and that the victim’s allegations have not been corroborated. No information can be gleaned from the request and the decision regarding the reconstruction of the facts, the possible causes of the applicant’s injuries, the nature of the force used, or the elements relied on by the prosecutor and investigating judge to request and order the discontinuance of the proceedings.\n\n53.  The Court notes further that the investigating judge gave no reasons for denying the applicant’s request for additional acts of investigation. The decision contains a generic dismissal to the effect that the further measures would have “no influence whatsoever”.\n\n54.  Those considerations are sufficient for the Court to conclude that the investigating authorities failed to devote the requisite attention to the applicants’ allegations concerning the events that occurred at the municipal police station despite the nature of the alleged acts, involving law-enforcement officers using force and causing injuries to a person under their control. The effect of the shortcomings identified above entailed, in practice, a failure to shed light on important aspects of the impugned events, the circumstances surrounding the use of force by the police against the applicant and, consequently, on the necessity of the use of such force.\n\n55.  Concerning the substantive limb of Article 3, the Court is not persuaded that the Government have provided a satisfactory and convincing explanation as to how the applicant’s injuries, namely the fractured finger, could have been caused. In conclusion, it cannot consider that the Government have discharged their burden of proof by demonstrating that the use of force was strictly necessary.\n\n56.  It follows that there has been a violation of Article 3 under both its substantive and procedural head.\n\n56.  It follows that there has been a violation of Article 3 under both its substantive and procedural head.\n\n57.  Having regard to the latter findings, the Court does not consider it necessary to carry out a separate assessment of the events preceding the period the applicant spent at the police station, or to address the applicant’s other complaints relating to the effectiveness of the investigation.\n\nII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n58.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n59.  The applicant claimed 50,000 euros (EUR) in respect of pecuniary damage for loss of earnings and EUR 30,000 in respect of non-pecuniary damage.\n\n60.  The Government argued that the pecuniary damage claim was based on a highly speculative contention that there was a causal link between the violation and the loss of earnings.\n\n61.  As to the applicant’s claim for loss of earnings, the Court agrees with the Government that no direct causal link has been sufficiently established between the alleged loss and the violation it has found of Article 3 of the Convention; it therefore rejects this claim.\n\n62.  On the other hand, ruling on an equitable basis, it awards the applicant EUR 12,000 in respect of non-pecuniary damage.\n\nB.  Costs and expenses\n\n63.  The applicant also claimed EUR 2,660 for the costs and expenses incurred before the domestic courts and EUR 11,400 for those incurred before the Court.\n\n64.  The Government described the applicant’s claim as excessive.\n\n65.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 8,000 covering costs under all heads.\n\nC.  Default interest\n\n66.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\n1.  Declares the application admissible;\n\n2.  Holds that there has been a violation of Article 3 of the Convention in both its procedural and substantive aspects;\n\n3.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n4.  Dismisses the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 12 October 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_695","text":"PROCEDURE\n\n1.  The case originated in an application (no. 76512/01) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovenian national, Mr Muhamed Balatić (“the applicant”), on 25 July 2002.\n\n2.  The applicant was represented by the Verstovšek lawyers. The Slovenian Government (“the Government”) were represented by their Agent, Mr L. Bembič, State Attorney-General.\n\n3.  The applicant alleged under Article 6 § 1 of the Convention that the length of the proceedings before the domestic courts to which he was a party was excessive. In substance, he also complained about the lack of an effective domestic remedy in respect of the excessive length of the proceedings (Article 13 of the Convention).\n\n4.  On 8 September 2003 the Court decided to communicate the complaints concerning the length of the proceedings and the lack of remedies in that respect to the Government. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time.\n\nTHE FACTS\n\n5.  The applicant was born in 1963 and lives in Velenje.\n\n6.  On 6 May 1993 the applicant was injured in an accident at work. The applicant’s employer had taken out insurance with the insurance company ZT.\n\nOn 5 April 1994 the applicant instituted civil proceedings against ZT in the Celje Basic Court, Celje Unit (Temeljno sodišče v Celju, Enota v Celju) seeking damages in the amount of 1,600,000 SIT (approximately 6,670 euros) for the injuries sustained.\n\nBetween 24 November 1994 and 19 January 1996 the applicant lodged three preliminary written submissions.\n\nOf the five hearings held between 1 December 1994 and 12 April 1996 none was adjourned at the request of the applicant.\n\nAt the last hearing the court decided to deliver a written judgment. The judgment, rejecting the applicant’s claim in part, was served on the applicant on 8 July 1996.\n\n7.  On 12 July 1996 the applicant appealed to the  (Višje sodišče v Celju).\n\nOn 23 January 1997 the court allowed the appeal, quashed the first-instance court judgment and remitted the case to the first-instance court for re-examination. The decision was served on the applicant on 4 March 1997.\n\n8.  Between 3 December 1998 and 8 January 1999 the applicant filed three preliminary written submissions in the proceedings in the re-examination proceedings before a new first-instance court judge.\n\nOf the four hearings held between 13 January 1999 and 2 June 1999 none was adjourned at the request of the applicant.\n\nAt the last hearing the court decided to deliver a written interim judgment. The judgment, holding the applicant’s adversary absolutely liable for damages sustained by the accident, was served on the applicant on 15 July 1999. The court did not rule on the amount of damages and the costs of the case.\n\n9.  On 13 August 1999 ZT appealed to the  (Višje sodišče v Celju).\n\nThe appeal was dismissed on 17 February 2000.\n\n10.  On 28 April 2000 ZT lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče).\n\nOn 24 January 2001 the court rejected the appeal.\n\nThe judgment was served on the applicant on 26 February 2001.\n\n11.  Between 17 April 2000 and 8 September 2000, in the continued proceedings before the first instance court, the applicant made three requests that a date be set for a hearing.\n\nOn 5 May 2000 and 27 February 2001 he filed preliminary written submissions.\n\nA hearing scheduled for 28 March 2001 was cancelled at the applicant’s request in anticipation of out of court settlement.\n\nAt the hearing held on 4 July 2001 the applicant withdrew his claim since the case was settled out of court on that same day.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION\n\n12.  The applicant complained about the excessive length of the proceedings. He relied on Article 6 § 1 of the Convention, which reads as follows:\n\n“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”\n\n13.  In substance, the applicant further complained that the remedies available for excessive legal proceedings in  were ineffective. Article 13 of the Convention reads as follows:\n\n“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”\n\nA.  Admissibility\n\n14.  The Government pleaded non-exhaustion of domestic remedies.\n\n15.  The applicant contested that argument, claiming that the remedies available were not effective.\n\n16.  The Court notes that the present application is similar to the cases of Belinger and Lukenda (Belinger v. Slovenia (dec.), no. 42320/98, 2 October 2001, and Lukenda v. Slovenia, no. 23032/02, 6 October 2005). In those cases the Court dismissed the Government’s objection of non-exhaustion of domestic remedies because it found that the legal remedies at the applicant’s disposal were ineffective.\n\n17.  As regards the instant case, the Court finds that the Government have not submitted any convincing arguments which would require the Court to distinguish it from its established case-law.\n\n18.  The Court further notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n1.  Article 6 § 1\n\n19.  The period to be taken into consideration began on 28 June 1994, the day when the Convention entered into force with respect to , and ended on 4 July 2001, the day the applicant withdrew his claim. It therefore lasted just over seven years for five levels of jurisdiction.\n\n20.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).\n\n21.  Having examined all the material submitted to it, and having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was not excessive.\n\nThere has accordingly been no breach of Article 6 § 1.\n\n2.  Article 13\n\n22.  Having regard to its decision on Article 6 § 1, the Court considers that it is not necessary to examine the case under Article 13 since its requirements are less strict than, and are here absorbed by those of Article 6 § 1 (see G.C. v. The , no. 43373/98, § 53, 19 December 2001).\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Declares the application admissible;\n\n2.  Holds that there has been no violation of Article 6 § 1 of the Convention;\n\n3.  Holds that it is not necessary to examine the merits of the applicant’s complaints under Article 13 of the Convention.\n\nDone in English, and notified in writing on 9 March 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_73","text":"PROCEDURE\n\n1.  The case originated in an application (no. 35132/02) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Ivan Ivanovych Berestovyy (“the applicant”), on 27 June 2001.\n\n2.  The Ukrainian Government (“the Government”) were represented by their Agent, Mrs V. Lutkovska.\n\n3.  On 9 September 2004 the Court decided to communicate the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n4.  The applicant was born in 1942 and lives in the town of Chervonograd, Lviv region, Ukraine.\n\n5.  On 8 February 2001 the Chervonogradskyy Town Court of the Lviv Region awarded the applicant UAH 23,351, UAH 4,553.56 and UAH 50 in compensation for pecuniary and non-pecuniary damage, and for legal aid respectively, against the State Mining Enterprise No. 7 “Velykomostivska”.\n\n6.  In 2001 – 2003 the judgment was enforced by instalments, the final amount being paid on 14 February 2003.\n\nII.  RELEVANT DOMESTIC LAW\n\n7.  The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004).\n\nTHE LAW\n\n8.  The applicant complained about the State authorities’ failure to enforce the judgment of the Chervonogradskyy Town Court of 8 February 2001 in due time. He invoked Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1, which provide, insofar as relevant, as follows:\n\nArticle 6 § 1\n\n“In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...”\n\nArticle 13\n\n“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”\n\nArticle 1 of Protocol No. 1\n\n“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.\n\nThe preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest ....”\n\nI.  ADMISSIBILITY\n\n9.  The Government raised objections regarding the applicant’s victim status and exhaustion of domestic remedies similar to those which the Court has already dismissed in the case of Romashov v. Ukraine (see the Romashov judgment, cited above, §§ 23-33). The Court considers that the present objections must be rejected for the same reasons.\n\n10.  The Court concludes that the applicant’s complaints under Articles 6 § 1 and 13 of the Convention raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It finds no ground for declaring them inadmissible. For the same reasons, the applicant’s complaint under Article 1 of Protocol No. 1 cannot be declared inadmissible.\n\nII.  MERITS\n\nA.  The applicant’s complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1\n\n12.  The applicant disagreed.\n\n13.  The Court notes that the judgment of the Chervonogradskyy Town Court of 8 February 2001 remained unenforced for two years.\n\n14.  The Court recalls that it has already found violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in cases raising issues similar to the present application (see, for instance, Voytenko v. Ukraine, cited above, §§ 39-43 and 53-55).\n\n15.  Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or convincing argument capable of persuading it to reach a different conclusion in the present case. There has, accordingly, been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.\n\nB.  The applicant’s complaint under Article 13 of the Convention\n\n16.  The Government contended that the applicant had had effective channels of complaint on the same basis that they had argued that the applicant had not exhausted domestic remedies. Having rejected the latter argument above (at paragraph 9), the Court concludes that the applicant did not have an effective domestic remedy, as required by Article 13 of the Convention, to redress the damage created by the delay in the present proceedings (see Voytenko cited above, §§ 46-48). Accordingly, there has been a breach of this provision.\n\nIII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n17.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\n18.  The applicant submitted a claim for just satisfaction out of time.\n\n19.  The Court observes that the applicant failed to comply with the requirements set out in Rule 60 § 2 of the Rules of Court. In these circumstances, it makes no award under this head (Rule 60 § 3).\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Declares the application admissible;\n\n2.  Holds that there has been a violation of Article 6 § 1 of the Convention;\n\n3.  Holds that there has been a violation of Article 13 of the Convention;\n\n4.  Holds that there has been a violation of Article 1 of Protocol No.1;\n\n5.  Dismisses the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 28 February 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_236","text":"PROCEDURE\n\n1.  The case originated in an application (no. 37040/07) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by five Iranian nationals, Mr Alireza Ranjbar, Mr Pejman Piran, Mr Abolfazl Ajorlu, Mr Seyid Ali Alemzadeh and Mr Mostaba Naderani Vatanpur (“the applicants”), by an e-mail sent in the evening of Friday 24 August 2007.\n\n2.  The applicants were represented by Mr S. Efe and Mr V.R. Turgut, lawyers practising in Ankara and Van respectively. Their forms of authority were issued by the applicants' immediate relatives in Iran and . The Turkish Government (“the Government”) were represented by their Agent.\n\n3.  The applicants' representative alleged that his clients' deportation to Iran would subject them to ill-treatment and torture and that they were not afforded protection under Article 5, in particular as they had been unlawfully detained for a period of more than six days and had no means to challenge the lawfulness of their detention.\n\n4.  A request for an interim measure under Rule 39 of the Rules of Court was processed on Monday 27 August 2007, and the applicants' representative was asked to submit additional supporting information. In the morning of 28 August 2007 the Acting President of the Chamber to which the case had been allocated initially decided to apply Rule 40 (urgent notification of an application) until the requisite information was provided. Following the submission of this information on the same day, the President subsequently indicated to the Government, under Rule 39, that the applicants should not be deported to Iran until further notice.\n\n5.  On 4 September 2007 the respondent Government informed the Court that the applicants had already been deported to Iraq on 22 August 2007, two days before the Rule 39 request had been filed by their representative. The interim measure was consequently lifted on 6 September and further information concerning the applicants' deportation was requested from the respondent Government.\n\n6.  On 9 April 2008 the applicants' representative informed the Court that the applicants had been resettled in  and wished to pursue their application. Forms of authority issued by the second, third and fourth applicants were subsequently submitted, but the applicants' representative informed the Court on 1 October 2009 that he had not been able to contact the first and fifth applicants.\n\n7.  On 13 May 2008 the Court decided to give notice of the application to the Government. It also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n8.  The applicants were born in 1972, 1982, 1985, 1978 and 1983 respectively and currently live in Sweden.\n\n9.  The applicants fled Iran and entered Turkey illegally on various dates in 2005 and 2006.\n\n10.  On various dates between 19 April 2005 and 3 October 2006, the applicants appeared at the office of the United Nations High Commissioner for Refugees (“the UNHCR”) in Turkey, which recognised their refugee status and issued them with refugee certificates on 24 August 2007.\n\n11.  On unspecified dates the applicants lodged asylum applications with the Turkish authorities and sought residence permits. They were questioned twice by police officers from the Aliens Department on various dates in November 2006 for an assessment of their asylum request. During the questioning the applicants stated that they had been members of different illegal organisations and had been involved in anti-regime activities in Iran. They had either been detained on numerous occasions or sentenced to imprisonment and/or punishment by lashing. They all maintained that they would face a personal risk of ill-treatment or death if they were to be returned to Iran.\n\n12.  The applicants were permitted to live in Van pending the asylum proceedings and were allowed to leave the city boundaries subject to specific permission. In this connection one of the applicants (Mostaba Naderani Vatanpur) was issued with a permit allowing him to travel to Ankara between 22 and 31 August 2007 for various resettlement interviews.\n\n13.  On an unspecified date the applicants' asylum request was rejected by the authorities on the ground that they had not complied with the relevant criteria. In respect of the fourth applicant, the interview forms indicated that the authorities did not find the applicant's replies credible and considered that he had left his country for higher economic standards.\n\n14.  On an unspecified date the applicants were apprehended and held at the Van Security Directorate for an undetermined period before they were notified of the deportation orders on 22 August 2007 at 12.30 p.m. The deportation orders bear the signatures of the applicants and a translator. The applicants were deported to Iraq on the same day.\n\n15.   Upon their arrival in Iraq the applicants claimed to have been held in detention for about a month. They then had lived in Northern Iraq for some five months before they were resettled in Sweden on 10 February 2008.\n\nII.  RELEVANT DOMESTIC LAW AND PRACTICE\n\n16.  A description of the relevant domestic law can be found in the Court's judgment in the case of Abdolkhani and Karimnia v. Turkey (no. 30471/08, §§ 29-45, 22 September 2009).\n\nTHE LAW\n\nI.  SCOPE OF THE CASE\n\nA.  In respect of the first and fifth applicants\n\n17.  The Court notes that the applicants' representative informed it on 1 October 2009 that he had not been able to contact the first and fifth applicants (Mr Alireza Ranjbar and Mr Mostaba Naderani Vatanpur).\n\n18.  The Court considers that, in these circumstances, these applicants may be regarded as no longer wishing to pursue their application, within the meaning of Article 37 § 1 (a) of the Convention. Furthermore, in accordance with Article 37 § 1 in fine and bearing in mind that the applicants are resettled in Sweden, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case.\n\n19.  In view of the above, the Court holds that it is appropriate to strike the application out of the list of cases in respect of the first and fifth applicants. The Court will therefore confine its examination of the case in respect of the second, third and fourth applicants.\n\nB.  In respect of the remaining applicants\n\n20.  The Court observes that, following the communication of the present case to the respondent Government, further new complaints under Articles 3 and 6 of the Convention as well as under Article 1 of Protocol No. 7 were submitted on 2 February 2009, concerning in particular the conditions of the applicants' detention both in Turkey and Iraq and the lack of procedural safeguards.\n\n21.  The Court considers that the new complaints raised under Articles 3 and 6 do not elaborate on the applicants' original complaints and relate to events which occurred more than six months before the initial complaints were lodged with the Court on 24 August 2007. The Court reiterates that, when a new complaint is raised for the first time during the proceedings before the Court, the running of the six-month period is not interrupted until this complaint is actually lodged (see Sarl Aborcas and Borowik v. France (dec.), no. 59423/00, 10 May 2005, and Loyen v. France (dec.), no. 46022/99, 27 April 2000). The Court therefore rejects them in accordance with Article 35 §§ 1 and 4 of the Convention (Hazırcı and Others v. Turkey, no. 57171/00, § 54, 29 November 2007).\n\n22.  The Court further observes that Turkey has not ratified Protocol No. 7. It follows that this part of the complaints is incompatible ratione personae with the provisions of the Convention and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.\n\nII.  ALLEGED VIOLATION OF ARTICLES 2 AND 3 OF THE CONVENTION\n\n23.  The applicants initially complained under Articles 2 and 3 that their deportation to Iran would expose them to ill-treatment and even death. Following their deportation to Iraq and resettlement in Sweden, the applicants maintained the same complaints and asserted that they had lived in fear that the Iraqi authorities could return them to Iran.\n\n24.  The Government contended that the applicants had not exhausted domestic remedies and that they had not been deported to Iran at any point in time and therefore lacked victim status. The applicants had been deported to Iraq with due respect for the principle of non-refoulement.\n\n25.  The Court notes that the applicants are currently resettled in Sweden. They had already been deported to Iraq on 22 August 2007, two days before the matter was brought before the Court. In other words, there was no interim measure in force at the time of the applicants' deportation and, therefore, the Government's consequent responsibility under Article 34 had not been engaged.\n\n26.  In view of the fact that the applicants' complaints under this heading concerned their possible deportation to Iran, which did not take place, and that they currently live in Sweden, the Court holds that the applicants can no longer claim to be victims, within the meaning of Article 34, as far as their complaints under Articles 2 and 3 of the Convention are concerned (see, mutatis mutandis, Mohammedi v. Turkey (dec.), no. 3373/06, 30 August 2007, and Ayashi v. Turkey (dec.), no. 3083/07, 18 November 2008).\n\n27.  It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4.\n\nIII.  ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION\n\n28.  The applicants asserted that they ought to have been allowed to benefit from the protection of Article 5 in general during their detention. They complained in particular that they had been detained for a period of more than six days and had no means to challenge their detention in breach of Article 5 §§ 3 and 4 of the Convention.\n\n29.  The Court which is the master of the characterisation to be given in law to the facts of the case (see Castravet v. Moldova, no. 23393/05, § 23, 13 March 2007) finds that the complaints at issue fall to be examined under Article 5 §§ 1 and 4 of the Convention.\n\n30.  On communication of the application to the respondent Government, a further question was raised by the Court concerning compliance with Article 5 § 2 of the Convention with regard to the notification to the applicants of the reasons for their deprivation of liberty.\n\nA. The parties' submissions\n\n31.  The Government contested the complaints and contended that the applicants had not been arrested or detained but had been held as an administrative measure prior to deportation, in conformity with Article 5 § 1 (f) of the Convention. The applicants had been involved in activities against the Iranian administration during their stay in Turkey and for reasons of national security their residence in Turkey had not been deemed appropriate by the Turkish authorities. The legal grounds for their deprivation of liberty were sections 19 and 23 of the Act on the Residence and Travel of Foreigners in Turkey (Law no. 5683) and section 8 of the Passport Act (Law no. 5682). As to the complaint under Article 5 § 2 of the Convention, deportation orders had been issued in conformity with Article 32 of the 1951 Convention relating to the Status of Refugees (“the Geneva Convention”) and the applicants had been notified of the deportation orders in the presence of a translator. Regarding the complaint under Article 5 § 4 of the Convention, the Government submitted that the applicants had had the right to object against the deportation orders before the relevant authorities, failing which they could have brought complaints before the administrative courts. They had been aware of the domestic procedure but had not made use of it.\n\n32.  The Government did not make any submissions as to the Court's specific questions regarding the national-security grounds which had prompted the authorities to issue deportation orders in respect of the applicants, the overall length of the applicants' deprivation of liberty and the manner of their deportation.\n\n33.  The applicants contended that they had been unlawfully detained for a period of six days before their deportation on 22 August 2007. They asserted that official records indicating the date, time and location of their detention, the grounds for it and the name of the arresting officer had not been kept by the authorities. Additionally, they had not been allowed to see their lawyers during this period. Furthermore, neither they nor their lawyers had received an official letter indicating the reasons for their detention.\n\nB.  The Court's assessment\n\n1.  Admissibility of Article 5 §§ 1, 2 and 4\n\n34.  The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that they are not inadmissible on any other grounds. They must therefore be declared admissible.\n\n2.  Merits\n\n(a)  Article 5 § 1\n\n35.  The Court observes that the Government did not contest that the applicants had been held at the Van Security Directorate. According to the Government, the applicants had been held as an administrative measure for deportation purposes and there had therefore not been any need for them to be brought before a judge.\n\n36.  The Court considers that, whether for administrative or any other purposes and irrespective of its length, the applicants' forced placement at the Van Security Directorate under the given circumstances amounted to a “deprivation of liberty” with a view to their deportation.\n\n37.  The Court points out that Article 5 § 1 of the Convention circumscribes the circumstances in which individuals may be lawfully deprived of their liberty, it being stressed that these circumstances must be given a narrow interpretation having regard to the fact that they constitute exceptions to a most basic guarantee of individual freedom (see Quinn v. France, 22 March 1995, § 42, Series A no. 311). By laying down that any deprivation of liberty should be “in accordance with a procedure prescribed by law”, Article 5 § 1 requires, firstly, that any arrest or detention should have a legal basis in domestic law (see Amuur v. France, 25 June 1996, § 50, Reports of Judgments and Decisions 1996III). The Convention here refers essentially to national law and establishes the need to apply its rules, but it also requires that any measure depriving the individual of liberty must be compatible with the purpose of Article 5, namely to protect the individual from arbitrariness (see Ashingdane v. the United Kingdom, 28 May 1985, § 44, Series A no. 93). What is at stake here is not only the “right to liberty” but also the “right to security of person”.\n\n38.  “Lawfulness” and “absence of arbitrariness” are common requirements for the whole of Article 5 of the Convention, including Article 5 § 1 (f). In this connection, particular safeguards against arbitrariness, such as the recording of accurate holding data concerning the date, time and location of detainees, as well as the grounds for the detention and the name of the persons effecting it, are necessary for the detention of an individual to be compatible with Article 5 § 1 (see Yasin Ateş v. Turkey, no. 30949/96, § 142, 31 May 2005). These rules apply equally for anyone who is deprived of their liberty, whether for administrative, criminal or any other purposes.\n\n39.  The Court therefore first needs to establish whether the requirements of “lawfulness” and the “absence of arbitrariness” were met before moving on to examine the issue of whether the applicants' deprivation of liberty was governed by the exceptions set out in Article 5 § 1 (f) of the Convention.\n\n40.  The Court notes in the instant case that the legal provisions referred to by the respondent Government (see paragraph 30 above) provide that foreigners who do not have valid travel documents or who cannot be deported are obliged to reside at places designated by the Ministry of the Interior. These provisions do not refer to a deprivation of liberty in the context of deportation proceedings. They concern the residence of certain groups of foreigners in Turkey, but not their detention. Nor do they provide any details as to the conditions for ordering and extending detention with a view to deportation, or set time-limits for such detention.\n\n41.  The Court finds that the applicants' deprivation of liberty, irrespective of its duration, did not have a sufficient legal basis in the particular circumstances (see Abdolkhani and Karimnia, cited above, § 133).\n\n42.  The Court further notes that the Government were requested to submit the applicants' deportation files and provide specific information as to the periods of detention, the overall length of their deprivation of liberty and the manner of their deportation. Among the documents submitted in reply, the Court observes that there are no records of holding data showing the date, time and location of the applicants' detention. It is not clear when, where and by whom exactly the applicants were apprehended and how long they had actually been deprived of their liberty before they were deported. The case file further contains no information regarding when and how the applicants were deported. In other words, there exists no information regarding the termination of the applicants' deprivation of liberty while they were still under the control of the Turkish authorities.\n\n43.  In view of the above, the Court finds that the deprivation of liberty to which the applicants were subjected did not have a strictly-defined statutory basis circumscribed by adequate safeguards against arbitrariness (see Nasrulloyev v. Russia, no. 656/06, § 77, 11 October 2007; Chahal v. the United Kingdom, 15 November 1996, § 118, Reports 1996V; and Saadi v. the United Kingdom [GC], no. 13229/03, § 74, ECHR 2008...). The national system thus failed to protect the applicants from arbitrary detention and, consequently, their detention cannot be considered “lawful” for the purposes of Article 5 of the Convention.\n\nThe Court concludes that there has been a violation of Article 5 § 1 of the Convention.\n\n(b)  Articles 5 §§ 2 and 4\n\n44.  Having regard to the above findings of violations stemming from the absence of holding data and thus the inability to determine the exact length of detention before deportation, the Court holds that no separate issue arises under Articles 5 §§ 2 and 4 of the Convention.\n\nIV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\nA.  Damage\n\n45.  The second, third and fourth applicants claimed 24,300 euros (EUR) in respect of pecuniary damage, mainly covering their expenses in Iraq, such as accommodation, food, clothing and telephone calls. They further alleged that they had had to pay two months of additional rent for their flat in Turkey following their deportation and that their belongings in Turkey had had to be sold urgently at a low price because of their need for money. They maintained that they could not work during their stay in Iraq and had thus been deprived of possible income. Furthermore, had they not been deported to Iraq they would have had been resettled in the United States during that period and would also have been entitled to a certain amount of income.\n\nThe applicants also claimed EUR 100,000 in respect of non-pecuniary damage.\n\n46.  The Government contested these claims and maintained that they were excessive.\n\n47.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore dismisses this claim.\n\nHowever, it considers that the applicants must have suffered nonpecuniary damage which cannot be compensated solely by the finding of violations. Having regard to equitable considerations, the Court therefore awards the second, third and fourth applicants EUR 9,000 each in respect of non-pecuniary damage.\n\nB.  Costs and expenses\n\n48. The second, third and fourth applicants also claimed EUR 4,100 for the costs and expenses incurred before the Court such as lawyers' fees, telephone calls, fax costs and taxi fees. In relation to their claim they referred to the Ankara Bar Association's scale of fees.\n\n49.  The Government contested these claims and maintained that only costs actually incurred could be reimbursed.\n\n50.  The Court considers that, in the absence of any relevant documents in support of these claims as required by Rule 60 of the Rules of Court, it makes no award under this head (see Gök and Güler v. Turkey, no. 74307/01, § 66, 28 July 2009).\n\nC.  Default interest\n\n51.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Decides to strike the application out of its list of cases in respect of the first and fifth applicants;\n\n2.  Declares admissible the complaints under Article 5 §§ 1, 2 and 4 concerning the unlawfulness of the remaining applicants' deprivation of liberty before their deportation, the lack of notification of the reasons for their detention, the ineffectiveness of the judicial review of the applicants' detention;\n\n3.  Declares the remainder of the applications inadmissible;\n\n4.  Holds that there has been a violation of Article 5 § 1 of the Convention;\n\n5.  Holds that no separate issue arises under Article 5 §§ 2 and 4 of the Convention;\n\n6.  Holds\n\n(a)  that the respondent State is to pay the second, third and fourth applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 9,000 (nine thousand euros) each, plus any tax that may be chargeable, in respect of non-pecuniary damage;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n7.  Dismisses the remainder of the applicants' claim for just satisfaction.\n\nDone in English, and notified in writing on 13 April 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_895","text":"PROCEDURE\n\n1  The case originated in an application (no. 61908/00) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Mehmet Güneş (“the applicant”), on 23 July 2000.\n\n3.  On 26 May 2005 the Court declared the application partly inadmissible and decided to communicate the complaints concerning the length of the applicant’s detention on remand and his right to a fair hearing within a reasonable time. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time.\n\nTHE FACTS\n\n4.  The applicant was born in 1951 and lives in .\n\n5.  On 16 July 1993 the applicant was taken into police custody by police officers from the anti-terrorist branch of the Istanbul Security Directorate on suspicion of membership in an illegal organisation, the TDP (Revolutionary Party of Turkey) and of possessing a false identity card. He was held in police custody until 30 July 1993.\n\n6.  On 30 July 1993 he was brought before a judge who ordered his detention on remand. He asserted that he had not signed any statement and claimed that he had been subjected to ill-treatment while in police custody.\n\n7.  On 15 September 1993 the Chief Public Prosecutor at the Istanbul State Security Court filed a bill of indictment with the latter charging the applicant under Article 168 § 1 of the Criminal Code with membership of an illegal organisation.\n\n8.  On 25 January 2000 the applicant was released from detention.\n\n9.  Between 16 July 1993 and 25 January 2000 the  held thirty-six hearings. The applicant requested to be released pending trial several times before the trial court. The  dismissed his request on all occasions, having regard to the state of the evidence, until 25 January 2000.\n\n10.  On 26 March 1996 the Istanbul State Security Court requested the Forensic Medical Institute to carry out an analysis as to whether the documents, which were submitted as written evidence, were drafted by the applicant and another co-accused, namely M.A.A..\n\n11.  Until 17 February 2004 the trial court postponed the hearings in order to wait for the Forensic Medical Institute’s report on the issue and to be informed about the prison that M.A.A had been detained.\n\n12.  On 17 February 2004 the  ordered that the criminal proceedings against the applicant be terminated on the ground that the statutory time-limit under Articles 102 and 104 of the Criminal Code had expired.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION\n\n13.  The applicant complained that his detention on remand exceeded the “reasonable time” requirement as provided in Article 5 § 3 of the Convention, which reads insofar as relevant as follows:\n\n“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”\n\n14.  The Government contested that argument.\n\nA.  Admissibility\n\n15.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n16.  The Government submitted that the  did not unduly prolong the applicant’s detention on remand. The offence with which the applicant was charged was of a serious nature, and his detention on remand was also necessary to prevent him from committing any further offences or from fleeing after having done so. The  took into consideration the very high risk of the applicant escaping of or removing evidence or traces, and there has been a genuine public interest for the continued detention of the applicant, since the offence attributed to him was of a serious nature.\n\n17.  The applicant maintained that the  relied on the “nature of the offence, the state of the evidence and the duration of the detention” when it rejected his requests for release pending trial, without having discussed the possibility of his destroying evidence or absconding. The applicant maintained that the grounds given by the  for his continued detention on remand had been insufficient.\n\n18.  The Court reiterates that it falls, in the first place, to the national judicial authorities to ensure that, in a given case, the detention of an accused person pending trial does not exceed a reasonable time. To this end they must examine all the facts arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty, and set them out in their decisions on the applications for release. It is primarily on the basis of the reasons given in these decisions and of the established facts mentioned by the applicant in his appeals that the Court must determine whether or not there has been a violation of Article 5 § 3 of the Convention (see Assenov and Others v. Bulgaria, judgment of 28 October 1998, Reports of Judgments and Decisions 1998VIII, § 154).\n\n19.  The persistence of reasonable suspicion that the person arrested has committed an offence is a sine qua non for the validity of the continued detention but, after a certain lapse of time, it no longer suffices. The Court must then establish whether the other grounds cited by the judicial authorities continue to justify the deprivation of liberty (see, among other authorities, Ilijkov v. Bulgaria, no. 33977/96, § 77, 26 July 2001, and Labita v. Italy [GC], no. 26772/95, §§ 152-153, ECHR 2000-IV).\n\n20.  The Court notes that, in the instant case, the period to be taken into consideration began on 16 July 1993 and ended on 25 January 2000, when the applicant was released. It thus lasted more than six years and six months. During this period, the  prolonged the applicant’s detention on remand using identical, stereotyped terms, such as “having regard to the nature of the offence, the state of evidence and the duration of detention”.\n\n21.  The Court takes note of the seriousness of the offence attributed to the applicant and the severity of the relevant punishment. However, it recalls that the danger of absconding cannot solely be assessed on the basis of the severity of the sentence risked, but must be analysed with reference to a number of other relevant additional elements, which may either confirm the existence of such a danger or make it appear so slight that it cannot justify detention pending trial (see Muller v. France, judgment of 17 March 1997, Reports 1997-II, § 43; Letellier v. France, judgment of 26 June 1991, Series A no. 207, § 43). In this regard, the Court notes the lack of such sufficient reasoning in the domestic court’s decisions to prolong the applicant’s remand in custody.\n\n22.  Finally, although, in general, the expression “the state of evidence” may be a relevant factor for the existence and persistence of serious indications of guilt, in the present case it nevertheless, alone, cannot justify the length of the detention of which the applicant complains (see Letellier, cited above; Tomasi v. France, judgment of 27 August 1992, Series A no. 241A; Mansur v. Turkey, judgment of 8 June 1995, Series A no. 319B, § 55, and Demirel v. , no. 39324/98, § 59, 28 January 2003).\n\n23.  The foregoing considerations are sufficient to enable the Court to conclude that the length of the applicant’s detention on remand, which lasted over six years and six months and eleven days, given the stereotype reasoning of the court, has not been shown to be justified.\n\n24.  There has accordingly been a violation of Article 5 § 3 of the Convention.\n\nII.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION\n\n25.  The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, provided in Article 6 § 1 of the Convention, which reads insofar as relevant as follows:\n\n“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”\n\n26.  The Government contested that argument.\n\nA.  Admissibility\n\n27.  The Court considers that this complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It concludes therefore that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.\n\nB.  Merits\n\n28.  The Government contended that the length of the case was not excessive and that there was no negligence on the part of the national authorities. The case was complex, considering the difficulties in collecting evidence, and the trial court waited for the Forensic Medical Institute’s report concerning an analysis as to whether the documents, which submitted as written evidence, were drafted by the applicant.\n\n29.  The Court notes that the period to be taken into consideration began on 16 July 1993, when the applicant was taken into police custody, and ended on 17 February 2004, when the Istanbul State Security Court ordered that the criminal proceedings against the applicant be terminated on the ground that the statutory time-limit under Article 102 and 104 of the Criminal Code had expired. The proceedings lasted approximately ten years and seven months before one level of jurisdiction.\n\n30.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II)\n\n31.  Having examined all the material submitted to it and having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.\n\nThere has accordingly been a breach of Article 6 § 1.\n\nIII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n32.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n33.  The applicant claimed 45,000 euros (EUR) in respect of pecuniary damage. He further claimed a total of EUR 25,700 for nonpecuniary damage.\n\n34.  The Government disputed these claims.\n\n35.  As regards the alleged pecuniary damage sustained by the applicant, the Court observes that he has not produced any document in support of his claim. Accordingly, the Court dismisses the applicant’s claims in respect of pecuniary damage.\n\n36.  With regard to the non-pecuniary damage, the Court considers that the applicant may have suffered a certain amount of distress in the circumstances of the case. Taking into account the circumstances of the case and having regard to its case-law, the Court awards the applicant EUR 9,000 under that head.\n\nB.  Costs and expenses\n\n37.  The applicant also claimed EUR 10,542 for the costs and expenses incurred before the domestic courts and the Court.\n\n38.   The Government maintained that only those expenses which were actually and necessarily incurred could be reimbursed. In this connection, they submitted that the applicant and his representative had failed to submit documents showing the costs and expenses.\n\n39.  According to the Court’s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award to EUR 1,500 covering costs and expenses.\n\nC.  Default interest\n\n40.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Declares the remainder of the application admissible;\n\n2.  Holds that there has been a violation of Article 5 § 3 of the Convention;\n\n3.  Holds that there has been a violation of Article 6 § 1 of the Convention;\n\n4.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into new Turkish liras at the rate applicable at the date of settlement:\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n5.  Dismisses the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 21 September 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_28","text":"PROCEDURE\n\n1.  The case originated in an application (no. 61454/00) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mrs Magdalena Janas (“the applicant”), on 13 January 2000.\n\n2.  The applicant was represented by Mr Zbigniew Cichoń, a lawyer practising in Kraków. The Polish Government (“the Government”) were represented by their Agents, Mr K. Drzewicki and Mr. J.Wołąsiewicz, of the Ministry of Foreign Affairs.\n\n3.  On 10 July 2001 the Court decided to communicate the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.\n\nTHE FACTS\n\n4.  The applicant was born in 1948 and lives in .\n\n5.  The applicant and a co-operative “PSS Społem” were co-owners of an estate in Zakopane. On 29 November 1995 the co-operative filed with the Zakopane District Court (Sąd Rejonowy) an application for dissolution of the co-ownership of the estate.\n\n6.  The court held hearings on 10 and 24 January 1996. On the latter date it ordered an expert opinion. On 21 February 1996 the court held a viewing of the site. On 19 April 1996 the expert submitted his opinion to the trial court. On 27 May 1996 the court ordered that a supplementary expert opinion be obtained. It was submitted to the court on 28 June 1996.\n\n7.  At the hearing held on 18 September 1996 the court heard evidence from an expert. The court further ordered him to prepare a supplementary opinion. It was submitted to the court on 10 October 1996.\n\n8.  On 3 February 1997 the court held a hearing and appointed a new expert. On 30 June 1997 the new expert submitted his opinion to the court.\n\n9.  At the hearing held on 21 January 1998 the court decide to obtain evidence from yet another expert. The opinion was submitted to the court on 17 June 1998.\n\n10.  In her pleading of 3 September 1998 the applicant submitted a new proposal concerning the division of the estate. On 28 September 1998 she revoked it.\n\n11.  The court held hearings on 16 December 1998, 22 February and 7 April 1999. On 17 December 1999 the court held a hearing and heard evidence from an expert. At that hearing the applicant authorised her father, who was a court expert, to represent her in the proceedings. As a result, the judge rapporteur asked to be excluded from dealing with the case. On 7 January 2000 the District Court acceded to his request.\n\n12.  On 24 January 2000 the applicant challenged the impartiality of all judges sitting in the Zakopane District Court. On 7 March 2000 the  (Sąd Okręgowy) dismissed the applicant's challenge.\n\n13.  On 15 September 2000 the court held a hearing and ordered another expert opinion. Subsequent hearings were held on 23 April and 23 May 2001. On 6 June 2001 the District Court gave judgment. The applicant appealed. It appears that the proceedings are pending.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION\n\n14.  The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, provided in Article 6 § 1 of the Convention, which reads as follows:\n\n“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”\n\n15.  The Government contested that argument.\n\n16.  The period to be taken into consideration began on 29 November 1995. In the light of the material available to the Court at the date of the adoption of the present judgment, the proceedings are still pending. Their length has accordingly amounted to nearly 8 years and 10 months.\n\nA.  Admissibility\n\n17.  The Court notes that the application is not manifestly illfounded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n18.  The Government submitted that the case had been complex. They referred to the fact that the trial court needed to obtain several expert opinions. They further claimed that the authorities had shown due diligence in the proceedings. The hearings had been scheduled regularly and the District Court had effectively supervised the experts. Moreover, they stressed that the applicant had contributed to the prolongation of the proceedings since she had modified her position. Lastly, they alleged that “special diligence” had not been required on the part of the domestic authorities in this case. They invited the Court to find that there had been no violation of Article 6 § 1 of the Convention.\n\n19.  The applicant replied that some of the expert opinions had been irrelevant for the determination of her claim. She submitted that there had been significant periods of inactivity between the hearings. She further agreed that her challenge of the impartiality of judges sitting in the District Court contributed to some extent to the length of the proceedings but it could not explain their overall duration. In conclusion she stressed that there had been a violation of Article 6 § 1.\n\n20.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the criteria established by its case-law, particularly the complexity of the case, the conduct of the applicant and of the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII, Humen v. Poland [GC], no. 26614/95, 15 October 1999, § 60).\n\n21.  The Court considers that, even though the case was of some complexity, it cannot be said that this in itself justified the entire length of the proceedings.\n\n22.  As to the conduct of the applicant the Court notes that it is true that the applicant had modified her claim, and challenged the impartiality of judges sitting in the District Court, however it does not appear that this significantly prolonged the trial.\n\n23.  Considering the conduct of the authorities the Court observes that there were several periods of inactivity in the proceedings i.e. between 30 June 1997 and 21 January 1998, 17June 1998 and 16 December 1998, 7 April 1999 and 17 December 1999. There were also delays resulting from the slow process of obtaining evidence.\n\n24.  Consequently, having regard to the circumstances of the case and taking into account the overall duration of the proceedings, the Court finds that the “reasonable time” requirement laid down in Article 6 § 1 of the Convention was not complied with in the present case.\n\n25.  There has accordingly been a violation of Article 6 § 1 of the Convention.\n\nII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n26.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n27.  The applicant sought an award of 30,000 Polish zlotys in respect of nonpecuniary damage that she had suffered as a result of the protracted length of the proceedings.\n\n28.  The Government submitted that the applicant's claim was excessive.\n\n29  The Court considers that the applicant certainly suffered nonpecuniary damage, such as distress and frustration on account of the protracted length of the proceedings, which cannot sufficiently be compensated by finding a violation. Taking into account the circumstances of the case and making its assessment on an equitable basis, the Court awards the applicant a total sum of 4,500 euros (“EUR”) under that head.\n\nB.  Costs and expenses\n\n30.  The applicant also claimed 20,180.49 Polish zlotys for costs and expenses incurred before the domestic courts and before the Court. This amount included 8,000 Polish zlotys in lawyer's fees for preparation and presentation of her case before the Court.\n\n31.  The Government invited the Court to make an award, if any, only in so far as the costs and expenses were actually and necessarily incurred and were reasonable as to quantum. They relied on the Zimmerman and Steiner v. Switzerland judgment of 13 July 1983 (Series A no. 66, p. 14, § 36). They further stressed that the applicant's representative joined the proceedings before the Court at a final stage, after the exchange of observations on admissibility and merits.\n\n32.  According to the Court's case-law, an applicant is entitled to reimbursement of the costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings and making its assessment on an equitable basis considers it reasonable to award the sum of EUR 500 for the proceedings before the Court.\n\nC.  Default interest\n\n33.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Declares the application admissible;\n\n2.  Holds that there has been a violation of Article 6 § 1 of the Convention;\n\n3.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 4,500 (four thousand five hundred euros) in respect of non-pecuniary damage and EUR 500 (five hundred euros) in respect of costs and expenses to be converted into Polish zlotys at the rate applicable at the date of the settlement, plus any tax that may be chargeable on the above amounts;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n4.  Dismisses the remainder of the applicant's claim for just satisfaction.\n\nDone in English, and notified in writing on 21 September 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_501","text":"PROCEDURE\n\n1.  The case originated in an application (no. 33870/96) against the Republic of Poland lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Henryk Fuchs (“the applicant”), on 1 May 1995.\n\n2.  The applicant, who had been granted legal aid, was represented by Mr Wojciech Hermeliński, a lawyer practising in Warsaw, Poland. The Polish Government (“the Government”) were represented by their Agent, Mr Krzysztof Drzewicki, of the Ministry of Foreign Affairs\n\n3.  The applicant alleged, in particular, that in two sets of administrative proceedings in which he had been involved the Polish courts had not respected his right to a “hearing within a reasonable time”.\n\n4.  The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).\n\n5.  The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1 of the Rules of the Court.\n\n6.  On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Fourth Section (Rule 52 § 1).\n\n7.  By a decision of 11 December 2001 the Court declared the application partly admissible.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n8.  The applicant was born in 1925 and lives in Ozorków, Poland.\n\n9.  The applicant is the owner of a plot of land in Ozorków. Since 1989 construction works have been carried out by the applicant’s neighbours (J.C. and Z.W., F.W.) on their plots of land, adjoining his property.\n\nA.  Proceedings concerning the building permit.\n\n10.  On 4 July 1989 the Mayor of Ozorków (Naczelnik Miasta) issued a planning permission concerning the construction of an outhouse (plan realizacyjny budynku gospodarczego) in favour of J.C. The applicant appealed. On 30 August 1989 the Łódź Municipal Office dismissed the applicant’s appeal. On 1 June 1990 the Supreme Administrative Court (Naczelny Sąd Administracyjny) quashed the contested decision.\n\n11.  On 16 October 1992 the Mayor of Ozorków (Burmistrz) granted J.C. a building permit concerning the construction of an outhouse, a garage, a vestibule and a toilet adjacent to the existing house.\n\n12.  On 18 June 1993 J.C. requested the Mayor of Ozorków to grant her a fresh building permit. This was granted on 23 June 1993. The new building permit was to “annul and replace” (“unieważnia i zastępuje”) the one issued on 16 October 1992. Both the applicant and J.C. appealed against the building permit of 23 June 1993.\n\n13.  On 20 August 1993 the Łódź Governor (Wojewoda) quashed the decision of 23 June 1993 and remitted the case to the Mayor of Ozorków.\n\n14.  In the meantime, on 21 June 1993, the Zgierz District Office (Urząd Rejonowy) had inspected J.C.’s construction site. On 24 June 1993 it ordered that the construction works concerning the adjacent dwelling be stayed.\n\n15.  On 23 July 1993 the Łódź Governor reopened the proceedings relating to the building permit of 16 October 1992. On 17 September 1993 the Mayor of Ozorków issued two building permits in favour of J.C. The first permit allowed her to continue the construction of an adjacent dwelling and approved the planning permission. The second permit allowed J.C. to build an outhouse and a garage and approved the planning permission.\n\n16.  The applicant appealed against both these decisions. He failed, however, to pay the fees due for lodging an appeal. As a consequence, on 6 November 1993, the Łódź Governor returned the appeal to the applicant.\n\n17.  Later, the applicant appealed to the Minister of Construction (Minister Gospodarki Przestrzennej i Budownictwa). On 24 December 1993 the Minister set aside both decisions and ordered that the Łódź Governor should examine the merits of the appeal, notwithstanding the applicant’s failure to pay the fees. On 2 February 1994 the Łódź Governor upheld the contested decisions.\n\n18.  On 3 October 1994, upon the applicant’s appeal, the Supreme Administrative Court quashed the decision relating to the issue of the building permit in respect of the adjacent dwelling and declared null and void the building permit relating to the outhouse and the garage. The court found that the original decision of 16 October 1992 was still in force as the decision of 23 June 1993 had been quashed on 20 August 1993.\n\n19.  As a consequence, on 15 February 1995, the Łódź Governor quashed the decision granting the building permit of 16 October 1992 and remitted the case to the Mayor of Ozorków.\n\n20.  On an unspecified date the applicant filed a complaint with the Łódź Governor, alleging inactivity on the part of the Mayor of Ozorków. On 1 June 1995 the Łódź Governor found that the applicant’s complaint was indeed well-founded and obliged the Mayor of Ozorków to render a decision before 14 June 1995.\n\n21.  On 9 August 1995 the Mayor of Ozorków issued a building permit authorising J.C. “to continue the construction of the outhouse and the garage”. The applicant appealed against this decision.\n\n22.  On 18 September 1995 the Łódź Governor set aside the impugned decision and discontinued the proceedings before the Mayor of Ozorków.\n\n23.  On 17 October 1995 the Mayor of Ozorków issued a decision authorising J.C. to use the adjacent dwelling. The applicant appealed against this decision.\n\n24.  On an unspecified date the applicant filed a complaint with the Supreme Administrative Court, alleging inactivity on the part of the Mayor of Ozorków. The complaint was dismissed on 10 January 1996.\n\n25.  On 29 February 1996 the Chief Inspector of the Construction Supervision (Główny Inspektor Nadzoru Budowlanego), of his own motion, declared the decision of 15 February 1995 null and void.\n\n26.  On 26 July 1996 the Łódź Regional Office (Urząd Wojewódzki), having regard to the latter decision, stayed two sets of proceedings instituted upon the applicant’s appeal against the decisions of 9 August and 17 October 1995. The applicant appealed against these decisions but his appeals were dismissed on 29 and 30 August 1996 respectively.\n\n27.  On 14 November 1996, upon the applicant’s request, proceedings leading to the verification of the validity of the decision of 29 February 1996 were instituted.\n\n28.  It appears that at the same time the applicant repeatedly requested the authorities to intervene with regard to the construction in question and to order a socalled “compulsory demolition” (przymusowa rozbiórka). On 9 December 1996 the Ozorków Municipal Office refused to take any steps in respect of the applicant’s above request.\n\n29.  Apparently, the works were continued at least until 24 May 1997 when the Mayor of Ozorków ordered that they be stayed. The applicant appealed against this decision and requested that a demolition order be issued. On 13 June 1997 the Łódź Governor set aside the decision staying the construction and discontinued the proceedings.\n\n30.  On 28 May 1997, after having reopened the proceedings, the Mayor of Ozorków set aside the building permit issued on 16 October 1992 and discontinued the proceedings in this respect.\n\n31.  On 16 September 1997 the Łódź Governor decided, of his own motion, to resume two sets of appeal proceedings, which had been stayed on 26 July 1996. On 18 September 1997, the Łódź Governor set aside two decisions of the Mayor of Ozorków of 9 August and 17 October 1995. The Łódź Governor discontinued the proceedings in these two cases.\n\n32.  On 22 October 1997 the Mayor of Ozorków issued a building permit authorising J.C. to continue the construction of the outhouse and the garage.\n\n33.  On 25 October 1997 the Mayor authorised J.C. to use the adjacent dwelling.\n\n34.  On 26 January 1998 the Łódź Governor rejected the applicant’s appeal against both decisions of the Mayor. The applicant filed two further appeals with the Supreme Administrative Court against the decisions of the Governor.\n\n35.  On 18 May 2001 the Supreme Administrative Court set aside the decision of the Łódź Governor and the earlier decision of the Mayor of Ozorków of 22 October 1997. The case was remitted to the Mayor of Ozorków.\n\n36.  It appears that the proceedings are pending.\n\nB.  Proceedings concerning the demolition order.\n\n37.  Z.W. and F.W. built a house under a building permit issued on an unspecified date before 1990. Apparently, they also built an outhouse (budynek gospodarczy), adjoining the applicant’s dwelling house. On 7 March 1990 the Mayor of Ozorków ordered that the outhouse be demolished.\n\n38.  On 6 December 1990 the Mayor of Ozorków decided to reopen the proceedings relating to the demolition order and altered the decision of 7 March 1990. He authorised Z.W. and F.W. to use the outhouse.\n\n39.  On 6 March 1991, upon the applicant’s appeal, the Łódź Governor quashed the contested decision and discontinued the proceedings. On the same date the Łódź Governor quashed the demolition order of 7 March 1990 and remitted the case to the first-instance organ.\n\n40.  On 17 January 1992 the Mayor of Ozorków granted Z.W. and F.W. a permit to use the outhouse and the garage.\n\n41.  On 17 March 1992, upon the applicant’s appeal, the Łódź Governor quashed the contested decision and referred the case to the Zgierz District Office (Urząd Rejonowy).\n\n42.  On 28 April 1992 the Zgierz District Office ordered that the outhouse and the garage be demolished by 30 September 1992.\n\n43.  On 29 June 1992, upon an appeal filed by Z.W. and F.W., the Łódź Governor upheld the demolition order.\n\n44.  Since Z.W. and F.W. had not complied with the order, enforcement proceedings were instituted by the Zgierz District Office on 29 December 1992. On the same date the Zgierz District Office imposed a fine on Z.W and F.W. for non-compliance with the order. The Łódź Governor dismissed their appeal against this decision on 30 March 1993.\n\n45.  On 16 April 1993 the Zgierz District Office again imposed a fine on Z.W and F.W. Their appeal against this decision was dismissed by the Łódź Governor on 12 July 1993.\n\n46.  On 14 July 1993, upon Z.W.’s and F.W.’s request, the Łódź Governor reopened the proceedings concerning the construction of the outhouse and the garage and referred the case to the Mayor of Ozorków.\n\n47.  On 16 July 1993 the Mayor of Ozorków issued a decision authorising Z.W. and F.W. to use the outhouse as a dwelling. The applicant appealed against this decision.\n\n48.  On an unspecified date, upon Z.W.’s and F.W.’s requests, the Zgierz District Office instituted proceedings concerning the discontinuation of the enforcement proceedings instituted under the demolition order of 28 April 1992. On 27 August 1993 these proceedings were stayed since the legality of the permit of 16 July 1993 had in the meantime been called in question by the Ozorków Municipal Office (of its own motion).\n\n49.  On an unspecified date the applicant lodged a complaint with the Supreme Administrative Court, alleging inactivity on the part of the Łódź Governor. The complaint was rejected on 3 October 1994.\n\n50.  On 4 October 1993 the Łódź Governor, acting of his own motion, declared the permit of 16 July 1993 null and void.\n\n51.  On 1 March 1995 the Chief Inspector of the Construction Supervision quashed the decision of the Łódź Governor of 4 October 1993 and discontinued the proceedings. The Chief Inspector found that since the applicant had appealed against the decision of 16 July 1993, his appeal should have been examined. On 9 June 1995 the Łódź Governor set aside the contested decision and discontinued the proceedings.\n\n52.  On 26 June 1995 Z.W. requested the Chief Inspector of the Construction Supervision to declare the demolition order null and void. On 25 November 1995 her request was dismissed. Z.W. appealed but on 6 February 1996 the Chief Inspector upheld his decision.\n\n53.  Later, Z.W. filed a further appeal with the Supreme Administrative Court. On 30 December 1997 her appeal was dismissed.\n\n54.  On an unspecified date the applicant requested the Zgierz District Office to enforce the demolition order. On 30 April 1998 the District Office informed him that his request could not be dealt with within a statutory time-limit of one month as the explanatory proceedings had to be carried out; however, the request would be dealt with by 30 May 1998.\n\n55.  On 7 May 1998 the Zgierz District Office imposed yet another fine on Z.W. and F.W. for non-compliance with the demolition order. On 22 October 1998 the Łódź Governor upheld the decision of 7 May 1998.\n\n56.  On an unspecified date in 1998 the applicant lodged a complaint with the Supreme Administrative Court, alleging inactivity on the part of the Head of the Zgierz District Office (Kierownik Urzędu Rejonowego) in enforcing the demolition order.\n\n57.  On 17 November 1999 the Zgierz Local Inspector of Construction Supervision (Powiatowy Inspektor Nadzoru Budowlanego) issued a writ of enforcement (tytuł wykonawczy) against Z.W. and F.W. It also imposed a fine on them.\n\n58.  On 23 February 2000 the Supreme Administrative Court dismissed the applicant’s complaint about the inactivity of the Zgierz District Office in enforcing the demolition order. It found that the enforcement proceedings had lasted unjustifiably long and that they should be completed as soon as possible. However, the Supreme Administrative Court considered that the inactivity of the respondent authority was not established and that the District Office had recently taken decisions aimed at enforcement of the demolition order which could lead to its actual execution in the nearest future.\n\n59.  It appears that the proceedings are still pending.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION\n\n60.  The applicant complained that in both sets of the proceedings in which he had been involved the competent authorities had not respected his right to a “hearing within a reasonable time” and alleged a breach of Article 6 § 1 which, in its relevant part, reads:\n\n“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”\n\n61.  The Government contested this view.\n\nA.  The Court’s case-law\n\n62.  The Court recalls that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in the Court’s case-law, in particular the complexity of the case, the conduct of the applicant and of the relevant authorities, and the importance of what was at stake for the applicant in the litigation (see, for instance, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII; and Humen v. Poland [GC], no. 26614/95, § 60, 15 October 1999, unreported).\n\nB.  Proceedings concerning the building permit\n\n1.  Period to be taken into consideration\n\n63.  The proceedings started on 4 July 1989, when the Mayor of Ozorków issued a planning permission. However, the period to be taken into consideration began not on that date, but on 1 May 1993, when the declaration whereby Poland recognised the right of individual petition for the purposes of former Article 25 of the Convention took effect. The proceedings are apparently still pending. The total length of the applicant’s case at the date of the adoption of this judgment accordingly amounts to 13 and a half years, of which the period of over 9 years and 8 months falls within the Court’s jurisdiction ratione temporis.\n\n64.  The Court notes that in order to assess the reasonableness of the length of time in question, regard must be had to the stage reached in the proceedings on 1 May 1993 (see, among other authorities, Humen v. Poland cited above, §§ 58-59).\n\n2.  The arguments of the parties\n\n65.  The Government did not comment on the compliance of the length of proceedings with the “reasonable time” requirement.\n\n66.  The applicant contended that the length of the proceedings at issue was in breach of Article 6 § 1 of the Convention.\n\n3.  The Court’s assessment\n\n67.  The Court observes that the applicant’s case was certainly of more than average complexity. That, however, cannot justify the total, significant length of the proceedings.\n\n68.  The Court finds no evidence to demonstrate that at any subsequent stage of the proceedings the applicant showed dilatory conduct or otherwise disrupted the proper conduct of the trial. In view of that, the Court considers that his conduct did not contribute to the length of the proceedings.\n\n69.  The Court notes that since 1 May 1993, when Poland recognised the right of individual petition, there were periods of lack of progress in the proceedings. In particular, the Court underlines that the number of decisions concerning the legality of the building permit of 16 October 1992 demonstrates that the authorities did not act with due diligence (see paragraphs 11-18 above). Furthermore, the Court observes that there were periods of inactivity in the proceedings before the Supreme Administrative Court, following the applicant’s appeals against the Governor’s decisions of 26 January 1998. In the first set of these proceedings, after a delay of three years and a half, the Supreme Administrative Court gave judgment on 18 May 2001 and remitted the case to the Mayor of Ozorków. The second set of the proceedings seems to be pending before the Supreme Administrative Court. The lack of progress in the trial resulted in a delay of almost five years (see paragraphs 34 and 35 above). As no explanation has been provided for these periods of inactivity the delays have to be attributed to the national authorities.\n\n70.  Having regard to the circumstances of the case and taking into account the overall duration of the proceedings, the Court finds that the “reasonable time” requirement laid down in Article 6 § 1 of the Convention was not complied in the present case. There has therefore been a violation of that provision.\n\nC.  Proceedings concerning the demolition order\n\n1.  Period to be taken into consideration\n\n71.  The proceedings started on 7 March 1990, when the Mayor of Ozorków issued the first demolition order. However, the period to be taken into consideration began not on that date, but on 1 May 1993, when the declaration whereby Poland recognised the right of individual petition for the purposes of former Article 25 of the Convention took effect. The proceedings are apparently still pending. The total length of the proceedings in the applicant’s case at the date of the adoption of this judgment accordingly amounts to over 12 years and 10 months, of which the period of over 9 years and 8 months falls within the Court’s jurisdiction ratione temporis.\n\n72.  The Court notes that in order to assess the reasonableness of the length of time in question, regard must be had to the stage reached in the proceedings on 1 May 1993 (see, among other authorities, Humen v. Poland cited above, §§ 58-59).\n\n2.  The Arguments of the parties\n\n73.  The Government did not comment on the compliance of the length of proceedings with the “reasonable time” requirement.\n\n74.  The applicant contended that the length of the proceedings at issue was in breach of Article 6 § 1 of the Convention.\n\n3.  The Court’s assessment\n\n75.  The Court considers that the case is not of particular complexity. It does not find any indication that the applicant’s conduct caused any discernible delays in the proceedings. However, the Court notes that certain delays are attributable to the applicant’s neighbours. It observes that they lodged several appeals against the decisions imposing fines on them for non-compliance with the demolition order (see paragraphs 44-45 and 55 above).\n\n76.  The Court also observes that there was a period of inactivity of one year and a half following the ex officio decision of the Łódź Governor of 4 October 1993 which was quashed on 1 March 1995 by the Chief Inspector of the Construction Supervision. In addition, the Court notes that the Supreme Administrative Court in its judgment of 23 February 2000 considered that the enforcement proceedings had lasted unduly long (see paragraph 58 above). Finally, the Court observes that as the case file stands today it appears that the demolition order issued on 28 April 1992 has not been yet enforced.\n\n77.  Having regard to the circumstances of the case and taking into account the overall duration of the proceedings, the Court finds that the “reasonable time” requirement laid down in Article 6 § 1of the Convention was not complied in the present case. There has therefore been a violation of that provision.\n\nII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n78.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n79.  The applicant did not claim any pecuniary damage. However, under the head of non-pecuniary damage, he asked the Court to award him PLN 100,000 [approximately EUR 25,000].\n\n80.  The Government considered that the amount claimed was inordinately excessive.\n\n81.  The Court accepts that the applicant has certainly suffered non-pecuniary damage, such as distress and frustration resulting from the undue prolongation of his cases. Making its assessment on equitable basis, the Court awards the applicant EUR 8,000 under this head.\n\nB.  Costs and expenses\n\n82.  The applicant, who received legal aid from the Council of Europe in connection with the presentation of his case, sought reimbursement of 1,500 US dollars for costs and expenses incurred in the proceedings before the Court.\n\n83.  The Government maintained that this claim was excessive.\n\n84.  The Court has assessed the claim in the light of the criteria laid down in its caselaw (see Nikolova v. Bulgaria [GC], no. 31195/96, § 79, ECHR 1999-II; Baranowski v. Poland, no. 28358/95, § 85, ECHR 2000-III; and Kudła v. Poland [GC], no. 30210/96, § 168, ECHR 2000-XII).\n\nApplying the said criteria to the present case and making its assessment on an equitable basis, the Court considers it reasonable to award the applicant EUR 1,500 for his costs together with any value-added tax that may be chargeable, less the EUR 630 received by way of legal aid from the Council of Europe.\n\nC.  Default interest\n\n85.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank to which should be added three percentage points (see Christine Goodwin v. the United Kingdom [GC], no. 28957/97, § 124, to be published in ECHR 2002...).\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Holds that there has been a violation of Article 6 § 1 of the Convention on the account of the excessive length of the proceedings concerning the building permit;\n\n2.  Holds that there has been a violation of Article 6 § 1 of the Convention on the account of the excessive length of the proceedings concerning the demolition order;\n\n3.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts:\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n4.  Dismisses unanimously the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 11 February 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_268","text":"PROCEDURE\n\n1.  The case originated in an application (no. 53723/13) against the Republic of Slovenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovenian national, Mr Stanislav Zavodnik (“the applicant”), on 25 May 2010.\n\n2.  The applicant was represented by Ms A. Grad Pečnik, a lawyer practising in Celje. The Slovenian Government (“the Government”) were represented by their Agent, Mrs V. Klemenc, State Attorney.\n\n3.  The applicant complained, under Article 6 of the Convention, that a set of bankruptcy proceedings had been unfair. He also complained, under Articles 6 and 13 of the Convention, of the excessive length of the proceedings and the ineffectiveness of remedies in that connection.\n\n4.  On 16 December 2010 the case was communicated to the Government.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n5.  The applicant was born in 1938 and lives in Ravne na Koroškem.\n\n6.  In 1993 his former employer, company Z. R., transferred him to another company.\n\nA.  Employment and enforcement proceedings\n\n7.  On 20 April 1993 the applicant instituted proceedings against the company Z.R. before the Maribor Court of Associated Labour, complaining about his transfer.\n\n8.  On 28 June 1994 the Convention came into force in respect of Slovenia.\n\n9.  In September 1995 the applicant’s case was transferred to the Slovenj Gradec division of the Maribor Labour Court.\n\n10.  Between February 1996 and March 1997 the court held five hearings.\n\n10.  Between February 1996 and March 1997 the court held five hearings.\n\n11.  On 13 March 1997 the Maribor Labour Court established that the applicant’s transfer had never taken effect and that his employment with the defendant had continued. It ordered company Z.R. to re-employ the applicant and to pay him the salary due and the applicable benefits backdated to the day of his transfer. It dismissed the remainder of the claim. The applicant appealed.\n\n12.  In a decision of 16 April 1999 the Slovenian Pensions and Disability Insurance Institute recognised the applicant’s right to a pension as of 1 February 1999. His employment relationship with Z.R., which as of that date had still not re-employed him, hence terminated.\n\n13.  On 17 June 1999 the judgment of 13 March 1997 was upheld by the Higher Labour and Social Court and became final.\n\n14.  As Z.R. had not executed the court’s judgment, on 6 April 2000 the applicant instituted enforcement proceedings before the Slovenj Gradec Local Court.\n\n15.  On 12 July 2000 the court suspended the enforcement proceedings pending a final resolution of bankruptcy proceedings which had been instituted in the meantime against Z.R. (see below).\n\n16.  On 3 February 2005 the court decided to terminate the enforcement proceedings, since the applicant’s claims had been recognised in the bankruptcy proceedings. The decision became final on 22 February 2005.\n\nB.  Bankruptcy proceedings\n\n.  On 5 July 2000 the Slovenj Gradec District Court decided to institute bankruptcy proceedings against the company Z.R.\n\n.  On 31 August 2000 the applicant lodged a claim in the bankruptcy proceedings, seeking 2,000,000 Slovenian tolars (SIT, approximately 8,346 euros (EUR)) payable under the judgment of 13 March 1997 (see paragraph 11 above).\n\n.  On 31 August 2000 the applicant lodged a claim in the bankruptcy proceedings, seeking 2,000,000 Slovenian tolars (SIT, approximately 8,346 euros (EUR)) payable under the judgment of 13 March 1997 (see paragraph 11 above).\n\n19.  On 11 October 2000 the court held the first main hearing in order to review the claims lodged by the creditors. It was decided that a committee of creditors would not be appointed. According to the applicant, both the receiver and the insolvency panel had assured him and his son, U.Z., who represented him, that they would inform them of any progress in the case, in particular of the scheduling of hearings concerning the distribution of the estate. On the same date the insolvency panel acknowledged part of the applicant’s claims and referred him to the contentious proceedings in respect of the remainder of the claims. The applicant appealed.\n\n20.  On 5 December 2000 the Maribor Higher Court upheld the applicant’s appeal and overturned the District Court’s decision by instructing the receiver to institute proceedings in respect of the disputed part of the applicant’s claim.\n\n21.  On 22 January 2000 the official receiver instituted proceedings before the Slovenj Gradec District Court, requesting it to declare that the disputed part of the applicant’s claim did not exist.\n\n21.  On 22 January 2000 the official receiver instituted proceedings before the Slovenj Gradec District Court, requesting it to declare that the disputed part of the applicant’s claim did not exist.\n\n22.  On 20 June 2001 the receiver reported to the insolvency panel that the conclusion of the proceedings was dependent on the conclusion of bankruptcy proceedings in respect T., a company that had been operated by Z.R. It was expected that a large proportion of T.’s property would be transferred back to Z.R., including a hotel and spa complex, R.V. The receiver estimated that until that had been done, the property available for sale would not even cover the costs of the bankruptcy proceedings.\n\n23.  On 8 April 2003 the receiver withdrew his claim against the applicant.\n\n24.  As a result, on 5 May 2004 the Slovenj Gradec District Court stayed the contentious proceedings.\n\n25.  On 1 February 2005 the receiver accepted the applicant’s claim in the full amount.\n\n26.  On 18 February 2005 the applicant demanded the payment of his claim.\n\n27.  In his regular reports to the insolvency panel submitted between 2004 and 2006, the receiver emphasised that the termination of the present proceedings was dependent on the termination of the bankruptcy proceedings in respect of company T., which in turn were dependent on the pending denationalisation proceedings in respect of the R.V. hotel complex.\n\n28.  In 2006 ownership of the hotel complex, R.V., was transferred to the company Z.R. According to the receiver’s reports, it could not be sold until the termination of the denationalisation proceedings.\n\n.  On 24 October 2007 the denationalisation proceedings were finally resolved.\n\n.  On 16 April 2008 the insolvency panel ordered the sale of the R.V. hotel complex.\n\n.  On 16 April 2008 the insolvency panel ordered the sale of the R.V. hotel complex.\n\n31.  At a public auction held on 18 May 2008, R.V. was sold for EUR 501,426. Reports on the sale were published online on the Bajta.si web portal, on a web portal for accountants, Racunovodja.si, on the Slovenian Press Agency website, and in the daily financial newspaper, Finance.\n\n32.  On 17 June 2008 the receiver submitted to the court a draft proposal on the main distribution of the estate. The receiver further proposed that the court issue a decision on the priority payment of the claim of the first creditor, F.F., concerning compensation for damage sustained at work, which had been recognised by a court decision.\n\n.  On 19 June 2008 the Slovenj Gradec District Court issued a decision on the compensation to be paid to F.F. and posted it on the court’s notice board.\n\n.  On 19 June 2008 the Slovenj Gradec District Court issued a decision on the compensation to be paid to F.F. and posted it on the court’s notice board.\n\n34.  On 30 June 2008 the insolvency panel of the District Court endorsed a draft proposal on the distribution of the bankrupt company’s estate to the nineteen remaining creditors. It was proposed that each of them receive 2.85% of the claim acknowledged in the proceedings, which in the applicant’s case amounted to EUR 237,86. The court scheduled a further hearing for 10 September 2008 to confirm the distribution of the estate.\n\n.  On the same day, 30 June 2008, the District Court published its decision and posted the notification of the hearing on the court’s notice board. It informed the creditors that they could lodge their objections in respect of the distribution proposal at the hearing itself or in writing before the hearing.\n\n36.  On 11 July 2008 the notification of the hearing, with its date and venue, was published in the Official Gazette.\n\n36.  On 11 July 2008 the notification of the hearing, with its date and venue, was published in the Official Gazette.\n\n37.  On 10 September 2008 the District Court held the hearing on the distribution of the estate and confirmed the receiver’s distribution proposal. Its decision was posted on the court’s notice board on 11 September 2008 and could have been challenged within eight days.\n\n38.  As no appeal was lodged against the decision of 10 September 2008, it became final on 20 September 2008.\n\n39.  A few weeks later the applicant became aware that the decision on distribution had already been issued. On 24 November 2008 he sent a letter to the District Court, asking it to serve him with the decision of 10 September 2008 so that he could lodge an appeal against it.\n\n40.  In its reply of 27 November 2008 the District Court asked the applicant to specify whether it should consider his letter as an appeal against the aforementioned decision.\n\n40.  In its reply of 27 November 2008 the District Court asked the applicant to specify whether it should consider his letter as an appeal against the aforementioned decision.\n\n41.  On the same day the court decided to terminate the proceedings. It ruled that since the applicant had refused to accept the sum awarded to him, it should be deposited with the court.\n\n42.  On 3 December 2008 the applicant amended his submission in accordance with the court’s inquiry of 27 November 2008, specifying that he was complaining against the decision of 10 September 2008 (see paragraph 37 above).\n\n43.  On 4 December 2008 the applicant appealed against the decision of 27 November to terminate the bankruptcy proceedings (see paragraph 41 above). He argued that he had not been properly informed about the hearing of 10 September 2008 on the distribution of the estate (see paragraph 37 above) and that it was unrealistic to expect him to follow for eight years the notices posted on the court’s board and to read all the Official Gazettes in order to be informed of the progress in the proceedings. Moreover, he maintained that he should have been awarded the full amount claimed in the bankruptcy proceedings, since, like all the other employees to whom the company owed salary arrears, he had been a priority creditor in those proceedings.\n\n44.  On 18 December 2008 the Slovenj Gradec District Court, considering the applicant’s submissions of 24 November and 3 December as an appeal against the decision of 10 September, rejected the appeal as being out of time.\n\n45.  On 29 December 2008 the applicant lodged an appeal against the above decision. He argued that he had not been properly informed about the bankruptcy proceedings, that he should have been treated as a priority creditor, and that the bankruptcy court should have ruled ex officio on whether his claims had been ranked correctly and granted him the full amount claimed.\n\n46.  On 4 May 2009 the Maribor Higher Court dismissed the applicant’s appeal against the decision of 27 November 2008 (see paragraph 41 above), holding that he should have challenged the ranking of his claims at the hearing before the first-instance court. Relying on section 164 of the Compulsory Composition, Bankruptcy and Liquidation Act (see paragraph 51 below), it further concluded that the hearing on the distribution of the estate had been correctly scheduled.\n\n47.  On 22 June 2009 the Maribor Higher Court dismissed the applicant’s appeal against the decision of 18 December 2008.\n\n48.  On 17 July 2009 the applicant lodged a constitutional complaint against the decisions of the Higher Court of 4 May and 22 June 2009, reiterating in substance his complaints before the lower courts.\n\n49.  On 4 December 2009 the Constitutional Court rejected the applicant’s constitutional complaint.\n\nII.  RELEVANT DOMESTIC LAW AND PRACTICE\n\nA.  Legislation and practice concerning bankruptcy proceedings\n\n50.  For legislation and practice concerning bankruptcy proceedings, see Sedminek v. Slovenia, no. 9842/07, §§ 31-33, 24 October 2013.\n\n50.  For legislation and practice concerning bankruptcy proceedings, see Sedminek v. Slovenia, no. 9842/07, §§ 31-33, 24 October 2013.\n\n51.  Section 164 of the Compulsory Settlement, Bankruptcy and Liquidation Act (in force until 1 October 2008) read as follows:\n\n“(1) The creditors shall be invited to a hearing on the proposal for the distribution of the bankruptcy estate by means of a notification, which shall be published in the Official Gazette at least thirty days prior to the hearing and posted on the court’s notice board. In the notification, the insolvency panel shall further inform the creditors about when and where they can examine the distribution proposal.\n\n(2) Depending on the circumstances of the case, the insolvency panel may decide to publish the notification in the mass media.”\n\n(2) Depending on the circumstances of the case, the insolvency panel may decide to publish the notification in the mass media.”\n\n52.  In so far as relevant, section 165 of the Act read as follows:\n\n“(1) The creditors may submit their objections against the distribution proposal at the hearing on the distribution of the estate.\n\n...\n\n(4) The decision on the main distribution of the estate shall be served to the receiver and posted on the court’s notice board.”\n\n.  Under section 160 of the Act, claims were in principle paid proportionally from the bankruptcy estate. However, section 160(2) stated that the following types of claims were considered as priority or secured claims and would therefore to be given precedence and paid together with the costs of the bankruptcy proceedings: salaries and compensation for salaries for the last three months prior to the institution of the bankruptcy proceedings; compensation for occupational injuries and diseases; salary compensation for unused annual leave for the current calendar year and unpaid redundancies.\n\n.  Under section 160 of the Act, claims were in principle paid proportionally from the bankruptcy estate. However, section 160(2) stated that the following types of claims were considered as priority or secured claims and would therefore to be given precedence and paid together with the costs of the bankruptcy proceedings: salaries and compensation for salaries for the last three months prior to the institution of the bankruptcy proceedings; compensation for occupational injuries and diseases; salary compensation for unused annual leave for the current calendar year and unpaid redundancies.\n\n54.  Under section 13 of the Act, appeals against the decisions of the bankruptcy court were to be lodged within eight days of the decision being posted on the court’s notice board.\n\nB.  Act on the Protection of the Right to a Trial without Undue Delay\n\n.  For a detailed presentation of the Act on the Protection of the Right to a Trial without Undue Delay (“the 2006 Act”), see Žunič v. Slovenia (dec.) (no. 24342/04, §§ 16-26, 18 October 2007), and Žurej v. Slovenia (dec.) (no. 10386/03, 16 March 2010).\n\n.  For domestic practice concerning the application of the 2006 Act in the context of bankruptcy proceedings, see Sedminek v. Slovenia, cited above, § 34.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION IN RESPECT OF UNFAIRNESS OF THE PROCEEDINGS\n\nI.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION IN RESPECT OF UNFAIRNESS OF THE PROCEEDINGS\n\n57.  The applicant complained that he had not been properly notified of the hearing of 10 September 2008 or of the decision issued by the court on that date. He relied on Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:\n\n“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing within a reasonable time... by [a] ... tribunal ...”\n\nA.  Admissibility\n\n58.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n1.  The parties’ submissions\n\n59.  The applicant complained that he had not been personally served with either the court’s notification of the hearing on the distribution of the bankruptcy estate or its decision of 10 September 2008. This had prevented him from participating in the hearing and deprived him of the opportunity to lodge an appeal within the prescribed time-limit. He argued that the posting of the notification on the court’s notice board and its publication in the Official Gazette could not be considered as an appropriate way of informing the creditors in the present proceedings.\n\n60.  The applicant considered that it had been unreasonable and disproportionate to have expected him to regularly drive to another town to consult the court’s notice board over a period of eight years or to buy or borrow every issue of the Official Gazette in order not to miss any court announcements about the proceedings. He pointed out in this connection that there had been no progress in the proceedings for several years, that he was an elderly person, and that the receiver had assured him in October 2000 that he would inform him of any progress in the case and any scheduled hearings (see paragraph 19 above).\n\n61.  Moreover, the applicant did not accept the suggestion that he should have known about the progress in the proceedings from media reports on the sale of the R.V. hotel complex (see paragraph 31 above). He stressed that the media in question were not read by the general public: – the first was an online newspaper edited by a regional cultural association; the second was a specialist internet platform for accountants; the third was the Slovenian Press Agency website, which served other media and not the general public; and the forth was a newspaper for businessmen. In addition, being an elderly person, he did not even know how to use a computer or how to access the internet.\n\n.  The applicant also argued that since there had been only nineteen creditors left in the bankruptcy proceedings, informing them of the hearing by regular mail would not have been expensive or contributed significantly to the length of the proceedings.\n\n.  The applicant also argued that since there had been only nineteen creditors left in the bankruptcy proceedings, informing them of the hearing by regular mail would not have been expensive or contributed significantly to the length of the proceedings.\n\n63.  Lastly, the applicant argued that he had not insisted on the appointment of a committee of creditors at the October 2000 hearing because the trustee had advised the creditors that because the value of the estate was low, the appointment of a committee was not advisable and would merely add to the costs of the proceedings (see paragraph 19 above).\n\n64.  The Government referred to the Court’s case-law on permissible restrictions of the right to access to a court. They stressed that laying down procedural rules falls within the jurisdiction of the national authorities, and reminded the Court that its task was limited to assessing whether the regulation at stake was reasonable, whether it had a legitimate aim and whether there was a reasonable proportionality between the means employed and the aim sought to be achieved (see, in particular, Ashingdane v. the United Kingdom, 28 May 1985, § 57, Series A no. 93).\n\n65.  The Government further stressed that the legislation on the serving of court documents (see paragraph 51 above) pursued the aim of ensuring that bankruptcy proceedings were efficient. They maintained that it would be impossible to require the personal service of court documents in such proceedings because there were sometimes a great number of parties to them. Such a requirement might hamper the proceedings, prolong them disproportionately and decrease their efficiency. In addition, the majority of the Council of Europe Member States had similar rules. Even if in some States an additional personal service was provided for, the service was deemed to have been completed when the document had been posted on the court notice boards, entered in the insolvency databases and published in their Official Gazettes or in the public newspapers.\n\n66.  The Government challenged the applicant’s allegations that he had trusted the receiver’s assurance that he would inform him about the proceedings (see paragraph 63 above). They pointed out that the applicant should have known that under the law there was no such duty and that the proper way of informing the parties of the procedural steps in bankruptcy proceedings was by way of the court’s notice board and publication in the Official Gazette.\n\n66.  The Government challenged the applicant’s allegations that he had trusted the receiver’s assurance that he would inform him about the proceedings (see paragraph 63 above). They pointed out that the applicant should have known that under the law there was no such duty and that the proper way of informing the parties of the procedural steps in bankruptcy proceedings was by way of the court’s notice board and publication in the Official Gazette.\n\n67.  The Government dismissed the applicant’s submission that he would have had to drive to the court at regular intervals over a period of several years, arguing that reports in the media on the sale of the R.V. hotel complex (see paragraph 31 above) should have alerted the applicant to the progress in the proceedings. After the reports on that sale had been published, the applicant could have reasonably expected some development in the bankruptcy proceedings.\n\n68.  Lastly, the Government argued that the applicant was responsible for missing the opportunity to participate in the proceedings by electing the members of the committee of creditors, since he had not requested the appointment of a committee at the hearing held in October 2000 (see paragraph 19 above).\n\n2.  The Court’s assessment\n\n69.  The applicant alleged that the failure to serve him in person with a court summons and with the decision issued at the hearing of 10 September 2008 had prevented him from effectively participating in the hearing and lodging an appeal within the prescribed time-limit. The Court is therefore called upon to examine whether those facts impaired the applicant’s right of access to a court.\n\n70.  Article 6 § 1 of the Convention does not provide for a specific form of service of documents (see Bogonos v. Russia (dec.), no. 68798/01, 5 February 2004). However, the general concept of a fair trial, encompassing the fundamental principle that proceedings should be adversarial (see RuizMateos v. Spain, 23 June 1993, § 63, Series A no. 262) requires that all the parties to civil proceedings should have the opportunity to have knowledge of and to comment on the observations filed or evidence adduced by the other party with a view to influencing the court’s decision (see Lobo Machado v. Portugal, 20 February 1996, § 31, Reports of Judgments and Decisions 1996I). If court documents, including summonses to hearings, are not served in person, an applicant might be prevented from defending himself in the proceedings (see Ozgur-Karaduman v. Germany (dec.), no. 4769/02, 26 June 2007; Weber v. Germany (dec.), no. 30203/03, 2 October 2007; and Dilipak and Karakaya v. Turkey, nos. 7942/05 and 24838/05, § 76, 4 March 2014).\n\n71.  Moreover, the right of access to a court entails the entitlement to receive adequate notification of judicial decisions, particularly in cases where an appeal might be sought within a specified time-limit (see, inter alia, Hennings v. Germany, 16 December 1992, § 26, Series A no. 251A; Bogonos (dec.), cited above; Sukhorubchenko v. Russia, no. 69315/01, §§ 50-54, 10 February 2005; Mikulová v. Slovakia, no. 64001/00, §§ 52-58, 6 December 2005; and Weber (dec.), cited above).\n\n72.  The Court further reiterates that the right of access to a court is not absolute but may be subject to limitations (see Ashingdane, cited above, § 57). In addition, Article 6 requires and allows the States to organise their system in a manner enabling expeditious and efficient judicial proceedings. However, the above-cited provision also lays emphasis on the more general principle of the proper administration of justice (see, mutatis mutandis, Süßmann v. Germany, 16 September 1996, § 57, Reports 1996IV).\n\n.  In laying down such procedural regulations, the Contracting States enjoy a certain margin of appreciation. Whilst the final decision as to observance of the Convention’s requirements rests with the Court, it is not part of the Court’s function to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this field. Nonetheless, the limitations applied must not restrict the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Ashingdane, cited above, § 57; Fayed v. the United Kingdom, 21 September 1994, § 65, Series A no. 294-B; and Cordova v. Italy (no. 1), no. 40877/98, § 54, ECHR 2003-I).\n\n.  Lastly, the Court reiterates that its task is not to review the relevant law and practice in abstracto, but to determine whether the manner in which they were applied to or affected the applicant gave rise to a violation of the Convention (see, mutatis mutandis, Padovani v. Italy, 26 February 1993, § 24, Series A no. 257B).\n\n.  The Court must ascertain whether on the facts of the case a fair balance was struck between, on one hand, the interests of the effective administration of justice and, on the other hand, those of the applicant (see, mutatis mutandis, Geffre v. France (dec.), no 51307/99, CEDH 2003-I).\n\n.  On the one hand, the rules on service of summonses and decisions by means of posting them on the court’s notice board and publishing them in the Official Gazette serve the legitimate aim of ensuring that bankruptcy proceedings are expeditious and efficient (see, mutatis mutandis, De Geouffre de la Pradelle v. France, 16 December 1992, § 32, Series A no. 253B). The rationale behind dispensing with a personal service is that this type of proceedings may involve large numbers of creditors and parties. The personal service of court documents could add substantially to the costs of proceedings and, moreover, hamper their course if unsuccessful.\n\n.  On the other hand, under the domestic law, the hearing on the distribution of the estate represents a crucial point in the proceedings. Up to that point, the creditors may challenge the official receiver’s proposal for the distribution of the estate. They are precluded from doing so at a later stage, including by appealing against the decision on the distribution (see paragraph 52 above). In this connection, the Court notes that the eight-day time-limit for lodging an appeal against the decision on distribution is relatively short (see paragraph 54 above).\n\n78.  The applicant was a party to proceedings in which it took more than eight years for a hearing on the distribution of the bankruptcy estate to be scheduled. At that point, there were only nineteen creditors left whose names must have been known to the court (see paragraph 34 above). In addition, the applicant, who was not represented by a lawyer in the proceedings, argued that he had been assured by the receiver that he would be informed of any progress in the proceedings (see paragraph 19 above). The Court sees no reason why the applicant should not have trusted the receiver, in particular bearing in mind the rather low number of creditors in the proceedings (see, mutatis mutandis, De Geouffre de la Pradelle, cited above, § 33). Lastly, while the domestic law indeed does not provide for the personal service of summonses and court decisions in bankruptcy proceedings, it does however provide for the possibility of publishing the notification of the hearing on the distribution of the estate also in the mass media (see paragraph 51 above).\n\n79.  The Court regrets that in the present case the domestic court failed to use the latter publication option. The Court cannot follow the Government’s argument that the applicant should have known about the sale of the R.V. hotel complex from online media reports on it (see paragraphs 31 and 67 above). It agrees with the applicant that the media at issue cannot be considered to have been targeted at the general public and/or to have reached the applicant (contrast Geffre v. France, cited above), an elderly person who alleged that he was unable to use a computer or access the internet.\n\n80.  The Court considers that it would be unrealistic to expect the applicant to regularly consult the notice board of a court located in a different town from his place of residence or to gain access to every issue of the Official Gazette.\n\n81.  In the circumstances of the present case, the Court is unable to come to a conclusion that the applicant had a fair opportunity to have knowledge of the hearing on the distribution of the estate and that his failure to take part in the proceedings was due to a lack of diligence on his part (see, a contrario, Cañete de Goñi v. Spain, no. 55782/00, § 39, ECHR 2002VIII). Moreover, it considers that it would not have been disproportionate to require the State to take additional steps to ensure by further means that the few parties left in the proceedings, including the applicant, were informed of the hearing on the distribution and the decision taken at the hearing. By being deprived of the opportunity of taking part in the hearing of 10 September 2008, the applicant was prevented from challenging the receiver’s plan for the distribution of the estate and thus from vindicating his right to obtain a higher percentage of his claim for unpaid wages.\n\n82.  The foregoing considerations are sufficient to conclude that there has been a violation of the applicant’s right to a fair hearing under Article 6 § 1 of the Convention.\n\nII.  ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE CONVENTION ON ACCOUNT OF THE LENGTH OF PROCEEDINGS AND INEFFECTIVNESS OF REMEDIES IN THIS RESPECT\n\n83.  The applicant further complained that the length of the proceedings had been incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention (see paragraph 57 above).\n\n.  Lastly, the applicant complained that the remedies available to him for excessive duration of legal proceedings in Slovenia had been ineffective. He relied on Article 13 of the Convention, which reads as follows:\n\n“Everyone whose rights and freedoms as set forth in [this] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”\n\nA.  Admissibility\n\n.  The Government raised an objection, arguing that the applicant had not exhausted the domestic acceleratory remedies available to him under the 2006 Act.\n\n86.  The Court observes that the question whether the requirement that an applicant must exhaust domestic remedies has been satisfied in the instant case is closely linked to the complaint concerning the existence of an effective remedy within the meaning of Article 13 of the Convention. It therefore considers that this objection, raised by the Government under Article 6 § 1 of the Convention, should be joined to the merits of the complaint under Article 13.\n\n.  The Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n1.  Article 6\n\n.  The applicant argued that the proceedings had been unduly lengthy.\n\n.  The Government admitted that the employment proceedings had exceeded the reasonable time requirement, but argued that the domestic courts could not be reproached for failing to act with sufficient diligence.\n\n.  As regards the bankruptcy proceedings, the Government further argued that they had been complex and that the Court should take into consideration the fact that the conclusion of those proceedings was dependent on the conclusion of the parallel bankruptcy and denationalisation proceedings in respect of the R.V. complex (see paragraph 22 above).\n\n.  The Government maintained that the domestic courts could not be reproached for lack of diligence in respect of the bankruptcy proceedings either. While admitting that the applicant himself had not contributed to the length of the proceedings, they considered that the case was not of major importance for him since the duration of the bankruptcy proceedings had had no impact on the low amount he had eventually received from the bankrupt company’s estate.\n\n.  The Court holds that in the present case the determination of the applicant’s “civil rights” within the meaning of Article 6 § 1 of the Convention began in the employment proceedings and continued in the enforcement and bankruptcy proceedings (see Di Pede v. Italy, 26 September 1996, § 22, Reports 1996IV; Sukobljević v. Croatia, no. 5129/03, § 37, 2 November 2006; and Sedminek, cited above, § 40, 24 October 2013).\n\n93.  The period to be taken into consideration therefore began on 28 June 1994, when the Convention entered into force with respect to Slovenia, and ended on 4 December 2009, when the Constitutional Court rejected the applicant’s constitutional appeal in respect of the bankruptcy proceedings. The proceedings thus lasted fifteen years and five months and decisions were rendered at six instances.\n\n94.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities, and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). The Court further reiterates that special diligence is necessary in employment disputes (see Ruotolo v. Italy, 27 February 1992, § 17, Series A no. 230D, and Bauer v. Slovenia, no. 75402/01, § 19, 9 March 2006).\n\n.  Applying the criteria separately to the contentious, enforcement and bankruptcy proceedings, the Court observes that the employment proceedings did not appear to be very complex and no significant delays in that set of proceedings can be attributed to the applicant.\n\n96.  In assessing the reasonableness of the time that elapsed after the Convention came into force with respect to Slovenia, account must also be taken of the state of the proceedings at the time. The Court notes in this connection that at the relevant time the proceedings had already been pending for one year and two months, and that no procedural steps were taken by the court during that period. Furthermore, after the Convention came into force it took the first-instance court an additional sixteen months to schedule the first hearing and more than two years and six months to deliver a judgment. The proceedings were further delayed by the higher court, which took more than two years to decide on the applicant’s appeal.\n\n.  As to the bankruptcy proceedings, which also had an impact on the length of the enforcement proceedings, the Court is willing to accept that in principle they can be considered as having been more complex and that the duration of the proceedings in the present case was partially due to their dependence on the outcome of another set of bankruptcy proceedings, which in turn was dependent on the outcome of the denationalisation proceedings. However, the Court cannot agree with the Government that those circumstances justify the overall duration of the proceedings, which amounted to more than eight years and five months at the first instance. It reiterates in this context that it is for the State to organise its legal system in such a way as to enable its courts to comply with the requirement of Article 6 § 1 of the Convention (see, mutatis mutandis, Tusa v. Italy, 27 February 1992, § 17, Series A no. 231D, and Jama v. Slovenia, no. 48163/08, § 36, 19 July 2012).\n\n.  The Court is also unable to follow the Government’s argument that the bankruptcy proceedings in which the applicant tried to enforce a judgment previously given in his favour were of minor importance to him.\n\n.  Having examined all the material submitted to it and having regard to its case-law on the subject (see Čakš v. Slovenia, no. 33024/02, § 19, 7 December 2006, and Jama, cited above, § 36), the Court, for the reasons set out above, considers that in the instant case the overall length of the proceedings was excessive and failed to meet the “reasonable time” requirement.\n\n.  There has accordingly been a breach of Article 6 § 1.\n\n2.  Article 13\n\n.  The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI).\n\n.  While the bankruptcy proceedings are the continuation of the previous employment and enforcement proceedings, they nevertheless represent a distinct stage of the proceedings with regard to the remedies available in respect of complaints of undue delay. The Court has previously assessed the effectiveness of remedies in cases against Slovenia by distinguishing between different stages of proceedings or sets of proceedings (see Sirc v. Slovenia, no. 44580/98, §§ 166-78, 8 April 2008; Blekić v. Slovenia (dec.), no. 14610/02, §§ 72-85, 7 July 2009; Robert Lesjak v. Slovenia, no. 33946/03, §§ 40-53, 21 July 2009; and Beguš v. Slovenia, no. 25634/05, §§ 27-31, 15 December 2011).\n\n103.  As to the employment and enforcement proceedings, the Court observes that they were terminated before the 2006 Act entered into force. It has rejected objections and arguments put forward by the Government in previous cases involving proceedings terminated before the 2006 Act entered into force (see Grzinčič v. Slovenia, no. 26867/02, §§ 75-76, 3 May 2007) and sees no reason to reach a different conclusion in the present case.\n\n104.  As to the bankruptcy proceedings, the Court held in the case of Sedminek (cited above, §§ 63-65) that the remedies available to the applicants for raising a complaint about the length of the bankruptcy proceedings under the 2006 Act had been ineffective.\n\n105.  Moreover, the Government have still not provided any domestic case-law to show how the acceleratory remedies provided for under the 2006 Act could be an effective remedy in respect of this type of proceedings (see, mutatis mutandis, Eberhard and M. v. Slovenia, nos. 8673/05 and 9733/05, § 107, 1 December 2009). In the absence of any such examples of case-law, the Court is not convinced that the remedies relied on by the Government can be considered effective for the purposes of Article 35 § 1 of the Convention.\n\n.  The Court therefore considers that at all stages of the proceedings there has been a violation of Article 13 on account of the absence of any remedy under domestic law whereby the applicant could have obtained a ruling upholding his right to have his case heard within a reasonable time, as set forth in Article 6 § 1. In view of this conclusion, it also rejects the Government’s objection concerning the exhaustion of domestic remedies.\n\nIII.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION\n\n107.  Relying on Article 6 § 1, the applicant complained that his right to a fair trial had been violated in the employment, enforcement and bankruptcy proceedings. In particular, he argued that since his claims against the company had been accepted by a court judgment, the bankruptcy court should have considered ex officio whether those claims were to be treated as priority. Moreover, he considered that the fact that in the bankruptcy proceedings he had not been awarded the full amount accepted by the labour court had also given rise to a violation of Article 1 of Protocol No. 1 to the Convention. Furthermore, he complained of a violation of Article 14 of the Convention, arguing that in the bankruptcy proceedings he had been treated differently from another worker who had been in a similar position and who had received the full amount awarded by the labour court. Lastly, he complained under Article 13 that he had not had at his disposal an effective legal remedy to challenge the decision of the bankruptcy court.\n\n108.  In the light of all the material in its possession, the Court finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.\n\n.  Accordingly, this part of the application must be rejected as manifestly ill-founded and declared inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.\n\nIV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n110.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n111.  The applicant claimed EUR 30,000 in respect of pecuniary damage and EUR 25,000 in respect of non-pecuniary damage.\n\n112.  The Government contested the claims. They argued that no causal link existed between the alleged violations and the pecuniary damage claimed. They further argued that the applicant’s claim for non-pecuniary damage was excessive.\n\n113.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 12,500 in respect of non-pecuniary damage.\n\nB.  Costs and expenses\n\n114.  The applicant also claimed EUR 3,768.81 for the costs and expenses incurred before the domestic courts and for those incurred before the Court.\n\n115.  The Government argued that the claim was not supported by sufficient documentary evidence and was also excessively high.\n\n116.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,500 covering costs under all heads.\n\nC.  Default interest\n\n117.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\n1.  Declares the complaints under Article 6 § 1 of the Convention concerning the length and unfairness of the bankruptcy proceedings by reason of the failure to inform the applicant of the hearing on the main distribution of the estate, and the complaint under Article 13 of the Convention concerning the lack of an effective legal remedy in respect of the length of proceedings admissible and the remainder of the application inadmissible;\n\n2.  Holds that there has been a violation of Article 6 § 1 of the Convention on account of the failure to properly inform the applicant about the hearing on the distribution of the estate;\n\n3.  Holds that there has been a violation of Articles 6 § 1 and 13 of the Convention on account of the length of the proceedings and ineffectiveness of remedies in this respect;\n\n4.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n5.  Dismisses the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 21 May 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_633","text":"PROCEDURE\n\n1.  The case originated in an application (no. 4959/04) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Slawomir Zięba (“the applicant”), on 6 January 2004.\n\n2.  The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.\n\n3.  On 21 May 2007 the President of the Fourth Section decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it was decided to examine the merits of the application at the same time as its admissibility.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n4.  The applicant was born in 1968 and lives in .\n\nA. Criminal proceedings against the applicant and his detention on remand\n\n5.  On 18 December 2001 the applicant was arrested by the police on suspicion of having committed, inter alia, several counts of fraud, receiving stolen goods, bribery, forgery, deception, drug trafficking and inciting to theft while acting in an organised criminal group. On 20 December 2001 the Katowice District Court (Sąd Rejonowy) ordered his detention. It relied on the reasonable suspicion that the applicant had committed the offences with which he had been charged and on the risk that, as a former police officer, he might tamper with evidence. It referred to the likelihood of a severe sentence of imprisonment being imposed on the applicant.\n\n6.  On 13 February 2002 the charges against the applicant were severed from the main proceedings instituted against several suspects. The case was referred to the Bielsko-Biala District Court.\n\n7.  On 15 March 2002 the Bielsko-Biała District Court extended the applicant’s detention until 18 June 2002. It relied on the reasonable suspicion that the applicant had committed the offences with which he had been charged, the need to secure the proper conduct of the investigation and the complexity of the case. It also stressed that his detention was justified by the need to obtain further evidence, in particular to obtain expert reports, to take evidence from witnesses and suspects and to confront witnesses and suspects.\n\n8.  The detention order was subsequently extended by the Bielsko-Biała District Court on 14 June, 25 June and 27 September 2002. The court repeated the grounds given in the previous decisions.\n\n9.  On 11 December 2002 the Katowice Court of Appeal (Sąd Apelacyjny) extended the applicant’s detention until 31 May 2003. It relied on the reasonable suspicion that the applicant had committed the offences with which he had been charged, which was supported by evidence from witnesses and co-accused. Moreover, the court found that there was a reasonable risk that the applicant would obstruct the proper conduct of the proceedings, having regard to the fact that he had formerly been a police officer. It also referred to the likelihood of a severe sentence of imprisonment being imposed on the applicant and to the complexity of the case.\n\n10.  On 4 October 2002 the applicant requested access to the case file.\n\n11.  On 17 December 2002 the Katowice Regional Prosecutor (Prokurator Okręgowy) refused the applicant access to the case file. He relied on the risk that the applicant might attempt to tamper with evidence. Furthermore, the prosecutor stated that the applicant would be granted access to the case file later in the proceedings, at the close of the investigation.\n\n12.  On 6 March 2003 the Katowice Prosecutor of Appeal upheld the impugned order, finding that the applicant’s defence rights had been limited only temporarily and that the refusal of access to the case file was necessary for the proper conduct of the investigation.\n\n13.  On 20 May 2003 a bill of indictment was lodged. However, the court decided to return the case to the prosecution authorities for additional investigation.\n\n14.  On 30 May 2003 the Bielsko-Biala District Court extended the applicant’s detention until 31 August 2003. The court repeated the grounds given in the previous decisions.\n\n15.  On 18 June 2003 a new bill of indictment was lodged. It listed 21 charges laid against members of an organised criminal group.\n\n16.  On 29 August 2003 the Bielsko-Biała District Court extended the applicant’s detention until 18 December 2003. On 17 December 2003 the Katowice Court of Appeal extended that period to 18 June 2004. The applicant’s detention was subsequently extended on 9 June, 15 September and 17 November 2004. The courts relied on the grounds stated in the previous decisions.\n\n17.  In the course of the investigation and the court proceedings the applicant made numerous unsuccessful applications for release and appealed, likewise unsuccessfully, against refusals to release him and against decisions extending his detention.\n\n18.  Between 28 October 2003 and 18 November 2004 the court held 32 hearings.\n\n19.  On 18 November 2004 Court convicted the applicant as charged and sentenced him to 12 years’ imprisonment. He appealed. The applicant’s detention was subsequently extended on three occasions.\n\n20.  On 30 January 2006 the  (Sąd Okręgowy) quashed the first-instance judgment. At the same time it extended the applicant’s detention until 18 April 2006. The court considered that the reasons for keeping him in detention were still valid.\n\n21.  On 13 April 2006 the District Court extended the applicant’s detention to 18 October 2006.\n\n22.  On 21 September 2006, upon the applicant’s request, he was released from detention.\n\n23.  Between 5 May and 15 December 2006 the court held 7 hearings.\n\n24.  The proceedings are still pending.\n\nB.  Proceedings under the 2004 Act\n\n25.  On 11 October 2005 the applicant lodged a complaint with the Bielsko-Biała Regional Court (Sąd Okręgowy), under section 5 of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”).\n\n26.  The applicant sought a ruling declaring that the length of the proceedings from 18 November 2004, that is, the date of delivery of the first-instance judgment, to 21 September 2005 (the referral of the case to the court of second instance) had been excessive.\n\n27.  On 29 November 2005 the  dismissed his complaint. The court held that there were no delays for which the District Court could be held responsible. It referred to the complexity of the case, the time needed for the preparation of written grounds for the judgment, which comprised 118 pages, and problems with serving one of the defendants with a notice concerning his appeal.\n\n28.  On 21 June 2006 the applicant lodged a new complaint about a breach of the right to have his case heard within a reasonable time. He sought a ruling declaring that the length of the proceedings after April 2006 had been excessive.\n\n29.  On 18 September 2006 the Bielsko-Biala Regional Court rejected his complaint, relying on section 14 of the 2004 Act (under this provision a fresh length complaint in the same proceedings cannot be lodged earlier than 12 months from the date on which a court has given a decision concerning the first length complaint).\n\nII.  RELEVANT DOMESTIC LAW AND PRACTICE\n\n1.  Preventive measures, including detention on remand\n\n30.  The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing other “preventive measures” (środki zapobiegawcze) are stated in the Court’s judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006, and Celejewski v. , no. 17584/04, §§ 22-23, 4 August 2006.\n\n2.  Remedies against unreasonable length of the proceedings\n\n31.  The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the Court’s decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V, and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII.\n\nAs regards the above-mentioned section 14 of the 2004 Act (paragraph 29), it reads, in so far as relevant, as follows:\n\n“The applicant may lodge a new length complaint in the same proceedings not earlier than after 12 months ... from the date on which a court gave a decision referred to in section12.”\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION\n\n32.  The applicant complained that the length of his detention on remand had been excessive. He relied on Article 5 § 3 of the Convention, which, in so far as relevant, reads as follows:\n\n“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”\n\n33.  The Government contested that argument.\n\nA.  Admissibility\n\n34.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other ground. It must therefore be declared admissible.\n\nB.  Merits\n\n1.  Period to be taken into consideration\n\n35.  The applicant’s detention started on 18 December 2001, when he was arrested on suspicion of having committed numerous offences while acting in an organised criminal group (see paragraph 5 above). On 18 November 2004 the Bielsko-Biala District Court convicted him as charged.\n\nAs from that date he was detained “after conviction by a competent court”, within the meaning of Article 5 § 1 (a) and, consequently, that period of his detention falls outside the scope of Article 5 § 3 (cf. Kudła, cited above, § 104).\n\nOn 30 January 2006 the  quashed the applicant’s conviction. Following that date his detention was again covered by Article 5 § 3. It continued until 21 September 2006 when the applicant was released.\n\n36.  Accordingly, the period to be taken into consideration amounts to 3 years, 6 months and 21 days.\n\n2.  The parties’ submissions\n\n(a)  The applicant\n\n37.  The applicant submitted that the length of his detention had been unreasonable. He stressed that the decisions extending his pre-trial detention had been taken routinely and the courts had simply repeated the grounds given in the previous decisions. He further emphasised that he had not contributed to the length of the proceedings, he had lodged numerous applications for the acceleration of the proceedings and he had made normal use of his procedural rights in order to obtain a review of his detention. Finally, he submitted that the authorities had failed to exercise all due diligence when dealing with his case.\n\n(b)  The Government\n\n38.  The Government argued that the length of the applicant’s detention had been reasonable and duly justified throughout the entire period. They relied firstly on the existence of a serious suspicion that the applicant had committed the offences in question. Furthermore, the Government referred to the gravity of the charges against the applicant and the severity of the anticipated penalty.\n\n39.  They further argued that the applicant’s detention had been justified in order to secure the proper conduct of the proceedings, as there had been a risk that he would tamper with evidence. This risk was increased by the fact that the charges against the applicant concerned numerous offences committed by an organised and armed criminal group and the fact that he had formerly been a police officer. Lastly, they maintained that the authorities had displayed adequate diligence when dealing with his case and the applicant had contributed to the length of the proceedings by lodging numerous applications for release, requests for witnesses to be examined, and requests for access to the case file and for the minutes of hearings to be rectified.\n\n3.  The Court’s assessment\n\n(a)  General principles\n\n40.  The Court notes that the general principles regarding the right to trial within a reasonable time or to release pending trial, as guaranteed by Article 5 § 3 of the Convention, were stated in a number of its previous judgments (see, among many other authorities, Kudła v. Poland [GC], no. 30210/96, § 110 et seq, ECHR 2000XI, and McKay v. the United Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006-..., with further references).\n\n(b)  Application of the above principles in the present case\n\n41.  In their detention decisions, the authorities, in addition to the reasonable suspicion against the applicant, relied principally on three grounds, namely (1) the complexity of the case, (2) the severity of the penalty to which he was liable and (3) the risk that he might tamper with evidence (see paragraphs 5, 7, 8, 9, 14 and 16 above).\n\n42.  The applicant was charged with numerous counts of fraud, receiving stolen goods, bribery, forgery, deception, drug trafficking and inciting to theft committed in an organised and armed criminal group (see paragraphs 5 and 15 above).\n\nIn the Court’s view, the fact that the case concerned a member of such a criminal group should be taken into account in assessing compliance with Article 5 § 3 (see Bąk v. Poland, no. 7870/04, § 57, 16 January 2007).\n\n43.  The Court accepts that the reasonable suspicion against the applicant of having committed serious offences could initially warrant his detention. Also, the need to obtain voluminous evidence and to determine the degree of the alleged responsibility of each of the defendants, who had acted in a criminal group and against whom numerous serious charges were laid, constituted valid grounds for the applicant’s initial detention.\n\n44.  Indeed, in cases such as the present one concerning organised criminal groups, the risk that a detainee, if released, might bring pressure to bear on witnesses or other co-accused or might otherwise obstruct the proceedings often is, by the nature of things, high. In this respect, the Court notes that the fact that the applicant had formerly been a police officer increased the potential risk of his tampering with evidence (see paragraphs 5 and 9 above).\n\n45.  Furthermore, according to the authorities, the likelihood of a severe sentence being imposed on the applicant created a presumption that the applicant would obstruct the proceedings. However, the Court would reiterate that, while the severity of the sentence faced is a relevant element in the assessment of the risk of absconding or re-offending, the gravity of the charges cannot by itself justify long periods of detention (see, for instance, Ilijkov v. Bulgaria, no. 33977/96, §§ 80-81, 26 July 2001).\n\n46.  While all those factors could justify even a relatively long period of detention, they did not give the domestic courts an unlimited power to extend the application of this measure. In this context, the Court would observe that before the date of his original first-instance conviction the applicant had already spent 2 years and 11 months in pre-trial detention. Following the quashing of that conviction on appeal, he was kept in custody for a further 6 months and 20 days (see paragraphs 5, 19, 20 and 22 above).\n\n47.  Having regard to the foregoing, even taking into account the fact that the courts were faced with the particularly difficult task of trying a case involving an organised criminal group, the Court concludes that the grounds given by the domestic authorities could not justify the overall period of the applicant’s detention. In these circumstances it is not necessary to examine whether the proceedings were conducted with special diligence.\n\n48.  There has accordingly been a violation of Article 5 § 3 of the Convention.\n\nII.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE UNFAIRNESS OF THE PROCEEDINGS\n\n49.  The applicant further complained that the proceedings in his case had been unfair. In particular, he complained that the prosecuting authorities had entirely disregarded all evidence which would exonerate him, that he had not been confronted with certain witnesses, that he had not been given access to the case file, that the records of the witnesses’ testimonies during the investigation had been taken in a biased manner, and that the prosecution and the courts had wrongly assessed evidence and had made erroneous conclusions in this respect. The applicant relied on Article 6 § 1 of the Convention.\n\n50.  However, the Court notes that the impugned proceedings are still pending and therefore it is premature to examine the applicant’s complaint. It follows that it must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.\n\nIII.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE UNREASONABLE LENGTH OF THE PROCEEDINGS\n\n51.  The applicant complained that the length of the criminal proceedings had been incompatible with the “reasonable time” requirement provided in Article 6 § 1 of the Convention.\n\nFirst of all, the court notes that the applicant lodged a complaint about a breach of the right to have his case heard within a reasonable time under the 2004 Act. However, he explicitly limited it to the period between 18 November 2004 and 21 September 2005. Consequently, he failed to seek a ruling declaring that the proceedings as a whole had been unreasonably lengthy.\n\n52.  As regards the proceedings after April 2006, on 18 September 2006 the  rejected the applicant’s second complaint, as it had been lodged earlier than after 12 months from the date on which a court had given a decision concerning the first length complaint. The court observes that it is still open to the applicant to contest the length of the proceedings before the domestic courts and to lodge a complaint about a breach of the right to a trial within a reasonable time in accordance with the formal requirements set out in the 2004 Act.\n\nAccordingly, the complaint about the unreasonable length of the proceedings must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.\n\nIV.  ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION\n\n53.  Lastly, the applicant complained under Article 8 of the Convention that his extended detention had put a severe strain on him and his family. Furthermore, he submitted that his correspondence with his family had been censored and he had not been allowed to make phone calls to his relatives.\n\n54.  The Court reiterates that detention, like any other measure depriving a person of his liberty, entails inherent limitations on his private and family life. However, it is an essential part of a detainee’s right to respect for family life that the authorities enable him or, if need be, help him to maintain contact with his close family (see, mutatis mutandis, Messina v.  (no.2) no. 25498/94, § 61, 28 September 2000).\n\n55.  In the present case the applicant has not reported any limitations put on the number of family visits, supervision over those visits or subjection to a special prison regime or special visiting arrangements. Furthermore, he failed to produce any evidence to substantiate the alleged censorship of his correspondence or restriction on communication with his family by telephone.\n\nIt follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.\n\nV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n56.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n57.  The applicant claimed 13,200 euros (EUR) in respect of pecuniary damage and EUR 18,500 in respect of non-pecuniary damage related to the protracted length of his detention. Furthermore, he claimed EUR 10,600 in respect of non-pecuniary damage related to the alleged violation of Article 8 of the Convention.\n\n58.  The Government argued that the applicant’s claims were groundless. They asked the Court to rule that a finding of a violation constituted in itself sufficient just satisfaction.\n\n59.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it considers that the applicant has suffered non-pecuniary damage which is not sufficiently compensated by the finding of a violation of the Convention. Considering the circumstances of the case and making its assessment on an equitable basis, the Court awards the applicant EUR 1,000 under this head. The Court notes that the applicant’s complaints under Article 6 § 1 and Article 8 have been declared inadmissible. Thus, there is no basis for making any award under these heads.\n\nB.  Costs and expenses\n\n60.  The applicant did not seek reimbursement of any costs and expenses.\n\nC.  Default interest\n\n61.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Declares the complaint concerning the unreasonable length of detention admissible and the remainder of the application inadmissible;\n\n2.  Holds that there has been a violation of Article 5 § 3 of the Convention;\n\n3.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,000 (one thousand euros) in respect of non-pecuniary damage, to be converted into Polish zlotys at the rate applicable at the date of settlement, plus any tax that may be chargeable;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n4.  Dismisses the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 3 June 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_775","text":"PROCEDURE\n\n1.  The case originated in an application (no. 40109/03) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian national, Mr Dezső Jaczkó (“the applicant”), on 31 March 2003.\n\n2.  The applicant was represented by Mr G. Ruszthy, a lawyer practising in . The Hungarian Government (“the Government”) were represented by Mr L. Höltzl, Agent, Ministry of Justice and Law Enforcement.\n\n3.  On 15 September 2005 the Court decided to communicate the complaint concerning the length of the proceedings. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time.\n\nTHE FACTS\n\n4.  The applicant was born in 1948 and lives in .\n\n5.  On 28 December 1987 the applicant brought an action against his ex-wife, seeking the division of their matrimonial property.\n\n6.  In the period between 29 March 1988 and 19 May 1992, ten hearings took place and the opinions of valuation experts were obtained.\n\n7.  Further hearings took place on 19 September, 28 October and 16 December 1994, 2 February and 23 March 1995. Meanwhile, the expert was invited to submit a new opinion and to complete it subsequently.\n\n8.  On 20 June 1995 the Buda Central District Court ordered the applicant to pay 675,000 Hungarian forints (HUF) to his ex-wife.\n\n9.  On appeal, the , on 8 March 1996, quashed parts of the appealed judgment and remitted those parts to the District Court. Furthermore, it fixed the parties’ respective shares of the property.\n\n10.  On 27 May 1997, on the applicant’s petition for review, the Supreme Court quashed the second-instance judgment concerning the establishment of the parties’ property shares. Accordingly, this part of the case was also remitted to the District Court.\n\n11.  In the resumed proceedings, the District Court held hearings on 19 June, 1 September and 27 October 1998; it also appointed another expert. On 21 January 1999 the applicant’s motion for bias was dismissed.\n\n12.  Further hearings took place on 19 October 1999, 24 January and 6 March 2000. An on-site inspection scheduled for 19 September 2000 had to be postponed, because the applicant did not agree to the defendant’s personal attendance. A new opinion was submitted by the expert on 28 February 2001.\n\n13.  Another hearing was held on 19 June 2001. The next one scheduled for 10 July 2001 was postponed at the applicant’s request to 23 August 2001.\n\n14.  On 5 September 2001 the District Court fixed the parties’ respective shares in a real-estate of common ownership, granted ownership of it to the applicant and ordered him to pay compensation and unrealised rent to his ex-wife. The court relied on documentary evidence, the testimonies of the parties and the opinions of two expert architects. On 12 November 2001 the applicant appealed.\n\n15.  An appeal hearing took place on 1 March 2002. On 22 March 2002 the appellate court appointed an expert, who submitted his opinion on 25 June 2002.\n\n16.  On 6 November 2002 the  increased the amount of compensation to be paid by the applicant. It further quashed the part of the District Court judgment which concerned the unrealised rent and discontinued the proceedings in this regard. The judgment acquired legal force.\n\n17.  On 19 December 2002 the applicant filed a petition for review, alleging that the final decision was unfounded and at variance with the relevant substantive law.\n\n18.  In a preliminary examination under section 273 of the Code of Civil Procedure, on 13 May 2003 the Supreme Court refused to deal with the merits of the petition. It applied section 270 § 2 of the Code of Civil Procedure, as in force in the relevant period, according to which a review of substantive unlawfulness of final decisions was only admissible if a review was considered necessary from the perspective of harmonising or developing the application of the law.\n\n19.  On 24 September 2003 the  dismissed the applicant’s request to have the final decision rectified. It held that, in essence, the request was aimed at challenging certain provisions of the final decision which constituted res iudicata and was thus incompatible ratione materiae with the procedural rules concerning the rectification of decisions.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION\n\n20.  The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement of Article 6 § 1 of the Convention, which reads as follows:\n\n“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal...”\n\n21.  The Government contested that argument.\n\n22.  The period to be taken into consideration began only on 5 November 1992, when the recognition by  of the right of individual petition took effect. However, in assessing the reasonableness of the time that elapsed after that date, account must be taken of the state of proceedings at the time. The Court observes that the proceedings had already lasted almost five years on that date.\n\nThe period in question ended on 13 May 2003. It thus lasted ten and a half years for three levels of jurisdiction.\n\nA.  Admissibility\n\n23.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n24.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).\n\n25.  The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above).\n\n26.  Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or convincing argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.\n\nThere has accordingly been a breach of Article 6 § 1.\n\nII.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION\n\n27.  The applicant complained under Article 6 § 1 that the proceedings were unfair because his request for rectification was dismissed. He also submitted that he had been denied a fair hearing before the Supreme Court.\n\n28.   In so far as the applicant’s complaint concerns the assessment of the evidence and the result of the proceedings before the  when it refused to rectify the final decision, the Court reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (Schenk v. Switzerland, judgment of 12 July 1988, Series A no. 140, p. 29, §§ 45-46). In the present case, there is nothing in the case file indicating that the  lacked impartiality or that the proceedings were otherwise unfair.\n\nIt follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention.\n\n29.  As regards the refusal to grant the applicant leave to appeal, the Court observes the Supreme Court took the view that the applicant’s case did not raise a point of law of general public importance, which is the gateway requirement for leave being granted. The Court further observes that where a supreme court refuses to accept a case on the basis that the legal grounds for such a case are not made out, very limited reasoning may satisfy the requirements of Article 6 of the Convention (see mutatis mutandis Nerva and Others v. the United Kingdom (dec.), no. 42295/98, 11 July 2000). In its opinion, this principle extends to the Hungarian Supreme Court’s decisions on applications for leave to appeal. In the absence of any appearance of arbitrariness, the Court considers that this complaint is likewise manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention.\n\nIII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n30.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n31.  The applicant claimed HUF 11.5 million in respect of pecuniary and HUF 5 million in respect of non-pecuniary damage.\n\n32.  The Government contested these claims.\n\n33.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, it considers that the applicant must have sustained some non-pecuniary damage. Ruling on an equitable basis, it awards him 7,000 euros (EUR) under that head.\n\nB.  Costs and expenses\n\n34.  The applicant also claimed altogether HUF 3,010,320 for the costs and expenses incurred before the domestic courts and the Court.\n\n35.  The Government contested the claim.\n\n36.  According to the Court’s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,500 covering costs under all heads.\n\nC.  Default interest\n\n37.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Declares the complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible;\n\n2.  Holds that there has been a violation of Article 6 § 1 of the Convention;\n\n3.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 7,000 (seven thousand euros) in respect of non-pecuniary damage and EUR 1,500 (one thousand five hundred euros) in respect of costs and expenses, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n4.  Dismisses the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 18 July 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.\n\nIn accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinion is annexed to this judgment:\n\nseparate opinion of Judge Mularoni.\n\nJ.-P.C.\n\nS.D.\n\nI agree with the reasoning and the conclusion of the majority but for paragraph 29 of the judgment which concerns the Supreme Court’s refusal to grant the applicant leave to appeal.\n\nThe reasoning followed by the Court, for instance, in the case of Ilvesviita-Sallinen v. Finland (no. 59578/00, decision of 22 June 2004) should be applied to this part of the present application as well.\n\nWhen a Supreme Court determines, in a preliminary examination of a case, whether or not the conditions required for granting leave to appeal have been fulfilled, it is not making a decision relating to “civil rights and obligations”. In my view, Article 6 § 1 of the Convention does not apply to the instant proceedings, in which the Hungarian Supreme Court, without dealing with the merits, refused to grant leave to appeal against a decision of the Regional Court.\n\nI consider that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention.\n\nI consider that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention.","title":""}
{"_id":"passage_156","text":"PROCEDURE\n\n1.  The case originated in an application (no. 24178/05) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Ms Antonina Sergeyevna Korovina (“the applicant”), on 27 May 2005.\n\n2.  The Russian Government (“the Government”) were represented by Ms V. Milinchuk, former Representative of the  at the European Court of Human Rights.\n\n3.  On 25 January 2007 the President of the First Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n4.  The applicant was born in 1930 and lives in , Samara Region.\n\n5.  On 14 June 1994 the applicant opened a deposit account with a bank at 190% per annum for ten years on behalf of her granddaughter, a minor at the material time (she was born in 1986).\n\n6.  Subsequently the bank decreased the interest rate down to 16% and the applicant brought proceedings against it claiming the decrease unlawful.\n\n7.  On 21 April 2003 the Syzran Town Court of the Samara Region granted the applicant's claim in part, ordering the bank to make payments on the basis of the interest rate of 85% per annum.\n\n8.  On 2 June 2003 the  amended the judgment on appeal and granted the applicant's claims in full, ordering the bank to maintain the interest rate in accordance with the initial conditions of the deposit, namely 190% per annum. The appeal judgment became final on the same date.\n\n9.  After the deposit period expired on 18 June 2004, the appeal judgment was enforced and the applicant's granddaughter received the required sums.\n\n10.  However, on the bank's initiative, on 20 January 2005 the Presidium of the  quashed the previous judgments via supervisory review and remitted the case for fresh consideration, on the grounds that the lower courts had made errors in applying the domestic law.\n\n11.  On 7 February 2005 the town court dismissed the applicant's claim.\n\n12.  On 14 March 2005 the  upheld the judgment on appeal.\n\n13.  On an unspecified date the bank was awarded back the sums paid to the applicant's granddaughter.\n\nII.  RELEVANT DOMESTIC LAW\n\n14.  The relevant domestic law governing the supervisory review procedure at the material time is summed up in the Court's judgment in the case of Sobelin and Others v. Russia (nos. 30672/03, et seq., §§ 33-42, 3 May 2007).\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 6 § 1 ON ACCOUNT OF SUPERVISORY REVIEW\n\n15.  The applicant complained in substance under Article 6 of the Convention that the final judgment of 21 April 2003, as amended by the appeal judgment of 2 June 2003, had been quashed by way of supervisory review. In so far as relevant, this Article reads as follows:\n\nArticle 6 § 1\n\n“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”\n\n16.  The Government contested that argument. They argued, inter alia, that the supervisory review had been compatible with the Convention as it was aimed to correct a judicial error.\n\nA.  Admissibility\n\n17.  The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n18.  The Court reiterates that for the sake of legal certainty implicitly required by Article 6, final judgments should generally be left intact. They may be disturbed only to correct fundamental errors. The mere possibility of there being two views on the subject is not a ground for reexamination (see Ryabykh v. Russia, no. 52854/99, §§ 51-52, ECHR 2003IX).\n\n19.  The Court reiterates that it has frequently found violations of the principle of legal certainty and of the right to a court in the supervisoryreview proceedings governed by the Code of Civil Procedure in force since 2003 (see, amongst other authorities, Sobelin and Others, cited above, §§ 57-58, and Bodrov v. Russia, no. 17472/04, § 31, 12 February 2009).\n\n20.  In the present case the Presidium disagreed with the assessment made by the first-instance and appeal courts which is not, in itself, an exceptional circumstance warranting the quashing of a binding and enforceable judgment (see Kot v. Russia, no. 20887/03, § 29, 18 January 2007). Accordingly, there has been a violation of Article 6 § 1 of the Convention.\n\nII.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION\n\n21.  The applicant further complained in substance under Article 1 of Protocol No. 1 about the same quashing via supervisory review. She also complained under Article 6 and Article 1 of Protocol No. 1 about the outcome of the proceedings.\n\n22.  Having regard to all the material in its possession, and in so far as these complaints fall within its competence, the Court finds that there is no appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.\n\nIII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n23.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\n24.  The applicant did not submit a claim for just satisfaction. Accordingly, the Court makes no award under Article 41 of the Convention.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Declares the complaint under Article 6 concerning supervisory review admissible and the remainder of the application inadmissible;\n\n2.  Holds that there has been a violation of Article 6 of the Convention on account of the quashing of the final judgment of 21 April 2003, as amended by the appeal judgment of 2 June 2003, via supervisory review.\n\nDone in English, and notified in writing on 25 February 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_625","text":"PROCEDURE\n\n1.  The case originated in an application (no. 34000/02) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Igor Sergeyevich Ivanov (“the applicant”), on 5 August 2002.\n\n2.  The Russian Government (“the Government”) were represented by Mr P. Laptev, the Representative of the  at the European Court of Human Rights.\n\n3.  On 4 November 2005 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.\n\n4.  The Government objected to the joint examination of the admissibility and merits of the application. Having examined the Government's objection, the Court dismissed it.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n5.  The applicant was born in 1963 and lives in the  in the Moscow Region.\n\nA.  The criminal proceedings against the applicant\n\n6.  On 26 December 2000 the applicant was arrested on suspicion of aggravated robbery, extortion and abuse of position. He was remanded in custody three days later.\n\n7.  On 23 January 2002 the Kuzminskiy District Court of Moscow found the applicant guilty of aggravated robbery and abuse of position, acquitted him of the remainder of the charges and sentenced him to eleven years' imprisonment. The judgment became final on 23 April 2002 when the Moscow City Court upheld it on appeal.\n\n8.  On 6 November 2003 the Presidium of the Moscow City Court, acting on a request from the applicant in supervisory review proceedings, amended the judgments of 23 January and 23 April 2002, reducing the sentence to six years' imprisonment. The applicant was released on parole on 25 March 2005.\n\nB.  Conditions of the applicant's detention\n\n9.  From 29 December 2000 to 28 June 2002 the applicant was detained in facilities nos. IZ-77/1 and IZ-77/3 in .\n\n1.  Facility no. IZ-77/1\n\n(a)  Number of inmates per cell\n\n(a)  Number of inmates per cell\n\n10.  According to certificates issued on 21 December 2005 by the acting director of the facility and produced by the Government, the applicant was kept in cell no. 402, which measured 23.4 square metres. According to the Government, the information on the number of inmates in the cell was not available as the documents had been destroyed. At the same time the Government noted that warders working in the facility while the applicant was detained there had stated that the applicant had shared the cell with five or six other detainees. The Government, relying on the certificates of 21 December 2005, further submitted that the applicant had had an individual bunk and bedding at all times.\n\n11.  The applicant did not dispute the cell measurements. However, he alleged that the cell had had twelve bunks and had accommodated 25 inmates. Given the lack of beds, inmates had slept in shifts.\n\n(b)  Sanitary conditions, installations and food\n\n12.  The Government, relying on the information provided by the acting director of the facility, submitted that the cell received natural light and ventilation through the two windows, which were glazed and measured 0.75 metres in width and 1.1 metres in height. The facility authorities inspected the cell on a daily basis. The Government further argued that the temperature in the cell was maintained at normal levels. The cell was equipped with lamps which functioned day and night. The cell was disinfected once a week. It was equipped with a lavatory pan, a sink and a tap for running water. The pan was separated from the living area by a onemetrehigh brick wall. Inmates were allowed to take a shower once a week. The Government, relying on the information provided by the Office of the Prosecutor General of the , further stated that the applicant was provided with food three times a day “in accordance with the established norms”. Medical personnel at the facility checked the quality of the food three times a day and made entries in registration logs. The Government submitted copies of the registration logs for certain months in 2001 and 2002. According to the Government, detainees had made no complaints about the quality of the food.\n\n13.  The applicant disagreed with the Government's description and submitted that the sanitary conditions had been unsatisfactory. There were rats in the cell, which was only dimly lit. The windows were not glazed and the food was of extremely poor quality and in scarce supply.\n\n(c)  Medical assistance\n\n14.  On his admission to the detention facility the applicant was examined by a doctor, who noted that the applicant was healthy. On 31 January 2001 the applicant complained to the prison doctor of muscle pain. The doctor diagnosed myositis and prescribed treatment. From 22 to 24 May 2001 the applicant was treated for a common cold, a mild   of the upper . On 26 October 2001 the applicant complained of back pain and was diagnosed with disseminated pyoderma, a bacterial skin infection. He was transferred to the genitourinary dermatology department of the facility hospital, where he stayed until 15 November 2001. The Government gave a detailed description of the treatment administered to the applicant, including the type of medicine, dose and frequency. They also furnished a copy of the applicant's medical record and medical certificates.\n\n15.  The applicant argued that the appalling conditions of his detention had resulted in a serious deterioration of his health. He had contracted several skin and infectious diseases and had not been adequately treated.\n\n2.  Facility no. IZ-77/3\n\n2.  Facility no. IZ-77/3\n\n16.  On 28 January 2002 the applicant was transferred to facility no. IZ77/3 and placed in cell no. 524, measuring 32.74 square metres. The Government, relying on a certificate issued by the director of the facility on 20 December 2005, argued that the cell housed seven or eight inmates. However, it is clear from the certificate that the applicant was detained together with at least seven or eight other inmates. The Government also included certificates issued in 2004 indicating that the documents showing the number of inmates had been destroyed.\n\n17.  The Government further provided a description of the conditions of the applicant's detention in facility no. IZ-77/3 which was similar to the description of conditions in facility IZ-77/1 except for two aspects: (i) the cell windows measured 0.89 metres in width and 0.94 metres in height and (ii) the applicant did not request medical assistance in facility no. IZ-77/3.\n\n18.  The applicant submitted that cell no. 524 had accommodated 38 inmates. He further described the conditions of his detention in facility no. IZ-77/3 as “identical” to those in facility no. IZ-77/1, with one difference: the authorities in facility no. IZ-77/3 had been “respectful and kind”.\n\n3.  Complaints about the conditions of the applicant's detention\n\n19.  According to the applicant, he had complained to various domestic authorities about the appalling conditions of his detention. He had received no response.\n\n20.  The Government submitted that the applicant had not complained to a prosecutor or to a higher-ranking official of the Federal Service for the Execution of Sentences.\n\nII.  RELEVANT DOMESTIC LAW\n\n21.  Section 22 of the Detention of Suspects Act (Federal Law no. 103-FZ of 15 July 1995) provides that detainees should be given free food sufficient to maintain them in good health according to standards established by the Government of the . Section 23 provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell.\n\nIII.  RELEVANT INTERNATIONAL DOCUMENT\n\n22.  The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) visited the  from 2 to 17 December 2001. The section of its Report to the Russian Government (CPT/Inf (2003) 30) dealing with the conditions of detention in remand establishments and the complaints procedure reads as follows:\n\n“45. It should be stressed at the outset that the CPT was pleased to note the progress being made on an issue of great concern for the Russian penitentiary system: overcrowding.\n\nWhen the CPT first visited the  in November 1998, overcrowding was identified as the most important and urgent challenge facing the prison system. At the beginning of the 2001 visit, the delegation was informed that the remand prison population had decreased by 30,000 since 1 January 2000. An example of that trend was SIZO No 1 in , which had registered a 30% decrease in the remand prison population over a period of three years.\n\n...\n\nThe CPT welcomes the measures taken in recent years by the Russian authorities to address the problem of overcrowding, including instructions issued by the Prosecutor General's Office, aimed at a more selective use of the preventive measure of remand in custody. Nevertheless, the information gathered by the Committee's delegation shows that much remains to be done. In particular, overcrowding is still rampant and regime activities are underdeveloped. In this respect, the CPT reiterates the recommendations made in its previous reports (cf. paragraphs 25 and 30 of the report on the 1998 visit, CPT (99) 26; paragraphs 48 and 50 of the report on the 1999 visit, CPT (2000) 7; paragraph 52 of the report on the 2000 visit, CPT (2001) 2).\n\n...\n\n125. As during previous visits, many prisoners expressed scepticism about the operation of the complaints procedure. In particular, the view was expressed that it was not possible to complain in a confidential manner to an outside authority. In fact, all complaints, regardless of the addressee, were registered by staff in a special book which also contained references to the nature of the complaint. At Colony No 8, the supervising prosecutor indicated that, during his inspections, he was usually accompanied by senior staff members and prisoners would normally not request to meet him in private 'because they know that all complaints usually pass through the colony's administration'.\n\nIn the light of the above, the CPT reiterates its recommendation that the Russian authorities review the application of complaints procedures, with a view to ensuring that they are operating effectively. If necessary, the existing arrangements should be modified in order to guarantee that prisoners can make complaints to outside bodies on a truly confidential basis.”\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION\n\n23.  The applicant complained that his detention from 29 December 2000 to 28 June 2002 in appalling conditions was in breach of Article 3 of the Convention, which reads as follows:\n\n“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”\n\nA.  Admissibility\n\n24.  The Government argued that the applicant had not exhausted the domestic remedies available to him. In particular, he had not complained about the conditions of his detention to a prosecutor or an official of the Federal Service for the Execution of Sentences.\n\n25.  The applicant submitted that he had complained unsuccessfully to various domestic authorities about the appalling conditions of his detention.\n\n26.  The Court observes that it has already on a number of occasions examined the same objection by the Russian Government and dismissed it. In particular, the Court held in the relevant cases that the Government had not demonstrated what redress could have been afforded to the applicant by a prosecutor, a court or other State agency, bearing in mind that the problems arising from the conditions of the applicant's detention were apparently of a structural nature and did not concern the applicant's personal situation alone (see Moiseyev v. Russia (dec.), no. 62936/00, 9 December 2004; Kalashnikov v. Russia (dec.), no. 47095/99, 18 September 2001; and, most recently, Mamedova v. , no. 7064/05, § 57, 1 June 2006). The Court sees no reason to depart from that finding in the present case and therefore considers that this complaint cannot be rejected for failure to exhaust domestic remedies.\n\n27.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n1.  The parties' submissions\n\n1.  The parties' submissions\n\n28.  The Government submitted that the applicant had been detained in satisfactory sanitary conditions. The food met the applicable standards. The applicant had been provided with adequate medical assistance. The Government further submitted that they were not in possession of any documents showing the number of inmates in the cells in which the applicant had been detained because those documents had been destroyed. However, they considered that the fact that the applicant might have been detained in overcrowded cells could not by itself serve as a basis for finding a violation of Article 3 of the Convention, as the remaining aspects of the applicant's detention had been satisfactory. The Government pointed out that overcrowding was a general problem in many member States of the Council of Europe.\n\n29.  The applicant challenged the Government's description of the conditions in the detention facility as factually inaccurate. He maintained his complaints.\n\n2.  The Court's assessment\n\n30.  The Court observes that the continuous nature of the applicant's detention on remand and the parties' identical descriptions of the general conditions of the applicant's detention in both facilities warrant examining his detention from 29 December 2000 to 28 June 2002 without dividing it into separate periods.\n\n31.  The parties disagreed as to the specific conditions of the applicant's detention. However, there is no need for the Court to establish the truthfulness of each and every allegation, as it finds that there has been a violation of Article 3 on the basis of the facts which have been presented and which the respondent Government have failed to refute.\n\n32.  The main characteristic which the parties did agree upon was the size of the cells. However, the applicant claimed that the cell population considerably exceeded the capacity for which the cells had been designed. The Government, relying on the information provided by the warders of facility no. IZ-77/1 (see paragraph 10 above) and the certificate issued by the director of facility no. IZ-77/3 (see paragraph 16 above), argued that the applicant had been detained together with five or six other inmates in the first facility and with no more than eight other inmates in the second facility. The Government further submitted that the relevant documents indicating the exact number of inmates in the cells had been destroyed.\n\n32.  The main characteristic which the parties did agree upon was the size of the cells. However, the applicant claimed that the cell population considerably exceeded the capacity for which the cells had been designed. The Government, relying on the information provided by the warders of facility no. IZ-77/1 (see paragraph 10 above) and the certificate issued by the director of facility no. IZ-77/3 (see paragraph 16 above), argued that the applicant had been detained together with five or six other inmates in the first facility and with no more than eight other inmates in the second facility. The Government further submitted that the relevant documents indicating the exact number of inmates in the cells had been destroyed.\n\n33.  In this connection the Court observes that Convention proceedings, such as the present application, do not in all cases lend themselves to a rigorous application of the principle affirmanti incumbit probatio (he who alleges something must prove that allegation), as in certain instances the respondent Government alone have access to information capable of corroborating or refuting allegations. A failure on a Government's part to submit such information without a satisfactory explanation may give rise to the drawing of inferences as to the well-foundedness of the applicant's allegations (see Ahmet Özkan and Others v. Turkey, no. 21689/93, § 426, 6 April 2004).\n\n34.  Turning to the facts of the present case, the Court notes that the Government, in their plea concerning the destruction of the relevant documents, cited the statements by the warders and the facility's director indicating the number of the applicant's fellow inmates. However, the Court finds it extraordinary that in December 2005, that is, more than three years after the applicant's detention in those facilities had come to an end and in the absence of any documentary evidence, the officials were able to recollect the exact number of inmates who had been detained together with the applicant. The Court further observes that the Government misinterpreted the certificate of 20 December 2005 issued by the director of facility no. IZ77/3 (see paragraph 16 above). The Government argued that the applicant had been detained together with seven or eight other inmates. However, it is clear that the certificate in question indicated the minimum number of inmates in the applicant's cell without providing any information on the maximum possible number of detainees.\n\n35.  Having regard to the principles indicated in paragraph 33 above, together with the fact that the Government did not submit any convincing relevant information and that they agreed in principle that the cells might have been overcrowded (see paragraph 28 above), the Court will examine the issue concerning the number of inmates in the cells on the basis of the applicant's submissions.\n\n36.  According to the applicant, the occupants of the cells in both detention facilities were afforded less than 1 sq. m of personal space. The number of detainees was greater than the number of available bunks. It follows that the detainees, including the applicant, had to share the sleeping facilities, taking turns to rest. Hence, for approximately a year and a half the applicant was confined to his cell day and night.\n\n37.  Irrespective of the reasons for the overcrowding, the Court considers that it is incumbent on the respondent Government to organise its penitentiary system in such a way as to ensure respect for the dignity of detainees, regardless of financial or logistical difficulties (see Mamedova, cited above, § 63).\n\n38.  The Court has frequently found a violation of Article 3 of the Convention on account of lack of personal space afforded to detainees (see Khudoyorov v. Russia, no. 6847/02, § 104 et seq., ECHR 2005-... (extracts); Labzov v. Russia, no. 62208/00, § 44 et seq., 16 June 2005; Novoselov v. Russia, no. 66460/01, § 41 et seq., 2 June 2005; Mayzit v. Russia, no. 63378/00, § 39 et seq., 20 January 2005; Kalashnikov v. , no. 47095/99, §§ 97 et seq., ECHR 2002-VI; and Peers v. , no. 28524/95, §§ 69 et seq., ECHR 2001-III).\n\n39.  Having regard to its case-law on the subject and the material submitted by the parties, the Court notes that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Although in the present case there is no indication that there was a positive intention to humiliate or debase the applicant, the Court finds that the fact that the applicant was obliged to live, sleep and use the toilet in the same cell as so many other inmates for almost eighteen months was itself sufficient to cause distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention, and to arouse in him feelings of fear, anguish and inferiority capable of humiliating and debasing him.\n\n40.  In addition, the Court observes that the applicant was diagnosed with a serious skin disease in facility no. IZ-77/1 and that it appears most likely that he was infected while in detention. Although this fact in itself does not imply a violation of Article 3 given, in particular, the fact that the applicant received treatment (see Alver v. , no. 64812/01, § 54, 8 November 2005 and, mutatis mutandis, Khokhlich v. Ukraine, no. 41707/98, 29 April 2003) and that he fully recovered, the Court considers that these aspects, while not in themselves capable of justifying the notion of “inhuman” treatment, are relevant in addition to the pivotal factor of severe overcrowding in demonstrating that the applicant's conditions of detention went beyond the threshold tolerated by Article 3 of the Convention (compare Novoselov, cited above, § 44).\n\n41.  There has therefore been a violation of Article 3 of the Convention because the applicant was subjected to inhuman treatment on account of the conditions of his detention from 29 December 2000 to 28 June 2002 in facilities nos. IZ-77/1 and IZ-77/3.\n\nII.  ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION\n\n42.  Relying on Article 5 of the Convention, the applicant complained of the unlawfulness and excessive length of his detention on remand. Article 5, in so far as relevant, reads as follows:\n\n“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:\n\n...\n\n(c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;\n\n...\n\n3.  Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”\n\n43.  As regards the applicant's complaints, the Court is not required to decide whether or not they disclose an appearance of a violation of the Convention. The Court reiterates that, according to Article 35 of the Convention, the Court may only deal with the matter within a period of six months from the date on which the final decision was taken. It observes that the applicant was convicted on 23 January 2002 and that after that date his detention no longer fell within the ambit of Article 5 § 1 (c) but within the scope of Article 5 § 1 (a) of the Convention (see, for instance, Fedosov v. Russia (dec.), no. 42237/02, 25 January 2007, with further references). The applicant lodged his application before the Court on 5 August 2002, that is, more than six months after his detention on remand had ended.\n\n44.  It follows that the present complaint was introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.\n\nIII.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION\n\n45.  The applicant complained under Article 6 of the Convention that the courts had incorrectly assessed evidence and incorrectly applied the domestic law, that they had not thoroughly considered his arguments and that the authorities had forged documents in the case file and had not provided him with a copy of the final judgment.\n\n46.  Having regard to all the material in its possession, and in so far as these complaints fall within its competence ratione materiae, the Court finds that the evidence discloses no appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.\n\nIV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n47.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\n48.  The Court points out that under Rule 60 of the Rules of Court any claim for just satisfaction must be itemised and submitted in writing together with the relevant supporting documents or vouchers, “failing which the Chamber may reject the claim in whole or in part”.\n\n49.  On 2 February 2006 the Court invited the applicant to submit his claims for just satisfaction. He did not submit any such claims within the required time-limits.\n\n50.  In such circumstances the Court would usually make no award. In the present case, however, the Court has found a violation of the applicant's right not to be subjected to inhuman treatment. Since this right is of absolute character, the Court finds it possible to award the applicant 5,000 euros (EUR) by way of non-pecuniary damage (compare Mayzit v. , no. 63378/00, §§ 87-88, 20 January 2005), plus any tax that may be chargeable.\n\n51.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Declares the complaint concerning the conditions of the applicant's detention from 29 December 2000 to 28 June 2002 admissible and the remainder of the application inadmissible;\n\n2.  Holds that there has been a violation of Article 3 of the Convention;\n\n3.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 5,000 (five thousand euros) in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of the settlement, plus any tax that may be chargeable;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.\n\nDone in English, and notified in writing on 7 June 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_684","text":"PROCEDURE\n\n1.  The case originated in an application against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 23 August 2020.\n\n.  The Russian Government (“the Government”) were given notice of the application.\n\nTHE FACTS\n\n3.  The applicant’s details and information relevant to the application are set out in the appended table.\n\n4.  The applicant complained of the deficiencies in proceedings for review of the lawfulness of detention and about the lengthy detention on remand (see appended table).\n\nTHE LAW\n\nALLEGED VIOLATION OF ARTICLE 5 § 4 of the Convention\n\n5.  The applicant complained of the deficiencies in the proceedings for review of the lawfulness of his detention. He relied, expressly or in substance, on Article 5 § 4 of the Convention, which reads as follows:\n\nArticle 5 § 4\n\n“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”\n\n.  The Court reiterates that Article 5 § 4 of the Convention, in guaranteeing to detained persons a right to institute proceedings to challenge the lawfulness of their detention, also proclaims their right, following the institution of such proceedings, to a speedy judicial decision concerning the lawfulness of detention and the ordering of its termination if it proves unlawful (see Baranowski v. Poland, no. 28358/95, § 68, ECHR 2000-III). Where an individual’s personal liberty is at stake, the Court has very strict standards concerning the State’s compliance with the requirement of speedy review of the lawfulness of detention (see, for example, Mamedova v. Russia, no. 7064/05, § 96, 1 June 2006, where the length of appeal proceedings lasting, inter alia, twenty-six days, was found to be in breach of the “speediness” requirement of Article 5 § 4).\n\n7.  In the leading case of Idalov v. Russia [GC], no. 5826/03, §§ 15458, 22 May 2012, the Court already found a violation in respect of issues similar to those in the present case.\n\n8.  Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of this complaint. Having regard to its case-law on the subject, the Court considers that in the instant case the appeal proceedings for the review of the lawfulness of the applicant’s detention, as set out in the table appended below, cannot be considered compatible with the requirements set out in Article 5 § 4 of the Convention.\n\n9.  This complaint is therefore admissible and discloses a breach of Article 5 § 4 of the Convention.\n\nOTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW\n\n.  The applicant submitted other complaints which also raised issues under the Convention, given the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its findings in Dirdizov v. Russia, no. 41461/10, 27 November 2012.\n\nAPPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n11.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\n12.  Regard being had to the documents in its possession and to its caselaw (see, in particular, Oravec v. Croatia, no. 51249/11, §§ 78-80, 11 July 2017 and Dirdizov, cited above), the Court considers it reasonable to award the sum indicated in the appended table.\n\n13.  The Court further considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\nDeclares the application admissible;\n\nHolds that there has been a breach of Article 5 § 4 of the Convention concerning the deficiencies in the proceedings for review of the lawfulness of the detention;\n\nHolds that there has been a violation of the Convention as regards the other complaints raised under well-established case-law of the Court (see appended table);\n\nHolds\n\nthat the respondent State is to pay the applicant, within three months, the amount indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;\n\nthat from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.\n\nDone in English, and notified in writing on 27 October 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_473","text":"PROCEDURE\n\n1.  The case originated in an application (no. 39423/15) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Lithuanian national, Ms Vita Vorienė (“the applicant”), on 30 September 2015.\n\n2.  The applicant was represented by Mr J. Povilionis and Mr S. Žostautas, lawyers practising in Panevėžys. The Lithuanian Government (“the Government”) were represented by their Agent, Ms K. Bubnytė-Širmenė.\n\n3.  On 13 June 2016 notice of the application was given to the Government.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n4.  The applicant was born in 1961 and lives in Biržai.\n\n5.  On 11 April 2008 the applicant’s son, M.P., was arrested on suspicion that he had committed a burglary and stolen a laptop computer. He was taken to a police station in Biržai, where he was held until his death (see below). On 12 April 2008 the police searched M.P.’s home and found an amount of drugs (cannabis). On 13 April 2008 the authorities informed M.P. that he was suspected having committed crimes of theft and possession of drugs.\n\n5.  On 11 April 2008 the applicant’s son, M.P., was arrested on suspicion that he had committed a burglary and stolen a laptop computer. He was taken to a police station in Biržai, where he was held until his death (see below). On 12 April 2008 the police searched M.P.’s home and found an amount of drugs (cannabis). On 13 April 2008 the authorities informed M.P. that he was suspected having committed crimes of theft and possession of drugs.\n\n6.  By a ruling of 13 April 2008, a court sanctioned M.P.’s pre-trial detention for a period of eighteen days, on the grounds that he could flee from justice, for previously he had worked in Norway and had connections in that country. M.P. confessed to possession of drugs, but denied the theft. M.P. was present at the court hearing; he also had a lawyer, J.P., representing his interests in the courtroom. The court indicated that M.P. had no criminal record.\n\n7.  While detained at Biržai police station, M.P. was kept in cell no. 1 alone for the entire time, given that the other detainees at that station had prior convictions, and, pursuant to the relevant domestic law, persons with no criminal record had to be held separately from those with prior convictions (see paragraph 53 in fine below).\n\n7.  While detained at Biržai police station, M.P. was kept in cell no. 1 alone for the entire time, given that the other detainees at that station had prior convictions, and, pursuant to the relevant domestic law, persons with no criminal record had to be held separately from those with prior convictions (see paragraph 53 in fine below).\n\n8.  As later established by the prosecutor, whilst detained at Biržai police station between 12 and 14 April 2008 M.P. was taken out of his cell four times so that he could meet his lawyer and the investigator. During the pre-trial investigation M.P.’s lawyer, J.P., would later also testify that he had met M.P. at around 2-3 p.m. on 14 April at Biržai police station to discuss whether to appeal against the court ruling imposing detention, but M.P. had stated that there had been no need because he had been ready to confess of the theft. Later that day the lawyer had taken part in M.P.’s questioning by the pre-trial investigator, when M.P. had made a statement about the theft. According to the lawyer, M.P. had communicated in a calm manner, he had not been agitated and had had no complaints.\n\nA.  Death of the applicant’s son at Biržai police station and the ensuing pre-trial investigation into the circumstances of his death\n\nA.  Death of the applicant’s son at Biržai police station and the ensuing pre-trial investigation into the circumstances of his death\n\n9.  On the morning of 15 April 2008 M.P. was found dead in his cell at Biržai police station. As was later established during the pre-trial investigation, at around 8 a.m. that morning the guards’ shift was changing, and, in accordance with the applicable rules, the doors of all the cells were being opened. M.P. was found standing with his feet on the ground leaning forward; a blanket was looped tightly around his neck while the other end of the blanket was attached to the metal bar at the side of the top bunk of his bunk bed. The body bore the marks of strangulation, without marks of any other injuries. Police Officer D.M. immediately took M.P. out of the noose and laid him on the floor of the cell.\n\n9.  On the morning of 15 April 2008 M.P. was found dead in his cell at Biržai police station. As was later established during the pre-trial investigation, at around 8 a.m. that morning the guards’ shift was changing, and, in accordance with the applicable rules, the doors of all the cells were being opened. M.P. was found standing with his feet on the ground leaning forward; a blanket was looped tightly around his neck while the other end of the blanket was attached to the metal bar at the side of the top bunk of his bunk bed. The body bore the marks of strangulation, without marks of any other injuries. Police Officer D.M. immediately took M.P. out of the noose and laid him on the floor of the cell.\n\n10.  As transpires from the medical records and the prosecutor’s decision of 19 December 2014 (also see paragraph 44 below), at 8.08 a.m. on 15 April 2008 officers at Biržai police station called an ambulance, which arrived at the scene within a couple of minutes, at 8.12 a.m. The paramedics indicated in the medical report and also later testified during the pre-trial investigation that they had examined M.P.’s body at 8.12 a.m.: the body had been found lying on the floor, had shown no signs of breathing or a pulse, the pupils had been dilated and had not reacted to light, the neck had shown signs of strangulation, post-mortem discoloration had set in, as had rigor mortis. The paramedics also stated that they had not attempted to resuscitate M.P. because according to what they had seen he had died one or two hours before. The paramedics further asserted that apart from strangulation marks on M.P.’s neck there had been no injuries on M.P.’s face or hands. They also attested that there had been no signs on M.P.’s hands which would have indicated that he had been handcuffed or tied with a rope. The paramedics also noted that, if any other injuries had have been visible on M.P.’s body, they would have been noted in the medical report.\n\n10.  As transpires from the medical records and the prosecutor’s decision of 19 December 2014 (also see paragraph 44 below), at 8.08 a.m. on 15 April 2008 officers at Biržai police station called an ambulance, which arrived at the scene within a couple of minutes, at 8.12 a.m. The paramedics indicated in the medical report and also later testified during the pre-trial investigation that they had examined M.P.’s body at 8.12 a.m.: the body had been found lying on the floor, had shown no signs of breathing or a pulse, the pupils had been dilated and had not reacted to light, the neck had shown signs of strangulation, post-mortem discoloration had set in, as had rigor mortis. The paramedics also stated that they had not attempted to resuscitate M.P. because according to what they had seen he had died one or two hours before. The paramedics further asserted that apart from strangulation marks on M.P.’s neck there had been no injuries on M.P.’s face or hands. They also attested that there had been no signs on M.P.’s hands which would have indicated that he had been handcuffed or tied with a rope. The paramedics also noted that, if any other injuries had have been visible on M.P.’s body, they would have been noted in the medical report.\n\n11. There was a suicide note found in the cell. It was addressed “To Mother”. An empty box of matches was found in M.P.’s cell, and the authorities later established that the suicide note had been written with charcoal from used matches (also see paragraphs 21 and 44 below).\n\n11. There was a suicide note found in the cell. It was addressed “To Mother”. An empty box of matches was found in M.P.’s cell, and the authorities later established that the suicide note had been written with charcoal from used matches (also see paragraphs 21 and 44 below).\n\n12. On 15 April 2008, the incident scene was inspected, photographs were taken, one of them showing a white sheet on the bunk bed, and police officers who worked at Biržai police station had been questioned. The same day the prosecutor also questioned the applicant, who stated that “recently her son [had] not complain[ed] about any problems or troubles, everything [had been] good”. She also stated that previously “M.P. ha[d] never attempted to hang himself or to commit suicide, there [had been] no similar accidents in the past, and he [had] not mention[ed] such things either”. The prosecutor continued questioning the police officers on 17 April 2008.\n\n12. On 15 April 2008, the incident scene was inspected, photographs were taken, one of them showing a white sheet on the bunk bed, and police officers who worked at Biržai police station had been questioned. The same day the prosecutor also questioned the applicant, who stated that “recently her son [had] not complain[ed] about any problems or troubles, everything [had been] good”. She also stated that previously “M.P. ha[d] never attempted to hang himself or to commit suicide, there [had been] no similar accidents in the past, and he [had] not mention[ed] such things either”. The prosecutor continued questioning the police officers on 17 April 2008.\n\n13.  On 15 April 2008 an autopsy was ordered. The prosecutor provided the expert with a plastic bag containing M.P.’s clothes and a blanket which had been found in M.P.’s cell. The expert examination was performed the following day, 16 April 2008. The expert, who was from the Panevėžys branch of the Mykolas Romeris University Forensic-Medicine Institute (Mykolo Romerio Universiteto Teismo medicinos instituto Panevėžio skyrius), concluded that the cause of M.P.’s death had been mechanical asphyxiation as a result of his neck being squeezed by a noose. Whilst noting that there were light scratches on M.P.’s forehead and nose, the expert observed that this could have resulted from scratching of acne and concluded that it was not related to M.P.’s death (report no. M 224/008(05)).\n\n13.  On 15 April 2008 an autopsy was ordered. The prosecutor provided the expert with a plastic bag containing M.P.’s clothes and a blanket which had been found in M.P.’s cell. The expert examination was performed the following day, 16 April 2008. The expert, who was from the Panevėžys branch of the Mykolas Romeris University Forensic-Medicine Institute (Mykolo Romerio Universiteto Teismo medicinos instituto Panevėžio skyrius), concluded that the cause of M.P.’s death had been mechanical asphyxiation as a result of his neck being squeezed by a noose. Whilst noting that there were light scratches on M.P.’s forehead and nose, the expert observed that this could have resulted from scratching of acne and concluded that it was not related to M.P.’s death (report no. M 224/008(05)).\n\n13.  On 15 April 2008 an autopsy was ordered. The prosecutor provided the expert with a plastic bag containing M.P.’s clothes and a blanket which had been found in M.P.’s cell. The expert examination was performed the following day, 16 April 2008. The expert, who was from the Panevėžys branch of the Mykolas Romeris University Forensic-Medicine Institute (Mykolo Romerio Universiteto Teismo medicinos instituto Panevėžio skyrius), concluded that the cause of M.P.’s death had been mechanical asphyxiation as a result of his neck being squeezed by a noose. Whilst noting that there were light scratches on M.P.’s forehead and nose, the expert observed that this could have resulted from scratching of acne and concluded that it was not related to M.P.’s death (report no. M 224/008(05)).\n\n14.  The applicant requested that an additional autopsy be performed and the prosecutor granted her request. The additional autopsy was performed on 18 April 2008 (report no. M 759/08(01)). The forensic expert at the Vilnius branch of the Mykolas Romeris University Forensic-Medicine Institute concluded that there were strangulation marks on the neck and bruising on the back. The neck injuries could have been inflicted several minutes prior to death as a result of the neck being squeezed by the bed sheet. As to the bruising on the back, this could have been caused when the body hanging in the noose went into convulsion hitting off hard blunt surfaces. The expert concluded that there were no objective indications which could have denied M.P.’s cause of death as having been asphyxiation when the neck had been squeezed in a noose. The expert noted that there were no signs of strangulation by hands; he also indicated that it had been a one-time constriction on the neck.\n\nThe findings of this additional autopsy were later confirmed when, following the last reopening of the criminal proceedings, the pre-trial investigation judge ordered another forensic examination (report no. EKM 52/14(01)) to be performed to answer certain questions, including those submitted by the applicant.\n\nThe findings of this additional autopsy were later confirmed when, following the last reopening of the criminal proceedings, the pre-trial investigation judge ordered another forensic examination (report no. EKM 52/14(01)) to be performed to answer certain questions, including those submitted by the applicant.\n\n15.  According to the Government – who have not been contested on this point by the applicant – upon the applicant’s request, after the second autopsy the bailiff examined the corpse and took photographs in order to establish factual circumstances. The bailiff noted injuries on the back and the neck of the corpse.\n\n16.  On 7 May 2008 the applicant was granted victim status. She was represented by a lawyer.\n\n1.  First round of the investigation\n\n17.  On 25 November 2008 the prosecutor summarised the findings made as a result of the criminal investigation and decided to discontinue it, citing the lack of any indication of a crime. The prosecutor considered that M.P. had died through suicide, which was corroborated by his suicide note.\n\n17.  On 25 November 2008 the prosecutor summarised the findings made as a result of the criminal investigation and decided to discontinue it, citing the lack of any indication of a crime. The prosecutor considered that M.P. had died through suicide, which was corroborated by his suicide note.\n\n18.  However, by a ruling of 5 February 2009 the Panevėžys Regional Court, on appeal by the applicant, found that the pre-trial investigation had not been thorough and annulled the prosecutor’s decision to discontinue it. For the court, it had been necessary to investigate whether M.P. had been harmed by other persons, taking into account the injuries on M.P.’s wrists, as alleged by the applicant, as well as to examine the suicide note and to establish whether it had been written by M.P. and with what writing instruments. The video recordings from Biržai police station had not been properly inspected, and the statements of some of the police officers had been contradictory, even false. Moreover, an internal investigation had established gross breaches of duty by the police officers at the police station (see paragraphs 47-50 below), which in turn could attract criminal liability under Article 229 of the Criminal Code (see paragraph 52 below). Nevertheless, the prosecutor had failed to assess that internal-investigation report.\n\n2.  Second round of the investigation\n\n19.  In March and April 2009 another prosecutor continued the investigation and questioned witnesses.\n\n19.  In March and April 2009 another prosecutor continued the investigation and questioned witnesses.\n\n20.  In May 2009, and in order to establish whether the suicide note had been written by M.P., the prosecutor ordered a handwriting expert examination of the note, which then was compared to several other documents handwritten by M.P. One of those other documents was a note which M.P. had handwritten to the applicant on 14 April 2008, whilst detained at Biržai police station. It transpires from the material before the Court that that document had been in the possession of the applicant who had refused to give it to the authorities. A copy of that note had eventually been obtained by the authorities under a court order.\n\n20.  In May 2009, and in order to establish whether the suicide note had been written by M.P., the prosecutor ordered a handwriting expert examination of the note, which then was compared to several other documents handwritten by M.P. One of those other documents was a note which M.P. had handwritten to the applicant on 14 April 2008, whilst detained at Biržai police station. It transpires from the material before the Court that that document had been in the possession of the applicant who had refused to give it to the authorities. A copy of that note had eventually been obtained by the authorities under a court order.\n\n21.  In June 2009 the handwriting experts produced a report concluding that the suicide note had been undoubtedly been written by M.P. In December 2009 the forensic experts concluded that there was high probability that the suicide note had been written with burned matches, which could have come from one of the two match boxes that had been found in M.P.’s cell or from another box of matches (expert report no. 11–1457(09)).\n\n21.  In June 2009 the handwriting experts produced a report concluding that the suicide note had been undoubtedly been written by M.P. In December 2009 the forensic experts concluded that there was high probability that the suicide note had been written with burned matches, which could have come from one of the two match boxes that had been found in M.P.’s cell or from another box of matches (expert report no. 11–1457(09)).\n\n21.  In June 2009 the handwriting experts produced a report concluding that the suicide note had been undoubtedly been written by M.P. In December 2009 the forensic experts concluded that there was high probability that the suicide note had been written with burned matches, which could have come from one of the two match boxes that had been found in M.P.’s cell or from another box of matches (expert report no. 11–1457(09)).\n\n22.  On 29 January 2010 the prosecutor again discontinued the pre-trial investigation, holding that M.P.’s death had been suicide. In reaching that decision he relied on an abundant body of evidence, including analyses of the video recordings from the police station cameras, which showed that no–one had entered M.P.’s cell at the relevant time. Between 5 p.m. on 14 April 2008, when M.P. had already been in the cell, until 8.04 a.m. on 15 April 2008, when M.P.’s body had been found, the doors of his cell had been opened only once, at 8.00 p.m. on 14 April 2008, when the guards D.M. and D.A. had changed shift. Furthermore, the recordings showed that the guards D.A. and D.M. had checked on M.P. several times though the peep hole, and during the night the guard D.M. had patrolled his area several times.\n\n23.  As to the possible criminal liability under Article 229 of the Criminal Code (see paragraph 52 below) on the part of the police, the prosecutor took into account the conclusions of the internal investigation to the effect that the Officers D.M. and R.S. had not followed the internal instructions regarding the obligation to constantly observe detainees. That being so, the prosecutor also noted that the two officers could not have foreseen the consequences of such behaviour – M.P.’s suicide – and prevent it, because M.P. had been a quiet and introverted person, he had been calm, had caused no problems in the police station and had not complained. There had been no indication that M.P. had had suicidal tendencies or a tendency to self-harm, and therefore no signs that special supervision had been needed. Accordingly, since there had been no causal link between the actions of the officers and the consequences, there were no grounds to start a pre-trial investigation for failure to perform official duties.\n\n23.  As to the possible criminal liability under Article 229 of the Criminal Code (see paragraph 52 below) on the part of the police, the prosecutor took into account the conclusions of the internal investigation to the effect that the Officers D.M. and R.S. had not followed the internal instructions regarding the obligation to constantly observe detainees. That being so, the prosecutor also noted that the two officers could not have foreseen the consequences of such behaviour – M.P.’s suicide – and prevent it, because M.P. had been a quiet and introverted person, he had been calm, had caused no problems in the police station and had not complained. There had been no indication that M.P. had had suicidal tendencies or a tendency to self-harm, and therefore no signs that special supervision had been needed. Accordingly, since there had been no causal link between the actions of the officers and the consequences, there were no grounds to start a pre-trial investigation for failure to perform official duties.\n\n24.  On the basis of an appeal by the applicant, who had argued that during such a flawed pre-trial investigation her suspicions that her son had been murdered had only become stronger, by a ruling of 13 May 2010 the Panevėžys Regional Court in a public hearing again annulled the prosecutor’s decision to discontinue the criminal proceedings. This time the court considered that there were certain contradictions with regard to the bed sheet as the object used for strangulation.\n\n3.  Third round of the investigation\n\n25.  Having performed an additional examination of the bed sheet in the light of all available evidence, such as the witnesses’ statements, the photographs from the scene and expert reports, by a decision of 6 September 2010 the prosecutor again discontinued the pre-trial investigation into the circumstances of M.P.’s death.\n\n25.  Having performed an additional examination of the bed sheet in the light of all available evidence, such as the witnesses’ statements, the photographs from the scene and expert reports, by a decision of 6 September 2010 the prosecutor again discontinued the pre-trial investigation into the circumstances of M.P.’s death.\n\n26.  The applicant appealed, and on 25 October 2010 the Rokiškis County District Court quashed the prosecutor’s decision. The court considered that, in order to eliminate all doubts as to how M.P. could have killed himself, it was possible to conduct a reconstruction which would also verify the applicant’s version that her son could not have killed himself in the way suggested (see paragraph 9 above). The court also stated that it was necessary to establish why burned matches with which M.P. had written the suicide note had not been found in the cell. Lastly, the specific instrument which had been used as a noose around M.P.’s neck had to be established. That decision was upheld by a higher court.\n\n4.  Fourth round of the investigation\n\n4.  Fourth round of the investigation\n\n27.  On 14 December 2010 two reconstructions were performed at Biržai police station, with the participation of the applicant, the prosecutor, Police Officer D.M., who had found M.P.’s body, and others. It was examined whether M.P. could have hanged himself in the manner stated by the police officers on 15 April 2008 (see paragraph 9 above). After the first reconstruction the applicant maintained that her son could not have hanged himself in the manner described. She had no remarks as to the results of the second reconstruction. The results of those reconstructions were written down in two reports.\n\n27.  On 14 December 2010 two reconstructions were performed at Biržai police station, with the participation of the applicant, the prosecutor, Police Officer D.M., who had found M.P.’s body, and others. It was examined whether M.P. could have hanged himself in the manner stated by the police officers on 15 April 2008 (see paragraph 9 above). After the first reconstruction the applicant maintained that her son could not have hanged himself in the manner described. She had no remarks as to the results of the second reconstruction. The results of those reconstructions were written down in two reports.\n\n28.  In order to find the instrument which had caused M.P.’s strangulation, the prosecutor sent requests to the Biržai county prosecutor’s office and to the forensic experts in Panevėžys, and questioned certain witnesses. Even so, the blanket could not be found.\n\n28.  In order to find the instrument which had caused M.P.’s strangulation, the prosecutor sent requests to the Biržai county prosecutor’s office and to the forensic experts in Panevėžys, and questioned certain witnesses. Even so, the blanket could not be found.\n\n29.  In the meantime, the applicant lodged an application to have a pre-trial investigation on the charges of failure to perform official duties (Article 229 of the Criminal Code, see paragraph 52 below) opened in respect of the prosecutors who had earlier discontinued the pre-trial investigation. By a final ruling of 10 January 2011 the Panevėžys Regional Court refused her application, noting that it was within the prosecutors’ competence which actions to take when handling a criminal case. More importantly, in this case, once the courts had annulled the prosecutors’ decisions to discontinue criminal investigation, the prosecutors had continued the pre-trial investigation and the actions which the court had ordered had been carried out.\n\n29.  In the meantime, the applicant lodged an application to have a pre-trial investigation on the charges of failure to perform official duties (Article 229 of the Criminal Code, see paragraph 52 below) opened in respect of the prosecutors who had earlier discontinued the pre-trial investigation. By a final ruling of 10 January 2011 the Panevėžys Regional Court refused her application, noting that it was within the prosecutors’ competence which actions to take when handling a criminal case. More importantly, in this case, once the courts had annulled the prosecutors’ decisions to discontinue criminal investigation, the prosecutors had continued the pre-trial investigation and the actions which the court had ordered had been carried out.\n\n30.  On 10 February 2011 the Rokiškis County District Court allowed an application by the applicant’s lawyer to have a medical expert evaluate the results of the second reconstruction (see paragraph 27 above) in order to answer the question as to whether in hanging himself in the manner shown during the second reconstruction M.P.’s neck bones should have broken. According to the applicant, one needed “acrobatic” skills to commit suicide in such a manner. Having performed the examination of the second reconstruction report and the additional autopsy report (see, respectively, paragraphs 14 and 27 above), on 27 November 2011 the expert concluded that he could not answer the question posed by the applicant’s lawyer, because the question was speculative.\n\n30.  On 10 February 2011 the Rokiškis County District Court allowed an application by the applicant’s lawyer to have a medical expert evaluate the results of the second reconstruction (see paragraph 27 above) in order to answer the question as to whether in hanging himself in the manner shown during the second reconstruction M.P.’s neck bones should have broken. According to the applicant, one needed “acrobatic” skills to commit suicide in such a manner. Having performed the examination of the second reconstruction report and the additional autopsy report (see, respectively, paragraphs 14 and 27 above), on 27 November 2011 the expert concluded that he could not answer the question posed by the applicant’s lawyer, because the question was speculative.\n\n31.  On 13 January 2012 the prosecutor again discontinued the pre-trial investigation into the circumstances of M.P.’s death and also, for the reasons set out earlier (see paragraph 22 above) refused to open one in respect of Officers D.M. and R.S. for failure to perform official duties.\n\nHis decision was upheld by the first-instance court, which dismissed the applicant’s appeal.\n\nHis decision was upheld by the first-instance court, which dismissed the applicant’s appeal.\n\n32.  By a final ruling of 6 April 2012 the Panevėžys Regional Court rejected an appeal by the applicant and upheld the part of the prosecutor’s decision regarding the refusal to open a criminal investigation in respect of the actions of Officers D.M. and R.S., on the grounds that they had failed to perform their duties. The court reached this decision in a public hearing in which the applicant and her lawyer took part and could present their arguments. The court concurred with the prosecutor’s view that the authorities had not been aware that M.P. had been a suicide risk, so as to confer liability on the officer. Pursuant to domestic law as applied in this case, persons detained in several cells at Biržai police station had to be constantly monitored through spy holes. Even so, on the basis of the medical report the court nevertheless underlined that M.P. had died within a couple of minutes of the moment when the noose had closed around his neck, that is to say within a very short time. It would have been physically impossible for D.M. and R.S. to constantly monitor, through the holes in the cell doors, all the persons detained at the police station, including M.P. This was one more reason why the court could not hold that D.M.’s and R.S.’s failure to perform their duties had caused M.P.’s death.\n\n32.  By a final ruling of 6 April 2012 the Panevėžys Regional Court rejected an appeal by the applicant and upheld the part of the prosecutor’s decision regarding the refusal to open a criminal investigation in respect of the actions of Officers D.M. and R.S., on the grounds that they had failed to perform their duties. The court reached this decision in a public hearing in which the applicant and her lawyer took part and could present their arguments. The court concurred with the prosecutor’s view that the authorities had not been aware that M.P. had been a suicide risk, so as to confer liability on the officer. Pursuant to domestic law as applied in this case, persons detained in several cells at Biržai police station had to be constantly monitored through spy holes. Even so, on the basis of the medical report the court nevertheless underlined that M.P. had died within a couple of minutes of the moment when the noose had closed around his neck, that is to say within a very short time. It would have been physically impossible for D.M. and R.S. to constantly monitor, through the holes in the cell doors, all the persons detained at the police station, including M.P. This was one more reason why the court could not hold that D.M.’s and R.S.’s failure to perform their duties had caused M.P.’s death.\n\n33.  On 27 April 2012 the Rokiškis County District Court granted the applicant’s appeal and quashed the prosecutor’s decision of 13 January 2012 in the part discontinuing the pre-trial investigation into the circumstances of M.P.’s death (see paragraph 31 above). The court held that in order to eliminate any contradictions about alleged violence against M.P., a confrontation had to be performed between the applicant and one of the police interrogators who had questioned her son on 14 April 2008 (see paragraph 8 above). In addition, the applicant requested that other persons who were detained at Biržai police station between 14 and 15 April 2008 be questioned, and the court granted that request.\n\n5.  Fifth round of the investigation\n\n5.  Fifth round of the investigation\n\n34.  As requested by the court, the prosecutor then performed a confrontation between the applicant and the police interrogator and questioned eight individuals who had been detained at Biržai police station at the time of M.P.’s death. They all stated that they had heard no suspicious sounds during that night. In particular, D.Ž., M.P.’s co-accused in the case of theft, who had also been detained in the same Biržai police station but in another cell, averred that the two of them had talked through the slots intended for passing food at about 9 p.m. on 14 April 2008. M.P. did not state that any violence had been used against him or that he had been threatened. Neither had D.Ž. heard any suspicious sounds from M.P.’s cell.\n\n34.  As requested by the court, the prosecutor then performed a confrontation between the applicant and the police interrogator and questioned eight individuals who had been detained at Biržai police station at the time of M.P.’s death. They all stated that they had heard no suspicious sounds during that night. In particular, D.Ž., M.P.’s co-accused in the case of theft, who had also been detained in the same Biržai police station but in another cell, averred that the two of them had talked through the slots intended for passing food at about 9 p.m. on 14 April 2008. M.P. did not state that any violence had been used against him or that he had been threatened. Neither had D.Ž. heard any suspicious sounds from M.P.’s cell.\n\n35.  On 22 October 2012 the prosecutor again discontinued the pre-trial investigation into the circumstances of M.P.’s death, holding that it had been the result of suicide.\n\n35.  On 22 October 2012 the prosecutor again discontinued the pre-trial investigation into the circumstances of M.P.’s death, holding that it had been the result of suicide.\n\n36.  As she was dissatisfied with the way in which the pre-trial investigation had been conducted, on 14 November 2012 the applicant applied to have the entire office of the Panevėžys regional prosecutor’s office removed from the investigation. By a final ruling of 7 March 2013 the Panevėžys Regional Court held that her complaints were without substance, and that there was no reason to believe that any prosecutors from that office would not be able to effectively carry out the pre-trial investigation.\n\n36.  As she was dissatisfied with the way in which the pre-trial investigation had been conducted, on 14 November 2012 the applicant applied to have the entire office of the Panevėžys regional prosecutor’s office removed from the investigation. By a final ruling of 7 March 2013 the Panevėžys Regional Court held that her complaints were without substance, and that there was no reason to believe that any prosecutors from that office would not be able to effectively carry out the pre-trial investigation.\n\n37.  By a ruling of 31 January 2013 the Panevėžys Regional Court however allowed an appeal by the applicant against the prosecutor’s decision to discontinue the criminal proceedings (see paragraph 35 above). The applicant was present at the court hearing. She asked that an expert report be prepared in order to establish whether the video recordings from Biržai police station had not been tampered with. The court granted her request.\n\n6.  Sixth round of the investigation\n\n6.  Sixth round of the investigation\n\n38.  The prosecutor then proceeded with the pre-trial investigation. On 20 June 2013 the forensic experts produced report no. 11–745(13), wherein they concluded that even if there were small gaps between the clips, each of the clips in those video recordings was complete, and that none of the clips had any signs of having been altered by deletion or addition.\n\n39.  By a decision of 8 July 2013 the prosecutor again discontinued the pre-trial investigation. He relied on the entirety of the evidence in the criminal file, including the expert conclusions regarding the video–recordings (see the above paragraph).\n\n39.  By a decision of 8 July 2013 the prosecutor again discontinued the pre-trial investigation. He relied on the entirety of the evidence in the criminal file, including the expert conclusions regarding the video–recordings (see the above paragraph).\n\n40.  The applicant appealed, arguing that the pre-trial investigation had been flawed, and that a number of pieces of evidence, such as, among other things, the marks on her son’s wrists and the video recordings, had been improperly evaluated.\n\n40.  The applicant appealed, arguing that the pre-trial investigation had been flawed, and that a number of pieces of evidence, such as, among other things, the marks on her son’s wrists and the video recordings, had been improperly evaluated.\n\n41.  By a decision of 1 October 2013 the Panevėžys Regional Court again quashed the prosecutor’s decision. The court considered that there still remained certain contradictions, in particular, whether the short gaps within the video recording had occurred owing to a technical problem or because of another cause. It was also necessary to ascertain whether the video files had been provided in sequence. Moreover, no clear answer had been obtained from the medical expert as regards the possible reasons for M.P.’s injuries in the light of the results of the second reconstruction (see paragraphs 27 and 30 above). A supplementary medical evaluation had to be performed in which the specialists would be provided with all the existing information about M.P.’s injuries so that the mechanism of his death could be determined and the question of whether there had been signs of violence against M.P. answered. The applicant and her lawyer were given the opportunity to pose questions to the experts. Lastly, the court underlined that a person’s death, and even more so a death in a police station, was “a particular situation (yra ypatingas atvejis)”, which had to be thoroughly examined.\n\n7.  Seventh round of the investigation\n\n7.  Seventh round of the investigation\n\n42.  In accordance with the Panevėžys Regional Court’s instructions (see the paragraph above), the prosecutor then asked the forensic experts to examine the video recordings at issue. On 1 April 2014 an expert at the Forensic Science Centre of Lithuania (Lietuvos Teismo ekspertizės centras) then concluded (report no. 11–3422(13)) that it was most likely that the gaps between the clips had appeared when transferring the video files to DVD. The video files were in chronological order. The expert also noted that one of the cameras had recorded two paramedics at the police station at 8.12 a.m. on 15 April 2008.\n\n42.  In accordance with the Panevėžys Regional Court’s instructions (see the paragraph above), the prosecutor then asked the forensic experts to examine the video recordings at issue. On 1 April 2014 an expert at the Forensic Science Centre of Lithuania (Lietuvos Teismo ekspertizės centras) then concluded (report no. 11–3422(13)) that it was most likely that the gaps between the clips had appeared when transferring the video files to DVD. The video files were in chronological order. The expert also noted that one of the cameras had recorded two paramedics at the police station at 8.12 a.m. on 15 April 2008.\n\n43.  As instructed by the Rokiškis County District Court on 25 November 2013, the experts at the State Forensic-Medicine Service (Valstybinės teismo medicinos tarnyba) had been given the material of the pre-trial-investigation file, which had amounted to four volumes, to perform an expert examination of the cause of M.P.’s death. They conducted the examination from 26 May to 28 November 2014 and produced report no. EKM 52/14(01). The experts firstly concluded that M.P. could have died as had been demonstrated during the second reconstruction, which had been performed on 14 December 2010 (see paragraph 27 above). They also noted that M.P.’s neck organs could have been placed under pressure because of his own weight, and also underlined the fact that, when a person’s body is in a certain position, his or her weight is sufficient to bring about suffocation. The experts also explained that the death of M.P. should have occurred while he was in a vertical or similar position, as proven by the location of the post-mortem discolouration, and that the bruises on M.P.’s back could have been caused when he was in the noose and his back came into contact with the frame of the bunk bed during his convulsions. As to the injuries to M.P.’s wrists, which the applicant alleged had been inflicted during handcuffing, the experts had explained that those had appeared after the first autopsy when M.P.’s hands had been bound during preparation of his body for burial, which was the usual practice. On the basis of the documentary evidence – photographs of M.P.’s corpse from the scene, the bailiff’s statements of 16 April 2008 (see paragraph 15 above) and the additional autopsy report (see paragraph 14 above) – the experts also categorically and officially stated that there had been no bruising around M.P.’s eyes, unlike what had been claimed by the applicant.\n\n43.  As instructed by the Rokiškis County District Court on 25 November 2013, the experts at the State Forensic-Medicine Service (Valstybinės teismo medicinos tarnyba) had been given the material of the pre-trial-investigation file, which had amounted to four volumes, to perform an expert examination of the cause of M.P.’s death. They conducted the examination from 26 May to 28 November 2014 and produced report no. EKM 52/14(01). The experts firstly concluded that M.P. could have died as had been demonstrated during the second reconstruction, which had been performed on 14 December 2010 (see paragraph 27 above). They also noted that M.P.’s neck organs could have been placed under pressure because of his own weight, and also underlined the fact that, when a person’s body is in a certain position, his or her weight is sufficient to bring about suffocation. The experts also explained that the death of M.P. should have occurred while he was in a vertical or similar position, as proven by the location of the post-mortem discolouration, and that the bruises on M.P.’s back could have been caused when he was in the noose and his back came into contact with the frame of the bunk bed during his convulsions. As to the injuries to M.P.’s wrists, which the applicant alleged had been inflicted during handcuffing, the experts had explained that those had appeared after the first autopsy when M.P.’s hands had been bound during preparation of his body for burial, which was the usual practice. On the basis of the documentary evidence – photographs of M.P.’s corpse from the scene, the bailiff’s statements of 16 April 2008 (see paragraph 15 above) and the additional autopsy report (see paragraph 14 above) – the experts also categorically and officially stated that there had been no bruising around M.P.’s eyes, unlike what had been claimed by the applicant.\n\n44.  By a decision of 19 December 2014 the prosecutor again discontinued the pre-trial investigation. He relied on the entirety of the evidence which he cross-referenced – including that obtained after the last resumption of the criminal investigation – and held that no crime had been committed, holding that M.P. had died as a result of suicide. For the prosecutor, suicide as the cause of death was also corroborated by the statements of M.P.’s lawyer, who stated that on 14 April 2008 M.P. had been acting calmly, had been responsive, had not complained about anything and had not been agitated (see paragraph 8 in fine above). Among other things, the prosecutor also noted that an empty box of matches had been found in M.P.’s cell, and that the cell had had a toilet and burned matches could have been disposed of there (see paragraphs 11, 21 and 26 above). Although the blanket which had been given to the forensic expert on 15 April 2008 (see paragraph 13 above) had not been found during the later stages of the pre-trial investigation, there was sufficient data to confirm that M.P. had put his neck into a noose made from a blanket, and there was no evidence that someone had forced him to do that or that someone had hanged him.\n\n44.  By a decision of 19 December 2014 the prosecutor again discontinued the pre-trial investigation. He relied on the entirety of the evidence which he cross-referenced – including that obtained after the last resumption of the criminal investigation – and held that no crime had been committed, holding that M.P. had died as a result of suicide. For the prosecutor, suicide as the cause of death was also corroborated by the statements of M.P.’s lawyer, who stated that on 14 April 2008 M.P. had been acting calmly, had been responsive, had not complained about anything and had not been agitated (see paragraph 8 in fine above). Among other things, the prosecutor also noted that an empty box of matches had been found in M.P.’s cell, and that the cell had had a toilet and burned matches could have been disposed of there (see paragraphs 11, 21 and 26 above). Although the blanket which had been given to the forensic expert on 15 April 2008 (see paragraph 13 above) had not been found during the later stages of the pre-trial investigation, there was sufficient data to confirm that M.P. had put his neck into a noose made from a blanket, and there was no evidence that someone had forced him to do that or that someone had hanged him.\n\n45.  The applicant appealed against the prosecutor’s decision, asserting that the criminal investigation had not proven that her son had committed suicide. She still insisted that the evidence which had been gathered during the pre-trial investigation had been contradictory and had raised doubts. The applicant still considered that her son could have been a victim of police violence.\n\n45.  The applicant appealed against the prosecutor’s decision, asserting that the criminal investigation had not proven that her son had committed suicide. She still insisted that the evidence which had been gathered during the pre-trial investigation had been contradictory and had raised doubts. The applicant still considered that her son could have been a victim of police violence.\n\n46.  The criminal proceedings in respect of M.P.’s death were ultimately terminated by a ruling of the Panevėžys Regional Court on 27 April 2015, dismissing an appeal by the applicant. The court noted that numerous pieces of evidence had been collected and examined. It also emphasised that two of the applicant’s main criticisms had been answered. Firstly, after the last re-opening of the pre-trial investigation an examination of the video recordings was performed by a forensic expert, who had disproved the applicant’s allegation that the video recordings from Biržai police station had been tampered with (see paragraph 42 above). Secondly, report no. EKM 52/14(01) (see paragraph 43 above), as well as earlier medical reports (see paragraphs 13 and 14 above), had reached the same conclusions – that M.P. had died as a result of being strangled in a noose. The court noted that those medical reports had explained that M.P. could have died in the manner which had been demonstrated in the second reconstruction, and also noted that there had been no signs of injuries on M.P.’s body which he could not have inflicted himself. The applicant’s allegation that M.P.’s death could have been caused by someone else had been examined throughout the criminal investigation but no evidence of that had been found. The court also noted that the prosecutor had reached reasoned conclusions after having performed a comprehensive analysis of the gathered evidence. Although the applicant had expressed doubts in respect of the evidence gathered, in her appeal she had not presented any new arguments regarding what particular pre-trial investigation actions had not been performed, what data had not been evaluated, or what investigative actions, had they been performed, would have clarified any important circumstances in this case. Lastly, the court concluded that during the pre-trial investigation all actions provided by law had been used to obtain evidence. Even so, there was “no unquestionable data (neabejotini duomenys)” that a crime had been committed.\n\nB.  Internal investigation into the incident at Biržai police station\n\nB.  Internal investigation into the incident at Biržai police station\n\n47.  After M.P.’s death, the police also conducted an internal investigation. It was led by a senior investigator at the Panevėžys city police. On 30 May 2008 the internal investigator produced report no. 50-1-IS-42, which was approved by the chief of the Panevėžys city police.\n\n48.  Having examined the available material, which included both the criminal case-file regarding the theft and the material of the criminal case-file concerning the circumstances of M.P.’s death, the internal investigator concluded that there was no information which could lead to a conclusion of any kind of abuse of M.P. by the police officers.\n\n48.  Having examined the available material, which included both the criminal case-file regarding the theft and the material of the criminal case-file concerning the circumstances of M.P.’s death, the internal investigator concluded that there was no information which could lead to a conclusion of any kind of abuse of M.P. by the police officers.\n\n49. Within the course of the internal investigation, the safeguarding of M.P. while in police custody was also examined. On the basis of video recordings from the police station the internal investigation established that during his shift the guard D.M. had patrolled his area only a few times and had stopped only briefly at the doors of the cells. He had also only twice slowly walked the corridor along his post and only once, while patrolling his area, had he looked inside cell no. 1, where M.P. had been held. The investigator concluded that D.M. had thus failed to perform his duties in accordance with the internal instruction on ensuring constant supervision of detainees, and had thus committed a disciplinary offence. Lastly, the investigator noted that by making a statement during the internal investigation that he had ensured constant supervision of the detainees, D.M. had given false testimony. Afterwards D.M. was given a reprimand.\n\n49. Within the course of the internal investigation, the safeguarding of M.P. while in police custody was also examined. On the basis of video recordings from the police station the internal investigation established that during his shift the guard D.M. had patrolled his area only a few times and had stopped only briefly at the doors of the cells. He had also only twice slowly walked the corridor along his post and only once, while patrolling his area, had he looked inside cell no. 1, where M.P. had been held. The investigator concluded that D.M. had thus failed to perform his duties in accordance with the internal instruction on ensuring constant supervision of detainees, and had thus committed a disciplinary offence. Lastly, the investigator noted that by making a statement during the internal investigation that he had ensured constant supervision of the detainees, D.M. had given false testimony. Afterwards D.M. was given a reprimand.\n\n50.  As to the other guard – R.S. – the internal investigation established that he had monitored the situation at his post via video cameras, which he considered a possible way of carrying out his duties. The internal investigator admitted that such a method of carrying out his duties could not be seen as unreasonable, even if there had been certain technical errors in how his functions had been assigned. As a result, no disciplinary sanctions were imposed on R.S.\n\nII.  RELEVANT DOMESTIC LAW AND PRACTICE\n\n51.  The relevant domestic law and practice as to the protection of the right to life and effective investigation is set out in Česnulevičius v. Lithuania (no. 13462/06, §§ 47-50, 10 January 2012).\n\n51.  The relevant domestic law and practice as to the protection of the right to life and effective investigation is set out in Česnulevičius v. Lithuania (no. 13462/06, §§ 47-50, 10 January 2012).\n\n52.  The Criminal Code provides:\n\n“A civil servant or a person equivalent thereto who fails to perform his or her duties through negligence or performs them inappropriately, where this results in significant damage to the State or to a legal or a natural person, shall be punished by deprivation of the right to be employed in certain positions or to engage in certain types of activity or by a fine or by arrest or by imprisonment for a term of up to two years.”\n\n“A civil servant or a person equivalent thereto who fails to perform his or her duties through negligence or performs them inappropriately, where this results in significant damage to the State or to a legal or a natural person, shall be punished by deprivation of the right to be employed in certain positions or to engage in certain types of activity or by a fine or by arrest or by imprisonment for a term of up to two years.”\n\n53.  The Instruction on Ensuring Safety and Supervision in Territorial Police Detention Stations (Teritorinių policijos įstaigų areštinių apsaugos ir priežiūros instrukcija), approved by the Police Commissioner General on 29 May 2007, stipulated that special enhanced supervision measures had to be taken with regard to persons held in police custody who were considered as having suicidal tendencies. The grounds to include a person on such a list were the following: documents in the person’s file, prior convictions, verbal information received by officers, the person’s behaviour or letters or other sources of information as well as any actual attempts to self-harm or to commit suicide. The instruction also provided that persons with prior convictions were to be held separately from those with no criminal record.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION\n\n54.  The applicant made a twofold complaint. She contended firstly that the State authorities had been responsible for her son’s death whilst the latter had been held at Biržai police station. Secondly, the applicant argued that they had failed in their obligation to conduct a proper investigation into the circumstances surrounding his death.\n\n55.  The applicant invoked Articles 2, 3 and 6 of the Convention. However, since it is master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018), the Court considers that the applicant’s complaints should be examined only under Article 2 of the Convention.\n\nIn so far as relevant, this provision reads as follows:\n\n“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law ...”\n\nA.  Admissibility\n\n1.  Substantive limb of Article 2\n\n56.  The Government firstly submitted that the applicant had failed to exhaust the available domestic remedies since she had not lodged a civil claim for damages due for the authorities’ alleged failure to protect her son’s life. In the Government’s view, such a claim could have been lodged either in civil or in criminal proceedings, given that in a case of non-intentional loss of life the Convention does not necessarily require criminal liability.\n\n57.  The applicant did not specifically address the Government’s arguments about the failure to exhaust the domestic remedies. Nevertheless, she contended that her son had been tortured and killed by police officers while in detention at the police station (also see paragraph 66 below).\n\n58.  The general principles concerning exhaustion of domestic remedies are resumed in Vučković and Others v. Serbia ([GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014).\n\n59.  Turning to the circumstances of the present case, the Court accepts the Government’s argument that the applicant did not pursue any civil remedies in connection with her son’s death. Indeed, as is apparent from the material provided by the parties, the applicant did not even ask to be recognised as a civil plaintiff during the criminal proceedings, instead concentrating on the possible causes of her son’s death. In this context the Court also cannot but note that the applicant considered that not only had her son’s life not been protected at Biržai police station, but she went as far as to accuse the police officers of having tortured and murdered him. The applicant maintained that view until the very end of the criminal proceedings regarding the circumstances of her son’s death (see paragraphs 24 and 45 above). This, for the Court, was an argument about intentional loss of life, the opposite to what has been suggested by the Government in their objection (see paragraph 56 above). The Court also observes that the applicant continued to challenge, until the end, the prosecutor’s decisions not to start a criminal case against Police Officers D.M. and R.S. for failure to carry out official duties (see paragraph 32 above), which appears to have been her alternative theory for the cause of her son’s death. In the light of these arguments and taking into account the matters voiced overall by the applicant, the Court finds it sufficient that the applicant pursued the criminal-law avenue in order to provide the domestic authorities with an opportunity to put right the alleged violation. The Government’s objection as to the applicant’s failure to use the available domestic remedies must therefore be dismissed.\n\n2.  Procedural limb of Article 2\n\n60.  The Government considered that the applicant, if she had considered that the State authorities had acted inefficiently or had failed to properly examine her pleas during the criminal proceedings, could have instituted civil proceedings for damages. In this context the Government also relied on the Supreme Court’s case-law to the effect that the State had been bound to compensate damage caused by the actions or failure to act of the pre-trial investigation institutions. Similarly, the Supreme Court had also held that the civil courts had not been bound by the fact that certain actions had not been acknowledged as unlawful during criminal proceedings – the latter fact not precluding them from declaring something unlawful under the civil procedure.\n\n60.  The Government considered that the applicant, if she had considered that the State authorities had acted inefficiently or had failed to properly examine her pleas during the criminal proceedings, could have instituted civil proceedings for damages. In this context the Government also relied on the Supreme Court’s case-law to the effect that the State had been bound to compensate damage caused by the actions or failure to act of the pre-trial investigation institutions. Similarly, the Supreme Court had also held that the civil courts had not been bound by the fact that certain actions had not been acknowledged as unlawful during criminal proceedings – the latter fact not precluding them from declaring something unlawful under the civil procedure.\n\n61.  In this context the Government also referred to the Supreme Court’s decision in a civil case where a claimant had been successful in obtaining damages when a criminal case concerning the circumstances of the deaths of his son and brother had been terminated as time-barred. It was noteworthy for the Government that in that case the Supreme Court had directly applied Article 2 of the Convention and had emphasised the State’s positive obligation to adequately investigate the circumstances of suspicious deaths.\n\n62.  The applicant also did not specifically comment on the Government’s objections. Nevertheless, she noted that the investigation had been suspended and restarted on numerous occasions, and, upon seeing that the investigation had neither been promptly nor thoroughly conducted, over seven years of criminal proceedings she had submitted thirty-two complaints. It had been on her initiative that the investigation had been resumed several times. During those years she had repeatedly visited the prosecutor’s office and the courts, and had experienced lots of stress and worries.\n\n63.  The Court reiterates that the applicant pursued, until the end, the criminal proceedings as to the causes of her son’s death (see paragraph 45 above). It finds it noteworthy that all six times the prosecutor discontinued the investigation it was reopened following appeals by the applicant (see paragraphs 18, 24, 26, 33, 37, 40 and 41 above). The applicant went as far as asking that a pre-trial investigation be opened against the prosecutors for purportedly having failed to conduct the criminal investigation diligently (see paragraph 29 above). Furthermore, and unlike in the Supreme Court’s judgment relied on by the Government (see paragraph 61 above), the criminal investigation in the instant case did not end as being time-barred. Thus the applicant was not deprived of the benefit of having a final court decision on the merits of her complaint that the criminal investigation had not been effective (see paragraph 46 above). Consequently, on the facts of the case the Court cannot see how a civil claim for damages alleging an ineffective criminal investigation, that is to say the same issue which the applicant had already raised before the criminal courts for seven years, might have reasonably led to a different outcome. The Court recalls in this respect that where more than one potentially effective remedy is available, an applicant is only required to have used one remedy of his or her choice (see, among many other authorities, Göthlin v. Sweden, no. 8307/11, § 45, 16 October 2014, with further references, and Tavares de Almeida Fernandes and Almeida Fernandes v. Portugal, no. 31566/13, § 37, 17 January 2017).\n\n64.  It follows that, contrary to the Government’s assertions, the applicant was not required to exhaust civil-law remedies by bringing a complaint before the civil courts. Accordingly, the Government’s objection has to be rejected.\n\n3.  The Court’s conclusion\n\n65.  The Court further finds that the applicant’s complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It also considers that they are not inadmissible on any other grounds. They must therefore be declared admissible.\n\nB.  Merits\n\n1.  Substantive limb of Article 2\n\n66.  The applicant asserted that her son had been killed in police custody by the police officers, who had tortured him by putting a gas mask on his face, blocking the breathing hole and beating him on his back. It was likely that the officers had underestimated how long a person could survive breathless. Afterwards he had been hanged from the bunk bed using a blanket sheet. The applicant also pointed to the results of the internal police investigation, wherein it had been established that Officer D.M. had lied (see paragraph 49 above). In her view, this lie was aimed at disguising a murder at the police station.\n\n67.  The Government emphasised that within domestic criminal proceedings there had been “no strong evidence” to support the applicant’s version that her son had not committed suicide but instead had been killed by the police. To the contrary, the evidence in the case supported the theory that suicide had been the cause of death, as noted in the prosecutor’s decision of 19 December 2014 (see paragraph 44 above).\n\n68.  As to the State’s positive obligation to protect M.P.’s life, the authorities had been neither aware not should they have been conscious that the applicant’s son had been a suicide risk. He had not had a history of mental health problems or suicidal tendencies; neither had he showed any signs of suicidal tendencies whilst in police custody. M.P. was not to be considered more vulnerable than any other detainee and there had been no indications that special measures should be applied to him. The Government also pointed out that M.P. had been kept alone in his cell, because the other detainees held at Biržai police station had had prior convictions, whereas M.P. had had no criminal history.\n\n69.  Once M.P.’s body had been found in the cell, an ambulance had been called without undue delay and the paramedics arrived within a couple of minutes. However, owing to obvious signs of death, resuscitation had no longer been appropriate and thus had not been attempted.\n\n70.  The general principles as to the protection of right to life and, in particular, as to the protection of prisoners from the risk of suicide are set out in Volk v. Slovenia (no. 62120/09, §§ 83-85, 13 December 2012). The Court notably recalls that for a positive obligation to arise regarding a prisoner with suicidal tendencies, it must be established that the authorities knew, or ought to have known at the time, of the existence of a real and immediate risk to the life of an identified individual and, if so, that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (ibid., § 84).\n\n71.   The Court firstly turns to the applicant’s allegation that her son had been tortured and murdered by the police officers. It notes that when pursuing the criminal investigation regarding the reasons for M.P.’s death the authorities examined all possible causes of death, including, at the applicant’s request, murder (see paragraphs 33 and 41 above). Nevertheless, as established by the prosecutors and the courts, there was no evidence of violence against M.P. to corroborate the applicant’s hypothesis of a violent crime (see paragraph 34 above). The speculative nature of the applicant’s suggestions was also pointed out by the medical expert (see paragraph 30 above). The signs which the applicant attributed to proof of violence, such as signs of strangulation or marks on M.P.’s wrists or bruising on his back, or alleged black eyes, had been examined by the forensic experts who had given plausible explanations for their presence or, alternatively, had categorically noted their absence (see paragraphs 10, 14 and 43 in fine above). Those explanations had been found credible not only by the prosecutors but also by the domestic court, which observed that there had been no marks on M.P.’s body which he could not have inflicted on himself (see paragraph 46 above). The Court finds no reasons to hold otherwise.\n\n72.  As to whether the officers at Biržai police station had displayed adequate diligence in protecting M.P., in so far as they knew or ought to have known about the risk of his self-harming (see the case-law quoted in paragraph 70 above), the Court observes the existence of a domestic legal framework designated to safeguard detainees through enhanced supervision if an individual is considered a suicide risk or as having a tendency to self-harm (see paragraph 53 above). That being so, as established during the pre-trial investigation, no circumstances triggering such a duty on the part of the authorities’ were present in the instant case. In particular, as affirmed by M.P.’s lawyer, on 14 April 2008 his client communicated in a calm manner, he was not agitated and he had no complaints (see paragraph 8 above). No signs of calamity at Biržai police station at the time of M.P.’s death were reported by the other detainees at that station (see paragraph 34 above). The fact that M.P. had had no history of attempted suicide was also confirmed by the applicant in her statement to the prosecutor (see paragraph 12 above). Nor did the applicant assert that her son was a particularly vulnerable individual, which would have put the onus on the authorities to monitor him particularly closely (see, mutatis mutandis, Volk, cited above, §§ 86-94, and, a contrario, Ketreb v. France, no. 38447/09, §§ 75-99, 19 July 2012). The Court also observes that the paramedics arrived at the scene within minutes, but no resuscitation was possible because M.P. had already been dead for several hours (see paragraph 10 above; compare and contrast Česnulevicius v. Lithuania, no. 13462/06, § 88, 10 January 2012). Accordingly, the State may not be held liable for lack of coordination between the security staff, facility management and medical practitioners either (on this issue, see Premininy v. Russia, no. 44973/04, § 87, 10 February 2011).\n\n73.  Lastly, the Court does not overlook the fact that disciplinary proceedings were opened, which resulted in a reprimand being imposed on one of the two police officers (see paragraphs 47-50 above). That being so, the Court also notes that the results of that internal investigation were taken into account by both the prosecutor and the Panevėžys Regional Court, which held that there had been no causal link between the deficiencies in performance of the duties by the police officers at issue and M.P.’s death, which had been sudden (see paragraphs 31 and 32 above). The Court sees no reasons to reach a different conclusion on this point.\n\n74.  Accordingly, there has been no violation of the substantive limb of Article 2 of the Convention.\n\n2.  Procedural limb of Article 2\n\n75.  The applicant argued that the authorities had neglected to properly investigate the circumstances of her son’s death. The criminal investigation had been delayed for seven years. The fact that the pre-trial investigation had been re-opened six times only proved that there had been flaws and that the investigating authorities had buried the facts proving her son’s murder at Biržai police station. During that period the officers had audaciously told lies, had falsified video recordings and documents, and, during the pre-trial investigation, had hid the murder weapon. The applicant also fervently challenged the results of the medical expert examinations of the circumstances of her son’s death, asserting that M.P.’s corpse had not been examined in an objective manner. The applicant pointed to the absence of burnt matches in M.P.’s cell which had led her to conclude that he had been forced to write the suicide note by the Biržai police officers.\n\n76.  The Government considered that the all the procedural requirements – promptness, independence, reasonable time, capacity to establish facts and applicant’s ability to effectively take part in the criminal investigation – had been met in this case. Throughout the proceedings there had always been an active investigation conducted, only with certain exceptions when it had been necessary to wait for specialists and experts to report.\n\n77.  The conducted investigation had been able to establish all the relevant factual circumstances. As a result, convincing arguments had been provided with regard to disputed injuries allegedly sustained by the applicant’s son, and ruling out the possibility that a crime had been committed against him. Even if some of the decisions by the prosecutor to discontinue the pre-trial investigation had been quashed, this had not been because they had been totally unsubstantiated or arbitrary – as they had been to a large extent based on the expert conclusions and the suicide note – but because further investigative actions had had to be carried out. The six re-openings of the investigations had to a major extent been caused by the actions of the applicant, who had raised new complaints or asked that new aspects be investigated after a significant lapse of time. When conducting additional investigative measures no essential evidence had been revealed. By allowing most of the applicant’s appeals the domestic authorities had demonstrated particular sensitivity and readiness to investigate her claims. Given that M.P.’s death had been an exceptional case as it had occurred in a police station, it had been necessary to take not only reasonable but also all possible investigative actions in order to comprehensively investigate it. The Government relied on the Court’s judgment in Keller v. Russia (no. 26824/04, 17 October 2013), where the Court, having taken into account the authorities’ ability to eventually address and correct the raised and identified shortcomings, had not found a procedural violation of Article 2 of the Convention despite nine rounds of investigation.\n\n78.  The relevant principles as to effective investigation in the context of Article 2 complaint are set out in Keller, cited above, §§ 92-95.\n\nThe Court also underlines that the obligation of effective investigation is not an obligation of result, but of means (see, among other authorities, Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 71, ECHR 2002II) and that Article 2 does not entail the right to have others prosecuted or sentenced for an offence, or an absolute obligation for all prosecutions to result in conviction, or indeed in a particular sentence (see Öneryıldız v. Turkey [GC], no. 48939/99, § 96, ECHR 2004-XII).\n\n79.  The Court finds it paramount that the applicant’s son had died at a police station, whilst being in an apparently controlled environment which, in addition, he was not free to leave. In such circumstances the Court can only concur with the Panevėžys Regional Court that such a death had to be particularly thoroughly examined (see paragraph 41 above). The Court also reiterates that when death occurs in a State run detention institution, the State is in a better position to investigate the causes of death (see Česnulevičius, cited above, § 94).\n\n80.  It is clear to the Court that the initial reaction of the relevant authorities was prompt. To establish the circumstances of M.P.’s death the criminal proceedings were opened right after the body was found, and a number of investigative actions, such as the inspection of the scene, questioning immediate witnesses, two autopsies – the second one at the request of the applicant – were performed on that and the following days (see paragraphs 12-15 above). The entire criminal investigation was conducted by the prosecutor’s office, an authority which was institutionally independent from the police officers involved in the relevant events, and the prosecutors’ decisions had been scrutinised by the courts. The prosecutors’ capacity to establish the truth was also noted by the courts, which dismissed the applicant’s argument that the prosecutors lacked competence to uncover alleged crime (see paragraphs 29 and 36 above).\n\n81.  On the facts of the case the Court cannot but note that at certain stages the criminal investigation to an extent was crippled by an apparent lack of effort to establish and properly examine certain pieces of evidence, such as the instrument used to write the suicide note, the alleged injuries on M.P.’s body, the authenticity of the video recordings or the mechanism of M.P.’s death (see paragraphs 18, 26, 37 and 41 above). Be that as it may, and despite these delays in the proceedings, the Court observes that the prosecutor and also the courts entertained the applicant’s requests and eventually addressed, corrected or explained those shortcomings (see paragraphs 14, 20, 24, 26, 28-30, 33, 34, 37, 38, 41 and 44 above; see also Keller, cited above, § 100). In that vein it also notes that measures such as a court order to obtain evidence from the applicant had been taken (see paragraph 20 above). The Court also points out that four medical examinations by experts from different institutions, an examination by the bailiff and two reconstructions regarding the causes of M.P.’s death in the light of the applicant’s assertion of ill-treatment at the hands of the police officers had been performed, some of them at the applicant’s request (see paragraphs 13, 14, 27, 30 and 43 above). In the course of the criminal investigation and subsequent court proceedings, the authorities identified all of the actors who could give evidence in respect of the circumstances of M.P.’s death and conducted multiple interviews with these people, as well as a confrontation between the applicant and the police interrogator, with a view to establishing the exact circumstances of the incident (see paragraphs 12, 33 and 34 above).\n\n82.  Having lasted for exactly seven years, the criminal investigation resulted in the prosecutor’s decision of 19 December 2014, which concluded that no crime had been committed and that M.P.’s had died as a result of suicide, which the police officers could not have foreseen (see paragraph 44 above). The reasonableness and lawfulness of the conclusions reached by the prosecutor and the measures taken in the course of the criminal investigation were subsequently examined and accepted by the Panevėžys Regional Court, which also excluded any suspicion of coercion or ill-treatment of M.P. preceding his death. As pointed out by that court, everything possible had been done to establish the circumstances of the death. It is true that the blanket used by M.P. for hanging himself and which was found in his cell (see paragraph 13 above) apparently went lost during the later stages of criminal proceedings. However, the Court does not consider that, albeit regrettable, this fact, as such, is capable of undermining the efficiency of the investigation because, in any case, there was sufficient data to confirm that M.P. had put his neck into a noose made from a blanket (see paragraphs 44 and 46 above; see also, mutatis mutandis and in relation to the loss or destruction of evidence in criminal cases examined by the Court under Article 6 of the Convention, Sangiorgi v. Italy (dec.), no. 70981/01, 5 September 2002, and Sofri and Others v. Italy (dec.), no. 37235/97, ECHR 2003-VIII). Furthermore, as observed by the Panevėžys Regional Court, in her last appeal the applicant had not indicated what particular pre-trial investigation actions, capable of clarifying any important circumstances in the case, had not been performed and/or what data had not been evaluated (see paragraph 46 above).\n\n83.  Lastly, the Court reiterates that disciplinary proceedings by the internal-investigation division of the Panevėžys city police, a body independent from Biržai police station, had been instituted against two Biržai police officers in order to elucidate the truth (see paragraphs 47-50 above, contrast Česnulevičius, cited above, § 100).\n\n84.  Thus, the Court does not see any reason to depart from the findings of the domestic courts on this aspect of the case and concludes that the investigation into the death of M.P. conducted by the authorities and taken as a whole was in compliance with the requirements of the procedural aspect of Article 2 of the Convention.\n\n85.  There has accordingly been no violation of Article 2 of the Convention under this head.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\n1.  Declares the application admissible;\n\n2.  Holds that there has been no violation of Article 2 of the Convention.\n\nDone in English, and notified in writing on 29 January 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_922","text":"PROCEDURE\n\n1.  The case originated in an application (no. 37725/15) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Moldovan national, Mr Tudor Ceaicovschi (“the applicant”), on 3 August 2015.\n\n2.  The applicant was represented by Mr V. Gribincea and Mr C. Scutelnic, lawyers practising in Chișinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr O. Rotari.\n\n3.  The applicant complained that his detention in custody had not been based on relevant and sufficient grounds and that he had not been provided with adequate medical treatment while in detention, in violation of Articles 5 and 3 of the Convention, respectively.\n\n4.  On 3 August 2015 the Court decided to give priority to the case under Rule 41 of the Rules of Court.\n\n5.  On 12 July 2017 the application was communicated to the Government.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n6.  The applicant was born in 1966 and lives in Chișinău.\n\nA.  Background to the case\n\n7.  The applicant is the chief executive officer of a large Moldovan company specialised in the importation of medical equipement.\n\n8.  On 8 April 2015 he was arrested by the National Anti-Corruption Center (NAC) in connection with a crimial investigation opened in November 2014. He was charged with bribery in the context of public auctions. Searches were conducted at the applicant’s home and at the headquarters of his company and numerous documents, computers and mobile phones were seized by the investigators.\n\n9.  More than twenty persons were accused in the same criminal case. Among them were the former Minister of Health and hospital directors. Many of them were apprehended and later released by the NAC or by the courts. As of July 2015, the applicant was the only accused who was kept in custody.\n\nB.  The applicant’s detention in custody and house arrest\n\n10.  After arrest the applicant was placed in the NAC detention facility. Between 8 April and 8 October 2015 the applicant was detained in custody. Between 8 October and 4 November 2015 he was detained under house arrest.\n\n11.  The need for the applicant’s detention was justified by the prosecutors in the following way: that the applicant could abscond; he could influence witnesses; he could collude with other co-accused persons; and because the offence imputed to him was sanctioned with imprisonment of up to ten years. All of the prosecutors’ applications for the prolongation of the applicant’s detention were identical.\n\n12.  The applicant argued every time that he was ready to give up his passport and that there were no reasons to believe that he would attempt influencing witnesses or hindering the investigation. The reasons relied upon by the prosecutors in favour of detention were stereotyped and there was no evidence that he intended to abscond or do other things imputed to him. He also argued that he had a family, children, a permanent employment and a permanent abode.\n\n13.  On 10 April 2015 the Buiucani District Court issued a detention order for a period of thirty days arguing that the applicant did not produce guarantees in favour of an undertaking not to hinder the good unfolding of the investigation if no detention was applied. That decision was later upheld by the Chișinău Court of Appeal, which added that there was also a risk of the applicant’s reoffending.\n\n14.  On 7 May 2015 the Buiucani District Court prolonged the applicant’s detention by twenty-five days relying on the same grounds as before. The applicant’s appeal was rejected by the Court of Appeal on 14 May 2015. The Court of Appeal used the same arguments as the first time and added that one of the reaosons to hold the applicant in custody was to protect other persons involved in the proceedings from his violent actions.\n\n15.  By decisions dated 1 and 26 June, 21 July 2015 and 15 August 2015 the Buiucani District Court prolonged the applicant’s detention for twentyfive days each time. The court relied on similar reasons as before. The Court of Appeal dismissed the applicant’s appeals arguing that the applicant’s defence did not prove the fact that the applicant did not intend to abscond or hinder the investigation. In a decision of 11 June 2015 the Court of Appeal held for the first time that there was a risk of the applicant’s absconding.\n\n16.  On 15 and 29 September 2015 the Buiucani District Court prolonged again the applicant’s detention by twenty and eight days, respectively. It argued that the risk of absconding was justified by the gravity of the offence and that the prosecutor had presented evidence in support of the claim that the applicant may hinder the investigation. The court did not state what that evidence was. On 6 October 2015 the Buiucani District Court prolonged again the applicant’s detention by ninety days.\n\n17.   On 8 October 2015 the Court of Appeal examined the appeals lodged by the applicant against the decisions of 29 September 2015 and 6 October 2015. In its first judgment it dismissed the applicant’s appeal after finding that all the risks enumerated by the first-instance court persisted. However, when examining the appeal against the second decision, the same panel of judges considered that the risk of the applicant’s absconding was no longer justified and that there were no new reasons to consider necessary the applicant’s continued detention. Therefore, the Court of Appeal ordered the applicant’s house arrest.\n\n18.  On 4 November 2015 the applicant lodged a habeas corpus request and asked for the revocation of the house arrest. On the same date the Buiucani District Court accepted the applicant’s request and ordered his release from house arrest.\n\nC.  Medical assistance provided to the applicant during detention\n\n19.  On 9 April 2015, on the second day of his detention, the applicant felt an accute pain in the region of his lower back. At 10.46 p.m. an ambulance was called for the applicant. The doctors diagnosed the applicant with “lumbar radicular syndorme with pronounced algic syndrome” and prescribed him hospitalisation. However, the prison administration refused to follow the doctors’ prescription.\n\n20.  Several hours later, on 10 April 2015 between 3 and 4 a.m. the applicant started experiencing again pain and asked for an ambulance to be called. An ambulance was called only at 9.27 a.m. The doctors repeated the same diagnosis and prescribed again hospitalisation. However, the prison administration refused to follow the doctors’ prescription.\n\n21.  At 10.10 a.m. an ambulance was called again for the applicant. This time the doctors diagnosed the applicant with “artherial hypertension of third degree”, “discopathie with agravated algic syndrome” and “lumbar radiculopathy” (sensory and/or motor deficit). Hospitalisation was again prescribed, but the prison administration refused to follow the doctors’ prescription.\n\n22.  At 11.44 a.m. an ambulance was called again for the applicant. The doctors diagnosed again “lumbar radiculopathy” and discopathie with a possible lesion of the nerve. The doctors reiterated the urgent need for hospitalisation, but the administration refused again.\n\n23.  At 2 p.m. the administration invited several doctors from the Institute of Neurology and Neurosurgery who confirmed the initial diagnosis and the urgent need for hospitalisation. Only after that, the prison administration allowed the applicant’s transfer to a hospital.\n\n24.  On 11 April 2015 the applicant was operated on his spine at the Institute of Neurology and Neurosurgery. He remained in hospital until 21 April 2015, when he was moved to a prison hospital.\n\n25.  On 22 June 2015 the applicant was examined by a commission of five doctors who diagnosed him with cholecystitis and fequent biliary colic. They recommended him surgical removal of his gall bladder within maximum seven days.\n\n26.  After that date the applicant and his lawyers submitted numerous requests and complaints to different authorities seeking the approval of his surgery. It was only on 3 August 2015, after the applicant’s condition drastically deteriorated, that his transportation to a normal hospital was approved. He had high fever and presented a swelling. After three days of preparations, he was subjected to surgery on 6 August 2015 and remained in intensive care for another week.\n\nII.  RELEVANT DOMESTIC LAW\n\n27.  The relevant domestic law was summarised in Buzadji v. the Republic of Moldova [GC], no. 23755/07, §§ 42-44, ECHR 2016 (extracts).\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION\n\n28.  The applicant complained under Article 5 § 3 of the Convention that the domestic courts had given insufficient reasons for their decisions to remand him in custody. Article 5 § 3 of the Convention, reads as follows:\n\n“3.  Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”\n\nA.  Admissibility\n\n29.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n30.  The applicant contended that there were no arguments in favour of his deprivation of liberty and that neither the detention in custody nor the house arrest had been based on relevant and sufficient reasons. He pointed to contradictions in the domestic courts’ judgments, which sometimes held that there had been a risk of his absconding and sometimes held otherwise without there being any change in the factual circumstances of the case.\n\n31.  The applicant also pointed to the fact that the criminal investigation had started some five months before his arrest and that during that time the investigators seized everything which could be of interest to them from his office and his house. Therefore, he could not tamper with any evidence as indicated by the courts.\n\n32.  The Government submitted that the applicant’s detention was necessary in order to exclude the risk of the applicant’s tampering with evidence and influencing witnesses. It was also justified by the fact that the charges against the applicant were very serious and by the complexity of the case.\n\n33.  The Court reiterates that justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities. The requirement for the judicial officer to give relevant and sufficient reasons for the detention – in addition to the persistence of reasonable suspicion – applies already at the time of the first decision ordering detention on remand, that is to say “promptly” after the arrest (see Buzadji, cited above, §§ 87 and 102). Furthermore, when deciding whether a person should be released or detained, the authorities are obliged to consider alternative measures of ensuring his appearance at trial (see, for example, Idalov v. Russia [GC], no. 5826/03, § 140, 22 May 2012).\n\n34.  Justifications which have been deemed “relevant” and “sufficient” reasons in the Court’s case-law have included such grounds as the danger of absconding, the risk of pressure being brought to bear on witnesses or of evidence being tampered with, the risk of collusion, the risk of reoffending, the risk of causing public disorder and the need to protect the detainee (see, for instance, Stögmüller v. Austria, 10 November 1969, § 15, Series A no. 9; Wemhoff v. Germany, 27 June 1968, § 14, Series A no. 7; Letellier v. France, 26 June 1991, § 51, Series A no. 207; Toth v. Austria, 12 December 1991, § 70, Series A no. 224; Tomasi v. France, 27 August 1992, § 95, Series A no. 241A; and I.A. v. France, 23 September 1998, § 108, Reports of Judgments and Decisions 1998VII).\n\n35.  The presumption is always in favour of release. The national judicial authorities must, with respect for the principle of the presumption of innocence, examine all the facts militating for or against the existence of the above-mentioned requirement of public interest or justifying a departure from the rule in Article 5, and must set them out in their decisions on applications for release. It is essentially on the basis of the reasons given in these decisions and of the well-documented facts stated by the applicant in his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 of the Convention (see, among other authorities, Buzadji, cited above, §§ 89 and 91). Arguments for and against release must not be “general and abstract” (see Smirnova v. Russia, nos. 46133/99 and 48183/99, § 63, ECHR 2003IX (extracts)). Where the law provides for a presumption in respect of factors relevant to the grounds for continued detention, the existence of the specific facts outweighing the rule of respect for individual liberty must be convincingly demonstrated (see Ilijkov v. Bulgaria, no. 33977/96, § 84 in fine, 26 July 2001).\n\n36.  According to the Court’s case-law, house arrest is considered, in view of its degree and intensity, to amount to deprivation of liberty within the meaning of Article 5 of the Convention (see Buzadji, cited above, § 104).\n\n37.  Turning to the circumstances of the present case, the Court observes in the first place that the criminal investigation had started some five months before the applicant’s arrest, during which time different investigative measures had been carried out. It does not appear from the materials of the case-file that during that period of time the applicant had made attempts to abscond, tamper with evidence and/or influence witnesses. Nevertheless, there is no indication in the judgments ordering the applicant’s remand that the courts took into account such an important factor as the applicant’s behaviour, between the beginning of the investigation and the moment when first ordering his remand in custody.\n\n38.  In view of the applicant’s behaviour during the first five months of the criminal investigation, it was particularly important for the domestic courts to provide a good justification in favour of the applicant’s detention for almost seven months. Nevertheless, the reasons relied upon by them appear to have been general, abstract and unsubstantiated. The courts merely cited different reasons for detention without explaining how they applied to the applicant’s case. Nor were the courts consistent in their findings. For instance, they did not consider the risk of absconding as being a relevant and sufficient reason for the applicant’s detention when ordering/prolonging his detention for the first three times. It was only on 11 June 2015 that the Court of Appeal mentioned that risk for the first time, without explaining what has caused it to believe so in the absence of any relevant new factual developments.\n\n39.  Likewise, when dismissing the applicant’s appeal against the decision of the Buiucani District Court of 7 May 2015, the Court of Appeal argued that the applicant’s detention was necessary in order to protect other persons involved in the proceedings from his violent actions. However, it does not appear from the materials of the case, and it was never argued by the prosecutors, that the applicant was a violent person and presented risks of violent behaviour.\n\n40.  Finally, when examining on 8 October 2015 two different appeals against two different decisions extending the applicant’s detention, the Court of Appeal came to totally different conclusions concerning the existence of risks, without giving any explanation for such an outcome and in the absence of any factual justification for that.\n\n41.  In the light of all of the above factors, the Court considers that the domestic courts failed to show that there were relevant and sufficient reasons to order and prolong the applicant’s detention pending trial and house arrest for a period of almost seven months. It follows that in the present case there has been a violation of Article 5 § 3 of the Convention.\n\nII.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION\n\n42.  The applicant complained that the authorities failed to provide him with appropriate medical care in due time. He relied on Article 3 of the Convention which reads as follows:\n\n“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”\n\nA.  Admissibility\n\n43.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n44.  The applicant submitted that it took the prison administration fourteen hours and five recommendations by the doctors to accept transferring him to a hospital on 10 April 2015. During that time he was in terrible suffering. A similar situation occurred on 22 June 2015 when a commission of five independent doctors prescribed him surgery on his gall bladder within seven days. Without giving any justification, the authorities allowed the surgery to take place only approximately forty days later. As in the case of his first surgery, the delay in transferring the applicant to a hospital in order to have surgery on his gall bladder caused him intense pain and suffering.\n\n45.  The Government submitted that the applicant received all the medical care he needed and was prescribed by doctors and argued that there has been no violation of Article 3 of the Convention.\n\n46.  The Court recalls that although Article 3 of the Convention cannot be construed as laying down a general obligation to release detainees on health grounds, it nonetheless imposes an obligation on the State to protect the physical well-being of persons deprived of their liberty, for example by providing them with the requisite medical assistance (see Sarban v. Moldova, no. 3456/05, § 77, 4 October 2005).\n\n47.  The Court has to determine whether the applicant needed medical assistance, whether he had been deprived of it as he claims and, if so, whether this amounted to treatment contrary to Article 3 of the Convention (cf. Farbtuhs v. Latvia, no. 4672/02, § 53, 2 December 2004).\n\n48.  The medical documents available in the case-file show that the applicant had a serious problem with his spine between 9 and 10 April 2015 and that he experienced serious pain. An ambulance was called for the applicant four times between 10.46 p.m. and 11.44 a.m. and each time the doctors found that the applicant’s state deteriorated and recommended his urgent hospitalisation. Towards the end of the above period the applicant started experiencing sensory and/or motor deficit and the doctors admitted that he might have suffered an injury to his nerve. In spite of all that, it was only after 2 p.m. that the prison administration allowed the applicant’s hospitalisation. The next day the applicant underwent surgery on his spine, a fact which proves the seriousness of his health problem.\n\n49.  The Government did not present any plausible justification for the delay in transferring the applicant to a hospital after the first prescription for hospitalisation had been issued by the doctors in the evening of 9 April 2015. In the Court’s view, the refusal of the prison administration to follow the doctors’ prescriptions for such a long time subjected the applicant to severe pain and suffering, a treatment which amounted to inhuman and degrading treatment within the meaning of Article 3 of the Convention.\n\n50.  The Court further notes that, on 22 June 2015, a commission of doctors prescribed the applicant surgical removal of his gall bladder within one week. In spite of that recommendation and despite the applicant’s numerous requests, he was allowed to undergo surgery only some forty days later when he presented a swelling and had high fever. As in the first case, no plausible justification was presented by the Government for such a delay. In the Court’s view, the treatment in question caused the applicant pain and anxiety which amounted to inhuman and degrading treatment within the meaning of Article 3 of the Convention.\n\n51.  There has accordingly been a violation of Article 3 of the Convention.\n\nIII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n52.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n53.  The applicant claimed 15,000 euros (EUR) in respect of nonpecuniary damage.\n\n54.  The Government argued that the amount was excessive and asked the Court to dismiss it.\n\n55.  The Court considers that the applicant must have suffered stress and frustration as a result of the violations found. Making its assessment on an equitable basis, the Court awards the applicant EUR 10,000 in respect of non-pecuniary damage.\n\nB.  Costs and expenses\n\n56.  The applicant also claimed EUR 8,080 for the costs and expenses incurred before the Court. The applicant submitted evidence that approximately two thirds of the amount had already been paid by him to his representative.\n\n57.  The Government argued that the amount was excessive and asked the Court to dismiss it.\n\n58.  According to the Court’s settled case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see, as a recent authority, Buzadji, cited above, § 130).\n\n59.  In the present case, regard being had to the documents in its possession, the Court considers it reasonable to award the applicant EUR 4,000 for costs and expenses.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\n1.  Declares the application admissible;\n\n2.  Holds that there has been a violation of Article 5 § 3 of the Convention;\n\n3.  Holds that there has been a violation of Article 3 of the Convention;\n\n4.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n5.  Dismisses the remainder of the applicants’ claim for just satisfaction.\n\nDone in English, and notified in writing on 5 June 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_424","text":"PROCEDURE\n\n1. The case was referred to the Court by the European Commission of Human Rights (\"the Commission\") on 12 November 1990, within the three-month period laid down by Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the Convention for the Protection of Human Rights and Fundamental Freedoms (\"the Convention\"). It originated in an application (no. 13343/87) against the  lodged with the Commission under Article 25 (art. 25) by Miss B., a French national, on 28 September 1987.\n\nThe applicant (who will be referred to in this judgment in the feminine, in accordance with the sex claimed by her) requested the Court not to disclose her identity.\n\nThe Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby  recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 3 and 8 (art. 3, art. 8) of the Convention.\n\n2. In response to the enquiry made in accordance with Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that she wished to take part in the proceedings and designated the lawyer who would represent her (Rule 30).\n\n3. The Chamber to be constituted included ex officio Mr L.-E. Pettiti, the elected judge of French nationality (Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21 para. 3 (b)). On 22 November 1990, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mr Thór Vilhjálmsson, Sir Vincent Evans, Mr R. Macdonald, Mr C. Russo, Mr A. Spielmann, Mr S.K. Martens and Mrs E. Palm (Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).\n\n4. Mr Ryssdal assumed the office of President of the Chamber (Rule 21 para. 5) and, through the Registrar, consulted the Agent of the French Government (\"the Government\"), the Delegate of the Commission and the lawyer representing the applicant on the need for a written procedure (Rule 37 para. 1). In accordance with the order made in consequence, the Registrar received Miss B.’s memorial on 19 February 1991, the Government’s memorial on 21 February 1991 and the written observations of the Delegate of the Commission on 22 April 1991.\n\n5. Having consulted, through the Registrar, those who would be appearing before the Court, the President directed on 4 March 1991 that the oral proceedings should open on 25 September 1991 (Rule 38).\n\n6. On 28 June 1991 the Chamber decided to relinquish jurisdiction forthwith in favour of the plenary Court (Rule 51).\n\n7. On 19 July the Government submitted supplementary observations, and the Commission produced the file on the proceedings before it, as requested by the Registrar on the President’s instructions.\n\n8. The hearing took place in public in the , , on the appointed day. It was presided over by Mr Cremona, the Vice-President of the Court, replacing Mr Ryssdal, who was unable to take part in the further consideration of the case (Rule 21 para. 5, second sub- paragraph).\n\nThere appeared before the Court:\n\n- for the Government\n\n- for the Commission\n\n- for the applicant\n\nThe Court heard addresses by Mr Puissochet for the Government, Mrs Liddy for the Commission and Mr Lyon-Caen and Mrs Fabiani for the applicant, as well as their replies to its questions.\n\nAS TO THE FACTS\n\nI. THE PARTICULAR CIRCUMSTANCES OF THE CASE\n\n9. The applicant, who is a French citizen, was born in 1935 at Sidi Bel Abbès, , and was registered with the civil status registrar as of male sex, with the forenames Norbert Antoine.\n\nA. The background to the case\n\n10. Miss B., the eldest of five children, adopted female behaviour from a very early age. She was considered as a girl by her brothers and sisters and is said to have had difficulty coping with a wholly segregated scholastic environment.\n\nShe completed her military service in , as a man, and her behaviour at the time was noticeably homosexual.\n\nAfter spending five years teaching reading and writing to young persons from Kabylia, she left  in 1963 and settled in , working in a cabaret under an assumed name.\n\n11. Distressed by her feminine character, she suffered from attacks of nervous depression until 1967, when she was treated in hospital for a month. The doctor who treated her from 1963 observed a hypotrophy of the male genital organs and prescribed feminising hormone therapy, which rapidly brought about development of the breasts and feminisation of her appearance. The applicant adopted female dress from then on. She underwent a surgical operation in  in 1972, consisting of the removal of the external genital organs and the creation of a vaginal cavity (see paragraph 18 below).\n\n12. Miss B. is now living with a man whom she met shortly before her operation and whom she at once informed of her situation. She is no longer working on the stage, and is said to have been unable to find employment because of the hostile reactions she aroused.\n\nB. The proceedings brought by the applicant\n\n1. Before the Libourne tribunal de grande instance\n\n13. Miss B., wishing to marry her friend, brought proceedings against the Libourne public prosecutor (procureur de la République) on 18 April 1978, asking the court\n\n\"to hold that, registered in the civil status register of [her] place of birth as of male sex, [she was] in reality of feminine constitution; to declare that [she was] of female sex; to order rectification of [her] birth certificate; to declare that [she should] henceforth bear the forenames Lyne Antoinette\".\n\n14. On 22 November 1979 the Libourne tribunal de grande instance dismissed her action for the following reasons:\n\n\"...\n\nWhereas it is clear from the experts’ report and is moreover not contested that [B.], correctly registered at birth as of male sex, developed towards female morphology, appearance and behaviour, apparently because of congenital hypogenesis ... and psychological tendencies following hormone treatment and surgical operations;\n\nWhereas it is thus apparent that the change of sex was intentionally brought about by artificial processes;\n\nWhereas the application of Norbert [B.] cannot be granted without attacking the principle of the inalienability of the status of individuals;\n\n...\"\n\n2. Before the  Court of Appeal\n\n15. The applicant appealed, but on 30 May 1985 the Bordeaux Court of Appeal upheld the judgment of the lower court. The court said inter alia:\n\n\"... contrary ... to Mr [B.’s] contention, his present state is not ‘the result of irreversible innate factors existing before the operation and of surgical intervention required by therapeutic necessities’, nor can it be considered that the treatment voluntarily undergone by Mr [B.] led to the disclosure of his hidden true sex, but on the contrary it indicates a deliberate intention on his part without any other treatment having been tried and without the operations having been necessitated by Mr [B.’s] biological development.\n\n...\"\n\n3. Before the Court of Cassation\n\n16. Miss B. appealed to the Court of Cassation. Her single ground of appeal was as follows:\n\n\"This appeal complains that the challenged judgment dismissed the appellant’s application for rectification of civil status,\n\nOn the grounds that if, notwithstanding the principle of the inalienability of the status of individuals, an amendment can be made where ‘irreversible necessity, independent of the individual, compels this’, which may be the case with real transsexuals, such amendment can be approved only after a long period of observation and reflection prior to the operation stage, during which a qualified medical team can ‘gradually reach the conclusion that the situation is genuine and irreversible’; that in this case ... ‘no form of psychological or psychiatric treatment was tried’; that ‘the first doctor who prescribed hormone treatment did not carry out any protracted observation, no guarantee of such observation was given before the surgical operation carried out abroad’; that ‘the apparent change of sex was brought about solely by Mr [B.’s] intention and it is clear that even after the hormone treatment and surgical operation he still shows the characteristics of a person of male sex whose external appearance has been altered thanks to cosmetic plastic surgery’; that, therefore, far from having led to the ‘disclosure of his hidden true sex’, the treatment undergone by him indicates a ‘deliberate intention on his part without any other treatment having been tried and without the operations having been necessitated by Mr [B.’s] biological development’ ...;\n\nWhereas sexual identity, which is a fundamental right of the individual, is constituted not only by biological components but also by psychological ones; that by considering surgery undergone by a transsexual to bring his anatomy into harmony with his being as inoperative merely because he still kept his male genetic and chromosomal characteristics, and by not undertaking any investigation of his contradictory psychological history - investigation which was not prevented by the lack of psychotherapy of the patient before the operation, bearing in mind the expert report produced for the court - the Court of Appeal deprived its decision of any legal foundation with respect to Article 99 of the Civil Code.\n\n...\"\n\nThe applicant’s supplementary pleadings opened with the following \"introduction\":\n\n\"The Court of Cassation now has a fresh chance to let transsexuals enter into normality, by allowing them rectification of their civil status.\n\nThe solution is legally possible since the European Commission of Human Rights has stated sexual identity to be a fundamental right of the individual.\n\nIt is humanly necessary in order for people who are not medically perverted but are merely victims of aberrations of nature finally to be able to live in harmony with themselves and with the whole of society.\"\n\nIt also included an argument relating to the Convention:\n\n\"VI. In the European legal system this argument [accepting the transsexual’s right to recognition of his true identity] has been entirely accepted, thus making up for the absence of a French statutory provision on the point.\n\nThe European Commission of Human Rights, when applied to by a transsexual whose request had been dismissed by a final judgment of the Brussels Court of Appeal, considered that by refusing to take account of changes which had occurred lawfully Belgium had failed to observe the respect due to the applicant’s private life within the meaning of Article 8 para. 1 (art. 8-1) of the European Convention on Human Rights; and that by refusing to take into account ‘his sexual identity resulting from his change of physical form, his psychical make-up and his social role ... Belgium had treated the applicant as an ambiguous being, an appearance’ ...\n\nThis follows from a report dated 1 March 1979, which recognises that sexual identity is a fundamental right of the individual.\n\nhas expressly subscribed thereto by issuing a declaration [recognising] the right of individual petition to the European Commission of Human Rights ...\"\n\n17. The appeal was dismissed by the First Civil Chamber of the Court of Cassation on 31 March 1987 for the following reasons:\n\n\"Whereas, according to the findings of the court below, Norbert [B.] submitted an application to the tribunal de grande instance for a declaration that he was of female sex, that his birth certificate should consequently be amended, and for authorisation henceforth to bear the forenames Lyne Antoinette; whereas his application was dismissed by the confirmatory judgment under appeal;\n\nWhereas Norbert [B.] complains that the Court of Appeal (Bordeaux, 30 May 1985) so decided despite the fact that sexual identity is constituted not only by biological components but also by psychological ones, so that by taking a decision without carrying out any investigation of his psychological history it deprived its decision of any legal foundation;\n\nWhereas, however, the court of second instance found that even after the hormone treatment and surgical operation which he underwent Norbert [B.] continued to show the characteristics of a person of male sex; whereas it considered that, contrary to the contentions of the person in question, his present state is not the result of elements which existed before the operation and of surgical intervention required by therapeutic necessities but indicates a deliberate intention on the part of the person concerned; whereas it thus justified its decision in law; whereas the ground of appeal can therefore not be upheld;\n\n...\" (Bulletin des arrêts de la Cour de cassation, chambres civiles (Bull. civ.) I, 1987, no. 116, p. 87)\n\nII. RELEVANT DOMESTIC LAW AND PRACTICE\n\nA. Medical treatment\n\n18. No legal formality or authorisation is required for hormone treatment or surgery intended to give transsexuals the external features of the sex they wish to have acknowledged.\n\nIt has been possible for surgical operations to take place in  since 1979 subject to medical control; before then they were carried out abroad. There is no objection by the National Council of the Medical Association, and the costs of some of these operations are borne by the social security service.\n\nPersons who commit intentional attacks on the physical integrity of a human being are criminally liable, as are their accomplices, but although prosecutions are possible, they are exceptional in cases of transsexualism.\n\nB. Civil status\n\n19. Events which take place during the lives of individuals and affect their status give rise to a marginal note on the birth certificate or are transcribed on to the certificate: acknowledgement of an illegitimate child (Article 62 of the Civil Code), adoption (Article 354), marriage (Article 75), divorce (Article 1082 of the new Code of Civil Procedure), and death (Article 79 of the Civil Code). Civil status registrars are asked to leave sufficient space for these purposes (section 3 of Decree no. 62-921 of 3 August 1962 amending various regulations relating to civil status).\n\n1. Access to civil status documents\n\n20. Under the first paragraph of section 8 of the Decree of 3 August 1962,\n\n\"Civil status registers dating less than one hundred years back may be consulted directly only by public officials authorised to do so and persons with the written permission of the procureur de la République\".\n\n21. However, \"the public nature of civil status documents shall be ensured by the issue of full copies or extracts\" (same section, second paragraph).\n\nFull copies of a birth certificate can be issued only to the person concerned, his ascendants or descendants, his spouse, his legal representative, the procureur de la République or any person authorised by him (section 9, first and third paragraphs). However, any person can obtain an extract of another person’s birth certificate (section 10).\n\nThe information which appears on an extract of birth certificate is subject to certain restrictions. Thus in the case of legal adoption, such an extract must not include any reference to the adoption order or the family of origin (section 12).\n\nIn addition, the Decree of 26 September 1953 on the simplification of administrative formalities provides that in the case of procedures and investigations carried out by public bodies, services and offices or by undertakings, organisations and health insurance institutions under State supervision, extracts of civil status documents shall be replaced by production of a civil status certificate. Such a certificate does not indicate sex.\n\n2. Rectification of civil status documents and change of forenames\n\n(a) Statutory provisions\n\n22. The following provisions govern the rectification of civil status documents:\n\nArticle 57 of the Civil Code\n\n\"The birth certificate shall state the day, time and place of birth, the sex of the child and the forenames given, the forenames, surnames, ages, occupations and addresses of the father and mother and, if appropriate, those of the person reporting the birth. If either or both of the father and mother of an illegitimate child are not named to the civil status registrar, no mention relating thereto shall be made in the registers.\n\nIf the certificate drawn up relates to an illegitimate child, the registrar shall within one month give notice thereof to the judge of the tribunal d’instance for the district of the birth.\n\nThe forenames of a child appearing on his birth certificate may in the case of a legitimate interest (intérêt légitime) be amended by an order of the tribunal de grande instance made on application by the child or, during his minority, on application by his legal representative. The order shall be made and published subject to the conditions provided for in Articles 99 and 101 of this Code. The addition of forenames may likewise be ordered.\"\n\nArticle 99 of the Civil Code (as amended by Decree no. 81-500 of 12 May 1981)\n\n\"Rectification of civil status documents shall be ordered by the president of the court.\n\nRectification of declaratory or supplementary judgments relating to civil status documents shall be ordered by the court.\n\nAn application for rectification may be brought by any person concerned or by the procureur de la République; the latter shall be obliged to act ex officio where the error or omission relates to an essential indication in the document or in the decision taking its place.\n\nThe procureur de la République having local jurisdiction may carry out administrative rectification of merely material errors and omissions in civil status documents; for this purpose he shall give the relevant instructions directly to those having custody of the registers.\"\n\nSection 1 of the Law of 6 Fructidor Year II\n\n\"No citizen may bear a surname or forename other than those stated in his birth certificate; those who have abandoned them shall be obliged to resume them.\"\n\n(b) Case-law\n\n23. A large number of French tribunaux de grande instance (T.G.I.) and courts of appeal (C.A.) have granted applications for amendment of entries in civil status registers relating to sex and forenames (see inter alia T.G.I. Amiens, 4.3.1981 ; Angoulême, 18.1.1984; Créteil, 22.10.1981; Lyon, 31.1.1986; Montpellier, 6.5.1985; Nanterre, 16.10.1980 and 21.4.1983; Niort, 5.1.1983; Paris, 24.11.1981, 16.11.1982, 9.7.1985 and 30.11.1988; Périgueux, 10.9.1991; Saint-Etienne, 11.7.1979; Strasbourg, 20.11.1990; Thionville, 28.5.1986; Toulouse, 25.5.1978; C.A. Agen, 2.2.1983; Colmar, 15.5.1991 and 30.10.1991; Nîmes, 2.7.1984; Paris, 22.10.1987; Toulouse, 10.9.1991; Versailles, 21.11.1984) or relating to forenames only (T.G.I. Lyon, 9.11.1990; Metz, 6.6.1991; Paris, 30.5.1990; Saint-Etienne, 26.3.1980; C.A. Bordeaux, 18.3.1991). Some of these decisions specified that the amendment of civil status should not have retroactive effect, in order not to affect earlier legal acts or situations. The great majority of them have become final and binding, the prosecutor’s office not having exercised its right to appeal.\n\nContrary rulings have, however, been given by other courts (see inter alia T.G.I. Bobigny, 18.9.1990; Paris, 7.12.1982; C.A. Bordeaux, 13.6.1972 and 5.3.1987; Lyon, 19.11.1987; Nancy, 5.4.1973, 13.4.1977 and 22.4.1982; Nîmes, 10.3.1986, 7.6.1986, 7.5.1987 and 2.7.1987; Rouen, 8.10.1986 and 26.10.1988).\n\n24. The Court of Cassation has had occasion to give decisions on this point some twelve times from 1975 to 31 May 1990.\n\nIn two judgments of 16 December 1975 (Bull. civ. I, no. 374, p. 312, and no. 376, p. 313; Recueil Dalloz Sirey (D.S.) 1976, p. 397, note Lindon; Juris-Classeur périodique (J.C.P.) 1976, II, 18503, note Penneau) it ruled out any possibility of taking into account a change of sexual attributes following hormone treatment and surgery which the person concerned had voluntarily undergone (first judgment), but indicated that the courts could take into account involuntary morphological changes following treatment carried out in a concentration camp during the second world war (second judgment).\n\nOn 30 November 1983 (Bull. civ. I, no. 284, p. 253; D.S. 1984, p. 165, note Edelman; J.C.P. 1984, II, 20222, submissions of Mr Advocate General Sadon) it dismissed an appeal which had been brought against a judgment refusing to allow a change of sex despite a favourable medical report, as \"the Court of Appeal [had] found that despite the operations undergone by her, Nadine V. was not of male sex\".\n\nTwo further judgments were given by the Court of Cassation on 3 and 31 March 1987 (Bull. civ. I, no. 79, p. 59, and no. 116, p. 87; D.S. 1987, p. 445, note Jourdain). The latter judgment relates to the present case (see paragraph 17 above). In the former, the court had to rule on the position of a transsexual who was married and the father of a child. While acknowledging that genetically he was still a man, the Nîmes Court of Appeal had on 2 July 1984 ordered rectification of his birth certificate and change of forenames. On appeal by the procureur’s office the Court of Cassation quashed the judgment on the grounds that its findings of fact did not show that there was a change of sex caused by a factor extraneous to the will of the person concerned.\n\nOn 7 March 1988 (Bull. civ. I, no. 176, p. 122), 7 June 1988 (Gazette du Palais (G.P.) 7-8 June 1989, jurisprudence, p. 4) and 10 May 1989 (Bull. civ. I, no. 189, p. 125) the court dismissed appeals by transsexuals who had voluntarily undergone hormone treatment only, on the grounds that the Court of Appeal had found that the said treatment was of voluntary nature and had been entitled to regard as insufficient the psychological and social factors relied on.\n\nOn 21 May 1990 the Court of Cassation dealt in the same way with four appeals (J.C.P. 1990, II, 21588, with report by Mr Massip and submissions of Mrs Advocate General Flipo). It stated in particular that:\n\n\"... transsexualism, even where medically acknowledged, cannot be regarded as a true change of sex, as the transsexual, although having lost certain characteristics of his original sex, has not thereby acquired those of the opposite sex; ...\"\n\nIn the fourth of these appeals the Court of Appeal was criticised for \"not having investigated further to see if, in default of rectification of sex, at the very least the substitution of forenames requested ought to have been allowed\". The Court of Cassation’s response was that the applicant had \"before the Court of Appeal requested a change of forenames only as a consequence of the change of sex she was claiming\" and that she had \"not shown that she had a legitimate interest within the meaning of the third paragraph of Article 57 of the Civil Code in her forenames being amended even if the change of sex were not allowed\". The ground of appeal was therefore rejected, as it had not been argued before the court below.\n\nC. Documents\n\n1. Administrative documents\n\n(a) Identity documents\n\n25. As a general rule, sex is not indicated on administrative documents issued to natural persons, such as traditional national identity cards, classic style passports, driving licences, voting cards, certificates of nationality, etc.\n\nHowever, the new computerised identity cards do mention sex in order to enable an individual to be identified by machine and to take account of the existence of ambiguous forenames. This also applies to the \"Community\" style passports which are gradually replacing \"national\" passports.\n\n(b) The INSEE number\n\n26. The National Institute for Statistics and Economic Studies (Institut national de la statistique et des études économiques, INSEE) allocates everyone a number. The first digit of the number indicates sex (1 for male sex, 2 for female sex). The number appears in the national identification register of natural persons; the social security bodies use it with additional digits for each person insured.\n\nThe right to make use of this number is governed by Law no. 78-17 of 6 January 1978 on data processing, files and civil liberties. Under section 8 of this Law access to the register for the purpose of processing data involving names is subject to authorisation by a decree in the Conseil d’Etat issued after consultation with the National Commission on Data Processing and Civil Liberties (Commission nationale de l’informatique et des libertés, CNIL). Decree no. 82-103 of 22 January 1982 relating to the said register provides that \"with the exception of the cases specifically provided for by law, the register may not be used for the purpose of tracing individuals\" (section 7).\n\nIn an opinion of June 1981 the CNIL defined in broad terms the principles which it intended to follow in supervising the use of the register and the registration numbers in it. Since then it has recommended against use of the number or had its use withdrawn in numerous cases relating inter alia to taxation and public education. On the other hand, it approved its use for checking personal identities in connection with the computerisation of criminal records and the central data file of cheques of the Banque de France. A decree of 11 April 1985 likewise authorised social security institutions to make use of the registration number. The CNIL has also, when various rules were being drawn up relating to employees’ pay, allowed the number to be used as a means of correspondence with social security bodies.\n\n2. Private documents\n\n27. There is no provision of law which makes it compulsory for banking and postal institutions to include the prefix \"Madame\", \"Mademoiselle\" or \"Monsieur\" on cheques, but in practice they are usually included. However, anyone may require that his surname and forenames only be used.\n\n28. Invoices must include the surnames of the persons they concern but need not indicate their sex (section 3 of Order no. 86-1243 of 1 December 1986).\n\nPROCEEDINGS BEFORE THE COMMISSION\n\n29. In her application of 28 September 1987 to the Commission (no. 13343/87), Miss B. complained of the refusal of the French authorities to recognise her true sexual identity, in particular their refusal to allow her the change of civil status sought. She relied on Articles 3, 8 and 12 (art. 3, art. 8, art. 12) of the Convention.\n\n30. The Commission declared the application admissible on 13 February 1990, with the exception of the complaint based on Article 12 (art. 12), which it rejected on the grounds of failure to exhaust domestic remedies. In its report of 6 September 1990 (made under Article 31) (art. 31), it expressed the opinion that there had been a violation of Article 8 (art. 8) (seventeen votes to one) but not of Article 3 (art. 3) (fifteen votes to three).\n\nThe full text of the Commission’s opinion and of the dissenting opinion contained in the report is reproduced as an annex to this judgment.\n\nFINAL SUBMISSIONS TO THE COURT\n\n31. At the hearing the Government confirmed the submissions in their memorial. They asked the Court to \"dismiss the application\" on the grounds of failure to exhaust domestic remedies, and \"in addition and in any event\" as being out of time (Article 26 in fine of the Convention) (art. 26), and \"purely in the alternative\" as ill-founded.\n\n32. The applicant in her memorial asked the Court to\n\n\"- hold that  [had] with respect to her violated the provisions of Article 8 para. 1 (art. 8-1) of the Convention ...;\n\n- order France to pay her the sum of 1,000,000 French francs (FRF) under Article 50 (art. 50) of the Convention ... and the sum of 35,000 FRF for the costs and expenses she [had] been obliged to incur before the Court of Cassation and before the European Commission and Court.\"\n\nAS TO THE LAW\n\nI. THE QUESTIONS OF JURISDICTION AND ADMISSIBILITY RAISED IN THE PRESENT CASE\n\n33. Under Article 26 (art. 26) of the Convention,\n\n\"The Commission may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.\"\n\nThe Government raised two objections as to admissibility, arguing firstly that domestic remedies had not been exhausted, and secondly that the application was out of time.\n\nA. The Court’s jurisdiction to examine the Government’s preliminary objections\n\n34. The Commission asked the Court to declare them inadmissible. It was well aware that as from the De Wilde, Ooms and Versyp v. Belgium judgment of 18 June 1971 (Series A no. 12, pp. 29-30, paras. 47-52) the Court had examined preliminary objections raised under Article 26 (art. 26) and had upheld them on occasion (Van Oosterwijck v. Belgium judgment of 6 November 1980, Series A no. 40, pp. 5-31). It noted, however, that several judges had given dissenting opinions on this point, both at the time (aforesaid judgment of 18 June 1971, pp. 49-58) and in cases since (Brozicek v. Italy judgment of 19 December 1989, Series A no. 167, pp. 23-28, and Cardot v. France judgment of 19 May 1991, Series A no. 200, pp. 23-24).\n\nIt argued that the Court’s case-law on this point had two important consequences: it rendered more burdensome the proceedings of the Convention institutions, and created a further lack of equality between governments and applicants, as the latter are not able to appeal against findings of inadmissibility by the Commission.\n\n35. The applicant expressed no opinion. The Government stated that they maintained their objections, in view of the Court’s \"clear and consistent attitude\" on the point.\n\n36. The Court has considered the Commission’s reasoning but sees no reason, as matters stand, for abandoning a line of case-law which has been followed constantly for over twenty years and which has found expression in a large number of judgments. It notes in particular that the arguments put forward are substantially the same as those advanced by the Commission in the De Wilde, Ooms and Versyp case (Series B no. 10, pp. 209-213, 214 and 258-263), which were not upheld in the above-mentioned judgment of 18 June 1971.\n\nIt therefore considers that it has jurisdiction to examine the Government’s preliminary objections.\n\nB. The merits of the Government’s preliminary objections\n\n1. The failure to exhaust domestic remedies\n\n37. According to the Government, the applicant should have relied on the Convention before the courts of first instance instead of doing so for the first time in her appeal to the Court of Cassation. As her argument had been raised at such a late stage, it had been inadmissible.\n\n38. The applicant countered that the principle of the prohibition on raising new submissions in the Court of Cassation did not apply to arguments of public policy, pure points of law or arguments which followed from the decision being challenged; moreover, parties were entitled to put forward any new arguments of law. The question whether the reasoning of the Bordeaux Court of Appeal’s judgment conflicted with the Convention fell within this category.\n\n39. The Court finds, in agreement with the Commission, that the applicant complained in substance of a violation of her right to respect for her private life before the Libourne tribunal de grande instance and the Bordeaux Court of Appeal (see in particular, mutatis mutandis, the Guzzardi v. Italy judgment of 6 November 1980, Series A no. 39, pp. 25-27, paras. 71-72). Admittedly, she did not at that time rely on the Convention, but an express reference thereto was not the only means open to her for achieving the aim pursued; there were numerous decisions of the inferior courts, based on provisions of French law alone, which allowed her to hope that she might win her case (see paragraph 23 above). In this respect her position was different from that of Mr Van Oosterwijck (see the judgment cited above, Series A no. 40, pp. 16-17, paras. 33-34).\n\nFurthermore, the Court of Cassation did not declare the ground of appeal inadmissible on the grounds of novelty, but rejected it as being ill-founded (see paragraph 17 above), as Miss B. has correctly pointed out.\n\nThe objection of non-exhaustion of domestic remedies must therefore be dismissed.\n\n2. Whether the application was out of time\n\n40. The Government argued in the alternative that the application had been lodged out of time. In their opinion, the judgment of the Bordeaux Court of Appeal was based solely on questions of fact, so that the appeal to the Court of Cassation had no chance of success in any event. The period of six months mentioned in Article 26 (art. 26) in fine had therefore started to run on 30 May 1985, the date of the said judgment, and the applicant had not complied therewith.\n\n41. Miss B., on the other hand, considered that it was not possible to state a priori that an appeal would be ineffective, on the alleged ground that the courts below had ruled \"on the particular facts\": the Court of Cassation had jurisdiction to review the correctness of the principles of law applied by the Court of Appeal in declining to take account of a change of sex.\n\n42. The Court notes that the applicant put to the Court of Cassation a point of law relating to Article 8 (art. 8) and founded on the opinion of the Commission in the Van Oosterwijck case (Series B no. 36, pp. 23-26, paras. 43-52). Furthermore, there was no consistent case-law in existence at the time to show in advance that the applicant’s appeal was pointless.\n\nAn appeal to the Court of Cassation is after all in principle one of the remedies which should be exhausted in order to comply with Article 26 (art. 26). Even supposing that it was probably destined to fail in the particular case, the bringing of the appeal was thus not futile. It therefore had the effect at the very least of postponing the starting-point of the six-month period.\n\nAccordingly, the objection that the application was out of time must also be dismissed.\n\nII. THE MERITS\n\nA. Alleged violation of Article 8 (art. 8)\n\n43. According to the applicant, the refusal to recognise her true sexual identity was a breach of Article 8 (art. 8) of the Convention, which reads as follows:\n\n\"1. Everyone has the right to respect for his private and family life, his home and his correspondence.\n\n2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.\"\n\nShe argued that by failing to allow the indication of her sex to be corrected in the civil status register and on her official identity documents, the French authorities forced her to disclose intimate personal information to third parties; she also alleged that she faced great difficulties in her professional life.\n\n44. The Court notes first of all that the notion of \"respect\" enshrined in Article 8 (art. 8) is not clear-cut. This is the case especially where the positive obligations implicit in that concept are concerned, as in the instant case (see the Rees v. the United Kingdom judgment of 17 October 1986, Series A no. 106, p. 14, para. 35, and the Cossey v. the United Kingdom judgment of 27 September 1990, Series A no. 184, p. 15, para. 36), and its requirements will vary considerably from case to case according to the practices followed and the situations obtaining in the Contracting States. In determining whether or not such an obligation exists, regard must be had to the fair balance that has to be struck between the general interest and the interests of the individual (see in particular the above-mentioned Cossey judgment, p. 15, para. 37).\n\n45. Miss B. argued that it was not correct to consider her application as substantially identical to those of Mr Rees and Miss Cossey previously before the Court.\n\nFirstly, it was based on new scientific, legal and social elements.\n\nSecondly, there was a fundamental difference between  and  in this field, with regard to their legislation and the attitude of their public authorities.\n\nThus the application of the very criteria stated in the above-mentioned judgments of 17 October 1986 and 27 September 1990 would have led to a finding of a violation by , as French law, unlike English law, did not even acknowledge the appearance lawfully assumed by a transsexual.\n\nThe applicant also invited the Court to develop its analysis further than in the aforesaid two cases. She wished the Court to hold that a  is in breach of Article 8 (art. 8) if it denies in general fashion the reality of the psycho-social sex of transsexuals.\n\n1. Scientific, legal and social developments\n\n46. (a) The Court said in the Cossey judgment that it \"[had] been informed of no significant scientific developments that [had] occurred\" since the Rees judgment; \"in particular, it remain[ed] the case ... that gender reassignment surgery [did] not result in the acquisition of all the biological characteristics of the other sex\" (loc. cit., p. 16, para. 40).\n\nAccording to the applicant, science appears to have contributed two new elements to the debate on the contrast between appearance (changed somatic sex and constructed gonadal sex) and reality (unchanged chromosomal sex but contrary psycho-social sex) as regards the sex of transsexuals. Firstly, the chromosomal criterion was not infallible (cases of persons with intra-abdominal testicles, so-called testicular feminisation, or with XY chromosomes despite their feminine appearance); secondly, current research suggested that the ingestion of certain substances at a given stage of pregnancy, or during the first few days of life, determined transsexual behaviour, and that transsexualism might result from a chromosome anomaly. There might thus be a physical, not merely psychological explanation of the phenomenon, which would mean that there could be no excuse for refusing to take it into account in law.\n\n(b) As regards the legal aspects of the problem, Miss B. relied on the dissenting opinion of Judge Martens, annexed to the Cossey judgment (Series A no. 184, pp. 35-36, para. 5.5); the differences which still subsisted between the member States of the Council of Europe as to the attitude to be adopted towards transsexuals (ibid., p. 16, para. 40) were counterbalanced to an increasing extent by developments in the legislation and case-law of many of those States. This was supported by resolutions and recommendations of the Assembly of the Council of Europe and the European Parliament.\n\n(c) Finally, the applicant stressed the rapidity of social changes in the countries of Europe, and the diversity of cultures represented by those countries which had adapted their laws to the situation of transsexuals.\n\n47. The Government did not deny that science had in the twentieth century, especially in the last three decades, made considerable advances in the use of sexual hormones and in plastic and prosthetic surgery, and that the question of sexual identity was still in the course of evolution from the medical point of view. Transsexuals nevertheless kept their original chromosomal sex; only their appearance could be changed. But the law should fasten on the reality. Moreover, operations which presented certain dangers should not be trivialised.\n\nNational laws were also evolving and many of them had already changed, but the new laws thus introduced did not lay down identical solutions.\n\nIn short, things were in a state of flux, legally, morally and socially.\n\n48. The Court considers that it is undeniable that attitudes have changed, science has progressed and increasing importance is attached to the problem of transsexualism.\n\nIt notes, however, in the light of the relevant studies carried out and work done by experts in this field, that there still remains some uncertainty as to the essential nature of transsexualism and that the legitimacy of surgical intervention in such cases is sometimes questioned. The legal situations which result are moreover extremely complex: anatomical, biological, psychological and moral problems in connection with transsexualism and its definition; consent and other requirements to be complied with before any operation; the conditions under which a change of sexual identity can be authorised (validity, scientific presuppositions and legal effects of recourse to surgery, fitness for life with the new sexual identity); international aspects (place where the operation is performed); the legal consequences, retrospective or otherwise, of such a change (rectification of civil status documents); the opportunity to choose a different forename; the confidentiality of documents and information mentioning the change; effects of a family nature (right to marry, fate of an existing marriage, filiation), and so on. On these various points there is as yet no sufficiently broad consensus between the member States of the Council of Europe to persuade the Court to reach opposite conclusions to those in its Rees and Cossey judgments.\n\n2. The differences between the French and English systems\n\n49. The applicant argued that the lot of transsexuals could be seen to be much harder in  than in  on a number of points. The Commission agreed in substance with this opinion.\n\n50. In the Government’s opinion, on the other hand, the Court could not depart in the case of  from the solution adopted in the Rees and Cossey judgments. The applicant might no doubt in the course of her daily life experience a number of embarrassing situations, but they were not serious enough to constitute a breach of Article 8 (art. 8). At no time had the French authorities denied transsexuals the right to lead their own lives as they wished. The applicant’s own history was evidence of this, as Miss B. had succeeded in passing as a woman despite her male civil status. Besides, a transsexual who did not want third parties to know his or her biological sex was in a similar situation to that of a person wishing to keep other personal information secret (age, income, address, etc.).\n\nMoreover, as a general consideration, the margin of appreciation allowed to the Contracting States applied both to the choice of criteria for recognition of a change of sex and to the choice of ancillary measures in the event of a refusal of recognition.\n\n51. The Court finds, to begin with, that there are noticeable differences between  and  with reference to their law and practice on civil status, change of forenames, the use of identity documents, etc. (see paragraphs 19-22 and 25 above, to be contrasted with paragraph 40 of the above-mentioned Rees judgment). It will examine below the possible consequences of these differences in the present case from the point of view of the Convention.\n\n(a) Civil status\n\n52. The applicant considered the rejection of her request for rectification of her birth certificate to be all the more culpable since France could not claim, as the United Kingdom had done, that there were any major obstacles linked to the system in force.\n\nThe Court had found, in connection with the English civil status system, that the purpose of the registers was not to define the present identity of an individual but to record a historic fact, and their public character would make the protection of private life illusory if it were possible to make subsequent corrections or additions of this kind (see the above-mentioned Rees judgment, Series A no. 106, pp. 17-18, para. 42). This was not the case in . Birth certificates were intended to be updated throughout the life of the person concerned (see paragraph 19 above), so that it would be perfectly possible to insert a reference to a judgment ordering the amendment of the original sex recorded. Moreover, the only persons who had direct access to them were public officials authorised to do so and persons who had obtained permission from the procureur de la République; their public character was ensured by the issuing of complete copies or extracts.  could therefore uphold the applicant’s claim without amending the legislation; a change in the Court of Cassation’s case-law would suffice.\n\n53. In the Government’s opinion, French case-law in this respect was not settled, and the law appeared to be in a transitional phase.\n\n54. In the Commission’s opinion, none of the Government’s arguments suggested that the Court of Cassation would agree to a transsexual’s change of sex being recorded in the civil status register. It had rejected the appeal in the present case on the grounds that the applicant’s situation derived from a voluntary choice on her part and not from facts which had existed prior to the operation.\n\n55. The Court notes first of all that nothing would have prevented the insertion, once judgment had been given, in Miss B.’s birth certificate, in some form or other, of an annotation whose purpose was not, strictly speaking, to correct an actual initial error but to bring the document up to date so as to reflect the applicant’s present position. Furthermore, numerous courts of first instance and courts of appeal have already ordered similar insertions in the case of other transsexuals, and the procureur’s office has hardly ever appealed against such decisions, the great majority of which have now become final and binding (see paragraph 23 above). The Court of Cassation has adopted a contrary position in its case-law, but this could change (see paragraph 24 above).\n\nIt is true that the applicant underwent the surgical operation abroad, without the benefit of all the medical and psychological safeguards which are now required in . The operation nevertheless involved the irreversible abandonment of the external marks of Miss B.’s original sex. The Court considers that in the circumstances of the case the applicant’s manifest determination is a factor which is sufficiently significant to be taken into account, together with other factors, with reference to Article 8 (art. 8).\n\n56. The applicant pointed out that the law of 6 Fructidor Year II (see paragraph 22 above) prohibited any citizen from bearing a surname or forename other than those recorded on his or her birth certificate. In the eyes of the law, her forename was therefore Norbert; all her identity documents (identity card, passport, voting card, etc.), her cheque books and her official correspondence (telephone accounts, tax demands, etc.) described her by that name. Unlike in the United Kingdom, whether she could change her forename did not depend on her wishes only; Article 57 of the Civil Code made this subject to judicial permission and the demonstration of a \"legitimate interest\" capable of justifying it (see paragraph 22 above). Miss B. knew of no decision which had regarded transsexualism as giving rise to such an interest. In any event, the Libourne tribunal de grande instance and the Bordeaux Court of Appeal had refused to allow her the forenames Lyne Antoinette (see paragraphs 13-15 above). Finally, the status of informally adopted forenames was highly uncertain.\n\nThe Commission agreed in substance with this argument.\n\n57. The Government maintained, on the other hand, that there was ample favourable case-law on the point, supported by the public prosecutor’s offices. It merely required that a \"neutral\" forename such as Claude, Dominique or Camille was chosen; the applicant had, however, requested forenames which were exclusively female.\n\nIn addition, many people frequently made use of an informally adopted forename (\"prénom d’usage\") which differed from that recorded in their birth certificate. The Government conceded, however, that this practice had no legal validity.\n\n58. The judgments supplied to the Court by the Government do indeed show that non-recognition of the change of sex does not necessarily prevent the person in question from obtaining a new forename which will better reflect his or her physical appearance (see paragraph 23 above).\n\nHowever, this case-law was not settled at the time when the Libourne and  courts gave their rulings. Indeed, it does not appear to be settled even today, as the Court of Cassation has apparently never had an occasion to confirm it. Moreover, the door it opens is a very narrow one, as only the few neutral forenames can be chosen. As to informally adopted forenames, they have no legal status.\n\nTo sum up, the Court considers that the refusal to allow the applicant the change of forename requested by her is also a relevant factor from the point of view of Article 8 (art. 8).\n\n(b) Documents\n\n59. (a) The applicant stressed that an increasing number of official documents indicated sex: extracts of birth certificates, computerised identity cards, European Communities passports, etc. Transsexuals could consequently not cross a frontier, undergo an identity check or carry out one of the many transactions of daily life where proof of identity is necessary, without disclosing the discrepancy between their legal sex and their apparent sex.\n\n(b) According to the applicant, sex was also indicated on all documents using the identification number issued to everyone by INSEE (see paragraph 26 above). This number was used as part of the system of dealings between social security institutions, employers and those insured; it therefore appeared on records of contributions paid and on payslips. A transsexual was consequently unable to hide his or her situation from a potential employer and the employer’s administrative staff; the same applied to the many occasions in daily life where it was necessary to prove the existence and amount of one’s income (taking a lease, opening a bank account, applying for credit, etc). This led to difficulties for the social and professional integration of transsexuals. Miss B. had allegedly been a victim of this herself. The INSEE number was also used by the Banque de France in keeping the register of stolen and worthless cheques.\n\n(c) Finally, the applicant encountered problems every day in her economic life, in that her invoices and cheques indicated her original sex as well as her surname and forenames.\n\n60. The Commission agreed substantially with the applicant’s arguments. In its opinion the applicant, as a result of the frequent necessity of disclosing information concerning her private life to third parties, suffered distress which was too serious to be justified on the ground of respect for the rights of others.\n\n61. The Government replied, to begin with, that certificates of civil status and French nationality, driving licences, voting cards and national identity cards of traditional type did not mention sex.\n\nThis was admittedly not the case with the Community passport, but the design of that depended on regulations from  and was thus not a requirement imposed by . The applicant could in fact enjoy freedom of movement independently of her sexual identity, and some of the examples given by her were of no relevance; thus the report of a road accident or other claim did not require the sex of the insured to be specified.\n\nThe INSEE number had been introduced after the second world war for demographic statistical purposes, and was used subsequently for identifying the recipients of French social security benefits. It was hardly ever used apart from this, and did not appear on identity cards, passports or other administrative documents. In any event, the public authorities to which it was communicated were obliged to keep it secret. As for employers, they needed to know it in order to pay a proportion of their employees’ social security contributions.\n\nIn this connection the Government expressed the opinion that if Miss B. had been unable to find paid work outside the entertainment world, there could be many reasons for this apart from her being a transsexual. There were transsexuals who exercised other equally worthy professions. What was more, any discrimination in recruitment based on the sex or morals of the person concerned was an offence under Article 416-1 of the Criminal Code. No transsexual had ever relied on this Article.\n\nThere was no reason either why banks should not be asked to print on cheques only the surname and forenames of the drawer without the prefix \"M.\", \"Mme\" or \"Mlle\" (see paragraph 27 above), nor did banks verify that the forenames stated were the same as those recorded in the civil status register. Similarly, invoices did not normally mention the customer’s sex or forenames, but only the surname (see paragraph 28 above). There were thus means available to transsexuals for preserving their privacy.\n\n62. The Court is not convinced by this argument. It considers, in agreement with the Commission, that the inconveniences complained of by the applicant in this field reach a sufficient degree of seriousness to be taken into account for the purposes of Article 8 (art. 8).\n\n(c) Conclusion\n\n63. The Court thus reaches the conclusion, on the basis of the above-mentioned factors which distinguish the present case from the Rees and Cossey cases and without it being necessary to consider the applicant’s other arguments, that she finds herself daily in a situation which, taken as a whole, is not compatible with the respect due to her private life. Consequently, even having regard to the State’s margin of appreciation, the fair balance which has to be struck between the general interest and the interests of the individual (see paragraph 44 above) has not been attained, and there has thus been a violation of Article 8 (art. 8).\n\nThe respondent State has several means to choose from for remedying this state of affairs. It is not the Court’s function to indicate which is the most appropriate (see inter alia the Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, p. 25, para. 58, and the Airey v. Ireland judgment of 9 October 1979, Series A no. 32, p. 15, para. 26).\n\nB. Alleged violation of Article 3 (art. 3)\n\n64. Before the Commission, Miss B. also claimed that she had been treated by the law in a manner which was both inhuman and degrading within the meaning of Article 3 (art. 3).\n\nShe has not repeated this complaint since, and the Court does not consider it necessary to examine the question of its own motion.\n\nIII. APPLICATION OF ARTICLE 50 (art. 50)\n\n65. Under Article 50 (art. 50),\n\n\"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party\".\n\nA. Damage\n\n66. The applicant in the first place claimed 1,000,000 FRF in respect of the pecuniary and non-pecuniary damage she had allegedly suffered. The non-pecuniary damage stemmed from the situation imposed on her by French law; the pecuniary damage resulted from the problems she encountered in her everyday life, due in particular to the fact that she had never been able to find employment for fear of having to disclose the sexual identity appearing in her civil status documents.\n\nIn the Government’s opinion, she had not established that such damage existed, and the amount claimed was exorbitant. Were the Court to find that there had been a violation of Article 8 (art. 8), the judgment would in itself constitute sufficient just satisfaction.\n\nThe Delegate of the Commission expressed no opinion.\n\n67. The Court considers that Miss B. has suffered non-pecuniary damage as a result of the situation found in the present judgment to be contrary to the Convention. Taking a decision on an equitable basis as required by Article 50 (art. 50), it awards her 100,000 FRF under this head.\n\nOn the other hand, it dismisses her claims relating to pecuniary damage. The applicant was in employment for a considerable time, and a number of transsexuals have employment in . Her difficulty in finding work because of having to disclose her circumstances, although real, is therefore not insurmountable.\n\nB. Costs and expenses\n\n68. The applicant also claimed 35,000 FRF in respect of the costs and expenses she had incurred before the Court of Cassation (10,000 FRF) and before the Convention institutions (25,000 FRF).\n\nThe Government left it to the Court to assess the claim with reference to the criteria laid down in its case-law. The Delegate of the Commission expressed no opinion.\n\n69. On the basis of those criteria, the Court considers that the respondent State must reimburse the applicant the entire amount in question.\n\nFOR THESE REASONS, THE COURT\n\n1. Holds by sixteen votes to five that it has jurisdiction to examine the Government’s preliminary objections;\n\n2. Dismisses them unanimously;\n\n3. Holds by fifteen votes to six that there has been a violation of Article 8 (art. 8);\n\n4. Holds unanimously that it is not necessary also to examine the case from the point of view of Article 3 (art. 3);\n\n5. Holds by fifteen votes to six that the respondent State is to pay the applicant within three months 100,000 (one hundred thousand) French francs in respect of non-pecuniary damage and 35,000 (thirty-five thousand) French francs for costs and expenses;\n\n6. Dismisses unanimously the remainder of the claim for just satisfaction.\n\nDone in English and in French, and delivered at a public hearing in the Human Rights Building, , on 25 March 1992.\n\nIn accordance with Article 51 para. 2 (art. 51-2) of the Convention and Rule 53 para. 2 of the Rules of Court, the following separate opinions are annexed to this judgment:\n\n(a) concurring opinion of Mr Russo;\n\n(b) joint dissenting opinion of Mr Bernhardt, Mr Pekkanen, Mr Morenilla and Mr Baka;\n\n(c) dissenting opinions of Mr Matscher, Mr Pinheiro Farinha, Mr Pettiti, Mr Valticos, Mr Loizou and Mr Morenilla, prefaced by a joint introduction;\n\n(d) concurring opinion of Mr Walsh;\n\n(e) separate opinion of Mr Martens.\n\nI voted in favour of point 1 of the operative provisions, but I am of the opinion that the Court will have to reconsider its case-law on this point once Protocol No. 9 (P9) to the Convention has come into force.\n\nWe have voted against point 1 of the operative provisions of the present judgment. For the reasons mentioned in paragraph 34 of the judgment and in the dissenting opinions quoted therein, we are of the opinion that the Court should no longer review preliminary objections rejected by the Commission.\n\nWe, the members of the minority, all agree in considering that in the present case of B. v.  a finding of a violation should not have been made. In the field of transsexualism the wide margin of appreciation allowed to the State must permit the State to regulate by means of case-law the legal status of genuine transsexuals, following objective criteria and respecting Article 8 (art. 8). The following opinions vary in their assessment but do not contradict each other as to their reasoning.\n\nI regret that I find it impossible to join the majority in voting in favour of a violation of Article 8 (art. 8) even though the judgment does not state with sufficient clarity what precisely is thought to constitute the violation.\n\nThe judgment mentions a variety of elements (the refusal to grant B. rectification of her civil status document, to allow her to change her forename, to have the statement or indication of sex deleted from the documents and identity papers for use in daily life), all these elements being relevant or \"to be taken into account\", and which, taken as a whole, led to the finding that there had been a violation.\n\nI entirely agree with the considerations on which were based the findings that there had not been violations of Article 8 (art. 8) in the Rees and Cossey judgments, namely that English law provided for the possibility of changing forenames and of deleting indications of sex from documents and identity papers, in each case without great administrative difficulties. To the extent that this is not the case in French law, I too would vote in favour of a finding of a violation in the present case. But the judgment does not define the extent of the first element, that is to say, rectification of the birth certificate - whether a rectification of the original entry or merely a marginal note - and this could lead to consequences which I believe go far beyond the requirements of Article 8 (art. 8) on this point (in this respect my point of view is close to that expressed by Judge Walsh in his separate opinion).\n\nLet us not forget that the aim of the original application to the French courts by B., \"wishing to marry her friend\", was to have her right to rectification of her birth certificate recognised in order to allow her to marry, and that it was the refusal to grant her such rectification which was the original reason for her application to the Convention institutions.\n\nAlthough the Commission did not declare the complaint based on Article 12 (art. 12) admissible, the extent of the element of \"rectification of civil status documents\", stated to be relevant in the reasoning of the present judgment, remains excessively vague and does not rule out consequences which I would not be able to subscribe to.\n\nWhile sensitive to the problems of transsexuals, I also attach importance to the factors mentioned in the dissenting opinions of Judges Pinheiro Farinha, Pettiti, Valticos and Morenilla with respect to the initiative taken by B. - lightly, as it seems - of having an operation without the medical guarantees which such surgery ought to be subject to.\n\nIn short, I do not feel able to subscribe to a judgment which does not state with sufficient clarity that it is not departing from the conclusions in the Rees and Cossey judgments, and which leaves open the possibility of interpreting it as an overruling of those judgments.\n\n1. I am unable to agree with the judgment and I do not understand why the Court’s case-law has been overruled, when that case-law was confirmed scarcely one year ago.\n\nI fear that there will be serious consequences, in particular the trivialisation of irreversible surgical operations instead of suitable psychiatric treatment.\n\n2. The Court’s function is to interpret the Convention - to give it a dynamic and up-to-date interpretation, but nevertheless an interpretation. The case-law of the Court cannot go further than the Convention and does not have the right to grant new rights to individuals and impose new obligations on States.\n\n3. The Convention does not guarantee the right to change sex, nor the right to amendment of civil status documents, nor, unlike the International Covenant on Civil and Political Rights (Article 24), that of a public civil status register. How can a specific course of action in this matter be imposed on States in the name of the Convention?\n\n4. Surgical operations do not change the individual’s real sex, but only the outward signs and morphology of sex.\n\n5. As for the applicant (whom I will not refer to in the feminine, as I do not know the concept of social sex and I do not recognise the right of a person to change sex at will), he is not a true transsexual: \"... the court of second instance found that even after the hormone treatment and surgical operation which he underwent, Norbert [B.] continued to show the characteristics of a person of male sex; ... it considered that, contrary to the contentions of the person in question, his present state is not the result of elements which existed before the operation and of surgical intervention required by therapeutic necessities but indicates a deliberate intention on the part of the person concerned ...\" (finding of the Court of Cassation, see paragraph 17 of the judgment).\n\n6. Why impose on the  the consequences of a surgical operation performed in another State, voluntarily and intentionally and without prior checks (see paragraph 11 of the judgment)?\n\n7. The International Commission on Civil Status \"essentially has as its object ... the drawing up of recommendations or draft conventions with a view to harmonising the provisions in force in the member States on these matters ...\".\n\nThe matters in question are those which relate to the status of the individual, the family and nationality. The International Commission has concerned itself for some time with the position of transsexuals, and has not yet reached the stage of drawing up a recommendation or draft convention.\n\n8. There is no common denominator in the legislation of the States Parties to the Convention to justify such a radical decision.\n\n9. Among the situations which could arise from the application of the present judgment (see paragraphs 52-55), I shall mention two:\n\n- An illegitimate child wishes to start proceedings in respect of paternity, but after his birth the man who begot him has had a sex change operation and his civil status has been rectified; he is asking for a woman to be acknowledged as his father!\n\n- After rectification of civil status, a transsexual will be able to marry a person of his true sex (original sex); but the Court \"finds ... that attachment to the traditional concept of marriage provides sufficient reason for the continued adoption of biological criteria for determining a person’s sex for the purposes of marriage\" (above-mentioned Cossey judgment, p. 18, para. 46), and \"in the Court’s opinion, the right to marry guaranteed by Article 12 (art. 12) refers to the traditional marriage between persons of opposite biological sex. This appears also from the wording of the Article which makes it clear that Article 12 (art. 12) is mainly concerned to protect marriage as the basis of the family\" (Rees judgment, p. 19, para. 49).\n\nIn my opinion the Court should state in the present judgment that its decision has no effect on the right to marry; this right was, however, the reason behind B.’s application to the Commission.\n\n10. I therefore conclude that there has not been a violation of Article 8 (art. 8) of the Convention, and I consider that the legal regulation of transsexualism remains within the competence of each State, taking account of moral attitudes and traditions, although the opinions of medical and scientific experts differ.\n\n11. Since in my opinion there has been no violation of the Convention, I do not regard it as possible to vote, in the same judgment, in favour of the award of a sum of money under Article 50 (art. 50) of the Convention.\n\nI did not vote with the majority who held that there had been a violation of Article 8 (art. 8).\n\nThe judgment no doubt relates only to the particular case, but this was one of the least significant ones, compared with other cases considered by the French courts, notably in 1990 and 1991.\n\nTo begin with, I note certain contradictions. The majority of the Court did not state that they were overruling the Rees and Cossey judgments. They noted in paragraph 55 that \"nothing would have prevented the insertion, once judgment had been given, in Miss B.’s birth certificate, in some form or other, of an annotation whose purpose was not, strictly speaking, to correct an actual initial error but to bring the document up to date so as to reflect the applicant’s present position\". In the French civil status system this can only be done by a judgment, and there have been numerous judgments by which it has been ordered, but this on the basis of rigorous criteria which make it possible to exclude certain categories in respect of which the scientific data and the lack of properly documented medical supervision provide grounds for refusals by the courts.\n\nThe Court held in paragraph 63 that:\n\nDid the majority take into account the operations performed in public hospitals in  after 1973, even though Miss B. was operated on in ?\n\nCan one deduce from paragraph 66 that the majority had in mind primarily the granting of rights relating to identity documents and passports, without there being any obligation of rectification of civil status, in line with the Rees and Cossey judgments and the special system in Britain relating to administrative requirements as to personal identity, still less what was originally claimed by B., namely the possibility of marrying her friend?\n\nFrom the point of view of jurists who favour a broad interpretation of the status of transsexuals, the B. judgment would be easier to appreciate if cases of true transsexuals (operated on in public hospitals with medical supervision and documentation) had been systematically refused by the French courts. This is not the case.\n\nThe European Convention on Human Rights does not impose any obligation on the High Contracting Parties to legislate on the question of rectification of civil status in connection with transsexualism, even in application of the theory of positive obligations for States (case of X v. the ). Thus several member States have not enacted any legislation relating to transsexualism. The various national laws on the point show a great variety of criteria and mechanisms.\n\nIn any event, member States who wish to confront these problems have a choice between the legislative path and the case-law path, and in this sensitive area, dependent on very diverse social and moral situations, the margin of appreciation allowed to the State is a wide one.\n\nWhichever path is chosen, legislative or by means of case-law, the State remains free to define the criteria for recognition of cases of intersexualism or true transsexualism, dependent upon undisputed scientific knowledge. A national court can take a decision on the basis of such criteria without violating the Convention.\n\nThese principles being taken as read, what consequences can be drawn from them in the case of B. v.  with respect to Article 8 (art. 8)?\n\nTo compare the position in  with the position in , as evaluated by the Court in the Rees and Cossey cases, was not enough; it should have been compared with the legislative void or absence of case-law in other member States. British law is less open than French law as regards change of status and sex in civil status registers; it offers more scope for administrative measures, such as passports and formalities, but that is the result of the peculiar system of civil status registration in , rather than specific provisions introduced for the benefit of transsexuals.\n\nIf Article 8 (art. 8) is to be applied to intersexuals and true transsexuals, the question should be asked, with reference to , whether the right to rectification of civil status is being correctly granted by the courts. The list of decisions shows that there are as many decisions in favour of applicants as there are decisions against them. A number of them even allow complete retrospective effect. The Court of Cassation admittedly gave four decisions against applicants in 1990, but the particular cases were debatable ones. There has not been a decision taken by a plenary court, even in the most or least disputed cases of transsexualism.\n\nSubsequent to these decisions by the Court of Cassation, the Colmar Court of Appeal granted rectification of civil status to a person who had in addition after the operation obtained an amended passport showing her new sex. No appeal having been brought by the procureur général, the decision is final and binding and rectification of civil status has taken place.\n\nBy taking a generous and wide interpretation of Article 8 (art. 8), it might be considered that a true transsexual who has been operated in France, after going through the entire period of tests according to the document issued by the National Medical Council, should be allowed rectification of civil status. The reason for this could be that the State, having agreed to the operation and accepted that it should be paid for by the social security service on condition that the surgery is performed in a public hospital, must, as a positive obligation from the point of view of the European Convention on Human Rights, allow facilities for administrative documents and even go as far as rectification of civil status.\n\nThis is not so in the B. case. The existence of transsexualism was not verified in accordance with the medical practice statement and the operation took place abroad under unknown conditions. The , ruling on the present case, possibly had doubts as to the social and professional reality. It is not for the  to overrule this decision, which was taken in a non-typical case and was a judgment on the particular facts, not a judgment of principle, and is compatible with the European Convention on Human Rights, even from the point of view of Article 8 (art. 8).\n\nThe theory that any person who has the irrepressible will to live under a sex other than that of origin, and is convinced that this is his true destiny, must be able to obtain rectification of his civil status, is a highly debatable one, even if it is motivated by legitimate concern for social integration and private life. For where hormone treatment alone has taken place, that may be reversible. Many cases of true or false transsexual applicants correspond to psychiatric states which should be treated by psychiatry only, so as not to risk disaster, and for this reason a medical report is essential. Furthermore, cases of double personality and schizophrenia are known to medicine. If one were to be guided solely by the wish to make the individual will of the patient coincide with his social life, one would then have to accept change of civil status even in such deviant cases.\n\nThe position of genuine transsexuals no doubt deserves understanding and attention from the point of view of Article 8 (art. 8). But it is still clear that even the most advanced legislation cannot provide a remedy for the social obstacles. Even after rectification of civil status, a person who has been reintegrated into society has to reveal his past in connection with employment, careers and retirement, so that the various periods can be accounted for. Amending INSEE type statistical forms would not solve this problem.\n\nFor this reason one should abide by highly flexible formulas which take account as far as possible of medical supervision procedures, which alone are capable of avoiding operations and treatment harmful for a person’s mental balance.\n\nAccount should also be taken of the social aspects which are peculiar to each State. Certain countries unfortunately have places where false transsexuals are exploited, opening the way to procuring and transvestite prostitution. Among those asking for treatment there is a considerable number of persons in this category. Other countries do not have any such problem, so that their legal position is of no significance.\n\nThere is another aspect of considerable importance. For States like  whose civil status law is highly precise and compulsory, a consequence of rectification is that there is no obstacle to the marriage of a transsexual with a person of the same sex as his original sex. There is also the problem of adoption being available to the new couple. Let us also bear in mind the legal confusion which results from certain rectifications where the person obtaining rectification was previously married, with or without children. Let us not ignore the possibility of artificial insemination after rectification or after an operation. The whole of civil law and inheritance law could be thrown into confusion.\n\nIf there is a field where States should be allowed the maximum margin of appreciation, having regard to moral attitudes and traditions, it is certainly that of transsexualism, having regard also to developments in the opinions of the medical and scientific experts.\n\nA solution by means of case-law may be a legitimate choice for the State to make. If the development of case-law makes it possible for domestic law to respond to undeniable cases, making it possible for rectification of civil status to take place, as the Colmar judgment did, it appears to be consistent with Article 8 (art. 8) to regard this case-law method as in accordance with the requirements of that Article (art. 8).\n\nUnlike in the Huvig and Kruslin v.  judgments (judgments of 24 April 1990, Series A no. 176-A and B), the Court has given no indication as to what means are appropriate. Its phrase about \"means for remedying this state of affairs\" remains vague and uncertain; for it is clear that the individual’s socio- psychological determination cannot on its own be sufficient justification for a request for rectification. Even if the  agrees to rectification, it remains free to restrict the conditions for it and its consequences in civil law, if it does not systematically refuse applications in all such cases.\n\nIn addition, the Court’s judgment did not expressly state that there had been a violation with respect to B.’s actual request to the French court, which read as follows:\n\nConclusion: in the present state of French law and the status of the family, and taking into account the rights of others, it is apparent that the case-law path is the one which best respects Article 8 (art. 8) of the Convention, subject to the margin of appreciation allowed to the State.\n\nIt is naturally with great regret that I have to differ from the above judgment, which in other circumstances might no doubt have been justified or even inevitable, and some of whose consequences are certainly reasonable (as will be stated below), but which does not seem to me to be acceptable on the facts of the case.\n\nBy overturning a line of case-law whose most recent decision was scarcely a year old - even though the facts, albeit different to a certain extent, were not in my opinion different enough to justify this change of direction - I fear that the majority of the Court could be opening the way to serious and as yet unforeseeable consequences.\n\nThis does not mean that in suitable circumstances the situation of a transsexual should not be dealt with by a change of civil status, or at least by measures intended to make his or her social situation less difficult.\n\nHowever, there are, as we know, numerous types of transsexual. Thus there is considerable variation from one case to another in the psychological or physiological factor and the natural or acquired character (acquired to a greater or lesser extent as a result of surgical operations, themselves very diverse as to motivation and scope). The problem is moreover currently the subject of thorough scientific research, and any decision will depend to a large degree on the circumstances of the case.\n\nWhy does it seem to me that in this case the facts of the case do not justify the decision which has been taken?\n\nBecause in reality, while the applicant, who professes to be a woman, asks for the alleged change of sex to be legally recognised, the situation here is one where the change in question is in reality incomplete, artificial and voluntary.\n\nTo begin with, what does the term \"change of sex\" mean in this type of case? In the first place, one cannot restrict oneself to psychological factors alone, nor social ones alone, as is apparently sometimes thought. If that were so, there would be no real criteria or boundaries and there would be a risk of arbitrariness. Stability of social life would certainly be compromised thereby.\n\nIt is therefore also necessary, as an essential condition, for the original real state or the change of state which has occurred, to be sufficiently marked and not in doubt from the physiological point of view. One cannot accept dubious hermaphrodites and ambiguous situations.\n\nIn the present case we are faced with a voluntary action by the applicant, who, wishing to change sex (for he was originally of male sex, at least in essence, and had performed his military service), underwent an operation in conditions which appear dubious and afforded no guarantee, following which he found himself in a position where he was no longer completely a man, nor indeed truly a woman, but to a certain extent had some of the characteristics of both sexes.\n\nWe thus encounter two additional difficulties in this case: firstly the voluntary character and secondly the incompleteness of the change. And is there not thus a risk of encouraging such acts (and here it was even an operation performed without any supervision), and what is more, of seeing as a consequence half- feminised men claiming the right to marry normally constituted men, and then where would the line have to be drawn?\n\nNo doubt there is an evolution taking place in people’s minds and in science; no doubt several European countries do allow applications of this type; but it seems to me that as matters stand it is clearly inappropriate to consider that there has been a violation of the Convention where for legal, moral and scientific reasons, reasons which all deserve respect, a State does not follow, or at least is not yet ready to follow such an evolution. The countries of Europe as a whole do not appear to be ready to have such case-law imposed on them.\n\nHaving said this, it none the less remains the case that the social situation of these persons whose sex has become indeterminate presents them with problems of various types and causes them serious embarrassment in daily life. Efforts should be made to remedy this. Independently therefore of any formal legal measure aimed at amending their civil status, it would be desirable for the States concerned to endeavour to reduce such inconveniences; there come to mind inter alia measures aimed at authorising changes of forename (going beyond the adoption of so- called neutral forenames only, a practice which would also have the disadvantage of more generally making such names \"suspicious\") and amending the information on identity documents, which by their detail or the code used reveal the sex of the person concerned. Without ignoring the practical difficulties which such a change might cause, it would deserve serious consideration.\n\nI regret that I am unable to agree with the conclusion of the majority, who found there had in the present case been a violation by  of the applicant’s right to respect for her private life, by reason of the dismissal by the French courts of the proceedings brought before them by Miss B. As I will show below, my reasons are primarily of a legal nature, as they are based on the subsidiary character of the protection of the rights of the individual in the system established by the Convention - this being required by the analysis before our Court of the disputed \"act or omission\" of the national authorities constituting the infringements which the applicant considers herself to be the victim of - and the margin of appreciation of the Contracting State in this area, bearing in mind that this right is set out in Article 8 (art. 8) of the Convention. These reasons of international law must not, however, neglect an assessment of the social and legal situation of transsexuals in , as the context within which the applicant’s complaint must be seen.\n\n1.1. Miss B., wishing to marry her friend, asked the tribunal de grande instance at Libourne (see paragraph 13 of the judgment) \"to hold that, registered in the civil status register of [her] place of birth as of male sex, [she was] in reality of feminine constitution; to declare that [she was] of female sex; to order rectification of [her] birth certificate; to declare that [she should] henceforth bear the forenames Lyne Antoinette\". These heads of claim delimited the proceedings brought by the applicant before the domestic civil courts and, in accordance with the dispositive principle, formed the subject matter of the judgments given by the Libourne tribunal de grande instance, the Bordeaux Court of Appeal and finally the Court of Cassation, whose decision was the \"final decision\" under Article 26 (art. 26) of the Convention which could be \"completely or partially in conflict with the obligations arising from the present Convention\", as stated in Article 50 (art. 50).\n\n1.2. However, the applicant interpreted the dismissal of this request as a refusal of the French authorities to acknowledge her \"true sexual identity\" and to \"allow the indication of her sex to be corrected in the civil status register and on her official identity documents\" (see paragraph 43 of the judgment), and she considered herself to be a victim within the meaning of Article 8 (art. 8) of the Convention.\n\nBut as a reading of her application shows, these complaints constitute a mutatio libelli before the Convention institutions, since no claim was put forward by the applicant before the domestic courts regarding the noting in the civil status register of the alleged change to her original sex as stated on her birth certificate or concerning her social situation after the morphological change of sex, these being precisely the factors which the majority took into consideration in arriving at their finding that there had been a violation of the said Article 8 (art. 8) (see paragraphs 59-63 of the judgment).\n\n1.3. In my opinion, what Miss B. requested from the French courts was a \"correction\" of the alleged error as to sex and consequently the rectification of the civil status register and the replacement of her male forename by a female forename, following a priordeclaration by the court that she was of female sex. Miss B., intending to marry a man, did not ask the Court to hold that there was a case of transsexualism, but that there had been a mistake in registering her sex, since, although a woman, she had been registered as a man. She did not submit any requests relating to possible rectification of the indication of her sex in her official identity documents consequent on rectification granted in accordance with the relevant legislation (see paragraph 22 of the judgment).\n\n1.4. It seems necessary to point out that in systems with a civil status register, a person’s civil status constitutes the expression of his legal personality and his position in society, and all the statements on his birth certificate, including that of sex, have an effect which goes beyond the individual interest, as they may affect the rights of others. In these systems civil status is a concept of public order and documents relating to such status are presumed to be correct. It follows that a change to a birth certificate can take place only in cases and according to procedures defined by law. Legal certainty thus requires that rectifications of civil status documents be regulated by law and controlled by the courts.\n\nIn French law, as the judgments given in the present case point out (see paragraphs 13-15 and 17 of the judgment), persons cannot dispose of their civil status at will. Articles 57 and 99 of the Civil Code (see paragraph 22 of the judgment) define the contents of birth certificates and the conditions for their rectification in the event of \"error or omission\", and it is for the courts to rule on a case by case basis on applications for rectification. The long list of decisions given by the French courts (see paragraph 23 of the judgment) and accepted by the public authorities in fact shows that it is possible in French law for statements relating to sex in civil status registers to be amended.\n\n1.5. In the present case the Libourne tribunal de grande instance dismissed Miss B.’s application since, according to the experts’ report, \"it [was] thus apparent that the change of sex was intentionally brought about by artificial processes\" and [B.’s] application \"[could not] be granted without attacking the principle of the inalienability of the status of individuals\" (see paragraph 14 of the judgment). The Bordeaux Court of Appeal, upholding that judgment, gave as reasons for its decision (see paragraph 15 of the judgment) that \"his present state [was] not ‘the result of irreversible innate factors existing before the operation and of surgical intervention required by therapeutic necessities’\".\n\nAlso in that judgment, the Court of Appeal (see paragraph 17 of the Commission’s report) said on this point: \"No form of psychological or psychiatric treatment has been attempted; the first doctor who prescribed hormone treatment did not conduct any protected observation and no guarantee of such observation was given before the surgical operation carried out abroad\". It added that the medical treatment \"voluntarily undergone by Mr [B.] ... on the contrary ... indicate[d] a deliberate intention on his part without any other treatment having been tried and without the operations having been necessitated by Mr [B.’s] biological development\" (see paragraph 15 of the European Court’s judgment). In view of this finding by the court of second instance, the Court of Cassation considered that the decision had been justified in law and dismissed the applicant’s appeal.\n\n1.6. Consequently, it follows from these judgments that the courts did not consider the applicant to be a \"genuine transsexual\", since the medical treatment had not been shown to be necessary and even after the surgical operation she had undergone in Morocco \"Norbert [B.] continued to show the characteristics of a person of male sex\" (see paragraph 17 of the judgment).\n\nThis conclusion, however, fell within the power to assess the evidence which belongs in principle to the national courts, according to the Court’s constant case-law (see inter alia the Unterpertinger v. Austria judgment of 24 November 1986, Series A no. 110, p. 15, para. 33, and the Barberà, Messegué and Jabardo v. Spain judgment of 6 December 1988, Series A no. 146, p. 31, para. 68). It should be noted in this connection that the applicant did not challenge the medical report submitted to the courts which decided on her application.\n\n1.7. I am consequently unable to follow the conclusions of the majority in paragraph 55 of the judgment. Rectification of the indication of sex, like any rectification of a civil status document, under the aforementioned Article 99 of the French Civil Code, is a decision by a court which finds that there has been an error or an omission in the indication of sex as alleged by the applicant, with all the legal consequences - notably in civil law - of such a declaration both for the applicant and for third parties and society in general.\n\nUnder the principles which govern civil proceedings, it is not possible, as the majority appear to suggest, to effect \"the insertion, once judgment had been given, in Miss B.’s birth certificate, in some form or other, of an annotation whose purpose [is] not, strictly speaking, to correct an actual initial error but to bring the document up to date so as to reflect the applicant’s present position\", where such an error has not been proved in the proceedings or where such an \"omission\" - the finding of the \"new sexual identity\" - has not been requested by the applicant, in taking into account ex officio \"the irreversible abandonment of the external marks of Miss B.’s original sex\" or again \"the applicant’s manifest determination\" to have an operation without the guarantees of success required by the best medical practice.\n\n1.8. In my opinion the majority, instead of keeping strictly to the specific terms of the applicant’s request to the French trial courts and the legal grounds for refusal set out in the judgments, based on the legal impossibility of allowing rectification of the statement of sex without proof of the existence of an error and of the fact that the change was not solely the result of the deliberate intention of the applicant but of an irreversible necessity according to the medical report, applied themselves rather to the abstract question of the position of transsexuals in France, thus departing from the Court’s traditional method.\n\n2.1. Further, according to the Court’s case-law as stated in the two previous judgments relating to transsexuals in the United Kingdom, the Rees v. the United Kingdom judgment of 17 October 1986 (Series A no. 106) and the Cossey v. the United Kingdom judgment of 27 September 1990 (Series A no. 184) - the latter given in a case which was virtually identical to the present one -, the question of the amendment of the birth certificates of transsexuals who wish to have an indication of sex noted in the civil status register is a question for the national authorities and their legislative or judicial powers, who are best in a position to respond to the needs or hopes of each society and \"the requirements of the situation pertaining there in determining what measures to adopt\" (see the above-mentioned Rees judgment, p. 17, para. 42 (a)). It is for them to regulate the conditions, extent and consequences of rectification of civil status documents in order to achieve a fair balance between the interests of transsexuals in having their membership of the other sex which they feel they belong to recognised by society, and the general interest in preserving the inalienability of that statement of fact on the birth certificate - morphological or biological sex - in order to preserve the rights of others, in particular if the transsexual is married or wishes to marry or if he has children or may have children or wishes to adopt some.\n\n2.2. Indeed, the Court has already said (see the Abdulaziz, Cabales and Balkandali v. the United Kingdom judgment of 28 May 1985, Series A no. 94, pp. 33-34, para. 67) that \"although the essential object of Article 8 (art. 8) is to protect the individual against arbitrary interference by the public authorities, there may in addition be positive obligations\". However, given that \"the notion of ‘respect’\" for private life \"is not clear-cut\", especially as far as such positive obligations are concerned (ibid., pp. 33-34, para. 67), these obligations are subject to the State’s margin of appreciation and \"having regard to the diversity of the practices followed and the situations obtaining in the Contracting States, the notion’s requirements will vary considerably from case to case\" (see the above-mentioned Rees judgment, p. 15, para. 37).\n\nThe Court also stated in the Rees judgment (ibid., p. 14, para. 35) and the Cossey judgment (ibid., p. 15, para. 36) that the refusal to amend the register of births could not be regarded as an interference with a person’s private life within the meaning of Article 8 (art. 8) of the Convention. What the applicant was arguing was not that the State should abstain from acting but rather that it should take steps to modify its existing system, and the question whether an effective respect for the transsexual’s private life imposed a positive obligation on the State in this regard was to be answered by considering the \"fair balance that has to be struck between the general interest of the community and the interests of the individual\". In reaching its conclusion that no such obligation was incumbent on the respondent State, the Court took account inter alia of the fact that \"the requirement of striking a fair balance could not give rise to any direct obligation on the respondent State to alter the very basis of its system for the registration of births\".\n\n2.3. When giving these decisions the Court noted (see the Cossey judgment, ibid., p. 17, para. 42, and the Rees judgment, ibid., p. 19, para. 47) \"the seriousness of the problems facing transsexuals and the distress they suffer\" and took note of the resolution adopted by the European Parliament on 12 September 1989 and of Recommendation 1117 (1989) of the Parliamentary Assembly of the Council of Europe of 29 September 1989, both of which sought to encourage the harmonisation of laws and practices in this field, and pointed out that \"the need for appropriate legal measures concerning transsexuals should be kept under review having regard particularly to scientific and societal developments\" (see the Rees judgment, ibid., pp. 17 and 18, paras. 42 and 43, and the Cossey judgment, ibid., p. 16, para. 40).\n\n2.4. But as the majority point out (see paragraphs 47 and 48 of the judgment), no scientific or societal development has taken place within the last sixteen months which would justify changing this case-law. Despite the efforts of the majority to distinguish the cases so as to maintain the Court’s case-law, the circumstances of the present case are not so different from those of the Rees and Cossey cases as to explain a finding of a violation here.\n\n2.5. Nor can the question be resolved by \"incidental adjustments to the existing system\" (see the Rees judgment, ibid., pp. 17-18, para. 42) such as a rectification of the birth certificate in order to acknowledge the \"new sexual identity\" of post-operative transsexuals or their \"social sex\", since the French legal system does not permit this. The courts acting in the exercise of their judicial power cannot go beyond an interpretation of the law applicable to the facts of the case as proved by their assessment of the evidence submitted to them. They cannot order forms of rectification other than those provided for by law since doing otherwise would require \"the very basis\" of the civil status system to be altered, in much the same way that the United Kingdom would have been required to change its system of registration of births (see the above-mentioned Rees judgment, pp. 16-18, paras. 39, 40 and 42 (a), and the above-mentioned Cossey judgment, p. 15, para. 38 (a)), which justified the findings in those two cases that Article 8 (art. 8) had not been violated by the United Kingdom.\n\n3.1. Finally, the facts of the present case, as regards the position of transsexuals in , lead us to the same conclusion, namely that there has not been a violation by  of the right to respect for the private life of true transsexuals. They demonstrate that in France: (1) \"no legal formality or authorisation is required for hormone treatment or surgery intended to give transsexuals the external features of the sex they wish to have recognised\" (see paragraph 18 of the judgment); (2) \"it has been possible for surgical operations to take place in France since 1979 subject to medical control\" (ibid.); (3) \"the costs of some of these operations are borne by the social security service\" (ibid.), according to the Government, where a medical commission has studied the person in question for at least two years and the operation takes place in a public hospital; (4) \"as a general rule, sex is not indicated on administrative documents issued to natural persons, such as traditional national identity cards, classic style passports, driving licences, voting cards, certificates of nationality, etc.\" (see paragraph 25 of the judgment); and (5), as I have pointed out above, \"a large number of French tribunaux de grande instance and courts of appeal have granted applications for amendment of entries in civil status registers relating to sex and forenames\" (see paragraph 23 of the judgment).\n\n3.2. Thus there are medical and legal controls over changes of sex in France, but such precautions cannot, however, be criticised either from a legal point of view - having regard to the present civil status system in France - or from a medical point of view - bearing in mind the very serious risks involved in lifelong hormonal medical treatment and implantations and the irreversibility of removal of the sexual organs. On the contrary, in my opinion, they deserve praise for avoiding mistakes with irreversible consequences, hasty decisions or surgical operations which are of doubtful necessity or even inadvisable, even for those who genuinely believe themselves to be transsexuals.\n\nThis attitude also serves to discourage legal claims for rectification of civil status based on the fait accompli of an operation which has been performed without verifying its irreversible necessity or without medical guarantees of success, since the medical expert report must give an opinion on its therapeutic necessity.\n\n4. As I have concluded that there was no violation of the Convention in the present case, I do not consider it logical to join in the conclusion of the majority that the respondent State is to pay the applicant just satisfaction.\n\n1. I agree that there has been a breach of Article 8 (art. 8) of the Convention in the present case. My opinion is founded only upon the reasons set out hereinafter.\n\n2. I am satisfied that the judgments of the Court in the case of Rees (Series A no. 106) and in the case of Cossey (Series A no. 184) respectively were correct in principle and that there is nothing in the present case to warrant a departure from them.\n\n3. The evidence establishes that the applicant’s birth certificate correctly described the applicant as being of the male sex and the fact that the applicant was and is biologically of the male sex is established. There is no suggestion of any error having been made as to that fact. Therefore to require that entry to be altered to record that the applicant was born a member of the biological female sex would be to falsify a correct historical record and to substitute it with an untruth.\n\n4. An area of life in which the biological sex of a person is of supreme vital importance is that of marriage. The Court has already decided in the Cossey case that the marriage referred to in Article 12 (art. 12) of the Convention is confined to the intermarriage of two persons one of whom is biologically of the female sex, thus reflecting what has been universally accepted throughout human history.\n\nThe fact that some States may now in their national laws permit and recognise a legal relationship or partnership between persons of the same biological sex as having the same legal incidents as a marriage and even using the word \"marriage\" to describe such arrangement cannot by so doing make it the same as a marriage between persons of opposing biological sexes as envisaged by Article 12 (art. 12) of the Convention. If a parent of either sex undergoes a so-called \"sex change\" operation to acquire the appearance, anatomical or otherwise, of a person of the other biological sex it would be the height of absurdity to describe a father as having become his own child’s mother or aunt as it would be to describe a mother as having become her own child’s father or uncle.\n\n5. I am of the opinion that the respondent State could not reasonably be expected to alter its law in such a way as to obliterate the truth of a national record or to keep forever concealed for all purposes and from all persons and bodies without qualification the true biological sex of a person. In my opinion to do so could well lead to a breach of Articles 8 and 12 (art. 8, art. 12) of the Convention. It could be very unfortunate if the law permitted a situation in which a person wishing to marry a person of the other biological sex could not, when a doubt arises, be satisfied as to the true biological sex of the other party save by the admission of that other party. Therefore any alleged violation of Article 8 (art. 8) in this sphere must be examined in the context of not totally concealing or falsifying a record of historical fact.\n\n6. Subject to the above-mentioned qualification it now falls to consider in what respect the respondent State can be thought to have been in violation of Article 8 (art. 8) of the Convention.\n\nThe applicant is psychologically self-identified with the female sex and apparently that condition has existed since childhood and has grown more pronounced with age. It ultimately led the applicant to undergo \"sex-change\" surgery necessitated by psychological imperatives rather than medical ones. In the result the applicant adopted a new \"gender identity\" in that the new identity is to all outward appearances a female identity. The applicant has sought to have this new identity respected in French law as an essential element of the privacy of her new life style free from interference by the respondent State and its agencies and public authorities. I do not consider that the adoption of a female first name from within the range of first names permitted by French law with a view to establishing the adopted identity is an unreasonable request. It is clear that the withholding of permission for this change has proved to be an interference with the privacy of the adopted life style. Similarly, obligatory identification documents which contradict the adopted identity also constitute an interference.\n\nThe respondent State has not shown any valid justification within the terms of Article 8 para. 2 (art. 8-2) of the Convention. Admittedly complying with the applicant’s requests could cause considerable administrative inconvenience but that could not be a justification for the respondent’s refusal. The civil status register is conclusive as to the fact that the information therein was furnished to the appropriate officer but is not conclusive as to the correctness or the truth of the information so supplied. Thus the civil status register cannot be taken as conclusive proof of the biological sex of the person so registered although it could be regarded as prima facie evidence to stand until displaced. It is for the national authorities to devise the legal measures necessary to achieve the objectives of providing identity documents consistent with the adopted identity without revealing the true biological sex of the person concerned if in fact it is not the same as that indicated in the documentation while at the same time without obliterating from the national records information which tends to establish the true biological sex of a person and that such information should not be revealed save where there is a real necessity to do so.\n\n1. Since I fully maintain the views expounded in my dissenting opinion in the Cossey case, I acclaim the Court’s decision, but cannot subscribe to all its arguments. I do not think it necessary to say more.\n\n2. I would have been even more content if the Court had accepted the Commission’s plea to abandon the De Wilde, Ooms and Versyp doctrine. On this issue I also maintain my former opinion (see my separate opinion in the Brozicek case). I am glad to note that several of my colleagues now share that opinion.","title":""}
{"_id":"passage_467","text":"PROCEDURE\n\n1.  The case originated in an application (no. 10226/03) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Turkish nationals, Mr Mehmet Yumak and Mr Resul Sadak (“the applicants”), on 1 March 2003.\n\n2.  The applicants were granted legal aid.\n\n3.  They alleged that the national electoral threshold of 10% for parliamentary elections interfered with the free expression of the opinion of the people in the choice of the legislature. They relied on Article 3 of Protocol No. 1.\n\n4.  By a decision of 9 May 2006 the Chamber declared the application partly admissible.\n\n5.  The applicants and the Government each filed further written observations (Rule 59 § 1).\n\n6.  A hearing took place in public in the Human Rights Building, , on 5 September 2006 (Rule 59 § 3).\n\nThere appeared before the Court:\n\nThe Court heard addresses by Mr Özmen and Mr Elçi.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n7.  The applicants were born in 1962 and 1959 respectively and live in Şırnak. They stood for election in the parliamentary elections of 3 November 2002 as candidates of the People’s Democratic Party (DEHAP) in the province of Şırnak, but neither of them was elected.\n\nA.  The parliamentary elections of 3 November 2002\n\n8.  Following the 1999 earthquakes  went through two serious economic crises in November 2000 and February 2001. There then followed a political crisis, due firstly to the state of health of the then Prime Minister and secondly to the numerous internal divisions within the governing coalition, a grouping of three political parties.\n\n9.  It was in that context that on 31 July 2002 the Grand National Assembly of  (“the National Assembly”) decided to bring forward the date of the next parliamentary elections to 3 November 2002.\n\n10.  In early September three left-wing political parties, HADEP, EMEP and SDP, decided to form a “Labour, Peace and Democracy Block” and to form a new political party, DEHAP. The applicants began their electoral campaign as the new party’s leading candidates in the province of Şırnak.\n\n11.  The results of the elections of 3 November 2002 in the province of Şırnak gave the DEHAP list 47,449 of the 103,111 votes cast, a score of about 45.95%. However, as the party had not succeeded in passing the national threshold of 10%, the applicants were not elected. The three seats allocated to Şırnak province were shared as follows: two seats for the AKP (Adalet ve Kalkınma – the Justice and Development Party, a party of the conservative right), which had polled 14.05% (14,460 votes), and one seat for Mr Tatar, an independent candidate who had polled 9.69% (9,914 votes).\n\n12.  Of the eighteen parties which had taken part in the elections only the AKP and the CHP (Cumhuriyet Halk Partisi – the People’s Republican Party, a left-wing party) succeeded in passing the 10% threshold. With 34.26% of the votes cast, the AKP won 363 seats, 66% of those in the National Assembly. The CHP, which polled 19.4%, obtained 178 seats, or 33% of the total. Nine independent candidates were also elected.\n\n13.  The results of these elections were generally interpreted as a huge political upheaval. Not only did the proportion of the electorate not represented in parliament reach a record level in  (approximately 45%) but in addition the abstention rate (22% of registered voters) exceeded 20% for the first time since 1980. As a result, the National Assembly which emerged from the elections was the least representative since 1946, the year in which a multi-party system was first introduced. Moreover, for the first time since 1954, only two parties were represented in parliament.\n\n14.  To explain the National Assembly’s unrepresentativity, some commentators have referred to the cumulative effect of a number of factors over and above the existence of a high national threshold. For example, because of the protest vote phenomenon linked to the economic and political crisis, the five parties which had obtained seats in the 1999 parliamentary elections were unable to reach the 10% threshold in 2002 and were accordingly deprived of representation in parliament. Similarly, electoral fragmentation had an effect on the results in that numerous attempts to form pre-electoral coalitions had come to nothing.\n\nB.  The general context and the electoral system\n\n15.  The electoral system is one of the subjects which have been the most debated in ; it still remains highly controversial.\n\n16.  The elections of 1950, 1954 and 1957 – in which the majority representation system was used – were unable to ensure an institutional balance between the majority in parliament and the opposition. This imbalance was one of the main reasons for the 1960 coup d’état. Following the intervention of the armed forces parliament adopted proportional representation, using the D’Hondt method, to strengthen pluralism and the political system. As a result, the elections in 1965 and 1969 produced stable majorities in the National Assembly while enabling small parties to be represented. However, in the elections of 1973 and 1977 the main political movements were unable to establish stable governments, although they had wide electoral support. That period of government instability was marked by the formation of one coalition after another, each made fragile by the disproportionate influence of the small parties on government policy.\n\n17.  Following the military regime of the years 1980 to 1983 Law no. 2839 on the election of members of the National Assembly, enacted on 13 June 1983, re-established proportional representation, with two electoral thresholds. To the 10% national threshold was added a provincial threshold (the number of electors divided by the number of seats to be filled in each constituency); in 1995 the Constitutional Court declared the provincial threshold null and void. In the 1983 parliamentary elections the Motherland Party (ANAP) obtained an absolute majority in parliament.\n\n18.  The parliamentary elections of 29 November 1987 likewise enabled the ANAP, with 36.31% of the vote, to form a stable parliamentary majority. Two other parties also won seats. About 19% of votes were cast in favour of parties which ultimately failed to reach the 10% threshold. In the elections of 20 October 1991 five parties gained seats in parliament. This result was due in particular to the fact that three small political parties (MÇP, IDP and HEP) had taken part in the elections under the banner of other political parties with the aim of circumventing section 16 of Law no. 2839, which makes it illegal to form joint lists before elections. The proportion of the votes cast in favour of parties not represented in the new parliament thus fell to 0.5%. The Government was based on a coalition of two parties. In those elections the eighteen candidates of the HEP (People’s Labour Party – pro-Kurdish) were elected to parliament on the list of the (social-democratic) SHP party; they later resigned from the SHP to join the ranks of their own party, the HEP.\n\n19.  In the general election of 24 December 1995 five parties gained seats in parliament. However, as none of them had a parliamentary majority, a coalition was formed. The proportion of the votes cast in favour of parties not represented in parliament came to 14%.\n\n20.  The 1999 parliamentary elections again resulted in no party having a parliamentary majority. Five political parties won seats in the National Assembly. A coalition of three parties formed a government. The proportion of the votes cast in favour of parties not represented in parliament came to 18%.\n\n21.  At present, numerous proposals to correct the effects of the 10% threshold have been put forward, both in parliament and by leading figures of civil society.\n\nII.  RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE\n\nA.  Relevant domestic texts\n\n1.  The Constitution\n\n22.  Article 67 § 6 of the Constitution, as amended on 23 July 1995, provides:\n\n“Electoral laws must strike a balance between fair representation and governmental stability.”\n\n23.  Article 80 of the Constitution provides:\n\n“Members of the Grand National Assembly of Turkey shall represent the whole nation and not the regions or persons which have elected them.”\n\n2.  The electoral system\n\n24.  Law no. 2839 on the election of members of the National Assembly, published in the Official Gazette on 13 June 1983, lays down the rules of the system for parliamentary elections.\n\n25.  The Turkish National Assembly has 550 members, elected in 85 constituencies in a single round of voting. They take place throughout the national territory, on the same day, under the proportional representation system. The suffrage is free, equal, universal and secret. Counting the votes and recording the results is done in public. Each province forms one electoral constituency.\n\n26.  Section 16 of Law no. 2839 provides:\n\n“... [P]olitical parties may not present joint lists...”\n\n27.  Section 33 of Law no. 2839 (as amended on 23 May 1987) provides:\n\n“In a general election parties may not win seats unless they obtain, nationally, more than 10% of the votes validly cast... An independent candidate standing for election on the list of a political party may be elected only if the list of the party concerned obtains sufficient votes to take it over the 10% national threshold...”\n\n28.  In allocating seats the D’Hondt system of proportional representation is used. That method – under which the votes cast for each list are first divided by a series of whole numbers (1, 2, 3, 4, 5 etc.) and seats then allocated to the lists which have the highest quotients – tends to favour the majority party.\n\n3.  Constitutional case-law\n\n29.  In a judgment of 18 November 1995 (E. 1995/54, K. 1995/59) the  had the opportunity to rule on the constitutionality of section 34/A of Law no. 2839. That section, which referred to section 33 of the same law, also imposed the electoral threshold of 10% for the allocation of the seats for Assembly members elected in the “national constituency”.\n\n30.  The  declared the provisions establishing the national constituency null and void, but held that the 10% national threshold could be regarded as compatible with Article 67 of the Constitution.\n\nThe relevant passages of the judgment read as follows:\n\n“... [T]he Constitution defines the  as a Republic... The constitutional structure of the State, which is based on national sovereignty, is a product of the nation’s will, mediated through free elections. That choice, emphasised in the various Articles of the Constitution, is set forth clearly and precisely in Article 67, entitled ‘The right to vote, to be elected and to engage in political activities’. Paragraph 6 of Article 67, as amended, provides that electoral laws must be framed in such a way as to strike a balance between the principles of ‘fair representation’ and ‘governmental stability’. The aim is to ensure that the electors’ will is reflected as far as possible [in] the legislature. ... [In order to] choose the system whose methods are most conducive to the expression of the collective will and the taking of collective decisions in the legislature, ... enacting the appropriate legislation in the light of the country’s specific circumstances and the requirements of the Constitution, it is necessary to opt for [the system] which is most compatible with the Constitution or to reject any system incompatible with it.\n\nThe impact of a representative democracy is visible in various fields. The effect of unfair systems adopted with the intention of ensuring stability is to hamper social developments. ... Where representation is concerned, the importance attached to fairness is the main condition for governmental stability. Fairness ensures stability. However, the idea of stability, in the absence of fairness, creates instability. The principle of ‘fair representation’ with which the Constitution requires [compliance] consists in free, equal, secret and universal [suffrage], with one round of voting and public access to the counting of votes and the recording of results, and produces a number of representatives proportional to the number of votes obtained. The principle of ‘governmental stability’ is perceived as a reference to methods designed to reflect votes [within] the legislature so as to guarantee the strength of the executive power. The ‘governmental stability’ which it is sought to ensure through the threshold (described as a ‘hurdle’), just like ‘fair representation’ ..., is protected by the Constitution. In elections ... importance must be attached to combining these two principles, which seem antinomic in certain situations, in such a way [as to ensure] that they counterbalance and complement each other...\n\nIn order to achieve the goal of ‘governmental stability’, set forth in the Constitution, a national [threshold] has been introduced...\n\nClearly, the [threshold] of 10% of the votes cast nationally laid down in section 33 of Law no. 2839 ... came into force with the approval of the legislature. Electoral systems must be compatible with constitutional principles ..., and it is inevitable that some of these systems should contain strict rules. Thresholds which result from the nature of the systems and [are expressed] in percentages, and [which] at national level restrict the right to vote and to be elected, are applicable [and] acceptable ... provided that they do not exceed normal limits... The [threshold] of 10% is compatible with the principles of governmental stability and fair representation...”\n\nThree judges of the  disagreed with the arguments of the majority, considering that the 10% national threshold was incompatible with Article 67 of the Constitution.\n\n31.  In the same judgment, however, the  declared null and void an electoral threshold of 25% for the allocation of seats within provinces (provincial threshold). Holding that such a threshold was inconsistent with the principle of fair representation, it observed:\n\n“Although a national threshold is imposed in parliamentary elections in accordance with the principle of ‘governmental stability’, imposing in addition a threshold for each electoral constituency is incompatible with the principle of ‘fair representation’.”\n\nB.  Relevant Council of Europe documents\n\n1.  Report of the ad hoc Committee of the Parliamentary Assembly of the Council of Europe\n\n32.  The Government referred to the report of the Ad hoc Committee for the Observation of Parliamentary Elections in  (3 November 2002), produced on 20 December 2002. The relevant parts of the report read as follows:\n\n“As widely reported by the media, two parties only out of 18 found their way into the new TBMM; the AKP (Justice and Development) and CHP (Republican People’s Party), leaving out all other parties, which had been represented so far in the parliament because they could not meet the 10% threshold. The party in government until the elections received only 1% of the votes. Economic and corruption problems were determining in the elections.\n\nA clear and absolute majority has emerged with 362 seats for the AKP, 179 seats for the opposition and 9 seats for independent members. (These independent members are elected in small towns where they have a good reputation.) It should be recalled that AKP had 59 seats in the previous parliament, and the CHP three (1999 elections).\n\nThis situation might create probably greater stability in the country by avoiding complicated and unstable coalitions. On Monday 4 November 2002 the Turkish stock exchange went up by 6.1%.\n\nHowever, it also means that approximately 44% of the voters have no representation in the Parliament.\n\nThe results must thus be considered as a clear protest vote against the establishment as a whole, since none of the three parties in the old governing coalition got enough votes for a single seat!”\n\n2.  The Code of good practice in electoral matters\n\n33.  The Council of Europe has not issued any binding standards for electoral thresholds. The question has not been raised in the organisation’s standard-setting texts. On the other hand, the Code of good practice in electoral matters, adopted by the Venice Commission, makes recommendations on the subject (see Venice Commission, “Code of good practice in electoral matters: Guidelines and explanatory report”, Opinion no. 190/2002). As a general principle, the Code requires suffrage to be direct, but in the case of a bicameral parliament it permits one of the Chambers to be elected by indirect suffrage. As for the electoral system to be used, the Code’s guidelines state that any system may be chosen.\n\n3.  The Parliamentary Assembly’s Resolution 1380 (2004)\n\n34.  Paragraphs 6 and 23 of Resolution 1380 (2004) on “Honouring of obligations and commitments by ”, adopted by the Parliamentary Assembly of the Council of Europe on 22 June 2004, are worded as follows:\n\n“6.  With regard to pluralist democracy, the Assembly recognises that  is a functioning democracy with a multiparty system, free elections and separation of powers. The frequency with which political parties are dissolved is nevertheless a real source of concern and the Assembly hopes that in future the constitutional changes of October 2001 and those introduced by the March 2002 legislation on political parties will limit the use of such an extreme measure as dissolution. The Assembly also considers that requiring parties to win at least 10% of the votes cast nationally before they can be represented in parliament is excessive and that the voting arrangements for Turkish citizens living abroad should be changed.\n\n...\n\n23.  The Assembly therefore invites , as part of its authorities’ current reform process, to:\n\n...\n\nii.  amend the electoral code to lower the 10% threshold and enable Turkish citizens living abroad to vote without having to present themselves at the frontier;\n\n...”\n\nC.  Comparative law\n\n35.  Although there is no uniform classification of types of ballot and electoral systems, it is usual to distinguish three main types: majority vote systems, proportional systems and mixed systems. In majority vote systems the winner is the candidate or list of candidates obtaining the majority of the votes in the decisive round of voting. This type of ballot makes it possible to vote in governments with clear parliamentary majorities, but at the same time it militates against the representation of minority political parties. Thus, for example, in the  the use over many decades of a single round of voting in a single-member majority-vote system (“first past the post”), combined with the existence of two dominant political parties, has had the effect of giving few seats to other parties in relation to the number of votes that they obtain. There are other similar cases, in  for instance, where there is a majority-vote system spread over two rounds of voting. At the opposite extreme, the aim of the proportional representation system is to ensure that the votes cast are reflected in a proportional number of seats. Proportional representation is generally considered to be the fairest system because it tends to reflect more closely the various political forces. However, the disadvantage of proportional representation is that it tends to lead to fragmentation among those seeking electoral support and thus makes it more difficult to establish stable parliamentary majorities.\n\n36.  Currently, proportional systems are the most widely used in Europe. By way of example, Denmark, Spain, Estonia, Ireland, Luxembourg, Malta, Moldova, Norway, Poland, Portugal, the Czech Republic, Romania, Sweden, Bulgaria and  have opted for one or other variant of proportional representation. There are also mixed systems containing various combinations of the two types of ballot (in Italy, Lithuania, Russia, Ukraine and , for example).\n\n37.  In order to ensure stable majorities in legislatures elected by proportional representation, statutory electoral thresholds are often used. Thresholds are “limits, fixed or variable, defined in terms of the electoral result, which determine the share of a list or candidate in the distribution of seats”. However, the role played by thresholds varies in accordance with the level at which they are set and the party system in each country. A low threshold excludes only very small groupings, which makes it more difficult to form stable majorities, whereas in cases where the party system is highly fragmented a high threshold deprives many voters of representation.\n\n38.  Among the member States of the Council of Europe which use one or other variant of proportional representation in the context of a mixed system, and which set an electoral threshold, the following examples may be found. In  a party must gain 4% of the votes cast nationally or 12% of the votes cast in the base constituency in which the seat is to be allocated. In  a national threshold of 4% is imposed. In  it is necessary to pick up 8% of the votes cast nationally. In  parties must either pick up 2% of the votes cast nationally or obtain a particular number of votes in two of the country’s three geographical zones. In the  there is a national threshold fixed at 0.67% of the votes cast.\n\n39.  As a general rule, the threshold fixed does not apply as such to coalitions, which must pass higher thresholds. In the , for example, the threshold for one party is 5%, whereas in the case of a coalition it is raised by 5% for each of the constituent parties. In  the base threshold of 5% is raised by 3%, and only a further 1% for coalitions with three or more members. In  the electoral threshold varies between 5% for local lists and 8% for national lists; for a coalition the threshold is set at 8% whatever the number of constituent parties. Following the same logic, the threshold for independent candidates is lower – 3% in , for example.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL No. 1\n\n40.  The applicants alleged that the imposition of an electoral threshold of 10% in parliamentary elections interfered with the free expression of the opinion of the people in the choice of the legislature. They relied on Article 3 of Protocol No. 1, which provides:\n\n“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”\n\nA.  Arguments of the parties\n\n1.  The applicants\n\n41.  The applicants submitted in the first place that the electoral threshold was based on the particular situation in  after the 1980 military regime and that its aim was to depoliticise society by installing an authoritarian government.\n\n42.  Secondly, they rejected the argument that the threshold served the legitimate aim of ensuring governmental stability. A study of the historical background in  showed that an electoral system without a threshold could also enable solid governments to be formed. Observing that a proportional system without a threshold had been used in the parliamentary elections of 1965, 1969, 1973 and 1977, they emphasised that after the first two of those elections it had proved possible to form single-party governments. Moreover, during the period 1983-2006 Turkey had had only three single-party governments, even though the threshold had then been in force. Imposing such a high threshold did not serve any legitimate aim.\n\n43.  The applicants contended that it was difficult to defend the view that the exceptional measure in question strengthened representative democracy. Such a high national threshold made representation very unfair and led to a crisis of legitimacy for the government, since parliament ought to be the free tribune of any democracy. Clearly, a parliament whose composition reflected only about 55% of the votes cast was not capable of supplying the representative legitimacy on which any democracy is based.\n\n44.  The national threshold of 10% was also disproportionate and arbitrary, and impaired the very essence of the right guaranteed by Article 3 of Protocol No. 1. It deprived a large proportion of the population of the possibility of being represented in parliament. In the parliamentary elections of 1987, 1991, 1995 and 1999 the proportion of the votes cast in favour of parties not represented in parliament had been, respectively, 19.4% (about 4.5 million votes), 0.5% (about 140,000 votes), 14% (about 4 million votes) and 18.3% (about 6 million votes). The results of the 2002 election had led to a “crisis of representation”, since 45.3% of the votes – that is, about 14.5 million votes – had not been taken into consideration and were not reflected in the composition of parliament.\n\n45.  The applicants also stressed the question of regional representation. They asserted that the parties from the south-eastern part of the country did not have a single member of parliament, although they could count on about two million votes. They submitted in that connection that the electoral threshold had been fixed in particular to block the representation of the Kurdish people of the region. In addition, whereas DEHAP was the leading party in thirteen provincial constituencies and the second strongest in two more, it had not obtained a single seat in parliament.\n\n46.  Lastly, the applicants submitted that the electoral threshold of 10% was very high in comparison with the thresholds which applied in other European systems. They argued that there was no good reason to impose a minimum of 10% nationally and that such an obstacle was fundamentally at variance with representative democracy.\n\n2.  The Government\n\n47.  Referring to the principles established in the Mathieu-Mohin and Clerfayt v. Belgium case (judgment of 2 March 1987, Series A no. 113), the Government submitted that Article 3 of Protocol No. 1 did not set forth an absolute right to vote and that the Contracting States should be left a wide margin of appreciation with regard to the fixing of electoral thresholds.\n\n48.  They observed that Article 3 of Protocol No. 1 did not include expressions such as “everyone” or “no one shall”, arguing that this seemed to indicate merely an undertaking on the part of the High Contracting Parties “to hold free elections at reasonable intervals by secret ballot”.\n\n49.  Article 3 of Protocol No. 1 guaranteed in principle the right to vote and the right to stand for election to the legislature. Consequently, it provided for the organisation of free elections without imposing any particular electoral system. In addition, these elections had to be held by secret ballot and at “reasonable” intervals. Admittedly, the elections had to be held under conditions calculated to ensure “the free expression of the opinion of the people”. That concept meant that no constraint or pressure was to be brought to bear on electors to influence their choice of candidate; it also implied, essentially, the principle of equal treatment for all citizens in the exercise of their right to vote and their right to stand for election.\n\n50.  As regards the Turkish electoral system, the Government explained that Law no. 2839 had introduced the proportional system with a national threshold of 10%. That system had made it possible to form majorities in the aftermath of the elections in 1983, 1987, 1991, 1995, 1999 and 2002. Thanks to the threshold, it had been possible after three of those elections to form a government from the representatives of a single majority party. That meant that the threshold served a legitimate aim, namely ensuring governmental stability, and that there was a consensus in favour of keeping it. Moreover, in its judgment of 18 November 1995 the  had held that the threshold was not an obstacle to “fair representation”, a principle enshrined in the Constitution since 1995.\n\n51.  The Government went on to say that the national threshold had been introduced with the aim of preventing political fragmentation among the representatives of the people. Furthermore, the intention was to give small groupings the opportunity of establishing themselves nationally and thus of securing representation in parliament. The threshold applied to all the parties which had taken part in the 2002 elections. For example, the DSP (Democratic Left Party), the ANAP and the MHP (Nationalist Movement Party), which had formed the coalition government after the 1999 elections, had obtained, respectively, 1.23%, 5.12% and 8.34% of the votes and had not been able – any more than DEHAP had, with 6.23% of the votes – to obtain a seat in parliament. The same was true of the GP (Youth Party), the SP (Socialist Party) and the YTP (New Turkey Party) which had polled 7.25%, 2.49% and 1.15% respectively.\n\n52.  The Government pointed out that if DEHAP had succeeded in crossing the 10% threshold it would have won seats in parliament, like the AKP and the CHP, which had obtained 34.26% and 19.4% of the votes respectively.\n\n53.  They further submitted that in domestic law there was nothing to prevent political parties from forming coalitions in order to get through the 10% barrier. DEHAP could have organised a coalition with the other political parties who had presented candidates in the elections on 3 November 2002 and thereby gained seats in the Grand National Assembly. In that connection they emphasised that independents, who had obtained 1% of the votes, had won nine seats.\n\n54.  The Government further observed that the CHP – the second strongest party in parliament after the 2002 elections – had been unable to cross the threshold in the 1999 parliamentary elections. That showed that a political party which did not get over the hurdle at any particular election could do so at a later one and thus obtain members’ seats.\n\n55.  Moreover, the Government emphasised that between 1961 and 1980, during which period proportional representation without any electoral threshold was the practice followed,  had had twenty different governments, whereas during the period 1983 to 2006, during which the 10% threshold had been in force, there had been six – three coalitions and three single-party governments. That clearly showed that the threshold ensured political stability, which had a crucial influence on the country’s economy.\n\n56.  In conclusion, the Government submitted that the 10% threshold was not an obstacle to the free expression of the opinion of the people in the choice of the legislature. Lastly, they drew the Court’s attention to the fact that the current parliament reflected the votes of more than 50% of the electors.\n\nB.  The Court’s assessment\n\n1.  General principles\n\n57.  Article 3 of Protocol No. 1 seems at first sight different from the other provisions of the Convention and its Protocols which guarantee rights, as it is phrased in terms of the obligation of the High Contracting Parties to hold elections which ensure the free expression of the opinion of the people rather than in terms of a particular right or freedom.\n\n58.  However, having regard to the travaux préparatoires of Article 3 of the Protocol and the way the provision has been interpreted in the context of the Convention as a whole, the Court has established that Article 3 of Protocol No. 1 guarantees individual rights, including the right to vote and the right to stand for election (see Mathieu-Mohin and Clerfayt, cited above, pp. 2223, §§ 4651). In fact, it has taken the view that this wording, of a type which does not have its like elsewhere, can be explained by the desire to give greater solemnity to the commitment undertaken by the Contracting States and emphasise that this is a sphere in which they are under an obligation to take positive measures and not just refrain from interference (ibid., § 50).\n\n59.  The Court, which has frequently pointed out the importance of the democratic principles underlying the interpretation and application of the Convention (see, among other authorities, United Communist Party of Turkey and Others v. Turkey, judgment of 30 January 1998, Reports of Judgments and Decisions 1998I, § 45), emphasises that the rights guaranteed by Article 3 of Protocol No. 1 are crucial to establishing and maintaining the foundations of a meaningful democracy governed by the rule of law.\n\n60.  Nonetheless, the rights enshrined in Article 3 of Protocol No. 1 are not absolute. There is room for implied limitations, and Contracting States must be given a margin of appreciation in this sphere.\n\n61.  The scope of that margin in the present case has given rise to considerable debate. The Court re-affirms that the margin of appreciation in this area is wide (see Mathieu-Mohin and Clerfayt, cited above, § 52; and, more recently, Matthews v. the United Kingdom [GC], no. 24833/94, § 63, ECHR 1999I; Labita v. Italy [GC], no. 26772/95, § 201, ECHR 2000IV; Podkolzina v. Latvia, no. 46726/99, § 33, ECHR 2002II; and Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, § 61, ECHR 2005IX). The same applies to determination of the type of ballot through which the expression of the opinion of the people is mediated, whether proportional representation, majority voting or some other system (see Matthews, cited above, § 63). In that connection, Article 3 of the Protocol goes no further than prescribing “free” elections held at “reasonable intervals” “by secret ballot” and “under conditions which will ensure the free expression of the opinion of the people”. Subject to that reservation, it does not create any “obligation to introduce a specific system” such as proportional representation or majority voting with one or two ballots (see Mathieu-Mohin and Clerfayt, cited above, § 54).\n\nThe rules in this area vary in accordance with the historical and political factors specific to each State; the large variety of situations provided for in the electoral legislation of numerous member States of the Council of Europe shows the diversity of the possible options. For the purposes of applying Article 3 of the Protocol, any electoral legislation must be assessed in the light of the political evolution of the country concerned, so that features that would be unacceptable in the context of one system may be justified in the context of another (see Py v. France, no. 66289/01, § 46, ECHR 2005I (extracts)), at least so long as the chosen system provides for conditions which will ensure the “free expression of the opinion of the people in the choice of the legislature”.\n\n62.  Moreover, it should not be forgotten that electoral systems seek to fulfil objectives which are scarcely compatible with each other: on the one hand to reflect fairly faithfully the opinions of the people, and on the other, to channel currents of thought so as to promote the emergence of a sufficiently clear and coherent political will. In these circumstances the phrase “conditions which will ensure the free expression of the opinion of the people in the choice of the legislature” implies essentially – apart from freedom of expression (already protected under Article 10 of the Convention) – the principle of equality of treatment of all citizens in the exercise of their right to vote and their right to stand for election. It does not follow, however, that all votes must necessarily have equal weight as regards the outcome of the election or that all candidates must have equal chances of victory. Thus no electoral system can eliminate “wasted votes” (see Mathieu-Mohin and Clerfayt, cited above, § 54).\n\n63.  And yet none of the above criteria should in principle be considered more valid than any other, provided that it guarantees the expression of the opinion of the people through free, fair and regular elections.\n\n64.  The Convention institutions have always considered electoral thresholds in the context of the margin of appreciation left to member States, noting that in this sphere States enjoy considerable latitude (see Federación nacionalista Canaria v. Spain (dec.), no. 56618/00, ECHR 2001VI; Etienne Tete v. France, no. 11123/84, Commission decision of 9 December 1987, Decisions and Reports (DR) 54, p. 52; Marcel Fournier v. France, no. 11406/85, Commission decision of 10 March 1988; and Silvius Magnago and Südtiroler Volkspartei v. Italy, no. 25035/94, Commission decision of 15 April 1996, DR 85, p. 112).\n\n65.  However, it is for the Court to determine in the last resort whether the requirements of Article 3 of Protocol No. 1 have been complied with. It has to satisfy itself that limitations do not curtail the rights in question to such an extent as to impair their very essence, and deprive them of their effectiveness; that they are imposed in pursuit of a legitimate aim and that the means employed are not disproportionate (see Mathieu-Mohin and Clerfayt, cited above, § 52). In particular, any such conditions must not thwart the free expression of the people in the choice of the legislature – in other words, they must reflect, or not run counter to, the concern to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage (see Hilbe v. Liechtenstein (dec.), no. 31981/96, ECHR 1999VI, and Melnichenko v. Ukraine, no. 17707/02, § 56, ECHR 2004X). Any departure from the principle of universal suffrage risks undermining the democratic validity of the legislature thus elected and the laws which it promulgates. Exclusion of any groups or categories of the general population must accordingly be reconcilable with the underlying purposes of Article 3 of Protocol No. 1 (see, mutatis mutandis, Aziz v. Cyprus, no. 69949/01, § 28, ECHR 2004V). Equally, once the wishes of the people have been freely and democratically expressed, no subsequent amendment to the organisation of the electoral system may call that choice into question, except in the presence of compelling grounds for the democratic order (see Lykourezos v. Greece, no. 33554/03, § 52, ECHR 2006...).\n\n2.  Application of the above principles in the present case\n\n66.  In the applicants’ submission, the fact that they were not elected to the National Assembly, despite the score of 45.95% of the votes cast in the constituency of Şırnak achieved in the parliamentary elections of 3 November 2002 by DEHAP, the party on whose list they had stood for election, was incompatible with Article 3 of Protocol No. 1. They explained that their party, which had polled 6.22% of the national vote, had failed to reach the electoral threshold of 10% and had accordingly been deprived of parliamentary representation.\n\n67.  However, the Court notes that the national threshold concerned is the product of an electoral rule which determines how the seats in parliament are to be shared nationally among the different lists and different candidates. Its effect is to deprive of parliamentary representation those political parties which fail to cross it. It is provided for in section 33 of Law no. 2839 and was introduced well before the elections of 3 November 2002, so that the applicants could have foreseen that if their party failed to get over the hurdle complained of in those elections they would not be able to win any seats in parliament regardless of the number of votes they obtained in their constituency (see, by converse implication, Lykourezos, cited above, § 55).\n\n68.  The Court would further point out that, unlike other Convention provisions, Article 3 of Protocol No. 1 does not specify or limit the aims which a restriction must be intended to serve, and it accepts that the measure complained of is calculated to prevent excessive and debilitating parliamentary fragmentation and thus strengthen governmental stability, regard being had in particular to the period of instability Turkey went through in the 1970s (see paragraph 16 above).\n\n69.  As regards the proportionality of the measure, the Court must examine this question in the light of the criteria established in its case-law and take due account of the political and historical context in Turkey, without losing sight of the fact that rules that would be unacceptable in the context of one system may be justified in the context of another.\n\n70.  The Government argued that the measure was proportionate and was largely a matter which fell within their margin of appreciation. They submitted in particular that the applicants could have been elected if they had been independent candidates or if DEHAP had formed a coalition with larger parties before the election.\n\n71.  Regarding the argument grounded on the possibility of standing as an independent candidate, the Court emphasises the irreplaceable contribution made by parties to political debate, in which they can be distinguished from other political actors such as independent candidates, who in general are locally based. In representative democracies political parties represent the different shades of opinion to be found within a country’s population, thus contributing to “the free expression of the opinion of the people” (see, in particular, United Communist Party of Turkey and Others, cited above, §§ 44 and 45).\n\n72.  As regards the possibility of forming a coalition with other political parties with the aim of getting over the 10% hurdle, it should be noted that section 16 of Law no. 2839 prevents parties from presenting joint lists and from participating in parliamentary elections by forming perfectly legal coalitions (see paragraph 26 above). Although in the past some small groupings did gain access to the National Assembly under the banner of larger parties (see paragraph 18 above), it must not be forgotten that the sole aim of these provisional alliances was to circumvent that statutory prohibition and that they merely illustrate a weak point in the Turkish electoral system.\n\n73.  Emphasising in that connection the crucial role played in a representative democracy by parliament, which is the main instrument of democratic control and political responsibility, and must reflect as faithfully as possible the desire for a “truly democratic political regime”, the Court observes that after the elections of 3 November 2002 the electoral system concerned, which has a high threshold without any possibility of a counterbalancing adjustment, produced in Turkey the least representative parliament since the introduction of the multi-party system in 1946 (see paragraph 13 above). In concrete terms, 45.3% of the electorate (about 14.5 million voters) is completely unrepresented in parliament.\n\n74.  However, an analysis of the results of the parliamentary elections held since the adoption of the threshold (see paragraphs 14 and 1720 above) shows that it cannot as such block the emergence of political alternatives within society. Equally, the Court notes with interest the Government’s argument that the threshold is intended to give small groupings the opportunity to establish themselves nationally and thus form part of a national political project.\n\n75.  It should also be pointed out that Article 67 § 6 of the Constitution (see paragraph 22 above) requires electoral laws to strike a balance between the principles of fair representation and governmental stability. In its judgment of 18 November 1995 the  examined the rationale for the existence of the threshold as a corrective counterbalance to the general principle of proportionality whereby excessive and debilitating parliamentary fragmentation could be avoided. While accepting that thresholds restricted “the right to vote and to be elected”, it considered them acceptable provided that they did not exceed normal limits. Consequently, it held that the 10% threshold was compatible with the constitutional principles concerned (see paragraphs 2930 above).\n\n76.  Admittedly, in view of the extreme diversity of electoral systems adopted by the Contracting States, and taking into account the fact that many countries using one or other variant of proportional representation have national thresholds for election to parliament (see paragraphs 3539 above), the Court must accept that in the present case the Turkish authorities (both judicial and legislative) – but also Turkish politicians – are best placed to assess the choice of an appropriate electoral system, and it cannot propose an ideal solution which would correct the shortcomings of the Turkish electoral system. The fact remains, however, that the 10% national threshold applied in  appears to be the highest in comparison with the thresholds adopted in other European systems.\n\n77.  Consequently, while noting that it would be desirable for the threshold complained of to be lowered and/or for corrective counterbalances to be introduced to ensure optimal representation of the various political tendencies without sacrificing the objective sought (the establishment of stable parliamentary majorities), the Court considers that it is important in this area to leave sufficient latitude to the national decision-makers. In that connection, it also attaches importance to the fact that the electoral system, including the threshold in question, is the subject of much debate within Turkish society and that numerous proposals of ways to correct the threshold’s effects are being made both in parliament and among leading figures of civil society (see paragraph 21 above). What is more, as early as 1995 the  stressed that the constitutional principles of fair representation and governmental stability necessarily had to be combined in such a way as to balance and complement each other (see paragraphs 29 and 30 above).\n\n78.  In the light of the above conclusions, the Court does not consider that  has overstepped its wide margin of appreciation with regard to Article 3 of Protocol No. 1, notwithstanding the high level of the threshold complained of.\n\n79.  Accordingly, there has been no violation of Article 3 of Protocol No. 1.\n\nFOR THESE REASONS, THE COURT\n\nHolds by five votes to two that there has been no violation of Article 3 of Protocol No. 1.\n\nDone in French, and notified in writing on 30 January 2007 pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.\n\nIn accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the joint dissenting opinion of Mr Cabral Barreto and Mrs Mularoni is annexed to this judgment.\n\nWe cannot agree with the majority’s finding that there has been no violation of Article 3 of Protocol No. 1.\n\nWe consider it useful to summarise the general principles applied in the case-law of the Convention institutions on that provision, which are recapitulated in paragraphs 57 to 65 of the judgment:\n\n(1)  Article 3 of Protocol No. 1 guarantees individual rights, including the right to vote and the right to stand for election;\n\n(2)  the rights guaranteed by Article 3 of Protocol No. 1 are crucial to establishing and maintaining the foundations of a meaningful democracy governed by the rule of law;\n\n(3)  Contracting States must be allowed a margin of appreciation in this matter, at least so long as the chosen system provides for conditions which will ensure the free expression of the opinion of the people in the choice of the legislature;\n\n(4)  it is for the Court to determine in the last resort whether the requirements of Article 3 of Protocol No. 1 have been complied with; it has to satisfy itself that limitations do not curtail the rights in question to such an extent as to impair their very essence, and deprive them of their effectiveness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate.\n\nIt is therefore surely not for the Court to say whether one electoral system is better than another, seeing that any electoral system has advantages and disadvantages, that there is no “perfect” system and that nobody can avoid the phenomenon of “wasted votes”. However, the Court has a duty, in our opinion, to determine in the last resort whether the conditions imposed on the exercise of the right concerned satisfy the requirements of our case-law (see, among other authorities, Mathieu-Mohin and Clerfayt v. Belgium, judgment of 2 March 1987, Series A no. 113). In our view that means that we should consider the electoral system as a whole.\n\nWe are perfectly aware that many countries which have adopted proportional representation systems have at the same time laid down thresholds for the election of political parties to parliament, in order to ensure governability. We acknowledge without hesitation that this is a legitimate aim. However, we consider that a problem can arise from the proportionality point of view when the threshold concerned is too high.\n\nAll previous cases about electoral thresholds brought to the attention of the Strasbourg institutions have concerned thresholds at a level generally accepted in Europe, that is thresholds of about 5%; it is regrettable that the\n\nmajority avoided saying that in the judgment. In the only case of this kind examined by the Court (Federación nacionalista Canaria v.  (dec.), no. 56618/00, ECHR 2001VI), the Court was at pains to emphasise:\n\nIn  the electoral threshold is 10% nationally. That threshold is considered to be manifestly excessive by the Parliamentary Assembly of the Council of Europe, which in Resolution 1380 (2004) invited  to lower it. That might be sufficient ground for thinking that there is a serious problem under Article 3 of Protocol No. 1.\n\nBut as Article 3 of Protocol No. 1 does not impose specific conditions we consider it important to take the Turkish electoral system as a whole.\n\nWe note that this system, which sets a very high national threshold for the election of a political party to parliamentary seats, has no corrective counterbalances.\n\nThe Government put forward the following two arguments in seeking to persuade the Court that, although the 10% threshold was high in relation to the thresholds generally adopted, the system as a whole was “proportionate”:\n\n(a)  the applicants could have been elected if they had been independent candidates;\n\n(b)  the applicants could have been elected if DEHAP had entered into a coalition before the election with the larger parties.\n\nOn both points we fully share the considerations expressed by the majority in paragraphs 71 to 73 of the judgment: neither argument is persuasive, and the second is even incorrect.\n\nMoreover, at the hearing, the applicants’ representative mentioned a bill currently the subject of political debate in  which is intended to do away in future with the possibility of standing as an independent candidate in political elections. On that point the Government’s representative did not contradict the applicant’s representative: it is therefore quite possible that in future the Turkish electoral system will become even more restrictive as regards the possibility of gaining a seat in parliament.\n\nIt would admittedly be naïve to take the view that the result of the 2002 election, and in particular the fact that 45.3% of the votes cast were not reflected in the composition of the National Assembly, was solely due to the electoral system: there is no doubt that the electorate wanted to send a clear signal to the parties which had been in the power in the previous parliament. The fact remains, however, that the electoral threshold – twice as high as the European average – and the lack of corrective counterbalances do not help to ensure “the free expression of the opinion of the people in the choice of the legislature”. In addition, the current system does not permit political parties which are very strong at regional level but less so nationally to win seats in parliament. In a large country we consider it very regrettable to prevent political parties which represent millions of voters from entering the national legislature.\n\nOne could argue that in majority-vote systems the distribution of seats in relation to the results obtained may sometimes be much more unfavourable than in a proportional representation system which has an electoral threshold (in the present case, a high one). Nevertheless, in majority-vote systems, in principle, all political parties of any importance at national or regional level are represented in parliament, and for us that is decisive for the purposes of Article 3 of Protocol No. 1.\n\nLike the majority, and in accordance with the case-law of the Convention institutions, we consider that in this area States have a very wide margin of appreciation; however, we take the view that in the present case that margin of appreciation was exceeded and that the degree of latitude which the majority have given to the respondent State is excessive.\n\nWe remain convinced that this case would warrant examination by the Grand Chamber, as the issues it raises are serious and new.\n\nIn our view, the Turkish electoral system, which lays down a national threshold of 10% without any corrective counterbalances, raises such a problem under Article 3 of Protocol No. 1 that there has been a violation of that provision.\n\nEven following the finding of a violation the national legislature would still have a wide margin of appreciation to determine how to amend the electoral legislation to be applied in future elections in the way it judged best for Turkey, while at the same time ensuring better “the free expression of the opinion of the people in the choice of the legislature”.\n\nEven following the finding of a violation the national legislature would still have a wide margin of appreciation to determine how to amend the electoral legislation to be applied in future elections in the way it judged best for Turkey, while at the same time ensuring better “the free expression of the opinion of the people in the choice of the legislature”.","title":""}
{"_id":"passage_568","text":"PROCEDURE\n\n1.  The case originated in an application (no. 33497/07) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Krone Verlag GmbH & Co. KG, a limited liability company with its registered office in Vienna (“the first applicant company”) and Krone Multimedia GmbH & Co. KG, also a limited liability company with its registered office in Vienna (“the second applicant company”), on 1 August 2007.\n\n2.  Both companies are represented before the Court by Ebert Huber Liebmann Rechtsanwälte GmbH, a law firm based in . The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs.\n\n3.  The applicant companies alleged that the judgments under the Media Act ordering them to pay damages had infringed their right to freedom of expression under Article 10 of the Convention.\n\n4.  On 13 May 2009 the President of the First Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n5.  The first applicant company is the owner and publisher of the daily newspaper Kronen Zeitung; the second applicant company is the owner of the online newspaper www.krone.at.\n\nA.  The background to the case\n\n6.  In November 2003 criminal investigations were launched in respect of A and B who were suspected of the repeated and serious ill-treatment and sexual abuse of 10-year-old C, which had caused severe injuries. C is A’s biological daughter and B’s stepdaughter. C was taken to hospital and several media reported the case.\n\n7.  At that time D, C’s biological mother, who had learned from the media about what had happened to her daughter, wanted to see her but, since she did not have custody of her, this request was refused. Thereupon she contacted the first applicant company in the hope that it would help her obtain contact with C. C.M., a journalist for the first applicant company, visited her at her home, took pictures of her, received from D a picture showing C at the age of three years, accompanied D to the hospital where C was staying and took further pictures there. On the basis of this material, at the end of 2003 several articles on the case of C were published in Kronen Zeitung, as well as a call for donations (Spendenaufruf) for C. Once the X Regional Youth Welfare Agency (Jugendwohlfahrtsträger des Landes X) became aware of these events it advised D and her spouse that it would be in C’s best interests if they refrained from providing pictures of her and further information to the media.\n\n8.  After C left hospital in May 2004 she stayed with D. On 9 December 2004 custody of C was transferred to the Regional Youth Welfare Agency for the period of 1 December 2003 to 29 November 2004 and then from 30 November 2004 onwards it was transferred to D.\n\n9.  The trial of B and A was held in February 2005 and media interest in the case grew again. At the same time C had a relapse and began suffering from severe psychological problems again, making it necessary for her to be re-admitted to hospital.\n\n10.  On 21 February 2005 A and B were convicted of aggravated sexual abuse of minors (schwerer sexueller Missbrauch von Unmündigen), deliberate aggravated bodily harm (absichtliche schwere Körperverletzung) and ill-treatment of minors (Quälen von Unmündigen). They were sentenced to fifteen years’ imprisonment and ordered to pay compensation for non-pecuniary damage.\n\n11.  The first applicant company published two articles in Kronen Zeitung on 16 and 22 February 2005 respectively, using the first name of C, the full names of A and B, and illustrating them with photographs of A and B The second applicant company published two articles on its website www.krone.at on 16 and 22 February 2005 and, in addition to the information contained in the articles published in Kronen Zeitung, it also published photos of C, including a close-up of her face.\n\n12.  On 12 May 2005, with D’s consent, the District Court transferred custody rights in relation to one specific task back to the Regional Youth Welfare Agency, namely on the issue whether, in respect of the reporting on the trial of A and B, C had compensation claims against certain newspapers and, if necessary, to take the appropriate measures.\n\nB.  The articles which appeared in Kronen Zeitung and on www.krone.at\n\n13.  On 16 February 2005 an article was published in the first applicant company’s newspaper (Kronen Zeitung) entitled “C case: when humans turn into animals” (“Fall C: Wenn Menschen zum Tier werden”), which read as follows:\n\n“Modesty – what a fine word. A word that presupposes respect. But how out of place coming from the mouth of a father who kicked his 10-year-old daughter with his bare feet until several of her ribs were broken. How out of place when the same father claims that he did not treat his daughter’s injuries caused by a red-hot iron because modesty prevented him from touching her breasts...\n\nX Regional Criminal Court. Three judges and eight jurors have to pronounce sentence in three sets of proceedings against A and B (both [age]): A and B, known to Krone readers as the parent torturers. Their victim: C, A’s daughter from his first marriage. A girl who, after her parents’ divorce, lived for a long time with her grandparents in Y. A child who couldn’t wait to join her father and his second wife B here in X – and ended up in hell. Literally ill-treated till she bled. Tortured and abused.\n\nMembers of the jury turn ghostly white when public prosecutor T. reads from the prosecution file: ‘C was injured with red-hot spoons, deprived of her virginity with a cooking spoon, burnt with a hot iron. She was hurled against the wall until her skull fractured. C was also tied up to her bed in prayer position for nights on end. She was badly injured with a kitchen knife...’\n\nWhy? Sometimes it is not important why human beings behave like animals. Sometimes the facts are enough. And yet Judge J.J. proceeds brilliantly to shed light on every aspect of this crime against a child. For hours on end he listens patiently to the whimpering defence of the father. He patiently sits through the hair-raising account of the stepmother.\n\nThe accused agree on only one thing. Neither will admit responsibility. Just a touch of corporal punishment to keep family life intact – that much they admit. Both say they were afraid of or were dominated by the other.\n\nA: ‘I’m fond of all five (!) of my children, including C. I was dominated by my wife, and when she told me that C masturbated I believed her and had to do something’ he says. And his wife: ‘I just wanted to protect my other children from C so I hit her once and I might have pulled her hair.’\n\nBe that as it may, the way the couple defend themselves in court is nothing short of disgusting. As I just said, the facts speak volumes.\n\nYou listen to what went on for weeks in the flat in . You close your eyes – and still see C. Who actually delivered the blows ceases to matter.\n\nWhat matters is that C is now living safely with her real mother and a caring stepfather. She has just spent her first ever holiday in Tyrol. She’s made friends in a new school.\n\nShe can certainly not understand everything that happened. It can only be hoped that one day she’ll be able to forget. And that the father’s wish (‘I’d like to see my C again some day’) is never granted.”\n\n14.  On the same day the second applicant company published an article on its website (www.krone.at) entitled “Start of the trial in the C case” (Auftakt zum Prozess im Fall C). Its text is identical to the above article.\n\n15.  On 22 February 2005 a further article was published in the first applicant company’s newspaper (Kronen Zeitung), entitled “Maximum sentence for parent torturers!” (“Höchststrafe für Folter-Eltern!”), which read as follows:\n\n“The triangular shape of the iron is like a permanent reminder to C, ‘branded’ into her child’s body. ‘The violence against this girl ranks as one of the most abhorrent of crimes’ says Judge J.J. in pronouncing judgment on the parent torturers. A total of thirty years’ in prison – the maximum sentence.\n\nWhat must C’s small body have endured? What thoughts must have gone through the 10-year-old girl’s head when her stepmother and her father either ill-treated her or watched the other do it?\n\nIt’s not the sober words of forensic expert C.R. that send a shudder down your spine. It’s the thought of what the girl must have endured before ending up in hospital with multiple rib fractures, a fractured skull, burns to her skin, cuts going right through to the bone, stripped of her virginity and dignity. A child’s mind damaged beyond repair.\n\nThe ‘parents’ listen with bowed heads to what the experts say about ‘their child’. They hear how cosmetic surgery can reconstruct, but how no medicine can cure the psychological damage. The effects of her ordeal will remain with her for life.\n\n‘She was a very nice, quiet child’ says her former head teacher. ‘We never suspected anything. Her father enquired about her lovingly. When he came in to say that C would not be attending any more because she was in , no one imagined that she was lying at home injured.”\n\n16.  On the same day the second applicant company published an article on its website (www.krone.at) entitled “Maximum sentence for parents in C case” (“Höchststrafe für Eltern im Fall C”). Its text is identical to the above article.\n\nC.  The proceedings under the Media Act\n\n17.  On 9 August 2005 C, represented by the Regional Youth Welfare Agency, filed a claim for compensation against the first applicant company, relying on section 7a of the Media Act on the ground that the first applicant company had caused her suffering by revealing her identity as the victim of a criminal offence by publishing her first name, the full names and pictures of A and B in two articles which had appeared on 16 and 22 February 2005. C also filed a compensation claim against the second applicant company relying on sections 7 and 7a of the Media Act for revealing her identity as the victim of a criminal offence and for violating her right to protection of her strictly private life (höchstpersönlicher Lebensbereich) in two articles published on 16 and 22 February 2005.\n\n18.  On 27 June 2006 the X Regional Criminal Court (Landesgericht für Strafsachen) granted both requests for compensation. As regards the first applicant company it found that the two articles published in the newspaper Kronen Zeitung on 16 and 22 February 2005 had violated C’s right to protection of her identity as the victim of a criminal offence under section 7a of the Media Act and ordered the first applicant company to pay 4,000 euros (EUR) in compensation to C for each of the articles, altogether EUR 8,000. It also found that C was entitled to compensation from the second applicant company as the articles published on its website on 16 and 22 February 2005, including photos of her, had violated her right to protection of her identity as the victim of a criminal offence and had also interfered with her strictly private life in a manner which exposed and compromised her in public, thereby breaching her rights under section 7 of the Media Act. The  ordered the second applicant company to pay EUR 6,000 in compensation to C for each of the articles, altogether EUR 12,000. It also ordered the applicant companies to publish a summary of its judgment.\n\n19.  As regards the applicant companies’ argument that D, C’s biological mother, had consented to the disclosure of C’s identity and the publication of photos of her, the Regional Court, having heard as witnesses D, her husband, and C.M., a journalist writing for the applicant companies, considered that at the time of the publication of the impugned articles there had been no valid consent as neither the person with custody of C nor any other reference person (Bezugsperson) had consented to the disclosure of C’s identity or the publication of pictures of her. Even considering that D had validly consented to the applicant companies’ reporting on the case of C and to publishing pictures of her back in 2003, that consent could not automatically cover publications two years later in the context of the trial of A and B. After such a long period of time had passed, confirmation of D’s consent should have been sought as in case of doubt nobody can be deemed to have consented to an interference with his or her personality rights for an indefinite period of time. Moreover, in 2005 D had explicitly refused to give her consent to reporting in which C’s identity would be revealed to the public.\n\n20.  As regards the compensation claim under section 7 of the Media Act, the  found that a person was entitled to compensation if his or her strictly private sphere had been discussed in the media in a manner which was apt to expose and compromise him or her in public. Into this strictly private sphere fall the inner circle of one’s private life (engster Bereich der menschlichen Intimsphäre), emotions and physical sensations, one’s sexual life, and contacts with one’s closest persons of confidence (Kontakt mit engsten Vertrauten). The lurid presentation of the publications at issue, which made public highly sensitive details of the ill-treatment and sexual abuse to which C had been subjected and which were particularly humiliating, had interfered with C’s most intimate personal sphere. In weighing the interests of the applicant companies against those of C, the  considered that the offensive details had not been necessary for informing the reader even in a detailed manner on the case of C, while on the other hand, a minor victim of crimes of this kind was entitled to particularly strong protection. The  concluded that C’s interests protected by section 7 of the Media Act had not been respected and that she was therefore entitled to compensation.\n\n21.  As regards the compensation claim under section 7a of the Media Act the Regional Court found that by mentioning the first name of the victim, her age, the full names of the offenders, indicating their family relationship to the victim, by publishing pictures of the father and the stepmother and in two articles even publishing photos of her, the victim became recognisable to a wide number of persons beyond the circle of those directly informed.\n\n22.  In the ’s view there was no predominant public interest which would have made revealing the victim’s identity permissible. Such a predominant public interest must relate to the identity of the person, and that particular information should have a genuine news value. A merely general interest in appropriate press reporting on criminal cases was not sufficient. C was not a public figure and the mere fact that she had become the victim of a crime which attracted considerable public attention was not sufficient to consider her a person connected with public life. Also, the fact that the media had already reported on her in 2003, in some cases revealing her identity, did not make her a person connected with public life because a considerable amount of time had passed in the meantime and a newspaper’s readership changed constantly. A genuine interest in the identity of the victim could not be established. There was no predominant public interest in revealing the identity of the offenders as the public could be informed on the psychological dynamics of crimes of violence and sexual abuse committed within the family without revealing the identity of the victim. Therefore, these articles, which had described in detail the severe illtreatment of the victim, constituted an intrusion into the victim’s strictly private life and violated her interest in remaining anonymous. She was therefore entitled to compensation on this ground as well.\n\n23.  As to the amount of the compensation, the  stated that it had taken into account the particular gravity of the interference and the particularly large dissemination of the applicant companies’ media. As regards the second applicant company, a higher amount had to be awarded as the compensation was based on two grounds.\n\n24.  On 11 October 2006 the applicant companies appealed. They argued that there had been a predominant public interest in being informed of the identity of the offenders. The role of the media as public watchdog meant in the present case that they had the task of informing the public about a defenceless child who had become the victim in a family drama and to warn the public through giving a detailed report including personal details of the offenders and the victim, which was necessary for a public discussion of these events. They argued further that the reporting had been allowed because D had given her consent.\n\n25.  On 19 February 2007 the X Court of Appeal dismissed the appeal. It found that according to section 7a of the Media Act the identity of the victim of a criminal offence could only be revealed if there was a predominant public interest in that specific item of information. The permissibility of revealing the identity of an offender did not mean that the identity of the victim could also be disclosed. This question had to be examined separately and carefully. C was not a public figure nor was she a person otherwise connected with public life. Even accepting that there was a public interest in being informed of crimes of violence and sexual abuse committed within the family, that interest could be met without revealing the victim’s identity. Also, the conditions for compensation under section 7 of the Media Act had been met because the articles at issue contained a detailed description of the criminal acts committed, in particular of the injuries caused including the defloration of the victim, and thereby had discussed her strictly private life in a manner that was apt to expose and compromise her in public. As to the alleged consent of D to the applicant companies’ publications, the Court of Appeal found that the  had properly examined this matter and had concluded that there had been no valid consent. Given that the maximum amount of compensation was EUR 20,000, the sums actually fixed were moderate.\n\nII.  RELEVANT DOMESTIC LAW\n\n26.  Section 7 of the Media Act, which has the title “interference with a person’s most intimate personal sphere” (“Verletzung des höchstpersönlichen Lebensbereiches”), reads as follows:\n\n“(1)  If a person’s strictly private life is discussed or presented in the media in a manner which is apt to compromise this person in public, the person concerned may claim compensation from the owner of the media for the injury suffered. The amount of compensation shall not exceed EUR 20,000 ...\n\n(2)  No compensation claim under paragraph 1 exists if\n\n1.  the publication at issue is based on a truthful report on a public session of the National Council or the Federal Council, the Federal Assembly, a regional diet or a committee of one of these general representative bodies;\n\n2.  the publication is true and has a direct connection to public life;\n\n3.  in the circumstances it could have been assumed that the person concerned had agreed to the publication;\n\n4.  it is a direct broadcast on radio or television (live programme) and the employees or contractors of the radio or television station have not neglected the principles of journalistic diligence;\n\n5.  the information has been published on a retrievable website and the owner of the media or its employees or contractors have not neglected the principles of journalistic diligence.”\n\n27.  Section 7a of the Media Act which has the title “protection against divulging a person’s identity in special cases” (“Schutz vor Bekanntgabe der Identität in besonderen Fällen”), reads as follows:\n\n“(1)  Where publication is made, through any medium, of a name, image or other particulars which are likely to lead to the disclosure to a larger not directly informed circle of people of the identity of a person who\n\n1.  has been the victim of an offence punishable by the courts, or\n\n2.  is suspected of having committed, or has been convicted of, a punishable offence,\n\nand where legitimate interests of that person are thereby injured and there is no predominant public interest in the publication of such details on account of the person’s position in society, of some other connection with public life, or of other reasons, the victim shall have a claim against the owner of the medium (publisher) for damages for the injury suffered. The award of damages shall not exceed 20,000 euros; additionally, section 6(1), second sentence, shall apply.\n\n(2)  Legitimate interests of the victim shall in any event be injured if the publication\n\n1.  in the case of subsection (1)1, is such as to give rise to an interference with the victim’s strictly private life or to his or her exposure,\n\n2.  in the case of subsection (1)2, relates to a juvenile or merely to a lesser indictable offence (Vergehen) or may disproportionately prejudice the advancement of the person concerned.\n\n(3)  No compensation claim under paragraph 1 exists if\n\n1.  the publication at issue is based on a truthful report on a public session of the National Council or the Federal Council, the Federal Assembly, a regional diet or a committee of one of these general representative bodies;\n\n2.  the publication of the information on the person has been decided officially, in particular for the purposes of criminal justice or public security;\n\n3.  the person concerned has agreed to the publication or if the publication is based on information given by that person to the media;\n\n4.  it is a direct broadcast on radio or television (live programme) and the employees or contractors of the radio or television station have not neglected the principles of journalistic diligence;\n\n5.  the information has been published on a retrievable website and the owner of the media or its employees or contractors have not neglected the principles of journalistic diligence.”\n\n28.  Section 6(1) second sentence of the Media Act, to which reference has been made above, reads as follows:\n\n“The amount of compensation shall be fixed according to the extent of the publication, its impact and, in particular, the type of media and how broadly it is disseminated; the compensation must not endanger the economic existence of the media owner.”\n\nIII.  RELEVANT COUNCIL OF EUROPE CONVENTIONS AND DOCUMENTS\n\n29.  Article 31 of the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse of 25 October 2007, CETS No. 201, in so far as relevant reads as follows:\n\n“Article 31 – General measures of protection\n\n(1)  Each party shall take the necessary legislative or other measures to protect the rights and interests of victims, including their special needs as witnesses, at all stages of investigations and criminal proceedings, in particular by:\n\n...\n\n(e)  protecting their privacy, their identity and their image and by taking measures in accordance with international law to prevent the public dissemination of any information that could lead to their identification;”\n\n30.  In the Explanatory Report to the Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, paragraph 222 gives the following comment on Article 31 of that Convention:\n\n“The article goes on to list a number of procedural rules designed to implement the general principles set out in Article 31: the possibility for victims of being heard, of supplying evidence, of having their privacy, particularly their identity and image protected, and of being protected against any risk of retaliation and repeat victimisation. The negotiators wished to stress that the protection of the victim’s identity, image and privacy extends to the risk of “public” disclosure, and that these requirements should not prevent this information being revealed in the context of the actual proceedings, in order to respect the principles that both parties must be heard and the inherent rights of the defence during a criminal prosecution.”\n\n31.  On 28 June 1985 the Committee of Ministers of the Council of Europe adopted Recommendation Rec(85)11 on the position of the victim in the framework of criminal law and procedure. In section F (Protection of privacy) point 15 reads as follows:\n\n“Information and public relations policy in connection with the investigation and trial of offences should give due consideration to the need to protect the victim from any publicity which will unduly affect his private life and dignity. If the type of offence or the particular status or personal situation and safety of the victim make such a special protection necessary, either the trial before the judgment should be held in camera or disclosure or publication of personal information should be restricted to whatever extent is appropriate;”\n\n32.  On 31 October 2001 the Committee of Ministers of the Council of Europe adopted Recommendation Rec(2001)16 on the protection of children against sexual exploitation. In Article III (Criminal law, procedure and coercive measures in general) point 32 reads as follows:\n\n“Ensure throughout judicial, mediation or administrative proceedings the confidentiality of records and respect for the privacy of children who have been victims of sexual exploitation.”\n\n33.  On 10 July 2003 the Committee of Ministers of the Council of Europe adopted Recommendation Rec(2003)13 on the provision of information through the media in relation to criminal proceedings. The Appendix to that Recommendation contains the following principles:\n\n“Principle 1 - Information of the public via the media\n\nThe public must be able to receive information about the activities of judicial authorities and police services through the media. Therefore, journalists must be able to freely report and comment on the functioning of the criminal justice system, subject only to the limitations provided for under the following principles.\n\n...\n\nPrinciple 8 - Protection of privacy in the context of ongoing criminal proceedings\n\nThe provision of information about suspects, accused or convicted persons or other parties to criminal proceedings should respect their right to protection of privacy in accordance with Article 8 of the Convention. Particular protection should be given to parties who are minors or other vulnerable persons, as well as to victims, to witnesses and to the families of suspects, accused and convicted. In all cases, particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this Principle.\n\nAn even stronger protection is recommended to parties who are minors, to victims of criminal offences, to witnesses and to the families of suspects, the accused and convicted persons. ...”\n\nTHE LAW\n\nALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION\n\n34.  The applicant companies complained under Article 10 of the Convention that the judgments of the Austrian courts had violated their right to freedom of expression. Article 10 reads as follows:\n\n“1.  Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises.\n\n2.  The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”\n\n35.  The Government contested that argument.\n\nA.  Admissibility\n\n36.  The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n37.  The Court notes that it is common ground between the parties that the X Regional Court’s judgment of 27 June 2006, upheld by the X Court of Appeal, which awarded damages to C constituted an interference with the applicant company’s right to freedom of expression, as guaranteed by Article 10 § 1 of the Convention.\n\n38.  An interference contravenes Article 10 of the Convention unless it is “prescribed by law”, pursues one or more of the legitimate aims referred to in paragraph 2 and is “necessary in a democratic society” for achieving such an aim or aims.\n\n39.  The Court considers, and this was acknowledged by the parties, that the interference was prescribed by law, namely by sections 7 and 7a of the Media Act. The Court further finds, and this was likewise not disputed between the parties, that the interference served a legitimate aim, namely “the protection of the reputation or rights of others” within the meaning of Article 10 § 2 of the Convention.\n\n40.  The parties’ argument concentrated on the question whether the interference had been “necessary in a democratic society” within the meaning of Article 10 § 2 of the Convention.\n\n1.  The parties’ submissions\n\n41.  The applicant companies maintained that the interference with their right to impart information had not been necessary in a democratic society as there had been an overriding public interest in reporting in every detail on the case in issue. The applicant companies’ reporting concentrated on the perpetrators of the crime, but in view of the very nature of the criminal offence – violence and sexual abuse within the family – this meant that reporting on the offenders, that is the parents, and the criminal proceedings against them, necessarily revealed the identity of the victim C. The press must be allowed to report in an identifying manner on crimes of sexual abuse of minors within the family revealing the identity of the offender, as accurate and detailed reporting also served to protect and help the victims of such crimes. A restriction on detailed reporting and on revealing the identity of the offenders was not only in contradiction to Article 10 of the Convention but also against the principle of victim protection as it would protect the offenders from public attention but not the victim.\n\n42.  The applicant companies argued further that in any event they had been allowed to report on the case in the manner they did in the articles at issue as they had been authorised to do so by D, the biological mother of C, in 2003. That authorisation logically extended to the publication of the articles on the trial against A and B\n\n43.  The Government, while acknowledging the essential role played by the press as “public watchdog”, asserted that in the present case the interference with the applicant companies’ freedom of expression had been necessary within the meaning of Article 10 § 2 of the Convention. They argued in particular that the domestic courts had had to weigh the applicant companies’ interest in imparting information on an issue of public interest against the rights of the victim to the protection of her privacy which were equally protected by the Convention, namely the right to respect for her identity, protected by Article 8 as part of a person’s private life, as well as Article 31 § 1 (e) of the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse and various other instruments of the Council of Europe. The necessity to carry out such a weighing of interests was laid down in section 7a (1) subparagraph (1) of the Media Act.\n\n44.  The Austrian courts found that the articles published by the applicant companies constituted an intrusion into the strictly private life of C, a minor. In its judgment of 27 June 2006 the Regional Court explained in detail that even though it was in principle allowed to publish an article identifying the offender, this did not necessarily allow a report in which the victim of the crime could be identified. In the present case, C’s interests in her anonymity outweighed in the particular circumstances of the present case the applicant companies’ interest in the disclosure of the identity of the offenders. The disclosure of the identity of the victim was irrelevant for understanding the details of the crime of which C had been the victim and this specific detail was also not necessary to raise public awareness for crimes of violence and sexual abuse within the family. In situations such as the one in the present case the State had a positive obligation to ensure effective protection against violations of the personal integrity of children, as a particularly vulnerable group, in particular in the event of sexual abuse.\n\n45.  The Government also argued that the identity of the victim had not already been known at the time of the publication of the articles at issue because in the press articles of 2003 the victims and the offenders had only been mentioned by their first names.\n\n46.  Lastly, the Government argued that the amount of compensation awarded to C, namely EUR 8,000 as regards the first applicant company and EUR 12,000 as regards the second applicant company was not disproportionate, as that figure had to be seen against the background of the wide dissemination of the information by the applicant company and its influence on public opinion.\n\n2.  The Court’s assessment\n\n(a)  General principles\n\n47.  According to the Court’s well-established case-law, the test of necessity in a democratic society requires the Court to determine whether the interference complained of corresponded to a “pressing social need” whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it are relevant and sufficient (see The Sunday Times v. the  (no. 1), 26 April 1979, § 62, Series A no. 30). In assessing whether such a need exists and what measures should be adopted to deal with it, the national authorities are left a certain margin of appreciation. This power of appreciation is not, however, unlimited but goes hand in hand with a European supervision by the Court, whose task it is to give a final ruling on whether a restriction is reconcilable with freedom of expression as protected by Article 10 (see Bladet Tromsø and Stensaas v.  [GC], no. 21980/93, § 58, ECHR 1999III).\n\n48.  An important factor for the Court’s determination is the essential function of the press in a democratic society. Although the press must not overstep certain bounds, in particular in respect of the reputation and rights of others or of the proper administration of justice, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest (see Bladet Tromsø and Stensaas, cited above, § 59, and, as a recent authority, Flinkkilä and Others v. , no. 25576/04, § 73, 6 April 2010). By reason of the “duties and responsibilities” inherent in the exercise of freedom of expression, the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith and on an accurate factual basis and provide reliable and precise information in accordance with the ethics of journalism (see Fressoz and Roire v. France [GC], no. 29183/95, § 54, ECHR 1999I, and, as a recent authority, Eerikäinen and Others v. Finland, no. 3514/02, § 60, 10 February 2009). Not only do the media have the task of imparting such information and ideas, the public has a right to receive them. Were it otherwise, the press would be unable to play its vital role of “public watchdog” (see, among many authorities, Thorgeir Thorgeirson v. Iceland, 25 June 1992, § 63, Series A no. 239).\n\n49.  The subject matter at issue in this case – the disclosure of the identity of a victim of a criminal offence in the press – relates, on the one hand, to the right of the press under Article 10 of the Convention to inform the public on matters of public concern regarding ongoing criminal proceedings and, on the other hand, to the State’s positive obligations under Article 8 of the Convention to protect the privacy of the victim. In such cases the Court has always stressed the contribution made by photos or articles in the press to a debate of general interest (see Standard Verlags GmbH v.  (no. 2), no. 21277/05, § 46, 4 June 2009 with further references). While reporting and commenting on court proceedings, provided that they do not overstep the bounds set out above, contributes to their publicity and is thus perfectly consonant with the requirement under Article 6 § 1 of the Convention that hearings be public, it is to be noted that the public nature of court proceedings does not function as a carte blanche relieving the media of their duty to show due care in communicating information received in the course of those proceedings (see Eerikäinen and Others, cited above, § 63).\n\n50.   In the case of Egeland and Hanseid, which concerned a fine for breaching the prohibition to photograph a convicted person without her consent on the way from the court hearing in which the conviction was pronounced, the Court found that the portrayal in the press of the applicant had been particularly intrusive and that the interest in restricting publication of the photographs had therefore outweighed those of the press in informing the public on a matter of public concern (see Egeland and Hanseid v. Norway, no. 34438/04, §§ 61 and 63, 16 April 2009).\n\n51.  The Court therefore considers that the competent authorities in the respondent State should be accorded a wide margin of appreciation in their balancing of the conflicting interests (see Egeland and Hanseid, cited above, § 55, and, mutatis mutandis, A. v. , no. 28070/06, § 66, 9 April 2009).\n\n(b)  Application of these principles to the present case\n\n52.  In the present case the first applicant company reported in its newspaper Kronen Zeitung and the second applicant company in its online newspaper www.krone.at on the case of C, who had been severely ill-treated and sexually abused by her father, A, and her stepmother, B. In February 2005 the trial was held and on 21 February 2005 the Regional Criminal Court convicted A and B of aggravated sexual abuse of minors, deliberate aggravated bodily harm and ill-treatment of minors and sentenced both of them to fifteen years’ imprisonment. The applicant companies published two articles in their respective media in February 2005, in which they gave detailed descriptions of the circumstances of the case and revealed C’s identity by mentioning her first name, the full names of her father and stepmother, their family relation and by publishing photographs of A and B. In addition, the second applicant company also published photos of C herself, including a close-up of her face. Thereupon C filed a claim for compensation against both applicant companies on the ground that they had caused her suffering by revealing her identity as the victim of a criminal offence (section 7a of the Media Act) and, in her action against the second applicant company, she also asked for damages on the ground that the reporting and the pictures of her published had violated her right to protection of her strictly private life (section 7 of the Media Act).\n\n53.  The Regional Criminal Court granted the requests and ordered both applicant companies to pay compensation. It considered that the reporting at issue had breached C’s right to respect for her strictly private life and to remain anonymous, and found that there existed no predominant public interest in revealing her identity by giving details of the identity of the accused which allowed her to be identified. It found that the applicant companies could have informed the public in a sufficiently detailed manner without revealing the identity of the accused and thereby that also of the victim, as this particular information had not been essential for understanding the case of C or served any other specific purpose such as warning and protecting the public.\n\n54.  In the Court’s view the reasons given by the Regional Court and upheld by the Court of Appeal were undoubtedly “relevant” reasons for the purposes of the necessity test to be carried out under Article 10 § 2. It will next examine whether they were also “sufficient”.\n\n55.  The Court agrees with the domestic courts that the case concerned a balancing of the applicant company’s right to freedom of expression under Article 10 against C’s right to protection of her identity. In such cases one factor the Court has taken into account is the position of the person concerned by the publication: whether or not he or she was a “public figure” or had otherwise “entered the public scene” (see, for instance, Flinkkilä and Others, cited above, § 83, and Eerikäinen and Others, cited above, § 66). Another important factor is whether articles or photos in the press contributed to a debate of general interest (see Flinkkilä and Others, cited above, § 76, and Eerikäinen and Others, cited above, § 66).\n\n56.  In the present case, C was not a public figure, nor does the Court consider that she has entered the public scene by becoming the victim of a criminal offence which attracted considerable public attention.\n\n57.  The Court considers further that the articles at issue dealt with a matter of public concern, a crime involving violence against a child and sexual abuse committed within the family and could well give rise to a public debate on how the commission of similar crimes could be prevented. However, given that neither the offenders nor the victim were public figures or had previously entered the public sphere, it cannot be said that the knowledge of the identity of these persons was material for understanding the particulars of the case (see “Wirtschafts-Trend” Zeitschriften-Verlagsgesellschaft mbH (no. 2) v.  (dec.), no. 6274/00, 14 November 2002). In this connection the Court notes that the applicant companies were not prevented from reporting on all the details concerning the case of C, only from revealing her identity and publishing a picture of her from which she could be recognised.\n\n58.  On the other hand there is no doubt that the identity of the victim of a crime deserves particular protection on account of his or her vulnerable position, all the more so in the instant case as C was a child at the time of the events and had become the victim of violence and sexual abuse. In this connection the Court refers to Article 31 of the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, which obliges the Contracting States “to take the necessary legislative or other measures to protect the rights and interests of victims, by protecting their ... identity and ... by taking measures in accordance with international law to prevent the public dissemination of any information that could lead to their identification. The same concept of protecting the identity of victims of crime has also been recognised in various recommendations adopted by the Committee of Ministers of the Council of Europe (see Recommendations Rec(85)11, Rec(2001)16 and Rec(2003)13, quoted in §§ 24-26 above) as well as in the Court’s case-law on Articles 8 and 10 of the Convention (see Egeland and Hanseid, cited above, §§ 59-61, and A. v. Norway, cited above, §§ 71-73).\n\n59.  The applicant companies also claimed that in 2003 they had received the authorisation of D to report on the case in the manner they did including the publication of photos of C. However, the Court notes that the Austrian courts examined this issue carefully and, having heard several witnesses, concluded that at the time of the publication at issue no valid consent to the applicant companies’ publications had existed as in 2005 D had explicitly revoked her consent given in 2003. The Court considers that these findings do not appear unreasonable and in this connection reiterates that the fact that a person cooperated with the press on previous occasions cannot serve as an argument for depriving that person of protection against the publication by the press of photographs revealing his or her identity (see Egelan  and Hanseid, cited above, § 62).\n\n60.  Lastly, the Court considers that the interference with the applicant companies’ right to impart information was proportionate. The applicant companies have not been subject to fines imposed in criminal proceedings but ordered to pay compensation for the injury caused to the person whose identity was revealed by them to the public. The amounts of compensation, EUR 8,000 as regards the first applicant company and EUR 12,000 as regards the second applicant company, relate to two articles published. Even though substantial, the amounts appear reasonable taking into account the length of the articles, their contents which, on account of the details given, constituted a particularly serious interference, the particular impact it had on C, who, following the detailed reports in the press on the trial against A and B had a relapse and had to be re-admitted to hospital on account of her serious psychological problems, and the particularly wide circulation of the applicant companies’ media.\n\n61.  In sum, the Court finds that, by awarding C compensation for the disclosure of her identity as the victim of a crime, the respondent State acted within its margin of appreciation in assessing the need to protect her privacy. It is satisfied that the restriction on the applicant companies’ right to freedom of expression resulting from the Court of Appeal’s judgment of 28 June 2006 was supported by reasons that were relevant and sufficient, and was proportionate to the legitimate aims pursued.\n\n62.  There has accordingly been no violation of Article 10 of the Convention.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Declares the application admissible;\n\n2.  Holds that there has been no violation of Article 10 of the Convention.\n\nDone in English, and notified in writing on 17 January 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_114","text":"PROCEDURE\n\n1.  The case originated in three applications (nos. 26289/12, 29062/12 and 29891/12) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Irish nationals, Mr Gabriel Magee, Mr Colin Francis Duffy and Ms Teresa Magee (“the applicants”), on 1 May 2012, 14 May 2012 and 10 May 2012 respectively.\n\n2.  The first and second applicants were represented by KRW Law-LLP, a firm of solicitors based in Belfast. The third applicant was represented by Mr P. Moriarty of O’Connor & Moriarty Solicitors, a firm practising in Lurgan. The United Kingdom Government (“the Government”) were represented by their Agent, Ms M. Addis of the Foreign and Commonwealth Office.\n\n3.  On 24 September 2012 notice of the applications of the first and second applicant was given to the Government. Notice of the third applicant’s application was given to the Government on 7 November 2012. The applicants and the Government each filed observations on the admissibility and merits of the cases (Rule 59 § 1 of the Rules of Court).\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n4.  The first applicant was born in 1972 and lives in Craigavon. The second applicant was born in 1967 and lives in Lurgan. The third applicant was born in 1978 and lives in Craigavon.\n\nA.  The first and third applicants\n\n5.  On 14 March 2009 the first and third applicants were arrested under section 41 of the Terrorism Act 2000 (“the 2000 Act”) on suspicion of involvement in the murder of a police officer on 9 March 2009. They were detained at Antrim police station on the same day. The first applicant was interviewed twice on 15 March 2009 and once on 16 March 2009; the third applicant was interviewed three times on 15 March 2009 and once on 16 March 2009.\n\n6.  On 16 March 2009 the Director of Public Prosecutions (“DPP”) made applications to the County Court under paragraph 29 of Schedule 8 to the 2000 Act for warrants of further detention in respect of both applicants in order to carry out questioning and to conduct forensic examinations. The first applicant gave evidence on oath in the course of the hearing. Following the hearing, the County Court Judge granted warrants authorising a five-day extension of detention.\n\n7.  Each of the applicants was interviewed on twelve occasions in the following five days.\n\n8.  On 21 March 2009 the DPP made applications to the County Court under paragraph 36 of Schedule 8 to the 2000 Act for seven-day extensions to the periods specified in the warrants of further detention. The extensions were sought in order to facilitate further questioning of the applicants once the results of additional forensic tests were obtained. At separate hearings on 22 March 2009 a police superintendent gave evidence on oath as to the necessity of the extensions, and arguments were heard on behalf of the first and third applicants.\n\n9.  Following the hearings, Her Honour Judge Philpott QC delivered a written judgment in respect of the first applicant and an ex tempore decision in respect of the third applicant. She granted both applications, authorising the first applicant’s continued detention until 7.20 a.m. on 28 March 2009 and the third applicant’s continued detention until 5.52 a.m. on 28 March 2009. In her reasoning, Judge Philpott noted that the relevant forensic evidence was central to the investigation and that the investigation was being carried out diligently and expeditiously.\n\n10.  In the rulings Judge Philpott considered whether the 2000 Act or Article 5 of the Convention gave the court deciding whether or not to grant an extension of detention an express or implied power to examine the lawfulness of the arrest or to grant bail. She concluded that it did not as the 2000 Act only gave the judge the power to decide whether or not an extension of detention was necessary. Consequently, she had to confine herself to the issue of whether or not it was necessary to extend detention beyond forty-eight hours for investigative purposes, and any issue as to the lawfulness of the arrest would have to be determined by the High Court in either habeas corpus or judicial review proceedings.\n\nB.  The second applicant\n\n11.  On 14 March 2009 the second applicant was arrested under section 41 of the 2000 Act on suspicion of involvement in the murder of two soldiers at Masserene Barracks, Antrim, on 7 March 2009. He was detained at Antrim Police Station on the same day.\n\n12.  On 15 March 2009 the DPP made an application to the County Court under paragraph 29 of Schedule 8 to the 2000 Act for a warrant extending the second applicant’s detention as the results of a number of forensic tests were pending.\n\n13.  Following a hearing on 16 March 2009 a County Court Judge granted a warrant authorising a five-day extension to his detention.\n\n14.  The second applicant was interviewed on twelve occasions in the following five days. However, neither the interviews nor the results of the forensic tests provided any evidence linking the second applicant to the murders of the two soldiers.\n\n15.  On 21 March 2009 the DPP made an application to the County Court under paragraph 36 of Schedule 8 to the 2000 Act for a seven-day extension to the period specified in the warrant for further detention. The extension was sought as the results of further forensic tests which had been sent for analysis to a laboratory in Great Britain were expected to become available within the following seven days and detention was considered necessary to ensure that further questioning could take place and, if there was sufficient evidence, charges could be brought.\n\n16.  On 21 March 2009 Judge Philpott granted the application, authorising the second applicant’s continued detention until 7.20 on 28 March 2009.\n\nC.  Joint proceedings\n\n17.  The applicants sought permission to apply for judicial review of Judge Philpott’s decisions of 21 and 22 March 2009 granting further extensions to the warrants authorising their detention. They submitted, firstly, that Judge Philpott had been wrong to conclude that a court, in deciding whether or not to grant an extension of detention, was precluded from investigating the lawfulness of the arrest; secondly, that the judge had failed to address the question of whether the detention of the applicants was required while the results of the forensic examinations were expected; thirdly, that the judge had failed to give reasons for her decision that detention was required; and, finally, that Schedule 8 of the 2000 Act was incompatible with Article 5 of the Convention.\n\n18.  Permission to apply for judicial review was granted by the High Court of Northern Ireland on 24 March 2009 and the High Court heard the applications on 25 March 2009.\n\n19.  In respect of the applicants’ first submission, the High Court held that paragraphs 5 and 32 of Schedule 8 to the 2000 Act had to be read in conformity with the requirements of Article 5 § 3 of the Convention as explained in the jurisprudence of the Court. Thus, the review of the lawfulness of the detention had to embrace an examination of the basis of the arrest, otherwise a person could be detained under the 2000 Act for up to twenty-eight days without there having been any judicial review of the lawfulness of the original arrest and that could not be Convention compliant. The High Court therefore found that Judge Philpott had been wrong to disavow any review of the lawfulness of the applicants’ arrest and, as a consequence, her decision to grant extensions had to be quashed. The court accepted, however, that a review of the lawfulness of the arrest need not involve a detailed analysis of the basis for the decision to arrest and should reflect the constraints that necessarily apply in many arrests for terrorist offences.\n\n20.  With regard to the applicants’ second and third submissions, the High Court found that, although the judge had not focused directly on whether the applicants had to be detained rather than released pending the outcome of the remaining forensic examinations, she had not failed to have regard to the need for detention as the basis for the grant of the warrant. Moreover, although her reasons were pithily stated, they were sufficient to convey to the applicants the basis of her decision.\n\n21.  Consideration of the applicants’ fourth submission, namely the compatibility of Schedule 8 to the 2000 Act with Article 5 of the Convention, was adjourned. In a judgment delivered on 24 February 2011, the High Court of Northern Ireland found no basis for the submission that Schedule 8 was incompatible with Article 5 of the Convention. In particular, the court held that, although there was no doubt that the “competent legal authority” referred to in Article 5 § 1 (c) was the authority having competence to deal with a criminal charge (the magistrate in the United Kingdom), in Schiesser v. Switzerland (4 December 1979, § 29, Series A no. 34) and McKay v. the United Kingdom ([GC], no. 543/03, ECHR 2006X) the Court had made it clear that the function of “a judge or other officer” for the purposes of Article 5 § 3 of the Convention could be carried out by an officer authorised by law to exercise judicial power and did not necessarily have to be a person with power to conduct the trial of any eventual criminal charge; that, although there was no express power to order release in the 2000 Act as required by Article 5 § 3 of the Convention, such a power must be implied; that, as paragraph 32 of Schedule 8 to the 2000 Act provided that there must be reasonable grounds for believing that the further detention of a person was necessary, it therefore contained a requirement of proportionality; that, there was no provision for conditional release on bail within the statutory scheme, an issue which did not arise in the present case but would need to be addressed in any future case in which it arose; that, although paragraph 33(3) of Schedule 8 enabled a judicial authority to exclude an applicant or anyone representing him from any part of the hearing and paragraph 34 permitted information to be withheld from the applicant or anyone representing him, there were a range of tools available to the court to preserve to the necessary extent an adversarial procedure and equality of arms; and, finally, that there was no authority which supported the applicants’ contention that Article 5 required that a detained person be charged well before the expiry of the twentyeight day period contemplated in the 2000 Act.\n\n22.  On 4 April 2011 the High Court of Northern Ireland certified that it was satisfied that the decision given on 24 February 2011 involved the following points of law of general public importance.\n\n“a)  Whether paragraphs 29(3) and 36(3)(b) of Part III of Schedule 8 to the Terrorism Act 2000 (‘the Act’) permitting extended detention for more than four days are compatible with the Applicant’s rights under Article 5(1)(c), 5(2) and 5(3) of the European Convention on Human Rights (‘the Convention’)\n\nb)  Whether the absence of a power to allow for conditional release on bail rendered the scheme for extending detention set out in Part III of Schedule 8 incompatible with Article 5 [of the Convention]; and\n\nc)  Whether the procedure for granting an extension of detention, in circumstances where the suspect and legal representative have been excluded by the judge for a part of the hearing (as per Schedule 8, para 33(3)) and by reason of same information is made available to the judge but withheld from the suspect and his legal representative, Schedule 8, para 34(1) and (2)(f) is incompatible with the request for an adversarial hearing as required by Article 5 in light of Secretary of State for the Home Department v AF (FC) & Anor [2010] 2 AC 269.”\n\n23.  However, the High Court refused leave to appeal to the Supreme Court.\n\n24.  Permission to appeal was refused by the Supreme Court on 14 November 2011 on the basis that the applications did not raise an arguable point of law of general public importance.\n\nD.  The applicants’ release from detention\n\n25.  The applicants were released without charge on 25 March 2009. The first and third applicants were not subsequently charged with any offence related to the murder of the police officer.\n\n26.  The second applicant was immediately rearrested and interviewed over the following two days. On 27 March 2009 he was charged with the murder of the two soldiers, five attempted murders and possession of a firearm and ammunition. He was produced before a District Judge sitting at Larne Magistrates’ Court on 27 March 2009. His application for bail was refused. Following a hearing which took place on 6 and 23 November 2009, bail was refused by the High Court on the ground that there was a real risk of reoffending on account of his suspected involvement with a dissident republican organisation. The High Court again declined to grant bail on 8 October 2010.\n\n27.  On 7 November 2011 the second applicant stood trial before a judge sitting without a jury. On 20 January 2012 he was acquitted on all counts of the indictment.\n\nII.  RELEVANT DOMESTIC LAW AND PRACTICE\n\nA.  Powers of arrest and detention of terrorist suspects under the 2000 Act\n\n28.  Section 40 of the 2000 Act defines a terrorist as a person who has committed an offence under various sections of the Act or who is or has been concerned in the commission, preparation or instigation of acts of terrorism.\n\n29.  Section 41(1) of the 2000 Act provides that a constable may arrest without warrant a person whom he reasonably suspects to be a terrorist.\n\n30.  Part II of Schedule 8 to the 2000 Act deals with the detention of such a person by police during the first forty-eight hours.\n\n31.  Section 41(3) of the 2000 Act provides that a detained person must be released not later than the end of the period of forty-eight hours beginning with the time of the arrest subject to subsections (4) to (7) set out below.\n\n“(4)  If on a review of a person’s detention under Part II of Schedule 8 the review officer does not authorise continued detention, the person shall (unless detained in accordance with subsection (5) or (6) or under any other power) be released.\n\n(5)  Where a police officer intends to make an application for a warrant under paragraph 29 of Schedule 8 extending a person’s detention, the person may be detained pending the making of the application.\n\n(6)  Where an application has been made under paragraph 29 or 36 of Schedule 8 in respect of a person’s detention, he may be detained pending the conclusion of proceedings on the application.\n\n(7)  Where an application under paragraph 29 or 36 of Schedule 8 is granted in respect of a person’s detention, he may be detained, subject to paragraph 37 of that Schedule, during the period specified in the warrant.”\n\n32.  Paragraph 29 of Schedule 8 to the 2000 Act provides that the DPP for Northern Ireland may apply to a judicial authority for the issue of a warrant of further detention. Pursuant to paragraph 29(3), the period of further detention shall be seven days from the time of the arrest under section 41 of the 2000 Act unless the application is for a shorter period or the judicial authority is satisfied that there are circumstances that would make it inappropriate for the specified period to be as long as the period of seven days.\n\n33.  In Northern Ireland the judicial authority under the 2000 Act is a County Court Judge or a District Judge (Magistrates’ Court) who has been designated for the purposes of the Act.\n\n34.  Paragraph 30 of Schedule 8 requires the application for the warrant to be made during the period of the initial detention or within six hours of the end of that period.\n\n35.  Paragraph 31 ensures that an application for a warrant cannot be heard until the person to whom it relates has been given a notice stating that the application has been made, the time at which it was made, the time at which it is to be heard, and the grounds upon which further detention is sought.\n\n36.  Paragraph 32(1) provides that a judicial authority may only issue a warrant of further detention if satisfied that there are reasonable grounds for believing that the further detention of the person is necessary and that the investigation in connection with which the person is detained is being conducted diligently and expeditiously.\n\n37.  Paragraph 32(1A) provides that the further detention of a person is required if it is necessary\n\n“(a)  to obtain relevant evidence whether by questioning him or otherwise;\n\n(b)  to preserve relevant evidence; or\n\n(c)  pending the result of an examination or analysis of any relevant evidence or of anything the examination or analysis of which is to be or is being carried out with a view to obtaining relevant evidence.”\n\n38.  Relevant evidence is evidence which relates to the commission of an offence under section 40 or an indication that the person detained is a person falling within that section.\n\n39.  Paragraph 33 requires that a person to whom an application relates be given an opportunity to make oral or written representations to the judicial authority and be legally represented at the hearing. Paragraph 33(3) provides that the judicial authority may exclude the person to whom the application relates or anyone representing him from the hearing.\n\n40.  Likewise, paragraph 34 enables the DPP to apply to the judicial authority for an order that specified information upon which he intends to rely be withheld from the person to whom the application relates and anyone representing him. The judicial authority may make such an order only if satisfied that there are reasonable grounds for believing that if the information were disclosed\n\n“(a)  evidence of an offence under any of the provisions mentioned in section 40(1)(a) would be interfered with or harmed,\n\n(b)  the recovery of property obtained as a result of an offence under any of those provisions would be hindered,\n\n(c)  the recovery of property in respect of which a forfeiture order could be made under section 23 or 23A would be hindered,\n\n(d)  the apprehension, prosecution or conviction of a person who is suspected of falling within section 40(1)(a) or (b) would be made more difficult as a result of his being alerted,\n\n(e)  the prevention of an act of terrorism would be made more difficult as a result of a person being alerted,\n\n(f)  the gathering of information about the commission, preparation or instigation of an act of terrorism would be interfered with, or\n\n(g)  a person would be interfered with or physically injured.”\n\n41.  Paragraph 36 deals with extensions of warrants of further detention up to a maximum of twenty-eight days. Each application for an extension may extend the period of detention for up to seven days. Any application which would extend the then total period beyond fourteen days must be made to a judge of the High Court; otherwise the application is made to a specially designated County Court Judge or a District Judge (Magistrates’ Court).\n\nB.  Ward v. Police Service of Northern Ireland [2007] 1 WLR 3013; [2007] UKHL 50\n\n42.  In Ward v. Police Service of Northern Ireland, the House of Lords held that the procedure contemplated by paragraph 33 of Schedule 8 was conceived in the best interests of the detained person and not those of the police. It stated as follows.\n\n“27.  The answer to this question is that the procedure before the judicial authority which para 33 contemplates has been conceived in the interests of the detained person and not those of the police. It gives the person to whom the application relates the right to make representations and to be represented at the hearing. But it recognises too the sensitive nature of the inquiries that the judicial authority may wish to make to be satisfied, in that person’s best interests, that there are reasonable grounds for believing that the further detention that is being sought is necessary. The more penetrating the examination of this issue becomes, the more sensitive it is likely to be. The longer the period during which an extension is permitted, the more important it is that the grounds for the application are carefully and diligently scrutinised.\n\n28.  As in this case, the judicial authority’s need to scrutinise may trespass upon the right of the police to withhold from a suspect the line of questioning they intend to pursue until he is being interviewed. If it does, it will not be to the detained person’s disadvantage for him to be excluded so that the judicial authority may examine that issue more closely to see whether the exacting test for an extension that para 32 lays down is satisfied. The power will not in that event be being used against the detained person but for his benefit. As Hart J said in his ex tempore judgment, that person’s safeguard is the judge, whose function it is rigorously and comprehensively to examine the basis on which the application is being made.\n\n29.  There may be cases where there is a risk that the power given to the judicial authority by para 33(3) will operate to the detained person’s disadvantage. Those cases are likely to be rare, but the judicial authority must always be careful not to exercise it in that way. ...”\n\nTHE LAW\n\nI.  JOINDER OF THE APPLICATIONS\n\n43.  The three applications in the present case (nos. 26289/12, 29062/12 and 29891/12) raise the same issues. For the reasons set out at paragraphs 47 to 59 below, the Court finds that the second applicant’s complaints are inadmissible. It considers, however, that the remaining applications (nos. 26289/12 and 29891/12) should be joined pursuant to Rule 42 § 1 of the Rules of Court.\n\nII.  ALLEGED VIOLATION OF ARTICLE 5 §§ 1 (c), 2 AND 3 OF THE CONVENTION\n\n44.  The applicants complained that their detention was in breach of Article 5 §§ 1 (c), 2 and 3 of the Convention, which read as follows:\n\n“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:\n\n...\n\n(c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;\n\n...\n\n2.  Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.\n\n3.  Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”\n\n45.  The Court is not bound by the legal characterisation given by an applicant to the facts of the case (see, for example, Margaretić v. Croatia, no. 16115/13, § 75, 5 June 2014). Therefore, as the substance of the applicants’ complaint under Article 5 § 1(c) was that they were not brought promptly before a “judge or other officer”, it considers that it would be more appropriate to examine that complaint under Article 5 § 3.\n\n46.  The Government contested the applicants’ arguments.\n\nA.  Admissibility\n\n1.  Six months (the second applicant)\n\n47.  The Government argued that the second applicant failed to lodge his complaint within the six-month time-limit prescribed in Article 35 § 1 of the Convention. In the present case, given that the final domestic decision was the refusal by the Supreme Court on 14 November 2011 to grant the applicants permission to appeal (see paragraph 24 above), that time-limit expired at midnight on 14 May 2012.\n\n48.  The Government submitted that the second applicant’s first letter to the Court, which was dated 14 May 2012, could not have been faxed to the Court on that date as the Court’s stamp indicated that it had been received on 21 May 2012, which was outside the six-month time-limit. In any case, that letter did not set out even summarily the subject-matter of the application as required by Rule 47 § 5 of the Rules of Court and could not, therefore, constitute a “letter of introduction” of the complaint. Indeed, the Government was not aware of any correspondence from the second applicant received within the six-month time-limit which met the requirements of Rule 47 § 5 of the Rules of Court.\n\n49.  The second applicant maintained that the letter of 14 May 2012 had been sent to the Court at 12.09 pm on that day. He submitted a confirmation slip which clearly recorded the date, time and successful transmission of the letter.\n\n50.  Although the second applicant accepted that this letter did not set out the object of the application, he argued that pursuant to Rule 47 he had received a letter from the Registry requiring him to submit a duly completed application form within eight weeks of the date of the letter. This request was complied with within the requisite time-frame, as the completed application was sent to the Court on 6 July 2012.\n\n51.  It is clear from the documents submitted by the second applicant, and from the Court’s own records, that the letter dated 14 May 2012 was sent by fax to the Registry at 12.09 pm that day and was received at that same time. A hard copy followed by post, which was received by the Registry on 21 May 2012. Consequently, there is no doubt that this letter was received by the Court within the six-month time limit. However, it remains for the Court to decide whether or not this letter constituted a “letter of introduction” for the purposes of Rule 47 § 5 of the Rules of Court.\n\n52.  In the version in force at the relevant time, Rule 47 § 5 of the Rules of Court provided as follows:\n\n“The date of introduction of the application for the purposes of Article 35 § 1 of the Convention shall as a general rule be considered to be the date of the first communication from the applicant setting out, even summarily, the subject matter of the application, provided that a duly completed application form has been submitted within the time-limits laid down by the Court. The Court may for good cause nevertheless decide that a different date shall be considered to be the date of introduction.”\n\n53.  The accompanying Practice Direction on the Institution of Proceedings further provided that:\n\n“An application should normally be made on the form referred to in Rule 47 § 1 of the Rules of Court and be accompanied by the documents and decisions mentioned in Rule 47 § 1 (h).\n\nWhere an applicant introduces his or her application in a letter, such letter must set out, at least in summary form, the subject matter of the application in order to interrupt the running of the six-month rule contained in Article 35 § 1 of the Convention.\n\nIf an application has not been submitted on the official form or an introductory letter does not contain all the information referred to in Rule 47, the applicant may be required to submit a duly completed form. It must be despatched within eight weeks from the date of the Registry’s letter requesting the applicant to complete and return the form.\n\nFailure to comply with this time-limit will have implications for the date of introduction of the application and may therefore affect the applicant’s compliance with the six-month rule contained in Article 35 § 1 of the Convention.”\n\n54.  Finally, the Guidance Notes which accompanied application forms in May 2012 advised applicants that:\n\n“[The] six-month period will be interrupted when you send to the Court either a first letter clearly setting out – even if only in summary form – the subject-matter of the application you may wish to lodge or a completed application form. A mere request for information is not sufficient to stop time running for the purposes of complying with the six-month time-limit.”\n\n55.  It is clear that Rule 47 § 5, read together with the Practice Direction and the Guidance Notes accompanying the application form, required that a letter of introduction should set out the subject-matter of the complaint in order to stop the six-month time-limit from running. This was recently confirmed by the Court, which held that in accordance with the established practice of the Convention bodies and Rule 47 § 5 of the Rules of Court as worded at the relevant time, it would normally consider the date of introduction of an application to be the date of the first communication indicating an intention to lodge an application and giving some indication of the nature of the application. Such first communication, which could take the form of a letter sent by fax, would in principle interrupt the running of the six-month period (see Abdulrahmen v. the Netherlands (dec.), no. 66994/12 of 5 February 2013).\n\n56.  The letter sent by the applicant on 14 May 2012 reads as follows:\n\n“We refer to the above-named and an application for judicial review which was refused by the Divisional Court in Northern Ireland on the 24th February 2011. We were not previously the solicitors on record. Mr Duffy has now instructed us. We do not have the papers from the previous solicitor.\n\nSubsequent to that an application for leave to appeal to the Supreme Court of the UK was made in additional [sic] to an application to Certify Points of Law of General Public Importance. This application was lodged with the Court in March 2011. In April 2011 the Divisional Court considered the application for leave to appeal to the Supreme Court and the certified questions and reserved their decision.\n\nIn April 2011 the Divisional Court refused leave to appeal to the Supreme Court but Certified Points of Law of General Public Importance.\n\nAn application for Permission to Appeal to the Supreme Court was lodged in July 2011. The Appeal Panel of the Supreme Court considered the application for Permission to Appeal to the Supreme Court and an Order was made by the Supreme Court on the 15th November 2011 refusing Permission to Appeal.\n\nIt is now our intention to lodge an application with the European Court of Human Rights. We note that the application to the European Court of Human Rights must be lodged within 6 months of the final decision in which all domestic remedies were exhausted. Therefore the application must be lodged with the Court no later than the 15th May 2012.\n\nUnder the circumstances and in view of the urgency of this case we would be grateful if you could confirm that the Court will accept the completed application form which has been printed from the European Court website.\n\nIn addition to that we would also ask the Court to confirm if you can provide us with the details of the Courts [sic] file reference, so that we can include this on the correspondence and the application form which we hope to submit to you within the next few days.\n\nWe thank you for your assistance and await your reply.\n\nWe would be grateful if you would confirm the position by fax or email.”\n\n57.  The letter did not, therefore, give any indication of the nature or subject-matter of the second applicant’s complaints. The solicitor has stated that at the time of writing he had not received papers from his client’s previous solicitor. However, this fact alone does not explain the failure to provide a basic outline of the complaints the second applicant was intending to make against the respondent State. Consequently, the Court considers that the letter of 14 May 2012 did not stop the six-month time-limit from running; on the contrary, no communication capable of having such an effect, that is to say, one setting out the nature of the application, be it in a summary manner, was received at the Court until the submission of a completed application form on 6 July 2012, by which stage the six-month time-limit had well expired.\n\n58.  Although the reply sent to the second applicant by the Registry on 15 May 2012 asked him to submit a completed application form within eight weeks, it did not expressly confirm that the letter of 14 May 2012 satisfied the requirements of Rule 47 § 5. While the second applicant’s argument invoking the Registry’s reply as an indication of compliance with Rule 47 is understandable, it was at all times open to the Government to challenge the contents of the letter of 14 May 2014 and for the Court, having considered the parties’ arguments in full, to uphold the Government’s objection.\n\n59.  Accordingly, by virtue of Article 35 §§ 1 and 4 of the Convention, the Court is not empowered to entertain the second applicant’s complaints as they have been lodged out of time.\n\n2.  Manifestly ill-founded\n\n60.  The Government further submitted that the first and third applicants’ (hereafter “the applicants”) complaints under Article 5 were manifestly illfounded. Insofar as the applicants have complained under Article 5 § 2 of the Convention, the Court agrees that their complaints are manifestly illfounded, as there is no suggestion that they were not promptly informed of the reasons for their arrest. It therefore declares this complaint to be inadmissible pursuant to Article 35 § 3(a).\n\n61.  However, the Court is satisfied that the complaints under Article 5 § 3 raise complex issues of fact and Convention law calling for examination on the merits. As such, they cannot be rejected as manifestly ill-founded. Since this part of the application is not inadmissible on any other grounds, it must therefore be declared admissible.\n\nB.  Merits\n\n1.  The parties’ submissions\n\n62.  The applicants relied on Schiesser v. Switzerland, 4 December 1979, Series A no. 34 as authority for the proposition that “competent legal authority” (Article 5 § 1 (c) of the Convention) was a synonym, of abbreviated form, for “judge or other officer authorised by law to exercise judicial power” (Article 5 § 3). Pursuant to the scheme for commencement of criminal proceedings in Northern Ireland, the Magistrates’ Court was where a defendant was produced on a first appearance following charge. The applicants therefore submitted that in Northern Ireland the Magistrates’ Court was both the “competent legal authority” for the purposes of Article 5 § 1 (c) of the Convention and the “judge or other officer” for the purposes of Article 5 § 3 and, as they were never brought before a Magistrates’ Court, their pre-charge detention was in breach of Article 5 § 3.\n\n63.  The applicants further submitted that it made perfect sense for the first post-charge appearance before the Magistrates’ Court to be the appearance before the “judge or other officer”, as it would provide further additional safeguards against arbitrary detention. In particular, it would ensure the prompt and public announcement of the charge against the detainee; it would ensure consideration of the detainee’s continued detention and, importantly, the possibility of conditional release; and if further detention was authorised it would be in prison rather than a police station, which was unlikely to be adequate for prolonged periods of detention.\n\n64.  Even if the Court were to accept that the judicial control of detention contemplated by Article 5 § 3 of the Convention did not have to be fulfilled by a Magistrates’ Court, the applicant submitted that the “judicial authority” as constituted under the Terrorism Act 2000 (“the 2000 Act”) did not have the powers and characteristics to fulfil the requirements of that Article.\n\n65.  Firstly, they argued that the scope of the inquiry carried out by the “judicial authority” at the first automatic review of detention was not compliant with Article 5 § 3 of the Convention. In the present case the High Court found that a review of the lawfulness of arrest need not involve a detailed analysis of the basis for the decision to arrest and should reflect the necessary constraints that applied in many arrests for terrorist offences, where reasons of public safety prevented the disclosure of the full information upon which the decision to arrest was taken. The applicants submitted that this was not compliant with Article 5 § 3, as such a test prevented the effective review of arrest and detention required by that Article on the first automatic review by a judge and in subsequent reviews. Therefore, even if the County Court Judge had proceeded on the basis approved by the High Court, it would not have been sufficient to comply with Article 5 § 3.\n\n66.  Secondly, the logical consequence of the creation of a separate and distinct mechanism outside the normal legal processes was that the “judicial authority” had to fulfil two separate judicial-supervision roles required by Article 5 § 3 of the Convention: the automatic review of detention and consideration of whether the detainee should be released on bail pending trial. Convention case-law established that the latter role had to be carried out with due expedition (McKay v. the United Kingdom [GC], no. 543/03, ECHR 2006X). There was no dispute between the parties that the “judicial authority” as constituted under the 2000 Act did not possess the power to order conditional release; however, without the possibility of imposing conditions of release the judicial authority could only order unconditional release or continued detention. The position was particularly stark in a case such as the present, where the applicants should, at the very least, have been conditionally released. In this regard the applicants submitted that the police had sought to extend their detention when they had already been detained for seven days without charge; police interviews had come to an end save for the receipt of the results of forensic tests; the investigations had not produced any or sufficient evidence to charge the applicants; they were of good character and did not pose a flight risk; and they were entitled to the presumption of innocence.\n\n67.  The Government submitted that the essential requirement in Article 5 § 3 of the Convention was for the arrested person to be brought promptly before “a judge or other officer authorised by law to exercise judicial power”. The judicial bodies contemplated by Article 5 §§ 1 (c) and 3 did not have to be identical; as Schedule 8 required a detained person to be brought before a judge, it conformed to the essential requirement contained in Article 5 § 3. In support of this assertion the Government relied on the wording of Article 5; the purpose underlying Article 5; and the Court’s judgments in Aquilina v. Malta [GC], no. 25642/94, ECHR 1999III and Schiesser, cited above.\n\n68.  Firstly, the fact that different language was used in Article 5 § 1 (c) on the one hand and in Article 5 § 3 on the other demonstrated that the two judicial bodies referred to in those provisions did not need to be identical.\n\n69.  Secondly, in Medvedyev and Others v. France [GC], no. 3394/03, ECHR 2010, the Court stated that the purpose of Article 5 § 3 was to ensure that arrested persons were physically brought before a judicial officer promptly, and, for the Government, the provisions of Schedule 8 served this purpose. In particular, they provided a safeguard against arbitrary detention, as there was independent judicial scrutiny of the reasons for a suspect’s detention and release had to be ordered if a suspect’s continued detention was not justified. To suggest that the “judge or other officer” in Article 5 § 3 should be the same as the “competent legal authority” in Article 5 § 1 (c) would add nothing to the protection afforded to a detained person, would give priority to form over substance, and would limit for no good reason the organisation of judicial resources by the State concerned.\n\n70.  Thirdly, there was nothing in either Schiesser or Aquilina (both cited above) to suggest that the judicial body in Article 5 § 3 should be identical to that in Article 5 § 1 (c). On the contrary, the Court had made it clear in those judgments that the important question was whether the judicial or other officer had the requisite independence from the executive and the parties.\n\n71.  The Government further submitted that the applicants had misunderstood the nature of the compulsory first review under Article 5 § 3 of the Convention. Firstly, there was no requirement that a person detained pursuant to Article 5 § 1 (c) must have been – or must eventually be – charged (see Brogan and Others v. the United Kingdom, 29 November 1988, § 53, Series A no. 145B). Accordingly, prompt and public announcement of a criminal charge as part of the review of the lawfulness of detention under Article 5 § 3 was irrelevant.\n\n72.  Secondly, there was no ground for concluding that the review under Article 5 § 3 must, as a matter of automatic obligation, cover the release of the detainee pending trial, with or without conditions, for reasons aside from the lawfulness of the detention or the existence of reasonable suspicion that he or she had committed a criminal offence (see McKay, cited above, §§ 3839). The requirements of Article 5 § 3 in relation to detention under Article 5 § 1 (c) and the requirements of Article 5 § 3 in relation to continuing pre-trial detention (which did encompass consideration of conditional release) conferred distinct rights and were not on their face logically or temporally linked (see Medvedyev and Others, cited above, § 119). In the present case, although the applicants’ pre-trial detention was at a very early stage, the judge could only issue a warrant of further detention if satisfied that each applicant was a person reasonably suspected of having committed a terrorist offence or of being a terrorist; that there were reasonable grounds for believing that the further detention of each applicant was necessary; and that the investigation was being conducted diligently and expeditiously. In these circumstances it was not necessary for the judge to have the additional power to release the applicant on conditional bail.\n\n2.  The Court’s assessment\n\n73.  The Court reiterates that Article 5 of the Convention is in the first rank of the fundamental rights that protect the physical security of an individual, and that three strands in particular may be identified as running through the Court’s case-law: the exhaustive nature of the exceptions, which must be interpreted strictly and which do not allow for the broad range of justifications under other provisions (Articles 8-11 of the Convention in particular); the repeated emphasis on the lawfulness of the detention, procedurally and substantively, requiring scrupulous adherence to the rule of law; and the importance of the promptness or speediness of the requisite judicial controls under Article 5 §§ 3 and 4 (see McKay, cited above, § 30).\n\n74.  The Court notes the importance of the guarantees afforded by Article 5 § 3 to an arrested person. The purpose of this provision is to ensure that arrested persons are physically brought before a judicial officer promptly. Such automatic expedited judicial scrutiny provides an important measure of protection against arbitrary behaviour, incommunicado detention and illtreatment (see, among other authorities, Brogan and Others, cited above, § 58; Brannigan and McBride v. the United Kingdom, 26 May 1993, §§ 6263, Series A no. 258-B; Aquilina, cited above, § 49; and Dikme v. Turkey, no. 20869/92, § 66, ECHR 2000VIII).\n\n75.  Article 5 § 3, as part of this framework of guarantees, is structurally concerned with two separate matters: the early stages following an arrest, when an individual is taken into the power of the authorities, and the period pending any trial before a criminal court, during which the individual may be detained or released with or without conditions. These two limbs confer distinct rights and are not on their face logically or temporally linked (see T.W. v. Malta [GC], no. 25644/94, § 49, 29 April 1999; McKay, cited above, § 31; and Medvedyev and Others, cited above, § 119).\n\n76.  Taking the initial stage under the first limb, the Court’s case-law establishes that there must be protection, through judicial control, of an individual arrested or detained “on reasonable suspicion of having committed [a criminal] offence”, that is to say, even before any criminal charge may have been brought (see Brogan and Others, cited above, § 53). Such control serves to provide effective safeguards against the risk of illtreatment, which is at its greatest in this initial stage of a perhaps continuing deprivation of liberty following the bringing of a criminal charge, and against the abuse of powers bestowed on law-enforcement officers or other authorities for what should be narrowly restricted purposes and exercisable strictly in accordance with prescribed procedures. The judicial control must satisfy the requirements set out below (see McKay, cited above, § 32).\n\n77.  The judicial control on the first appearance of an arrested individual must above all be prompt, to allow detection of any ill-treatment and to keep to a minimum any unjustified interference with individual liberty. Although each case has to be assessed according to its special features (see Belousov v. Ukraine, no. 4494/07, § 94, 7 November 2013), the strict time constraint imposed by this requirement leaves little flexibility in interpretation, otherwise there would be a serious weakening of a procedural guarantee to the detriment of the individual and the risk of impairing the very essence of the right protected by this provision (see Brogan and Others, cited above, § 62, where periods of four days and six hours in detention without appearance before a judge were held to be in violation of Article 5 § 3, even in the special context of terrorist investigations).\n\n78.  The implication of Brogan and Others (cited above) is that, even where, as in the context of anti-terrorism legislation, there exist exceptional circumstances or special difficulties justifying a longer period than normal before the authorities bring the arrested person before a judge, the first review must take place within a maximum of four days after the arrest. In McKay, cited above, the Court found no violation of Article 5 § 3 of the Convention in circumstances where a non-terrorist suspect was brought before the judicial officer within forty-eight hours of his arrest. Likewise, in Aquilina, cited above, the Court accepted that the applicant’s appearance before a magistrate two days following his arrest satisfied the requirement of promptness. Nevertheless, while any period in excess of four days is prima facie too long, in certain circumstances shorter periods can also be in breach of the promptness requirement (see İpek and Others v. Turkey, nos. 17019/02 and 30070/02, §§ 36-37, 3 February 2009, in which a period of three days and nine hours was not sufficiently prompt in relation to applicants who were minors; Kandzhov v. Bulgaria, no. 68294/01, § 66, 6 November 2008, in which a period of three days and twenty-three hours was not sufficiently prompt where the applicant, who was arrested on charges of a minor and nonviolent offence, had already spent twentyfour hours in custody when the police proposed to the prosecutor in charge of the case to request the competent court to place the applicant in pre-trial detention; and Hassan and Others v. France, nos. 46695/10 and 54588/10, § 89, 4 December 2014, in which the applicants had already been detained for long periods before being taken into police custody).\n\n79.  The review must be automatic and not depend on the application of the detained person; in this respect it must be distinguished from Article 5 § 4, which gives a detained person the right to apply for release. The automatic nature of the review is necessary to fulfil the purpose of that paragraph, as a person subjected to ill-treatment might be incapable of lodging an application asking for a judge to review their detention; the same might also be true of other vulnerable categories of arrested persons, such as the mentally frail or those who do not speak the language of the judicial officer (see Aquilina, cited above, § 49).\n\n80.  Since Article 5 § 1 (c) forms a whole with Article 5 § 3, “competent legal authority” in paragraph 1 (c) is a synonym, of abbreviated form, for “judge or other officer authorised by law to exercise judicial power” in paragraph 3 (see, among other authorities, Lawless v. Ireland (no. 3), 1 July 1961, p. 27, Series A no. 3, and Schiesser, cited above, § 29).\n\n81.  The judicial officer must offer the requisite guarantees of independence from the executive and the parties, which precludes his or her subsequent intervention in criminal proceedings on behalf of the prosecuting authority, and he or she must have the power to order release, after hearing the individual and reviewing the lawfulness of, and justification for, the arrest and detention (see, among many other authorities, Assenov and Others v. Bulgaria, 28 October 1998, §§ 146 and 149, Reports of Judgments and Decisions 1998-VIII). As regards the scope of that review, the formulation which has been the basis of the Court’s long-established case-law dates back to the early Schiesser case (cited above, § 31):\n\n“In addition, under Article 5 § 3, there is both a procedural and a substantive requirement. The procedural requirement places the ‘officer’ under the obligation of hearing himself the individual brought before him ...; the substantive requirement imposes on him the obligations of reviewing the circumstances militating for or against detention, of deciding, by reference to legal criteria, whether there are reasons to justify detention and of ordering release if there are no such reasons ...”\n\n82.  In other words, “Article 5 § 3 requires the judicial officer to consider the merits of the detention” (see T.W. v. Malta, § 41, and Aquilina, § 47, both cited above).\n\n83.  The initial automatic review of arrest and detention accordingly must be capable of examining lawfulness issues and whether or not there is a reasonable suspicion that the arrested person has committed an offence; in other words, whether detention falls within the permitted exceptions set out in Article 5 § 1 (c). When the detention does not, or is unlawful, the judicial officer must then have the power to release (see McKay, cited above, § 40).\n\n84.  However, an examination of the relevant case-law gives no ground for concluding that the review must, as a matter of automatic obligation, cover the release of the applicant pending trial, with or without conditions, for reasons aside from the lawfulness of the detention or the existence of reasonable suspicion that the applicant has committed a criminal offence. There is nothing therefore to suggest that, when referring in Schiesser, cited above, to “the circumstances militating for or against detention”, the Court was doing more than indicating that the judicial officer had to have the power to review the lawfulness of the arrest and detention under domestic law and its compliance with the requirements of Article 5 § 1 (c) (see McKay, cited above, § 36).\n\n85.  The Court has noted on several occasions that the investigation of terrorist offences undoubtedly presents the authorities with special problems (see Brogan and Others, cited above, § 61; Murray v. the United Kingdom, 28 October 1994, § 58, Series A no. 300-A; and Aksoy v. Turkey, 18 December 1996, § 78, Reports 1996-VI). In Brogan and Others (cited above, § 61), the Court specifically acknowledged that “[t]he difficulties ... of judicial control over decisions to arrest and detain suspected terrorists may affect the manner of implementation of Article 5 § 3, for example in calling for appropriate procedural precautions in view of the nature of the suspected offences”. This does not mean, however, that the investigating authorities have “carte blanche” under Article 5 to arrest suspects for questioning, free from effective control by the domestic courts and, ultimately, by the Convention supervisory institutions, whenever they choose to assert that terrorism is involved (see Öcalan v. Turkey [GC], no. 46221/99, § 104, ECHR 2005IV).\n\n86.  The presumption is in favour of release. As established in Neumeister v. Austria (27 June 1968, p. 37, § 4, Series A no. 8), the second limb of Article 5 § 3 does not give judicial authorities a choice between either bringing an accused to trial within a reasonable time or granting him or her provisional release pending trial. Until conviction, he or she must be presumed innocent, and the purpose of the provision under consideration is essentially to require his or her provisional release once his or her continuing detention ceases to be reasonable.\n\n87.  Continued detention therefore can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty laid down in Article 5 of the Convention (see, among other authorities, Kudła v. Poland [GC], no. 30210/96, §§ 110 et seq., ECHR 2000XI).\n\n88.  The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but with the lapse of time this will no longer be enough to justify continued detention. The Court has not attempted to translate this concept into a fixed number of days, weeks, months or years, or into various periods depending on the seriousness of the offence (see Stögmüller v. Austria, 10 November 1969, p. 39, § 4, Series A no. 9). Once the existence of “reasonable suspicion” is no longer enough, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. In particular, they must determine whether such grounds were “relevant” and “sufficient”, and whether the national authorities displayed “special diligence” in the conduct of the proceedings (see, among other authorities, Letellier v. France, 26 June 1991, § 35, Series A no. 207, and Yağcı and Sargın v. Turkey, 8 June 1995, § 50, Series A no. 319A).\n\n89.  The Court’s case-law has not yet had occasion to consider the very early stage of pre-trial detention in this context, presumably as, in the great majority of cases, the existence of suspicion provides a sufficient ground for detention and any unavailability of bail has not been seriously challengeable. It is not in doubt, however, that there must exist the opportunity for judicial consideration of release pending trial as even at this stage there will be cases where the nature of the offence or the personal circumstances of the suspected offender are such as to render detention unreasonable, or unsupported by relevant or sufficient grounds. There is no express requirement of “promptness” as in the first sentence of paragraph 3 of Article 5. However, such consideration, whether on application by the applicant or by the judge of his or her own motion, must take place with due expedition, in order to keep any unjustified deprivation of liberty to an acceptable minimum (see McKay, cited above, § 46).\n\n90.  In order to ensure that the right guaranteed is practical and effective, not theoretical and illusory, it is not only good practice, but highly desirable in order to minimise delay, that the judicial officer who conducts the first automatic review of lawfulness and the existence of a ground for detention also has the competence to consider release on bail. It is not, however, a requirement of the Convention and there is no reason in principle why the issues cannot be dealt with by two judicial officers, within the requisite time frame. In any event, as a matter of interpretation, it cannot be required that the examination of bail take place with any more speed than is demanded of the first automatic review, which the Court has identified as being a maximum of four days (see Brogan and Others, cited above).\n\n91.  Although, as noted above (see paragraph 80), the “competent legal authority” in paragraph 1 (c) of Article 5 § 3 is to be taken as a synonym of the “judge or other officer authorised by law to exercise judicial power” in paragraph 3, it does not follow that the judicial bodies carrying out the various judicial functions contemplated by the two provisions must necessarily be identical. On the contrary, in its case-law the Court has repeatedly stressed that the specific purpose of the first limb of Article 5 § 3 is limited to ensuring that a detained person is brought promptly before a judicial authority with the power to assess the lawfulness of the arrest, to review the merits of the detention, and to order release if continued detention would be unlawful. Where this is the case, the Court has found the requirements imposed by this first part of Article 5 § 3 to be satisfied. Accordingly, it considers that the correct question in the present case is not whether the applicants should have been brought before the Magistrates’ Court, the judicial authority in Northern Ireland before which an accused is to be produced on a first appearance following a criminal charge, but whether they were in fact brought before a judge or other officer satisfying the requirements of the first limb of Article 5 § 3 of the Convention in relation to an initial deprivation of liberty of the kind covered by Article 5 § 1 (c).\n\n92.  Before addressing this question, the Court observes that during their detention the applicants were brought twice before a specially designated County Court Judge: forty-eight hours after their arrest, when the DPP made applications for warrants of further detention under paragraph 29 of Schedule 8, and five days later, when the DPP made applications under paragraph 36 of Schedule 8 for extensions to those warrants (see paragraphs 6-8 and 33 above). Although it was the paragraph 36 order which the applicants subsequently challenged by way of judicial review, the High Court held that paragraph 32, which sets out the grounds for granting a warrant of further detention, had to be interpreted in conformity with Article 5 § 3 of the Convention (see paragraphs 19 and 21 above). The Court will therefore proceed on the basis that there is no difference in the competency of the judge under paragraph 29 and the judge under paragraph 36.\n\n93.  With regard to the requirement of “promptness”, the Court notes that in the present case the applicants were adults who were brought before a judge within forty-eight hours of their arrest on suspicion of having committed a serious terrorism-related crime. Bearing in mind the principles set out at paragraphs 77 and 78 above, the Court accepts that they were brought “promptly” before the judge.\n\n94.  The second requirement of Article 5 § 3 is that the first appearance of the detained person before the judicial officer should be automatic. In the present case the applicants have not sought to argue the contrary. Police officers were required by paragraph 29 of Schedule 8 to the 2000 Act to apply to the County Court Judge to extend the initial period of detention beyond forty-eight hours (see paragraph 32 above); the applicants could not, therefore, have been detained any longer than forty-eight hours without first appearing before a judge.\n\n95.  Thirdly, the Court has repeatedly held that the judicial officer in Article 5 § 3 of the Convention must offer the requisite guarantees of independence from the executive and the parties; he or she must be able to review the lawfulness of, and justification for, the arrest and detention (to include a review of the circumstances militating for or against detention in order to decide whether there were reasons to justify detention); and, if there were insufficient reasons to justify detention, he or she must have the power to order release.\n\n96.  It is common ground that the County Court Judge was independent. Therefore, the two principal questions for the Court to address are, firstly, whether she had adequate jurisdiction to review the lawfulness of the applicants’ detention; and, secondly, whether she had the necessary power to order their release.\n\n97.  Although the High Court held that paragraph 32 had to be interpreted in conformity with Article 5 § 3 (see paragraphs 19 and 21 above), the applicants take issue with its subsequent suggestion that a review of the lawfulness of the arrest need not involve a detailed analysis of the basis for the decision to arrest and should reflect the constraints that necessarily apply in many arrests for terrorist offences.\n\n98.  The Court observes that the guidance given by the High Court was given in the abstract and, as such, it has not had the benefit of seeing how it would be applied by the domestic courts in practice. Nevertheless, in principle, the Court sees nothing in the ruling of the High Court which contradicts its own jurisprudence. In particular, it notes that in previous cases it has stopped short of defining the exact content and/or form of analysis required by Article 5 § 3; rather, it has simply stated that the judicial officer must be able to review the lawfulness of, and the justification for, the arrest and detention, review the circumstances militating for or against detention, including the existence of reasonable suspicion, and decide whether there are reasons justifying detention. Moreover, as noted above (see paragraph 85), while it has stated that the authorities do not have “carte blanche” when investigating terrorist offences, it has specifically acknowledged the special problems that the investigation of such offences often present to the authorities. Therefore, on the evidence before it, the Court cannot agree with the applicants that the review foreseen by the High Court as being inherent in the impugned legislation would necessarily fall short of the standard required by Article 5 § 3 of the Convention.\n\n99.  In the present case the High Court, while quashing the County Court Judge’s extensions of the detention on account of her failure to address the initial lawfulness of the arrest, was satisfied that the County Court Judge had not failed to have regard to the need for detention as the basis for the grant of the warrant and that her decision was adequately reasoned (see paragraphs 19-20 above).\n\n100.  With regard to the question of whether the County Court Judge had the power to order release in the event of an unlawful arrest or detention, the Court recalls that, while there is no such express power stated in the 2000 Act, in the present case the High Court accepted that since the provisions of that Act had to be read in conformity with the requirements of Article 5 § 3 of the Convention, the County Court Judge must have power to order release if there was no lawful basis for the initial arrest or continued detention (see paragraphs 19 and 21 above). In addition, it notes that where a warrant (or a further warrant) is either not sought or not granted, the person must be released as there is no longer any legal basis for continued detention.\n\n101.  The applicants have suggested that the County Court Judge should also have had the power to order conditional release. However, as noted at paragraph 84 above, there is no support in the Court’s case-law for the applicants’ assertion that the judicial authority conducting the first review of the deprivation of liberty should have had power to order conditional release. The Court stated in McKay (cited above, § 47) that it would be “highly desirable” for the judicial officer conducting the first automatic review of lawfulness to also have competence to consider release on bail for reasons other than the lawfulness of the detention or the existence of a reasonable suspicion that the applicant had committed a criminal offence, but stressed that this was not a requirement of the Convention and there was no reason in principle why the issues could not be dealt with by two judicial officers.\n\n102.  Following the first review of their detention the applicants remained in police custody for a further ten days. Although they were brought for a second time before a County Court Judge after they had been in detention for seven days, it is accepted that at no time during their detention were they brought before a judge with the power to order conditional release. The applicants have therefore complained that in so far as the scheme under Schedule 8 to the 2000 Act permitted their detention for a maximum period of twenty-eight days without charge, during which no consideration had to be given to their conditional release, it was not compatible with Article 5 § 3 of the Convention.\n\n103.  The Court cannot consider the scheme under Schedule 8 in abstracto; rather, it must confine itself to the facts of the case before it. Therefore, although the applicants could have been detained for a maximum of twenty-eight days, it cannot overlook the fact that in the present case they were released after twelve days. Moreover, it does not consider the absence of any eventual charge to be material; nothing in Article 5 § 3 suggests that detainees must be charged with a criminal offence in order for their detention to be compatible with that provision (see Brogan and Others, cited above, § 53).\n\n104.  As noted at paragraph 75 above, Article 5 § 3 is structurally concerned with two separate matters which confer distinct rights and which are not temporally linked: the early stages following an arrest on suspicion of having committed a criminal offence, and the period pending any trial before a criminal court, during which the individual may be detained or released with or without conditions (see T.W. v. Malta, § 49; McKay, § 31; and Medvedyev and Others, § 119, all cited above). During the initial stage under the first limb of Article 5 § 3, the detainee’s detention may be justified by the existence, on its own, of a “reasonable suspicion” that he had committed a criminal offence. However, the persistence of suspicion will not suffice to justify, after a certain lapse of time, the prolongation of the detention, although the Court has not attempted to translate this concept into a fixed number of days, weeks, months or years, or into various periods depending on the seriousness of the offence (see Stögmüller, cited above, p. 39, § 4). It therefore falls to the Court in the present case to decide whether the applicants were at all times detained under the first limb of Article 5 § 3, or whether at some point their continued detention could no longer be justified by the existence of “reasonable suspicion”.\n\n105.  In the present case the applicants were detained for twelve days, which was a relatively short period of time. As such, the Court considers that they were at all times in “the early stages” of the deprivation of liberty, when their detention could be justified by the existence of a reasonable suspicion that they had committed a criminal offence; it was not, therefore, necessary that any consideration be given to their conditional release during this period.\n\n106.  In any case, the Court notes that during the period of their detention there were a number of safeguards in place to protect the applicants against arbitrary detention. Firstly, under the Schedule 8 scheme the judge could only extend detention for a maximum of seven days and the overall period could not exceed twenty-eight days. Before granting any extension the judge had to be satisfied that there were reasonable grounds for believing that further detention was necessary and that the investigation was being conducted diligently and expeditiously (see paragraph 36 above). Furthermore, following the ruling of the High Court, the judge also had to be satisfied that the arrest was lawful and consider the merits of detention. Although in certain cases detainees and/or their representatives could be excluded from the hearings, in the present case the first applicant gave evidence on oath during the first review and arguments from both applicants were heard during the second reviews (see paragraph 8 above). Finally, the applicants were able to challenge their continued detention by way of judicial review.\n\n107.  Stricter safeguards were in place for any extension that would prolong detention beyond fourteen days; however, that was not necessary in the present case as the applicants were released after twelve days.\n\n108.  In light of the factors set out above, the Court does not consider that the absence of a possibility of conditional release during the period of the applicants’ deprivation of liberty gave rise to any issues under Article 5 § 3 of the Convention.\n\n109.  The foregoing considerations are sufficient to enable the Court to conclude that the applicants’ detention under Schedule 8 to the 2000 Act did not breach Article 5 § 3 of the Convention.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\n1.  Joins the applications nos. 26289/12 and 29891/12 lodged respectively by the first and third applicants;\n\n2.  Declares the second applicant’s application (application no. 29062/12) inadmissible;\n\n3.  Declares the first and third applicants’ complaints under Article 5 § 2 of the Convention inadmissible as manifestly ill-founded;\n\n4.  Declares the first and third applicants’ complaints under Article 5 § 3 of the Convention admissible;\n\n5.  Holds that there has been no violation of Article 5 § 3 of the Convention.\n\nDone in English, and notified in writing on 12 May 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_651","text":"PROCEDURE\n\n1. The Guzzardi case was referred to the Court by the European Commission of Human Rights (\"the Commission\"). The case originated in an application against the  lodged with the Commission on 17 November 1975 under Article 25 (art. 25) of the Convention for the Protection of Human Rights and Fundamental Freedoms (\"the Convention\") by a national of that State, Mr. Michele Guzzardi, by means of a letter from his lawyer, Mr. Michele Catalano, to the Secretary-General of the Council of Europe.\n\n2. The Commission’s request, to which was attached the report provided for under Article 31 (art. 31) of the Convention, was lodged with the registry on 8 March 1979, within the period of three months laid down by Articles 32 par. 1 and 47 (art. 32-1, art. 47). The request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration made by the  recognising the compulsory jurisdiction of the Court (Article 46) (art. 46). The purpose of the Commission’s request is to obtain a decision from the Court as to whether or not the facts of the case disclose a breach by the respondent State of its obligations under Article 5 par. 1 (art. 5-1) of the Convention and, to a lesser extent, under Articles 3, 6, 8 and 9 (art. 3, art. 6, art. 8, art. 9).\n\n3. The Chamber of seven judges to be constituted included, as ex officio members, Mr. G. Balladore Pallieri, the elected judge of Italian nationality (Article 43 of the Convention) (art. 43), and Mr. G. Wiarda, the Vice-President of the Court (Rule 21 par. 3 (b) of the Rules of Court). On 30 March 1979, the Vice-President drew by lot, at the request of the President and in the presence of the Registrar, the names of the five other members, namely Sir Gerald Fitzmaurice, Mrs. D. Bindschedler-Robert, Mr. P.-H. Teitgen, Mr. G. Lagergren and Mr. E. García de EnterrÍa (Article 43 in fine of the Convention and Rule 21 par. 4) (art. 43).\n\n4. Mr. Wiarda assumed the office of President of the Chamber (Rule 21 par. 5). At a meeting held on 18 May 1979, he ascertained the views of the Agent of the Italian Government (\"the Government\") and the Delegates of the Commission regarding the procedure to be followed. Immediately thereafter, he decided that the Government should have until 7 November to file a memorial and that the Delegates should be entitled to file a memorial in reply within two months from the date of the transmission of the Government’s memorial to them by the Registrar. On 7 November, the President extended the first of these time-limits until 13 December, following requests sent by the Government to the Registrar on 23 October and then, in different terms, on 5 November; he reduced the second time-limit to five weeks.\n\nThe Government’s memorial was received at the registry on 13 December 1979. On 17 December, the Secretary to the Commission advised the Registrar that the Delegates would present their observations at the hearings.\n\n5. After consulting, through the Registrar, the Agent of the Government and the Delegates of the Commission, the President directed on 18 December that the oral hearings should open on 29 January 1980.\n\nOn 11 January, the President instructed the Registrar to obtain from the Commission a certain number of documents. They were produced on 15 and 23 January.\n\n6. The oral hearings were held in public at the , , on 29 January. Immediately before their opening, the Chamber had held a short preparatory meeting; it had authorised the representative of the Government to use the Italian language (Rule 27 par. 2).\n\nThere appeared before the Court:\n\n- for the Government:\n\n- for the Commission:\n\nThe Court heard addresses by those appearing and their replies to questions put by it and by two of its members. It requested them to produce several documents; the majority of these, and some other documents, were supplied by the Commission and the Government on 29 and 30 January and on 11 April and 26 June.\n\n7. At the close of deliberations held on 30 and 31 January, the Chamber, considering that the case raised serious questions affecting the interpretation of the Convention, decided under Rule 48 to relinquish jurisdiction forthwith in favour of the plenary Court.\n\nHaving obtained, through the Registrar, the agreement of the Agent of the Government and the concurring opinion of the Delegates of the Commission, the Court decided on 29 April that the proceedings would continue without further oral hearings (Rule 26).\n\n8. Two documents which the President, Mr. Wiarda, had requested from the Commission on 31 January were supplied by its secretariat to the registry on 4 February. On 11 April and 21 May, respectively, the registry received the original Italian text and the French version - the official version for the Court (Rule 27 par. 1) - of a memorial filed by the Government to support certain of the documents which they had supplied (see paragraph 6 in fine above). On 12 May, the Secretary to the Commission transmitted to the Registrar two notes by the applicant’s lawyer, dated 11 January and 29 April; the second note contained comments on the aforesaid memorial and also referred back to the first note.\n\nAS TO THE FACTS\n\nI. PARTICULAR FACTS OF THE CASE\n\nA. The criminal proceedings taken against Mr. Guzzardi\n\n9. Mr. Guzzardi, an Italian citizen born in 1942, had left  () in 1966 to take up residence in  (in the ). He was arrested on 8 February 1973, placed in detention on remand in  and then charged with conspiracy and being an accomplice to the abduction on 18 December 1972 of a businessman; the latter had been freed by his kidnappers on 7 February 1973 after payment of a substantial ransom.\n\nThe applicant was acquitted on 13 November 1976 by the  (Tribunale di Milano) for lack of sufficient evidence, but convicted on 19 December 1979 by the Milan Court of Appeal which sentenced him to eighteen years’ imprisonment and a fine.\n\nThe criminal proceedings in question are not in issue, at least not in direct issue, in the present case.\n\n10. Under Article 272 (first paragraph, item 2) of the Italian Code of Criminal Procedure, the applicant’s detention on remand – during which he married his fiancée by whom he shortly afterwards had a son - could not continue for more than two years; it thus had to terminate on 8 February 1975 at the latest.\n\n11. On that date, Mr. Guzzardi was removed from  gaol and taken under police escort to the , which lies off Sardinia.\n\nB. The measure of \"special supervision\" applied to the applicant\n\n12. On 23 December 1974, the Milan Chief of Police (questore) had in fact sent to the Milan State prosecutor (procuratore della Repubblica) a report recommending that Mr. Guzzardi be subjected to the measure of \"special supervision\" provided for in section 3 of Act no. 1423 of 27 December 1956 (\"the 1956 Act\" - see paragraphs 45-51 below) and section 2 of Act no. 575 of 31 May 1965 (\"the 1965 Act\" - see paragraph 52 below). The report referred to indications that although the applicant claimed to be working in the building trade, he was actually engaged in illegal activities and belonged to a band (cosca) of mafiosi; it listed four convictions pronounced against him in 1965, 1967, 1969 and 1972 and described him as \"one of the most dangerous\" of individuals.\n\nFollowing an application made in accordance with this recommendation by the State prosecutor on 14 January 1975, the  (2nd Criminal Chamber) directed on 30 January that Mr. Guzzardi be placed under special supervision for three years, the measure to be combined with the obligation to reside \"in the district (comune) of the island of Asinara\", a locality that had been designated by the Ministry of the Interior. In its decision the Court further directed that the applicant should:\n\n- start looking for work within a month, establish his residence in the prescribed locality, inform the supervisory authorities immediately of his address and not leave the place fixed without first notifying them;\n\n- report to the supervisory authorities twice a day and whenever called upon to do so;\n\n- lead an honest and law-abiding life and not give cause for suspicion;\n\n- not associate with persons convicted of criminal offences and subjected to preventive or security measures;\n\n- not return to his residence later than 10 p.m. and not go out before 7 a.m., except in case of necessity and after having given notice in due time to supervisory authorities;\n\n- not keep or carry any arms;\n\n- not frequent bars or night-clubs and not take part in public meetings;\n\n- inform the supervisory authorities in advance of the telephone number and name of the person telephoned or telephoning each time he wished to make or receive a long-distance call.\n\n13. Mr. Guzzardi appealed to the Milan Court of Appeal; his appeal had no suspensive effect (section 4, sixth paragraph, of the 1956 Act) and so did not prevent the contested decision from being put into effect.\n\nIn a memorial of 10 February 1975, his lawyer, Mr. Catalano, challenged the decision on a number of grounds, alleging that it was invalid and unjustified. He submitted, in particular, that on Asinara his client could neither find employment nor live together with his wife and child; there was thus an inconsistency between the reasoning and the operative provisions of the decision of 30 January. In addition, the decision referred to a non-existent district since in point of fact the island was no more than a sub-division of the district of Porto Torres (Sardinia). Mr. Catalano requested the Court of Appeal, in the first place, to quash the decision in its entirety; in the alternative, to limit it to special supervision without an order for compulsory residence; in the further alternative, to designate a district in Northern Italy where the applicant might find work, live with his family, meet with his lawyer in order to prepare his defence in the criminal proceedings and attend, as and when necessary, an urological clinic to receive the treatment required by his state of health.\n\n14. On 12 February, the Court of Appeal (1st Criminal Chamber), by way of a preliminary ruling on submissions to the same effect by the public prosecutor, ordered that Mr. Guzzardi be transferred to the urological clinic of Sassari hospital (Sardinia); it also instructed its registry to seek information from the carabinieri in Sassari on the possibility of finding accommodation for three people and work on the island of Asinara.\n\nHowever, on 14 February the prosecuting authorities requested the Court of Appeal to revoke or suspend the aforesaid order. They pointed out that during his detention on remand Mr. Guzzardi had refused to submit to analyses in the University of Milan urological clinic; that experts considered that he was probably not suffering from any serious illness; that his covert intention was to use hospitalisation as a means of escape; that section 3 of the 1956 Act did not prohibit an order for compulsory residence in a given locality within a district; that the Court of Cassation had so held in two judgments, one of which concerned precisely the island of Asinara, which was, besides, \"potentially\" one of the best places in Italy for tourism.\n\nThe Court of Appeal consequently suspended its order on the same day and directed that further hearings on the matter be held on 12 March 1975.\n\n15. The officer commanding the criminal investigation department of the  carabinieri wrote, also on 14 February 1975, to the Court of appeal with the following information which had been supplied by the  carabinieri:\n\n- for those subjected to compulsory residence on Asinara, there were only two flats suitable for accommodating a family; they were occupied by the families in turn for periods of between thirty and sixty days;\n\n- the island offered no possibility of permanent employment; there was just one firm which employed two residents in turn for short spaces of time;\n\n- the police stationed on Asinara were in a position to effect the requisite supervision.\n\n16. On 17 and 21 February 1975, Mr. Catalano filed memorials with the Court of Appeal challenging the \"fanciful\" statements of the prosecuting authorities and requesting that further enquiries be undertaken in the shape of an investigation on the spot (sopral-luogo). In his view, his client was physically and mentally a prisoner (carcerato) on Asinara; he was vegetating there in conditions worse than those of his detention on remand. The applicant himself, in a letter of 20 February, described the island as a \"veritable concentration camp\".\n\n17. On 12 March 1975, the Milan Court of Appeal (1st Chamber) dismissed the appeal and confirmed the decision of 30 January. As regards Mr. Guzzardi’s health and the absence of violation of section 3 of the 1956 Act, the Court of Appeal relied in substance on the arguments that had already been invoked by the prosecuting authorities on 14 February (see paragraph 14 above, second sub-paragraph). It found no good reason for regarding Asinara as an unsuitable locality for compulsory residence. It emphasised that the contested measure was designed to separate the individual from his milieu and render his contacts with it more difficult. This requirement took precedence over other problems, such as the absence of regular employment and of adequate accommodation for a family; moreover, at the time of his marriage the applicant could not have hoped to live with his wife and son since he was then in detention on remand and under a serious charge. His criminal record, the most disquieting criminal activities in which he engaged under the cloak of honesty, his violent character and his exceptional cunning showed that he presented a marked danger to society (spiccata pericolosità sociale). Supervision of such an individual was sufficiently important to justify the curtailment of other individual legal interests taken into account by the law (l’affievolimento di alter situazioni giuridiche soggettive che la legge prende in considerazione).\n\n18. Mr. Guzzardi appealed to the Court of Cassation. In a supplementary memorial of 3 April 1975, his lawyer put forward three grounds of appeal pursuant to Articles 475 par. 3 and 524 par. 1 and 3 of the Code of Criminal Procedure:\n\n(i) It was not permissible under section 3 of the 1956 Act to make an order for a person’s compulsory residence - which amounted to subjecting him to a \"judicial sanction\" limiting his private and family liberty (libertà privata e famigliare) - on any scrap of land (qualunque pezzo di terra), such as Asinara, regardless of its area (quali che siano i metri quadrati entro cui si deve osservare il soggiorno), rather than on the whole of the territory of a district. The contrary interpretation adopted by the Court of Appeal was \"restrictive and aberrant\" and disregarded a man’s right to private and family life (alla vita privata e famigliare) which was guaranteed by the European Convention and the Italian Constitution. If the Court of Cassation were nevertheless inclined to follow that interpretation, it should refer the matter to the .\n\n(ii) The Court of Appeal’s statement that Mr. Guzzardi did not need any particular medical treatment was a misrepresentation of the facts (travisamento dei fatti).\n\nThe law did not permit any curtailment of legal interests which it protected, conferred and made mandatory (non consent[iva] veruno affievolimento di situazioni giuridiche tutelate, volute e pretese proprio dalla legge). It followed that the Court of Appeal had applied the law incorrectly (errata applicazione della legge) when it held that the necessity for special supervision justified such curtailment.\n\n(iii) Finally, the reasoning was contradictory (contraddittorietà) in various respects. Thus, the Court of Appeal had - without an investigation on the spot - deemed Asinara to be suitable for the execution of the measure complained of although the applicant would not there be able to comply with the directives contained in the ’s decision.\n\nMr. Catalano therefore requested the Court of Cassation to quash the judgment of 12 March 1975 after transmitting the file to the Constitutional Court for the purpose of obtaining a ruling that section 3 of the 1956 Act, as interpreted by the Court of Appeal, was incompatible with Article 13, fourth paragraph, and Article 27, second and third paragraphs, of the Constitution.\n\nArticle 13 concerns \"personal liberty\": the fourth paragraph provides that \"the infliction of any physical or mental violence on persons subjected to any form of restriction on their liberty shall be a punishable offence\". The second paragraph of Article 27 enshrines the presumption of innocence; the third paragraph stipulates that \"punishment may not take the form of treatment repugnant to feelings of humanity and must be aimed at re-education of the convicted person\".\n\n19. The Court of Cassation gave judgment on 6 October 1975. It accepted the submissions of the public prosecutor attached to the Court of Cassation and dismissed the appeal as being devoid of foundation.\n\nAs regards the first ground of appeal, the Court of Cassation pointed out that its settled case-law established that under certain conditions, which were satisfied in the present case, an order for compulsory residence could refer to a given locality within a district. Likewise, the \"curtailment\" of, and the \"undoubted limitations\" on, \"various rights of the individual concerned\" stemmed directly from the application of measures which had on numerous occasions been recognised to be in conformity with the Constitution, for example in a judgment delivered by the Constitutional Court on 15 June 1972.\n\nAs regards the second ground, the Court of Cassation held that in the particular circumstances the Court of Appeal had been right in turning down the argument concerning Mr. Guzzardi’s state of health.\n\nAs regards the third ground, the Court of Cassation perceived no contradiction since the intended object was to remove the applicant from  and to separate him from the members of the mafia who carried on their activities there without hindrance.\n\nThe Court also declared the question of constitutionality raised by the applicant to be manifestly ill-founded. There again, the public prosecutor had cited the above-mentioned judgment of 15 June 1972; he had in addition referred to the administrative nature of the decision designating the locality (natura amministrativa della determinazione  luogo).\n\n20. On 14 November 1975, Mr. Catalano made two applications to the .\n\nThe first application was addressed to the President of the 2nd Criminal Chamber in his capacity of judge supervising the execution of sentences (giudice di sorveglianza). It requested him to cancel (abolire) the compulsory residence order, maintaining that if the President, or someone designated by him for the purpose, were to visit Asinara, he would be left in no doubt that the obligation to live there was contrary to the law, the legislation, justice and individual human rights.\n\nThe second application invited the 2nd Chamber to substitute for Asinara a district where Mr. Guzzardi could work, not come into contact with suspects (indiziati) and live with his wife and son who had been obliged to leave the island since their permit to reside there had expired.\n\nThe lawyer referred to an Order of 27 October 1975 concerning an appeal by one Ignazio Pullarà; the Milan Court of Appeal had stated therein that it was for the judge supervising the execution of sentence to make an appraisal of living conditions on Asinara.\n\nThe 2nd Criminal Chamber gave its decision on 20 January 1976. First of all, it affirmed that the implementation of preventive measures was a matter within the competence of the police authorities (pubblica sicurezza) and not of the judge supervising the execution of sentences. It added that exigencies of the protection of society justified the special form of isolation undergone by those sent to Asinara, namely individuals who were extremely dangerous. However, those exigencies necessitated neither separating those concerned from their families nor depriving them of regular employment. Accordingly, the , whilst rejecting both applications, directed that the text of its decision be communicated to the Minister of the Interior and to the  questore.\n\n21. On 21 July 1976, the  questore requested the  to order Mr. Guzzardi’s transfer to the district of Force, in the , on the Italian mainland. The reason advanced was that the simultaneous presence on Asinara of the applicant and of his co-accused (coimputato), Ignazio Pullarà, who was also in the process of \"serving\" (scontare) a compulsory residence measure, might have unfortunate repercussions on the ensuing stages of the criminal proceedings and, above all, on security on the island.\n\nThe  (vacation Chamber) gave a decision to that effect, and for the same reasons, on the following day; it specified that the remainder of its decision of 30 January 1975 (see paragraph 12 above) was to continue in force.\n\n22. Mr. Guzzardi had to remain at Force until 8 February 1978, on which date the three-year period fixed by the last-mentioned decision expired.\n\nC. The applicant’s stay on the\n\n1. Description of the locality\n\n23. Asinara lies off the north-west tip of Sardinia. The island, which is long and narrow with a rugged terrain, measures about 20 km. at its greatest length. Whilst the island as a whole covers 50 sq. km., the area reserved for persons in compulsory residence represented a fraction of not more than 2.5 sq. km. This area was bordered by the sea, roads and a cemetery; there was no fence to mark out the perimeter. About nine-tenths of the island was occupied by a prison.\n\n24. Administratively, the island forms an integral part of the district of Porto Torres, a small Sardinian coastal town one hour away by boat. The southernmost point of the island can also be reached in fifteen minutes if one embarks at Stintino, to the north of Porto Torres. Sea communications are interrupted during very bad weather.\n\n25. The principal settlement on the island, Cala d’Oliva, houses nearly all of the island’s permanent population - approximately two hundred people; this population comprises the prison staff and their families, schoolteachers, a priest, the post office employees and a few tradesmen.\n\nThe persons in compulsory residence were lodged in the hamlet of Cala Reale which consists mainly of a former medical establishment and certain other buildings including a school, a chapel and a carabinieri station where the applicant had to report twice a day (see paragraph 12 above).\n\n2. Possibilities of movement\n\n26. The Government maintained before the Commission that one could circulate at will within Cala Reale. According to Mr. Guzzardi on the other hand, an instruction issued by the officer in charge of the carabinieri restricted movement for persons in compulsory residence to a radius of about 800 metres.\n\n27. Persons in compulsory residence had no access to the prison zone or to Cala d’Oliva. The inhabitants of the latter village could, in contrast, visit Cala Reale whenever they pleased, whereas outsiders - such as tourists - were in principle not allowed to go there.\n\n28. Persons in compulsory residence could apply for authorisation to visit Sardinia or the Italian mainland if they had good reasons, such as medical treatment, family grounds or compliance with an order of the judicial authorities.\n\nThe Government stated that authorisation was \"normally\" given on production of the appropriate documents of following a brief police enquiry, but according to the applicant it was very difficult to obtain. Even in the case of urgent medical treatment, so he contended, there was a long delay, sometimes as much as a whole month. In any event, such trips were made under the strict supervision of the carabinieri.\n\n29. There existed the additional possibility of going in turn to Porto Torres to buy provisions, likewise after authorisation and under supervision. The frequency of the crossings as well as the number of participants were the subject of dispute. The Government spoke of four persons per week, whereas for Mr. Guzzardi it was just one; he claimed that he had had to wait six months before receiving the necessary permission.\n\n3. Accommodation\n\n30. Most of the persons in compulsory residence were housed in two buildings belonging to the former medical establishment; these buildings were fairly large and consisted principally, so it seems, of bedrooms with one or two beds.\n\nA third building, a small construction known as the \"Pagodina\", was allocated to \"residents\" (soggiornanti) who were accompanied by their families. The \"Pagodina\" contained two flats each comprising a bedroom and a kitchen.\n\nThe applicant lived in one of the main buildings or in the \"Pagodina\", depending upon whether he was alone or with his family. He could not go out between 10 p.m. and 7 a.m., except in case of necessity and after having notified the authorities in due time (see paragraph 12 above).\n\n31. These various buildings were somewhat dilapidated. According to Mr. Guzzardi, their state of disrepair was such as to render them almost uninhabitable. For the Government, on the contrary, the condition of the buildings was \"acceptable\" up to the time when some of their occupants committed acts of vandalism, an occurrence not denied by the applicant.\n\n4. Medical assistance, health and sanitary conditions\n\n32. The medical service at Cala Reale was provided by the prison doctor. He lived at Cala d’Oliva but could be reached by telephone and be on hand within the space of about thirty minutes.\n\nBefore the Commission, the Government submitted that there was a dispensary at Cala Reale, with a male nurse in attendance; the applicant disputed the presence of any nurse.\n\nWhen persons in compulsory residence needed to be hospitalised or to consult a specialist, they were sent to the State hospital and university clinics in . Such journeys required authorisation from the competent court - the  in the applicant’s case (see also paragraph 28 above).\n\n33. The Government medical officer for  province was responsible for supervising health and sanitary conditions at Cala Reale. While the Government considered the level of the conditions to be good, in Mr. Guzzardi’s view they left much to be desired. In particular, he complained of the lack of any arrangements for removing rubbish (see also paragraph 42 below).\n\n5. Presence of the family\n\n34. Persons in compulsory residence could apply to the administrative authority for permission to have their nearest relations join them on the island and stay with them either in the \"Pagodina\" (see paragraph 30 above) or, failing that, in the rather confined bedroom - 4 metres by 4 metres - allocated to each of them.\n\nThe Government stressed before the Commission that the shortage of water on Asinara, which had neither a spring nor an aqueduct and was supplied periodically by navy tankers, made is necessary to limit the number of persons authorised to stay there.\n\n35. Initially, the applicant’s wife and son and also, from time to time, his parents-in-law and nephew lived together with him.\n\nOn 9 October 1975, the members of his family were ordered to leave the island; their residence permits had expired on 28 August and he had not applied for their renewal. They were, however, able to return at the beginning of December and stayed with him until his departure for Force (see paragraph 21 above).\n\n6. Possibilities of attending worship\n\n36. There is a chapel at Cala Real. According to Mr. Guzzardi, it remained closed except for religious services at Christmas and Easter. The Government submitted in reply that the religious authorities - there was a priest living at Cala d’Oliva – would willingly have opened the chapel for services at any time had they been asked to do so, but that no one had ever made such a request.\n\n37. The applicant also claimed that a mass was celebrated every Sunday by the prison chaplain, but on premises situated outside the area in which persons in compulsory residence could move freely (see paragraph 26 above).\n\n7. Possibilities of obtaining work\n\n38. For persons in compulsory residence, the prospects of employment were limited to the openings offered by a firm at Cala Reale, Massidda-Costruzioni edili, which were somewhat modest – four persons in 1975 and eleven in 1976. The Government submitted that Mr. Guzzardi had shown no interest at all in this possible source of work. Mr Guzzardi did, however, produce a certificate from Massidda showing that he had worked for the company from October 1975 to May 1976 and had subsequently made repeated and pressing requests for employment, but without success.\n\n8. Possibilities for cultural and recreational activities\n\n39. Persons in compulsory residence could obtain books and newspapers at Porto Torres, either themselves or through other people who went there. They had the use of one television set according to the applicant, several sets according to the Government. The existence of communal canteen and recreation facilities was also the subject of dispute before the Commission.\n\n9. Communications with the outside\n\n40. Mr. Guzzardi had to give to the authorities prior notice of the name and number of the person telephoned or telephoning whenever he wished to make or receive a call (see paragraph 12 above). On the other hand, his correspondence in the form of letters and telegrams was not monitored.\n\n10. Representations made by the applicant with regard to living conditions on the island\n\n41. On 11 August 1975, the applicant sent a letter to the Porto Torres pretore in which he confessed that he had not discharged certain of the obligations imposed on him by the  on 30 January (see paragraph 12 above), namely seeking employment, looking for a fixed residence and not associating with other \"residents\" and criminal elements. He stated that he had tried in vain to comply with these directives and that the officer in charge of the carabinieri on Asinara had never raised any objection despite section 12 of Act no. 1423 of 27 December 1956 (see paragraph 51 below). No action was taken on his letter.\n\n42. In addition, on 9 January 1976 all the persons in compulsory residence addressed a collective protest to the  questore. They claimed (a) the allocation of a suitable house to each of them; (b) permanent access to Cala Reale by members of their families; (c) work opportunities capable of providing maintenance for them and their families, the subsidy of 45,000 or 46,500 Lire paid by the Ministry not being sufficient for the purpose; (d) the mooring at Cala Reale, instead of Porto Torres, of the boat used for transporting them; (e) the right to go individually and at least once a week to Porto Torres to purchase food supplies; (f) the reopening of the post office at Cala Reale; (g) the improvement of the health and sanitary conditions in the inhabited zones and adjoining areas; (h) on-the-spot medical assistance and the possibility of consulting specialists without delay; (i) more humane treatment from the bodies coming under the authority of the police headquarters; (j) proper upkeep of the premises; (k) installation of a second telephone.\n\nThe Government asserted that they thereupon took certain steps to satisfy some of these requests, in particular as regards items (a), (b), (d) and (f).\n\nD. Discontinuance of the use of Asinara as a place of compulsory residence\n\n43. The situation of the \"residents\" at Cala Reale was also criticised in the press. The administrative authorities investigated possible remedial measures but, in the face of the expense involved and time needed, did not pursue the matter. In consequence, the Ministry of the Interior decided in August 1977 to strike (depennare) the island out of the list of places for compulsory residence. By that date Mr. Guzzardi had been living at Force for more than a year (see paragraph 21 above); however, two of the documents filed show that his application to the Commission was not unconnected with the Ministry’s decision. The last individuals in compulsory residence left Asinara on 17 November 1977.\n\nII. THE LEGISLATION APPLIED IN THE APPLICANTS CASE\n\n44. The treatment complained of by the applicant was based on Act no. 1423 of 27 December 1956 and Act no. 575 of 31 May 1965.\n\nA. The 1956 Act\n\n45. This Act makes provision for a variety of preventive measures which can be taken against \"persons presenting a danger for security and public morality\" (misure di prevenzione nei confronti delle persone pericolose per la sicurezza e per la pubblica moralità).\n\n46. Under section 1, the Act applies to, amongst others, \"idlers\" and \"habitual vagrants who are fit for work\" (gli oziosi e i vagabondi abituali, validi al lavoro), \"anyone who is regularly and notoriously involved in illicit dealings\" (che sono abitualmente e notoriamente dediti a traffici illeciti) and individuals who, by reason of their behaviour and style of life (tenore di vita), must be considered as habitually living, even in part, on the proceeds of crime or on the rewards of complicity therein (con il favoreggiamento), or whose outward conduct gives good reason to believe that they have criminal tendencies (che, per le manifestazioni cui abbiano dato luogo, diano fondato motivo di ritenere che siano proclivi a delinquere).\n\nThe Chief of Police may send to such persons a warning (diffida) in which he will call on them to mend their ways and notify them that, if not, the measures mentioned in the subsequent sections will be put into effect.\n\nA report by the Milan Chief of Police (see paragraph 12 above) indicates that Mr. Guzzardi received such a diffida in  on 26 September 1967 that is well before the events prompting his application to the Commission.\n\n47. In the case of individuals who present a danger for public security or morality and are found elsewhere than at their place of residence, the Chief of Police may also send them back to that place and forbid them to return without prior authorisation or until after the expiry of a period not exceeding three years to the district from which they are being excluded; non-compliance with such an order will render them liable to a penalty of \"arrest\" (arresto) of between one and six months (section 2).\n\n48. If an individual presenting a danger to public security or morality has not mended his ways despite the warning, he may, under section 3, be placed under special police supervision (sorveglianza speciale della pubblica sicurezza); if need be, this may be combined either with a prohibition on residence in one or more given districts or provinces or, in the case of a particularly dangerous person (particolare pericolosità), with an order for compulsory residence in a specified district (obbligo del soggiorno in un determinato comune).\n\nOnly the Regional Court of the chief town of the province has power to order these measures; it will do so on the basis of a reasoned application by the Chief of Police to its President (section 4, first paragraph). The  must give a reasoned decision (provvedimento) in chambers within thirty days. It will first hear the public prosecutor’s department and the person concerned, the latter being entitled to submit written pleadings and to be assisted by a lawyer (section 4, second paragraph).\n\nThe prosecuting authorities and the person concerned may, within ten days, lodge an appeal which does not have suspensive effect; the Court of Appeal has to give a reasoned decision (decreto) in chambers within thirty days (section 4, fifth en sixth paragraphs). That decision may in turn and on the same conditions be the subject of a further appeal to the Court of Cassation which must give its ruling in chambers within thirty days (section 4, seventh paragraph).\n\n49. When adopting one of the measures listed in section 3, the Regional Court will specify for how long it is to remain in force - not less than one and not more than five years (section 4, fourth paragraph) - and will give directives with which the person in question must comply (section 5, first paragraph).\n\nIn the case, as here, of an individual who has been placed under special supervision because he is suspected of living on the proceeds of crime, the Regional Court will direct him to look for work within an appropriate time, to establish his residence and advise the police authorities (autorità di pubblica sicurezza) thereof and not to leave it (allontanarsi) without first informing them (section 5, second paragraph; see paragraph 12 above).\n\nIn all cases, The Regional Court will order the individual to lead an honest and law-abiding life; not to give cause for suspicion; not to associate with persons convicted of criminal offences and subjected to preventive or security measures; not to return to his residence at night after, and not to go out in the morning before, a specified time, except in case of necessity and after having given notice in due time to the authorities; not to keep or carry any arms; not to frequent bars or night-clubs; not to take part in public meetings, etc. (section 5, third paragraph; see also the fourth paragraph of that section and paragraph 12 above).\n\nAnyone who, like Mr. Guzzardi is subject to a compulsory residence order may also be directed not to leave (andare lontano) his house without notifying the supervisory authorities (autorità preposta alla sorveglianza) and to report to them on stated days and whenever called upon to do so (section 5, fifth paragraph; see paragraph 12 above). The person concerned will be issued with a card which he must carry with him and show to the police whenever so requested (section 5, sixth paragraph).\n\n50. The Chief of Police is responsible for the implementation of these various measures (section 7, first paragraph). On application by the person concerned and after the police have been heard, the decision ordering the measures may be revoked or varied by the authority (dall’organo) which issued it, insofar as the grounds therefore no longer exist (section 7, second paragraph).\n\n51. Any person who fails to abide by the obligations attaching to special supervision or by those specified in a compulsory residence order is liable to a penalty of \"arrest\" of three months to one year or six months to two years, respectively (section 9, first and second paragraphs, and section 12, first paragraph).\n\nB. The 1965 Act\n\n52. The 1965 Act completes this panoply of legal texts with provisions directed against the mafia (disposizioni contro la mafia). According to section 1, the Act is applicable to persons - such as Mr. Guzzardi - whom there are strong reasons to suspect of belonging to mafia-type associations (indiziati di appartenere ad associazioni mafiose). State prosecutors may propose that the preventive measures described above be taken against such persons, even if no prior warning has been given; the decision rests with the courts (section 2). Under section 5, wrongfully leaving the district of compulsory residence is punishable by \"arrest\" of six months to two years.\n\nPROCEEDINGS BEFORE THE COMMISSION\n\n53. In his application of 17 November 1975 and 30 January 1976 to the Commission (no. 7367/76), Mr. Guzzardi complained of \"the arbitrary action of the Italian authorities\" who were compelling him to reside not within a district but rather on a \"scrap of land\" (pezzo di terra) where he was unable to work, keep his family permanently with him, practise the Catholic religion or ensure his son’s education; he described his situation at Cala Reale as \"the most barbarous imprisonment, the most degrading and pernicious incarceration\". He referred to Articles 3, 8 and 9 (art. 3, art. 8, art. 9) of the Convention and to Article 2 of Protocol No. 1 (P1-2) and alleged breach of \"the personal and family right\" ( diritto individuale e familiare), \"the right to religion\" and \"the right to a proper administration of justice\".\n\n54. In may 1976, when giving the notice provided for in Rule 42 par. 2 (b) of its Rules of Procedure, the Commission invited the Government to present, amongst other matters, observations on the applicability of Articles 5 and 6 (art. 5, art. 6) of the Convention. Subsequently, Mr. Guzzardi also placed express reliance on these two Articles (art. 5, art. 6).\n\n55. On 1 March 1977, the Commission declared the complaint under Article 2 of Protocol No. 1 (P1-2) inadmissible as being manifestly ill-founded. It accepted the remainder of the application after dismissing pleas of non-exhaustion of domestic remedies raised by the Government.\n\nIn its report of 7 December 1978, the Commission expressed the opinion that there had occurred a failure to observe the requirements of Article 5 par. 1 (art. 5-1) of the Convention (unanimous) but not of Articles 3 (art. 3) (unanimous), 8 (art. 8) (eleven votes to none, with one abstention) and 9 (art. 9) (unanimous), and that the impugned proceedings fell outside the ambit of Article 6 (art. 6) (unanimous).\n\n56. On 4 April 1977, Mr. Guzzardi lodged a second application (no. 7960/77) concerning, this time, his living conditions at Force (see paragraphs 21 and 22 above). The Commission did not join it to the first application (Rule 29 of the Rules of Procedure) but declared it inadmissible on 5 October 1977. The Commission found, inter alia, that there had not been deprivation of liberty within the meaning of Article 5 (art. 5) of the Convention but solely restrictions on liberty of movement and freedom to choose one’s residence, these being rights guaranteed by Article 2 of Protocol No. 4 (P4-2) which  had not ratified.\n\nFINAL SUBMISSIONS MADE TO THE COURT\n\n57. In their second memorial (see paragraph 8 above), the Government maintained the submissions set out in their first memorial (see paragraph 4 above), whereby they had requested the Court\n\n\"- to declare inadmissible the issue raised by the Commission (namely whether the applicant, Mr. Guzzardi, was deprived of his liberty by being ordered to reside compulsorily on the island of Asinara), on the ground that the person concerned failed to raise that issue on his own initiative, as is required by Article 25 (art. 25) of the Convention,\n\nand on the further ground that domestic remedies have not been previously exhausted, as is required by Article 26 (art. 26) of the Convention;\n\n- to declare that the object of the proceedings has disappeared, with the result that it will serve no purpose to rule on the Commission’s request;\n\n- to declare that the placing of Mr. Guzzardi in compulsory residence constituted neither arrest or detention nor, in any event, deprivation of liberty but a restriction on freedom of movement, lying outside the scope of Article 5 (art. 5) of the Convention;\n\n- to declare that in any event the preventive measure applied to Mr. Guzzardi is justified by sub-paragraph (e) of Article 5 par. 1 (art. 5-1-e) of the Convention.\"\n\nAS TO THE LAW\n\nI. THE GOVERNMENTS PRELIMINARY PLEAS\n\nA. The plea concerning the ex officio examination of the case under Article 5 (art. 5) (and Article 6) (art. 6)\n\n58. The Government objected to the Commission having on its own initiative taken into consideration Article 5 (art. 5) – and Article 6 (art. 6) - as from May 1976 (see paragraph 54 above). Their argument ran as follows. In order to bring a case before the Commission, a \"person, non-governmental organisation or group of individuals\" must claim to be the victim \"of a violation ... of the rights set forth in [the] Convention\". By these words, Article 25 (art. 25) identified both the persons empowered to lodge an application and the object of the proceedings instituted before the Commission and then, if appropriate, before the Court, namely a finding that the breach alleged by the applicant did occur. However, Mr. Guzzardi initially invoked only Articles 3, 8 and 9 (art. 3, art. 8, art. 9) of the Convention and Article 2 of Protocol No. 1 (P1-2) (see paragraph 53 above). Whilst the characterisation in law to be given to a contested measure was a matter for the trial judge, the Commission had overlooked another general principle, that is to say the obligation to limit the decision to facts adduced by the litigant. In order to find a violation of Article 5 (art. 5), the Commission had relied on circumstances which Mr. Catalano had mentioned neither in his first letter, dated 17 November 1975, nor in the application form and explanatory memorandum of 30 January 1976, those circumstances being the restriction to 2.5 sq. km. of the area reserved for persons in compulsory residence, the almost permanent supervision, the impossibility of making social contacts and the length of the compulsory residence. In the Government’s submission, the Commission had thereby erred outside its jurisdiction.\n\n59. The Government had already formulated a similar argument before the Commission. Their observations of 3 September 1976 (at pages 12, 13 and 18), filed subsequent to the official notification of the application (see paragraph 54 above), set it out in embryo. It is no cause for surprise that the Government did not develop the point until after the admissibility decision of 1 March 1977 (see the memorial of 8 February 1978, the oral pleadings made the following day and the memorial of 15 March 1978); for until then it did not emerge very clearly that the Commission was going to review under Article 5 (art. 5) - and Article 6 (art. 6) - not the compulsory residence order in itself, as the Government seemed to believe, but the manner in which the order was implemented at Cala Reale. Accordingly, no issue of estoppel arises (see, mutatis mutandis, the Artico judgment of 13 May 1980, Series A no. 37, pp. 13-14, 27).\n\n60. Whilst the Commission’s report went no further than summarising the Government’s argument (see paragraph 67, last sub-paragraph), the Delegates did reply thereto in detail at the hearings held on 29 January 1980. The Court agrees for the main part with the Delegates’ opinion, for the following reasons.\n\n61. Article 25 (art. 25) requires that individual applicants should claim to be the victim \"of a violation of the rights set forth in the Convention\"; it does not oblige them to specify which Article, paragraph or sub-paragraph or even which right they are praying in aid.\n\nThe Commission has given the above-cited phrase an interpretation which corresponds to the purpose and object of the Convention: from the outset it inserted in its Rules of Procedure a clause to the effect that the application should set out \"as far as possible\" - this being very flexible wording - \"the provision of the Convention alleged to have been violated\" (Rule 41 par. 1 from 1955 to 1974, subsequently Rule 38 par. 1).\n\nAny greater strictness would lead to unjust consequences; for the vast majority of \"individual\" petitions are received from laymen applying to the Commission without the assistance of a lawyer (see the Ringeisen judgment of 16 July 1971, Series A no. 13, p. 38, par. 92).\n\n62. The Government did not, moreover, dispute the Commission’s and the Court’s power, inherent in the nature of their functions, to decide upon the characterisation in law to be given to a matter (see the König judgment of 28 June 1978, Series A no. 27, p. 32, par. 96); however, in the Government’s submission the applicant had not even raised in substance the issue of an infringement of his physical liberty.\n\nIn support of this contention, they referred principally to Mr. Catalano’s first letter, dated 17 November 1975, and to the application form and explanatory memorandum of 30 January 1976 (see paragraph 53 above). It should not be forgotten, however, that the original application sent to the Commission is often followed by additional documents intended to complete it by eliminating initial omissions or obscurities (see the above-mentioned Ringeisen judgment, pp. 37-38, par. 90). The Court would also point out that from the start Mr. Catalano described Cala Reale as an \"extremely small area\", \"guarded by the police\" who used to \"forbid access to anybody and everybody\", a scrap of land (pezzo or pezzetto di terra) \"inhabited only by habitual criminals and police officers\"; his client, he added, was being subjected there to \"the most barbarous imprisonment, the most degrading and pernicious incarceration\" (and a violation of the right to a proper administration of justice). For the Government, these expressions were merely \"hyperboles and metaphors\" employed in a context alien to Article 5 (art. 5) (see page 18 of the memorial of 8 February 1978), but the Court considers, as did the Commission, that they amounted to a complaint of a failure to observe the right guaranteed by Article 5 (art. 5).\n\n63. Furthermore, it is not decisive whether Mr. Guzzardi was complaining of his living conditions on Asinara rather than of a deprivation of liberty. It is somewhat unreal to draw such distinction in the present case. The Commission and the Court have to examine in the light of the Convention as a whole the situation impugned by an applicant. In the performance of this task, they are, notably, free to give to the facts of the case, as found to be established by the material before them (see the  v. the  judgment of 18 January 1978, Series A no. 25, p. 64, par. 160), a characterisation in law different from that given to them by the applicant.\n\nSeen in an overall context, the material submitted to the Commission and the Court clearly shows that the present case raises an issue under Article 5 (art. 5).\n\nB. The objection of non-exhaustion of domestic remedies\n\n64. The Government further pleaded that the applicant did not exhaust his domestic remedies. Their preliminary objection was based on Article 26 (art. 26) of the Convention and was divided into two branches.\n\n65. The first branch, which related to the 1975 proceedings that terminated in the Court of Cassation (see paragraphs 12 to 19 above), may be summarised as follows. Never at any relevant moment had Mr. Guzzardi invoked, even in substance, the right embodied in Article 5 (art. 5) of the Convention. He had in no way claimed to be deprived, in practice, of his liberty at Cala Reale; the Commission had erred in affirming the contrary when it ruled on the admissibility of his complaints. Furthermore, the procedure laid down by section 4 of the 1956 Act was concerned solely with the lawfulness of the compulsory residence order, whereas the settling of the arrangements for implementing the order was a matter for discretionary administrative decisions and hence fell outside the jurisdiction of the courts. This was so, for example, as regards the designation of the district where the person was to reside: the court merely \"took formal notice\" of the place \"specified\" by the administrative authority and, subject where necessary to a review of lawfulness, \"recorded\" the latter’s choice. This, so the Government maintained, was precisely what occurred in the present case.\n\n66. The second branch of the objection concerned the transfer request made on 14 November 1975 (see paragraph 20 above) and was formulated in the following way. Although admittedly directed towards eliminating the violation complained of, the transfer request was still pending when, barely three days after making it, Mr. Guzzardi applied to the Commission. In addition, the request was addressed to another authority lacking jurisdiction, namely the : in fact it declared itself to be without jurisdiction on 20 January 1976 whilst at the same time directing that the text of its decision be communicated to the Minister of the Interior and the Sassari Chief of Police. With regard to his living conditions on the island, in particular the limited space available, Mr. Guzzardi had not exercised any remedy either before the competent administrative authorities or, in the event of his representations being rejected, before a court - whether ordinary or administrative - in pursuance of Article 113 of the Constitution.\n\n67. The Court will take cognisance of preliminary pleas of this kind insofar as the respondent State may have first raised them before the Commission, in principle at the stage of the initial examination of admissibility, to the extent that their character and the circumstances permitted (see the above-mentioned Artico judgment, pp. 12-14, par. 24 and 27). In respect of each branch of the objection, the Court must first of all satisfy itself that this condition has been fulfilled in the present case and that the Government are therefore not estopped.\n\n1. The first branch of the objection (the procedure ordering compulsory residence)\n\n(a) Estoppel\n\n68. Prior to the admissibility decision of 1 March 1977, the Government’s line of argument was not exactly the same as that adopted subsequently. They criticised the applicant for not having challenged before the courts the compatibility of the 1956 and 1965 Acts with the first two paragraphs of Article 13 of the Italian Constitution, these being paragraphs which were said to correspond to Article 5 (art. 5) of the Convention (see the written observations of 3 September 1976, 21 January 1977 and 21 February 1977). They repeated this objection on later occasions, and finally in their memorial of 15 March 1978 to the Commission (at pages 17 to 19), which was appended to their memorial of December 1979 to the Court.\n\n69. The submission summarised at paragraph 65 above were not put to the Commission by the Government until the memorials and oral pleadings of 8 February, 9 February and 15 March 1978. Nevertheless, certain passages in the application form of 30 January 1976 and on other written statements by Mr. Catalano might have led the Government to believe that the application was challenging the compulsory residence order as such and, indirectly, the 1956 and 1965 Acts (see the Government’s observations of 3 September 1976, at pp. 9 and 14; of 21 January 1977, at pp. 2 and 4; of 21 February 1977, at p. 1). The admissibility decision (see paragraph 5 of the section entitled \"The law\" and item 2 of the operative provisions) and subsequently a letter dated 14 March 1977 to the parties (see paragraph 5 of the report) showed that the Commission \"was [primarily] interested in the living conditions\" at Cala Reale, \"the situation complained of\" by Mr. Guzzardi. The decision and the letter would appear to have prompted the Government to supplement their initial argument in order to adapt it to the Commission’s approach (see, mutatis mutandis, paragraph 59 above). Developing a case in this way is not, in the circumstances, incompatible with the requirements of a proper administration of justice (see the above-mentioned Artico judgment, pp. 13-14, par. 27); there is accordingly no estoppel.\n\n(b) Whether the objection is substantiated\n\n70. In their memorial of 8 February 1978 to the Commission (at pp. 19, 20, 21 and 24), the Government acknowledged that, in regard to the manner of implementation of the contested measure, the applicant had in substance claimed before the courts of his own country the rights guaranteed by Articles 3, 6, 8 and 9 (art. 3, art. 6, art. 8, art. 9) of the Convention. Consequently, the question whether the first branch of the preliminary objection is substantiated concerns solely the alleged breach of Article 5 (art. 5) (see the above-mentioned De Wilde, Ooms and Versyp judgment, p. 31, par. 55).\n\n71. In January 1975, at the outset of the procedure ordering compulsory residence, the applicant could not yet claim that he was deprived of his liberty by reason of the 1956 and 1965 Acts; for he was still in detention on remand in connection with criminal investigations being carried out in his respect, he did not know whether the Milan Regional Court would approve the State prosecutor’s proposal and he had no personal experience of the fate of individuals sent to Cala Reale (see paragraphs 9, 10 and 12 above).\n\nOn the other hand, as soon as he had arrived on Asinara, he did complain to the Court of Appeal of his situation on that island which, according to him, was not suitable for a proper application of the 1956 and 1965 Acts. He asserted that he was physically and psychologically a prisoner on Asinara and was vegetating there in conditions worse than those of his detention on remand. He even described Cala Reale as a \"veritable concentration camp\". He requested that an investigation be carried out on the spot and invited the Court of Appeal to quash in its entirety the first instance decision of 30 January 1975; in the alternative to limit it to special supervision without an order for compulsory residence; in the further alternative, to direct that he be transferred to a district in Northern Italy (see paragraphs 13 and 16 above).\n\nThe Court of Appeal dismissed the appeal on 12 March 1975. It found no good reason for regarding Asinara as an unsuitable locality for compulsory residence. It emphasised that the contested measure was designed to separate Mr. Guzzardi from his milieu and render his contacts with it more difficult. This requirement took precedence over other problems. Supervision of an individual as dangerous as the applicant was sufficiently important to justify the curtailment of other individual legal interests taken into account by the law (see paragraph 17 above).\n\nMr. Guzzardi then appealed to the Court of Cassation. In his memorial of 3 April 1975 (see paragraph 18 above), he asked that Court, inter alia, to hold, if need be after referring the matter to the Constitutional Court, that section 3 of the 1956 Act and in any event the Constitution did not permit compulsory residence to be ordered on any scrap of land, regardless of its area, such as Asinara. The appeal was dismissed on 6 October 1975.\n\nTaken as a whole, these factors lead the Court, like the Commission, to conclude that Mr. Guzzardi did raise in substance before the courts of his country the issue of an infringement of his physical liberty.\n\n72. The Government disputed the concept of a remedy being exercised \"in substance\". In their submission, this \"extremely ambiguous\" concept would render \"empty\" the protection afforded to States by Article 26 (art. 26) of the Convention since it would have the effect of \"overturning\" fundamental rules of domestic procedure; it would signify an \"ectoplasm of a remedy\" unknown to Italian law (see pp. 9-12, 14, 18 and 19 of the above-mentioned memorial of 15 March 1978).\n\nThe Court does not agree with this view. Admittedly, it is for each  to establish appropriate courts and tribunals, to set the limits on their jurisdiction and to lay down the conditions for bringing cases before them. However, Article 26 (art. 26), which refers to \"the generally recognised rules of international law\", should be applied with a certain degree of flexibility and without excessive regard for matters of form (see the Stögmüller judgment of 10 November 1969, Series A no. 9, p. 42, par. 11; the above-mentioned Ringeisen judgment, pp. 37-38, par. 89 and 92; the Deweer judgment of 27 February 1980, Series A no. 35, p. 17, 29 in fine; the Commission’s decision of 11 January 1961 on the admissibility of application no. 788/60,  v. , Yearbook of the Convention, vol. 4,\n\npp. 170-176).\n\nBoth on appeal and in cassation Mr. Guzzardi complained of a series of factors which, taken together, could in the Court’s opinion be regarded as a deprivation of liberty. He did not, it is true, rely expressly on Article 5 (art. 5) of the Convention; he confined himself to mentioning the Convention as a whole in the general context of the living conditions at Cala Reale. However, a more specific reference was not essential in the circumstances since it did not constitute the sole means of achieving the aim pursued. Before the Italian courts, the applicant adduced arguments such as to show that the manner in which the 1956 Act had been applied to him resulted in the measures restricting an individual’s liberty authorised by that Act being transformed into a veritable deprivation of liberty suffered in a locality which he went so far as to describe as a concentration camp in which he was imprisoned. He therefore derived from the Italian legislation pleas equivalent, in the Court’s view, to an allegation of a breach of the right guaranteed by Article 5 (art. 5) of the Convention (see paragraph 71 above). In so doing, he provided the national courts, in particular the Court of Appeal, with the opportunity which is in principle intended to be afforded to Contracting States by Article 26 (art. 26), namely the opportunity of putting right the violations alleged against them (see the De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, p. 29, par. 50; the Airey judgment of 9 October 1979, Series A no. 32, p. 10, par. 18). If his appeal to the Court of Cassation proved unsuccessful, on account of the impossibility of emphasising the issue of deprivation of liberty with the degree of precision called for, this was probably due to the limits on the powers of that Court: having jurisdiction on issues of law, it could scarcely take cognisance as an issue of fact of the situation obtaining on Asinara nor find in the decision of the Court of Appeal any material on which it could determine whether there existed a condition of detention incompatible with Italian law, of which the Convention forms an integral part.\n\n73. The Government further contended that in any event Mr. Guzzardi would have been arguing this point before courts lacking the appropriate jurisdiction.\n\nThe evidence shows, however, that far from declining jurisdiction the Court of Appeal and the Court of Cassation examined on the merits the submissions made before them. The Court of Appeal, after instructing its registry to obtain information from the carabinieri in Sassari, came to the conclusion that neither the applicant’s state of health nor any other good reason caused Asinara to be unsuitable as a place for compulsory residence; the Court explained in detail why it judged a \"curtailment of ... individual legal interests taken into account by the law\" to be warranted on the facts (see paragraphs 14, 15 and 17 above). The Court of Cassation, for its part, accepted the submissions of the public prosecutor and dismissed the appeal as being devoid of foundation rather than inadmissible (see paragraph 19 above).\n\nAccording to the Commission’s Delegates, the designation of the district for compulsory residence, despite its character as an administrative act, emanated from the courts even though they normally made their decision on the basis of proposals from the Ministry of the Interior. On the other hand, the Government maintained that in this connection the courts confined themselves to recording the choice effected by the administrative authorities, subject to reviewing its lawfulness. Be that as it may, an irregularity may stem from the factual conditions prevailing in the locality specified by the police; in substance this was what Mr. Guzzardi pleaded had occurred in his case.\n\nBesides, if the Court of Appeal and the Court of Cassation really did not have the power to exclude Asinara on account of the duty to respect the applicant’s physical liberty, this would simply mean, as the Commission’s Delegates rightly emphasised, that the remedies exercised before those courts are without relevance for the purposes of Article 26 (art. 26). In addition, the Government did not point with sufficient precision to any other legal remedy that might have been available in the matter to Mr. Guzzardi. No blame can therefore be attached to him in this respect.\n\n74. The first branch of the objection of non-exhaustion thus proves not to be substantiated.\n\n2. The second branch of the objection (request for a transfer)\n\n75. Doubts could arise as to whether, once the proceedings relative to the measure complained of had terminated with the judgment of 6 October 1975, the applicant was still obliged to apply for a transfer in order to comply with Article 26 (art. 26). The Court has nevertheless also examined the second branch of the objection (see paragraph 66 above).\n\n(a) Estoppel\n\n76. From the very beginning, the Government contended that Mr. Guzzardi, by failing to await the outcome of his request of 14 November 1975 to the Milan Regional Court, had been premature in applying to the Commission (see their observations of 3 September 1976, 21 January 1977 and 21 February 1977). They further criticised him for not having challenged on appeal and then, if need be, in cassation the decision given by the Regional Court on 20 January 1976 (ibid.) This latter criticism, which was subsequently abandoned, was supplemented by another in a memorial which, being dated 21 February 1977, preceded the closure of the initial examination of admissibility (1 March 1977): the Government claimed, as they subsequently did before the Court, that the request in question was addressed to an authority lacking jurisdiction. There is thus no estoppel in respect of the second branch of their preliminary objection.\n\nb) Whether the objection is substantiated\n\n77. The fact that Mr. Catalano’s first letter (17 November 1975) predated by a few weeks the decision of the  (20 January 1976) is of little consequence for the purposes of Article 26 (art. 26) of the Convention; for that Court had already delivered its ruling when the Commission registered the application (2 February 1976) and, a fortiori, when it accepted the application (cf., mutatis mutandis, the above-mentioned Ringeisen judgment, pp. 36-38, par. 85-93).\n\n78. Neither does the Court share the view that the  lacked jurisdiction. On 14 November 1975, Mr. Guzzardi had filed two distinct applications. The first was addressed to the President of the  in his capacity of judge supervising the execution of sentences and requested him to cancel the compulsory residence order; the second invited the 2nd Chamber, a collegiate body, to replace Asinara by a district that satisfied certain conditions. Both applications were dealt with on 20 January 1976, in a single decision. The Regional Court first of all declared, in contrast to an Order by the Milan Court of Appeal (dated 27 October 1975), that the implementation of preventive measures was the responsibility of the police and not of the judge supervising the execution of sentences. It did not, however, confine itself to this remark and did not decline its own jurisdiction in the matter: exigencies of the protection of society, it added, justified the special form of isolation undergone by persons residing at Cala Reale. It was apparently for this reason of substance that the Regional Court dismissed the applications (respin[s]e le istanze), whilst letting it be understood that the applicant’s living conditions should be improved and directing that a copy of its decision be communicated to the Minister of the Interior and to the Sassari questore (see paragraph 20 above).\n\nBesides, on 22 July 1976 the same  did order Mr. Guzzardi’s transfer to Force, as requested by the  questore on the previous day (see paragraph 21 above).\n\n79. Accordingly, the Government have not shown that the applicant ought to have directed his request for a change in his place of residence - or any complaint regarding his circumstances on Asinara - to the administrative rather than the judicial authorities, subject to having recourse to an ordinary or administrative court in the event of his representations being rejected. The Government were unable to cite any precedent in support of their submissions (see the verbatim record of the hearings of 29 January 1980 - the reply given to questions 2 and 4 put by the Court; cf. the above-mentioned Deweer judgment, p. 18, par. 32).\n\n80. The Court notes furthermore that in many instances the laws of the Contracting States enable an individual, whether or not he relies on changed circumstances, to seek a cancellation or mitigation of a decision in force, even a judicial decision, without being defeated by the rule of res judicata. Were Article 26 (art. 26) to make mandatory the taking of such steps, which by their very nature may be repeated an indefinite number of times, it might very well erect a permanent barrier to bringing matters before the Commission; the Delegates rightly stressed this point.\n\n81. The second branch also of the objection of non-exhaustion is therefore not substantiated.\n\nC. The plea as to the disappearance of the object of the proceedings\n\n82. Mr. Guzzardi left Cala Reale for Force on July 1976, before the Commission had drawn up its report (7 December 1978) or even accepted the application (1 March 1977), and since November 1977 Asinara has no longer been used as a place for compulsory residence (see paragraphs 21 and 43 above). In the Government’s submission, the proceedings had therefore become devoid of object in that Mr. Guzzardi had achieved the aim he was pursuing through his transfer request of 14 November 1975 (see paragraph 20 above) and his petition to the Commission; a judgment by the Court would not be able to afford him any greater relief, especially since the conditions for the application of Article 50 (art. 50) were not fulfilled.\n\n83. No issue as to estoppel arises here, as both before and after 1 March 1977 the Government had argued the point before the Commission. The latter gave no ruling thereon (see the admissibility decision, in the section entitled \"Submissions of the parties\", par. 1-A, V-1 in fine and VI-1 in fine; and the report, paragraph 67).\n\n84. Without expressly requesting the Court to strike the case out of the list, the Government relied on the De Becker judgment of 27 March 1962 (Series A no. 4) where such a course was taken. It is thus necessary to have regard to Rule 47 of the Rules of Court – the provision governing the matter -, the present wording of which dates from 27 August 1974.\n\n85. Paragraph 1 of Rule 47 is concerned with a circumstance not relevant to the instant case, namely discontinuance by a State (see the above-mentioned Deweer judgment, p. 19, par. 36).\n\nParagraph 2 provides, subject to paragraph 3, that when \"informed of a friendly settlement, arrangement or other fact of a kind to provide a solution of the matter\" the Court may strike out of the list \"a case brought before [it] by the Commission\". There being no agreement - whether formal or otherwise - between the Government and the applicant, it is not possible in the circumstances to talk of either a friendly settlement or an arrangement (ibid., p. 19, par. 37). It remains to be ascertained whether there exists any \"other fact of a kind to provide a solution of the matter\".\n\nAs was recalled by the Commission’s Delegates at the hearings, proceedings under the Convention frequently serve a declaratory purpose. The Commission and, at the later stage, the Court have dealt with numerous alleged breaches - isolated or continuing - which related entirely to a period prior to the institution of proceedings (the Delcourt, Tyrer, Schiesser, Deweer cases, etc.) or had ceased whilst the proceedings were in progress (the Lawless, Wemhoff, Neumeister, Stögmüller, Matznetter, Ringeisen, De Wilde, Ooms and Versyp, Golder, Sunday Times cases, etc.); the Court nonetheless ruled on these alleged breaches.\n\nThe subject-matter of contention in the present case lasted from 8 February 1975 to 22 July 1976, and the Government deny that it occasioned any violation of the Convention. Moreover, when directing on 22 July 1976 that the applicant be sent to Force, the Milan Regional Court relied solely on the requirements of a proper administration of criminal justice and of security on the island (see paragraph 21 above); it made no mention of the applicant’s complaints (cf. the Luedicke, Belkacem and Koç judgment of 28 November 1978, Series A no. 29, p. 15, par. 36). There thus remains a conflict of opinion between the interested parties which a judgment by the Court will serve the purpose of resolving. In addition, Mr. Guzzardi claimed to be entitled to just satisfaction under Article 50 (art. 50) (see his written observations of 8 November 1976, p. 7; of 11 January 1980, p. 4; of 29 April 1980, p. 2); if the Court finds that the Convention’s requirements have not been observed, it will have to decide this claim. The \"matter\" has therefore received no \"solution\".\n\n86. The Court’s judgments also serve \"to elucidate, safeguard and develop the rules instituted by the Convention thereby contributing to the observance ... of the engagements undertaken\" by the Contracting States (see the above-mentioned  v. the United Kingdom judgment, p. 62, 154, in connection with a point not even contested by the respondent State). The present case does rise - notably with regard to Article 5 (art. 5) - issues of interpretation sufficiently important to call for decision. For this reason as well, the Court does not consider that the proceedings have become devoid of object.\n\nII. THE MERITS\n\nA. Preliminary observation\n\n87. The Government stressed that public order in  was currently menaced by serious threats, coming essentially from political terrorism and the mafia.\n\n88. Without losing sight of the general context of the case, the Court recalls that, in proceedings originating in an individual application, it has to confine its attention, as far as possible, to the issues raised by the concrete case before it. Accordingly, the Court’s task is to review under the Convention not the 1956 and 1965 Acts as such - the principle underlying them was anyway not challenged by the applicant - but the manner in which those Acts were actually applied to Mr. Guzzardi, namely the conditions surrounding his enforced stay on Asinara from 8 February 1975 until 22 July 1976 (see the above-mentioned Deweer judgment, p. 21, par. 40, the Schiesser judgment of 4 December 1979, Series A no. 34, p. 14, par. 32, etc.; cf. the above-mentioned  v. the United Kingdom judgment, p. 60, par. 149).\n\nB. The alleged breach of Article 5 par. 1 (art. 5-1)\n\n89. Article 5 par. 1 (art. 5-1) of the Convention reads:\n\n\"Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:\n\n1. The existence of a deprivation of liberty in the present case\n\n90. The Commission was of the view that on Asinara the applicant suffered a deprivation of liberty within the meaning of the Article (art. 5); it attached particular significance to the extremely small size of the area where he was confined, the almost permanent supervision to which he was subject, the all but complete impossibility for him to make social contacts and the length of his enforced stay at Cala Reale (see paragraphs 94-99 of the report).\n\n91. The Government disputed the correctness of this analysis. They reasoned as follows. The factors listed above were not sufficient to render the situation of persons in compulsory residence on the island comparable to the situation of prisoners as laid down by Italian law; there existed a whole series of fundamental differences that the Commission had wrongly overlooked. The distinguishing characteristic of freedom was less the amount of space available than the manner in which it could be utilised; a good many districts in  and elsewhere were less than 2.5 sq. km. in area. The applicant was able to leave and return to his dwelling as he wished between the hours of 7 a.m. and 10 p.m. His wife and son lived with him for fourteen of the some sixteen months he spent on Asinara; the inviolability of his home and of the intimacy of his family life, two rights that the Convention guaranteed solely to free people, were respected. Even as regards his social relations, he was treated much more favourably than someone in penal detention: he was at liberty to meet, within the boundaries of Cala Reale, the members of the small community of free people - about two hundred individuals - living on the island, notably at Cala d’Oliva; to go to Sardinia or the mainland if so authorised; to correspond by letter or telegram without any control; to use the telephone, subject to notifying the carabiniere of the name and number of his correspondent. The supervision of which he complained constituted the raison d’être of the measure ordered in his respect. Finally, the fact that more than sixteen months elapsed before his transfer to Force was of itself of no relevance (see paragraph 7 of the memorial of December 1979 and the oral pleadings of 29 January 1980).\n\n92. The Court recalls that in proclaiming the \"right to liberty\", paragraph 1 of Article 5 (art. 5-1) is contemplating the physical liberty of the person; its aim is to ensure that no one should be dispossessed of this liberty in an arbitrary fashion. As was pointed out by those appearing before the Court, the paragraph is not concerned with mere restrictions on liberty of movement; such restrictions are governed by Article 2 of Protocol No. 4 (P4-2) which has not been ratified by . In order to determine whether someone has been \"deprived of his liberty\" within the meaning of Article 5 (art. 5), the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question (see the Engel and others judgment of 8 June 1976, Series A no. 22, p. 24, par. 58-59).\n\n93. The difference between deprivation of and restriction upon liberty is nonetheless merely one of degree or intensity, and not one of nature or substance. Although the process of classification into one or other of these categories sometimes proves to be no easy task in that some borderline cases are a matter of pure opinion, the Court cannot avoid making the selection upon which the applicability or inapplicability of Article 5 (art. 5) depends.\n\n94. As provided for under the 1956 Act (see paragraphs 48-49 above), special supervision accompanied by an order for compulsory residence in a specified district does not of itself come within the scope of Article 5 (art. 5). The Commission acknowledged this: it focused its attention on Mr. Guzzardi’s \"actual position\" at Cala Reale (see paragraphs 5, 94, 99, etc. of the report) and pointed out that on 5 October 1977 it had declared inadmissible application no. 7960/77 lodged by the same individual with regard to his living conditions at Force (see paragraph 93 of the report and paragraph 56 above).\n\nIt does not follow that \"deprivation of liberty\" may never result from the manner of implementation of such a measure, and in the present case the manner of implementation is the sole issue that falls to be considered (see paragraph 88 above).\n\n95. The Government’s reasoning (see paragraph 91 above) is not without weight. It demonstrates very clearly the extent of the difference between the applicant’s treatment on Asinara and classic detention in prison or strict arrest imposed on a serviceman (see the above-mentioned Engel and others judgment, p. 26, par. 63). Deprivation of liberty may, however, take numerous other forms. Their variety is being increased by developments in legal standards and in attitudes; and the Convention is to be interpreted in the light of the notions currently prevailing in democratic States (see notably the Tyrer judgment of 25 April 1978, Series A no. 26, pp. 15-16, par. 31).\n\nWhilst the area around which the applicant could move far exceeded the dimensions of a cell and was not bounded by any physical barrier, it covered no more than a tiny fraction of an island to which access was difficult and about nine-tenths of which was occupied by a prison. Mr. Guzzardi was housed in part of the hamlet of Cala Reale which consisted mainly of the buildings of a former medical establishment which were in a state of disrepair or even dilapidation, a carabinieri station, a school and a chapel. He lived there principally in the company of other persons subjected to the same measure and of policemen. The permanent population of Asinara resided almost entirely at Cala d’Oliva, which Mr. Guzzardi could not visit, and would appear to have made hardly any use of its right to go to Cala Reale. Consequently, there were few opportunities for social contacts available to the applicant other than with his near family, his fellow \"residents\" and the supervisory staff. Supervision was carried out strictly and on an almost constant basis. Thus, Mr. Guzzardi was not able to leave his dwelling between 10 p.m. and 7 a.m. without giving prior notification to the authorities in due time. He had to report to the authorities twice a day and inform them of the name and number of his correspondent whenever he wished to use the telephone. He needed the consent of the authorities for each of his trips to Sardinia or the mainland, trips which were rare and, understandably, made under the strict supervision of the carabinieri. He was liable to punishment by \"arrest\" if he failed to comply with any of his obligations. Finally, more than sixteen months elapsed between his arrival at Cala Reale and his departure for Force (see paragraphs 11, 12, 21, 23-42 and 51 above).\n\nIt is admittedly not possible to speak of \"deprivation of liberty\" on the strength of any one of these factors taken individually, but cumulatively and in combination they certainly raise an issue of categorisation from the viewpoint of Article 5 (art. 5). In certain respects the treatment complained of resembles detention in an \"open prison\" or committal to a disciplinary unit (see the above-mentioned Engel and others judgment, p. 26, par. 64). On 20 January 1976, the  had let it be understood that it did not regard that treatment as satisfactory. The administrative authorities also had some misgivings for they investigated the possibility of taking remedial measures; since they did not pursue the matter in the face of the expense involved and the time needed, the Ministry of the Interior decided in August 1977 to strike Asinara out of the list of places for compulsory residence (see paragraphs 20 and 43 above). Two telegrams from the Ministry to the Milan Chief of Police, dated 19 and 23 August 1977 and concerning one Alberti Gerlando, establish that this decision was not unconnected with application no 7367/76 even though Mr. Guzzardi had already left Cala Reale; the Government appended these telegrams to their memorial of May 1980. Several items of the documentary evidence filed thus show that the island was not suitable for a normal application of the 1956 and 1965 Acts. This was eventually recognised by the .\n\nThe Court considers on balance that the present case is to be regarded as one involving deprivation of liberty.\n\n2. The compatibility of the deprivation of liberty found in the present case with paragraph 1 of Article 5 (art. 5-1)\n\n96. It remains to be determined whether the situation was one of those, exhaustively listed in Article 5 par. 1 (art. 5-1) of the Convention (see the Winterwerp judgment of 24 October 1979, Series A no. 33, p. 16, par. 37), in which the Contracting States reserve the right to arrest or detain individuals.\n\n(a) Sub-paragraph (e) of Article 5 par. 1 (art. 5-1-e) (pleaded by the Government)\n\n97. The Government relied, in the alternative, on sub-paragraph (e) of Article 5 par. 1 (art. 5-1-e), maintaining that mafiosi like the applicant were \"vagrants\" and \"something else besides\" (see paragraph 8 of the memorial of December 1979 and the oral pleadings of 29 January 1980). In paragraph 1 of section 1, the 1956 Act refers to \"idlers and habitual vagrants who are fit for work\", a phrase clarified by the  in its judgment no. 23 of 23 March 1964. In the Government’s opinion, the imposition on a \"vagrant\" of preventive measures restricting, or even depriving him of, his liberty was justified, under the Convention and Italian law, not so much by his lack of a fixed abode as by the absence of any apparent occupational activity (\"attività lavorativa palese\") and, hence, the impossibility of identifying the source of his means of subsistence. The existence of this danger factor, the Government continued, was recognised by the  in its decision of 30 January 1975 (see paragraph 12 above); in addition and above all, that Court took notice of the far more serious risk stemming from the applicant’s links with mafia associations which engaged in kidnapping with a view to extracting ransoms. According to the Government, provision could not be made in an international instrument for the typically Italian phenomenon of the mafia, yet it would be an absurd conclusion to regard Article 5 par. 1 (e) (art. 5-1-e) as allowing vagrants but not presumed mafiosi to be deprived of their liberty.\n\n98. The Court concurs with the Commission’s contrary view (see paragraph 104 of the report and the oral pleadings of 29 January 1980).\n\nThere was no reference to paragraph 1 of section 1 of the 1956 Act in either the report of 23 November 1974 of the Milan Chief of Police or the State prosecutor’s application of 14 January 1975 or the Regional Court’s decision of 30 January 1975 (see paragraph 12 above) or the Court of Appeal’s judgment of 12 March 1975. These authorities relied on the 1956 Act solely in combination with the 1965 Act which concerns individuals whom there are strong reasons to suspect of belonging to mafia-type associations (see paragraph 52 above). What is more, they in no way described or depicted Mr. Guzzardi as a vagrant. Admittedly, they noted, in passing, that there were serious doubts as to whether he really worked as a mason as he claimed, but they laid much greater stress on his record, his illegal activities, his contacts with habitual criminals and still more his links with the mafia. The Chief of Police even said that no state of poverty, idleness or vagrancy furnished an explanation for this criminal conduct (\"manifestazioni criminose che non hanno una causa giustificativa in uno stato di indigenza ovvero di ozio o di vagabondaggio\").\n\nBesides, the applicant’s way of life at the time, as disclosed by the documentary evidence filed, is in no way consonant with the ordinary meaning of the word \"vagrant\", this being the meaning that has to be utilised for Convention purposes (see the above mentioned De Wilde, Ooms and Versyp judgment, p. 37, par. 68; cf., for the phrase \"persons of unsound mind\", the above-mentioned Winterwerp judgment, p. 17, par. 38). Although they denied it, the Government were in essence reasoning a fortiori; at the hearing of 9 February 1978 before the Commission, their Agent described Mr. Guzzardi as \"a vagrant in the wide sense of the term\", \"a monied vagrant\" (see p. 61 of the verbatim record: \"vagabondo nel senso largo dell’espressione\"; \"vagabondo ricco\"). However, the exceptions permitted by Article 5 par. 1 (art. 5-1) call for a narrow interpretation (see the above-mentioned Winterwerp judgment, p. 16, par. 37).\n\nThe Government’s argument is open to a further objection. In addition to vagrants, sub-paragraph (e) (art. 5-1-e) refers to persons of unsound mind, alcoholics and drug addicts. The reason why the Convention allows the latter individuals, all of whom are socially maladjusted, to be deprived of their liberty is not only that they have to be considered as occasionally dangerous for public safety but also that their own interests may necessitate their detention. One cannot therefore deduce from the fact that Article 5 (art. 5) authorises the detention of vagrants that the same or even stronger reasons apply to anyone who may be regarded as still more dangerous.\n\n(b) Other sub-paragraphs of Article 5 par. 1 (art. 5-1) (not pleaded by the Government)\n\n99. The Court has also examined the matter under the other sub- paragraphs of Article 5 par. 1 (art. 5-1), which were not pleaded by the Government.\n\n100. On a true analysis, the order for Mr. Guzzardi’s compulsory residence was not a punishment for a specific offence but a preventive measure taken on the strength of indications of a propensity to crime (see paragraphs 9 and 12 above). According to the Commission, it must follow from this that, for the purpose of sub-paragraph (a) (art. 5-1-a), the measure did not constitute detention \"after conviction by a competent court\" (see paragraph 102 of the report).\n\nIn the Court’s opinion, comparison of Article 5 par. 1 (a) (art. 5-1-a) with Articles 6 par. 2 and 7 par. 1 (art. 6-2, art. 7-1) shows that for Convention purposes there cannot be a \"condamnation\" (in the English text: \"conviction\") unless it has been established in accordance with the law that there has been an offence - either criminal or, if appropriate, disciplinary (see the above-mentioned Engel and others judgment, p. 27, par. 68). Moreover, to use \"conviction\" for a preventive or security measure would be consonant neither with the principle of narrow interpretation to be observed in this area (see paragraph 98 above) nor with the fact that that word implies a finding of guilt.\n\nThe Court thus reaches the same conclusion as the Commission.\n\n101. The deprivation of liberty complained of was not covered by sub-paragraph (b) (art. 5-1-b) either.\n\nAdmittedly, under the procedure laid down by the 1956 Act judicial decisions are a kind of sanction for failure to heed a prior warning (diffida), but the warning is not indispensable if, as in the present case, recourse is had to the 1965 Act; moreover, the warning is issued by the Chief of Police and so does not constitute an \"order of a court\" (see paragraphs 46 and 52 above).\n\nAs regards the words \"to secure the fulfilment of any obligation prescribed by law\", they concern only those cases where the law permits the detention of a person to compel him to fulfil a \"specific and concrete\" obligation which he has failed to satisfy (see the above-mentioned Engel and others judgment, p. 28, par. 69). However, as the Commission rightly emphasised, the 1956 and 1965 Acts impose general obligations (see paragraph 103 of the report).\n\n102. Neither was the applicant in one of the situations dealt with by sub-paragraph (c) (art. 5-1-c).\n\nIt is true that there was \"reasonable suspicion of [his] having committed an offence\" and that he remained subject to charges throughout the time he spent on Asinara, but the decisions of the Regional Court (30 January 1975), the Court of Appeal (12 March 1975) and the Court of Cassation (6 October 1975) had no connection in law with the investigation being pursued in his respect: they were based on the 1956 and 1965 Acts which are applicable irrespective of whether or not there has been a charge and do not prescribe any subsequent appearance \"before the competent legal authority\" (see paragraphs 9, 11, 12, 17, 19, 21 and 45-52 above). Mr. Guzzardi’s detention on remand had terminated on 8 February 1975, on the expiry of the two years’ time-limit laid down by Article 272 (first paragraph, item 2) of the Code of Criminal Procedure (see paragraph 10 above). If - as the applicant insinuated but did not prove (see paragraph 73 in fine of the report) - the said Acts had been utilised in order to prolong the detention, it would not in that case have been \"lawful\"; whilst the French text of sub-paragraph (c), (art. 5-1-c) unlike that of sub-paragraphs (a), (b), (d), (e) and (f) (art. 5-1-a, art. 5-1-b, art. 5-1-d, art. 5-1-e, art. 5-1-f), does not contain the equivalent word \"régulière\", the English version does speak of \"lawful\" detention and the principle expressed by this adjective dominates the whole of Article 5 par. 1 (art. 5-1) (see the above-mentioned Winterwerp judgment, pp. 17-18, par. 39-40). In addition, problems might have arisen in connection with paragraph 3 of Article 5 (art. 5-3), which has to be read together with paragraph 1 (c) (art. 5-1-c) (see the above-mentioned  v. the United Kingdom judgment, p. 75, par. 199), and even with Article 18 (art. 18).\n\nAt first sight, a more likely hypothesis is that the measure complained of was taken because it was \"reasonably considered necessary to prevent [Mr. Guzzardi’s] committing an offence\" or, at the outside, \"fleeing after having done so\". However, in that case as well a question would arise as to the measure’s \"lawfulness\" since, solely on the basis of the 1956 and 1965 Acts, an order for compulsory residence as such, leaving aside the manner of its implementation, does not constitute deprivation of liberty (see paragraph 94 above). It would also be necessary to consider whether the requirements of paragraph 3 of Article 5 (art. 5-3) had been observed (see the Lawless judgment of 1 July 1961, Series A no. 3, pp. 51-53, par. 13-14). In any event, the phrase under examination is not adapted to a policy of general prevention directed against an individual or a category of individuals who, like mafiosi, present a danger on account of their continuing propensity to crime; it does no more than afford the Contracting States a means of preventing a concrete and specific offence. This can be seen both from the use of the singular (\"an offence\", \"celle-ci\" in the French text; see the Matznetter judgment of 10 November 1969, Series A no. 10, pp. 40 and 43, separate opinions of Mr. Balladore Pallieri and Mr. Zekia) and from the object of Article 5 (art. 5), namely to ensure that no one should be dispossessed of his liberty in an arbitrary fashion (see the above-mentioned Winterwerp judgment, p. 16, par. 37).\n\n103. Finally, sub-paragraphs (d) and (f) of Article 5 par. 1 (art. 5-1-d, art. 5-1-f) are obviously not relevant.\n\n(c) Conclusion\n\n104. To sum up, from 8 February 1975 to 22 July 1976 the applicant was the victim of a breach of Article 5 par. 1 (art. 5-1).\n\nC. The other alleged violations\n\n1. Preliminary observation\n\n105. The Commission’s report stated that, as regards Articles 3, 6, 8 and 9 (art. 3, art. 6, art. 8, art. 9), there was no foundation for the applicant’s allegations.\n\nAccording to the Government, it followed that the Court’s task was confined to determining the issues under Article 5 (art. 5) (see paragraphs 4 and 5.4 of the memorial of December 1979 and the oral pleadings of 29 January 1980).\n\n106. This view is not in conformity with the Court’s established case-law and practice.\n\nIn its request of 8 March 1979 bringing the case before the Court, the Commission stated that its \"object\" was \"in particular\" - but not exclusively - to \"invite the Court\" to determine whether there had been deprivation of liberty and, if so, whether it \"corresponded to one of the cases contemplated by Article 5 par. 1 (art. 5-1)\". As the Principal Delegate made clear at the hearings, it was nonetheless the Commission’s intention to submit to the Court the whole of the \"case\" originating in \"application no. 7367/76\".\n\nThe compass of the \"case\" is delimited not by the report but by the admissibility decision. Subject to Article 29 (art. 29) and, possibly, a partial striking out of the list, there is no room under the Convention for a subsequent narrowing of the scope of the dispute which may lead to a judicial decision. Within the framework so traced, the Court may take cognisance of all questions of fact or of law arising in the course of the proceedings instituted before it; the only matter falling outside its jurisdiction is the examination of complaints held by the Commission to be inadmissible, in the present instance the complaint formulated by Mr. Guzzardi at the outset under Article 2 of Protocol No. 1 (P1-2) (see the above-mentioned Winterwerp judgment, pp. 27-28, par. 71-72; the above-mentioned Schiesser judgment, p. 17, par. 41; paragraphs 53 and 55 above).\n\nIf the same applied to claims rejected in the Commission’s opinion on the merits (Article 31) (art. 31) - in this case the claims concerning Article 3, 6, 8 and 9 (art. 3, art. 6, art. 8, art. 9) - the system established by Articles 44 (art. 44) et seq. would unduly favour respondent States to the detriment of applicant States or individuals. The Court has on occasion found violations in circumstances where the report either perceived none or expressed no opinion (see the above-mentioned Engel and others judgment, p. 37, par. 89; the above-mentioned Airey judgment, p. 17, par. 33; the above-mentioned Winterwerp judgment, pp. 27-29, par. 69-76). In addition, a good many cases in which the Commission concluded that there had been no violation at all have already been referred to the Court (the Lawless, Delcourt, National Union of Belgian, Police, Swedish Engine Drivers’ Union, Schmidt and Dahlström, Kjeldsen, Busk Madsen and Pedersen, Handyside, Klass and others and Schiesser cases).\n\n2. Article 3 (art. 3)\n\n107. Mr. Guzzardi alleged that on Asinara he had to endure living conditions that were at least degrading, if not inhuman. The Commission did not agree.\n\nCertain aspects of the situation complained of were undoubtedly unpleasant or even irksome (see paragraphs 23-42 above); however, having regard to all the circumstances, it did not attain the level of severity above which treatment falls within the scope of Article 3 (art. 3) (see the above-mentioned  v. the United Kingdom judgment, p. 65, par. 162).\n\n3. Article 6 (art. 6)\n\n108. The Commission gave a negative reply to the question whether the 1975 proceedings that terminated in the Court of Cassation should, as Mr. Guzzardi argued, have been attended by the guarantees contained in Article 6 (art. 6).\n\nIn the Court’s opinion, those proceedings did not involve the \"determination ... of a criminal charge\", even when these words are construed within the meaning of the Convention (see the above-mentioned Engel and others judgment, p. 34, par. 81). Whether the right to liberty, which was at stake (see paragraph 62 above), is to be qualified as a \"civil right\" is a matter of controversy (see the Golder judgment of 21 February 1975, Series A no. 18, p. 16, par. 33; the above-mentioned  v. the United Kingdom judgment, p. 89, par. 235); in any event, the evidence does not reveal any infringement of paragraph 1 of Article 6 (art. 6-1).\n\n4. Article 8 (art. 8)\n\n109. The applicant further relied on his right to respect for his family life. However, quite apart from other relations by blood or by marriage, his wife and son lived with him for fourteen of the some sixteen months he spent at Cala Reale. The reason why they had to leave the island in October 1975 - rejoining the applicant there as soon as the beginning of December - was that he had not applied for renewal of their residence permits which had expired on 18 August 1975 (see paragraph 35 above). The reasons given by Mr. Guzzardi to explain his failure so to apply (see paragraph 72 of the report) disclose nothing contrary to Article 8 (art. 8) which could be attributed to the  and, in the circumstances, the necessity for such permits proves to be compatible with that provision. More generally, the Court concurs with the remarks in paragraph 87 of the Commission’s report.\n\n5. Article 9 (art. 9)\n\n110. Finally, Mr. Guzzardi complained of an infringement of his right to manifest his religion in worship. However, he did not claim either that he had requested that services be held in the chapel at Cala Reale or that he had sought authorisation to go to the church at Cala d’Oliva (see paragraphs 36-37 above and paragraph 89 of the report); accordingly, his complaint does not bear examination.\n\n6. Conclusion\n\n111. The conclusions thus reached by the Court on Articles 3, 6, 8 and 9 (art. 3, art. 6, art. 8, art. 9) dispense it from reopening the hearings in order to provide the Government with an opportunity of amplifying the arguments they had advanced on these issues before the Commission (see paragraphs 74 and 76-78 of the report).\n\nD. On the application of Article 50 (art. 50)\n\n112. At the hearings of 29 January 1980, the Delegates had reserved their position on the application of Article 50 (art. 50) since the applicant, who was not present, had not been able to supply them with the requisite details. On the Delegates’ instructions, the Secretary to the Commission forwarded to the Registrar on 12 May two notes from Mr. Catalano, dated 11 January and 29 April. They indicated that Mr. Catalano claimed on his client’s behalf \"compensation for the prejudice suffered\", \"of an amount to be determined equitably\". The Government, for their part, formulated certain observations on this point (see paragraph 6.3 of the memorial of December 1979 and the oral pleadings of 29 January 1980).\n\n113. The Court considers the question to be ready for decision and recalls that the rule of exhaustion of domestic remedies is not applicable in the context of Article 50 (art. 50) (see the De Wilde, Ooms and Versyp judgment of 10 March 1972, Series A no. 14, pp. 7-9, par. 15-16). Furthermore, Italian \"internal law ... allows only partial reparation to be made for the consequences\" of the violation found in the present case : complete reparation (restitutio in integrum) is prevented by the intrinsic nature of a wrong that consists of a deprivation of liberty contrary to Article 5 par. 1 (art. 5-1) (see, mutatis mutandis, the last-mentioned judgment, pp. 9-10, par. 20, and the König judgment of 10 March 1980, Series A no. 36, pp. 14-15, par. 15).\n\n114. On the other hand, as is borne out by the adjective \"just\" and the phrase \"if necessary\", the Court enjoys a certain discretion in the exercise of the power conferred by Article 50 (art. 50).\n\nMr. Guzzardi has furnished no particulars and no prima facie evidence of the nature and scope of his alleged damage; in effect, he leaves the matter to the Court’s discretion. Above all, his enforced stay at Cala Reale was markedly different from detention of the classic kind and involved far less serious hardships. What is more, in July 1976 - even before the Commission had accepted the application - the Milan Regional Court brought that stay to an and by ordering Mr. Guzzardi’s transfer to the mainland; in August 1977, that is without awaiting the adoption of the report (7 December 1978), the Ministry of the Interior deleted Asinara from the list of districts used for compulsory residence, a decision which was apparently influenced by the proceedings pending in Strasbourg (see paragraph 95 above). On the other hand, Mr. Guzzardi had to bear certain costs in connection with the submission of his complaints to the Italian courts and to the Commission, especially as he did not have the benefit of free legal aid before the latter.\n\nHaving regard to all the circumstances of the case, the Court affords the applicant under Article 50 (art. 50) a sum of one million (1,000,000) Lire.\n\nFOR THESE REASONS, THE COURT\n\n1. Rejects by sixteen votes to two the plea based by the Government on the ex officio examination of the case under Articles 5 and 6 (art. 5, art. 6);\n\n2. Rejects by ten votes to eight the Government’s objection that domestic remedies have not been exhausted;\n\n3. Rejects by fifteen votes to three the Government’s plea as to the disappearance of the object of the proceedings;\n\n4. Holds by eleven votes to seven that there was in the instant case deprivation of liberty within the meaning of Article 5 (art. 5) of the Convention;\n\n5. Holds unanimously that the said deprivation of liberty was not justified under sub-paragraph (e) of Article 5 par. 1 (art. 5-1-e) or under sub-paragraph (b) (art. 5-1-b);\n\n6. Holds by sixteen votes to two that the said deprivation of liberty was also not justified under sub-paragraph (a) (art. 5-1-a);\n\n7. Holds by twelve votes to six that the said deprivation of liberty was not justified under sub-paragraph (c) (art. 5-1-c) either;\n\n8. Holds, to sum up, by ten votes to eight, that from 8 February 1975 to 22 July 1976 the applicant was the victim of a breach of Article 5 par. 1 (art. 5-1);\n\n9. Holds unanimously that in the instant case there was no breach of Articles 3, 6 or 9 (art. 3, art. 6, art. 9);\n\n10. Holds by seventeen votes to one that there was also no breach of Article 8 (art. 8);\n\n11. Holds by twelve votes to six that the  is to pay to the applicant under Article 50 (art. 50) a sum of one million (1,000,000) Lire.\n\nDone in English and in French, the French text being authentic, at the , , this sixth day of November, one thousand nine hundred and eighty.\n\nThe following separate opinions are annexed to the present judgment in accordance with Article 51 par. 2 (art. 51-2) of the Convention and Rule 50 par. 2 of the Rules of Court:\n\n- dissenting opinion of Mr. BALLADORE PALLIERI;\n\n- dissenting opinion of Mr. ZEKIA;\n\n- dissenting opinion of Mr. CREMONA;\n\n- dissenting opinion of Sir Gerald FITZMAURICE;\n\n- dissenting opinion of Mrs. BINDSCHEDLER-ROBERT;\n\n- joint dissenting opinion of Mr. TEITGEN and Mr. GARCIA DE ENTERRIA;\n\n- partly dissenting opinion of Mr. MATSCHER;\n\n- dissenting opinion of Mr. PINHEIRO FARINHA.\n\nI share the Court’s opinion that \"as provided for under the 1956 Act ..., special supervision accompanied by an order for compulsory residence in a specified district does not of itself come within the scope\" of our Article 5 (art. 5) (see paragraph 94 of the judgment). I also agree with the Court’s view that, for the purposes of exhaustion of domestic remedies, it is not necessary for the applicant to have pleaded before the national courts the Article of our Convention or perhaps even the corresponding domestic rules, such as the first and second paragraphs of Article 13 of the Italian Constitution which read:\n\nHowever, in my view, it should at least be required that the applicant has complained of conduct on the part of the State that is contrary to the content of these Articles. In addition, once more in my opinion and contrary to that of the Court, account can be taken in this connection solely of the requests which the applicant addressed to the national courts. It is only by comparing the content of those requests with the content of the Articles in question that one can decide whether the applicant’s intention was to complain of an infringement of the freedoms provided for in those Articles. To this end, it is not possible to rely, as the Court did, on mere sentences spoken or written in the course of the domestic proceedings.\n\nIf Mr. Guzzardi’s request to the national courts are examined, it can be seen at once that they sought first and foremost revocation of the compulsory residence order: that was his principal request, even before the Court of Appeal. They thus bore on an issue that has no connection with the issue facing our Court which, as we have said previously, is not concerned with the lawfulness in abstracto of the Italian Act of 1956.\n\nIt is true that the applicant also complained, as regards his actual treatment on Asinara, of his inability to obtain on the island medical treatment required by his state of health and to live together with his family without hindrance. Here again, however, this is a matter of other freedoms and other rights which have no connection with Article 5 (art. 5) of the Convention, this being the only Article in respect of which the question of exhaustion of domestic remedies arises. Finally, it is also true that the applicant asserted that he was physically and mentally a prisoner on Asinara and was vegetating there in conditions worse than those of his detention on remand and that he described Cala Reale as a \"veritable concentration camp\". However, we can find an explanation of what he meant by these remarks in his appeal to the Court of Cassation: in that appeal he relied not on the first and second paragraphs of Article 13 of the Italian Constitution, which relate to the protection of individual liberty against any measure involving detention, but on the fourth paragraph which stipulates: \"The infliction of any physical or mental violence on persons subjected to any form of restriction on their liberty shall be a punishable offence.\"\n\nBesides, confirmation that the applicant never had it in mind to complain of limitation of his liberty, within the meaning of the first two paragraphs of Article 13 of the Italian Constitution and Article 5 (art. 5) of our Convention, is to be found in the fact that he did not rely on Article 5 (art. 5) in his application to the Commission and that a complaint by him to that effect had to be entirely constructed by the Commission of its own motion.\n\nEven if one were to accept the possibility of the new criterion of interpretation referred to by the Court, namely the \"flexible\" interpretation, I do not see how it could be applied to that fundamental right of the State which is safeguarded by prior exhaustion of domestic remedies. In any event, the interpretation should have been effected on the basis of objective data and not of a mere hunt for intentions.\n\nFinally, account should be taken of the fact that when Mr. Guzzardi made two further applications to the  on 14 November 1975 - applications that did actually concern the issue raised before us - he obtained a transfer elsewhere and the camp on Asinara was eventually closed. Had the matter been pleaded in the proper terms, the domestic remedy would thus have resulted in a finding in favour of the applicant and there would have been no call to institute proceedings before the international institutions.\n\nThe main issue involved in this case is whether the applicant Mr. Guzzardi was deprived of his liberty within the meaning of Article 5 § 1 (art. 5-1) of the Convention by becoming a compulsory resident on the island of Asinara and by having to put up with the restrictions imposed relating to his living conditions, social contacts, etc., during his stay on the island from 8 February 1975 to 22 July 1976.\n\nThe Court directed itself correctly in framing the question to be answered.\n\nI have entertained some doubt as to whether the restrictions imposed on the applicant during his stay on Asinara, after taking into account all relevant aspects of his living conditions in a small area of a small island, amounted to deprivation of liberty envisaged under Article 5 § 1 (art. 5-1).\n\nThe restrictions imposed were based on the Italian Acts of 1956 and 1965.\n\nIt is the way those Acts were applied which matters in this case. We have to find whether the restrictions in question had the cumulative effect of depriving the person subject thereto of his liberty. That issue had to be decided on an overall assessment of the relevant facts available. This was a borderline case. A violation on the part of a  should be established as clearly as possible without admitting reasonable doubts. What is more, it is part of the established jurisprudence of this Court that a Contracting State is entitled to a margin of appreciation when the question whether it has committed a violation of the Convention is under consideration.\n\nI agree with the finding that there was no breach of Articles 3, 6 and 9 (art. 3, art. 6, art. 9).\n\nI disagree, however, with the view expressed as regards Article 8 (art. 8).\n\nI am inclined to find that there was a breach of Article 8 (art. 8) which deals with rights to respect for private and family life, home and correspondence.\n\nThe main target and object of the proceedings in this case was Article 5 § 1 (art. 5-1). Article 8 (art. 8) might be regarded as an incidental or side issue because the right to respect for private life was not directly involved. I agree, but it is difficult to assume that the kind of restrictions imposed on liberty in this case did not in one way or another affect the right to respect for private life. I consider that such restrictions inevitably affect a person’s rights under Article 8 (art. 8) of the Convention.\n\nEven if we regard the restrictions imposed on Mr. Guzzardi as not depriving him of his liberty, they may constitute encroachment on his rights under Article 8 (art. 8).\n\nIn that case we have to examine whether the restrictions were necessary for the prevention of crime as provided by paragraph 2 of the Article (art. 8-2) in question.\n\nIf we find the curtailment of his rights under Article 8 (art. 8) to be necessary, the next question which arises is whether the steps taken and the conditions imposed did or did not exceed the bounds of necessity. Anyone reading Article 8 together with Article 17 (art. 17+8), which refers to limitations on the rights set forth in the Convention, would entertain no doubt as to the correctness of the above approach.\n\nIn the circumstances of this case, and taking into account all its aspects and the nature and extent of the restrictions imposed, I find that such restrictions exceeded the bounds of necessity and that the Government have committed a breach of Article 8 (art. 8).\n\nWith respect, I find myself in disagreement with the majority of the Court on the question of the exhaustion of domestic remedies in terms of Article 26 (art. 26) of the Convention.\n\nThis question can only be decided on the basis of the object and \"cause\" of the complaint or complaints before the domestic court or courts, and in deciding it I agree that express mention of the Article of the Convention alleged to have been violated is not indispensable so long as conduct contrary to it is actually set forth and complained of, which is after all what is really meant by raising the issue of a violation \"in substance\".\n\nBut in the present case it emerges that, with reference to his situation on Asinara, the applicant was essentially not complaining of conduct on the part of the State amounting to deprivation of liberty contrary even in substance to Article 5 (art. 5) to the Convention (which I consider to be the only relevant Article of the Convention in this case) or the comparable provisions (Article 13, paragraphs 1 and 2) of the Italian Constitution, but of certain conditions of his compulsory residence there, which might conceivably fall under other provisions of the Convention.\n\nRather than questioning the lawfulness of his detention on Asinara, the applicant questioned the lawfulness of the application of the Italian Act of 1956 to that particular locality and, as already stated, the conditions in which he was forced to live there. In this connection and without prejudice to what has been stated above concerning the non-indispensability of an express mention ut sic of the Article of the Convention alleged to have been violated, it is interesting to note that the Convention was in fact mentioned by other than that falling under Article 5 (art. 5) of the Convention, and the same applies also to the comparable provisions of the Italian Constitution.\n\nLastly, there is hardly any need to recall that in international law the local remedies rule is in fact based on the principle that the respondent State must in the first place have an opportunity to redress by its own means within the framework of its own domestic legal system the wrong alleged to have been done to the complainant. In the present case, in the light of the above and to the extent aforesaid, that is to say, with reference to Article 5 (art. 5) of the Convention, the applicant did not afford the Italian State such an opportunity, with the consequence that in this respect the whole purpose of the rule was frustrated.\n\n1. I have not found it possible to accept the majority view in this case, to the effect that the Italian Government is to be held responsible for a breach of the European Convention on Human Rights, and liable to any damages in the sum of one million Italian lire - even though this can be regarded as constituting little more than a token amount.\n\n2. I will not recapitulate facts and arguments that can be found fully set out in the judgment of the Court, and I shall ignore all the issues in the case except one. That issue - the essential one (if I leave out of account the question of whether the applicant [Guzzardi] did or did not exhaust his possible legal remedies in the Italian courts) - is whether his preventive detention on the island of Asinara - (or more accurately his compulsory residence under special supervision there) - amounted to a deprivation of liberty within the meaning of Article 5 § 1 (art. 5-1) of the Convention, or whether it did not, rather, consist simply of a restriction on \"liberty of movement and freedom to choose ... residence\" within the meaning of Article 2 § 1 of Protocol No. 4 (P4-2-1) to the Convention, - the point being that this Protocol (P4), like the other Protocols to the Convention, needs separate ratification in order to be binding, and Italy has not ratified it. If, therefore, the applicant was not deprived of his liberty as such - i.e. stricto sensu - but only restricted in his freedom of movement and choice of residence, there can have been no breach of the Convention, - and what might, otherwise, have involved a breach of Protocol No. 4 (P4) cannot do so because this Protocol (P4) is not binding upon Italy.\n\n3. At this point a preliminary question arises which, though not in itself decisive for the actual main issue, is closely related to it. Certainly before the Italian courts, the applicant does not appear to have challenged the legality of his preventive detention as such, but merely to have complained of the conditions of his banishment on Asinara - (that the area within which he had to stay was too small, that there was no available work for him to do, that he could not have his family with him, that he could not attend a place of religious worship, etc., etc.). In the proceedings before the European Commission of Human Rights (to which the case of course went in the first place), it seems uncertain whether the applicant took his complaint much further, or whether he ever definitely invoked Article 5 (art. 5) of the Convention or alleged any breach of it as such. Certainly his original complaints were exclusively based on Articles 3, 8 and 9 (art. 3, art. 8, art. 9) - (inhuman or degrading treatment, absence of respect for private and family life, and absence of freedom to manifest his religion in worship, etc.). There seem to be some grounds for thinking that it was largely the Commission, acting proprio motu, which decided that his complaint came under or involved Article 5 (art. 5) (deprivation of liberty), and which proceeded accordingly. This is significant because, since the Commission was unable to find any contravention of Articles 3, 8 and 9, (art. 3, art. 8, art. 9), Article 5 (art. 5) was left as the only one under which a breach of the Convention could be held to have occurred.\n\n4. In view of the uncertainty however, I do not wish to criticize as such the course taken by the Commission, but simply to register a general point of principle which I do not think is adequately dealt with in the relevant paragraphs of the Court’s judgment (nos. 58-63). The ultra petita (or as it is sometimes called, the ex, or extra, petita) rule precludes that an international tribunal or equivalent body should deal with matters that are not the subject of the complaint brought before it, and still more that it should give a decision on those matters against the defendant party in the case. If it does this, proprio motu, it is acting ultra vires. It would be perfectly proper for the Commission, if satisfied that a certain complaint has both definitely been made and was justified, to hold that a breach of a given Article of the Convention was involved, even though the complainant, while making the complaint, did not invoke that particular Article or allege a breach of it. It would be quite another thing, however, for an international tribunal or equivalent body to hold a sort of roving commission over the facts of a case in order to see whether, if established, some of them could be regarded as entailing an illegality or breach of treaty, - and then in due course to find that they could and did, although they were not matters (or not the actual matters) of which the plaintiff had complained or alleged any illegality or breach. This would be tantamount to saying to the plaintiff \"We do not think you have a good case in regard to the particular matters you have complained of, but we perceive other matters (or aspects of the case) which you did not complain of, but of which in our view you justifiably could have complained, and so we shall be happy to find in your favour in those respects.\" Of course it would never be put so crudely, but it might well in practice amount to that, however carefully wrapped up. The distinction involved can admittedly be a fine one, but is none the less real and important.\n\n*   *   *\n\n5. Assuming for the purposes of the argument that there was what amounted to, or implied, a complaint of deprivation of liberty, the question then is whether what occurred was truly of that kind, or was essentially in the nature of a restriction on freedom of movement and choice of residence. Some of the arguments for and against are summarized in paragraphs 90 and 91 of the judgment, and although there is much more to be said, I see no point in embarking on an elaborate analysis of what must in the long run remain a matter of appreciation and opinion, - namely whether the condition of the applicant’s existence on Asinara were sufficiently stringent to amount to a sort of imprisonment, even though a mild one as imprisonments go, or whether, on the other hand, there was no more than a banishment accompanied by measures of confinement to house and grounds but, subject to that, without any restriction on movement within an area of at least a half-mile radius, or more according to some accounts. This could be argued about endlessly and either view is reasonably maintainable - for the issue is essentially one of degree. What, to me, decisively tilts the balance is the fact of Article 2 § 1 of Protocol No. 4 (P4-2-1) to the Convention (see paragraph 2 above) – to which paragraph 92 of the Court’s judgment refers, but only ephemerally and without bringing out the real point.\n\n6. Article 2 of this Protocol (P4-2) states in terms that\n\nPut negatively, this prohibits restrictions on movement or place of residence, and from it certain deductions relevant to the present case can be drawn:\n\n(a) The existence of this provision shows either that those who originally framed the Convention on Human Rights did not contemplate that its Article 5 (art. 5) should go beyond preventing actual deprivation of liberty, or extend to mere restrictions on freedom of movement or choice of residence; - or else that the Governments of the Council of Europe did not see Article 5 (art. 5) as covering measures of \"deprivation of liberty\" where the basic character of those measures consisted primarily of restrictions on movement and place of residence, - or they would not have considered it necessary to draw up a separate Protocol about that. The resulting picture is that Article 5 (art. 5) of the Convention guaranteed the individual against illegitimate imprisonment, or confinement so close as to amount to the same thing - in sum against deprivation of liberty stricto sensu - but it afforded no guarantee against restrictions (on movement or place of residence) falling short of that. The latter was effected only by the Protocol, so that in those countries (of which  is one) that have not ratified it, such restrictions are not prohibited.\n\n(b) It follows that if Article 5 (art. 5) of the Convention is not to impinge on ground intended to be covered by Article 2 of the Protocol (P4-2), and is not to do double duty with the latter, it (Article 5) (art. 5) must be interpreted strictly and regarded as limited to cases of actual imprisonment or to detention close enough and strict enough to approximate to a virtually complete deprivation of liberty. This was certainly not the situation in regard to the applicant in the present case.\n\n(c) If Article 5 (art. 5) of the Convention were to be interpreted so widely as to include instances of what was basically restriction on freedom of movement or choice of residence, then not only would Article 2 of the Protocol (P4-2) be rendered otiose, but an indirect means would be afforded of making Governments subject to the obligations of the latter, despite the fact that they had not ratified the Protocol. This could not have been intended, but it is a possibility that can only be avoided by a strict interpretation of Article 5 (art. 5) that confines it to its proper sphere.\n\n7. It is of course obvious that all deprivation of liberty, especially if it takes the form of actual imprisonment or other close confinement, must imply restricting freedom of movement and choice of residence. It is inherently in its character to do so. But the reverse is not true. Mere exile or banishment, for instance, does not in itself involve deprivation of liberty, - or at any rate it is something that, per se, falls clearly on that side of the line which is occupied by the concept of restriction on movement and place of residence. Equally clearly, such restriction may be accompanied by conditions that turn it into a deprivation of liberty, as the Court has found to be the fact in the present case. Between the one concept and the other there may be many different degrees of circumstances and situation, so that it is always a question of where to draw the line which, as mentioned earlier, must in the last resort be a question of personal appreciation. Deducing, as I have done, from the existence of Article 2 of the Protocol (P4-2) that the concept of deprivation of liberty under Article 5 (art. 5) of the Convention must be interpreted fairly strictly, I come to the conclusion that the conditions of the applicant’s residence on Asinara do not bring his case within that concept, or at any rate that the Italian Government must be given the benefit of any doubt that may exist, as exist it does.\n\n8. Basically what happened to the applicant was not that he was imprisoned or confined, but that he was banished to an island on which he was assigned a place of residence (an ordinary house) and restricted to an area sufficiently big for him to be able to live a normal life except that he could not leave it without permission and was (and for that purpose had to be) under surveillance. To me all this has very much more the flavour of Article 2 of the Protocol (P4-2) than of Article 5 (art. 5) of the Convention, even if a residue of doubt may remain, - but in that event, is it right to condemn a Government for breach of the Convention in the presence of a very reasonable doubt as to whether any has occurred?\n\n9. There is another test that can be applied which, though not in itself conclusive, is highly relevant, and that is to ask what were the intentions of the Italian authorities in sending the applicant to Asinara? As I understand it, they could validly under Italian law have arrested and kept him in prison on suspicion of the offences in the nature of terrorism for which (subsequent to his preventive relegation to Asinara, and afterwards to Force) he was eventually condemned to 18 years’ imprisonment. The irony is that, had the authorities dealt with him in that way, no contravention of the Convention would have been involved because the matter would have been covered by one of the sub-paragraphs to Article 5 § 1 (art. 5-1) to which reference has been made in footnote 4 above. The Italian Government is therefore being condemned by the judgment of the Court for treating the applicant in a much more lenient way than the altogether harsher one they could legitimately have adopted without any infraction of the Convention. There is a manifest injustice here that could easily have been avoided. This situation also constitutes one of the many absurdities of the case - (and see further paragraph 12 below).\n\n10. What the Italian authorities clearly intended to do, and thought they were doing, was to put the applicant out of circulation so to speak, by sending him to reside in a place where, and under conditions which, would ensure that he could not do any serious harm, - but not otherwise to prevent him living a normal life, which was certainly not the normal life of a prisoner as is quite clear from the recorded facts. The case is therefore evidently one of obligatory residence in a certain place, accompanied by restrictions on any movement outside the general area of that place. The Court could easily have so held, and the judgment does not, in my opinion, furnish any convincing explanation of why it did not do so. But until the Court modifies the general trend of its present policy in the interpretation of the Convention, this sort of thing will doubtless continue, - and one of the consequences will be that, provided they keep within the letter of the Convention, governments will have no particular inducement to conform to its spirit - since, as this case shows, doing so can be penalized as much as not so doing.\n\n11. In this connexion, and in general, I consider that the Court failed to give any adequate weight - if weight at all - to the fact that the applicant was a terrorist and mafioso. Naturally these factors would not justify treating him in a manner clearly, or at any rate substantially, contrary to the Convention. But where there are grounds for genuine doubt whether any contravention has in fact occurred, such factors, though in no way conclusive per se, may legitimately be taken into account (I do not put it any higher than that) in deciding how to set about resolving the doubt - again I put it no higher. In the present case, however, the Court completely ignored the plea of the Italian Government to the effect that public order in Italy at this time was seriously menaced by threats coming essentially from political terrorism and the mafia, and that the authorities were under strong pressure to combat these evils by draconian measures - pressure which they had so far resisted, as was exemplified in the case of Guzzardi by the relative leniency of his original treatment as described in paragraph 8 above. This very much sharpens the moral of the conclusion suggested in the last few lines of paragraph 10.\n\n12. The process of simply ignoring the whole context in which a case occurs is bound to lead to injustices and absurdities, one instance of which was given supra in paragraph 9. The present case in fact bristles with absurdities. Another instance of this is that, as pointed out by the Italian Government, whereas by reason of sub-paragraph (e) of Article 5 § 1 (art. 5-1-e) of the Convention, a vagrant can, merely by reason of his being such, be placed under detention without any contravention of the Convention, a known terrorist cannot even have his movements restricted under the conditions applied to Guzzardi without such a breach resulting – if the judgment of the Court is correct. To be sure, modern terrorism was an evil not specifically present to the minds of those who drafted the Convention, or they would doubtless have provided for it. Again, it is admittedly for governments and none other to remedy this defect: the Court cannot do so by deeming a terrorist to be a vagrant even though he is in fact much worse than a vagrant (who may well be a harmless individual, which a terrorist never is). But this does not alter the fact that, according to the order of things resulting from the Court’s judgment, a terrorist may be much better off than a vagrant. (He may even be paid a million lire!). All these absurdities could have been avoided by an attitude of greater realism against the background of the case, leading to the conclusion – for which there was ample warrant on the facts - that the case was basically one of restriction on movement and place of residence and not one of deprivation of liberty under Article 5 (art. 5) of the Convention, interpreted, as it has to be, in the light of the existence of Article 2 of Protocol No. 4 (P4-2).\n\n*   *   *\n\n13. It is therefore with regret (especially as this is the last occasion on which I shall be delivering an opinion in my present capacity) that I feel obliged to regard the judgment of the Court as involving a serious and avoidable miscarriage of justice - not the less so because a Government not an individual was affected, and though I know that none was intended. This outcome is, I think, compounded by the monetary award made to the applicant, which carries matters into that region of the absurd to which the English expression of \"cloud-cuckoo land\" applies. In my view, the fact that a decision should have been given in his favour in such a debatable case and on the basis of an, at most, technical breach of the Convention, lacking in any real substance - this constituted in itself a more than sufficient satisfaction that did not require any embroidery.\n\nThe Court considered that it had to reject the preliminary objection based on non-exhaustion of domestic remedies and conclude, as regards the merits of the case, that there had been a violation of Article 5 (art. 5) of the Convention. I regret that I disagree with the majority of my colleagues on these two points. I shall endeavour to set out as briefly as possible the reasons for my dissent.\n\n1. As regards the exhaustion of domestic remedies, I should like to take the liberty of making a preliminary observation to which I attach importance. The judgment applies to the proceedings on appeal and in cassation, in other words to the domestic proceedings, the principle that the rule of exhaustion must be interpreted \"with a certain degree of flexibility and without excessive regard for matters of form\" (§ 72). This principle is certainly correct if one applies it to the international rule itself when one is in the process of determining its scope. On the other hand, to apply it to domestic law in order to determine and interpret the conditions laid down there under in the matter of remedies amounts to endowing the international court with jurisdiction to interpret that law and, in the final analysis, to base itself on a domestic law that does not exist. Reference back to domestic law by the rule of exhaustion of domestic remedies can only mean a reference back to that law as interpreted by domestic case-law [see, on this point, Jacobs, The European Convention on Human Rights, , 1975, p. 240]. I thus conclude that there was no call to enquire whether \"in the Court’s view\" the pleas advanced by the applicant on appeal and in cassation were equivalent to an allegation of a breach of the right to individual liberty. What should have been done, in my view, was to determine whether, in the light of Italian legislation and case-law, Mr. Guzzardi had exercised such remedies and adduced such arguments as were capable of leading to the reversal of the decision he was challenging. I would add that the case-law of the Court and the Commission relied on by the judgment in support of its extensive interpretation definitely does not corroborate that interpretation; indeed, in each of the cases mentioned the principle that the rule of exhaustion of domestic remedies should be flexibly interpreted concerns the scope of the international obligation and not the interpretation of domestic law.\n\nHaving said that and turning now to the question whether or not remedies were exhausted in this particular case, I cannot do better than to refer to the dissenting opinion of the President, Mr. Balladore Pallieri, the national judge, with which I entirely agree.\n\n2. As regards the merits of the case, I am not convinced that, as the judgment has it, \"the difference between deprivation of and restriction upon liberty is ... merely one of degree or intensity, and not one of nature or substance\". Of course, I have no difficulty in accepting that the restrictions on liberty of movement to which Mr. Guzzardi was subjected were particularly severe. However, I do not detect in those restrictions the features which would make it possible to speak of \"deprivation\" of liberty. Mr. Guzzardi was not confined within the perimeter of a prison and his living conditions - albeit far from agreeable - were in striking contrast with those that obtain in prison: thus, he could spend his time as he chose, he was not obliged to work, and, for the greater part of his stay on Asinara, he was able to live together with his wife and his son - and even for a while with his parents-in-law. One could add to this list. I am therefore inclined to the view that the compulsory residence order imposed on Mr. Guzzardi did not constitute deprivation of liberty.\n\n3. However, even if I assumed for the sake of argument that there had been deprivation of liberty, I would not hold that there had been a violation of Article 5 (art. 5) of the Convention, since this measure would have been justified under sub-paragraph (c) of paragraph 1 of that Article (art. 5-1-c). It is particularly in this connection that I find it imperative to take account of the \"general context of the case\"; the judgment refers to this aspect of the matter without, however, drawing there from any real consequences, whereas its importance is rightly emphasised by Judge Matscher in his dissenting opinion.\n\nIn making provision for compulsory residence the Italian Acts of 1956 and 1965 are designed to separate from their habitual milieu certain individuals, such as members of the mafia, who, although this cannot actually be proved, obviously live off criminal activities, the object being to prevent them from continuing such activities. There can be no doubt that these purposes are consonant with the aims recognised as legitimate by Article 5 § 1 (c) (art. 5-1-c); this is especially true of the second reason mentioned in that provision: \"when it is reasonably considered necessary to prevent his committing an offence\". The judgment rejects this possibility on the ground that the sub-paragraph (art. 5-1-c), which speaks of \"an\" offence, is not adapted to a \"policy of general prevention directed against an individual or a category of individuals who, like mafiosi, present a danger on account of their continuing propensity to crime\" (§ 102). This narrow interpretation is not without paradoxical results: it means that one is entitled to imprison persons presumed to have committed the occasional crime but that one is forbidden to imprison persons belonging to criminal associations, whose particularly dangerous character resides precisely in the fact that it is extremely difficult to obtain evidence of their criminal activities which is sufficient in law and who can be prevented only by certain restrictive measures from pursuing those activities. The wording of Article 5 § 1 (c) (art. 5-1-c) probably denotes that this problem was not fully thought through; it does not, however, prevent a democratic State from taking the requisite protective measures when organised crime threatens to destroy its legal institutions. The very terminology employed in the sub-paragraph (art. 5-1-c), which clearly refers to activities that are manifestly criminal and not to activities covered by the rights and freedoms guaranteed by the Convention, renders groundless the fear that a less restrictive interpretation would favour the institution of a police state.\n\nThe judgment also throws doubt on the lawfulness under sub-paragraph (c) (art. 5-1-c) of the measure in question, on the ground that, leaving aside the manner of its implementation, an order for compulsory residence as such does not constitute deprivation of liberty. As a general statement, this last observation is certainly correct. However, it must not be forgotten that Italian case-law has recognised that an order for compulsory residence in part of a district, such as Asinara, was in conformity with the law. That the Court should now classify the measure as \"deprivation of liberty\" in no way alters its \"lawfulness\" under Italian law.\n\nFinally, the requirements of Article 5 § 3 (art. 5-3) were satisfied in the present case. In fact, as soon as he had been released from detention on remand, Mr. Guzzardi was brought, under arrest, before a court and that court issued the compulsory residence order; there was thus no reason for requiring that he be brought before a court another time. What Mr. Guzzardi might have claimed - always on the assumption that he had been deprived of his liberty - was compliance with Article 5 § 4 (art. 5-4), a provision which anyway was not alleged to have been violated.\n\nI therefore conclude from the above that in any event  has not violated Article 5 (art. 5), but that the Court should have refrained from ruling on the merits of the case.\n\nI. For the reasons set out by the President, Mr. Balladore Pallieri, in his dissenting opinion with which we agree entirely, we consider that Guzzardi’s application was inadmissible on account of failure to exhaust domestic remedies.\n\nII. On the violation of Article 5 (art. 5) of the Convention\n\nThe Court’s judgment states: \"The difference between deprivation of and restriction upon liberty is ... merely one of degree or intensity, and not one of nature or substance. ... the process of classification into one or other of these categories sometimes proves to be no easy task in that some borderline cases are a matter of pure opinion.\"\n\nTaking this statement of principle as our starting-point, as does the judgment, we consider for our part that on Asinara Guzzardi was not \"deprived of his liberty\" within the meaning of Article 5 (art. 5) of the Convention.\n\nAlthough he could move around within no more than a limited sector of the island, he was able to live there with his family - as indeed he did for fourteen months out of sixteen -, to talk freely with his companions, to telephone outside the island subject to police supervision and even to go to Sardinia and the mainland. Assessing this situation as an issue of fact, we think that it did not fall within the ambit of the prohibition contained in Article 5 (art. 5) of the Convention (but it was probably a borderline case).\n\nIII. In the alternative\n\nAs the Court acknowledges in its judgment, it was not called upon in the present case to review the Italian Acts of 1956 and 1965 under the Convention but solely to determine the concrete issue before it. This means that it had to enquire whether the living conditions to which, by virtue of those Italian Acts, Guzzardi was subjected on the  amounted, in the context of the case, to a violation of the Convention. However, in assessing the facts, the judgment leaves aside one of the concrete aspects of this issue.\n\nGuzzardi’s situation on Asinara was not that of a person who is simply suspected by the police of having committed an offence or of being about to do so.\n\nIn 1973, he had been lawfully charged by the judicial authorities with conspiracy and being an accomplice to the abduction of a businessman who had been freed only after payment of a substantial ransom; after being charged, he had been detained in prison on remand.\n\nHis detention on remand was authorised by sub-paragraph (c) of paragraph 1 of Article 5 (art. 5-1-c) of the Convention and, according to paragraph 3 of the same Article (art. 5-3), could have continued throughout the \"reasonable time\" required for the conclusion of the proceedings instituted against him, that is to say for probably more than two years in view of the serious difficulties encountered in the case of proceedings directed against the mafia.\n\nNevertheless, after two years and pursuant not to the Convention but to Article 272 of the Italian Code of Criminal Procedure, the judicial authorities had been obliged to terminate Guzzardi’s imprisonment; at that point, however, they had subjected him to an order for compulsory residence on Asinara, pursuant to the 1956 and 1965 Acts.\n\nOf course, whilst he was on the island he remained charged with a crime for which he was, in fact, subsequently sentenced to eighteen years’ imprisonment.\n\nAccordingly, the concrete question which the Court had to determine was the following:\n\nHave the judicial authorities, which could have held Guzzardi in a remand prison for more than two years without violating the Convention, violated it by substituting for his imprisonment his compulsory residence on Asinara in the living conditions to which he was subjected there?\n\nIt seems to us that a negative reply was called for. In fact, the judgment does not expressly state the contrary, but it asserts, by reference to the system of the \"double barrier\", that the factual conditions of detention on Asinara violated the provisions of the Italian Acts of 1956 and 1965 and thereby indirectly violated the Convention, since Article 5 (art. 5) authorises detention only if in the first place it is lawful under domestic law.\n\nHowever, if it was a question of interpreting, and of reviewing the application of, the Italian legislation, could the Milan Court of Appeal’s judgment of 12 March 1975 and the Court of Cassation’s judgment of 6 October 1975 be disregarded? These were judgments on appeals lodged by Guzzardi and in turn they held that the living conditions to which he was subjected on Asinara did not constitute a violation of Italian law. It appears to us that it was not appropriate to set against these judgments nothing more than bare assertions.\n\nIn the absence of more persuasive reasons, we consider, on the assumption that Guzzardi was actually \"deprived\" of his liberty on Asinara, that such deprivation of liberty should have been regarded as authorised, in the present case, by sub-paragraph (c) of paragraph 1 of Article 5 (art. 5-1-c) of the Convention.\n\n1. On two points, concerning the merits of the present case, I am unable to share the opinion of the majority of the Court. I have a principal and also a secondary reason for arriving at a final conclusion that there has not been a violation of Article 5 § 1 (art. 5-1) of the Convention.\n\n2. In its observations preceding the examination of the merits of the case and after a brief reference to the background circumstances, the Court observes that it must avoid \"losing sight of the general context of the case\" (see paragraph 88 of the judgment). I agree entirely with this statement and it has also guided me in my approach to the application of Article 5 (art. 5) of the Convention to the instant case.\n\nThe nature of the Convention system is such that in the first place it is left to the Governments of the Contracting States to take the measures they deem appropriate for the accomplishment of their tasks. Amongst those tasks, the protection of the fundamental rights of the general public plays a pre-eminent role. At the same time, it is for the Convention institutions to review those measures in order to determine whether or not they are in conformity with the requirements of the Convention. In the course of this review, the provisions of the Convention should not be interpreted in a vacuum; the measures complained of must always be put back into the general setting to which they belong.\n\nThe principle that account must be taken of the general context of the case when examining an application concerning the alleged violation of a fundamental right does not in any way mean that - save for the possibility referred to in Article 15 (art. 15) of the Convention - exceptional circumstances allow the Contracting States to take measures that are not compatible with the requirements of the Convention. On the other hand, I do deduce from this principle that certain measures which, from the viewpoint of the Convention, might be seen as open to considerable criticism in a so-called normal situation are less open to criticism and can be considered as being in conformity with the Convention when there is a crisis over-shadowing public order and notably when rights of others, which are also guaranteed by the Convention, are being threatened by the activities of certain dangerous and anti-social elements. Such a crisis was obtaining in  at the time when the present case began.\n\nFurthermore, the aim pursued by the authorities of a respondent State in adopting a particular measure can also not be left entirely out of account when that measure is being reviewed under a given provision of the Convention. It should be stressed that in the present case it was a question of a democratic State struggling to protect the fundamental rights of the general public and that the measures complained of were fully consistent with this aim.\n\nAfter all, it was similar reasoning that led the Court to conclude that the Convention had not been violated in the Klass case (see the judgment of 6 September 1978, Series A no. 28, especially paragraphs 48, 59 and 60, pp. 23 and 27-28).\n\n3. In reviewing the measure applied to Mr. Guzzardi, the judgment concludes that, taken as a whole, it constituted not just a restriction but a deprivation of liberty within the meaning of Article 5 § 1 (art. 5-1) of the Convention. I do not agree.\n\nIt is obvious to me that the concept of \"deprivation of liberty\" is not a matter for formal and precise criteria; quite the contrary – it is a concept of some complexity, having a core which cannot be the subject of argument but which is surrounded by a \"grey zone\" where it is extremely difficult to draw the line between \"deprivation of liberty\" within the meaning of Article 5 § 1 (art. 5-1) and mere restrictions on liberty that do not come within the ambit of that provision.\n\nIn fact, the Convention system has itself introduced (in Article 2 of Protocol No. 4) (P4-2), alongside the concept of \"deprivation of liberty\", the concept of \"restrictions on liberty of movement\" and, as the Court has rightly observed (see paragraph 93 of the present judgment), the difference between the two is merely one of degree or intensity, and not one of nature or substance. In addition, the bounds that Article 5 (art. 5) requires the Contracting States not to exceed in their judicial, disciplinary and police systems may vary from one situation to another (see the Engel judgment of 8 June 1976, Series A no. 22, p. 25, § 59).\n\nAccordingly, only a careful analysis of the various factors which together made up Mr. Guzzardi’s situation on Asinara can provide an answer to the question whether or not that situation fell within the concept of \"deprivation of liberty\" within the meaning of Article 5 § 1 (art. 5-1). Since this is a matter of opinion, different views are clearly tenable.\n\nPersonally, I do not attach quite the same weight as the majority of the Court to these various factors (they are set out in paragraph 95 of the present judgment and it thus seems to me superfluous to repeat them here), taken individually and together. In addition, I take the \"general context of the case\" into account. The whole leads me to the conclusion that the measure applied to Mr. Guzzardi amounted to a serious restriction on his liberty, which was motivated by perfectly understandable reasons and was also in conformity with Italian law, but that it did not attain the level and intensity that would cause it necessarily to be classified as a deprivation of liberty within the meaning of Article 5 § 1 (art. 5-1) of the Convention.\n\n4. As a purely secondary point, the measure taken against Mr. Guzzardi could be regarded as covered by sub-paragraph (c) of Article 5 § 1 (art. 5-1-c). The Court reviewed the position under this sub-paragraph (art. 5-1-c), but came to a negative conclusion. Here again, I do not share the views of the majority, for the following reasons:\n\nOn account of the rule in Article 272, first paragraph, of the Italian Code of Criminal Procedure, Mr. Guzzardi’s detention on remand within the meaning of that Code had had to terminate on 8 February 1975. However, he remained subject to criminal charges throughout his enforced stay on Asinara.\n\nAs the Court itself pointed out, it is true that there was \"reasonable suspicion of [Mr. Guzzardi’s] having committed an offence\"; it would also be difficult to deny that it was \"reasonably considered necessary to prevent his ... fleeing after having done so\". The conditions which constitute, probably under the laws of all the States, the \"classic\" reasons for detention on remand were thus satisfied in Mr. Guzzardi’s case. Besides, it seems that the Italian authorities as well saw his situation in this light: they selected Asinara as the place for compulsory residence because that island was particularly well suited for separating the applicant from his apparently Mafioso milieu (see the Milan Court of Appeal’s judgment of 12 March 1975 and the Court of Cassation’s judgment of 6 October 1975: paragraphs 17 and 19 of the present judgment); the authorities were extremely cautious about granting authorisations for visits to Sardinia or the mainland since they feared that he might make use of such occasions in order to escape (see paragraph 14 of the present judgment). In short, these were reasons which underlie detention on remand.\n\nIt remains to determine whether the order for Mr. Guzzardi’s compulsory residence, seen from this viewpoint, was \"lawful\" under Italian law, within the meaning of Article 5 § 1 (c) (art. 5-1-c) of the Convention. Here, doubts could arise as to the compatibility of the second reason (danger of flight) with the aim of the Italian Acts of 1956 and 1965 with which, as a matter of form, the order for Mr. Guzzardi’s residence on Asinara had to comply. On the other hand, the first reason (separation from other supposedly criminal elements) was perfectly consonant with the aim of these Acts.\n\nIn addition, according to the settled case-law of the Italian courts, an order for compulsory residence could under certain conditions, which were satisfied in the present case, refer even to a given locality within a district and, under the same conditions, the \"curtailment\" of, and the \"undoubted limitations\" on, the \"various rights\" which compulsory residence on Asinara entailed for Mr. Guzzardi, were also in conformity with Italian law (see paragraph 19 of the present judgment).\n\nThe conditions laid down in paragraphs 2 and 3 of Article 5 (art. 5-2, art. 5-3) of the Convention were also satisfied in this instance: it must be presumed - and there was no allegation to the contrary - that, when Mr. Guzzardi had been arrested and charged on 8 February 1973, he had been informed of the reasons for his arrest and of the charges against him and that he had been brought promptly before the investigating judge, the transfer to Asinara on 8 February 1975 being in substance but a prolongation of the applicant’s detention on remand.\n\nI conclude from the above that Mr. Guzzardi’s compulsory residence on Asinara from 8 February 1975 to 22 July 1976, even if one considered that it should be classified as a deprivation of liberty within the meaning of Article 5 § 1 (art. 5-1) of the Convention, was covered by sub-paragraph (c) of that Article (art. 5-1-c).\n\n1. Mr. Guzzardi obtained satisfaction, before the Commission adopted its report, by being transferred to the mainland.\n\nThe Ministry of the Interior decided in August 1977 to strike the  out of the list of places for compulsory residence.\n\nThe Commission’s report is dated 7 December 1978.\n\nI consider that the case should be struck out of the list (disappearance of the object of the proceedings).\n\n2. In my view, Mr. Guzzardi was not deprived of his liberty; his liberty was simply restricted (on this point I agree with paragraphs 2 and 3 of Judge Matscher’s opinion).\n\n3. There being no violation, the applicant should not be afforded any sum under Article 50 (art. 50).","title":""}
{"_id":"passage_805","text":"PROCEDURE\n\n1.  The case originated in an application (no. 74532/01) against the  lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mrs Ayşe Yatır (“the applicant”), on 1 July 1998.\n\n2.  The applicant was represented by Ms Ö. Sözer, a lawyer practising in . The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.\n\n3.  On 16 October 2001 the Court decided to communicate the application to the Government. In a letter of 19 October 2004, the Court informed the parties that, in accordance with Article 29 §§ 1 and 3 of the Convention, it would decide on both the admissibility and merits of the application.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n4.  The applicant was born in 1958 and lives in .\n\n5.  The General Directorate of National Roads and Highways (Devlet Karayolları Genel Müdürlüğü), a State body responsible, inter alia, for motorway construction, expropriated four plots of land belonging to the applicant in İçel in order to build a motorway. A committee of experts assessed the value of the land and the sum so fixed was paid to her when the expropriation took place.\n\n6.  Following the applicant’s request for increased compensation, on 31 December 1993 the Mersin Civil Court of First Instance awarded her additional compensation of 238,172,000 Turkish liras (TRL) (approximately 14,341 euros (EUR)), plus interest at the statutory rate applicable at the date of the court’s decision, running from 22 June 1993.\n\n7.  On 15 December 1997 the Court of Cassation upheld the judgment of 31 December 1993.\n\n8.  On 21 April 1998 the administration paid the applicant TRL 651,598,000 (approximately EUR 2,391) in additional compensation, together with interest.\n\nII.  RELEVANT DOMESTIC LAW AND PRACTICE\n\n9.  The relevant domestic law and practice are set out in the Aka v. Turkey judgment of 23 September 1998 (Reports of Judgments and Decisions 1998-VI, §§ 17-25).\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1\n\n10.  The applicant complained that the additional compensation for expropriation, which she had obtained from the authorities only after four years and nine months of court proceedings, had fallen in value, since the default interest payable had not kept pace with the very high rate of inflation in . She relied on Article 1 of Protocol No. 1, which reads as follows:\n\n“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.\n\nThe preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”\n\nA.  Admissibility\n\n11.  The Government maintained that the applicant had not exhausted domestic remedies, as required by Article 35 § 1 of the Convention, because she had failed to make proper use of the remedy available to her under Article 105 of the Code of Obligations. Under that provision, she would have been eligible for compensation for the losses allegedly sustained as a result of the delays in payment of the additional compensation if she had established that the losses exceeded the amount of default interest.\n\n12.  The Court observes that it dismissed a similar preliminary objection in the case of Aka v. Turkey (cited above, §§ 34-37). It sees no reason to do otherwise in the present case and therefore rejects the Government’s objection.\n\n13.  It finds that, in the light of the principles it has established in its case-law (see, among other authorities, the aforementioned Aka v. Turkey judgment) and of all the evidence before it, the application requires examination on the merits and there are no grounds for declaring it inadmissible.\n\nB.  Merits\n\n14.  The Court has found a violation of Article 1 of Protocol No. 1 in a number of cases that raise similar issues to those arising here (see Akkuş v. Turkey, judgment of 9 July 1997, Reports 1997IV, § 31, and Aka, cited above, §§ 50-51).\n\n15.  Having examined the facts and arguments presented by the Government and the applicant, the Court considers that there is nothing to warrant a departure from its findings in the previous cases. It finds that, as a result of the delay in paying the compensation, the low interest rates and the length of the proceedings as a whole, the applicant has had to bear an individual and excessive burden that has upset the fair balance that must be maintained between the demands of the general interest and protection of the right to the peaceful enjoyment of possessions.\n\n16.  Consequently, there has been a violation of Article 1 of Protocol No. 1.\n\nII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n17.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Pecuniary and non-pecuniary damage\n\n18.  The applicant claimed for pecuniary damage a sum of 19,684.36  dollars (USD) (EUR 16,123), plus interest for the loss she has endured since 21 April 1998.\n\n19.  The Government contested her claim.\n\n20.  Using the same method of calculation as in the Aka judgment (cited above, §§ 55-56) and having regard to the relevant economic data and the applicant’s claim, the Court awards the applicant EUR 26,000 for pecuniary damage.\n\nB.  Costs and expenses\n\n21.  The applicant also claimed reimbursement of the costs and expenses incurred before the Commission and the Court, but left the amount to the discretion of the Court. She did not produce any supporting documents.\n\n22.  The Government did not make any comment on the applicant’s claim.\n\n23.  Making its own estimate based on the information available, the Court considers it equitable to award the applicant the global sum of EUR 1,000 under this head.\n\nC.  Default interest\n\n24.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Declares the application admissible;\n\n2.  Holds that there has been a violation of Article 1 of Protocol No. 1 of the Convention;\n\n3.  Holds\n\n(a)  that the respondent State is to pay the applicant within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following global sums plus any tax that may be chargeable at the date of payment, to be converted into new Turkish liras at the rate applicable at the date of settlement:\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n4.  Dismisses the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 7 February 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_439","text":"PROCEDURE\n\n1.  The case was referred to the Court, in accordance with the provisions that applied before Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) entered into force, by the European Commission of Human Rights (“the Commission”) on 6 March 1999 (Article 5 § 4 of Protocol No. 11 and former Articles 47 and 48 of the Convention).\n\n2.  The case originated in an application (no. 33933/96) against the French Republic lodged with the Commission under former Article 25 of the Convention by a French national, Mr Jean-Claude Guisset (“the applicant”), on 31 May 1996.\n\n3.  The applicant alleged, in particular, a violation of Article 6 § 1 of the Convention on account of the length of proceedings and the lack of a public hearing before the Disciplinary Offences (Budget and Finance) Court.\n\n4.  The application was declared partly admissible by the Commission on 9 March 1998. In its report of 20 October 1998 (former Article 31 of the Convention)2, it expressed the opinion that there had been a violation of Article 6 § 1 on account of the length of the proceedings in issue (by twenty-three votes to four) and of the lack of a public hearing before the Disciplinary Offences (Budget and Finance) Court (by twenty-one votes to six).\n\n5.  The applicant was represented before the Court by Mr G. Delvolve of the Conseil d'Etat and Court of Cassation Bar. The French Government (“the Government”) were represented by their Agent, Mr R. Abraham, Head of Legal Affairs, Ministry of Foreign Affairs.\n\n6.  On 31 March 1999 a panel of the Grand Chamber determined that the case should be decided by a Chamber constituted within one of the Sections of the Court.\n\n7.  The President of the Court, Mr L. Wildhaber, subsequently allocated the case to the First Section (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber designated to examine the case (Article 27 § 1 of the Convention) was constituted in accordance with Rule 26 § 1 (a). The Chamber included ex officio Mr J.P. Costa, the judge elected in respect of France (Article 27 § 2 of the Convention and Rule 26 § 1 (a)). Following Mr Costa's withdrawal, the Government appointed Mr B. Pacteau to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1). Subsequently Mrs E. Palm, who was unable to take part in the further consideration of the case, was replaced by Mrs W. Thomassen (Rule 28 § 1).\n\n8.  The Registrar received the applicant's memorial on 25 June 1999 and the Government's memorial on 2 July 1999.\n\n9.  On 12 October 1999 the Court decided, after consulting the parties, that there was no need to hold a hearing (Rule 59 § 2).\n\n10.  With the leave of the President, the applicant produced supplemental observations on 24 January 2000.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n11.  The applicant was the French ambassador to the United Arab Emirates from December 1977 to March 1982.\n\n12.  On an audit of the accounts and the administration of the French Secular Mission and the International Academic and Cultural Foundation for the years 1976 to 1983, the Audit Court discovered various irregularities relating to the building of a school in Abu Dhabi.\n\n13.  The French school in Abu Dhabi, which was run by a school parents' association that owned the buildings, was opened in 1974 and occupied land belonging to the French State.\n\n14.  In March 1981 the local authorities requested that the land be returned to the municipality of Abu Dhabi on 30 June 1981 in exchange for another plot of land situated in the embassies' district in the outskirts. The exchange was approved by the relevant interministerial commission.\n\n15.  New buildings were built on the land in time for the start of the 1981/82 school year. The school, now the Louis-Massignon Upper Secondary School, was the first phase of a larger development known as the “Franco-Arabic Sheikh Khalifa Cultural Centre”, which also includes arts and leisure centres.\n\n16.  The development was financed by two loans of fifteen million dirhams (approximately seventeen million French francs (FRF)) each, taken out in June 1980 and May 1981 for terms of ten and twenty years respectively at an interest rate of 4% (subsequently reduced to 2%) from the government of the Emirate of Abu Dhabi.\n\n17.  The loans, which were binding on the State, were signed by the applicant in his capacity as ambassador and in the name of the French embassy. However, in contravention of the Rules governing State Income and Expenditure, the applicant failed to request authority to sign the agreements, thereby committing an offence under Article L. 313-1 of the Financial Judicature Code, which makes misconduct of the financial affairs of the State or of certain authorities a criminal offence and establishes the Disciplinary Offences (Budget and Finance) Court.\n\n18.  By a decision of 15 February 1984, the Audit Court, following an “audit of the accounts and the administration of the French Secular Mission and the International Academic and Cultural Foundation for the 1976 to 1983 financial years”, committed the applicant to stand trial before the Disciplinary Offences (Budget and Finance) Court. That decision, which the applicant was not informed of, was lodged with the registry of the Disciplinary Offences (Budget and Finance) Court on 9 August 1984.\n\n19.  After 3 July 1986, when the decree terminating his term as ambassador to Bolivia (the post to which he had been assigned after the United Arab Emirates) was issued, the applicant was given no further posting or promotion but continued to receive his basic salary without compensation.\n\n20.  On 11 February 1987 Principal State Counsel at the Audit Court, in his capacity as public prosecutor at the Disciplinary Offences (Budget and Finance) Court, applied for an investigation to be started and for the appointment of a judge rapporteur, who was designated by the President on 9 March 1987. The applicant, who had been informed on 10 June 1987 that an investigation was under way and of his right to instruct counsel, was heard by the judge rapporteur on 25 June and 3 July 1987. On 13 April and 4 November 1988 respectively, the opinions of the Minister for Foreign Affairs and the Minister for the Budget were received.\n\n21.  By a decision of 15 November 1988, Principal State Counsel made an order committing the applicant for trial before the Disciplinary Offences (Budget and Finance) Court.\n\n22.  On 7 February 1989 the applicant was informed by the President of the Disciplinary Offences (Budget and Finance) Court that he could inspect the case file at the secretariat of that court.\n\n23.  On 24 March 1989 the applicant lodged a memorial in defence with the registry of the Disciplinary Offences (Budget and Finance) Court.\n\n24.  On 11 April 1989 the applicant lodged a complaint against a person or persons unknown with the public prosecutor's office at the Paris tribunal de grande instance concerning withdrawals of funds from the Franco-United Arab Emirates Cultural Association after his departure from Abu Dhabi.\n\n25.  On 13 April 1989 he made an application to the Disciplinary Offences (Budget and Finance) Court for the proceedings against him to be stayed until the final determination of the aforementioned complaint and sought additional information in order to obtain communication from the Ministry of Foreign Affairs of information and supplemental documentation, and from the Audit Court of the reports lodged when his committal for trial was ordered.\n\n26.  In a judgment of 17 April 1989, which was served on the applicant on 3 October 1989, the Disciplinary Offences (Budget and Finance) Court dismissed his application on the ground that “... the documents in the investigation file [were] sufficient to enable the Court to reach its decision without there being any need for other evidence or to await the outcome of the aforementioned complaint”. It imposed a fine of FRF 2,000 on the applicant for contravening the Rules governing State Income and Expenditure.\n\n27.  On 4 December 1989 the applicant appealed on points of law to the Conseil d'Etat and on 4 April 1990 he lodged written submissions.\n\n28.  The appeal on points of law was declared admissible by the Conseil d'Etat on 25 January 1991 and communicated on 14 February 1991 to the Minister for the Budget and on 18 April to the Minister for Foreign Affairs. The former lodged submissions in defence on 11 April 1991 and the latter on 3 September 1991.\n\n29.  On 22 July 1991 the case file was communicated to the applicant's lawyer to enable him to lodge submissions in reply.\n\n30.  By a judgment of 29 December 1993, the Conseil d'Etat reversed the judgment of 17 April 1989 of the Disciplinary Offences (Budget and Finance) Court, holding:\n\n“[The applicant] had maintained before the Disciplinary Offences (Budget and Finance) Court that the committal order of 15 February 1984 by which the Second Regional Audit Board decided to refer the case to the Disciplinary Offences (Budget and Finance) Court pursuant to section 16 of the Law of 25 September 1948, as amended, was defective. The objection raised by [the applicant] before the Disciplinary Offences (Budget and Finance) Court must be regarded as a submission that the proceedings brought against [him] were inadmissible ... Since it failed to rule on that preliminary objection, the decision of the Disciplinary Offences (Budget and Finance) Court was invalid for want of sufficient reasoning. [The applicant's] request to have that decision set aside is accordingly founded...”\n\n31.  The case was remitted to the Disciplinary Offences (Budget and Finance) Court and registered with that court on 24 January 1994.\n\n32.  In a letter dated 4 January 1995, the President of the Disciplinary Offences (Budget and Finance) Court informed the applicant that he could inspect the case file at the secretariat of the court. However, that letter was returned marked “does not live at the stated address”. A further letter was sent to the applicant on 23 January 1995.\n\n33.  On 20 March 1995 the applicant lodged his submissions with the Disciplinary Offences (Budget and Finance) Court. He appeared before that court on 12 April 1995.\n\n34.  After the hearing, which began with representations from the judge rapporteur, followed by legal submissions by Principal State Counsel, explanations from the applicant assisted by his lawyer, applications from Principal State Counsel and lastly oral submissions by counsel for the applicant, the final speech being by the applicant and his counsel, the Disciplinary Offences (Budget and Finance) Court delivered judgment on 12 April 1995. The judgment was served on 28 December 1995. With regard to the defence based on an alleged violation of Article 6 § 1 of the European Convention on Human Rights, it concluded:\n\n“The defence refers to the aforementioned Convention, and in particular to Article 6 § 1 of that Convention, inasmuch as the court is allegedly called upon to determine civil rights and obligations or a criminal charge. Under that provision, it is said that [the applicant] is entitled to a public hearing within a reasonable time. He claims that the proceedings in the present case have exceeded a reasonable time, since more than ten years elapsed between the registration of the committal order by the public prosecutor's office at the court on 9 August 1985 and the letter of 21 March 1995 from Principal State Counsel summoning [the applicant] to appear on 12 April 1995. Accordingly, it is claimed that by reason of the unreasonable length of the proceedings, the offence is time-barred and the proceedings null and void, both under the ... Convention referred to above and section 30 of the Law of 25 September 1948, as amended.\n\nThe fines imposed pursuant to the Law of 25 September 1948 by the Disciplinary Offences (Budget and Finance) Court did not relate to the determination of civil rights and obligations or of a criminal charge. They are thus outside the scope of the provisions of paragraph 1 of Article 6 of the Convention ... The applicant is therefore unable to rely on those provisions of the Convention in support of the contention that the proceedings were defective because the impugned decision was not taken after a public hearing. Consequently, the Court must apply the final paragraph of section 23 of the Law of 25 September 1948, as amended, [L. 314-15], which provides that hearings before the court are not held in public.\n\nFor the purposes of the five-year limitation period instituted by section 30 of the Law of 25 September 1948, as amended, time ran from the date of the act rendering the perpetrator liable to the application of the penalties laid down by the Law – that is to say, 21 June 1980 – until the case was brought before the Court, in the instant case by committal from the Audit Court on 9 August 1984. Thus, the prosecution of the offence ... is not time-barred ...”\n\n35.  Then, after going through the evidence against the applicant, the Disciplinary Offences (Budget and Finance) Court found that he had infringed the Rules governing State Income and Expenditure and was liable to the penalties laid down by the statute. In that connection, it found that:\n\n“[The applicant] executed two loan agreements in turn in his capacity as French ambassador without receiving prior instructions to do so from the Ministry of Foreign Affairs. Indeed, that ministry was not competent to give such instructions, as, under the terms of the Ordinance of 2 January 1959 governing the Finance Acts, only the Minister of Finance was empowered to enter into borrowing agreements under the general authorities given each year by the Finance Acts. However, by acting within his apparent authority and by contracting an obligation, the ambassador exposed the French State to the risk that it would have to bear any harmful consequences.\n\n...\n\nHowever, the Court finds that [the applicant] was confronted as a matter of urgency with a situation brought about by the wishes of the municipality and the Emirate of Abu Dhabi to recover possession of the land occupied by the French school. Moreover, it was recognised that the school did not have sufficient teaching capacity. The initiative taken by the [applicant] meant that the school was able to reopen in satisfactory conditions at the start of the school year in September 1981, as was deemed imperative. The central administrative department of the Ministry of Foreign Affairs was slow to react to correspondence and the various departments failed to act in a coordinated manner. Throughout the period in which the financial arrangements were being put into place [the applicant] received encouragement from the minister and from the minister's private office.”\n\n36.  The Disciplinary Offences (Budget and Finance) Court found that those circumstances, taken as a whole, entitled the applicant to be exonerated from the imposition of a fine and he was acquitted of the charge.\n\n37.  As a result of the acquittal, no appeal lay against that decision of the Disciplinary Offences (Budget and Finance) Court to the Conseil d'Etat.\n\n38.  However, the applicant received no offers of postings. In February 1997 he went into compulsory retirement with the same grade and step as he had achieved in 1978.\n\nII.  RELEVANT DOMESTIC LAW AND PRACTICE\n\n39.  The principle of the separation of the powers of authorising officers and accountants is one of the fundamental and characteristic tenets of the French law of public accounting.\n\n40.  Any budgetary operation by a public body requires action by two agents acting in turn: the authorising officer, who has authority to deal with income and expenditure, and the accountant, who is responsible for debt recovery and payments.\n\n41.  Law no. 48-1484 of 25 September 1948 established a specialised court, the Disciplinary Offences (Budget and Finance) Court, which, though independent of the Audit Court, is closely affiliated to it. The court was established to hear cases against public authorising officers, who had previously been liable only to disciplinary penalties in their capacity as civil servants, or to criminal penalties.\n\n42.  The provisions of that statute, which has undergone a number of amendments, were consolidated by Law no. 95-851 of 24 July 1995, which now constitutes the legislative section of Book III of the Financial Judicature Code concerning institutions associated with the Audit Court. Part I of Book III concerns the Disciplinary Offences (Budget and Finance) Court.\n\nA.  Part I – The Disciplinary Offences (Budget and Finance) Court\n\n1.  Chapter I – Organisation\n\n43.  The relevant provisions read as follows:\n\nArticle L. 311-2 (section 11 of the 1948 Act)\n\n“The court shall be composed of the following:\n\nThe President of the Audit Court, as president.\n\nThe President of the Finance Division of the Conseil d'Etat, as vice-president.\n\nTwo members of the Conseil d'Etat.\n\nTwo senior members of the Audit Court.\n\n...”\n\nArticle L. 311-3 (section 11 of the 1948 Act)\n\n“The members of the Conseil d'Etat and the senior members of the Audit Court are appointed to the court by decree issued by the Cabinet for a term of five years. ...”\n\nArticle L. 311-4 (section 12 of the 1948 Act)\n\n“The functions of public prosecutor at the court shall be performed by Principal State Counsel at the Audit Court, assisted by an advocate-general and, if necessary, one or two law officers chosen from among the judges sitting in the Audit Court.”\n\nArticle L. 311-5 (section 13 of the 1948 Act)\n\n“Cases shall be investigated by judge rapporteurs chosen from among the members of the Conseil d'Etat and the Audit Court.”\n\n2.  Chapter II – Persons within the jurisdiction of the court\n\n44.  The relevant provisions are as follows:\n\nArticle L. 312-1.-I (section 1 of the 1948 Act)\n\n“The [Disciplinary Offences (Budget and Finance)] Court shall have jurisdiction to try:\n\n...\n\n(b)  any public servant or civil or military agent of the State, any agent of any territorial authority or their public institutions and of the associations of territorial authorities;\n\n(c)  any representative, administrator or agents of other bodies which are subject to scrutiny by the Audit Court or a regional audit board.\n\n...”\n\n3.  Chapter III – Offences and penalties\n\n45.  The offences and corresponding penalties are set out in Articles L. 313-1 to L. 313-14 (sections 2 to 9 of the 1948 Act). The relevant provisions in the instant case are Articles L. 313-1, L. 313-4 and L. 313-6, which provide:\n\nArticle L. 313-1\n\n“Any person referred to in Article L. 312-1 who shall have incurred expenditure without complying with the financial audit rules applicable governing expenditure shall be liable to a fine of not less than FRF 1,000 and not more than the amount of the gross annual emoluments or salary which they were receiving when the offence was committed.”\n\nArticle L. 313-4\n\n“Any person referred to in Article L. 312-1 who, other than in the circumstances referred to in the preceding Articles, shall have infringed the rules governing the income and expenditure of the State or of the authorities, institutions and bodies mentioned in that Article or the administration of assets belonging to the State, those authorities, institutions or bodies or who, being a person responsible for the administration of any such authority, institution or body, shall have given approval for the impugned decisions, shall be liable to a fine of the amount set out in Article L. 313-1.\n\n...”\n\nArticle L. 316-6\n\n“Any person referred to in Article L. 312-1 who in the course of their duties or in the exercise of their powers shall, in breach of their obligations, have procured for another an unjustified pecuniary advantage or an advantage in kind entailing a loss for the Treasury, or the authority or body concerned, or who shall have attempted to procure such an advantage, shall be liable to a fine of not less than FRF 2,000 and not more than twice the amount of the gross annual emoluments or salary which they were receiving at the date of the offence.”\n\n4.  Chapter IV – Procedure before the Disciplinary Offences (Budget and Finance) Court\n\n46.  Standing to commence proceedings: Article L. 314-1 (section 16 of the 1948 Act) designates the people with standing to institute proceedings before the court. These are, firstly, the speakers of the two legislative assemblies and the ministers; secondly, and inter alia, the Audit Court and Principal State Counsel at the Audit Court, in his capacity as public prosecutor at the Disciplinary Offences (Budget and Finance) Court. In practice, most proceedings are brought by the Audit Court. By virtue of Article L. 314-2, proceedings may not be brought more than five years from the day the act punishable under this part of the Code was committed.\n\n47.  Formal request: Proceedings before the court are instituted through the intermediary of Principal State Counsel. Pursuant to Article L. 314-3 (section 17 of the 1948 Act) Principal State Counsel may decide to take no further action. If the case is to proceed, Principal State Counsel forwards the case file to the President of the court under cover of an “official” request.\n\n48.  Investigation: On receipt of the official request the president appoints one of the court's judge rapporteurs to investigate the case. The persons concerned are informed that the investigation is under way “by the public prosecutor's office”. Article L. 314-4 (section 18 of the 1948 Act) vests full powers in the judge rapporteurs to make inquiries of the bodies concerned. They are entitled to use public servants to carry out the inquiries. They may hear witnesses in the presence of a registrar and a record of the evidence is kept. Suspects are entitled to the assistance of a lawyer. The judge rapporteurs have a full discretion on how to conduct the investigation, their only obligation being to keep Principal State Counsel informed.\n\n49.  Opinion of the ministers: When the investigation has been completed, the “case file is forwarded to Principal State Counsel” who may, pursuant to Article L. 314-4 (section 18 of the 1948 Act) decide to take no further action. Should Principal State Counsel decide to proceed, the case file is referred to the Finance Minister and to the minister from the ministry whose finances are concerned. They have a period fixed by the President, but of not less than one month, in which to lodge their opinions. Once that period has expired, the proceedings may continue.\n\n50.  Committal order: On receipt of the ministerial replies or on the expiry of the time allowed, the case file is forwarded to Principal State Counsel who has fifteen days in which to decide to take no further action or to order the defendant's committal for trial by the Disciplinary Offences (Budget and Finance) Court.\n\n51.  Opinion of the joint committees: Article L. 314-8 (section 22 of the 1948 Act) provides that, if the defendant is committed for trial by the Disciplinary Offences (Budget and Finance) Court, “the case file shall be communicated to the relevant administrative joint committee sitting in its disciplinary formation or the substitute formation if one exists”. The joint committee has one month in which to deliver its opinion. If no opinion is received, “the court may decide the case”.\n\n52.  The hearing: Article L. 314-8 (section 22 of the 1948 Act) provides that, once the joint committee has been consulted, the defendant is informed that he or she may inspect the case file within fifteen days. He or she may lodge submissions within one month after the communication of the case file.\n\n53.  The trial takes place at the end of that procedure. The list of cases for hearing is “prepared by the public prosecutor and decided by the President”. Article L. 314-13 (section 23 of the 1948 Act) lays down that “the court cannot validly deliberate unless at least four of its members are present”. Article L. 314-12 provides that “the judge rapporteur has a consultative vote in the cases in which he or she reports”. The judge rapporteur is therefore present at the trial and “presents a summary of his or her written report”. He or she also takes part in the deliberations.\n\n54.  Rights of the defence: The defendant takes no part in the proceedings until they have been transferred to the Disciplinary Offences (Budget and Finance) Court. During the investigation, the Act provides that the defendant shall be informed of the charges and of his or her right to a lawyer and, lastly, shall be given an opportunity, once the case file has been communicated, to lodge defence submissions. At the hearing, the defendant is entitled to call witnesses and to be represented by a lawyer. The defendant or his or her representative have the final speech, in accordance with the law.\n\n55.  Article L. 314-15 (section 23 of the 1948 Act) provides that hearings shall not be public.\n\n56.  Article L. 314-20 provides:\n\n“Once final, judgments in which the court delivers a guilty verdict may, if the court so decides, be published in whole or in part in the Official Gazette of the French Republic.”\n\nB.  Case-law\n\n57.  In a judgment delivered on 30 October 1998 (in the case of Lorenzi) the Conseil d'Etat held:\n\n“... When trying a case concerning acts for which the fines laid down by the aforementioned Law of 25 September 1948 may be imposed, the Disciplinary Offences (Budget and Finance) Court must be considered as determining 'criminal charges' within the meaning of the aforementioned provisions of the ... Convention for the Protection of Human Rights and Fundamental Freedoms and must accordingly hold a public hearing, the aforementioned provisions of the Financial Judicature Code or of section 23 of the Law of 25 September 1948 being no obstacle thereto.”\n\nTHE LAW\n\nI.  ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE CONVENTION\n\n58.  The applicant complained that the hearing before the Disciplinary Offences (Budget and Finance) Court had not been held in public and of the length of the proceedings. He alleged a violation of Article 6 § 1, which reads:\n\n“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”\n\n59.  As a preliminary point, the Court notes that Article 6 § 1 is applicable to the proceedings, since the Disciplinary Offences (Budget and Finance) Court “must be considered as determining 'criminal charges' ” for the purposes of the Convention, as the Conseil d'Etat rightly held in the aforementioned case.\n\nA.  Lack of a public hearing before the Disciplinary Offences (Budget and Finance) Court\n\n1.  The parties' submissions\n\n60.  As they had done before the Commission, the Government maintained that the applicant could not claim to be the victim of a violation of the Convention within the meaning of Article 34 because, on 12 April 1995, he had been acquitted by the Disciplinary Offences (Budget and Finance) Court.\n\n61.  The Government noted that, under the case-law of the Convention institutions, applicants who have not been found guilty in the impugned proceedings or whose convictions have been set aside cannot claim to be victims of a violation of the Convention within the meaning of Article 34, irrespective of the reasons for their being exonerated (see the Adolf v. Austria judgment of 26 March 1982, Series A no. 49, pp. 17-19, §§ 35-41).\n\n62.  In the instant case, the Government argued that the applicant could not complain about the first set of proceedings that had ended with a fine of FRF 2,000 being imposed on him by the Disciplinary Offences (Budget and Finance) Court, since the judgment concerned of 3 October 1989 had been reversed by the Conseil d'Etat on 29 December 1993 for want of sufficient reasoning. The breach of the principle that hearings should be held in public had thus been remedied de facto by the Conseil d'Etat and the applicant therefore had no standing to complain to the Court under that head.\n\n63.  As regards the second set of proceedings before the Disciplinary Offences (Budget and Finance) Court, the Government observed that the applicant had been acquitted on 12 April 1995.\n\n64.  In that connection, the Government pointed out that although the Disciplinary Offences (Budget and Finance) Court had found that the applicant had “infringed the Rules governing State Income and Expenditure and was liable to the penalties laid down by section 5 of the Law of 25 September 1948, as amended”, that finding that the legislation had been contravened did not amount to a finding of guilt, as under domestic law an acquittal constituted, by definition, total exoneration from guilt.\n\n65.  The applicant rejected that argument. He considered that on the contrary, despite his acquittal, he had been found guilty by the Disciplinary Offences (Budget and Finance) Court, as it had expressly held that he had committed the offence. He argued that evidence of that was provided by the fact that he had received no further promotion or posting before his retirement. In that connection, he considered that because the proceedings had been held in secret, without a public hearing, the idea that he was guilty had gained currency with his employers, as was shown by the fact that his career prospects had been so severely damaged.\n\n2.  The Court's assessment\n\n66.  The Court reiterates that the Convention institutions have ruled that applicants will only cease to have standing as victims within the meaning of Article 34 of the Convention if the national authorities have acknowledged the alleged violations either expressly or in substance and then afforded redress (see the Eckle v. Germany judgment of 15 July 1982, Series A no. 51, p. 30, § 66).\n\n67.  It is possible for there to be a violation of the Convention even if there has been no damage (see the Adolf judgment cited above, p. 17, § 37).\n\n68.  The Court notes that in the instant case, despite acquitting the applicant, the judgment of the Disciplinary Offences (Budget and Finance) Court of 12 April 1995 expressly stated in its reasoning that the applicant had “infringed the Rules governing State Income and Expenditure and [was] liable to the penalties laid down by section 5 of the Law of 25 September 1948, as amended”. The Court points out in that connection that the reasoning in a decision forms a whole with and cannot be dissociated from the operative provisions (see the Adolf judgment cited above, p. 18, § 39).\n\n69.  Thus, the applicant was considered guilty and liable to the imposition of a fine. Furthermore, the Disciplinary Offences (Budget and Finance) Court expressly dismissed his complaints under the Convention. Accordingly, the fact that he was ultimately exonerated from the penalty to which he was liable cannot, in the particular circumstances in which the offence was committed, be regarded as a remedy for the alleged violation.\n\n70.  Consequently, having regard to both the reasoning in and the operative provisions of the judgment of the Disciplinary Offences (Budget and Finance) Court of 12 April 1995, the Court concludes that the applicant has not ceased to be a “victim” within the meaning of Article 34 of the Convention.\n\n71.  The Court must therefore assess whether in the present case the applicant was entitled by Article 6 § 1 of the Convention to a hearing in public.\n\n72.  In that connection, the Court reiterates that the holding of court hearings in public constitutes a fundamental principle enshrined in paragraph 1 of Article 6. This public character protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the courts can be maintained. By rendering the administration of justice transparent, publicity contributes to the achievement of the aim of Article 6 § 1, namely a fair trial, the guarantee of which is one of the fundamental principles of any democratic society, within the meaning of the Convention (see, among other authorities, the Szücs v. Austria judgment of 24 November 1997, Reports of Judgments and Decisions 1997-VII, p. 2481, § 42; and the Diennet v. France judgment of 26 September 1995, Series A no. 325-A, pp. 14-15, § 33).\n\n73.  The Court also notes that the principle that hearings should be held in public may be subject to qualifications, particularly to protect the parties' private lives or in the interests of justice, as provided for in Article 6 of the Convention (see the the Diennet judgment cited above, p. 15, § 33, in fine).\n\n74.  In the instant case, the Court notes, firstly, that apart from the allegation – unfounded in the present case – that the applicant did not have standing as a victim, the Government did not rely on any ground from among those set out in Article 6 § 1 for justifying the applicant's trial in private without a public hearing by the Disciplinary Offences (Budget and Finance) Court (see, mutatis mutandis, the Diennet judgment cited above, pp. 23-24, § 38) and, secondly, that the applicant had expressly requested a public hearing.\n\n75.  The Court also notes that the right to a public hearing is no longer contested by the Government, who refer to a judgment delivered on 30 October 1998 (in the Lorenzi case) by the Conseil d'Etat, which held:\n\n“... When trying a case concerning acts for which the fines laid down by the aforementioned Law of 25 September 1948 may be imposed, the Disciplinary Offences (Budget and Finance) Court must be considered as determining 'criminal charges' within the meaning of the aforementioned provisions of the ... Convention for the Protection of Human Rights and Fundamental Freedoms and must accordingly hold a public hearing, the aforementioned provisions of the Financial Judicature Code or of section 23 of the Law of 25 September 1948 being no obstacle thereto.”\n\n76.  Consequently, the Court concludes that, by failing to hold a hearing in public, the Disciplinary Offences (Budget and Finance) Court denied the applicant a fair hearing, within the meaning of Article 6 § 1 of the Convention. Consequently, there has been a violation of that provision.\n\nB.  Length of the impugned proceedings\n\n77.  The applicant also complained of the length of the proceedings before the Disciplinary Offences (Budget and Finance) Court.\n\n1.  Period to be taken into consideration\n\n78.  In the Government's submission, the proceedings in issue had begun on 10 June 1987, when the applicant was informed that an investigation had been started, and ended on 12 April 1995, with the second judgment of the Disciplinary Offences (Budget and Finance) Court. The applicant maintained on the contrary that the period to be taken into consideration had begun, if not on 15 February 1984, when the Audit Court had committed him for trial by the Disciplinary Offences (Budget and Finance) Court, then at the latest on 11 February 1987, when Principal State Counsel requested an investigation. He also submitted that the period concerned had continued until 9 January 1996, when the judgment of the Disciplinary Offences (Budget and Finance) Court of 12 April 1995 was served.\n\n79.  The “reasonable time” referred to in Article 6 begins to run when a person is “charged”. The “charge” can be defined as the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence (see the Baggetta v. Italy judgment of 25 June 1987, Series A no. 119, opinion of the Commission, p. 37, § 31).\n\n80.  In the instant case, the Court notes that there was a delay between the Audit Court's decision of 15 February 1984 to refer the case to the Disciplinary Offences (Budget and Finance) Court and Principal State Counsel's request on 11 February 1987 for an investigation to be started. However, it notes that the decision of 15 February 1984 did not come to the applicant's attention and had no repercussions for him as he continued in his post of ambassador to Bolivia until 3 July 1986. The Court therefore considers that the proceedings in issue must be regarded as having begun on 10 June 1987, when the applicant was informed that he was being investigated by the Disciplinary Offences (Budget and Finance) Court. It ended on 9 January 1996, when the judgment of 12 April 1995 was served on the applicant. The proceedings therefore lasted nearly eight years and seven months.\n\n2.  Whether the length of the proceedings was reasonable\n\n81.  The reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and having regard to the criteria laid down in the Court's case-law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities. The importance of what is at stake for the applicant in the litigation has also to be taken into account (see, among many other authorities, the Doustaly v. France judgment of 23 April 1998, Reports 1998-II, p. 857, § 39).\n\n82.  The Government submitted that the different stages of both sets of proceedings before the Disciplinary Offences (Budget and Finance) Court had proceeded without delay and with due expedition, regard being had to the need for a thorough investigation in the case. They pointed out that the procedure involved not only an investigation by the judge rapporteur, but also, before the trial, mandatory consultation of the ministers concerned and the relevant administrative joint committee, which at the material time met only once a year. Furthermore, Principal State Counsel's intervention was required throughout the proceedings during the course of which he was required to issue three types of decision in turn: a formal request, a decision to prosecute and a decision to commit the case for trial. Lastly, the Government submitted that the Conseil d'Etat had dealt with the appeal without any periods of inactivity. Consequently, they said that the complaint regarding the length of the proceedings should be dismissed.\n\n83.  The applicant contested the Government's submissions and pointed to a number of unexplained periods of inactivity. Furthermore, he considered that in any event, by 10 June 1987, when he was informed of the investigation, “the die was cast”, as the Audit Court had already investigated the case and all the prosecution evidence had been assembled. In his submission, what followed thereafter was purely formal. Lastly, the applicant contested the Government's argument that a large number of procedural steps had to be performed. He noted in particular that the joint committee was concerned only with the first set of proceedings before the Disciplinary Offences (Budget and Finance) Court and that in the second set of proceedings, after the successful appeal to the Conseil d'Etat, there was no new investigation, no fresh submissions by the ministers and the same judge rapporteur was appointed as in the first set of proceedings.\n\n84.  The Court notes that there was no allegation by the Government that the case was of special complexity or that delays were caused by the applicant's conduct. It observes at the outset that the length of the proceedings before the Conseil d'Etat, from 4 December 1989 to 29 December 1993, that is to say four years and twenty-five days, was excessive. Furthermore, the Court notes that the judgment of 29 December 1993 was communicated to the Disciplinary Offences (Budget and Finance) Court on 24 January 1994 and that it was not until 4 January 1995, almost a year later, that the President of that court informed the applicant that he could inspect the case file. No explanation for those delays has been provided by the Government.\n\n85.  The Court accordingly holds that, in violation of Article 6 § 1 of the Convention, the applicant's case was not heard within a reasonable time.\n\nII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n86.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n87.  The applicant claimed 2,000,000 French francs (FRF) for non-pecuniary damage and FRF 11,736,922 for pecuniary damage which, he said, comprised loss of salary of FRF 652,542, loss of emoluments as ambassador of FRF 8,500,000, loss of bonuses of FRF 500,000 and loss of pension of FRF 2,084,380.\n\n88.  The Government made no comment on those claims.\n\n89.  The Court finds that the applicant has not established a causal link between the alleged pecuniary damage and the violations of Article 6 that have been found. In particular, it finds that the applicant has not established that the alleged damage to his career was attributable to the lack of a hearing in public and to the length of the proceedings before the Disciplinary Offences (Budget and Finance) Court, rather than to the underlying allegations themselves. Consequently, it makes no award under this head.\n\n90.  However, the Court finds that the applicant has sustained definite non-pecuniary damage as a result of the violations. Having regard to the circumstances of the case and ruling on an equitable basis as required by Article 41, it awards him FRF 100,000 under this head.\n\nB.  Costs and expenses\n\n91.  The applicant claimed FRF 113,801 incurred before the domestic courts and FRF 21,708 for legal fees incurred before the Commission, making a total of FRF 135,509. He made no claim for the costs incurred before the Court.\n\n92.  The Government made no comment on that claim.\n\n93.  On the basis of the information in its possession and considering that some of the costs of the domestic proceedings must have been incurred in order to seek redress for one of the violations of the Convention that has been found, namely the lack of a hearing in public (see paragraph 34 above), the Court, ruling on an equitable basis and in accordance with the criteria set out in its case-law (see, among other authorities, Nikolova v. Bulgaria [GC], no. 31195/96, § 79, ECHR 1999-II), awards the applicant FRF 40,000 inclusive of value-added tax.\n\nC.  Default interest\n\n94.  According to the information available to the Court, the statutory rate of interest applicable in France at the date of adoption of the present judgment is 2.74% per annum.\n\nFOR THESE REASONS, THE COURT\n\n1.  Holds by six votes to one that the applicant may claim to be a “victim” for the purposes of Article 34 of the Convention;\n\n2.  Holds by six votes to one that there has been a violation of Article 6 § 1 of the Convention on account of the lack of a public hearing before the Disciplinary Offences (Budget and Finance) Court;\n\n3.  Holds unanimously that there has been a violation of Article 6 § 1 of the Convention on account of the length of the proceedings;\n\n4.  Holds by five votes to two\n\n(a)  that the respondent State is to pay the applicant, within three months, in respect of non-pecuniary damage, FFR 100,000 (one hundred thousand French francs) and for costs and expenses FFR 40,000 (forty thousand French francs);\n\n(b)  that simple interest at an annual rate of 2.74% shall be payable from the expiry of the above-mentioned three months until settlement;\n\n5.  Dismisses unanimously the remainder of the applicant's claim for just satisfaction.\n\nDone in French, and notified in writing on 29 September 2000, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.\n\nIn accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:\n\n(a)  partly concurring and partly dissenting opinion of Mr Pacteau;\n\n(b)  partly dissenting opinion of Mr Zupančič.\n\nI concluded with the majority of the Court that the applicant's trial by the Disciplinary Offences (Budget and Finance) Court without a public hearing amounted to a breach of Article 6 § 1.\n\nIn truth, the violation was, in principle and per se, indisputable and no difficulty arose in finding it.\n\nAfter the Commission had decided on 9 March 1998 that the complaint in the present case concerning the lack of a public hearing was admissible, the French Conseil d'Etat actually acknowledged that the Disciplinary Offences (Budget and Finance) Court should hold its hearings in public (see the Lorenzi decision of 30 October 1998).\n\nThe main, overriding issue is obviously whether the applicant is a “victim”.\n\nHe had such standing in 1989 when, initially, he was convicted. Did he retain it after the Conseil d'Etat quashed the conviction in 1993 and the Disciplinary Offences (Budget and Finance) Court chose not to reconvict him in 1995?\n\nThe Court deals with that issue in paragraphs 66 to 70 of the judgment and concludes that, having regard to the reasoning and the operative provisions of the judgment of the Disciplinary Offences (Budget and Finance) Court finally acquitting the applicant in 1995, he did retain standing as a victim.\n\nThe Disciplinary Offences (Budget and Finance) Court held that the applicant had “infringed the Rules governing State Income and Expenditure and [was] liable to the penalties laid down ...”, but that the circumstances and context in which that breach occurred justified, as it were, his being exonerated from liability to a fine.\n\nIn short, Mr Guisset was not convicted, but his reputation has been tarnished.\n\nAdmittedly, the merit of that approach is that it facilitates wide access to the European Court and is realistic.\n\nHowever, the reasoning in a decision cannot by itself found a complaint other than on the grounds and in the circumstances that undoubtedly existed in the instant case but which should not be defined too broadly.\n\nOtherwise, there is a danger of abuse of process by people who have not been convicted, but nonetheless consider themselves to have been badly treated and who will be encouraged to seek out any word, phrase or innuendo that displeases them in a decision, even though the decision itself has caused them no direct harm. The courts would be inundated with applications of no benefit to the applicants themselves.\n\nIt can be seen in the present case that although part of the reasoning in the 1995 judgment appears to be critical of the applicant, the remainder is favourable to him and refers to him in very positive terms. Ultimately, if the applicant was not convicted, it was because he was not found guilty. The significance of the applicant's “acquittal” should not be underestimated: he was found not guilty, although a reference remained in the judgment to the financial irregularity that was part of the actus reus.\n\nIn my view, from that standpoint, while defendants who benefit from an acquittal may undoubtedly remain victims, they will only do so in exceptional cases.\n\nTo qualify, they will have to show not only that their acquittal formally pointed to a failing on their part, but also that the proceedings against them were liable to affect their personal or professional rights and interests. I also consider that an imperfect acquittal will warrant closer scrutiny if it comes after an initial conviction that was itself procedurally defective.\n\nThe judgment in the case of Adolf v. Austria of 26 March 1982, Series A no. 49, which has been cited as an authority, itself draws some careful distinctions. The Court did indeed hold that the reasoning of a legal decision “form[ed] a whole with and [could] not be dissociated from the operative provisions” (see p. 18, § 39), but it contained more forthright accusations (“the fault ... may be described as insignificant ..., and his character gives cause to expect that he will conduct himself properly in future” see p. 8, § 12) and the complaint was ultimately dismissed because the Supreme Court had subsequently clearly “cleared [the applicant] of any finding of guilt” (see pp. 18-19, § 40).\n\nWhat emerges from the present case is that the nature of the charge against the applicant and the potential consequences for him professionally were extremely serious and that he was tried on that charge and initially convicted without a public hearing, before ultimately being acquitted (but without the Disciplinary Offences (Budget and Finance) Court refuting the finding that he had broken the rules which it had previously used to convict him). The applicant's prosecution can therefore be criticised right to the end.\n\nI also agreed with the majority that the length of the proceedings was unreasonable.\n\nThe proceedings were most certainly long, even for three levels of jurisdiction.\n\nThey could and should have been expedited on a number of occasions, especially after the initial conviction was quashed and the case remitted to the Disciplinary Offences (Budget and Finance) Court, particularly as the case was long-standing and the accused a senior State civil servant.\n\nThe wording used in paragraph 84 of the judgment nonetheless appears to me to be too categorical.\n\nThe matters before the Disciplinary Offences (Budget and Finance) Court were complex and, in view of their object, sensitive.\n\nThe applicant himself contributed to delays by, for instance, waiting until the very end of the two-month period allowed before lodging his appeal to the Conseil d'Etat after his initial conviction and a further four months before lodging additional submissions. He also repeatedly raised preliminary issues and sought adjournments. While that was a perfectly legitimate defence tactic, it did not entitle him to say that the negligence of the national authorities was responsible for all the delays in the examination of the case.\n\nI voted against the majority on the issue of just satisfaction, as I considered that although the award for non-pecuniary damage was small, the decision should really have been to award nominal damages only.\n\nThe judgment rightly dismissed the claim for pecuniary damage, giving sound reasons for so doing.\n\nMy view is that the non-pecuniary damage itself was minimal and more than amply compensated for by the great moral satisfaction obtained from the findings in this judgment of procedural irregularities. The applicant did indeed have standing to seek a determination that those irregularities had occurred and effectively obtained such a determination.\n\nIn this case, I voted against the violation in so far as the question of procedural violation concerning the absence of public access to the hearing was concerned.\n\nThe leading case concerning the admissibility of an application relating to a procedural violation – in a case in which the applicant has been acquitted – is X v. Austria (application no. 5575/72, Commission decision of 8 July 1974, Decisions and Reports 1, p. 44).\n\nIn X v. Austria the applicant had been charged with several crimes committed in a concentration camp under the Nazi regime. Many witnesses for the prosecution were heard abroad during the preliminary judicial investigations, in the absence of both the applicant and his counsel. Most of these witnesses were not present at the hearing. At the end of the trial, the accused was acquitted.\n\nClearly, the procedural violation in X v. Austria was much more serious compared to the situation in the case we decided today. The applicant in X v. Austria had been denied the chance to cross-examine, or to have cross-examined, witnesses against him. This procedural right is fundamental in any modern criminal procedure; it concerns a most fundamental truth-finding device at the disposal of the defendant. The ratio legis of this evidentiary right to examine and cross-examine the witnesses derives from the truth-finding function of criminal procedure of which the conviction or acquittal is a final result. In this sense, this privilege is substantive rather than procedural.\n\nIn the present case, however, the defendant was denied a right which is not even a procedural right of the defendant. The reason for the principle according to which all criminal trials must be public does not reside in the defendant's particular procedural interest, but in the abstract public interest. It is primarily in the public interest that all criminal trials be conducted in public, that is, to enable the general control of the public over the workings of the criminal courts. Obviously, in many cases this will also be in the interest of the defendant in so far as the public control contributes to maintaining the principled and regular nature of the criminal trial. I find it difficult to believe, specifically, that this was the applicant's problem in this particular procedure.\n\nThus, it is not at all clear that Mr Guisset actually suffered an injury due to the fact that his trial was not conducted in public. The burden to show this specifically would have been on him. True, his reputation in the diplomatic circles could have been affected – positively or negatively – if there were public access to his trial. This alleged interest concerning the defendant's professional reputation is, however, wholly outside the scope of the specific guarantees of criminal procedure which target only acquittal or\n\nconviction, in other words it is not what is contemplated by Article 6 of the Convention.\n\nIf we were to consider such broad interests as protected by the Convention, the right to a public trial would open a whole new horizon in the area of human rights going far beyond the context of criminal procedure.\n\nAnyway, Mr Guisset did not, in my opinion, show that he had suffered any specific injury from the fact that his trial was not held in public. Article 41 speaks of an “injured party”; in terms of so-called systematic interoperation this has implications not only for the question of “just satisfaction” but also for the issue of standing (legitimatio ad causam activa). In terms of constitutional justiciability doctrine the case, in other words, is moot.\n\nIt is difficult, therefore, to maintain that Mr Guisset was in any specific sense a “victim” of the procedural violation consisting in the denial of public access to this quasi-criminal trial.\n\nMr Guisset was in the end acquitted of any wrongdoing just as the applicant in the case cited above. However, precisely to the extent that the procedural violation in the Austrian case was incomparably more serious, it a fortiori follows, that Mr Guisset ought not to have been considered a victim in the present case.","title":""}
{"_id":"passage_837","text":"PROCEDURE\n\n1.   The case was referred to the Court by the Romanian Government (“the Government”) on 27 January 1999, within the three-month period laid down by former Articles 32 § 1 and 47 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”). It originated in an application (no. 31679/96) against Romania lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 by a French national, Mrs Rita Ignaccolo-Zenide (“the applicant”), on 22 January 1996.\n\nThe Government's request referred to former Articles 44 and 48 and to the declaration whereby Romania recognised the compulsory jurisdiction of the Court (former Article 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 8 of the Convention.\n\n2.  Following the entry into force of Protocol No. 11 to the Convention on 1 November 1998 and in accordance with the provisions of Article 5 § 4 thereof read in conjonction with Rules 100 § 1 and 24 § 6 of the Rules of Court, a panel of the Grand Chamber decided on 31 March 1999 that the case would be examined by a Chamber constituted within one of the Sections of the Court.\n\n3.  In accordance with Rule 52 § 1, the President of the Court, Mr L. Wildhaber, subsequently assigned the case to the First Section. The Chamber constituted within that Section included ex officio Mr C. Bîrsan, the judge elected in respect of Romania (Article 27 § 2 of the Convention and Rule 26 § 1 (a)), and Mrs E. Palm, President of the Section (Rule 26 § 1 (a)). The other members designated by the latter to complete the Chamber were Mr J. Casadevall, Mr Gaukur Jörundsson, Mrs W. Thomassen and Mr R. Maruste (Rule 26 § 1 (b)).\n\n4.  Subsequently Mr Bîrsan, who had taken part in the Commission's examination of the case, withdrew from sitting in the Chamber (Rule 28). The Government accordingly appointed Mrs A. Diculescu-Şova to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1).\n\n5.  The applicant's representative filed his memorial on 19 February 1999. After being granted an extension of time, the Agent of the Government filed his memorial on 5 July.\n\n6.  On 28 May 1999, in accordance with Rule 61 § 3, the President gave leave to the AIRE Centre and Reunite associations to submit joint written observations on certain aspects of the case. Those observations were received on 1 July 1999.\n\n7.  On 28 July 1999 the applicant's representative filed additional observations. On 30 July 1999 the Government submitted their comments on the intervening parties' observations, under Rule 61 § 5.\n\n8.  In accordance with the Chamber's decision, a hearing took place in public in the Human Rights Building, Strasbourg, on 14 September 1999.\n\nThere appeared before the Court:\n\nThe Court heard addresses by Mr Lagrange and Mr Popescu.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n9.  On 7 May 1980 the applicant married D.Z., a Romanian national. The couple had two children, Maud and Adèle, who were born in 1981 and 1984 respectively.\n\n10.  In a judgment of 20 December 1989 the Bar-le-Duc tribunal de grande instance granted the spouses a divorce and approved the agreement they had concluded to deal with the consequences of the divorce, whereby parental responsibility was given to the father and the applicant was granted access and staying access.\n\n11.  During 1990 D.Z. moved to the United States with his daughters.\n\n12.  On 3 September 1990 the applicant lodged a complaint against him for failure to hand over the children to her. She asserted that at the beginning of September D.Z. had breached her right of access as, without informing her, he had kept them in the United States beyond the midway point of the school holidays.\n\n13.  On 4 September 1990 the applicant brought urgent proceedings against D.Z. in the Metz tribunal de grande instance, applying for parental responsibility and a residence order in her favour, together with an order prohibiting D.Z. from removing the children from France without her consent.\n\n14.  The matrimonial causes judge of the Metz tribunal de grande instance dismissed her application in an interim order dated 11 September 1990.\n\n15.  The applicant appealed against that order to the Metz Court of Appeal, which set it aside in a judgment of 28 May 1991. The Court of Appeal gave parental responsibility to both parents, ordered that the children should live with their mother and granted D.Z. access and staying access.\n\n16.  D.Z. did not comply with the judgment and did not hand the children over to their mother.\n\n17.  On an application by D.Z., who had been living in Texas for over a year, the Harris County Court of the State of Texas set aside the judgment of the Metz Court of Appeal in a judgment of 30 September 1991 and awarded custody of the children to the father. The applicant, who was neither present nor represented before that court, was granted only access. After consulting a psychologist, who found that the children had no distinct memory of their life with their mother before the divorce and were delighted to live with their father and stepmother, the court held that the children were happy and well integrated in Texas, where they were receiving special protection and attention from the authorities.\n\n18.  In December 1991 D.Z. moved to California with his two children.\n\n19.  In a decision of 24 February 1992 the investigating judge of the Metz tribunal de grande instance committed D.Z. for trial on a charge of failure to hand over a child to the person entitled to its custody, an offence under Article 357 of the French Criminal Code. The applicant joined the proceedings as a civil party.\n\n20.  On 18 September 1992 the Metz tribunal de grande instance, having tried D.Z. in absentia, convicted him and sentenced him to a year's imprisonment for failure to hand over the children and issued a warrant for his arrest.\n\n21.  The warrant could not be executed as D.Z. was not on French territory.\n\n22.  On an unknown date D.Z. lodged an appeal on points of law with the Court of Cassation against the Metz Court of Appeal's judgment of 28 May 1991.\n\n23.  In a judgment of 25 November 1992 the Court of Cassation pointed out that the jurisdiction of the tribunals of fact to assess the weight and effect of the evidence was exclusive, dismissed D.Z.'s appeal and sentenced him to pay a civil fine of 10,000 French francs.\n\n24.  The applicant, who had started proceedings in the United States for the recognition and execution of the judgment of 28 May 1991, obtained five judgments between 1993 and 1994 from California courts ordering D.Z. to return the children to her. Thus on 10 August 1993, for instance, the Superior Court of the State of California granted authority to execute the judgment of the Metz Court of Appeal and ordered D.Z. to return the children to their mother.\n\n25.  In a report of 17 August 1993 an expert in family psychology registered with the California courts, L.S., stated after interviewing the girls that they did not want to go back to live with their mother and were happy with their father and his new wife. While Maud did not seem to have any particular feelings towards her mother, Adèle told L.S. that her mother was “ugly and nasty” and did not love them but only wanted to show them off to others and buy them toys.\n\n26.  In a judgment of 1 February 1994 the California Court of Appeals held that the Harris County Court in Texas had no jurisdiction to set aside the Metz Court of Appeal's judgment of 28 May 1991. In a judgment of 29 April 1994 the Superior Court of the State of California once again affirmed the judgment of the Metz Court of Appeal, holding that the children should reside with the applicant and that their removal from the State of California without the court's express permission would be illegal.\n\n27.  D.Z. did not comply with the California judgments. In March 1994 he left the United States and went to Romania with his children.\n\n28.  In July 1994, relying on the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention”), the applicant applied to the French Ministry of Justice – France's Central Authority for the purposes of that instrument – for the return of her daughters.\n\n29.  In November 1994 the United States' Central Authority requested the Romanian Ministry of Justice (Romania's Central Authority) to return the children pursuant to Articles 3 and 5 of the Hague Convention.\n\n30.  In December 1994 France's Central Authority requested Romania's Central Authority to return the children pursuant to Articles 3 and 5 of the Hague Convention.\n\n31.  Relying on Article 2 of the Hague Convention, the applicant made an urgent application to the Bucharest Court of First Instance for an order requiring D.Z. to comply with the court decisions in which a residence order had been made in her favour and the children's return ordered.\n\n32.  The court delivered its judgment on 14 December 1994. It noted, firstly, that the Metz Court of Appeal, in its judgment of 28 May 1991, had ordered that the children should live with their mother and that the California courts had ordered the return of the children. It went on to note that D.Z. had abducted the children in breach of those judgments and that he had been sentenced to a year's imprisonment for failure to hand over a child. It held that the applicant's application satisfied the requirement of urgency, as her right might be irreparably affected in the event of delay. Moreover, the measure sought was a precautionary one, which did not prejudge the merits of the case but was designed to protect the applicant's right, which any delay would have jeopardised. Lastly, a prima facie case, which was a requirement for urgent proceedings to be admissible, had clearly been made out. As to the merits, the court held that the provisions of the Hague Convention were applicable to the case, as that convention had been incorporated into Romanian law by Law no. 100/1992 providing for Romania's accession to that instrument, and in particular, Article 14 of this convention, which enabled the court to rely on foreign court judgments directly without any need for a registration procedure. In a judgment enforceable without notice the court therefore ordered that the children should be returned to the applicant.\n\n33.  That judgment could not be executed as D.Z. had hidden the children.\n\n34.  On an unknown date in December 1994 D.Z. removed the children from school and took them to an unknown location.\n\n35.  D.Z. appealed against the judgment of 14 December 1994. On 9 June 1995 the Bucharest County Court adjourned the case to 30 June 1995 and ordered that the children be heard.\n\n36.  On 30 June 1995, in the absence of the representative of the Ministry of Justice, which was intervening, and of that of the District Council of the second district of Bucharest, which was responsible for monitoring and ensuring compliance with the obligations of divorced parents, the court adjourned the case. It also granted an application by D.Z. for a stay of execution of the judgment pending the outcome of the appeal. No reasons were given for the latter decision.\n\n37.  On 23 August 1995 the Ministry of Justice asked Bucharest City Council to carry out a social inquiry at D.Z.'s home.\n\n38.  On an unspecified date the mayor of Bucharest informed the Ministry of Justice that a social inquiry had been carried out by the District Council of the second district of Bucharest in September 1995. The mayor of that district submitted the findings of the inquiry, signed by him, the town clerk and an inspector. They read as follows:\n\n“The children Maud and Adèle ... live with their father and his wife in an eight-room house, and each girl has a room of her own.\n\nTheir father looks after them very well, as regards both their physical and their mental welfare, providing the best conditions for their upbringing.\n\nIt is evident from conversations with the girls in Romanian – they have a command of the language – that they are intelligent, sociable and at ease and that they lead a normal life, read, write and work hard at school.\n\nThere is an atmosphere of harmony and friendship and plenty of affection between the girls, their father and his wife.\n\nThe girls do not want to go and live with their mother in France, whom they remember as a cold and indifferent person. They say that they have always found their father understanding, warm and affectionate.\n\nThey are very impressed by Romania and the Romanians, among whom they have made many friends. During the holidays they went to the countryside and they felt wonderfully well there.\n\nWhen asked to say whether or not they wanted to see their mother or go and live with her, they replied categorically 'no' and insisted that any decision concerning them should take their wishes into account.\n\nIn conclusion, we consider that in Romania the children Maud and Adèle have the best conditions for their upbringing.”\n\n39.  In a decision of 1 September 1995 the Bucharest County Court dismissed D.Z.'s appeal against the judgment of 14 December 1994.\n\n40.  D.Z. appealed to the Bucharest Court of Appeal, which in a final judgment of 14 March 1996 dismissed the appeal for lack of grounds.\n\nA.  Objection to execution\n\n41.  On an unknown date D.Z. lodged an objection to the execution (contestaţie la executare) of the judgment of 14 December 1994. After having taken evidence from the children, who reiterated their wish to stay with their father, the Bucharest Court of First Instance dismissed the objection on 7 April 1995.\n\n42.  On an appeal by D.Z. against that decision, the Bucharest County Court affirmed it on 9 February 1996.\n\nB.  Application to the Bucharest Court of First Instance for transfer of parental responsibility\n\n43.  On 27 October 1995 D.Z. lodged an application with the Bucharest Court of First Instance to be given exclusive parental responsibility. He argued that since 1994 he had been living in Bucharest in a spacious eight-room house which afforded the children exceptional conditions. They did not want to go to live with their mother, who belonged to a sect.\n\nThe court, informed by D.Z. that the applicant's address for service was the address of Ştefan Constantin, caused the date of the hearing to be served only on him. It is clear from documents available to the Court that neither at that stage of the proceedings nor later was the applicant informed that she had been summoned to appear before the Bucharest Court of First Instance.\n\n44.  On 26 January 1996, at the request of the Bucharest Court of First Instance, the District Council of the second district of Bucharest carried out a social inquiry. Following that inquiry, the mayor of Bucharest informed the court that the two girls were well developed, both physically and psychologically, that they led normal lives, had friends at school and in the neighbourhood and were very attached to their father and his wife, who both looked after them very well and with whom they wished to live.\n\n45.  After holding two hearings in the absence of the applicant on 8 and 29 January 1996 and interviewing the children in private on 16 January 1996, the court delivered its judgment on 5 February 1996, likewise in the applicant's absence. Emphasising that the children's interests were paramount and basing its judgment on documents drawn up by the children's teachers attesting to their good performance at school, on a letter from the Ministry of Religious Affairs to the effect that the sect to which the applicant belonged was not recognised in Romania, and on the social inquiry carried out by the Bucharest District Council, the court allowed D.Z.'s application, holding that he was providing the best living conditions and upbringing for the children, whom he had, moreover, brought up on his own since the divorce.\n\n46.  On 16 October 1996 the Bucharest County Court set aside that judgment on appeal because of an irregularity in the service of notice on the applicant, and remitted the case to the Court of First Instance. It noted that the applicant lived in France, that she had given Ştefan Constantin special authority to represent her in another set of legal proceedings and that consequently, in the absence of special authority in the case before the court, the summons should have been served at her permanent address in France.\n\n47.  D.Z. challenged that decision on the ground that the applicant had given Ştefan Constantin general authority to act for her and that consequently the service of the court documents at his address was valid.\n\n48.  In a judgment of 9 April 1997, delivered in the absence of either the applicant or any representative of hers, the Bucharest Court of Appeal allowed the appeal on the ground that the applicant had given Ştefan Constantin general authority to act on her behalf. It set aside the decision of 16 October 1996 and remitted the case to the County Court for reconsideration of the appeal.\n\n49.  The case was set down for hearing in the County Court on 23 January 1998. According to the record of the hearing made on that date, the hearing was attended by D.Z., his lawyer and the assistant of Florea Constantin, the lawyer who, according to the court, was supposed to be acting on behalf of the applicant. The Court cannot determine from the documents submitted to it which of Florea and Ştefan Constantin was regarded by the County Court as having been appointed by the applicant.\n\nThe assistant pointed out that Florea Constantin was absent and sought an adjournment of the hearing. That application was refused after the court had heard the submissions of counsel for D.Z. It gave its decision on 30 January 1998, in the absence of the applicant or a representative. Without mentioning the issue of the applicant's representation, the court dismissed the appeal and thus upheld the judgment of 5 February 1996, noting that the children wished to stay with their father, who was affording them the best living conditions.\n\n50.  It appears that an appeal against the decision of 30 January 1998 was lodged on behalf of the applicant. It cannot be determined from the documents submitted to the Court whether the applicant herself entered the appeal. However that may have been, the Bucharest Court of Appeal dismissed the appeal for lack of grounds on 28 May 1998. As was apparent from that decision, which the Government did not file with the Registry until 13 September 1999, only D.Z. attended the hearing on 28 May 1998.\n\nC.  Application to the Metz tribunal de grande instance for transfer of parental responsibility\n\n51.  In an application dated 5 January 1995 D.Z. applied to the family judge of the Metz tribunal de grande instance for an order transferring the children's residence to his address and granting him exclusive exercise of parental responsibility.\n\n52.  After many adjournments the tribunal de grande instance delivered a judgment on 22 February 1996. It held firstly that it was unnecessary to take account of the judgment of the Bucharest Court of First Instance of 5 February 1996 because that court had no jurisdiction to deal with the merits of the custody of the children, since the Romanian courts could only deal with an application for the return of the children under the Hague Convention. The tribunal de grande instance then declined to take evidence from the children. It found that since 1991 D.Z. had prevented them from seeing their mother and that he had brought them up to feel hatred for her. In letters of 1 and 3 August 1994, in which they spoke of their mother, the girls had used terms such as “idiot” and “my ex-mother” and had hoped that “her house or her flat [would catch] fire and that she [would be] in it when it happen[ed]”, terms which the tribunal de grande instance found particularly shocking coming from children of 10 and 14. The tribunal de grande instance concluded that the intolerance, intransigence and hatred found in those letters adequately demonstrated that the upbringing the children had received and the surroundings in which they lived had deprived them of all judgment.\n\n53.  The application for transfer of residence was dismissed by the tribunal de grande instance in the following terms:\n\n“The Family Judge must rule in the interests of the children when determining their place of residence.\n\nThe Metz Court of Appeal held in a judgment of 28 May 1991 that it was in the children's interests to live with their mother, in France, in their native Lorraine, both their parents having opted for French nationality.\n\nSince that date the mother has had no further contact with her children because of the father's actions.\n\nMrs Ignaccolo filed with the Court the various records of proceedings drawn up in Romania when attempts were made to obtain execution of the decision to return the children, letters from the Romanian Ministry of Justice to the Office for International Judicial Mutual Assistance, from which it appears that Mr Zenide is hiding the children, has acquired a dog which he has trained to attack anyone who approaches the children, and removed the children from school in December 1994 to avoid their whereabouts being discovered.\n\nHe maintained that his behaviour was justified because Mrs Ignaccolo belonged to a sect and had not looked after the children when they cohabited. However, he did not in any way substantiate his complaints but did no more than make allegations or produce testimony from persons living in the United States or Romania who did not personally know the children's mother.\n\nThe educative abilities of a father who totally denies the image of the mother, who brings the children up to hate their mother and does not even allow them to form their own opinion by affording them the opportunity to meet her and who has not hesitated, in order to evade enforcement of court decisions, to completely uproot the children for a second time in order to settle in a country whose language they are not familiar with are seriously in doubt.\n\nThe children's interests in such a situation are intangible and indefinable, regard being had, firstly, to the pressure and conditioning they undergo with their father and, secondly, to the fact that for five years they have been away from their mother, whom they no longer know.\n\nThe children's wish to stay and live with their father, as expressed both in their letters and when they were interviewed by the Romanian court, cannot on its own determine their interests since, if it did, that would amount to laying upon children of 10 and 14 the responsibility of deciding where they should live.\n\nMr Zenide cannot secure ratification of a factual situation that has arisen from the use of force by merely relying on the passing of time. That being so, his application must quite simply be dismissed ...”\n\nD.  Attempts to enforce the decision of 14 December 1994\n\n54.  Since 1994 the applicant has gone to Romania eight times in the hope of meeting her children.\n\n55.  Several attempts were made to execute the decision of 14 December 1994 but without success.\n\n56.  On 22 December 1994 a bailiff went to D.Z.'s home, accompanied by the applicant, her lawyer, a locksmith and two policemen. Only D.Z.'s wife O.Z. and a guard dog were at the house. O.Z., a French national, indicated that she would only allow the bailiff to inspect the house if a representative from the French embassy was present. The applicant and her lawyer therefore went to the French embassy, where the French consul, T., and an interpreter agreed to accompany them to D.Z.'s home.\n\n57.  During the applicant's absence, but while the policemen and the bailiff were still on the spot, D.Z. and an uncle of his, S.G., entered the house. When the applicant returned, accompanied by T. and the interpreter, O.Z. allowed those present, with the exception of the applicant, to search the premises. As the dog was very fierce, the search was carried out hastily and the girls were not found. D.Z. remained out of sight during the search.\n\n58.  On 23 December 1994 the applicant wrote to the Romanian Minister of Justice to complain of the course of events on 22 December. She requested the Minister to lodge a criminal complaint against O.Z. for failure to comply with a court decision. Asserting that she had no news of her daughters, she also asked him to institute criminal proceedings against D.Z., O.Z. and S.G. for ill-treatment of minors, false imprisonment and, if applicable, homicide.\n\n59.  On 27 December 1994 a bailiff, the applicant, her lawyer and two police officers again went to D.Z.'s home. Finding no one there, they spoke to a neighbour, who told them that D.Z. had left with the children on 22 December 1994. The group then went to the home of G.A., an uncle of D.Z.'s, with whom D.Z. and the children sometimes lived. There they found G.A. and the same guard dog. G.A. told them that he had not seen either D.Z. or the children since 20 December 1994. As to the dog, he told the bailiff that D.Z. had bought it to protect his daughters.\n\n60.  In a letter of 7 February 1995 the French Ministry of Justice informed the applicant that the Romanian Ministry of Justice had lodged a criminal complaint against D.Z. with the appropriate public prosecutor's office.\n\n61.  In a letter dated 5 May 1995 the Romanian Ministry of Justice informed the French Ministry of Justice that numerous approaches had been made to the police to locate the children, but to no avail, as D.Z. had withdrawn the children from school. The letter also stated that the Romanian authorities had lodged a criminal complaint against D.Z. for ill-treatment of minors. Lastly, the Romanian Ministry of Justice acknowledged that D.Z.'s bad faith was obvious and gave an assurance that it would continue to support the applicant in her endeavours.\n\n62.  On 10 May 1995 a group composed of the applicant, her lawyer, a representative from the Romanian Ministry of Justice, two bailiffs, three police officers and an official from the French embassy in Bucharest went to D.Z.'s home. The group was able to inspect the house but did not find the children there. During the four-hour discussion which followed, D.Z. stated that the girls were in Romania, but he refused to say more. He nevertheless promised to produce them to the Ministry of Justice on 11 May 1995.\n\n63.  A report drawn up by the French embassy in Bucharest on the visit of 10 May 1995 states:\n\n“Contrary to what had been announced by Mrs F. [of the Romanian Ministry of Justice] before this search, D.Z. was not arrested by the police for failure to return the children. In the course of the intervention the public prosecutor's office, with which Mrs. F. was in touch by telephone, reconsidered its position and refused to have D.Z. brought before it. This change of mind was probably due to an intervention by Mr. G., a very influential lawyer, after he had been alerted by his client D.Z. ...”\n\n64.  Neither D.Z. nor the children kept the appointment on 11 May 1995.\n\n65.  As a consequence, D.Z. received an official request to report to the Ministry of Justice with his children on 15 May 1995, with a view to interviewing the children in the presence of their mother. On 15 May 1995 only Mr G., D.Z.'s lawyer, went to the Ministry and reiterated his client's refusal to produce the children.\n\n66.  On 4 December 1995 a fresh attempt to execute the judgment was made. The applicant, her lawyer and a bailiff went to D.Z.'s home. Only the bailiff and the applicant's lawyer were allowed in by the two policemen from the sixth district who were already on the spot, the applicant being requested to stay outside. According to D.Z. and the policemen, the children were not in the house. The bailiff, however, was not allowed to check those assertions for himself. Shortly afterwards a police inspector whom neither the two police officers nor the bailiff knew arrived and asked D.Z. to produce the children to him on the following day. D.Z. finally accepted a proposal from the applicant's lawyer that he should produce the children at 10.30 a.m. the following day at the bailiffs' office at the Bucharest Court of First Instance.\n\n67.  On 5 December 1995 the bailiff, the applicant and her lawyer waited for D.Z. in vain. A report was drawn up on that occasion.\n\n68.  In a letter of 10 May 1996 the French Minister of Justice informed his Romanian counterpart of the applicant's fears that the Romanian police were turning a blind eye to D.Z.'s conduct. He therefore asked him to intervene with the Romanian police to ensure that they did everything possible to secure the children's return to their mother.\n\n69.  On 29 January 1997 the applicant met her daughters for the first time for seven years. The meeting lasted ten minutes and took place in Bucharest in the staffroom of the children's school, where D.Z. was himself a teacher.\n\n70.  The meeting was attended by a bailiff, two senior officials from the Romanian Ministry of Justice, the French Consul-General in Bucharest, two officers from police headquarters, the headmaster and deputy headmaster of the school and the girls' two form teachers. According to the report drawn up by the bailiff on that occasion, the purpose of the meeting was to convince those present of the girls' refusal to return to their mother.\n\n71.  When she saw the applicant, Maud tried to run away and threatened to throw herself out of the window if she was compelled to have dealings with her mother. There followed, without the applicant being present, a discussion in which Maud stated that her mother had lied to them and done a great deal of harm. She reiterated her wish to stay with her father and never to see her mother again.\n\n72.  As to Adèle, she began to cry and shouted to the applicant to go away, saying that she never wanted to see her again. Her form teacher took the initiative of terminating the interview so as not to traumatise the girl. Once the girls had been removed by the form teachers, the applicant said she no longer insisted on execution of the order of 14 December 1994 and asked the headmaster to keep her regularly informed of her daughters' performance at school.\n\n73.  In a letter of 31 January 1997 the Romanian Ministry of Justice, Romania's Central Authority, informed the French Ministry of Justice, France's Central Authority, of its decision to order that the children should not be returned. The reason for that decision was the children's obstinate refusal to see their mother again, which had been apparent at the meeting of 29 January 1997.\n\n74.  In a letter of 17 June 1997 the Romanian Ministry of Justice sent the applicant the girls' average marks for the school year 1996/97.\n\n75.  In a letter of 7 July 1997 to the Romanian Ministry of Justice the applicant complained that the headmaster had not honoured his promise to keep her regularly informed of her daughters' school results and expressed her disappointment at the paucity of the information supplied on 17 June 1997. She said she could not accept such a “farce”.\n\nII.  RELEVANT DOMESTIC LAW AND PRACTICE\n\nA.  Constitution\n\n76.  The relevant provisions of the 1991 Constitution provide:\n\nArticle 11(2)\n\n“Treaties lawfully ratified by Parliament shall form an integral part of the domestic legal order.”\n\nArticle 20\n\n“(1)  The constitutional provisions on citizens' rights and liberties shall be interpreted and applied in accordance with the Universal Declaration of Human Rights and with the covenants and other treaties to which Romania is a party.\n\n(2)  In the event of conflict between the covenants and treaties on fundamental human rights to which Romania is a party and domestic laws, the international instruments shall prevail.”\n\nB.   Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction\n\n77.  The relevant provisions of the Hague Convention read as follows:\n\nArticle 7\n\n“Central Authorities shall cooperate with each other and promote cooperation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention.\n\nIn particular, either directly or through any intermediary, they shall take all appropriate measures:\n\n(a)  To discover the whereabouts of a child who has been wrongfully removed or retained;\n\n(b)  To prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures;\n\n(c)  To secure the voluntary return of the child or to bring about an amicable resolution of the issues;\n\n(d)  To exchange, where desirable, information relating to the social background of the child;\n\n(e)  To provide information of a general character as to the law of their State in connection with the application of the Convention;\n\n(f)  To initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organizing or securing the effective exercise of rights of access;\n\n(g)  Where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers;\n\n(h)  To provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child;\n\n(i)  To keep each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application.”\n\nArticle 11\n\n“The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.\n\nIf the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. ...”\n\nC.  Family Code\n\n78.  Article 108 of the Family Code provides:\n\n“The supervisory authority [autoritatea tutelară] must continuously and effectively supervise the manner in which the parents discharge their obligations concerning the person and property of the child.\n\nThe delegates of the supervisory authority shall be entitled to visit children in their homes and to inform themselves by all available means about the manner in which the persons in charge of them look after them, about their health and physical development, their education ...; if need be, they shall give the necessary instructions.”\n\nD.  Criminal Code\n\n79.  Article 307 of the Criminal Code provides:\n\n“It shall be an offence punishable by one to three months' imprisonment or a fine for one of the parents of an under-age child to detain it without the permission of the other parent ... who lawfully has responsibility for the child.\n\nThe same penalty shall be incurred by a person to whom parental responsibility has been given by a judicial decision who repeatedly prevents one of the parents from having personal relations with an under-age child on the terms agreed by the parties or laid down by the appropriate body.\n\nCriminal proceedings may only be instituted if a criminal complaint has first been lodged by the victim.\n\nNo criminal liability shall be incurred where there has been a reconciliation between the parties.”\n\nE.  Code of Criminal Procedure\n\n80.  The relevant provisions of the Code of Criminal Procedure read as follows:\n\nArticle 279\n\n“As regards the offences in respect of which the law requires a criminal complaint to be lodged beforehand, proceedings may only be instituted after a complaint by the victim.\n\nThe complaint shall be lodged:\n\n...\n\n(b)  with the body in charge of criminal investigations or with the public prosecutor, in respect of offences other than those referred to in sub-paragraph (a).\n\n...”\n\nArticle 284\n\n“Where the law requires a criminal complaint to be lodged beforehand, that complaint must be lodged within two months from the date on which the victim discovered the identity of the person who committed the offence...”\n\nArticle 285\n\n“Where a preliminary criminal complaint is improperly lodged with the public prosecutor's office or the court, it shall be forwarded to the appropriate body. In that event, it shall be regarded as valid if it was lodged with the wrong body within the time allowed by law.”\n\nF.  Code of Civil Procedure\n\n81.  The relevant provisions of the Code of Civil Procedure read as follows:\n\nArticle 67\n\n“The parties may exercise their procedural rights in person or through a representative.\n\nA representative with general authority to act may only represent the person for whom he acts before a court if he has been expressly given the right to do so.\n\nIf the person who has given the authority to act has no permanent or temporary home in Romania ..., he shall be presumed to have also given authority to represent him in the courts.”\n\nArticle 87\n\n“...\n\n8.  Unless otherwise provided in a treaty, international convention or special law, persons who are abroad and whose home address abroad is known shall be summoned to appear by registered mail...\n\nIn all cases in which those who are abroad have a known representative in Romania, the latter shall be summoned...”\n\nArticle 107\n\n“Whenever the presiding judge finds that an absent party has not been lawfully summoned, he must adjourn the case, failing which the proceedings will be null and void.”\n\nG.  Administration of Justice (Amendment) Act (Law no. 142 of 24 July 1997)\n\n82.  The relevant provisions of Law no. 142 of 24 July 1997 amending the Administration of Justice Act (Law no. 92/1992) read as follows:\n\nSection 30\n\n“The interests of the State shall be represented by State Counsel organised in departments at each court, under the authority of the Minister of Justice.\n\nThe work of State Counsel shall be organised in accordance with the principles of the rule of law, impartiality and hierarchical supervision.\n\n...”\n\nSection 31(i)\n\n“State Counsel's Office shall have the following duties:\n\n...\n\n– defending the rights and interests of minors and persons deprived of legal capacity.”\n\nSection 38\n\n“The Minister of Justice shall supervise all State Counsel through State Counsel inspectors attached to the Supreme Court of Justice and the courts of appeal or through other, delegated State Counsel.\n\nWhere he considers it necessary, the Minister of Justice, either of his own motion or at the instance of the National Judiciary Council, effects his supervision through inspectors-general or State Counsel on secondment...\n\n...\n\nThe Minister of Justice may ask Principal State Counsel at the Supreme Court of Justice for information about the work of State Counsel's offices and may give advice on measures to be taken to combat crime.\n\nThe Minister of Justice is empowered to give State Counsel written instructions, either direct or through Principal State Counsel, to institute, in accordance with the law, criminal proceedings for offences that have come to his knowledge; he may also have actions and proceedings brought in the courts that are necessary for the protection of the public interest. ...”\n\nH.  Practice in respect of service of summonses\n\n83.  In decision no. 87 delivered in 1993 the Supreme Court of Justice again confirmed its settled case-law on summoning persons resident abroad, which requires service to be effected at the foreign home but also at the Romanian home of any representative.\n\nLegal writers, for their part, highlight the compulsory requirement of serving a summons on the person concerned at his foreign home, even where he has a representative in Romania (Viorel Mihai Ciobanu, Tratat Teoretic şi Practic de Procedură Civilă (“Theoretical and Practical Treatise on Civil Procedure”), vol. II, p. 94, Bucharest, 1997).\n\n84.  The courts have consistently held that the legal provisions governing summonses are mandatory as they are designed to ensure compliance with the adversarial principle and due process. If these provisions are not complied with, the decision will be null and void and it will be quashed and the case remitted to the tribunal of fact (Bucharest County Court, Third Civil Division, decision no. 226/1990, Culegere de Jurisprudenţă Civilă a Tribunalului Judeţean Bucureşti (“Reports of Criminal Cases in the Bucharest County Court”), no. 155, p. 123, Bucharest, 1992; Supreme Court of Justice, Civil Division, decision no. 779 of 6 April 1993, Buletinul de Jurisprudenţă al Curţii Supreme de Justiţie (“Supreme Court of Justice Case-Law Bulletin”) for 1993, p. 126, Bucharest, 1994).\n\nPROCEEDINGS BEFORE THE COMMISSION\n\n85.  Mrs Ignaccolo-Zenide applied to the Commission on 22 January 1996. She alleged that, contrary to Article 8 of the Convention, which guarantees the right to respect for family life, the Romanian authorities had not taken measures to ensure execution of the court decisions whereby custody of the children was split between herself and her former husband and they were to live with her.\n\n86.  The Commission (First Chamber) declared the application (no. 31679/96) admissible on 2 July 1997. In its report of 9 September 1998 (former Article 31 of the Convention), it expressed the opinion that there had been a violation of Article 8 (unanimously).\n\nFINAL SUBMISSIONS TO THE COURT\n\n87.  In their memorial the Government requested the Court to find that they had discharged the positive obligations on them under Article 8 of the Convention and that there had consequently been no violation of that provision.\n\n88.  The applicant asked the Court to hold that there had been a violation of Article 8 of the Convention and to award her just satisfaction under Article 41.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION\n\n89.  The applicant alleged that the Romanian authorities had not taken sufficient steps to ensure rapid execution of the court decisions and facilitate the return of her daughters to her. The authorities had thus breached Article 8 of the Convention, which provides:\n\n“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.\n\n2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”\n\n90.  The applicant complained, in particular, of the half-hearted attempts made to execute the order of 14 December 1994, which she described as “pretences”, and pointed out that nothing had been done to find her daughters, who had been hidden by their father each time before the bailiff arrived. As to the meeting arranged by the authorities on 29 January 1997, she considered that in view of the circumstances in which it had taken place, it was just another pretence. She also criticised the Romanian authorities for their total inactivity between December 1995 and January 1997.\n\n91.  The Government maintained that the authorities in question had taken adequate and effective steps to have the order of 14 December 1994 executed, for example by arranging for the bailiff to be assisted by police officers and by summoning the children's father to the Ministry of Justice. They pointed out that the failure to execute the decision was due firstly to non-compliance by the father, for whose behaviour the Government could not be held responsible, and secondly to the children's refusal to go and live with the applicant, again a matter for which the Government could not be blamed.\n\n92.  In the Commission's view, the national authorities had neglected to make the efforts that could normally be expected of them to ensure that the applicant's rights were respected, thereby infringing her right to respect for her family life as guaranteed by Article 8 of the Convention.\n\n93.  The Court notes, firstly, that it was common ground that the tie between the applicant and her children was one of family life for the purposes of that provision.\n\n94.  That being so, it must be determined whether there has been a failure to respect the applicant's family life. The Court reiterates that the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities. There are in addition positive obligations inherent in an effective “respect” for family life. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation (see the Keegan v. Ireland judgment of 26 May 1994, Series A no. 290, p. 19, § 49).\n\nAs to the State's obligation to take positive measures, the Court has repeatedly held that Article 8 includes a parent's right to the taking of measures with a view to his or her being reunited with his or her child and an obligation on the national authorities to take such action (see, for example, the following judgments: Eriksson v. Sweden, 22 June 1989, Series A no. 156, pp. 26-27, § 71; Margareta and Roger Andersson v. Sweden, 25 February 1992, Series A no. 226-A, p. 30, § 91; Olsson v. Sweden (no. 2), 27 November 1992, Series A no. 250, pp. 35-36, § 90; and Hokkanen v. Finland, 23 September 1994, Series A no. 299-A, p. 20, § 55).\n\nHowever, the national authorities' obligation to take measures to facilitate reunion is not absolute, since the reunion of a parent with children who have lived for some time with the other parent may not be able to take place immediately and may require preparatory measures to be taken. The nature and extent of such preparation will depend on the circumstances of each case, but the understanding and cooperation of all concerned are always an important ingredient. Whilst national authorities must do their utmost to facilitate such cooperation, any obligation to apply coercion in this area must be limited since the interests as well as the rights and freedoms of all concerned must be taken into account, and more particularly the best interests of the child and his or her rights under Article 8 of the Convention. Where contacts with the parent might appear to threaten those interests or interfere with those rights, it is for the national authorities to strike a fair balance between them (see the Hokkanen judgment cited above, p. 22, § 58).\n\n95.  Lastly, the Court considers that the positive obligations that Article 8 of the Convention lays on the Contracting States in the matter of reuniting a parent with his or her children must be interpreted in the light of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention”). This is all the more so in the instant case as the respondent State is also a party to that instrument, Article 7 of which contains a list of measures to be taken by States to secure the prompt return of children.\n\n96.  What is decisive in the present case is therefore whether the national authorities did take all steps to facilitate execution of the order of 14 December 1994 that could reasonably be demanded (ibid.).\n\nA.  Period to be taken into consideration\n\n97.  The Government maintained that their obligation to take steps to facilitate the reunion of the applicant and her children had arisen out of the order made on an urgent application by the Bucharest Court of First Instance on 14 December 1994 and had come to an end with the final decision of 28 May 1998 whereby the Bucharest Court of Appeal gave parental responsibility to D.Z.\n\n98.  The applicant disputed the Government's submission and argued that the decision of 28 May 1998 had never been brought to her knowledge and that she was unaware of its content. She also denied having appointed a representative to represent her in the proceedings that led to the aforementioned decision and submitted that as she had not been a party to the proceedings, the decision in question had been given in breach of the adversarial principle and could not be relied on against her. Lastly, she disputed that the Romanian courts were competent to take a decision on the merits in respect of parental responsibility and argued that under Article 16 of the Hague Convention, the French courts had exclusive jurisdiction in the matter. In that connection, she pointed out that D.Z. had brought an action in the Romanian courts to vary the arrangements for exercising parental responsibility although an identical action was already pending in the French courts, likewise on his initiative.\n\n99.  The Court must therefore determine whether the authorities' obligation to take steps to facilitate the execution of the order of 14 December 1994 ceased after the judgment of 28 May 1998 giving parental responsibility to D.Z.\n\nThe Court points out that in its judgment of 24 February 1995 in the McMichael v. the United Kingdom case (Series A no. 307-B, p. 55, § 87) it held that, although Article 8 contained no explicit procedural requirements,\n\n“the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8:\n\nThe Court notes, firstly, that neither the applicant nor any representative of hers was present at the delivery of the Bucharest Court of Appeal's judgment of 28 May 1998, nor was that judgment served on the applicant. Not until 13 September 1999, when the Government submitted it to the Court, was the applicant able to study the judgment in question. Secondly, the applicant was not present at any of the hearings held during the course of the proceedings which led to the decision in issue. It appears from the documents produced by the Government that, contrary to Article 87 § 8 of the Romanian Code of Civil Procedure, no summons was served on the applicant at her home in France, although her address was known.\n\nAs regards the notification served on Ştefan Constantin, the Court notes that it was not a substitute for the notification to the applicant required by Article 87 § 8 in fine of the Code of Civil Procedure and the settled case-law of the domestic courts (see paragraph 83 above).\n\n100.  In the light of those circumstances, the Court considers that the proceedings that led to the Bucharest Court of Appeal's decision did not satisfy the procedural requirements of Article 8 of the Convention. Consequently, it cannot consider that the aforementioned decision put an end to the Government's positive obligations under Article 8.\n\nB.  Enforcement of the applicant's right to parental responsibility and to the return of the children\n\n101.  The Court must therefore determine whether the national authorities took the necessary adequate steps to facilitate the execution of the order of 14 December 1994.\n\n102.  In a case of this kind the adequacy of a measure is to be judged by the swiftness of its implementation. Proceedings relating to the granting of parental responsibility, including execution of the decision delivered at the end of them, require urgent handling as the passage of time can have irremediable consequences for relations between the children and the parent who does not live with them. In the instant case this was all the more so as the applicant had brought an urgent application in the courts. The essence of such an application is to protect the individual against any damage that may result merely from the lapse of time.\n\nThe Court notes that Article 11 of the Hague Convention requires the judicial or administrative authorities concerned to act expeditiously in proceedings for the return of children and any inaction lasting more than six weeks may give rise to a request for a statement of reasons for the delay.\n\n103.  In the instant case bailiffs went to D.Z.'s home on four occasions between December 1994 and December 1995. While the initial attempts at execution took place immediately after the order of 14 December 1994, on 22 and 27 December 1994, the same cannot be said of the subsequent attempts: the third visit from the bailiffs did not take place until four months later, on 10 May 1995, and the last visit was on 4 December 1995.\n\nThe Court notes that no satisfactory explanation was put forward to justify those delays. Similarly, it has difficulty in discerning the reasons why the Bucharest County Court decided to stay execution of the order between 30 June and 1 September 1995.\n\n104.  Furthermore, the Court notes that the Romanian authorities were totally inactive for more than a year, from December 1995 to 29 January 1997, when the only meeting between the applicant and her children took place. No explanation for this was provided by the Government.\n\n105.  For the rest, it observes that no other measure was taken by the authorities to create the necessary conditions for executing the order in question, whether coercive measures against D.Z. or steps to prepare for the return of the children.\n\n106.  Although coercive measures against children are not desirable in this sensitive area, the use of sanctions must not be ruled out in the event of unlawful behaviour by the parent with whom the children live.\n\n107.  The Government alleged that such measures could only have been taken at the instance of the applicant, but she had not made any application to that end. In particular, she could have brought an action in a civil court, under Article 1075 of the Civil Code, for a fine to be imposed for every day's delay in the execution of the order of 14 December 1994, or she could have lodged a criminal complaint with the appropriate bodies for failure to comply with the parental-responsibility measures.\n\n108.  The Court is not required to examine whether the domestic legal order allowed of effective sanctions against D.Z. It is for each Contracting State to equip itself with adequate and effective means to ensure compliance with its positive obligations under Article 8 of the Convention. The Court's sole task is to consider whether in the instant case the measures taken by the Romanian authorities were adequate and effective.\n\n109.  It notes in this connection that D.Z.'s failure to go to the Ministry of Justice on 11 or 15 May 1995 as requested did not have any consequences for him. Similarly, the Romanian authorities imposed no penalty on him after his refusal to present the children to the bailiffs. Furthermore, they took no initiative to try to ascertain the children's whereabouts.\n\n110.  As to the alleged failure to lodge a criminal complaint, which was necessary to trigger proceedings against D.Z., the Court notes that in a letter of 23 December 1994 the applicant indicated to the Minister of Justice that she wished to lodge a criminal complaint against D.Z. and, having set out the grounds for the complaint, asked him to do what was necessary. No action was taken on that letter, however.\n\nThe Court observes that under sections 30 and 38 of the Administration of Justice (Amendment) Act, State Counsel's offices are under the authority of the Minister of Justice, who has the power to give instructions to State Counsel. That being so, it regards the Government's argument that the applicant did not lodge a criminal complaint with the appropriate body as being invalid.\n\n111.  Inasmuch as the Government criticised the applicant for not having applied for an order imposing a daily fine, the Court considers that such an action cannot be regarded as effective, since it is an indirect and exceptional method of execution. Furthermore, the applicant's omission could not have absolved the authorities from their obligations in the matter of execution, since it is they who exercise public authority.\n\n112.  Nor was any preparatory contact between the social services, the applicant and the children arranged by the authorities, who also failed to seek the assistance of psychologists or child psychiatrists (see, mutatis mutandis, the Olsson (no. 2) judgment cited above, pp. 35-36, §§ 89-91). The social services, for instance, despite having sufficient relevant powers under Article 108 of the Family Code, only met the children in connection with the proceedings for transfer of parental responsibility (see paragraphs 38 and 44 above) and did no more than make purely descriptive inquiry reports.\n\nApart from the one on 29 January 1997, no meeting between the applicant and her children was arranged by the authorities, although the applicant had travelled to Romania on eight occasions in the hope of seeing them. As to the meeting on 29 January 1997, which, the Court stresses, took place one year after the present application was lodged with the Commission and two years after the interim order of 14 December 1994, it was not, in the Court's view, arranged in circumstances such as to encourage a positive development of the relations between the applicant and her children. It took place at the children's school, where their father was a teacher, in the presence of a large group of people consisting of teachers, civil servants, diplomats, policemen, the applicant and her lawyer (see paragraph 70 above). No social workers or psychologists had been involved in the preparation of the meeting. The interview lasted only a few minutes and came to an end when the children, who were clearly not prepared in any way, made as if to flee (see paragraphs 71-72 above).\n\nOn 31 January 1997, immediately after the failure of that one and only meeting, the Romanian Ministry of Justice, acting as Central Authority, ordered that the children should not be returned, on the ground that they were refusing to go and live with their mother (see paragraph 73 above). Since that date no further attempt has been made to bring the applicant and her children together.\n\n113.  The Court notes, lastly, that the authorities did not take the measures to secure the return of the children to the applicant that are set out in Article 7 of the Hague Convention.\n\nHaving regard to the foregoing, and notwithstanding the respondent State's margin of appreciation in the matter, the Court concludes that the Romanian authorities failed to make adequate and effective efforts to enforce the applicant's right to the return of her children and thereby breached her right to respect for her family life, as guaranteed by Article 8.\n\nThere has consequently been a violation of Article 8.\n\nII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n114.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Non-pecuniary damage\n\n115.  Mrs Ignaccolo-Zenide sought 200,000 French francs (FRF) in compensation for the non-pecuniary damage due to the anxiety and distress she had experienced on account of the failure to enforce her parental rights.\n\n116.  The Government did not express a view.\n\n117.  The Court considers that the applicant must indeed have sustained non-pecuniary damage. Having regard to the circumstances of the case and making its assessment on an equitable basis as required by Article 41, it awards FRF 100,000 under this head.\n\nB.  Costs and expenses\n\n118.  The applicant also claimed reimbursement of the sum of FRF 86,000, which she broke down as follows:\n\n(a)  FRF 46,000 for costs and expenses relating to the domestic proceedings, comprising FRF 6,000 for her lawyer's fees in Romania and FRF 40,000 for the travel and subsistence expenses she had to incur for her eight journeys to Romania;\n\n(b)  FRF 40,000 for fees payable to the lawyer who had represented her at Strasbourg, in accordance with a fee agreement concluded on 15 July 1998.\n\n119.  The applicant requested the Court to add to that sum “any value-added tax”.\n\n120.  The Government made no submissions.\n\n121.  The Court considers that the expenses relating to the steps taken in Romania and at Strasbourg to prevent or redress the situation it has held to be contrary to Article 8 of the Convention were incurred necessarily; they must accordingly be reimbursed in so far as they do not exceed a reasonable level (see, for example, the Olsson v. Sweden (no. 1) judgment of 24 March 1988, Series A no. 130, p. 43, § 104).\n\nThe Court awards the applicant for costs and expenses the sum of FRF 86,000, together with any value-added tax that may be chargeable.\n\nC.  Default interest\n\n122.  According to the information available to the Court, the statutory rate of interest applicable in France at the date of adoption of the present judgment is 3.47% per annum.\n\nFOR THESE REASONS, THE COURT\n\n1.  Holds by six votes to one that there has been a violation of Article 8 of the Convention;\n\n2.  Holds by six votes to one that the respondent State is to pay the applicant, within three months, the following sums, together with any value-added tax that may be chargeable:\n\n(a)  FRF 100,000 (one hundred thousand French francs) for non-pecuniary damage;\n\n(b)  FRF 86,000 (eighty-six thousand French francs) for costs and expenses;\n\n3.  Holds unanimously that simple interest at an annual rate of 3.47% shall be payable from the expiry of the above-mentioned three months until settlement;\n\n4.  Dismisses unanimously the remainder of the applicant's claim for just satisfaction.\n\nDone in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 25 January 2000.\n\nIn accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:\n\n(a)  partly dissenting opinion of Mr Maruste;\n\n(b)  partly dissenting opinion of Mrs Diculescu-Şova.\n\nI understand and can accept the formal approach adopted by the majority but nevertheless I voted against finding a violation of Article 8 for the following reasons.\n\nIt seems to me that the solution of this case goes against the very purpose and content of a case like this. It is true that the requirements of family life in terms of the relationship between children and divorced or separated parents are complicated and delicate. It is also true that in practice the Strasbourg institutions have been very cautious in reviewing decisions of national bodies. Nevertheless, I think that not only parents but also children should benefit from Article 8. I would go further: they are and should be the first beneficiaries where the interests of their parents are in conflict and they are mature enough to express clearly their own preferences.\n\nHaving regard to the United Nations Convention on the Rights of the Child and in particular Article 4, which requires States Parties to undertake all appropriate measures for the implementation of the rights recognised in the said Convention, the rights and best interests of children should be promoted. To that end, children should have the opportunity to exercise their rights, in particular in family proceedings affecting them. Due weight should also be given to children's views (see the European Convention on the Exercise of Children's Rights, European Treaty Series no. 160). Consequently, where parents' interests conflict, the views and preferences of children must be properly heard and taken into account in proceedings and in the making of decisions concerning them.\n\nIt is clear from the case file that the children have been living for a long time with their father. From the standpoint of the best interests of the child, it is not of decisive importance under what circumstances that came about or what role in that situation was played by each of their parents or by the public authorities. It is also clear that the children in the instant case expressly preferred to live with their father; and their preference must have been taken into account. I much regret that this circumstance was disregarded both in the domestic and in the foreign judicial proceedings, and enforcing an old judicial decision against the will of those who were the subjects of that decision comes close to doing violence.\n\nSecondly, I am of the opinion that the procedural miscarriages and delays that occurred come within the ambit of Article 6 of the Convention rather than of Article 8.\n\nHaving regard to the circumstances of the case, I disagree with the way in which the Court applied Article 41 of the Convention.\n\nThe applicant sought compensation for non-pecuniary damage resulting from the fact that it had been impossible for her to exercise her parental rights for nine years.\n\nYet it is a fact which cannot be disputed by the applicant that in 1989 she renounced her parental rights (see paragraph 10 of the judgment) for financial and tax reasons.\n\nIt is also a fact which she cannot dispute that from 1989 to the end of 1994 there was no family life between her and her daughters, for lack of any relations between them.\n\nAs the teenagers' intolerance and rejection of their mother have only increased, it has become very difficult for the Romanian authorities to comply with the letter of Article 8 of the Convention.\n\nThe Court considered that the positive obligations provided for in that Article in the matter of reuniting a parent with his or her children must be interpreted in the light of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.\n\nThe respondent State, however, has complied with the Hague Convention and has consequently respected the children's interests, thereby ensuring that they are not traumatised.\n\nThat being so, and in view, firstly, of the fact that the conflict and the alleged non-pecuniary damage originated in the stance taken up by the mother in 1989, secondly, of the fact that for five years the girls were outside the territory and jurisdiction of the respondent State although the sum sought under the head of non-pecuniary damage also covered that period, and, thirdly, of the respondent State's position in this conflict at this stage, I consider that the finding of a violation of Article 8 of the Convention would have represented sufficient satisfaction for non-pecuniary damage in this case.\n\nAs regards the expenses, I judge that the sum of 40,000 French francs awarded by the Court for the fees claimed by the French lawyer who represented the applicant at Strasbourg is excessive in relation to the work done (memorial and oral address), especially as no fee note in which the sum was broken down was produced to the Court.","title":""}
{"_id":"passage_319","text":"PROCEDURE\n\n1.  The case originated in an application (no. 4512/09) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Dimitrios Yevstafiyevich Popandopulo (“the applicant”), on 9 December 2008.\n\n2.  The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the  at the European Court of Human Rights.\n\n3.  The applicant complained, inter alia, of the abject conditions of his detention, his ill-treatment in remand prison and the excessive length of the proceedings against him.\n\n4.  On 16 February 2009 the President of the Chamber granted priority to the application under Rule 41 of the Rules of Court.\n\n5.  On 4 May 2009 the President of the First Section decided to give notice of the above complaints to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n6.  The applicant was born in 1979 and is currently serving a term of imprisonment in correctional colony IK-18, Yamalo-Nenetsk Autonomous Region.\n\nA.  Applicant’s arrest and trial\n\n7.  On 16 April 2005 the applicant was arrested on suspicion of murder.\n\n8.  On 18 April 2005 the Vsevolozhsk Town Court of the Leningrad Region decided to remand the applicant in custody.\n\n9.  On 23 April 2005 the applicant absconded, and on 25 April 2005 he was apprehended by the police.\n\n10.  On 29 May 2006 a deputy Prosecutor General of the  approved the bill of indictment against the applicant, and on 2 June 2006 the case was sent to the  for trial.\n\n11.  On 5 June 2006 the  scheduled the preliminary hearing for 15 June 2006. It was subsequently adjourned until 20 June 2006 following requests filed by the applicant and some of his codefendants who had not received a copy of the decision of 5 June 2006.\n\n12.  On 23 June 2006 the criminal case was returned to the public prosecutor for rectification of the bill of indictment.\n\n13.  On 27 September 2006 the Supreme Court of Russia quashed the above-mentioned decision on appeal, and the case was resubmitted to the .\n\n14.  As a result of the preliminary hearing held on 7 November 2006, on 8 November 2006 the  fixed the opening date of the trial for 6 December 2006. It was subsequently adjourned until 14 December 2006.\n\n15.  On 14 December 2006 the applicant requested the court to let K. represent him. However, on 21 December 2006 the court dismissed his request in view of the fact that K. had no law degree.\n\n16.  On 11 January 2007 the court began the examination of the evidence. However, owing to the non-attendance of certain witnesses, the applicant’s hospitalisation and the non-attendance of an interpreter, the hearing was adjourned until an unspecified date.\n\n17.  On 20 March 2007 the applicant requested leave for A. to represent him, but his request was dismissed because A. was the brother of one of the witnesses. Legal-aid counsel was appointed to represent the applicant.\n\n18.  Following the submission of the pleadings the proceedings were adjourned until 9 July 2007 to permit the parties to prepare their comments as to the substance and the wording of the questions to be put to the jury.\n\n19.  On 6 November 2007 the  Regional Court, following a jury trial, convicted the applicant of aggravated murder, theft, robbery and escape and sentenced him to life imprisonment. When determining the applicant’s sentence the court refused to take into account the time that the applicant had allegedly overspent in prison while serving his sentence in an unrelated criminal case.\n\n20.  During the trial the applicant requested the court to obtain the attendance of a witness on his behalf. However, the court refused his request in view of the fact that the testimony which the witness in question could have given was irrelevant to the establishment of the factual circumstances of the case by the jurors.\n\n21.  However, the trial court granted the prosecutor’s request to read out the testimony given by one of the applicant’s co-defendants at the stage of the pre-trial investigation.\n\n22.  Later, the presiding judge several times drew the jury’s attention to the fact that the information provided during the trial concerning acts other than those with which the applicant was charged, including the statement by the applicant’s co-defendant, was of no relevance to the applicant’s case and was not to be taken into consideration when answering the questions put to the jury.\n\n23.  The applicant received a copy of the trial record with a one-month delay.\n\n24.  On 15 May 2008 the Supreme Court of Russia upheld the judgment on appeal. The applicant was represented by two lawyers of his own choosing.\n\n25.  On 5 July 2008 a copy of the appeal decision was served on the applicant.\n\n26.  On 25 February 2009 the Presidium of the Supreme Court of Russia quashed the appeal decision of 15 May 2008 by way of supervisory review and remitted the case for a new appeal hearing. The reason for the quashing was the fact that the applicant had been denied the opportunity to study the verdict.\n\n27.  On 23 July 2009 the Supreme Court of Russia upheld the judgment of 6 November 2007 on appeal.\n\nB.  Conditions of the applicant’s detention in remand prison IZ-47/1\n\nB.  Conditions of the applicant’s detention in remand prison IZ-47/1\n\n28.  From 6 May 2005 to 7 September 2008 and from 7 June to 17 September 2009 the applicant was held in detention facility IZ-47/1 in . He was held in cells nos. 29, 66, 74, 86, 360, 395 and 435 before his conviction and subsequently in cells nos. 47, 122, 124, 129, 130, 132 and 135, designed for inmates sentenced to life imprisonment. All the cells measured eight square metres.\n\n(a)  The Government’s account\n\n(a)  The Government’s account\n\n29.  Each cell was equipped with four sleeping places and accommodated a maximum of three inmates at any given time. The applicant had always had an individual bed and had been provided with the appropriate bedding (a mattress, a pillow, a blanket, two sheets and a pillowcase) and with tableware.\n\n29.  Each cell was equipped with four sleeping places and accommodated a maximum of three inmates at any given time. The applicant had always had an individual bed and had been provided with the appropriate bedding (a mattress, a pillow, a blanket, two sheets and a pillowcase) and with tableware.\n\n30.  The cell windows, which measured 1 x 1.1 metres, were not covered with metal screens and therefore allowed sufficient daylight to enter so that the inmates could read and write. The cells were equipped with 60 to 75watt filament light bulbs which were on from 6 a.m. to 10 p.m. At night the cells were lit by 40-watt security lights.\n\n31.  All the cells were ventilated by means of a ventilation shaft. Natural ventilation via the windows was also available. The cells were equipped with a heating system providing a suitable temperature which was in line with health and safety standards. The average temperature during the summer was maintained at 22 degrees Celsius and during winter at 18 degrees Celsius.\n\n31.  All the cells were ventilated by means of a ventilation shaft. Natural ventilation via the windows was also available. The cells were equipped with a heating system providing a suitable temperature which was in line with health and safety standards. The average temperature during the summer was maintained at 22 degrees Celsius and during winter at 18 degrees Celsius.\n\n32.  The cells were equipped with toilets separated from the main area by 1.5 metre-high partitions.\n\n32.  The cells were equipped with toilets separated from the main area by 1.5 metre-high partitions.\n\n33.  The cells were equipped with drinking-water tanks. The inmates were also allowed to use electric water heaters.\n\n33.  The cells were equipped with drinking-water tanks. The inmates were also allowed to use electric water heaters.\n\n34.  The cells were also equipped with dining tables and benches corresponding to the number of detainees, as well as shelves and bedside tables for storage of personal items and foodstuffs.\n\n35.  The applicant could take a shower once a week for at least fifteen minutes.\n\n36.  He was given three hot meals a day on the basis of the established legal norms. The quality of the food was monitored on a regular basis by the medical staff of the detention facility.\n\n37.  The applicant was allowed a daily one-hour outside walk in the facility’s exercise yards, during which he could perform physical exercises. The exercise yards, measuring from 24 to 35 square metres, were equipped with benches, waste bins and sheds providing shelter from rain and snow. Sports equipment was provided to the detainees at their request.\n\n38.  The authorities ensured regular disinfection and pest control in the detention facility.\n\n39.  The applicant was provided with comprehensive medical assistance. The medical service of the facility was fully staffed with qualified personnel, medicines and medical equipment. On his arrival at the facility the applicant was examined by medical specialists; he made no healthrelated complaints and denied having tuberculosis, viral hepatitis, venereal or surgical diseases. Subsequently, when he underwent a forensic psychiatric examination, it was revealed that the applicant had viral hepatitis C. Throughout his stay in detention facility IZ-47/1 in  the applicant did not show clinical signs of the abovementioned disease and therefore did not require any specialised treatment.\n\n39.  The applicant was provided with comprehensive medical assistance. The medical service of the facility was fully staffed with qualified personnel, medicines and medical equipment. On his arrival at the facility the applicant was examined by medical specialists; he made no healthrelated complaints and denied having tuberculosis, viral hepatitis, venereal or surgical diseases. Subsequently, when he underwent a forensic psychiatric examination, it was revealed that the applicant had viral hepatitis C. Throughout his stay in detention facility IZ-47/1 in  the applicant did not show clinical signs of the abovementioned disease and therefore did not require any specialised treatment.\n\n39.  The applicant was provided with comprehensive medical assistance. The medical service of the facility was fully staffed with qualified personnel, medicines and medical equipment. On his arrival at the facility the applicant was examined by medical specialists; he made no healthrelated complaints and denied having tuberculosis, viral hepatitis, venereal or surgical diseases. Subsequently, when he underwent a forensic psychiatric examination, it was revealed that the applicant had viral hepatitis C. Throughout his stay in detention facility IZ-47/1 in  the applicant did not show clinical signs of the abovementioned disease and therefore did not require any specialised treatment.\n\n40.  In support of their observations the Government provided several certificates issued by the governor of IZ-47/1 on 3 August and 11 August 2009, the results of a laboratory examination of the microclimate of cells nos. 435, 360 and 122 (dated 10 July 2005, 6 June 2006 and 2 December 2007 respectively), statements by wardens (not dated), the schedules for disinfection and pest control in the facility’s premises and a number of certificates concerning the food rations. The Government further provided copies of extracts from the registration log showing the number of detainees on certain days and in certain cells between May and December 2005, April and December 2006, October and November 2007 and February and March 2008. These extracts show that on 1 July and 8 July 2005 and on 2 October 2006, cell no. 435 accommodated four inmates; on 4 August 2005 cell no. 66 accommodated four inmates; on 18 November and 15 December 2005 cell no. 395 accommodated four inmates; and on 5 October and 9 October 2007 and on 10 November 2007 cell no. 86 also accommodated four inmates.\n\n(b)  The applicant’s account\n\n(b)  The applicant’s account\n\n41.  Cells nos. 29, 86, 360, 395 and 435 were equipped with six sleeping places (two three-tier bunks). They housed from four to six inmates at any given time. Cell no. 66 housed three inmates including the applicant and cell no. 74 housed two inmates including the applicant.\n\n41.  Cells nos. 29, 86, 360, 395 and 435 were equipped with six sleeping places (two three-tier bunks). They housed from four to six inmates at any given time. Cell no. 66 housed three inmates including the applicant and cell no. 74 housed two inmates including the applicant.\n\n42.  After his conviction on 6 November 2007 the applicant was held on his own in cells nos. 47, 122, 124, 129, 130, 132 and 135, which were reserved for inmates sentenced to life imprisonment at first instance pending the examination of their case on appeal (wing 2/1 with restricted access). Until the repairs in April-May 2008 these cells had not been equipped with bunk beds but with two concrete benches in each cell.\n\n42.  After his conviction on 6 November 2007 the applicant was held on his own in cells nos. 47, 122, 124, 129, 130, 132 and 135, which were reserved for inmates sentenced to life imprisonment at first instance pending the examination of their case on appeal (wing 2/1 with restricted access). Until the repairs in April-May 2008 these cells had not been equipped with bunk beds but with two concrete benches in each cell.\n\n43.  The windows in cells nos. 29, 66, 74, 86, 360, 395 and 435 were equipped with a double grid (one on the outside and one on the inside). In cells nos. 122, 124, 129, 130, 132 and 135 the windows were equipped with a triple grid (on the outside and the inside of the cell, as well as inside the window pane). In addition to the triple grid, densely spaced iron netting was fitted in front of the windows, which allowed very little daylight to enter. In cell no. 130 the window glass had been replaced with a layer of veneer, which also prevented daylight from entering the cell. The window in cell no. 132, in which the applicant had been held for two weeks in February 2008, faced a wall, in addition to the above-mentioned arrangements.\n\n43.  The windows in cells nos. 29, 66, 74, 86, 360, 395 and 435 were equipped with a double grid (one on the outside and one on the inside). In cells nos. 122, 124, 129, 130, 132 and 135 the windows were equipped with a triple grid (on the outside and the inside of the cell, as well as inside the window pane). In addition to the triple grid, densely spaced iron netting was fitted in front of the windows, which allowed very little daylight to enter. In cell no. 130 the window glass had been replaced with a layer of veneer, which also prevented daylight from entering the cell. The window in cell no. 132, in which the applicant had been held for two weeks in February 2008, faced a wall, in addition to the above-mentioned arrangements.\n\n44.  Until April-May 2008 the artificial lighting in cells nos. 122, 124, 129, 130, 132 and 135 consisted of one 60-watt filament light bulb per cell. The bulb was covered by a dust-laden lampshade above the entrance door.\n\n44.  Until April-May 2008 the artificial lighting in cells nos. 122, 124, 129, 130, 132 and 135 consisted of one 60-watt filament light bulb per cell. The bulb was covered by a dust-laden lampshade above the entrance door.\n\n45.  Air shafts existed in cells nos. 29, 66, 74, 86, 360, 395 and 435, but did not function as they were clogged with waste. Cells nos. 122, 124, 129, 130, 132 and 135 did not have any air shafts. The heating system did not function in any of the cells where the applicant was detained until the repairs carried out in the facility in April-May 2008. The applicant had to sleep with his clothes on to keep warm in the wintertime.\n\n46.  There were no hot water taps or drinking-water tanks in the cells.\n\n47.  The lavatory was not separated from the living area and did not offer any privacy.\n\n48.  No bedding was provided to the applicant until November 2007 (until then he had used his own bedding). The bedding provided by the facility was very worn, torn and dirty. Inmates had to dry their laundry indoors, creating excessive humidity in the cells.\n\n49.  The shower was available once a week. At times it was only available once every ten days, every two weeks or even every three weeks.\n\n50.  The food was of extremely poor quality and in scarce supply.\n\n51.  None of the cells was equipped with a dining table or benches (because of the limited space). The inmates ate their food sitting on their bunks holding the plate.\n\n52.  The cells swarmed with spiders, worms, flies, cockroaches, bedbugs and mice. The applicant never witnessed any disinfection or pest control.\n\n52.  The cells swarmed with spiders, worms, flies, cockroaches, bedbugs and mice. The applicant never witnessed any disinfection or pest control.\n\n53.  Outside exercise, which was supposedly available every day, was skipped on shower days and occasionally on other days for no apparent reason. The exercise yards were too small and did not offer sufficient room for any exercise (an average of five detainees being taken outside simultaneously).\n\n54.  The inmates were not provided with adequate medical assistance.\n\n55.  The applicant’s complaints about the conditions of his detention had availed nothing. Neither he nor the witnesses who could confirm his allegations were ever questioned on the circumstances of which he complained.\n\n55.  The applicant’s complaints about the conditions of his detention had availed nothing. Neither he nor the witnesses who could confirm his allegations were ever questioned on the circumstances of which he complained.\n\n56.  In support of his position the applicant made reference to the applications made to the  by B., T. and Z., in which they also raised an issue concerning compliance of the conditions of their detention in facility IZ-47/1 during the relevant period with the requirements of Article 3 of the Convention.\n\n56.  In support of his position the applicant made reference to the applications made to the  by B., T. and Z., in which they also raised an issue concerning compliance of the conditions of their detention in facility IZ-47/1 during the relevant period with the requirements of Article 3 of the Convention.\n\n57.  B., in particular, (see A.B. v. Russia, no. 1439/06, 14 October 2010) provided the following account of the conditions of his detention in wing 2/1 of facility IZ-47/1 of :\n\n“36.  On 29 October 2004 the applicant was placed in solitary cell no. 129 in wing 2/1 with restricted access. The wing was designed for the detention of inmates sentenced to life imprisonment.\n\n37.  On 19 January 2005 the applicant was transferred to solitary cell no. 123 in wing 2/1 with restricted access. According to the applicant, the cell was the equivalent of a disciplinary cell. ... The cell was in the basement where there was no central heating, and the winter temperature there was about 7-10oC.\n\n...\n\n71.  The applicant submitted written statements by Mr A.M. and\n\n72.  Mr A.M., who had been sentenced to life imprisonment, was kept in cells nos. 120, 122, 126, 128 and 141 of wing 2/1 of the remand prison on various occasions between June 2004 and July 2007. In his submission, wing 2/1 was reserved for inmates sentenced to life imprisonment at first instance pending the examination of their cases on appeal. The conditions of detention in all the cells were nearly identical. There were no chairs or desks in the cells. The beds were made of concrete. The cells were in a deplorable state. The humidity was high. There was no hot water or heating. The temperature in the cells in winter was as low as outside. There was no mandatory ventilation. Lavatory pans were not separated from the rest of the cells. All inmates in wing 2/1 were kept in solitary confinement. ...\n\n73.  Mr N.M. was sentenced to life imprisonment. He was kept in cell no. 121 of wing 2/1 of the remand prison. In his submission, all the cells in the wing were nearly identical. There was no furniture in the cells. The temperature in the cells in winter was as low as 3oC. There was no hot water. The cells were very humid so that the walls were covered with mould. The lavatory pans were not secluded. The food was of poor quality. ...”\n\n58.  Z. provided the following account of the conditions in wing 2/1 of facility IZ-47/1 in :\n\n“From 30 March 2006 to 19 April 2007 and from 4 December 2007 to the present I have been detained in wing 2/1 of St Petersburg IZ-47/1. From December 2007 I was held in cell no. 129, and [the applicant] was held in cell no. 130. The conditions in those cells were horrible. The walls were half-destroyed. The ceiling was crumbling. The floor was made of concrete. The heating did not function; the cells were very cold. There were no hot water taps. Ventilation was non-existent. The cells were very dim since filament bulbs over 60 watts were prohibited; the only lamp in the cell was fitted with a 40-watt filament bulb ... The cells were overrun by rodents (rats, mice).\n\n...\n\nIn April 2008 I was transferred to cell no. 134, and [the applicant] was moved to cell no. 135. The conditions in those cells were identical to the conditions described above.\n\nOn 12 November 2008 I was transferred to cell no. 121, and in June 2009 I learned that [the applicant] was being held in cell no. 119. The floor and the ceiling in these cells are painted, but they are crumbling; the concrete floor is covered with a piece of linoleum. The remaining conditions are identical to those described above. ...”\n\nC.  Ill-treatment in remand prison IZ-47/1\n\n1.  Events of 28 October 2007\n\n(a)  The applicant’s account\n\n(a)  The applicant’s account\n\n59.  According to the applicant, on 28 October 2007 in the afternoon the door of the cell where he was being held (cell no. 74 at the time) burst open and two prison officers entered and ordered the applicant and his inmates to leave the cell. The purpose of the operation was to make the detainees abandon a collective hunger strike. As soon as the detainees left the cell they were attacked by the “Tayfun” special-purpose unit (отдел специального назначения “Тайфун” ГУИН). The officers of the unit wore balaclavas and used rubber truncheons to hit the detainees. The applicant saw that inmates from other cells were also being beaten up. As a result of the blows he received the applicant lost consciousness and regained it only when locked back in the cell.\n\n60.  On the following day the applicant was placed in the punishment cell for ten days for alleged disobedience. Since he could not walk after the beatings he was helped by two wardens.\n\n(b)  The Government’s account\n\n(b)  The Government’s account\n\n61.  According to the Government, a rubber truncheon was used against the applicant for the purpose of repelling an attack by him on a prison officer. They submitted a report on the use of a rubber truncheon against the applicant dated 28 October 2007, accompanied by a medical certificate drawn up following the examination of the applicant after the incident. The certificate recorded multiple abrasions in the area of the applicant’s back and a haematoma in the region of his right knee.\n\n(c)  Investigation into the events of 28 October 2007\n\n62.  On 1 November and 2 November 2007 the applicant complained about the beatings to the public prosecutor’s office.\n\n62.  On 1 November and 2 November 2007 the applicant complained about the beatings to the public prosecutor’s office.\n\n63.  In its reply dated 14 December 2007 the  public prosecutor’s office informed the applicant as follows:\n\n“In the course of the inquiry [conducted into the applicant’s allegations of illtreatment] it was established that on 28 October 2007 the prison officers of SIZO-1 had been carrying out a technical inspection of cell no. 74 where [the applicant] was held at the material time. In the course of the inspection [the applicant] refused to comply with the lawful orders given by the prison officers. In order to put a stop to [the applicant’s] unlawful actions physical force and special means had been used against him in accordance with section 45 of the Federal Law on the detention of persons suspected of and charged with criminal offences.\n\n...\n\nTaking into account the foregoing, at the present time there are no grounds for the prosecutor’s office to intervene.”\n\nTaking into account the foregoing, at the present time there are no grounds for the prosecutor’s office to intervene.”\n\n64.  Further, on 27 August 2008 an investigator from the Kalininskiy District investigating department of the  public prosecutor’s office refused to institute criminal proceedings concerning the use of special means against the applicant. The decision read as follows:\n\n“In the course of the inquiry it was established that on 28 October 2007 on the territory of IZ-47/1 a general search was conducted by prison officers of [the above facility] aimed at finding and seizing prohibited items. During the search certain detainees ... broke the rules by failing to abide by the lawful orders of the [prison officers] and insulting [them], as a result of which physical force and special means were used against them.\n\nTherefore, physical force and special means were lawfully applied to [the applicant] since he had not abided by the lawful orders of the prison officers, a fact confirmed by the medical certificate, the report on the use of a rubber truncheon and the submissions by [four officers involved in the incident] ...”\n\nTherefore, physical force and special means were lawfully applied to [the applicant] since he had not abided by the lawful orders of the prison officers, a fact confirmed by the medical certificate, the report on the use of a rubber truncheon and the submissions by [four officers involved in the incident] ...”\n\n65.  On 27 July 2009 the acting head of the Kalininskiy District investigating department annulled the above decision, finding as follows:\n\n“In the course of the study of the material in the case file it was established that the inquiry had been incomplete.\n\nTherefore the decision [of 27 August 2008] was made prematurely and must be annulled.\n\nIn the course of the additional inquiry it is necessary to question [the applicant], to obtain and examine the [applicant’s] medical documents, to question the head of the “Tayfun” special-purpose unit, and to take other measures required in order to reach a decision.”\n\nIn the course of the additional inquiry it is necessary to question [the applicant], to obtain and examine the [applicant’s] medical documents, to question the head of the “Tayfun” special-purpose unit, and to take other measures required in order to reach a decision.”\n\n66.  The applicant has yet to be informed of the outcome of the additional inquiry. No information was provided by the Government in that regard.\n\n2.  Events of 14 February 2008\n\n(a)  The applicant’s account\n\n67.  According to the applicant, he was beaten up by prison officers because of his complaints about the conditions of his detention.\n\n(b)  The Government’s account\n\n68.  According to the Government, physical force consisting in bending the applicant’s arm behind his back (загиб руки за спину) was applied to the applicant for the purpose of repelling an attack by him on a prison officer. They submitted a report on the use of physical force against the applicant dated 14 February 2008, accompanied by a medical certificate concerning the examination of the applicant after the incident. The certificate indicated that no visible injuries had been detected on the applicant’s body. The Government further submitted statements by three prison officers, according to which in the course of the search conducted in cell no. 130, where the applicant was detained at the material time, the latter had behaved defiantly, had threatened the prison officers, had not responded to warnings and had prevented the officers from carrying out the search. After a mobile phone had been found in the cell the applicant had pounced on one of the prison officers and the latter had had to use physical force against him. The applicant had displayed active physical resistance and had tried to administer blows and kicks, following which he had been forced to the floor. Since he continued to resist, a painful hold (болевой прием самбо) had been applied to him and he had been put back in the cell.\n\n(c)  Investigation into the events of 14 February 2008\n\n69.  The applicant complained to the public prosecutor’s office about the beatings.\n\n69.  The applicant complained to the public prosecutor’s office about the beatings.\n\n70.  In its reply dated 25 April 2008 the  public prosecutor’s office informed the applicant as follows:\n\n“On 14 February 2008 prison officers of SIZO-1 conducted a search in cell no. 130 where you were detained at the material time. During the search you displayed resistance to the lawful orders of the prison officers. In order to put a stop to your unlawful actions physical force was applied in accordance with section 45 of the Federal Law on the detention of persons suspected of and charged with criminal offences.”\n\n71.  Neither party provided any other documents pertaining to the inquiry into the above incident.\n\nII.  RELEVANT DOMESTIC LAW\n\nA.  Conditions of detention\n\n72.  Section 22 of the Federal Law of 15 July 1995 on the detention of persons suspected of and charged with criminal offences (the Detention of Suspects Act) provides that detainees should be given free food sufficient to maintain them in good health in accordance with the standards established by the Government of the . Section 23 provides that detainees should be kept in conditions which satisfy certain sanitary and hygienic requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell.\n\nB.  Use of force and special means against detainees\n\n73.  Section 44 of the Detention of Suspects Act provides that physical force, special means or weapons may be used against detainees for the purpose of preventing an offence and overcoming resistance to the lawful orders of officials in cases where non-violent means are not sufficient to put a stop to the offence or make a detainee comply with a lawful order.\n\n73.  Section 44 of the Detention of Suspects Act provides that physical force, special means or weapons may be used against detainees for the purpose of preventing an offence and overcoming resistance to the lawful orders of officials in cases where non-violent means are not sufficient to put a stop to the offence or make a detainee comply with a lawful order.\n\n74.  Section 45 of the Detention of Suspects Act provides that special means (including rubber truncheons) may be used against detainees in the following cases:\n\n(a)  to put a stop to assaults on officials and other persons;\n\n(b) to quell mass disorder or collective breaches of public order;\n\n(c)  to prevent unlawful actions of detainees resisting lawful orders;\n\n(d)  to free hostages, captured buildings, premises, structures or transport facilities;\n\n(e)  to prevent attempts to escape from custody;\n\n(f)  to prevent attempts to cause harm to others; and\n\n(g)  to prevent attempts to cause self-harm.\n\nC.  Criminal-law remedies in respect of ill-treatment\n\n1.  Applicable criminal offences\n\n75.  Abuse of office associated with the use of violence or entailing serious consequences carries a punishment of up to ten years’ imprisonment (Article 286 § 3 of the Criminal Code).\n\n2.  Investigation of criminal offences\n\n76.  The Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001, in force from 1 July 2002) states that a criminal investigation may be initiated by an investigator or prosecutor on a complaint by an individual (Articles 140 and 146). Within three days of receipt of such a complaint, the investigator or prosecutor must carry out a preliminary inquiry and make one of the following decisions: (1) to open criminal proceedings if there are reasons to believe that a crime has been committed; (2) to decline to open criminal proceedings if the inquiry reveals that there are no grounds to initiate a criminal investigation; or (3) to refer the complaint to the competent investigative authority. The complainant must be notified of any decision taken. The decision not to open criminal proceedings is amenable to appeal to a higher prosecutor or a court of general jurisdiction (Articles 144, 145 and 148).\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION ON ACCOUNT OF THE CONDITIONS OF THE APPLICANT’S DETENTION\n\n77.  The applicant complained of the allegedly appalling conditions of his detention in  pre-trial detention facility IZ-47/1. He relied on Article 3 of the Convention, which reads as follows:\n\n“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”\n\nHe also claimed that he did not have at his disposal an effective remedy in respect of the violation of the guarantee against ill-treatment provided by Article 13 of the Convention:\n\n“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority ...”\n\nA.  Submissions by the parties\n\n78.  Relying on their description of facility IZ-47/1 in , the Government asserted that the conditions of the applicant’s detention had complied with the requirements of Article 3 of the Convention. In so far as the applicant complained of the absence of an effective domestic remedy in respect of the allegedly inhuman and degrading conditions of his detention, the Government submitted that it had been open to the applicant to lodge a civil action, but that he had not availed himself of that possibility. The above-mentioned remedy had proved to be effective in the cases of Mr D., Mr R. and Mr S., cited by the Government previously in the case of Kokoshkina v. Russia (no. 2052/08, § 49, 28 May 2009). All three men had been awarded compensation for non-pecuniary damage resulting from the unsatisfactory conditions of their detention (infection with a contagious skin disease, failure to provide food and, in the third case, a more general formula relating to the inadequate conditions of detention). At no point did the Government make available to the Court copies of the judgments cited by them in Kokoshkina.\n\n79.  The applicant maintained his complaints.\n\nB.  The Court’s assessment\n\n1.  Admissibility\n\n80.  The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that they are not inadmissible on any other grounds. They must therefore be declared admissible.\n\n2.  Merits\n\n(a)  Article 3 of the Convention\n\n81.  Article 3, as the Court has observed on many occasions, enshrines one of the fundamental values of democratic society. The Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances or the victim’s behaviour (see Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV). The Court has consistently stressed that, in order for a punishment or treatment associated with it to be “inhuman” or “degrading”, the suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. Although measures depriving a person of his liberty may often involve such an element, in accordance with Article 3 of the Convention the State must ensure that a person is detained under conditions which are compatible with respect for his human dignity and that the manner and method of the execution of the measure do not subject him to distress or hardship exceeding the unavoidable level of suffering inherent in detention (see Kudła v. Poland [GC], no. 30210/96, §§ 92-94, ECHR 2000-XI).\n\n82.  The Court further reiterates that in certain cases the lack of personal space afforded to detainees in Russian remand prisons was so extreme as to justify, in its own right, a finding of a violation of Article 3 of the Convention (see, for example, Benediktov v. , no. 106/02, §§ 33 et seq., 10 May 2007; Khudoyorov v. Russia, no. 6847/02, §§ 104 et seq., ECHR 2005-X (extracts); Labzov v. Russia, no. 62208/00, §§ 44 et seq., 16 June 2005; Novoselov v. Russia, no. 66460/01, §§ 41 et seq., 2 June 2005; Mayzit v. Russia, no. 63378/00, §§ 39 et seq., 20 January 2005; and Kalashnikov v. Russia, no. 47095/99, §§ 97 et seq., ECHR 2002-VI). By contrast, in other cases where the overcrowding was not so severe as to raise in itself an issue under Article 3 of the Convention, the Court noted other aspects of the physical conditions of detention as being relevant for its assessment of compliance with that provision. Such elements included, in particular, the opportunity to use the toilet in private, the availability of ventilation, access to natural light or air, the adequacy of the heating arrangements and compliance with basic sanitary requirements. Thus, even in cases where a larger prison cell was in issue – measuring between three and four square metres per inmate – the Court found a violation of Article 3 since the space factor was coupled with an established lack of ventilation and lighting (see Aleksandr Makarov v. Russia, no. 15217/07, § 98, 12 March 2009; Vlasov v. Russia, no. 78146/01, § 84, 12 June 2008; Babushkin v. Russia, no. 67253/01, § 44, 18 October 2007; Trepashkin v. Russia, no. 36898/03, § 94, 19 July 2007; and Peers v. Greece, no. 28524/95, §§ 70-72, ECHR 2001-III).\n\n83.  Turning to the circumstances of the present case, the Court observes that the applicant was held in facility IZ-47/1 in  uninterruptedly from 6 May 2005 to 7 September 2008 and from 7 June to 17 September 2009. It further observes that the conditions of the applicant’s detention in the above facility prior to his conviction by the first-instance court on 6 November 2007 and thereafter differed substantially. While the main characteristic of the applicant’s detention before 6 November 2007 was the alleged overcrowding of the cells, after 6 November 2007 the applicant was detained in solitary confinement and complained essentially about other aspects of the physical conditions of his detention. In view of the foregoing, the Court considers it appropriate to examine separately the conditions of the applicant’s detention from 6 May 2005 to 6 November 2007 and from 6 November 2007 onwards.\n\n84.  The Court notes that the parties disputed most aspects of the conditions of the applicant’s detention in the period under consideration. However, there is no need for the Court to establish the veracity of each and every allegation, as it has sufficient documentary evidence in its possession to confirm the applicant’s allegations of severe overcrowding in facility IZ47/1. This in itself is sufficient to conclude that Article 3 of the Convention has been breached.\n\n85.  The Court notes the Government’s argument to the effect that the communal cells of facility IZ-47/1, each measuring eight square metres, accommodated a maximum of three detainees at any given time. However, contrary to the Government’s assertion and the certificate issued by the governor of IZ-47/1, the extracts from the registration log provided by the Government, however selective they may be, show that on certain days between 2005 and 2007, cells nos. 66, 86, 395 and 435 each accommodated four inmates (see paragraph 40 above).\n\n86.  The Court is concerned at such discrepancies between the statements of the domestic authorities and the original prison documentation. It is therefore inclined to accept the applicant’s position, according to which the communal cells in facility IZ-47/1 accommodated, with some minor exceptions (see paragraph 41 above), from four to six detainees at any given time, thereby affording each detainee at all times between 1.3 and 2 square metres of personal space. Furthermore, when the sleeping, sanitary and dining arrangements in the cells are taken into account it appears that the inmates were left with virtually no personal space at all.\n\n87.  The Court further notes that it has previously on a number of occasions examined the conditions of detention in detention facility IZ-47/1 in St Petersburg and found them to be incompatible with the requirements of Article 3 of the Convention on account of severe overcrowding (see Goroshchenya v. , no. 38711/03, § 64-73, 22 April 2010; Lutokhin v. Russia, no. 12008/03, §§ 48-59, 8 April 2010; Seleznev v. Russia, no. 15591/03, §§ 38-48, 26 June 2008; Gusev v. Russia, no. 67542/01, §§ 51-61, 15 May 2008; and Andrey Frolov v. Russia, no. 205/02, §§ 43-51, 29 March 2007).\n\n88.  Having regard to its case-law on the subject and the material in its possession, the Court notes that the Government have not provided any evidence or made any submissions capable of persuading it to reach a different conclusion in the present case.\n\n89.  There has therefore been a violation of Article 3 of the Convention on account of the conditions of the applicant’s detention in facility IZ-47/1 in St Petersburg from 6 May 2005 to 6 November 2007, which the Court considers to amount to inhuman and degrading treatment within the meaning of Article 3 of the Convention.\n\n90.  The Court observes that in the periods under consideration the applicant was held alone in cells measuring 8 sq. m. As the size of the cells by itself does not raise an issue under the Convention, the Court will have to determine whether the cumulative effect of other aspects of the physical conditions of the applicant’s detention was such as to amount to inhuman and/ or degrading treatment in breach of Article 3 of the Convention.\n\n91.  The Court observes that the parties disputed most other aspects of the conditions of the applicant’s detention. In this regard the Court reiterates that in certain instances the respondent Government alone have access to information capable of firmly corroborating or refuting allegations under Article 3 of the Convention, and that a failure on a Government’s part to submit such information without a satisfactory explanation may give rise to the drawing of inferences as to the well-founded nature of the applicant’s allegations (see Khudoyorov, cited above, § 113, and Ahmet Özkan and Others v. Turkey, no. 21689/93, § 426, 6 April 2004). The Court will therefore focus its analysis on the facts presented to it which the respondent Government either admitted or failed to refute, without establishing the veracity of each and every allegation.\n\n92.  First of all, in so far as the sleeping arrangements in the cells are concerned, the applicant claimed that until the renovations carried out in April-May 2008 the cells in which he was detained had not been equipped with bunk beds, but with two concrete benches (see paragraph 42 above). This fact was confirmed by written statements of A.M., a cellmate of B. to whose case before the Court the applicant referred (see paragraphs 56-57 above). The Court notes that the Government made no comments on this allegation.\n\n93.  Secondly, as regards the natural lighting in the cells, the applicant contended that the windows in the cells (measuring 1 x 1.1 metre, one per cell) were protected by three layers of horizontal and vertical lattices (fitted on the inner and outer sides of the cells and inside the window panes) and, above that, by densely spaced iron netting on the outside. In one of the cells the broken window was replaced with veneer and in another cell the window, also protected in the above fashion, was facing a wall (see paragraph 43 above). The Government did not comment on these points either. As far as the artificial lighting is concerned, according to both parties’ submissions, until the renovations in April-May 2008 the cells were lit during the day by a 60-watt filament bulb and subsequently by two 60watt filament bulbs (see paragraphs 30 and 44 above).\n\n94.  Thirdly, as to the availability of outside exercise, the applicant alleged that outside exercise had been limited to one hour a day and that on some days it had not been available at all (see paragraph 53 above). The Government did not comment on whether in fact the applicant had been deprived of outside exercise on shower days and on other occasions.\n\n95.  Having regard to the foregoing, the Court observes that from 6 November 2007 until at least April 2008 the applicant had to spend a considerable part of each day practically confined to his cell with inadequate sleeping arrangement, very limited access to daylight, extremely poor artificial lighting and a lack of regular outside exercise. Taking into account the cumulative effect of those factors, the Court concludes that the conditions of the applicant’s detention between 6 November 2007 and April 2008 amounted to inhuman and degrading treatment. As regards the subsequent periods from April 2008 to 7 September 2008 and from 7 June to 17 September 2009, the information provided by the parties indicates that the concrete benches were replaced with bunk beds and that additional measures were taken regarding the artificial lighting in the cells. For these reasons, in the Court’s opinion, the cumulative effect of the conditions of the applicant’s detention in the above two periods was not so severe as to fall within the ambit of Article 3 of the Convention.\n\n96.  There has therefore been a violation of Article 3 of the Convention on account of the conditions of the applicant’s detention in facility IZ-47/1 in St Petersburg from 6 November 2007 to April 2008, and no violation on account of the conditions of his detention in the above-mentioned facility from April 2008 to 7 September 2008 and from 7 June to 17 September 2009.\n\n(b)  Article 13 of the Convention\n\n97.  The Court points out that Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief (see, among many other authorities, Kudła, cited above, § 157). The scope of the obligation under Article 13 varies depending on the nature of the applicant’s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be effective in practice as well as in law.\n\n98.  Turning to the facts of the present case, the Court notes that, according to the Government, the applicant had available to him an adequate and effective remedy in respect of the conditions of his detention, in the form of a civil action against the detention facility. The Court has previously addressed that argument in the context of the admissibility of an Article 3 complaint on account of the conditions of detention in the case of Aleksandr Makarov, cited above, and dismissed it as follows:\n\n“87.  [...] the Court notes that the Government, without providing any further explanation, suggested that an action for damages lodged with a court could have been an effective remedy in the applicant’s case for his complaints about the poor conditions of his detention. The Government did not make any reference to any legal norm on the possibility of lodging an action seeking damages for treatment already suffered as a result of the conditions of detention, or on the possibility of such an action being preventive of further sufferings. At the same time, without providing copies of respective court judgments, the Government supplied three examples from domestic practice showing that by using the means in question it was possible for the applicant to obtain compensation for damage. In this connection, the Court observes that in the absence of documents supporting the Government’s assertion, it is unable to identify the relevance of the impugned judgments to the issue of the effectiveness of an action for damages as a remedy in the circumstances of the present case. Furthermore, in the Court’s view, the three cases cited by the Government do not suffice to show the existence of settled domestic practice that would prove the effectiveness of the remedy (see, for a similar approach, Horvat, cited above, § 44).\n\n88.  In any event, the Court does not lose sight of the Government’s argument that every aspect of the conditions of the applicant’s detention, including the lighting, food, medical assistance, sanitary conditions, etc., complied with applicable legal regulations. The Court finds it questionable whether, in a situation where domestic legal norms prescribed such conditions of the applicant’s detention, the applicant would have been able to argue his case before a court or even state the cause of action to pass the admissibility stage (see Guliyev v. Russia, no. 24650/02, § 55, 19 June 2008, and Valašinas v. Lithuania (dec.), no. 44558/98, 4 March 2000). In other words, the Court has strong doubts that the applicant would have had a realistic opportunity to apply effectively to a court.\n\n89.  This conclusion is not altered by the fact that on one occasion the applicant was able to challenge successfully the facility administration’s decision not to permit him to have a refrigerator in the cell. To the contrary, the Court observes that the applicant’s ability to obtain a favourable court decision in that particular case supports the above finding that a civil action for damages did not offer the applicant sufficient prospects of success. As it follows from the Government’s submissions, the domestic court annulled the facility administration’s refusal on the ground that it did not comply with the legal norms. At the same time in the two other cases in which the applicant attempted to challenge the facility administration’s actions, the courts, in dismissing the applicant’s complaints, explicitly relied on the fact that the impugned limitations on the applicant’s rights were established legally (see paragraph 72 above). The approach adopted by the Russian courts seems unduly formalistic. It allows a large number of cases, such as the applicant’s, where the conditions of detention result from legal regulations, to be dismissed. Thus, as a result of that stance of the courts, an action to a court offers no prospect of success and could be considered theoretical and illusory rather than adequate and effective in the sense of Article 35 § 1 of the Convention.”\n\n99.  The Court further reiterates that in the past it has found a violation of Article 13 on account of the absence of an effective remedy for inhuman and degrading conditions of detention in many Russian cases, finding as follows (see, for example, Benediktov, cited above, § 29, and Vlasov, cited above, § 87):\n\n“[T]he Government did not demonstrate what redress could have been afforded to the applicant by a prosecutor, a court or other State agencies, taking into account that the problems arising from the conditions of the applicant’s detention were apparently of a structural nature and did not only concern the applicant’s personal situation (compare Moiseyev v. Russia (dec.), no. 62936/00, 9 December 2004; Kalashnikov v. Russia (dec.), no. 47095/99, 18 September 2001; and, most recently, Mamedova v. Russia, no. 7064/05, § 57, 1 June 2006). The Government have failed to submit evidence as to the existence of any domestic remedy by which the applicant could have complained about the general conditions of his detention, in particular with regard to the structural problem of overcrowding in Russian detention facilities, or that the remedies available to him were effective, that is to say that they could have prevented violations from occurring or continuing, or that they could have afforded the applicant appropriate redress (see, to the same effect, Melnik v. Ukraine, no. 72286/01, §§ 70-71, 28 March 2006; Dvoynykh v. Ukraine, no. 72277/01, § 72, 12 October 2006; and Ostrovar v. Moldova, no. 35207/03, § 112, 13 September 2005).”\n\n100.  These findings apply a fortiori to the present case. Although the Government pointed to a domestic remedy by which, in their opinion, the applicant could have obtained redress for the inhuman and degrading conditions of his detention, they did not put forward any valid argument as to its effectiveness. This could have consisted in reference to a domestic legal framework enabling persons subjected to inhuman and degrading conditions of detention to seek redress of both a compensatory and a preventive nature, or in a credible demonstration of a settled domestic practice that would prove the effectiveness of the remedy in question.\n\n101.  The Court concludes, therefore, that there has been a violation of Article 13 of the Convention on account of the lack of an effective and accessible remedy under domestic law enabling the applicant to complain about the general conditions of his detention in IZ-47/1 in St Petersburg.\n\nII.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE APPLICANT’S ILL-TREATMENT\n\n102.  The applicant complained under Articles 3 and 13 of the Convention that he had been beaten up on 28 October 2007 and 14 February 2008 while in State custody and that there had been no effective investigation into these incidents. The Court will examine the applicant’s complaints from the standpoint of the State’s negative and positive obligations flowing from Article 3, which reads as follows:\n\n“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”\n\nA.  Submissions by the parties\n\n103.  The Government argued that the use of physical force and special means against the applicant on 28 October 2007 and 14 February 2008 had been made necessary by the applicant’s own conduct and had been lawful in domestic terms. They further argued that the treatment of which the applicant complained had not attained the threshold of inhuman or degrading treatment. The Government made no comment on the issue of the compliance of the investigation in the present case with the requirements of Article 3 of the Convention.\n\n104.  The applicant maintained his complaint.\n\nB.  The Court’s assessment\n\n1.  Admissibility\n\n105.  In so far as the complaint concerns the incident of 14 February 2008 the Court notes, and it is uncontested by the parties, that the prison officers had recourse to an immobilisation technique in dealing with the applicant (see paragraph 66 above). At the same time, it was not established beyond reasonable doubt that the applicant had been beaten up (see, by contrast, Dedovskiy and Others v. Russia, no. 7178/03, §§ 76-79, 15 May 2008). The applicant did not claim to have sustained any injuries as a result of the incident, and no medical evidence to the contrary was furnished. There is also nothing in the case file to show that the use of force against the applicant exceeded the minimum level of severity required in order to raise an issue under Article 3 of the Convention, or that it was disproportionate to the applicant’s own conduct. In view of the above considerations, the Court finds that the use of force against the applicant on 14 February 2008 was the result of legitimate actions taken by the prison officers to put a stop to the applicant’s unruly behaviour and did not reach the threshold required in order to constitute inhuman or degrading treatment. It follows that this part of the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.\n\n106.  In so far as the applicant’s complaint relates to the episode on 28 October 2007, the Court notes that this complaint is not manifestly illfounded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\n2.  Merits\n\n(a)  Alleged ill-treatment\n\n107.  The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence. In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt”. However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII).\n\n108.  It is not in dispute between the parties that on 28 October 2007 prison officers of facility IZ-47/1 in  carried out a general search/technical inspection of the facility’s cells, including cell no. 74 where the applicant was held at the material time. It is likewise uncontested that the officers used rubber truncheon against the applicant. The Court therefore finds it established “beyond reasonable doubt” that the applicant was hit with a rubber truncheon by prison officers of facility IZ-47/1. It will accordingly proceed to an assessment of the severity of his ill-treatment.\n\n109.  Although the Government acknowledged that a rubber truncheon had been used, they insisted that it had been used lawfully, in response to the applicants’ unruly conduct.\n\n110.  The Court is mindful of the potential for violence that exists in detention facilities and of the fact that disobedience by detainees may quickly degenerate into a riot requiring the intervention of the security forces (see Dedovskiy and Others, cited above, § 81, with further reference). Nevertheless, recourse to physical force which has not been made strictly necessary by the detainee’s own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 of the Convention (see Sharomov v. Russia, no. 8927/02, § 27, 15 January 2009; Dedovskiy and Others, cited above, § 73; Sheydayev v. Russia, no. 65859/01, § 59, 7 December 2006; and Ribitsch v. Austria, 4 December 1995, § 38, Series A no. 336).\n\n111.  In the present case the Court is not convinced that the use of a rubber truncheon against the applicant was strictly necessary. The Court notes that the Government gave as the reason the need to put a stop to an attack by the applicant on the facility’s staff (see paragraph 61 above). At the same time, the documents submitted in support of the Government’s position refer only vaguely to the applicant’s failure to comply with lawful orders, without elaborating on the nature of the orders or the form of the applicant’s defiance which allegedly prompted the use of a rubber truncheon (see paragraphs 63-64 above). It appears therefore that the domestic authorities failed to properly account for the necessity of causing the applicant multiple injuries (abrasions and a haematoma) and to demonstrate convincingly that the use of force had not been excessive. The Court is particularly concerned at the use of a rubber truncheon against the applicant in view of the involvement of a special-purpose unit (see paragraph 59 above), which it finds established in the light of the following considerations. The Court observes, first of all, that the Government did not contest the applicant’s allegations as to the involvement of such a unit in the events in question. Furthermore, according to the material in the case file, the domestic court quashed the prosecutor’s decision refusing the institution of criminal proceedings concerning the use of special means against the applicant as premature and incomplete, and indicated, among other things, that it would be necessary in the course of the additional inquiry to question the head of the special-purpose unit in order to clarify the issue of the unit’s involvement (see paragraph 65 above). The Court further observes that the domestic authorities never did this (see paragraph 66 above).\n\n112.  In such circumstances it appears that the use of force against the applicant was retaliatory in nature and aimed at debasing the applicant and forcing him into submission. The treatment to which the applicant was subjected must have caused him mental and physical suffering, even though it did not apparently result in any long-term damage to his health.\n\n113.  There has therefore been a violation of Article 3 of the Convention, in that on 28 October 2007 the Russian authorities subjected the applicant to inhuman and degrading treatment in breach of that provision.\n\n(b)  Alleged inadequacy of the investigation\n\n114.  The Court reiterates that where an individual raises an arguable claim that he has been seriously ill-treated in breach of Article 3, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation.\n\n115.  An obligation to investigate “is not an obligation of result, but of means”: not every investigation should necessarily be successful or come to a conclusion which coincides with the claimant’s account of events; however, it should in principle be capable of leading to the establishment of the facts of the case and, if the allegations prove to be true, to the identification and punishment of those responsible (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 71, ECHR 2002-II, and Mahmut Kaya v. Turkey, no. 22535/93, § 124, ECHR 2000-III). Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see Jasar v. “the former Yugoslav Republic of Macedonia”, no. 69908/01, § 55, 15 February 2007; Matko v. Slovenia, no. 43393/98, § 84, 2 November 2006; Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports 1998-VIII; and Labita, cited above, § 131).\n\n116.  The minimum standards as to effectiveness defined by the Court’s case-law also include the requirements that the investigation must be independent, impartial and subject to public scrutiny, and that the competent authorities must act with exemplary diligence and promptness (see Isayeva and Others v. Russia, nos. 57947/00, 57948/00 and 57949/00, §§ 208-13, 24 February 2005, and Menesheva v. Russia, no. 59261/00, § 67, ECHR 2006-III).\n\n117.  It has not been contested by the Government that on 1 and 2 November 2007 the applicant complained to the public prosecutor’s office about the alleged beatings of 28 October 2007. The matter was hence duly brought before the competent authorities at a time when they could reasonably have been expected to investigate the circumstances in question. The applicant’s allegations were corroborated by reference to the results of his medical examination after the incident, which recorded multiple abrasions and a haematoma on the applicant’s body (see paragraph 61 above). The applicant’s claim was therefore shown to be “arguable” and the domestic authorities were placed under an obligation to carry out “a thorough and effective investigation capable of leading to the identification and punishment of those responsible” (see, for similar reasoning, Generalov v. Russia, no. 24325/03, § 139, 9 July 2009, with further references).\n\n118.  The Court notes that on 14 December 2007 the public prosecutor’s office, having conducted an inquiry, found that on 28 October 2007 during the technical inspection of the cell the applicant had failed to abide by the lawful orders of the prison officers and that the latter had been obliged to have recourse to physical force and special means (see paragraph 63 above). The decision did not elaborate on the measures taken in the course of the inquiry, such as, for example, the questioning of those involved in the incident and of possible witnesses and the examination of the medical evidence. It did not address the applicant’s allegation concerning the involvement of a special-purpose unit in the incident and did not specify in what way the applicant had failed to comply with the orders of the prison officers. Neither did the decision contain any assessment as to whether the interference with the applicant’s physical integrity had been proportionate to his own conduct.\n\n119.  The Court further notes that over nine months after the alleged beatings, on 27 August 2008, the public prosecutor’s office decided not to institute criminal proceedings against the prison officers. Relying on the results of the applicant’s medical examination, the report on the use of a rubber truncheon and the statements made by four officers involved in the incident, the public prosecutor’s office arrived at the conclusion that physical force and a rubber truncheon had been lawfully used against the applicant in the course of the search carried out in his cell, owing to his failure to comply with the lawful orders of the prison officers (see paragraph 64 above). Almost a year later, on 27 July 2009, the decision in question was cancelled because the inquiry had been found to be incomplete. It was indicated that in the course of the additional inquiry it was necessary, among other things, to question the applicant, to obtain and examine his medical documents and to question the head of the “Tayfun” specialpurpose unit which was allegedly involved in the incident of 28 October 2007 (see paragraph 65 above). As the applicant was not informed as to the subsequent course of the inquiry, it was for the Government to submit such information. However, they did not do so and provided no satisfactory explanation for the above omission.\n\n120.  Regard being had to the foregoing, the Court accordingly has no basis on which to conclude that the inquiries were either prompt or thorough. It therefore considers that in the instant case the authorities failed to carry out an effective investigation in accordance with the requirements of Article 3 of the Convention.\n\n121.  There has therefore been a violation of Article 3 of the Convention under its procedural limb.\n\nIII.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION ON ACCOUNT OF THE LENGTH OF THE PROCEEDINGS\n\n122.  The applicant complained that the length of the criminal proceedings against him had been incompatible with the “reasonable time” requirement of Article 6 § 1 of the Convention, which provides, in its relevant part, as follows:\n\n“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”\n\nA.  Submissions by the parties\n\nA.  Submissions by the parties\n\n123.  The Government submitted that the overall duration of the proceedings against the applicant had not exceeded the reasonable time requirement under Article 6 § 1 of the Convention. In the course of the trial the court had dealt with a considerable number of requests filed by the participants to the proceedings; it had examined extensive material from the case file (four co-defendants and over twenty witnesses had been questioned and over fifteen expert examinations had been carried out); on a number of occasions the hearings had been adjourned owing to the non-attendance of witnesses, jurors or defendants.\n\n124.  The applicant maintained his complaint. He pointed out that in calculating the length of the criminal proceedings against him the Government had failed to take into account the time when the case was pending before the appeal court. He further submitted that the failure of the defendants to appear was attributable exclusively to the domestic authorities, which had failed to organise their transfer to the courthouse. As to the non-attendance of jurors, the applicant submitted that on two occasions the jurors who had failed to appear had been replaced with substitute jurors, a fact reflected in the record of the trial. Hence, the Government’s reference to the adjournments allegedly caused by the nonattendance of jurors was not valid.\n\nB.  The Court’s assessment\n\n1.  Admissibility\n\n125.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible.\n\n2.  Merits\n\n(a)  Period to be taken into consideration\n\n126.  The Court reiterates that the period to be taken into consideration in determining the length of criminal proceedings begins with the day on which a person is “charged” within the autonomous meaning to be given to that term. It ends with the day on which a charge is finally determined or the proceedings are terminated. The “charge”, for the purposes of Article 6 § 1, may be defined as “the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence”, a definition that also corresponds to the test of whether “the situation of the [suspect] has been substantially affected” (see, most recently, Vladimir Krivonosov v. , no. 7772/04, § 147, 15 July 2010).\n\n127.  The Court further observes that only those periods when the case was actually pending before the courts should be taken into account, that is, the periods when there was no judgment in the determination of the criminal charge against the applicant and when the authorities were under an obligation to give such a judgment (see, by analogy, Barantseva v. Russia, no. 22721/04, § 47, 4 March 2010, and Ignatyeva v. Russia, no. 10277/05, § 34, 3 April 2008).\n\n128.  It follows that in the present case the proceedings against the applicant remained pending during two periods. The first period began on the date of the applicant’s arrest on 16 April 2005, when he was first affected by the “charges” against him, and ended on 15 May 2008, when the judgment of 6 November 2007 was upheld on appeal. The second period started to run on 25 February 2009, when the appeal decision of 15 May 2008 was quashed by way of supervisory review, and ended on 23 July 2009, when the new appeal decision was taken by the Supreme Court. Therefore, the period to be taken into consideration lasted for almost three and a half years. This period spanned the investigation stage and two levels of jurisdiction.\n\n(b)  Reasonableness of the length of proceedings\n\n129.  The Court reiterates that the reasonableness of the length of the proceedings is to be assessed in the light of the particular circumstances of the case, regard being had to the criteria laid down in the Court’s case-law – in particular, the complexity of the case, the applicant’s conduct and the conduct of the competent authorities. On the latter point, what is at stake for the applicant also has to be taken into consideration (see, most recently, Vladimir Krivonosov, cited above, § 149, with further references).\n\n130.  The Court accepts that the present case, involving five codefendants and multiple serious charges, was rather complex.\n\n131.  Regarding the applicant’s conduct, the Court cannot discern any delay in the proceedings attributable to the applicant. The non-attendance of co-defendants, all detained in custody, cited by the Government as one of the reasons for the adjournment of the hearings, cannot be imputed to the applicant as the appearance of his co-defendants before the court was dependent on the domestic authorities in charge of their transport from the detention facility to the courthouse.\n\n132.  Turning to the conduct of the domestic authorities, the Court notes that from April 2005 to June 2006 the case was being investigated by the investigating authorities and that from December 2006 to November 2007 it was being examined by the trial court. Both periods appear reasonable. The Court further notes that it took the domestic court about five months to examine the applicant’s conviction on appeal for the first time and another five months to reexamine the case on appeal after the quashing of the initial appeal decision in supervisory review proceedings. This length of time does not seem to be unreasonable. It appears, therefore, that the only delay in the proceedings against the applicant for which the domestic authorities could be criticised was the one which occurred from June 2006 to December 2006 as a result of the trial court’s abortive attempt to resubmit the case to the public prosecutor for amendment of the bill of indictment. In the Court’s view, however, this delay by itself was not such as to prolong the proceedings in question beyond what can be considered to be a reasonable time for the examination of the case.\n\n133.  Having regard to the foregoing, the Court considers that the length of the proceedings in the present case did not exceed the “reasonable time” requirement. There has therefore been no breach of Article 6 § 1 of the Convention.\n\nIV.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION\n\n134.  Finally, the applicant submitted a number of additional complaints under Article 6 of the Convention relating to his trial.\n\n135.  Having regard to all the material in its possession, and in so far as these complaints fall within its competence, the Court finds that there is no appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.\n\nV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n136.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n137.  The applicant claimed 30,000 euros (EUR) in respect of non-pecuniary damage.\n\n138.  The Government submitted that the claim was excessive.\n\n139.  The Court notes that it has found a combination of serious violations in the present case. The applicant was detained in inhuman and degrading conditions. He was further ill-treated while in custody and the domestic authorities failed to carry out a prompt and effective investigation. In these circumstances, the Court considers that the applicant’s suffering and frustration cannot be compensated for by the mere finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 18,000 in respect of non-pecuniary damage, plus any tax that may be chargeable to the applicant on that amount.\n\nB.  Costs and expenses\n\n140.  The applicant did not claim costs and expenses. Accordingly, there is no call to make an award under this head.\n\nC.  Default interest\n\n141.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Declares admissible\n\n(a)  the complaint under Article 3 concerning the conditions of the applicant’s detention in detention facility IZ-47/1 in ;\n\n(b)  the complaint under Article 13 concerning the absence of an effective remedy in respect of the allegedly abject conditions of detention;\n\n(c)  the complaint under Article 3 concerning the alleged ill-treatment on 28 October 2007 and failure to conduct a prompt and thorough investigation into it;\n\n(d)  the complaint under Article 6 § 1 concerning the length of the criminal proceedings against the applicant;\n\nand the remainder of the application inadmissible;\n\n2.  Holds that there has been a violation of Article 3 of the Convention on account of the conditions of the applicant’s detention in detention facility IZ-47/1 in St Petersburg from 6 May 2005 to April 2008, and no violation on account of the conditions of his detention in the above-mentioned facility from April 2008 to 7 September 2008 and from 7 June to 17 September 2009;\n\n3.  Holds that there has been a violation of Article 13 of the Convention on account of the lack of an effective remedy enabling the applicant to complain about the conditions of his detention;\n\n4.  Holds that there has been a violation of Article 3 of the Convention under its substantive and procedural limbs on account of the applicant’s ill-treatment on 28 October 2007;\n\n5.  Holds that there has been no violation of Article 6 § 1 of the Convention on account of the length of the proceedings against the applicant;\n\n6.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 18,000 (eighteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of settlement;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n7.  Dismisses the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 10 May 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_125","text":"PROCEDURE\n\n1.  The case originated in an application (no. 38055/97) against the Kingdom of the  lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a  national, Mr Gerson G.C. Eliazer (“the applicant”), on 9 July 1997.\n\n2.  The applicant was represented by Mr G. Spong, a lawyer practising in . The  Government (“the Government”) were represented by their Agent, Ms J. Schukking, of the Netherlands Ministry of Foreign Affairs.\n\n3.  The applicant alleged that the arrangement for access to the Netherlands Supreme Court under Article 10 of the Cassation Regulations for the Netherlands Antilles and Aruba was contrary to Article 6 §§ 1 and 3 (c) and Article 14 of the Convention.\n\n4.  The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).\n\n5.  The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.\n\n6.  By a decision of 8 February 2000 the Chamber declared the application admissible [Note by the Registry. The Court’s decision is obtainable from the Registry].\n\n7.  The Government, but not the applicant, filed observations on the merits (Rule 59 § 1). Having consulted the parties, the Chamber decided that no hearing on the merits was required (Rule 59 § 2 in fine).\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n8.  By summons of 5 June 1995 the applicant was ordered to appear on 14 June 1995 before the  (Gerecht in Eerste Aanleg) of the Netherlands Antilles on charges of possession of about one kilogram of cocaine.\n\n9.  By judgment of 28 June 1995, following adversarial proceedings in the course of which the applicant was assisted by a lawyer, the  acquitted the applicant. The prosecution filed an appeal with the Joint Court of Justice (Gemeenschappelijk Hof van Justitie) of the Netherlands Antilles and Aruba.\n\n10.  \tAs the applicant had failed to appear before the Joint Court of Justice at its first hearing on the appeal on 2 January 1996, he was declared in default of appearance (verstek). The Joint Court of Justice adjourned the proceedings until 9 January 1996. The applicant also failed to appear on 9 January 1996. On that date, the Joint Court of Justice resumed the proceedings and examined the appeal. The applicant’s lawyer attended this hearing and conducted the applicant’s defence.\n\n11.  \tBy judgment of 23 January 1996, following proceedings in absentia, the Joint Court of Justice quashed the judgment of 28 June 1995, convicted the applicant of having violated section 3(1) of the 1960 Opium Act of the Netherlands Antilles (Opiumlandsverordening 1960) and sentenced him to two years’ imprisonment.\n\n12.  Relying on the Cassation Regulations for the Netherlands Antilles and Aruba (Cassatieregeling voor de Nederlandse Antillen en Aruba), the applicant filed an appeal in cassation with the Netherlands Supreme Court (Hoge Raad), which appeal is limited to points of law and procedural conformity.\n\n13.  \tIn its judgment of 27 May 1997, the Supreme Court noted that, pursuant to Article 10 § 2 of the Cassation Regulations for the Netherlands Antilles and Aruba, no appeal in cassation lay against judgments pronounced following proceedings in absentia.\n\n14.  \tIt rejected the argument advanced by the defence, that the appeal in cassation should nevertheless be declared admissible on the ground that this provision of the Cassation Regulations was contrary to Article 14 of the Convention and Article 26 of the International Covenant on Civil and Political Rights in that it constituted an unjustified difference in treatment between persons tried in adversarial proceedings and persons tried in proceedings in absentia.\n\n15.  The Supreme Court noted that, according to Article 239 of the Code of Criminal Procedure of the Netherlands Antilles (Wetboek van Strafvordering van de Nederlandse Antillen), a person convicted on appeal following proceedings in absentia could file an objection (verzet) against this conviction. If the accused then appeared before the trial court, the case would, pursuant to Article 240 § 2 of the Code of Criminal Procedure of the Netherlands Antilles, be fully retried by the same court in the course of adversarial proceedings and an appeal in cassation would lie against the resulting judgment.\n\n16.  The Supreme Court concluded that, in the circumstances, no appeal in cassation lay against the judgment of 23 January 1996. However, on the basis of the contents of a statement made on 29 January 1996 on behalf of the applicant, the Supreme Court interpreted the applicant’s appeal in cassation as being an objection against his conviction in absentia and ordered the transmission of the applicant’s case file to the Joint Court of Justice for a determination of the applicant’s objection.\n\nII.  RELEVANT DOMESTIC LAW\n\n17.  According to Article 216 of the Code of Criminal Procedure of the Netherlands Antilles as in force at the relevant time, an appeal to the Joint Court of Justice lies against a judgment given by the . This appeal is a full appeal, that is, one comprising both fact and law.\n\n18.  Under the Cassation Regulations for the Netherlands Antilles and Aruba an appeal in cassation may be filed with the Netherlands Supreme Court against judgments on appeal given by the Joint Court of Justice of the Netherlands Antilles and Aruba. Such an appeal in cassation is limited to procedural conformity and points of law.\n\n19.  According to Article 239 of the Code of Criminal Procedure of the Netherlands Antilles, a person convicted by the Joint Court of Justice in absentia may file an objection (verzet) against this conviction.\n\n20.  If the accused then appears at the hearing on the objection before the Joint Court of Justice, the case will, pursuant to Article 240 § 2 of the Code of Criminal Procedure of the Netherlands Antilles, be fully retried by that court. An appeal in cassation lies against the resulting judgment.\n\n21.  If the accused does not appear before the Joint Court of Justice for the purpose of a retrial, the objection will be declared defunct and the judgment given in absentia will become final.\n\n22.  Article 10 § 2 of the Cassation Regulations for the Netherlands Antilles and Aruba reads as follows:\n\n“The accused cannot file an appeal in cassation against judgments given in absentia [bij verstek gewezen vonnissen].”\n\n23.  According to the explanatory memorandum to the Cassation Regulations for the Netherlands Antilles and Aruba (Memorie van Toelichting, Kamerstukken II, Zitting 1959-1960 – 5959 (R 1945), no. 3, p. 5), Article 10 of these Regulations was based on the following considerations:\n\n“... given the great distance between the seat of the Supreme Court and the Netherlands Antilles, it is not to be recommended to provide for an appeal in cassation in Antillean cases in all cases, where this is possible for cases in the Netherlands ... In general the suspect himself will be to blame that his case has been dealt with in absentia. In these circumstances, there is no cause to attach more weight to his interests than to the inconveniences which are attached to proceedings in cassation in respect of overseas cases.”\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 OF THE CONVENTION\n\n24.  The applicant complains that he is denied access to the Supreme Court as a result of the operation of Article 10 of the Cassation Regulations for the Netherlands Antilles and Aruba in violation of Article 6 §§ 1 and 3 (c) of the Convention, which, in its relevant parts, reads as follows:\n\n“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by a ... tribunal established by law. ...\n\n...\n\n3.  Everyone charged with a criminal offence has the following minimum rights:\n\n...\n\n(c)  to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;\n\n...”\n\n25.  The applicant submits that the right to a fair trial in which a lawyer can defend the accused in his or her absence – and therefore without fear of arrest – is an integral part of the right to a fair hearing guaranteed by Article 6 of the Convention. Referring to the Court’s findings in Lala and Pelladoah v. the Netherlands (judgments of 22 September 1994, Series A nos. 297-A and 297-B), the applicant argues that, in weighing the State’s interest in securing the appearance of accused at their trial against that of defendants in exercising their right to be defended by counsel, the latter interest should prevail.\n\n26.  The Government submit in the first place that Article 6 of the Convention does not confer the right to an appeal or an appeal in cassation. However, if such an appeal is provided for in domestic legislation, such proceedings should comply with the requirements of Article 6. In the present case, the applicant is claiming a right to lodge an appeal in cassation, which right he does not have under domestic law. In the Government’s opinion, the right of access to a court is not an issue in the present case since the applicant had access to a court at two instances. What he claims in essence is the right to submit his case – on his own terms – to a third court in order to seek a ruling on issues that have already been determined at two instances.\n\n27.  The Government further argue, on the basis of the Court’s findings in Guérin v. France (judgment of 29 July 1998, Reports of Judgments and Decisions 1998-V) that the right of access to a court may be subject to limitations, in so far as such limitations serve a legitimate purpose and where there is a reasonable degree of proportionality between the means employed and the aim sought to be achieved. The Code of Criminal Procedure of the Netherlands Antilles provides for a system of legal remedies (gesloten systeem van rechtsmiddelen), according to which only an objection can be lodged against a judgment passed in absentia, after which an appeal in cassation can be filed. However, an appeal in cassation cannot be filed directly against a judgment given in absentia. With reference to the Court’s judgment in Poitrimol v. France (judgment of 23 November 1993, Series A no. 277-A) where the Court considered that the legislature should have the power to discourage accused persons from staying away from their trial, the Government submit that the point of providing a legal remedy – the filing of objections – against judgments given in absentia is to ensure that as many cases as possible are tried in the presence of the accused.\n\n28.  In this latter respect the Government consider that, by requiring the accused to file objection proceedings and only allowing an appeal in cassation against the judgment resulting from those proceedings in which the accused has taken part, they are not employing disproportionate means to ensure the presence of the accused at his own trial. Moreover, the fact that the applicant was not present before the appellate court was not the decisive reason for declaring his appeal in cassation inadmissible. The reason for this decision was that a different remedy, namely the filing of objection proceedings, was at his disposal.\n\n29.  The Government further submit that the applicant was not deprived of a fair hearing of his case. He attended the proceedings at first instance where his defence was conducted by his lawyer and, although he did not appear in the proceedings on appeal, his defence was conducted by the lawyer who had appeared on his behalf.\n\n30.  The Court recalls that the right to a court guaranteed by Article 6 of the Convention, of which the right of access is one aspect, is not absolute. It may be subject to limitations, particularly regarding the conditions of admissibility of an appeal. However, these limitations must not restrict exercise of the right in such a way or to such an extent that the very essence of the right is impaired. They must pursue a legitimate aim and there must be a reasonable proportionality between the means employed and the aim sought to be achieved. In addition, the compatibility of limitations under domestic law with the right of access to a court guaranteed by Article 6 of the Convention will depend on the special features of the proceedings concerned and account must be taken of the whole of the proceedings conducted in the domestic legal order as well as the functions exercised by a court of cassation whose admissibility requirements are entitled to be more rigorous than those of an ordinary appeal court (see Khalfaoui v. France, no. 34791/97, §§ 35-37, ECHR 1999-IX).\n\n31.  It is further observed that Article 6 of the Convention does not compel Contracting States to set up courts of cassation. However, a State which does institute such a court is required, nevertheless, to ensure that persons amenable to the law shall enjoy before such a court the fundamental guarantees contained in Article 6 (see Omar v. France, judgment of 29 July 1998, Reports 1998-V, p. 1841, § 41). In a number of cases the Court has considered that to refuse to hear a cassation appeal because the accused has not surrendered himself to custody prior to the appeal constitutes a disproportionate interference with the right of access to a court and therefore a denial of a fair trial (see Omar and Guérin, both cited above, p. 1842, § 44, and p. 1869, § 47; Khalfaoui, loc. cit., § 54; Krombach v. France, no. 29731/96, §§ 82-91, ECHR 2001-II; and Goedhart v. Belgium, no. 34989/97, §§ 31-33, 20 March 2001, unreported).\n\n32.  The Court reiterates that it is of capital importance that a defendant should appear at his trial, both because of his right to a hearing and because of the need to verify the accuracy of his statements and compare them with those of the victim – whose interests need to be protected – and of the witnesses. The legislature must accordingly be able to discourage unjustified absences (see Poitrimol, cited above, p. 15, § 35, and Van Geyseghem v. Belgium [GC], no. 26103/95, § 33, ECHR 1999-I).\n\n33.  In the present case, unlike the situation in Poitrimol, Omar and Khalfaoui, cited above, the applicant was under no obligation to surrender to custody as a precondition to the objection proceedings before the Joint Court of Justice taking place. It was the applicant’s choice not to appear at these proceedings because of the risk that he could have been arrested. Furthermore, unlike the situation in these cases, the path to the court of cassation opened itself to the applicant once he chose to be present at the objection proceedings (see Haser v. Switzerland (dec.), no. 33050/96, 27 April 2000, unreported).\n\n34.  Against this background the Court finds that, in the present case, the State’s interest in ensuring that as many cases as possible are tried in the presence of the accused before allowing access to cassation proceedings outweighs the accused’s concern to avoid the risk of being arrested by attending his trial (see, mutatis mutandis, Haser (dec.), cited above).\n\n35.  In reaching this conclusion, the Court has taken into account the entirety of the proceedings, in particular the facts that the applicant’s lawyer had been heard in the appeal proceedings before the Joint Court of Justice even though the applicant had not appeared at these proceedings – unlike the situation in Lala and Pelladoah on which the applicant relies – and that it was open to the applicant to secure access to the Supreme Court by initiating proceedings which would lead to a retrial of the charges against him subject to the condition that he attend the proceedings. In the Court’s view, it cannot be said that such a system, which seeks to balance the particular interests involved, is an unfair one.\n\n36.  The decision declaring the applicant’s appeal in cassation inadmissible cannot, therefore, be considered as a disproportionate limitation on the applicant’s right of access to a court or one that deprived him of a fair trial. Accordingly, there has been no violation of Article 6 §§ 1 and 3 of the Convention.\n\nII.  ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION\n\n37.  The applicant further complains that the difference in treatment as regards access to the Supreme Court between accused who were present at their trial and accused who were not has no objective and reasonable justification and is therefore contrary to Article 14 of the Convention taken in conjunction with Article 6.\n\n38.  Article 14 of the Convention reads as follows:\n\n“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”\n\n39.  The Government submit that there is an objective and reasonable justification for making the difference in treatment at issue in the present case, namely – apart from the reasons set out in the explanatory memorandum to the Cassation Regulations for the Netherlands Antilles and Aruba – the purpose pursued by the Antillean justice system ensuring that as many cases as possible are tried in the presence of the accused. The means used to this end cannot, according to the Government, be regarded as disproportionate.\n\n40.  The Court recalls that Article 14 of the Convention prohibits a difference in treatment of persons in analogous situations that has no objective and reasonable justification (see Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000-IV).\n\n41.  In the light of its above considerations under Article 6 §§ 1 and 3 of the Convention (see paragraphs 32-35), the Court considers that the situation of a person convicted in absentia is not comparable to that of a person convicted following adversarial proceedings in that the latter has attended his trial and the former has not.\n\n42.  There has, therefore, been no violation of Article 14 of the Convention.\n\nFOR THESE REASONS, THE COURT\n\n1.  Holds by five votes to two that there has been no violation of Article 6 § 1 of the Convention taken in conjunction with Article 6 § 3;\n\n2.  Holds by five votes to two that there has been no violation of Article 14 of the Convention;\n\nDone in English, and notified in writing on 16 October 2001, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.\n\nIn accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the joint dissenting opinion of Mr Türmen and Mr Maruste is annexed to this judgment.\n\nTo our regret, we cannot share the majority’s opinion that there has been no violation of Article 6 § 1 of the Convention.\n\nI.  In a great number of cases where the exercise of rights guaranteed by Article 6 of the Convention was made dependent on a defendant’s surrender to the authorities or on the defendant’s personal presence at his or her trial, the Court has found a violation of Article 6 of the Convention (see Poitrimol v. France, judgment of 23 November 1993, Series A no. 277-A; Lala and Pelladoah v. the Netherlands, judgments of 22 September 1994, Series A nos. 297-A and 297-B; Omar and Guérin v. France, judgments of 29 July 1998, Reports of Judgments and Decisions 1998-V; Van Geyseghem v. Belgium [GC], no. 26103/95, ECHR 1999-I; Khalfaoui v. France, no. 34791/97, ECHR 1999-IX; Krombach v. France, no. 29731/96, ECHR 2001-II; and Goedhart v. Belgium, no. 34989/97, 20 March 2001, unreported).\n\nAlthough each of these cases has its own particular characteristics, they contain certain fundamental principles that may be applicable to cases where a trial in absentia is involved.\n\nThe only case concerning proceedings held in absentia in which the Court rejected a complaint under Article 6 §§ 1 and 3 as manifestly ill-founded is the decision on admissibility of 27 April 2000 taken in Haser v. Switzerland ((dec.), no. 33050/96, unreported). It seems the majority’s position is greatly influenced by this decision. However, in our opinion, the situation in Haser fundamentally differs from the situation in the present case in a number of respects:\n\n1.  In the Swiss cantons of Ticino and Neuchâtel the judicial system consists of two instances. In the Netherlands Antilles, it consists of three instances.\n\n2.  Recourse to the second-instance court in the aforementioned cantons is not an appeal, but a “pourvoi”. In the Netherlands Antilles recourse to the Joint Court of Justice against the decision of the  is not confined to points of law or procedural conformity, but is a full appeal.\n\n3.  The remedy offered by the second-instance court in the two Swiss cantons is a very limited one. It can examine the facts only from the angle whether the first-instance court’s assessment was arbitrary or not. The examination of the second-instance court is based on the file. The procedure in principle is a written one, holding a hearing is exceptional, and the accused is not obliged to appear before the court. Unlike the above situation,\n\nthe Joint Court of Justice of the Netherlands Antilles and Aruba is a trial court of appeal. It examines both the facts and law. In fact, it is the Joint Court of Justice which convicted the applicant.\n\n4.  In view of the differences between the two systems, the interests that are protected also differ. In Haser, the remedy that is offered by the second-instance court is very narrow. Therefore, a defendant’s personal appearance before the court is important for a just and equitable trial. In its decision taken in Haser, the Court did in fact base itself on this particular characteristic. On page 9 of its decision on admissibility, it is stated:\n\nHowever, such considerations are not valid in the present case. Mr Eliazer appeared before the . At the next stage, his lawyer attended the hearing held by the Joint Court of Justice and conducted his defence. He wanted to file an appeal in cassation to obtain an opinion from the Supreme Court as to the unlawfulness of the search of his house, that is an argument raised by the defence that had in fact been examined and rejected by the Joint Court of Justice. Under such circumstances, we are of the opinion that Mr Eliazer’s interests in having the right to file an appeal in cassation outweighed the public interest in having him appear before the Joint Court of Justice.\n\nII.  Furthermore, the applicant did not act contrary to any obligation under domestic law when he chose not to appear at his trial before the Joint Court of Justice. This court did not issue an order for his appearance or an order that he be forcibly brought before it. If there is no general obligation for accused to attend their trial, a failure to appear cannot be regarded as unlawful. Consequently, if an accused opts not to appear, he or she should not be penalised for this choice by losing further defence opportunities – an appeal in cassation – which opportunities other accused, who have made a different choice, still have. Where the law allows a choice, availing oneself of the possibility to choose whether or not to attend trial proceedings cannot be taken as a justified reason for making a difference in treatment to the detriment of those accused who in all legality have chosen not to appear. In the present case, the applicant has lost his right to appeal in cassation and, in our opinion, this constitutes an unjust difference in treatment between persons tried in adversarial proceedings and persons tried in proceedings in absentia.\n\nHaving regard to the scope of an appeal in cassation and to the reasons given by the legislature in the explanatory memorandum to the Cassation Regulations for excluding an appeal in cassation for accused who have not attended their trial – which reasons appear to have been mainly based on organisational considerations in respect of proceedings before an overseas court –, we are of the opinion that to deprive the applicant, merely on account of not having attended his trial, of the possibility to file an appeal in cassation is incompatible with his rights of defence and with the principle of the rule of law in a democratic society. This is not altered by the fact that the applicant could have filed an objection against the judgment handed down by the Joint Court of Justice, since such an objection would be declared defunct if he failed to appear at the hearing on this objection and, consequently, render final the judgment forming the object of the objection.\n\nHaving regard to all the circumstances of the case, we consider that the applicant suffered an excessive restriction of his right of access to a court and therefore his right to a fair trial. Accordingly, we conclude that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention and of Article 14 of the Convention taken in conjunction with Article 6.","title":""}
{"_id":"passage_356","text":"PROCEDURE\n\n1.  The case originated in an application (no. 9549/05) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Grigoriy Fedorovich Panasenko (“the applicant”), on 7 February 2005.\n\n2.  The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the  at the European Court of Human Rights.\n\n3.  On 15 May 2008 the President of the First Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n4.  The applicant was born in 1949 and lives in , the Rostov Region.\n\n5.  In the 1990s the applicant subscribed to a State savings scheme which would entitle him to receive a passenger car in 1993. He paid the car's full value but never received the car.\n\n6.  On 17 July 2002 the applicant received 31,375.48 Russian roubles (RUB) of compensation in accordance with the State Programme for the redemption of the State internal debt (see paragraphs 20-22 below). This amount equalled to 33.41% of the car value.\n\n7. The applicant brought the court action against the authorities, claiming the full monetary value of the promissory notes for purchasing of a car.\n\n8. On 1 April 2003 the Ust-Yanskiy District Court of the  (Yakutiya) allowed the applicant's action, having found that the State had failed in its obligation to grant the applicant a car and had only provided a partial compensation instead. The court further held that a unilateral change of the conditions of the redemption of the commodity bonds by the State in accordance with the Federal Law of 2 June 2000 and the respective State Programme (see below) did not “comply with the constitutional principles and principles of the civil law”, because a partial payment of a car's value did not constitute a sufficient remedy of the damage caused to the bond holders. The court awarded the applicant RUB 66,693.35, that is the full car price less the amount already paid to him in July 2002, to be paid at the expense of the Federal Treasury.\n\n9.  On 30 April 2003 the Supreme Court of the Sakha (Yakutiya) Republic upheld the judgment and it became final. The award remained unenforced.\n\n10.  In June 2004 the respondent authority lodged a request for supervisory review of the case with the Presidium of the Supreme Court of the Sakha (Yakutiya) Republic.\n\n11.  On 14 October 2004 the Presidium reviewed the lower courts' judgments by way of the supervisory review proceedings and established, in particular, that the lower courts had failed to take into account the provisions of the amended State Commodity Bonds' Act and the Government's Resolution no. 1006. The Presidium ruled as follows:\n\n“Having regard to the substantive violation of the material law, the judicial decisions taken in the case under consideration cannot be held lawful and well-founded and should be quashed [...].”\n\n12.  The Presidium annulled the judgment of 1 April 2003 and the appeal decision of 30 April 2003 and delivered a new judgment in which it dismissed the applicant's claim in full.\n\nII.  RELEVANT DOMESTIC LAW\n\nA.  Review of the compliance of the federal laws with the Constitution\n\n13.  According to Article 15 § 1 of the Constitution of the Russian Federation, the Constitution has the supreme juridical force, direct action and shall be used on the whole territory of the Russian Federation. Laws and other legal acts adopted in the  shall not contradict the Constitution.\n\n14.  In accordance with Article 125 § 4 of the Constitution, the Constitutional Court of the Russian Federation reviews constitutionality of the law applied or due to be applied in a specific case in accordance with procedures established by federal law, upon requests of the courts.\n\n15.   By the Ruling no. 19-П of 17 June 1998 the Constitutional Court of the Russian Federation held that it had exclusive competence to decide whether federal or regional laws violated the Constitution of the . Ordinary courts were not entitled to rule on the constitutionality of federal laws. In case of doubt as to whether a law complied with the Constitution, they should direct an inquiry to the .\n\nB.  Redemption of the State commodity bonds\n\n16.  The State Commodity Bonds Act (federal law no. 86-FZ of 1 June 1995) provided that the State commodity bonds, including special-purpose settlement orders, were to be recognised as the State internal debt (section 1). They were to be enforced in accordance with the general principles of the Civil Code (section 2). The relevant parts of section 3 read as follows:\n\n“The Government of the  shall draft the State Programme for the redemption of the State internal debt... The Programme shall provide for the terms of redemption of State commodity bonds that would be convenient for citizens, including, of their choice: provision of goods indicated in ... special-purpose bonds for the purchase of passenger cars ...; redemption of State commodity bonds at consumer prices prevailing at the moment of the redemption...”\n\n17.  On 2 June 2000, section 3 of the Act was amended to read, in the relevant parts, as follows:\n\n“To establish that the repayment of the State internal debt of the  under State commodity bonds ... is carried out in 2001-2004 in accordance with the State Programme...\n\nTo set, in the above-mentioned Programme, the following sequence and terms of redemption of State commodity bonds:\n\n- [...] in respect of bearers of special-purpose settlement orders that gave the right to purchase passenger cars in 1993-1995 – payment of monetary compensation equal to a part of the value of the car described in the order, as determined on account of the percentage of the part of the full value of car paid by the owner by 1 January 1992 (in accordance with the price scales in force until 1 January 1992), as well as the price of the cars determined in co-ordination with car manufacturers at the moment of redemption”\n\n- [...] in respect of bearers of special-purpose settlement orders that gave the right to purchase passenger cars in 1993-1995 – payment of monetary compensation equal to a part of the value of the car described in the order, as determined on account of the percentage of the part of the full value of car paid by the owner by 1 January 1992 (in accordance with the price scales in force until 1 January 1992), as well as the price of the cars determined in co-ordination with car manufacturers at the moment of redemption”\n\n- [...] in respect of bearers of special-purpose settlement orders that gave the right to purchase passenger cars in 1993-1995 – payment of monetary compensation equal to a part of the value of the car described in the order, as determined on account of the percentage of the part of the full value of car paid by the owner by 1 January 1992 (in accordance with the price scales in force until 1 January 1992), as well as the price of the cars determined in co-ordination with car manufacturers at the moment of redemption”\n\n18.  On 27 December 2000 the Government approved, by Resolution no. 1006, the State Programme for the redemption of the State internal debt of the  arising from State commodity bonds in the period of 2001-2004. Paragraph 2 of the Programme set out that the State commodity bonds were to be redeemed by way of payment of pecuniary compensation.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION\n\n19.  The applicant complained under Article 1 of Protocol No. 1 to the Convention about the quashing of the judgments of 1 and 30 April 2003 in his favour on supervisory review. This Article, in so far as relevant, reads as follows:\n\nArticle 1 of Protocol No. 1\n\n“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”\n\n20.  The Government argued that the supervisory review had not breached the Convention. It had been initiated by a party to the proceedings within less than one year from the judgments' entry into force. The supervisory review had aimed at remedying a fundamental defect of the first instance and appeal proceedings. The lower courts were not competent to rule on compliance of the provisions of the Federal Law of 2 June 2000 with the Constitution of the . Instead, they should have introduced a request for review of the constitutionality of the Federal Law in question with the  and suspend the proceedings pending delivery of the relevant ruling. However, they failed to make such request, and no suspension of the proceedings took place. Therefore, the examination of the applicants' cases before the lower courts was tarnished by a fundamental defect, namely abuse of power by the courts and jurisdictional error. In these circumstances, the quashing was the only available way to rectify the fundamental defect and to restore legal certainty in the present cases. The Government further reiterated that in July 2002 the applicant received compensation from the Ministry of Finance in the amount established by the domestic law. In their view, his subsequent claim in respect of the full monetary value of the car had been unfounded and therefore he had not had a “possession” within the meaning of Article 1 of Protocol No. 1.\n\n21.  The applicant maintained his claim arguing that he had been entitled to obtain the full monetary value of the car, but had never received that sum.\n\nA.  Admissibility\n\n22.  The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n23.   The Court reiterates that the existence of a debt confirmed by a binding and enforceable judgment constitutes the beneficiary's “possession” within the meaning of Article 1 of Protocol No. 1. Quashing of such a judgment amounts to an interference with his or her right to peaceful enjoyment of possessions (see, among other authorities, Brumărescu v. Romania [GC], no. 28342/95, § 74, ECHR 1999-VII, and Androsov v. Russia, no. 63973/00, § 69, 6 October 2005).\n\n24.  At the outset the Court notes that in the Government's view the annulment of the judgments on supervisory review was required by the need to rectify a fundamental defect in the initial domestic proceedings. The Court reiterates its constant approach that a jurisdictional error, a serious breach of court procedure or abuses of power may, in principle, be regarded as a fundamental defect and therefore justify the quashing (see, mutatis mutandis, Luchkina v. Russia, no. 3548/04, § 21, 10 April 2008). However, nothing in the text of the Presidium's ruling of 14 October 2004 enables the Court to conclude that the lower courts' judgments were indeed quashed because these courts had ruled on the constitutionality of the federal law in excess of their jurisdiction. Neither the alleged jurisdictional error nor abuse of competence was cited by the Presidium as a ground for the annulment of the judgments of 1 and 30 April 2003. On the contrary, it clearly follows from the wording of the supervisory instance ruling that the sole ground for the quashing was the misinterpretation and incorrect application of the provisions of the State Commodity Bonds Act by the courts. Furthermore, it was not claimed before the supervisory-review instance by the respondent authority that the previous proceedings had been tarnished by a fundamental defect, such as, in particular, a jurisdictional error, serious breaches of court procedure or abuses of power (see Luchkina, cited above). Such argument was only advanced in the Government's observations. In the absence of any reference to the ground for quashing cited by the Government in the texts of the supervisory-instance ruling of 14 October 2004, the Court is unable to conclude that the quashing was caused, and even less justified by the substantive jurisdictional error by the lower courts. It therefore rejects the Government's argument.\n\n25.  The Court further observes that the applicant obtained a binding and enforceable judgment in his favour, by the terms of which the State was to pay him a substantial amount of money at the expense of the Federal Treasury. The Court further reiterates that the existence of a debt confirmed by a binding and enforceable judgment constitutes the beneficiary's “possession” within the meaning of Article 1 of Protocol No. 1 (see, among other authorities, Androsov, cited above, § 69). However, he was prevented from receiving the award through no fault of his own. The quashing of the enforceable judgment frustrated the applicant's reliance on a binding judicial decision and deprived him of an opportunity to receive the money he had legitimately expected to receive. In these circumstances, even assuming that the interference was lawful and pursued a legitimate aim, the Court considers that the quashing of the enforceable judgment in the applicant's favour by way of supervisory review placed an excessive burden on the applicant and was incompatible with Article 1 of the Protocol No. 1.\n\n26.  There has therefore been a violation of that Article.\n\nII.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION\n\n27.  The applicant complained under Article 13 of the Convention that he had no effective remedy against the quashing of his final judgment on supervisory review and under Article 1 of Protocol No. 1 about the State's failure to comply with its obligation to provide a car.\n\n28.  The Court has examined these complaints as submitted by the applicant. However, having regard to all the material in its possession, it finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.\n\nIII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n29.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n30.  The applicant claimed 100,000  dollars (USD) in respect of non-pecuniary damage.\n\n31.  The Government challenged the claim as unsubstantiated and manifestly excessive.\n\n32.  Having regard to the nature of the breach in this case, making its assessment on an equitable basis, the Court awards the applicant 3,000 euros (EUR) in respect of non-pecuniary damage, plus any tax that may be chargeable, and dismisses the remainder of his claims for just satisfaction.\n\nB.  Costs and expenses\n\n33. The applicant did not claim costs or expenses and there is accordingly no call to make an award under this head.\n\nC.  Default interest\n\n34.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Declares the complaint under Article 1 of Protocol No. 1 concerning the quashing of the final judgment in the applicant's favour admissible and the remainder of the application inadmissible;\n\n2.  Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;\n\n3.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of settlement;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n4.  Dismisses the remainder of the applicant's claim for just satisfaction.\n\nDone in English, and notified in writing on 1 April 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_280","text":"PROCEDURE\n\n1.  The case originated in an application (no. 45276/99) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Tanzanian national, Mr Said Mohammed Hilal (“the applicant”), on 5 January 1999.\n\n2.  The applicant, who had been granted legal aid, was represented by Sen & Co., solicitors in Wembley. The  Government (“the Government”) were represented by their Agent, Ms R. Mandal, of the Foreign and Commonwealth Office.\n\n3.  The applicant alleged that his expulsion to  placed him at risk of torture or inhuman or degrading treatment, that he would not receive a fair trial if he were returned to  and that he had no effective remedy available to him in respect of these matters. He relied on Articles 3, 6, 8 and 13 of the Convention.\n\n4.  The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.\n\n5.  The President of the Chamber and subsequently the Chamber decided to apply Rule 39, indicating to the Government that it was desirable in the interests of the parties and the proper conduct of the proceedings that the applicant should not be expelled to  pending the Court’s decision.\n\n6.  By a decision of 8 February 2000, the Chamber declared the application admissible [Note by the Registry. The Court’s decision is obtainable from the Registry].\n\n7.  The applicant and the Government each filed observations on the merits (Rule 59 § 1). The Chamber decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 2 in fine).\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n8.  The applicant was born in Pemba, one of the  islands, in 1968.  is part of the United Republic of Tanzania. It has its own President, parliament and government and enjoys considerable autonomy.\n\n9.  According to the applicant, in 1992 he joined the Civic United Front (“the CUF”), an opposition party in . He was an active member, attending meetings and contributing money to the party funds. In August 1994 the applicant was arrested by Chama Cha Mapinduzi (“the CCM”, the ruling party) officers because of his involvement with the CUF. He was detained at Madema police station in  for three months, where he was tortured. He was repeatedly locked in a cell full of water for days at a time so he was unable to lie down. He was hung upside down with his feet tied together until he bled through the nose, and he was also subjected to electric shocks.\n\n10.  In November 1994 the applicant stated that he was released from detention following pressure from CUF leaders on the Tanzanian government. He was admitted to hospital, where a medical officer recorded that the applicant was haemorrhaging severely through the nose as a result of his treatment and had been subjected to harm endangering life.\n\n11.  The applicant stated that his brother had been taken into detention shortly before he was. He had been ill-treated and died in January 1995 in hospital where he had been taken from prison.\n\n12.  Following his release, the applicant stated that he only contributed funds to the CUF. In January 1995 the police came looking for him while he was out. The police detained his wife overnight and questioned his friends. He decided to leave his home and , fearing for his safety.\n\n13.  On 9 February 1995 the applicant arrived in the  and claimed asylum. That day a pro forma interview was held with an immigration officer, where the applicant was assisted by an interpreter. According to the form, the purpose of the interview was to enable the immigration officer to take down the initial details of the asylum application. When asked what the basis of his asylum claim was, the applicant was noted as having said: “Because of the problems in the country and my safety. I have been threatened a lot by the ruling party so I decided to leave the country.” The applicant stated that he had been a member of the CUF since 1992.\n\n14.  At the full asylum interview held on 15 March 1995, the applicant was recorded as stating that he had had no problem in obtaining a passport as he was a businessman, and that he had organised his passage to the  himself. When asked what the basis for his asylum claim was, he stated that he had been taken away and detained for three months, from August to November 1994, at Madema police station, where he had been tortured. He had been locked in a room with a very low ceiling, where he could not stand up, and then placed for one and a half days in a room filled with water up to the chest, where he could not lie down. He was taken out and returned there twice a week. A few days before he was released he was hung upside down and given electric shocks. He had been arrested because he gave money to the CUF. He was told that he had been released because the CUF leaders had approached the authorities in . After his release, he was treated in a private clinic. He produced his CUF card. He had been an ordinary member, doing nothing more than give money. He had not taken part in the demonstration which had been allowed. He mentioned that his brother had been arrested in January 1995 and died after being in police custody. His brother had been badly beaten and was vomiting blood, so they had released him to hospital on 20 January 1995 as they knew he was going to die. His uncle had helped him to leave, obtaining an income-tax clearance and an airline ticket. His uncle checked in with the ticket for him and he was able to board the plane.\n\n15.  On 29 June 1995 the Secretary of State refused asylum, finding the applicant’s account implausible and noting inconsistencies in his answers. The applicant’s appeal to a special adjudicator was dismissed on 8 November 1996. During the proceedings the applicant had claimed that the Tanzanian authorities intercepted the letters he was sending home, knew that he had claimed asylum, and had summoned his parents to explain\n\n“about [their] son who [was] in a foreign country to abuse the government which [was] in power ...”\n\nHe provided correspondence from the Royal Mail concerning his enquiries about money which had gone missing from a registered letter dated 27 November 1995 which he had sent to his parents in .\n\n16.  In his decision the special adjudicator noted inconsistencies between the evidence given by the applicant before him and the answers given in his asylum interviews. He placed considerable weight on the fact that the applicant had not mentioned his arrest and torture at his first asylum interview and did not accept the applicant’s explanation that the interviewing officer told him that it was not necessary to give details at this stage or that he was having difficulties with the interpreter. He also noted that the evidence concerning his brother’s arrest was contradictory and that no documentary evidence such as a death certificate had been produced. He therefore did not accept that the applicant’s brother was arrested, tortured or killed. He also observed that the applicant had not provided documentary evidence that the  authorities were accusing him of tarnishing ’s good name, and therefore did not accept that it existed. Looking at the evidence as a whole, he concluded that there was no well-founded fear of persecution for a Convention reason established to the required standard.\n\n17.  Leave to appeal to the Immigration Appeal Tribunal was refused on 10 January 1997.\n\n18.  The applicant obtained a copy of his brother’s death certificate and a medical report which recorded that his brother died on 20 January 1995, after being brought to hospital from prison with a history of severe chest pain and general body weakness associated with a fever. He also obtained the summons from the Pemba police headquarters to his parents dated 25 November 1995 requesting their attendance to explain the applicant’s unlawful conduct in embarrassing the government and country. He made representations to the Secretary of State dated 30 January 1997, providing copies and requesting that his letter be considered as a fresh asylum application.\n\n19.  By letter dated 4 February 1997 the Secretary of State expressed the view that the police summons was self-serving and not significant, while the death certificate did not disclose proof that his brother, who died of a fever, had been murdered by the authorities. He had, accordingly, decided not to treat the representations as a fresh application for asylum, but to reconsider the original asylum application on all the evidence available to him. He refused on that basis to reverse his decision.\n\n20.  By letter dated 4 February 1997 the applicant’s representatives requested, alternatively, that the new material be referred to the special adjudicator under section 21 of the Immigration Act 1971. By letter dated 5 February 1997 the Secretary of State informed them that he had decided not to refer the material in question.\n\n21.  By letter dated 29 April 1997 the applicant’s representatives submitted to the Secretary of State a medical report about the applicant’s treatment following detention in , and requested that the new materials be submitted to the special adjudicator under section 21. They submitted further representations on 26 March 1998.\n\nThe hospital medical report, dated 8 November 1994, from a medical officer recorded that the applicant had suffered a severe nasal haemorrhage, that this was of a “dangerous harm” degree and that the injury had been inflicted by hanging upside down.\n\n22.  By letter dated 23 April 1998 the Secretary of State informed the applicant that he had considered the new material, but that this evidence did not cause him to reverse his decision to refuse asylum. He noted that the documents would have been available to the applicant at the time of his appeal hearing but were not produced, which cast doubt on their authenticity. Even if the medical certificate and police summons were authentic, however, he saw no reason why the applicant could not return to live safely and without harassment in mainland . He refused to make a reference under section 21.\n\n23.  The applicant applied for leave to apply for judicial review of the Secretary of State’s refusal to refer the new material to the special adjudicator. He submitted an expert opinion confirming that the documents were genuine. The Secretary of State submitted that the documents were irrelevant because the applicant could live safely in mainland . He relied on a letter from the British High Commission in Tanzania dated 8 April 1998 which stated that in general there was no evidence of politically motivated detentions on the mainland, although there were “more general human rights problems such as arbitrary detentions and poor penal conditions” on the mainland.\n\n24.  On 1 July 1998 the application for leave was rejected by the High Court. Mr Justice Jowitt stated:\n\n“The Secretary of State’s decision [is] that things have changed and that as matters now stand, whatever was or was not the case in November 1996 and whatever ought or ought not to have been the outcome of the appeal heard then, the applicant can safely return to his home country, provided he goes to the mainland. Having looked at the letter [from the British High Commission], I can see no arguable grounds for saying that the Secretary of State has acted with Wednesbury unreasonableness in concluding that in the light of this new material he has no need to refer the matter to the Special Adjudicator and this application must be refused.”\n\n25.  The applicant appealed to the Court of Appeal arguing that the Secretary of State’s refusal was wrong in law and “Wednesbury unreasonable” and that, in claiming that the applicant could live safely on the mainland, he was not complying with international obligations by failing to take into account the applicant’s specific case or documentation.\n\n26.  On 1 December 1998 the Court of Appeal refused leave to apply for judicial review. In its judgment it noted that the hospital records showed that his brother had died of fever and did not support the applicant’s evidence that his brother had been tortured. Even assuming that the medical report on the applicant and the summons by the police to his parents were genuine, there was no evidence to suggest that the conclusion reached by the Secretary of State that the applicant could live without harassment on the mainland was wrong.\n\n27.  On 23 December 1998 the applicant was notified that he would be removed to  on 11 January 1999.\n\n28.  On 22 February 1999 the applicant’s wife arrived in the  and claimed asylum shortly afterwards. It was recorded that she stated in her interview that the police had harassed her due to her husband’s involvement with the CUF. She had been detained for one day in April 1995 and questioned about her husband’s whereabouts. The police came to her house on 12 February 1999, wanting to know if her husband was back in  as there was a rumour that the  had sent back most of the asylum-seekers from . They were angry because he had claimed asylum and tarnished the name of the President. They threatened to arrest her instead.\n\nII.  RELEVANT DOMESTIC LAW AND PRACTICE\n\nA.  Immigration legislation and rules\n\n29.  \tAsylum applications are determined by the Secretary of State,  pursuant to paragraph 328 of the Immigration Rules and section 3 of the Immigration Act 1971 (“the 1971 Act”). Where leave to enter is refused by the Secretary of State pursuant to section 4 of the 1971 Act, the person may appeal against the refusal to a special adjudicator on the grounds that the removal would be contrary to the ’s obligations under the Geneva Convention (section 8 of the 1971 Act).\n\n30.  An appeal lies from the special adjudicator to the Immigration Appeal Tribunal (section 20 of the 1971 Act).\n\n31.  Section 21 of the 1971 Act provides:\n\n“(1)  Where in any case:\n\n(a)  an adjudicator has dismissed an appeal, and there has been no further appeal to the Appeal Tribunal, or the tribunal has dismissed an appeal made to them ...; or\n\n(b)  the Appeal Tribunal has affirmed the determination of an adjudicator dismissing an appeal ... the Secretary of State may at any time refer for consideration under this section any matter relating to the case which was not before the adjudicator or Tribunal ...”\n\n32.  Rule 346 of the Immigration Rules provides that the Secretary of State will treat representations as a fresh application if the claim advanced is sufficiently different from the earlier claim. He disregards, in considering whether to treat the representations as a fresh claim, material which is not significant, or is not credible, or was available to the applicant at the time when the previous application was refused or when any appeal was determined.\n\nB.  Domestic immigration decisions on Tanzania\n\n33.  There have been a number of domestic cases where special adjudicators have rejected “internal flight” possibilities for CUF members from . In Masoud Mussa v. the Secretary of State (30 July 1998), the Government pointed out that the Secretary of State’s counsel had not been present to argue the point. In Omar Machano Omar v. the Secretary of State (24 June 1998), the asylum claimant was an escaped prisoner from  and a target for internal extradition proceedings. In Salim Saleh Salim v. the Secretary of State (15 January 1998), the adjudicator found that there was no evidence before him to show that the claimant would be any safer on the mainland than in .\n\n34.  In the case of Adam Houiji Foum v. the Secretary of State (10 January 2000), the Immigration Appeal Tribunal allowed the appeal of a Tanzanian asylum-seeker who had been involved in CUF activities, on the basis that, as he had suffered torture in Zanzibar and a summons had been issued against him in Tanzania generally, there was a very reasonable prospect that he would be picked up by the police and undergo ill-treatment similar to that previously received in Zanzibar, either at the hands of the Zanzibar authorities or of the police in mainland Tanzania who also exercised brutality on prisoners in their custody. It therefore rejected the “internal flight” option.\n\nC.  Judicial review in immigration cases\n\n35.  Decisions of the Home Secretary to refuse asylum, to make a deportation order or to detain pending deportation are liable to challenge by way of judicial review and may be quashed by reference to the ordinary principles of English public law.\n\n36.  These principles do not permit the courts to make findings of fact on matters within the jurisdiction of the Secretary of State or to substitute their discretion for the minister’s. The courts may quash his decision only if he has failed to interpret or apply English law correctly, if he has failed to take account of issues which he was required by law to address, or if his decision was so irrational or perverse that no reasonable Secretary of State could have made it (Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 King’s Bench Reports 223).\n\n37.  In the recent case of R. v. Home Secretary, ex parte Turgut (28 January 2000), concerning the Secretary of State’s refusal of asylum to a young male Turkish Kurd draft evader, Lord Justice Simon Brown, in the Court of Appeal’s judgment, stated as follows:\n\n“I therefore conclude that the domestic court’s obligation on an irrationality challenge in an Article 3 case is to subject the Secretary of State’s decision to rigorous examination and this it does by considering the underlying factual material for itself to see whether it compels a different conclusion to that arrived at by the Secretary of State. Only if it does will the challenge succeed.\n\nAll that said, however, this is not an area in which the Court will pay any especial deference to the Secretary of State’s conclusion on the facts. In the first place, the human right involved here – the right not to be exposed to a real risk of Article 3 treatment – is both absolute and fundamental: it is not a qualified right requiring a balance to be struck with some competing social need. Secondly, the Court here is hardly less well placed than the Secretary of State himself to evaluate the risk once the relevant material is before it. Thirdly, whilst I would reject the applicant’s contention that the Secretary of State has knowingly misrepresented the evidence or shut his eyes to the true position, we must, I think, recognise at least the possibility that he has (even if unconsciously) tended to depreciate the evidence of risk and, throughout the protracted decision-making process, may have tended also to rationalise the further material adduced so as to maintain his pre-existing stance rather than reassess the position with an open mind. In circumstances such as these, what has been called the ‘discretionary area of judgment’ – the area of judgment within which the Court should defer to the Secretary of State as the person primarily entrusted with the decision on the applicant’s removal ... – is decidedly a narrow one.”\n\nIII.  RELEVANT INTERNATIONAL MATERIAL\n\n38.  In January 1997 the US Department of State released the Tanzania Country Report on Human Rights Practices for 1996. It stated:\n\n“The Government’s human rights record did not improve and problems persisted. Although the 1995 multiparty elections represented an important development, citizens’ right to change their government in  is severely circumscribed. Although new opposition parties were competitive in many 1995 races and won in some constituencies, police often harassed and intimidated members and supporters of the opposition. Other human rights problems included police beatings and mistreatment of suspects, which sometimes resulted in death. Soldiers attacked civilians, and police in  used torture, including beatings and floggings. Prison conditions remained harsh and life threatening. Arbitrary arrest and prolonged detention continued and the inefficient and corrupt judicial system often did not provide expeditious and fair trials ...\n\nSince the 1995 election, police in , particularly on Pemba, have regularly detained, arrested and harassed CUF members, and suspected supporters. Despite orders from the Union Government’s Inspector General of Police, officers in  continue these activities ...\n\nThe Wairoba Commission found that pervasive corruption affected the judiciary from clerks to magistrates. Clerks took bribes to decide whether or not to open cases and to hide or misdirect the files of those accused of crimes. Magistrates often accept bribes to determine guilt or innocence, pass sentence, withdraw charges or decide appeals ...\n\nThere are reports of prisoners waiting several years for trial because they could not pay bribes to police and court officials. Authorities acknowledge that some cases have been pending since 1988. The Government initiated efforts as early as 1991 to highlight judicial corruption and increased its oversight ...\n\nIn the 2 years since the election, government security forces and CCM gangs harassed and intimidated CUF members on both of the two main  islands, Pemba and Ugunja. Because CUF won all 20 seats on Pemba, Pembans living on Ugunja were regarded as CUF supporters and as a result were harassed. CUF members accused police of detaining dozens of its members ... Safety is not ensured in Pemba, where security forces dispersed gatherings, intimidated and roughed up individuals ...”\n\n39.  In the Amnesty International Annual Report 1997, it was stated:\n\n“Prisoners of conscience were among scores of government opponents arrested and briefly detained on the islands of  and Pemba. Many were held without charge or trial; others faced criminal charges and were denied bail. Scores of political prisoners were tortured and ill-treated on the islands ...\n\nCriminal charges such as sedition, vagrancy and involvement in acts of violence, often accompanied by the denial of bail for periods of two weeks or more, were also used as a method of intimidating government critics or opponents.”\n\n40.  In their 1998 report, Amnesty International stated:\n\n“In December [1997], 14 possible prisoners of conscience on  were charged with treason and refused bail. The men, supporters of the CUF, were arrested and initially charged with sedition in November and December, during the week the CUF won a by-election to the Zanzibar House of Representatives.”\n\n41.  On 8 July 1998 Amnesty International issued a press release expressing concern that the vice-chairperson of the CUF might be arrested on a fabricated treason charge. In  it noted treason carried a mandatory death penalty. On 24 July 1998 Amnesty called for the immediate release of eighteen leading CUF members or supporters, most of them imprisoned since November 1997 on fabricated treason charges. It expressed concern about their deteriorating health and a denial of adequate medical treatment.\n\n42.  The 1998 US State Department report on  noted that serious problems remained in that government’s human rights record.\n\n“... the police regularly threaten, mistreat or beat suspected criminals during and after their apprehension and interrogation. Police also use the same means to obtain information about suspects from family members not in custody ... Police in Zanzibar use torture ... Repeated reports from credible sources indicate that the police use torture, including beatings and floggings in Zanzibar, notably on Pemba Island. Both the  and Union Governments have denied these charges. Police have not yet explained the deaths of six detainees in the town of  who were electrocuted at the end of 1997 ...\n\nPrison conditions remained harsh and life-threatening. Government officials acknowledge that prisons are overcrowded and living conditions are poor. Prisons are authorised to hold 21,000 persons but the actual prison population is estimated at 47,000 ... The daily amount of food allotted to prisoners is insufficient to meet their nutritional needs and even this amount is not always provided ... Earlier the Commissioner of Prisons stated that his department received inadequate funds for medicine and medical supplies. Prison dispensaries only offer limited treatment, and friends and family members of prisoners generally must provide medication or the funds with which to purchase it. Serious diseases, such as dysentery, malaria and cholera are common and result in numerous deaths. Guards continued to beat and abuse prisoners.\n\n... There were no reports of political prisoners on the mainland. At the year’s end, there were 18 political prisoners in .”\n\n43.  The report noted that in January 1998 the police had searched the offices of the CUF party in  and removed files. In the three years since the election in 1995, government security forces and CCM gangs harassed and intimidated CUF members on both the main  islands of Pemba and Ugunja.\n\n44.  The Amnesty International 1999 Report for  stated that:\n\n“Eighteen prisoners of conscience, including three arrested during the year, were facing trial for treason on the , an offence that carries the death penalty. Scores of other opposition supporters in  were imprisoned for short periods; some were possible prisoners of conscience. More than 300 demonstrators arrested on the mainland in the capital  were held for several weeks and reportedly tortured. Conditions in some prisons were harsh ...”\n\nThe eighteen prisoners, CUF members, included fifteen arrested in 1997 and three arrested in  in May 1998, and many had reportedly fallen ill due to a denial of access to medical treatment. According to the report, the conditions in some mainland prisons amounted to cruel, inhuman and degrading treatment, which in the case of Mbeya Prison led to forty-seven deaths in the first half of the year.\n\n45.  In its press release of 27 January 2000 Amnesty International, reporting on the imminent trial of the eighteen CUF members, referred to them “as prisoners of conscience who are imprisoned solely on account of their non-violent opinions and peaceful political activities”. It described how between the 1995 and the 1998 elections, numerous CUF supporters had been arrested on trumped-up criminal charges, tortured in custody and imprisoned. On more recent events, it commented:\n\n“Following lengthy attempts by the Secretary General of the Commonwealth and the United Nations Secretary General to settle the political crisis in , an agreement was finally reached between the CCM and CUF in April 1999. Far-reaching reforms for democratisation, human rights and fair elections were set out in the Commonwealth Agreement, but few have yet been implemented. Although the CUF is allowed to operate more freely, the  government continues to press ahead with the trial, intent on convictions and death sentences.”\n\n46.  In the 1999 US State Department report on Tanzania, issued on 25 February 2000, it was reported, inter alia, that the authorities had been responsible for a number of extrajudicial killings and that several prisoners had died as a result of harsh prison conditions, including inadequate nutrition, medical care and sanitation:\n\n“... the police regularly threaten, mistreat or occasionally beat suspected criminals during and after their apprehension and interrogation ... Repeated reports indicate that the police use torture, including beatings and floggings, in , notably on Pemba island.”\n\nThe situation in  was less favourable in a number of respects. It was stated that, except in , Tanzanian citizens generally enjoyed the right to discuss political alternatives freely and opposition party members openly criticised the government, although the government had used the provision prohibiting “abusive language” against the leadership to detain some opposition figures. Opposition parties had generally been more able to hold rallies, although CUF meetings in  had been far more restricted than those of other parties. Police continued to break up meetings attended by persons thought to be opposed to the  government. In Pemba the security forces broke up gatherings and intimidated opposition party officials and the government continued to arrest opposition politicians for holding meetings.\n\n“In the four years since the election, government security forces and CCM gangs harassed and intimidated CUF members on both main Zanzibar islands, Pemba and Ugunja ... The CUF accused police of detaining dozens of its members including several local leaders ... citizen’s safety is not assured in Pemba, where security forces dispersed gatherings and intimidated persons ... Almost all international donors have suspended direct assistance to Zanzibar in response to the authorities’ human rights abuses. Under pressure from the international community, the ruling CCM party and the main opposition party, the CUF, signed a political agreement in June to make the political process in Zanzibar fairer; however the provisions of the agreement were not fully implemented by the year’s end and observers believe that the Government did not act in good faith in the period following the signing of the agreement.”\n\nIV.  REPORTS ON THE SITUATION IN  PROVIDED BY THE PARTIES\n\n47.  In a letter dated 8 April 1998 the British High Commission in Dar es Salaam commented that there were concerns about the situation in Zanzibar but that on the mainland there had been no evidence of political killings, disappearances or politically motivated arrests. There were more general human rights problems, such as arbitrary detentions and poor penal conditions, which were systemic and not related to political activity.\n\n48.  In a letter dated 25 May 1998 Michael Hodd of the  commented that there was evidence of human rights violations in , including a list of sixty-six missing persons. Although there was a good human rights record in mainland , it was possible for the  government to demand extradition, which had been successful in the case of Abdallah Kassim Hanga, whom a well-informed source reported as having been beheaded.\n\n49.  According to a report dated 16 March 1999 obtained by the applicant, Professor Parkin, professor of social anthropology at All Souls College, Oxford, an expert on Uganda, Kenya and Tanzania, stated that while there was less likelihood of persecution in mainland Tanzania than on Zanzibar, he observed a deteriorating situation also affecting the mainland. He referred to particular members of the Zanzibari CCM visiting the mainland and harassing and persecuting CUF dissidents who had taken refuge there. The Zanzibari CUF leader was living in  but only ever moved out of his flat surrounded by CUF party aides able to protect him.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION\n\n50.  The applicant complained that he would be placed at risk of torture or inhuman or degrading treatment contrary to Article 3 if he were expelled from the  to .\n\n51.  Article 3 of the Convention provides:\n\n“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”\n\nA.  The parties’ submissions\n\n1.  The applicant\n\n52.  The applicant submitted that he faced a real and immediate risk of ill-treatment if he were to be returned to . He had been badly treated in detention before he left, suffering ill-treatment which included being kept in a room full of cold water. His feet were tied together and he was hung upside down, until he bled through the nose. His brother had also died on being released from detention, in circumstances in which it can properly be deduced that this resulted from his ill-treatment in detention. Both he and his brother had been detained on account of their involvement with the CUF. The reports on the situation in  showed that there was still active persecution of CUF members, that the government’s human rights record remained poor, that police committed extra-judicial killings and mistreated suspects, that throughout the country prison conditions remained harsh and life-threatening, and that arbitrary and prolonged detentions remained a problem.\n\n53.  The applicant submitted that the Tanzanian authorities continued to demonstrate an active interest in his whereabouts, as shown by the police summons which indicated disapproval of the fact that he had claimed asylum in the . This was further substantiated by the experiences of his wife, who stated that on 12 February 1999 the police had come to her house enquiring if he had returned to .\n\n54.  The applicant disputed the Government’s arguments that his account of events lacked credibility. In particular, the reason that he did not give details of the ill-treatment suffered at the first interview with an immigration officer was that he understood that it was only to draw a rough outline. No inference could be drawn from his failure to mention specific details. He had been consistent in his account of torture since and had provided independent and verified evidence of his ill-treatment, corroborating his account. He disputed that there was any sustainable option of “internal flight” as he was still at risk of ill-treatment in mainland . He referred to the decisions of special adjudicators in other cases which had also rejected this possibility for even low-level CUF members. There would in any event be the possibility that  would demand his extradition from the mainland.\n\n55.  The applicant in addition argued that Article 3 imposed a positive obligation on the respondent State to investigate properly, in the light of all the evidence, his assertion that he would be exposed to a real risk of treatment contrary to Article 3 if removed to .\n\n2.  The Government\n\n56.  The Government submitted that there were significant factual inconsistencies in the applicant’s account and that he had been found to lack credibility by the special adjudicator. This cast overwhelming doubt upon the applicant’s claim that he had been tortured. For example, the applicant was asked directly by the immigration officer at the first interview on 9 February 1995 to identify the basis of his asylum claim in response to which he did not refer to being tortured during detention. He did not mention torture until over a month later. His explanation for this – that the officer failed to record his answer or that the interpreter did not translate it – was rejected by the adjudicator, who had the opportunity to evaluate the applicant’s oral evidence and demeanour. His accounts also showed a confusion relating to the date of his brother’s detention and there was no support in the death certificate for the assertion that his brother had been tortured.\n\n57.  The Government rejected the applicant’s claim that he would be at risk of ill-treatment if he were returned to . They pointed to his low level of involvement in the CUF, the absence of any evidence to suggest that the authorities had shown any interest in him, his family or friends since November 1995, and to the fact that he would not be at risk in mainland , which had a good human rights record. They submitted that it was clear from the documentation, such as the Amnesty International press release of 24 July 1998, that an individual with minor CUF involvement would face no significant difficulties in mainland . There was no evidence that the Tanzanian authorities would return the applicant to  or that he would be detained as a person wanted by the authorities for the offence of bringing the country into disrepute. There was only one recorded incident of extradition to  and no indication that grounds existed for the applicant to be so removed. In addition, there was no evidence to support the contention that the authorities were aware that the applicant was in the . While the applicant stated that a summons was issued following the interception of a letter from his parents, it may be noted that the summons was dated 25 November 1995 and the letter posted on 27 November 1995.\n\n58.  They submitted that there was therefore no basis on which to infer that the applicant was of interest to the  or mainland authorities. Accordingly, his expulsion would not violate Article 3 of the Convention.\n\nB.  The Court’s assessment\n\n59.  The Court recalls at the outset that Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations including the Convention, to control the entry, residence and expulsion of aliens. However, in exercising their right to expel such aliens, Contracting States must have regard to Article 3 of the Convention which enshrines one of the fundamental values of democratic societies. The expulsion of an alien may give rise to an issue under this provision where substantial grounds have been shown for believing that the person in question, if expelled, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country. In such circumstances,\nArticle 3 implies an obligation not to expel the individual to that country (see, for example, Ahmed v. Austria, judgment of 17 December 1996, Reports of Judgments and Decisions 1996-VI, p. 2206, §§ 38-39, and Chahal v. the United Kingdom, judgment of 15 November 1996, Reports 1996-V, p. 1853, §§ 73-74).\n\n60.  In determining whether it has been shown that the applicant runs a real risk, if deported to Tanzania, of suffering treatment proscribed by Article 3, the Court will assess the issue in the light of all the material placed before it, or, if necessary, material obtained proprio motu (see the following judgments: Vilvarajah and Others v. the United Kingdom, 30 October 1991, Series A no. 215, p. 36, § 107, and H.L.R. v. France, 29 April 1997, Reports 1997-III, p. 758, § 37). Ill-treatment must also attain a minimum level of severity if it is to fall within the scope of Article 3, which assessment is relative, depending on all the circumstances of the case.\n\n61.  The Court recalls that the applicant arrived in the  from  on 9 February 1995, where he claimed asylum. In the domestic procedures concerning his asylum application, his claim was based on his membership of the CUF, an opposition party in , and the fact that he had been detained and tortured in  prior to his departure. He also claimed that his brother had been detained and had died due to ill-treatment and that the authorities were accusing him of tarnishing ’s good name, increasing the risk that he would be detained and ill-treated on his return.\n\n62.  The Government have urged the Court to be cautious in taking a different view of the applicant’s claims than the special adjudicator who heard him give evidence and found him lacking in credibility. The Court notes however that the special adjudicator’s decision relied, inter alia, on a lack of substantiating evidence. Since that decision, the applicant has produced further documentation. Furthermore, while this material was looked at by the Secretary of State and by the courts in the judicial review proceedings, they did not reach any findings of fact in that regard but arrived at their decisions on a different basis – namely, that even if the allegations were true, the applicant could live safely in mainland Tanzania (the “internal flight” solution).\n\n63.  The Court has examined the materials provided by the applicant and the assessment of them by the various domestic authorities. It finds no basis to reject them as forged or fabricated. The applicant has provided an opinion from the professor of social anthropology at , , that they are genuine. Though the Government have expressed doubts on the authenticity of the medical report, they have not provided any evidence to substantiate these doubts or to contradict the opinion provided by the applicant. Nor did they provide an opportunity for the report and the way in which the applicant obtained it to be tested in a procedure before the special adjudicator.\n\n64.  The Court accepts that the applicant was arrested and detained because he was a member of the CUF opposition party and had provided them with financial support. It also finds that he was ill-treated during that detention by, inter alia, being suspended upside down, which caused him severe haemorrhaging through the nose. In the light of the medical record of the hospital which treated him, the apparent failure of the applicant to mention torture at his first immigration interview becomes less significant and his explanation to the special adjudicator – that he did not think he had to give all the details until the full interview a month later – becomes far less incredible. While it is correct that the medical notes and death certificate of his brother do not indicate that torture or ill-treatment was a contributory factor in his death, they did give further corroboration to the applicant’s account which the special adjudicator had found so lacking in substantiation. They showed that his brother, who was also a CUF supporter, had been detained in prison and that he had been taken from the prison to hospital, where he died. This is not inconsistent with the applicant’s allegation that his brother had been ill-treated in prison.\n\n65.  The question remains whether, having sought asylum abroad, the applicant is at risk of ill-treatment if he returns home. The Government have queried the authenticity of the police summons, pointing out that it was dated 25 November 1995, while the package to his parents intercepted by the authorities was sent on 27 November 1995. It may be observed however that the special adjudicator’s summary of the applicant’s evidence referred to his claim that his parents had not been receiving any of his letters. Nevertheless, his only proof of postage related to a registered package with money concerning which he had entered into correspondence with the Royal Mail. He provided this correspondence to prove that his mail had been interfered with; it does not appear from the documents that he claimed that it was from interception of this particular item that the police first knew that he was in the . His account is therefore not inconsistent on this point.\n\n66.  The Court recalls that the applicant’s wife, who has now also claimed asylum in the , informed the immigration officer in her interview that the police came to her house on a number of occasions looking for her husband and making threats. This is consistent with the information provided about the situation in Pemba and , where CUF members have in the past suffered serious harassment, arbitrary detention, torture and ill-treatment by the authorities (see paragraphs 38-46 above). This involves ordinary members of the CUF and not only its leaders or high-profile activists. The situation has improved to some extent, but the latest reports cast doubt on the seriousness of reform efforts and refer to continued problems faced by CUF members (see paragraph 46 above). The Court concludes that the applicant would be at risk of being arrested and detained, and of suffering a recurrence of ill-treatment if returned to .\n\n67.  The Government relied on the “internal flight” option, arguing that even assuming that the applicant was at risk in , the situation in mainland  was more secure. The documents provided by the parties indicate that human rights infringements were more prevalent in  and that CUF members there suffered more serious persecution (see paragraphs 47-49 above). It nonetheless appears that the situation in mainland  is far from satisfactory and discloses a long-term, endemic situation of human rights problems. Reports refer in general terms to police in  ill-treating and beating detainees (see paragraph 46 above) and to members of the Zanzibari CCM visiting the mainland to harass CUF supporters sheltering there (see paragraph 49 above). Conditions in the prisons on the mainland are described as inhuman and degrading, with inadequate food and medical treatment leading to life-threatening conditions (see paragraphs 44 and 46 above). The police in mainland Tanzania may be regarded as linked institutionally to the police in Zanzibar as part of the Union and cannot be relied on as a safeguard against arbitrary action (see Chahal, cited above, p. 1861, § 104, where the applicant, of Sikh origin, was at particular risk of ill-treatment within the Punjab province but could not be considered as safe elsewhere in India as the police in other areas were also reported to be involved in serious human rights violations). There is also the possibility of extradition between  and  (see the special adjudicator’s decision cited at paragraph 33 and the report cited at paragraph 49 above).\n\n68.  The Court is not persuaded, therefore, that the “internal flight” option offers a reliable guarantee against the risk of ill-treatment. It concludes that the applicant’s deportation to  would breach Article 3 as he would face a serious risk of being subjected to torture or inhuman or degrading treatment there.\n\n69.  The applicant’s complaints concerning the remedies available to him in respect of the breach of Article 3 fall, in the circumstances of this case, to be examined under Article 13 of the Convention (see İlhan v.  [GC], no. 22277/93, ECHR 2000-VII).\n\nII.  ALLEGED VIOLATIONS OF ARTICLES 6 AND 8 OF THE CONVENTION\n\n70.  The applicant relied on Article 6 (right to a fair trial) and Article 8 (right to respect for private life), alleging that the expulsion to  would place him at risk of arbitrary and unfair criminal proceedings if he was arrested, and would threaten his physical and moral integrity.\n\n71.  In the light of its conclusion above, the Court finds that no separate issue arises under these provisions.\n\nIII.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION\n\n72.  The applicant complained that he did not have an effective remedy against the proposed expulsion. He relied on Article 13 of the Convention, which provides:\n\n“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”\n\nA.  The parties’ submissions\n\n73.  The applicant submitted that he had no effective remedy available to him by which he could challenge the decision of the Secretary of State to deport him to . He obtained the supporting documentation for his claims after the hearing before the independent adjudicator. However, the Secretary of State took the view that this material was irrelevant and refused to accede to the applicant’s request that the documents be made available to the adjudicator to examine whether it altered his view. The application for judicial review did not, in his view, provide an opportunity to have his claim assessed by an independent judicial body on the basis of all the evidence. The application only challenged the decision not to refer the material back to the adjudicator. Neither the High Court nor the Court of Appeal undertook any form of review of the claim in the light of all the evidence, assessing neither his veracity nor the risks existing if he were returned. The courts’ review was limited in its scope to an examination of the rationality of the decision and the question whether the refusal was so unreasonable that no reasonable Secretary of State could have reached it. The test of irrationality was extremely high. He argued, however, that where evidence was prima facie genuine and went to the heart of his claim, he should have had the opportunity to have the risks reviewed in the light of that evidence. This inability to determine the substance of his Convention complaint deprived the procedure of effectiveness for the purposes of Article 13 of the Convention.\n\n74.  The Government submitted that judicial review furnished an effective remedy, and referred to previous findings of the Court to that effect in expulsion cases (see, for example, Vilvarajah and Others, cited above, pp. 39-40, §§ 123-25; D. v. the United Kingdom, judgment of 2 May 1997, Reports 1997-III; and T.I. v. the United Kingdom (dec.), no. 43844/98, ECHR 2000-III). The domestic case-law demonstrated that the courts considered carefully the evidence before them in such cases. While the domestic court would not form its own independent view of the facts which would then necessarily prevail over whatever view had been formed by the Secretary of State, it was clear that in cases involving extradition and expulsion the domestic court would conduct a thorough examination of the available evidence and, if appropriate, would not be slow in forming, or reluctant to form, the view that the Secretary of State’s decision was unlawful and should be set aside.\n\nB.  The Court’s assessment\n\n75.  The Court reiterates that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant’s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law. In particular, its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State (see the following judgments: Aksoy v. Turkey, 18 December 1996, Reports 1996-VI, p. 2286, § 95; Aydın v. Turkey, 25 September 1997, Reports 1997-VI, pp. 1895-96, § 103; and Kaya v. Turkey, 19 February 1998, Reports 1998-I, pp. 329-30, § 106).\n\n76.  On the basis of the evidence adduced in the present case, the Court finds that the applicant’s claim that he risked inhuman or degrading treatment contrary to Article 3 of the Convention if expelled to Tanzania is  “arguable” for the purposes of Article 13 (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, p. 23, § 52, and Kaya, cited above, p. 330, § 107). The Court has therefore examined whether he had available to him an effective remedy against the threatened expulsion.\n\n77.  In Vilvarajah and Others (cited above, p. 39, § 123) and Soering v. the United Kingdom (judgment of 7 July 1989, Series A no. 161, pp. 47-48, §§ 121-24), the Court considered judicial review proceedings to be an effective remedy in relation to the complaints raised under Article 3 in the contexts of deportation and extradition. It was satisfied that English courts could effectively control the legality of executive discretion on substantive and procedural grounds and quash decisions as appropriate. It was also accepted that a court effecting judicial review would have power to quash a decision to expel or deport an individual to a country where it was established that there was a serious risk of inhuman or degrading treatment, on the ground that in all the circumstances of the case the decision was one that no reasonable Secretary of State could take. This view was followed more recently in D. v. the United Kingdom (cited above, pp. 797-98, §§ 70-71).\n\n78.  While the applicant argued that in judicial review applications, the courts will not reach findings of fact for themselves on disputed issues, the Court is satisfied that the domestic courts give careful scrutiny to claims that an expulsion would expose an applicant to the risk of inhuman or degrading treatment. The Court is not convinced that the fact that this scrutiny takes place against the background of the criteria applied in judicial review of administrative decisions, namely, rationality and perverseness, deprives the procedure of its effectiveness. The substance of the applicant’s complaint was examined by the Court of Appeal, and it had the power to afford him the relief he sought. The fact that it did not do so is not a material consideration since the effectiveness of a remedy for the purposes of Article 13 does not depend on the certainty of a favourable outcome for the applicant (see Vilvarajah and Others, cited above, p. 39, § 122).\n\n79.  The Court concludes, therefore, that the applicant had available to him an effective remedy in relation to his complaints under Article 3 of the Convention concerning the risk of ill-treatment on expulsion to . Accordingly, there has been no breach of Article 13.\n\nIV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n80.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n81.  The applicant claimed the sum of 2,000 pounds sterling (GBP) in respect of non-pecuniary damage for the failure to investigate properly the risks on return to  in violation of Article 3 of the Convention and the failure to provide an effective remedy.\n\n82.  The Government submitted that no award of damages was appropriate in the circumstances.\n\n83.  The Court recalls that it has found no procedural violations concerning the alleged lack of investigation. As regards its finding of a violation of Article 3 – that the proposed expulsion to  would place the applicant at risk of ill-treatment contrary to this provision – the Court considers that the finding of a violation constitutes sufficient just satisfaction for any non-pecuniary damage sustained.\n\nB.  Costs and expenses\n\n84.  The applicant claimed a total of GBP 12,583.87, exclusive of value-added tax (VAT), for legal costs and expenses. This sum included a sum of GBP 5,000 for counsel’s advice, GBP 280 for an expert report and GBP 6,935.63 for solicitors’ fees in preparing and submitting the Rule 39 request, the application and two sets of observations.\n\n85.  The Government considered that the amounts claimed were excessive, in particular regarding the claim of eighty-seven hours’ work for counsel and the hourly rate claimed by the solicitor. They proposed the figure of GBP 7,000 as being appropriate.\n\n86.  The Court finds that the sums claimed are reasonable. It awards the amount claimed in full, together with any VAT that may be chargeable, less the 5,100 French francs received by way of legal aid from the Council of Europe.\n\nC.  Default interest\n\n87.  According to the information available to the Court, the statutory rate of interest applicable in the  at the date of adoption of the present judgment is 7.5% per annum.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Holds that the expulsion of the applicant to  would violate Article 3 of the Convention;\n\n2.  Holds that no separate issues arise under Articles 6 and 8 of the Convention;\n\n3.  Holds that there has been no violation of Article 13 of the Convention;\n\n4.  Holds that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant;\n\n5.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months  from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, for costs and expenses, GBP 12,583.87 (twelve thousand five hundred and eighty-three pounds sterling eighty-seven pence), together with any value-added tax that may be chargeable, less FRF 5,100 (five thousand one hundred French francs) to be converted into pounds sterling at the exchange rate applicable at the date of delivery of the judgment;\n\n(b)  that simple interest at an annual rate of 7.5% shall be payable from the expiry of the above-mentioned three months until settlement;\n\n6.  Dismisses the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 6 March 2001, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_100","text":"PROCEDURE\n\n1.  The case originated in an application (no. 56280/07) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Romanian national, Mr Ioan Tău (“the applicant”), on 12 December 2007.\n\n2.  The applicant was represented by Mr R.L. Chiriţă, a lawyer practising in Cluj-Napoca. The Romanian Government (“the Government”) were represented by their Agent, Mrs C. Brumar, from the Ministry of Foreign Affairs.\n\n3.  The applicant complained that the criminal proceedings conducted against him on charges of drug-trafficking had violated his right to a fair trial under Article 6 §§ 1 and 3 (c) and (d) of the Convention. Relying on Article 5 § 1 of the Convention he also complained that he had been unlawfully detained for the period between 3 and 10 July 2007 despite his release being ordered by the Bucharest District Court on 3 July 2007.\n\n4.  On 25 October 2012 the application was communicated to the Government.\n\nTHE FACTS\n\nTHE CIRCUMSTANCES OF THE CASE\n\n5.  The applicant was born in 1944 and lives in Cluj-Napoca.\n\nBackground to the criminal proceedings\n\n6.  The applicant was arrested and investigated in criminal proceedings concerning five international drug-trafficking networks. The proceedings were widely reported in the media, as they concerned one of the biggest drug-trafficking cases investigated by the Romanian authorities at the time.\n\n7.  On 7 July 2003, F.D. and P.A. were questioned by the police and the public prosecutor. They both stated that the applicant was involved in the drug-trafficking.\n\n8.  According to the applicant, the prosecuting authorities explored the possibilities of reaching an agreement whereby the accused would give statements about others involved in drug-trafficking in exchange for a reduced sentence. He suggested that such an agreement had been reached with F.D. and P.M. (the ex-wife of accused P.A.) who had not been indicted although they had recognized that they had transported drugs on several occasions.\n\nThe applicant’s arrest and pre-trial detention\n\n9.  On 14 July 2003, at about 00.30 p.m., two police officers took the applicant into custody and transported him to the prosecutor’s office attached to the High Court of Cassation and Justice located in Bucharest.\n\n9.  On 14 July 2003, at about 00.30 p.m., two police officers took the applicant into custody and transported him to the prosecutor’s office attached to the High Court of Cassation and Justice located in Bucharest.\n\n9.  On 14 July 2003, at about 00.30 p.m., two police officers took the applicant into custody and transported him to the prosecutor’s office attached to the High Court of Cassation and Justice located in Bucharest.\n\n10.  According to the applicant, the prosecutor took his first statement in the presence of an officially appointed lawyer, G.S.C., who had also been assisting two other co-accused, P.A. and F.D. The applicant denied any involvement in drug-trafficking. The applicant maintained the same attitude of denial of the charges throughout the proceedings.\n\n11.  At about 1.30 a.m. the prosecutor issued an arrest warrant for a period of three days in the applicant’s name.\n\n12.  The next day the applicant was brought before the High Court of Cassation and Justice for the examination of the prosecutor’s request concerning his pre-trial detention. He alleges that he was assisted by the same officially appointed lawyer despite the fact that he insisted to be assisted by a lawyer of his own choosing.\n\n12.  The next day the applicant was brought before the High Court of Cassation and Justice for the examination of the prosecutor’s request concerning his pre-trial detention. He alleges that he was assisted by the same officially appointed lawyer despite the fact that he insisted to be assisted by a lawyer of his own choosing.\n\n13.  The applicant affirmed that he had complained to the prosecutor and then to the judges that he could not be assisted by a lawyer of his choice and that instead he had been assisted by an officially appointed lawyer who also had assisted his co-defendants, P.A. and F.D. However, the criminal case file contains no written trace of any such complaints.\n\n13.  The applicant affirmed that he had complained to the prosecutor and then to the judges that he could not be assisted by a lawyer of his choice and that instead he had been assisted by an officially appointed lawyer who also had assisted his co-defendants, P.A. and F.D. However, the criminal case file contains no written trace of any such complaints.\n\n14.  According to the documents submitted by the applicant, he engaged a lawyer practicing in Cluj-Napoca on 15 July 2003.\n\n14.  According to the documents submitted by the applicant, he engaged a lawyer practicing in Cluj-Napoca on 15 July 2003.\n\n15.  On 29 July 2003 the applicant, in the presence of his lawyer, was confronted with F.D. According to the record, the latter stated that he had heard about the applicant’s involvement in packing and dissimulating drugs from P.A., but that he had never seen him performing these kinds of activities.\n\n16.  The applicant’s pre-trial detention was repeatedly extended by the Bucharest County Court by interlocutory decisions. The applicant, assisted by his lawyer, attended the hearings.\n\nThe proceedings on the merits of the case\n\n17.  On 25 September 2003 the prosecutor issued an indictment concerning twenty-six accused persons, including the applicant, and the next day the case was registered with the Bucharest County Court. F.D. and P.M. had not been indicted although they had recognized their involvement in drug-trafficking.\n\n17.  On 25 September 2003 the prosecutor issued an indictment concerning twenty-six accused persons, including the applicant, and the next day the case was registered with the Bucharest County Court. F.D. and P.M. had not been indicted although they had recognized their involvement in drug-trafficking.\n\n18.  The applicant’s co-accused, P.A., was heard on 7 February 2005 by the court of first instance. He stated among other things that the applicant had helped him in packing drugs. He also stated that the applicant had been his friend since 1994 and that he had provided services for his pharmaceutical company between 1999 and 2001 on the basis of a contract.\n\n18.  The applicant’s co-accused, P.A., was heard on 7 February 2005 by the court of first instance. He stated among other things that the applicant had helped him in packing drugs. He also stated that the applicant had been his friend since 1994 and that he had provided services for his pharmaceutical company between 1999 and 2001 on the basis of a contract.\n\n19.  On 9 September 2005, I.I., an under-cover agent, gave a statement before the court. She was asked to mention the members of the\ndrug-trafficking network and the role played by each of them. She did not mention anything about the applicant although in her initial statement given before the prosecutor on 9 June 2003 she had stated that many drug transports had left from the applicant’s home. She finished her testimony by stating that “there were no other persons involved in drug trafficking”. The judge did not ask her additional questions to clarify the role played by the applicant in the drug-trafficking network.\n\n19.  On 9 September 2005, I.I., an under-cover agent, gave a statement before the court. She was asked to mention the members of the\ndrug-trafficking network and the role played by each of them. She did not mention anything about the applicant although in her initial statement given before the prosecutor on 9 June 2003 she had stated that many drug transports had left from the applicant’s home. She finished her testimony by stating that “there were no other persons involved in drug trafficking”. The judge did not ask her additional questions to clarify the role played by the applicant in the drug-trafficking network.\n\n20.  On 29 September 2005 the judicial investigation was closed and the lawyers of the accused and the accused themselves submitted their arguments on the merits of the case; the delivery of the first-instance judgment was postponed to 4 October 2005.\n\n21.  By a first-instance judgment of 4 October 2005 the Bucharest County Court found the applicant guilty and convicted him to sixteen years’ imprisonment. He was found guilty of taking part in international drug trafficking by facilitating the transport of drugs.\n\n21.  By a first-instance judgment of 4 October 2005 the Bucharest County Court found the applicant guilty and convicted him to sixteen years’ imprisonment. He was found guilty of taking part in international drug trafficking by facilitating the transport of drugs.\n\n22.  His conviction was based on statements given by undercover agent I.I., co-accused P.A. and witness F.D. The latter did not give any evidence before the court. Therefore, the court relied on his witness’ pre-trial statements accusing the applicant.\n\n22.  His conviction was based on statements given by undercover agent I.I., co-accused P.A. and witness F.D. The latter did not give any evidence before the court. Therefore, the court relied on his witness’ pre-trial statements accusing the applicant.\n\n23.  The relevant part of the judgment stated as follows:\n\n“The drugs transported by P.A., P.M. and F.D. had been packed at T.I.’s (the applicant) home. This aspect was revealed by defendant P.A. and witness F.D. The latter stated during the confrontation with defendant T.I. that he had been sent by P.A. to T.I.’s home to have returned special material used for packing the drugs as well as a device used to glue plastic foil; both had been handed to him by defendant T.I.\n\nThe involvement of defendant T.I. in the packing and marking of the drugs throughout the year 2002 is confirmed by co-defendant P.A., witness F.D. and undercover agent I.I.”\n\n24.  The applicant appealed against the conviction. He disputed his involvement in the criminal offence and disagreed with the way the trial court had established the relevant facts. He submitted in particular that the trial court had mainly based its decision on statements made by the coaccused before the prosecutor. He pointed out that I.I. had changed her statement before the court and that he could not confront F.D. in open court despite his repeated requests.\n\n24.  The applicant appealed against the conviction. He disputed his involvement in the criminal offence and disagreed with the way the trial court had established the relevant facts. He submitted in particular that the trial court had mainly based its decision on statements made by the coaccused before the prosecutor. He pointed out that I.I. had changed her statement before the court and that he could not confront F.D. in open court despite his repeated requests.\n\n25.  On 7 June 2006 the Bucharest Court of Appeal reversed the judgment in respect of the applicant and his sentence was reduced to eight years’ imprisonment on the grounds that he was an accomplice, had no criminal record and he was more than sixty years old. The Appeal Court held that the applicant had just supported the activities of the gang by providing help with the packing of the drugs which were to be transported, by storing them on the premises of his home and then allowing them to be collected by other members of the network. The court made no reference to the applicant’s complaints that he could not confront in open court F.D.\n\n25.  On 7 June 2006 the Bucharest Court of Appeal reversed the judgment in respect of the applicant and his sentence was reduced to eight years’ imprisonment on the grounds that he was an accomplice, had no criminal record and he was more than sixty years old. The Appeal Court held that the applicant had just supported the activities of the gang by providing help with the packing of the drugs which were to be transported, by storing them on the premises of his home and then allowing them to be collected by other members of the network. The court made no reference to the applicant’s complaints that he could not confront in open court F.D.\n\n26.  On 14 June 2007, the High Court of Cassation and Justice dismissed an appeal on points of law by the applicant. It upheld the decision of 7 June 2006 endorsing the Bucharest Court of Appeal’s reasoning. It concluded by stating that the applicant’s allegations that he had not committed any offence related to drug-trafficking had been contradicted by the statements of witness F.D., co-accused P.A. and undercover agent I.I.\n\n27.  By an interlocutory judgment of 3 July 2007, the Bucharest District Court ordered the release of the applicant under probation. He was released from prison on 10 July 2007.\n\nRELEVANT DOMESTIC LAW AND PRACTICE\n\n28.  The relevant domestic law and practice concerning unlawful detention are set out in Dragomir v. Romania (dec.), no. 59064/11, §§ 9-14, 3 June 2014.\n\n29.  Excerpts from the relevant provisions concerning the hearing of witnesses are described in Bobeş v. Romania, no. 29752/05, §§ 22-24, 9 July 2013.\n\nTHE LAW\n\nALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 OF THE CONVENTION\n\n30.  Relying on Article 6 §§ 1 and 3 (c) and (d) of the Convention, the applicant complained of a number of breaches of the guarantees of fair trial. In particular, he complained that on the first two occasions when he had been questioned he had been assisted by an officially appointed lawyer who had also been assisting the co-accused P.A. and F.D. in spite of the fact that he had requested to be assisted by a lawyer of his own choosing. The applicant also claimed that he had not been given the opportunity to confront in open court witness F.D. whose statements had been relied upon in convicting him.\n\n31.  Article 6 of the Convention provides as follows, in the relevant parts:\n\n“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...\n\n3.  Everyone charged with a criminal offence has the following minimum rights: ...\n\n(c)  to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;\n\n(d)  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...”\n\nAdmissibility\n\n32.  The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.\n\nMerits\n\nThe parties’ submissions\n\nThe Government\n\n33.  The Government contended that the applicant had not been denied the right to appoint a lawyer of his own choice during the first two sessions of questioning. Moreover, the legal representation ensured by the lawyer appointed ex officio had been practical and effective. They acknowledged that lawyer G.S.C., who had assisted the applicant on 14 and 15 July 2003, had previously assisted the applicant’s co-accused P.A. and F.D. However they contended that P.A. had appointed a new lawyer on 15 July 2003 and that F.D., who appointed G.S.C. on 27 May 2003, had not had competing interests with the applicant until 29 July 2003, when they were confronted.\n\n33.  The Government contended that the applicant had not been denied the right to appoint a lawyer of his own choice during the first two sessions of questioning. Moreover, the legal representation ensured by the lawyer appointed ex officio had been practical and effective. They acknowledged that lawyer G.S.C., who had assisted the applicant on 14 and 15 July 2003, had previously assisted the applicant’s co-accused P.A. and F.D. However they contended that P.A. had appointed a new lawyer on 15 July 2003 and that F.D., who appointed G.S.C. on 27 May 2003, had not had competing interests with the applicant until 29 July 2003, when they were confronted.\n\n34.  As regards the applicant’s complaint that he and his lawyer had not been able to cross-examine all the witnesses whose statements served as the main basis for his conviction, the Government maintained that although some co-accused and witnesses had been heard in the applicant’s absence at the investigation stage, he had had the opportunity to cross-examine them in the presence of the lawyer of his choice before the courts. The Government submitted that although co-accused F.D. had not been re-heard in court in the applicant’s presence, the applicant had the opportunity to confront him before the investigation authorities on 29 July 2003 (see paragraph 15 above). Witness P.M., who gave statements on his former husband’s involvement in the criminal activity and on the identity of his accomplices, including the applicant, refused to be present in court. Therefore, the Court of Appeal put aside her statements. Moreover, the applicant’s conviction had not been exclusively based on the witnesses’ statements. The domestic courts based their rulings on other evidence, such as research on the spot and documentary evidence. They had made an overall assessment of the evidence adduced in the case file. They discarded part of the statements given by co-accused P.A. because they could not be corroborated with other pieces of evidence.\n\nThe applicant\n\n35.  The applicant submitted that on the first two occasions when he had been questioned by the prosecutor he had been denied the assistance of the counsel of his own choosing and had been assigned an ex officio lawyer who had been already representing two of the co-accused (F.D. and P.A.), who had made incriminatory statements against him. Such legal assistance could not be considered as effective.\n\n36.  As regards the fact that his sentencing was based to a large extent on the statements of F.D., whom he could not question or confront in open court, the applicant contended that his situation was similar to that of the applicant in the case Melnikov v. Russia (no. 23610/03, 14 January 2010). Moreover, his confrontation with F.D. at the investigation stage had been conducted by an investigator who did not meet the requirements of independence and impartiality of a judge.\n\n37.  The applicant concluded by pointing out that apart from the statements of F.D. his conviction had been based on the contradictory statements of protected witness I.I. and the statements of one of his co-accused, P.A., who had obviously had an interest in involving him in the crime network.\n\nThe Court’s assessment\n\nThe applicant’s legal assistance on the first two occasions when he had been questioned (Article 6 §§ 1 and 3 (c) of the Convention)\n\n38.  The Court reiterates that the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, as guaranteed by Article 6 § 3 (c), is one of the fundamental features of a fair trial (see Salduz v. Turkey [GC], no. 36391/02, § 51, ECHR 2008, and Dvorski v. Croatia [GC], no. 25703/11, § 76, ECHR 2015). Prompt access to a lawyer constitutes an important counterweight to the vulnerability of suspects in police custody, provides a fundamental safeguard against coercion and ill-treatment of suspects by the police, and contributes to the prevention of miscarriages of justice and the fulfilment of the aims of Article 6, notably equality of arms between the investigating or prosecuting authorities and the accused (see Salduz, cited above, §§ 53-54, and Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, § 255, ECHR 2016).\n\n39.  Article 6 § 3 (c) does not secure an autonomous right but must be read and interpreted in the light of the broader requirement of fairness of criminal proceedings, considered as a whole, as guaranteed by Article 6 § 1 of the Convention. In particular, compliance with the requirements of a fair trial must be examined in each case with regard to the development of the proceedings as a whole and not on the basis of an isolated consideration of one particular aspect or one particular incident, although it cannot be ruled out that a specific factor may be so decisive as to enable the fairness of the trial to be assessed at an earlier stage in the proceedings (see Ibrahim and Others, cited above, §§ 250 and 251). Article 6 § 3 (c) leaves to the Contracting States the choice of the means of ensuring that it is secured in their judicial system, the Court’s task being only to ascertain whether the method they have chosen is consistent with the requirements of a fair trial (see Simeonovi v. Bulgaria [GC], no. 21980/04, § 113, CEDH 2017 (extracts), and Salduz, cited above, § 51).\n\n40.  From the outset the Court underlines the importance of the investigation stage for the preparation of the criminal proceedings, as the evidence obtained during this stage determines the framework in which the offence charged will be considered at the trial (see Salduz, cited above § 54). It also emphasises that a person charged with a criminal offence should already be given the opportunity at this stage to have recourse to legal assistance of his or her own choosing (see Dvorski, cited above, § 108; see also Martin v. Estonia, no. 35985/09, §§ 90 and 93, 30 May 2013).\n\n41.  The present case concerns a situation where the applicant was afforded access to a lawyer from his first interrogation, but not – according to his complaint – a lawyer of his own choosing. Moreover, the lawyer assigned to the applicant was already representing two co-accused, P.A. and F.D., whose interests conflicted with his (see paragraph 10 above).\n\n42.  The parties disagreed on whether the applicant had requested to be assisted by a lawyer of his own choice during the first two sessions of his questioning, namely on 14 and 15 July 2003.\n\n43.  In this respect the Court notes that there is no evidence in the file to corroborate the applicant’s allegations that he had requested to be assisted by a lawyer of his choosing and that his request had been ignored (see paragraph 13 above). Therefore, the Court dismisses the applicant’s complaint that he was prevented from being represented by a lawyer of his own choosing at any of the first two hearings.\n\n44.  The applicant further complains that the ex officio lawyer who had been assigned to him for the first two hearings had been already representing two other suspects who had made incriminatory statements against him. In his view, such legal assistance could not be considered effective. The Court will therefore seek to establish whether this particular circumstance affected the effectiveness of legal assistance provided to the applicant.\n\n45.  In this respect the Court reiterates that a State cannot be held responsible for every shortcoming on the part of a lawyer appointed for legal-aid purposes. The national authorities are only bound to intervene when the failure of the legal-aid counsel to provide an effective representation is manifest or sufficiently brought to their attention in some other way (see Czekalla v. Portugal, no. 38830/97, § 60, ECHR 2002-VIII; Pavlenko v. Russia, no. 42371/02, § 99, 1 April 2010; Mihai Moldoveanu v. Romania, no. 4238/03, §§ 73-75, 19 June 2012; and Janyr v. the Czech Republic, no. 42937/08, § 68, 31 October 2013).\n\n46.  In some cases, the applicants had a specific complaint about the conduct of their court appointed lawyer, for example in Jemeļjanovs v. Latvia (no. 37364/05, 6 October 2016) and Gabrielyan v. Armenia (no. 8088/05, 10 April 2012), where the applicants complained that their court-appointed lawyer had been passive or had failed in some way to advance their case properly. Nevertheless, even in absence of an applicant’s complaint, the domestic authorities are not relieved from a duty to ensure effective legal assistance (see Mihai Moldoveanu, cited above, § 75).\n\n47.  The Court notes that in the present case, the applicant, assisted by a lawyer of his own choice after 15 July 2003 (see paragraph 14 above), actively participated at all stages in the criminal proceedings. However, he had not, at any stage in the criminal proceedings before the domestic courts, raised any complaint concerning the efficacy of the legal assistance ensured by the officially appointed lawyer on the ground that the latter had assisted co-defendants with whom he had conflict of interests.\n\n48.  Furthermore, the Court does not perceive any shortcomings in the way the applicant was represented by the officially appointed lawyer during the first two hearing. It attaches decisive importance to the fact that during that period, no evidence capable of being used against the applicant was taken from him and included in the case file. In this connection, the Court notes that in his first two statements of 14 and 15 July 2003 respectively, given in the absence of a lawyer of his own choosing, the applicant had not confessed the commission of any offence (see paragraph 10 above). Furthermore, the applicant did not personally allege before the Court that the domestic courts had possessed evidence presented during that period and used it at the trial in order to secure his conviction (see, mutatis mutandis, Simeonovi, cited above, § 136).\n\n49.  In the light of these findings, the Court considers that the overall fairness of the criminal proceedings against the applicant had not been irretrievably prejudiced by the fact that on the first two occasions when he had been questioned he had been assisted by an officially appointed lawyer who had also been assisting two other co-accused.\n\n50.  Accordingly, there has been no violation of Article 6 § 1 taken together with Article 6 § 3 (c) of the Convention.\n\nThe use of untested witness evidence as a basis for the applicant’s conviction (Article 6 §§ 1 and 3 (d) of the Convention)\n\n51.  The Court reiterates that the guarantees in paragraph 3 (d) of Article 6 are specific aspects of the right to a fair hearing set forth in paragraph 1 of this provision which must be taken into account in any assessment of the fairness of proceedings. According to the Court’s caselaw, the use in evidence of statements obtained at the police inquiry and judicial investigation stages is not in itself inconsistent with the provisions cited above, provided that the rights of the defence have been respected (see Saïdi v. France, 20 September 1993, § 43, Series A no. 261-C). In principle, these rules require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him, either when he makes his statements or at a later stage of proceedings (see Al-Khawaja and Tahery v. the United Kingdom ([GC], nos. 26766/05 and 22228/06, § 118, ECHR 2011).\n\n52.  In Al-Khawaja and Tahery (cited above, §§ 119-147), the Grand Chamber clarified the principles to be applied when a witness does not attend a public trial. Those principles may be summarised as follows (see also Boyets v. Ukraine, no. 20963/08, § 75, 30 January 2018):\n\n(i) the Court should first examine the preliminary question of whether there was a good reason for admitting the evidence of an absent witness, keeping in mind that witnesses should as a general rule give evidence during the trial and that all reasonable efforts should be made to secure their attendance;\n\n(ii) typical reasons for non-attendance are, as in the case of Al-Khawaja and Tahery (cited above), the death of the witness or the fear of retaliation. There are, however, other legitimate reasons why a witness may not attend a trial;\n\n(iii) when a witness has not been examined at any prior stage of the proceedings, allowing the admission of a witness statement in lieu of live evidence at trial must be a measure of last resort;\n\n(iv) the admission as evidence of the statements of absent witnesses results in a potential disadvantage for the defendant, who, in principle, in a criminal trial should have an effective opportunity to challenge the evidence against him. In particular, he should be able to test the truthfulness and reliability of the evidence given by the witnesses, by having them orally examined in his presence, either at the time the witness was making the statement or at some later stage of the proceedings;\n\n(v) according to the “sole or decisive rule”, if the conviction of a defendant is solely or mainly based on evidence provided by witnesses whom the accused is unable to question at any stage of the proceedings, his defence rights are unduly restricted;\n\n(vi) in this context, the word “decisive” should be narrowly understood as indicating evidence of such significance or importance as is likely to be determinative of the outcome of the case. Where the untested evidence of a witness is supported by other corroborative evidence, the assessment of whether it is decisive will depend on the strength of the supportive evidence: the stronger the other incriminating evidence, the less likely that the evidence of the absent witness will be treated as decisive;\n\n(vii) however, as Article 6 § 3 of the Convention should be interpreted in the context of an overall examination of the fairness of the proceedings, the sole or decisive rule should not be applied in an inflexible manner;\n\n(viii) in particular, where a hearsay statement is the sole or decisive evidence against a defendant, its admission as evidence will not automatically result in a breach of Article 6 § 1. At the same time, where a conviction is based solely or decisively on the evidence of absent witnesses, the Court must subject the proceedings to the most searching scrutiny. Because of the dangers of the admission of such evidence, it would constitute a very important factor to balance in the scales and one which would require sufficient counterbalancing factors, including the existence of strong procedural safeguards. The question in each case is whether there are sufficient counterbalancing factors in place, including measures that permit a fair and proper assessment of the reliability of that evidence to take place. This would permit a conviction to be based on such evidence only if it is sufficiently reliable given its importance to the case.\n\n(viii) in particular, where a hearsay statement is the sole or decisive evidence against a defendant, its admission as evidence will not automatically result in a breach of Article 6 § 1. At the same time, where a conviction is based solely or decisively on the evidence of absent witnesses, the Court must subject the proceedings to the most searching scrutiny. Because of the dangers of the admission of such evidence, it would constitute a very important factor to balance in the scales and one which would require sufficient counterbalancing factors, including the existence of strong procedural safeguards. The question in each case is whether there are sufficient counterbalancing factors in place, including measures that permit a fair and proper assessment of the reliability of that evidence to take place. This would permit a conviction to be based on such evidence only if it is sufficiently reliable given its importance to the case.\n\n53.  Those principles have been further clarified in Schatschaschwili v. Germany ([GC] no. 9154/10, §§ 110-131, ECHR 2015), in which the Grand Chamber confirmed that the absence of good reason for the\nnon-attendance of a witness could not, of itself, be conclusive of the lack of fairness of a trial, although it remained a very important factor to be weighed in the balance when assessing the overall fairness, and one which might tip the balance in favour of finding a breach of Article 6 §§ 1 and 3 (d). Furthermore, given that its concern was to ascertain whether the proceedings as a whole were fair, the Court should not only review the existence of sufficient counterbalancing factors in cases where the evidence of the absent witness was the sole or the decisive basis for the applicant’s conviction, but also in cases where it found it unclear whether the evidence in question was sole or decisive but nevertheless was satisfied that it carried significant weight and its admission might have handicapped the defence. The extent of the counterbalancing factors necessary in order for a trial to be considered fair would depend on the weight of the evidence of the absent witness. The more important that evidence, the more weight the counterbalancing factors would have to carry in order for the proceedings as a whole to be considered fair (see also Boyets, cited above, § 76, and Valdhuter v. Romania, no. 70792/10, § 45, 27 June 2017).\n\n54.  The preliminary question for the Court to examine is whether there was a good reason for admitting the pre-trial statement of witness F.D. in evidence without having him questioned at the applicant’s trial.\n\n55.  In cases concerning a witness’s absence because he or she was unreachable, the Court requires the trial court to have made all reasonable efforts to secure the witness’s attendance. They must have actively searched for the witness with the help of the domestic authorities including the police and must, as a rule, have sought to international legal assistance in cases where the witness resided abroad and such mechanisms were available. This implies careful scrutiny by the domestic courts of the reasons given for the witness’s inability to attend trial, having regard to the specific situation of each witness (see Schatschaschwili, cited above, §§ 120-122).\n\n56.  Turning to the instant case, the Court notes that in spite of the applicant’s repeated requests to be confronted with F.D., the domestic courts neither made any efforts to secure his presence at the trial nor provided any reasons for his non-attendance (see paragraphs 20 and 25 above). Furthermore, there is no evidence to suggest that F.D. was asked, and refused, to make depositions within the framework of the applicant’s trial for any reason. The Court cannot, therefore, conclude that there was a good reason for the non-attendance of F.D. or that the trial court had made all reasonable efforts to secure F.D’s attendance at the trial.\n\n57.  However, the absence of a good reason for the non-attendance of witness F.D. at the trial of the applicant is not of itself conclusive of the lack of fairness of a criminal trial, although it constitutes a very important factor to be weighed in the balance when assessing the overall fairness of a trial (see Schatschaschwili, cited above, § 113).\n\n58.  As regards the second step of the Al-Khawaja test, that is the question of whether the evidence of the absent witness whose statement was admitted in evidence was the sole or decisive basis for the defendant’s conviction, the Court observes that the judgments of the domestic courts listed the statement given by witness F.D. at the pre-trial stage of the investigation in the evidence substantiating the applicant’s guilt without any evaluation as to whether the applicant’s conviction was based to a decisive extent on the statement of this witness (see paragraph 23 above). The Court must therefore make its own assessment of the weight of the evidence given by the absent witness having regard to the additional incriminating evidence available (see Schatschaschwili, cited above, §§ 124 and 143, and Poletan and Azirovik v. the former Yugoslav Republic of Macedonia, nos. 26711/07, 32786/10 and 34278/10, § 88, 12 May 2016).\n\n59.  In this connection, the Court notes that the applicant’s guilt had been established based on the statements of witness F.D., co-accused P.A. and undercover agent I.I. (see paragraphs 22 and 26 above).\n\n60.  Having regard to the evidentiary basis of the applicant’s conviction on the charge of drug trafficking, the Court considers that, while the statement of witness F.D. may not have been the sole or decisive evidence on which the applicant’s conviction was based, it clearly carried significant weight in the establishment of his guilt (see the case-law cited in paragraph 53 above).\n\n61.  The Court must lastly determine whether there were sufficient counterbalancing factors in place, including measures that permitted a fair and proper assessment of the reliability of the evidence of the absent witnesses to take place. The following elements are relevant in this context: (a) whether the trial court approached the untested evidence of an absent witness with caution; (b) whether the domestic courts provided detailed reasoning; (c) whether there was corroborative evidence supporting the untested witness statement; (d) whether the applicant or his defence counsel had been given an opportunity to question the witness during the investigation stage; (e) whether the defence was offered the possibility to put its own questions to the witness indirectly in the course of the trial; and (f) whether the defendant was afforded the opportunity to give his own version of the events and to cast doubt on the credibility of the absent witness (see Schatschaschwili, cited above, §§ 125-131).\n\n62.  As regards the domestic courts’ treatment of the evidence of the absent witness F.D., the Court observes that there is no indication in their judgments that they approached his statement given at the pre-trial stage with any specific caution. The courts’ judgments do not contain any indication that they were aware of the reduced evidentiary value of the untested witness statement (see, by contrast, Brzuszczyński v Poland, no. 23789/09, §§ 85-86, 17 September 2013, and Ben Moumen v. Italy, no. 3977/13, § 58, 23 June 2016). On the contrary, the statement of the untested witness was listed along with other evidence substantiating the applicant’s guilt, without any assessment of its credibility. The Court therefore considers that the domestic courts failed to examine the reliability of the absent witness’s statement in a careful manner.\n\n62.  As regards the domestic courts’ treatment of the evidence of the absent witness F.D., the Court observes that there is no indication in their judgments that they approached his statement given at the pre-trial stage with any specific caution. The courts’ judgments do not contain any indication that they were aware of the reduced evidentiary value of the untested witness statement (see, by contrast, Brzuszczyński v Poland, no. 23789/09, §§ 85-86, 17 September 2013, and Ben Moumen v. Italy, no. 3977/13, § 58, 23 June 2016). On the contrary, the statement of the untested witness was listed along with other evidence substantiating the applicant’s guilt, without any assessment of its credibility. The Court therefore considers that the domestic courts failed to examine the reliability of the absent witness’s statement in a careful manner.\n\n63.  The Court further notes that the applicant’s conviction was also based on the testimonies of under-cover agent I.I. In this respect the Court notes that I.I. made statements incriminating the applicant only at the\npre-trial stage. At her hearing before the first-instance court she only referred to the criminal activity carried out by the other accused. Although she did not make any statement involving the applicant in drug-trafficking, neither the judge nor the prosecutor had asked her additional questions to clarify the role played by the applicant in the offences (see paragraph 19 above). There is no evidence in the file that she had been heard again before the appellate courts.\n\n64.  Moreover, contrary to Government’s submissions (see paragraph 34 above) the testimonies of witnesses F.D. and I.I. were not supported by any factual evidence. Neither the investigating authorities nor the courts referred to any drugs found at the applicant’s home where allegedly the applicant carried out his illegal activity of storing and packing drugs. In this respect the Court notes that the domestic authorities had not made reference to any search at the applicant’s home.\n\n65.  As regards the statements given at the public hearing by P.A., the applicant’s co-accused (see paragraph 18 above), the Court points out that a higher degree of scrutiny may be required for assessing such statements, because the position in which accomplices find themselves while testifying is different from that of ordinary witnesses. They testify without being under oath, that is, without any affirmation of the truth of their statements which could render them punishable for perjury for willfully making untrue statements (see Vladimir Romanov v. Russia, no. 41461/02, § 102, 24 July 2008).\n\n66.  As regards the procedural measures taken to compensate for the lack of opportunity to cross-examine the absent witness at the trial, the Court observes that a confrontation had been held between the applicant and witness F.D. during the investigation (see paragraph 15 above). However, in the circumstances of the present case, the Court considers that this confrontation at an early stage of the proceedings was, of itself, insufficient to compensate for the lack of opportunity for the applicant to cross-examine this witness directly at his trial. Moreover, the applicant was not even offered the possibility, at the trial stage, to put his own questions to the witness indirectly. Eventually, although the applicant could give his own version of the events and cast doubt on the credibility of the absent witness’s statement, the trial court failed to actually assess its reliability (see paragraph 63 above). Therefore, this element has no counterbalancing weight either.\n\n67.  Having regard to the absence of a good reason for the\nnon-attendance of the absent witness, the insufficiency of additional incriminating evidence and of procedural safeguards capable of counterbalancing the absence of witness F.D. at the applicant’s trial, the Court finds that the criminal proceedings, looked at as a whole, were rendered unfair by the admission in evidence of the pretrial statement of absent witness F.D.\n\n68.  Accordingly, there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention.\n\nALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION\n\n69.  The applicant complained that he had been unlawfully detained for the period between 3 and 10 July 2007 even though his release had been ordered by a court on 3 July 2007. The applicant relied on Article 5 § 1 of the Convention, which in its relevant parts read as follows:\n\n“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:\n\n(a)  the lawful detention of a person after conviction by a competent court;\n\n(...)”.\n\nThe parties’ submissions\n\n70.  The Government submitted that the applicant had failed to exhaust domestic remedies as he had not availed himself of any of the avenues of redress at his disposal for the purpose of claiming compensation. They argued that domestic case-law provided adequate, effective and sufficient remedies which could have been used, such as a civil action for compensation.\n\n71.  The Government asserted that those remedies were available both in theory and in practice, and would have been accessible to the applicant. They relied on Articles 998-999 of the former Civil Code. They also contended that there was settled case-law confirming the domestic courts’ tendency to apply directly the relevant provisions of the Romanian Constitution as well as Article 5 of the Convention and the Court’s standards, in cases where a person had been unlawfully detained by the authorities.\n\n72.  The applicant contested the effectiveness of those remedies in his case given that the national case-law showed that a majority of such complaints were rejected as being inadmissible.\n\nThe Court’s assessment\n\n73.  The Court reiterates that the object of the rule on exhaustion of domestic remedies is to allow the national authorities to address allegations concerning a violation of a Convention right and, where appropriate, to afford redress before those allegations are submitted to the Court (see Azinas v. Cyprus [GC], no. 56679/00, § 38, ECHR 2004-III, and Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000-XI).\n\n74.  On the facts of the present case, the Court observes that the applicant did not lodge any complaint concerning his unlawful detention with any domestic authorities.\n\n75.  The Court further notes that the Government submitted examples of case-law from the domestic courts showing that actions seeking compensation for unlawful detention lodged by claimants in situations similar to that of the applicant had been allowed. Moreover, the Court has already found in the cases Dragomir (cited above, §§ 24-31) and Hutanu v. Romania ((dec.), no. 50858/09, §§ 26-28, 3 February 2015), that the interested parties had had at their disposal effective remedies to complain about their unlawful detention.\n\n76.  For all these reasons, the Court considers that the applicant should have complained to the authorities about his alleged unlawful detention.\n\nIt follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.\n\nOTHER ALLEGED VIOLATIONS OF THE CONVENTION\n\n77.  Lastly, the applicant complained under Article 3 of the Convention of an incident of ill-treatment on 14 July 2003 and under Article 8 of alleged restrictions on family visits and sending and receiving correspondence while he had been held in the Bucharest Police Inspectorate. The Court notes that these complaints deal with questions which could have been raised in the proceedings before the domestic courts. As the applicant has failed to do so, he has not exhausted all domestic remedies.\n\n78.  The applicant also raised several complaints under Article 5 of the Convention concerning his arrest and pre-trial detention. The Court notes that the applicant’s pre-trial detention ended with the adoption of the judgment of 4 October 2005 that is more than six months before the lodging of this application on 12 December 2007. These complaints were therefore introduced out of time.\n\nAPPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n79.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nDamage\n\n80.  The applicant claimed 20,000 euros (EUR) in respect of nonpecuniary damage.\n\n81.  The Government considered such amount as excessive and asked the Court to rule that the mere acknowledgment of a violation of the applicant’s rights represented in itself a just satisfaction.\n\n82.  Having regard to all the circumstances of the present case, the Court accepts that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 2,400 in respect of non-pecuniary damage, plus any tax that may be chargeable to him.\n\nCosts and expenses\n\n83.  The applicant did not submit any claims for the reimbursement of his costs and expenses.\n\nDefault interest\n\n84.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\nDeclares the complaints under Article 6 of the Convention admissible and the remainder of the application inadmissible;\n\nHolds that there has been no violation of Article 6 §§ 1 and § 3 (c) of the Convention;\n\nHolds that there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention;\n\nHolds\n\nthat the respondent State is to pay the applicant, within three months, EUR 2,400 (two thousand four hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;\n\nthat from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\nDismisses the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 23 July 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_545","text":"PROCEDURE\n\n1.  The case originated in an application (no. 58822/00) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mrs Nina Shevanova (“the applicant”), on 28 June 2000.\n\n2.  The applicant was represented before the Court by Mr G. Kotovs, a lawyer and member of Riga Municipal Council. The Latvian Government (“the Government”) were represented by their Agent, Mrs I. Reine.\n\n3.  The applicant alleged, in particular, that the decision of the Latvian authorities to deport her from Latvia violated her right to respect for her private and family life guaranteed by Article 8 of the Convention.\n\n4.  The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.\n\n5.  By a partial decision of 15 February 2001 the Court declared the application inadmissible with regard to the complaints of the applicant’s son, Mr Jevgeņijs Ševanovs.\n\n6.  By a decision of 28 February 2002 the Chamber declared the application partly admissible.\n\n7.  The applicant and the Government each filed written observations on the merits (Rule 59 § 1). The Chamber having decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine), the parties replied in writing to each other’s observations. On 12 May 2002 the applicant filed a claim for just satisfaction (Article 41 of the Convention). On 19 June 2002 the Government submitted their observations on that claim.\n\n8.  On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed First Section (Rule 52 § 1).\n\n9.  As the seat of the judge in respect of  was vacant, the Latvian Government, in a letter of 20 December 2004, appointed Mrs J. Briede as ad hoc judge in the present case (Article 27 § 2 of the Convention and Rule 29 § 1).\n\n10.  By letter of 3 February 2005 the Government informed the Court of further developments in the case and requested that the application be struck out of the Court’s list of cases in accordance with Article 37 § 1 (b) of the Convention. On 25 April 2005 the applicant submitted her observations on that letter. On 13 May 2005 the Government submitted their observations in reply.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n11.  The applicant is a Russian national who was born in Russia in 1948 and lives in Riga ().\n\nA.  Background to the case and proceedings concerning the applicant’s deportation\n\n12.  In 1970, at the age of twenty-two, the applicant settled in Latvian territory for work-related reasons. Between 1973 and 1980, the year of her divorce, she was married to a man resident in . In 1973 she gave birth to a son, Jevgeņijs Ševanovs, who has lived with her until the present day.\n\nIn 1981, having lost the Soviet passport issued to her in 1978, the applicant obtained a new passport. In 1989 she found the lost passport, but did not return it to the relevant authorities.\n\n13.  In August 1991  regained full independence. In December 1991 the Soviet Union, the State of which the applicant had hitherto been a national, broke up. The applicant therefore became stateless. In August 1992 her name was entered in the register of residents (Iedzīvotāju reģistrs) as a permanent resident. Her son was subsequently granted the status of “permanently resident non-citizen” of .\n\n14.  In 1994 a Latvian bridgebuilding firm offered the applicant a job as a crane operator in Dagestan and Ingushetia, regions of the Caucasus bordering on Chechnya and belonging to the . In view of the difficulties caused by tighter supervision in these regions by the Russian authorities on account of the troubles in Chechnya, the firm advised her to obtain Russian nationality and a formal registration of residence in  before signing the employment contract. In May 1994 the applicant consulted a broker who put a false stamp in her first Soviet passport, the one which had been found but not disclosed to the authorities, stating that the registration of her residence in Latvia had been cancelled (pieraksts, or dzīvesvietas reģistrācija in Latvian).\n\n15.  In June 1994 the applicant was registered as being resident in Shumanovo in the Kursk region of , at her brother’s address. In August 1994 she obtained Russian nationality. In 1995 and 1996 she travelled to , working there for two periods of 100 and 120 days respectively.\n\n16.  In March 1998 the applicant applied to the Interior Ministry’s Nationality and Migration Directorate (Iekšlietu ministrijas Pilsonības un migrācijas lietu pārvalde – “the Directorate”) for a passport based on the status of “permanently resident non-citizen”. In accordance with the regulations in force, she submitted alongside the application the second Soviet passport issued to her in 1981. On examining the file, the Directorate discovered that she had registered a second residence in  and had completed certain formalities on the basis of the old passport which had been mislaid and found again. Accordingly, by decision of 9 April 1998, the Directorate removed the applicant’s name from the register of residents. On the same day the head of the Directorate issued an order for the applicant’s deportation (izbraukšanas rīkojums), requesting her to leave Latvia for  by 19 June 1998. The deportation order was accompanied by a prohibition on re-entering  for five years. It was served on the applicant on 11 June 1998.\n\n17.  After appealing unsuccessfully against the deportation order to the head of the Directorate, the applicant lodged an application with the Riga City Central District Court seeking to have the order set aside. In her memorial she submitted that, as the false stamp in her passport had been put there without her knowledge and she had therefore been unaware of it, she should not have to bear the consequences. In addition, since the registration of her residence in Russia had been merely temporary, it could not affect her existing registration in . She further argued that there were no legislative or regulatory provisions in force prohibiting her from having addresses in two different countries. Accordingly, the applicant requested the court to set aside the order for her deportation and to instruct the Directorate to issue her with a permanent residence permit.\n\n18.  In a judgment delivered on 3 December 1998 following adversarial proceedings, the court rejected the request, finding that the deportation order had been lawful and well founded. As to the applicant’s request that she be issued with a residence permit, the court declared that part of the application inadmissible on the ground that she had not applied for a permit to the relevant authorities, nor had she lodged an administrative appeal before applying to the courts, as required by section 34 of the Aliens and Stateless Persons (Entry and Residence) Act (“the Aliens Act”).\n\n19.  On 13 July 1999 the Russian authorities cancelled the applicant’s residence registration in , at her request.\n\n20.  The applicant lodged an appeal with the  against the judgment of 3 December 1998. In a judgment delivered on 29 September 1999 following adversarial proceedings, the  dismissed the appeal on the ground that, as the applicant had been illegally resident in Latvia since her return from , her deportation was in accordance with section 38 of the Aliens Act. The  also upheld the District Court’s findings as to the inadmissibility of the request for a residence permit.\n\n21.  In a judgment of 28 December 1999 the Senate of the Supreme Court dismissed an appeal by the applicant on points of law, finding that the interference complained of had been lawful and proportionate. In particular, the Senate observed that, in the instant case, the applicant’s right to have two addresses or places of residence in two different countries had not been in dispute; the order for her deportation had been based solely on the fact that she had been resident in  without a residence permit.\n\n22.  With the delivery of the Senate’s judgment the order for the applicant’s deportation became enforceable.\n\n23.  In two letters sent on 21 January and 3 February 2000, the applicant and her son requested the head of the Directorate to rescind the deportation order and to issue the applicant with a permanent residence permit. In support of their request, they argued that they did not have family ties in any country other than  and that the expulsion of the applicant from Latvian territory, where they had lived together for twenty-six years, would constitute a serious infringement of their right to respect for their family life. They made explicit reference in that regard to Article 8 § 1 of the Convention and to similar provisions of the Latvian Constitution.\n\n24.  By letters dated 28 January and 15 February 2000 respectively, the head of the Directorate refused this request and reminded the applicant that she was required to leave  immediately or be forcibly expelled.\n\n25.  After attempting without success to challenge this refusal by means of an administrative appeal to the Interior Minister, Mrs Shevanova and her son lodged a fresh application with the Riga City Central District Court to have the deportation order set aside. By order of 3 March 2000 the court declared the application inadmissible. On 24 May 2000 the  upheld the order. An appeal on points of law by the applicant and her son was dismissed by an order of the Senate of the Supreme Court dated 29 November 2000.\n\n26.  On 12 February 2001 the applicant was arrested by the immigration police (Imigrācijas policija) and placed in a detention centre for illegal immigrants. On 21 February 2001 officials of the Directorate served a forcible expulsion decision on her (lēmums par piespiedu izraidīšanu no valsts).\n\n27.  On 26 February 2001 the applicant was admitted to hospital with acute hypertension. Consequently, on 28 February 2001, the head of the Directorate stayed execution of the forcible expulsion decision and requested the immigration police to formally order the applicant’s release from the detention centre. The deportation order of 9 April 1998 was also suspended at the same time.\n\n28.  As execution of the forcible expulsion decision had been stayed indefinitely, the applicant continued to reside illegally in .\n\nB.  Developments subsequent to the admissibility decision\n\n29.  On 7 January 2005 the head of the Directorate wrote a letter to the Government’s Agent in the following terms:\n\n“... [T]he ... Directorate ... has received your letter concerning the application lodged by Nina Shevanova with the European Court of Human Rights ... and requesting [us] to consider the possibility of issuing her with a permanent residence permit ... under section 24(2) of the Immigration Act. The reason you cite for your request is the existence of a real risk that a violation of Article 8 of the Convention might be found in this case. However, if Nina Shevanova were to be granted a sufficiently secure legal status in , the Latvian Government would be justified in requesting the  to dismiss the application.\n\n...\n\nI would like first of all to draw your attention to the fact that section 24(3) of the Immigration Act does not apply to the circumstances of the Shevanova case. The Directorate has therefore explored other possible solutions.\n\n...\n\nRegard being had ... to the relevant circumstances of the Shevanova case, and in particular the fact that Mrs Shevanova has lived and worked within Latvian territory for a long time – a fact which undoubtedly testifies to the existence of sufficiently strong private and social ties ... – the Directorate is prepared, once it has obtained the necessary documentation from Mrs Shevanova ..., to address an opinion to the Minister of the Interior proposing that she be issued with a temporary residence permit valid for five years, in accordance with section 23(3) of the Immigration Act...\n\n...\n\nUnder the terms of Council [of the European Union] Directive 2003/109/EC concerning the status of third-country nationals who are long-term residents, Member States are required to grant long-term resident status to third-country nationals who have resided legally and continuously within their territory for five years immediately prior to submission of the relevant application. Accordingly, on expiry of the period of validity of her temporary residence permit, Nina Shevanova would be entitled to apply for and obtain the status of permanent resident and to be issued with an EC residence permit. Remedying Mrs Shevanova’s situation in this way would be sufficient to put an end to any possible violation of her rights under Article 8 of the Convention.\n\nWith this aim in mind, the Directorate has already drawn up a letter inviting Mrs Shevanova to submit to it the documents required in order to apply for a residence permit. This letter will be sent to her in the next few days. It should be pointed out that, in accordance with section 61 of Regulation no. 213 ... on residence permits, [the person concerned] in such cases must submit a letter from a legal entity attesting to the necessity ... of his or her remaining in the . The Directorate notes in that connection that Mrs Shevanova will in all likelihood be unable to produce such a document. In any event, a positive ... outcome to the case can be achieved only if Mrs Shevanova herself displays an interest in such a solution.\n\nShould Mrs Shevanova herself fail to take steps towards implementing the solution proposed by the Latvian Government, [it should be borne in mind that] the European Court of Human Rights has already acknowledged that, where applicants knowingly decline to take the appropriate measures suggested by the authorities ..., they cannot claim to be victims of a violation of their right to respect for their private and family life... The reference to Article 8 of the Convention ..., made in Mrs Shevanova’s request, would therefore be without foundation.”\n\n30.  By Decree no. 75 of 2 February 2005, the Cabinet of Ministers instructed the Minister of the Interior to issue the applicant with a permanent residence permit “once the documents required to make such an application have been received” (Article 1 of the decree).\n\n31.  By letter of 24 February 2005 the Directorate explained to the applicant how she could regularise her stay by obtaining a permanent residence permit, and invited her to submit the documents required for that purpose under the relevant regulations. It is clear from the case file, however, that the applicant has to date not taken the steps indicated by the Directorate.\n\nII.  RELEVANT DOMESTIC LAW\n\nA.  General provisions\n\n32.  Latvian legislation on nationality and immigration distinguishes several categories of persons, each with a specific status.\n\n(a) Latvian citizens (Latvijas Republikas pilsoņi), whose legal status is governed by the Citizenship Act (Pilsonības likums);\n\n(b) “permanently resident non-citizens” (nepilsoņi) – that is, citizens of the former USSR who lost their Soviet citizenship following the break-up of the  in 1991, but have not subsequently obtained any other nationality – who are governed by the NonCitizens Act (see paragraph 33 below);\n\n(c) asylum-seekers and refugees, whose status is governed by the Asylum Act of 7 March 2002 (Patvēruma likums);\n\n(d) “stateless persons” (bezvalstnieki) in the narrow and specific sense of the term. Prior to 2 March 2004 their status was governed by the Status of Stateless Persons Act, read in conjunction with the Aliens Act (see paragraph 34 below) and, after 1 May 2003, with the Immigration Act (see paragraph 36 below). Since 2 March 2004 their status has been governed by the new Stateless Persons Act, also read in conjunction with the Immigration Act;\n\n(e) “aliens” in the broad sense of the term (ārzemnieki), a category which includes foreign nationals (ārvalstnieki) and stateless persons (bezvalstnieki) falling solely within the ambit of the Aliens Act (before 1 May 2003), and the Immigration Act (since that date).\n\nB.  “Permanently resident non-citizens”\n\n33.  Section 1(1) of the Act on the Status of Former USSR Citizens without Latvian or other Citizenship ((Likums “Par to bijušo PSRS pilsoņu statusu, kuriem nav Latvijas vai citas valsts pilsonības) reads as follows:\n\n[Version in force before 25 September 1998]: “This Act governs citizens of the former USSR resident in Latvia ..., who were resident within Latvian territory prior to 1 July 1992 and whose place of residence is registered there, regardless of the status of their housing, and who are not citizens of Latvia or any other State; it also governs the minor children of such persons who are not citizens of Latvia or any other State.”\n\n[Version in force since 25 September 1998]: “The persons governed by this Act – ‘non-citizens’ – shall be those citizens of the former USSR, and their children, who are resident in  ... and who satisfy all the following criteria:\n\n(1) on 1 July 1992 they were registered as being resident within the territory of Latvia, regardless of the status of their housing; or their last registered place of residence by 1 July 1992 was in the Republic of Latvia; or a court has established that before the above-mentioned date they had been resident within Latvian territory for not less than ten years;\n\n(2) they do not have Latvian citizenship;\n\n(3) they are not and have not been citizens of any other State. ...”\n\n...\n\nC.  Status of aliens generally\n\n34.  The relevant provisions of the Aliens and Stateless Persons (Entry and Residence) Act (Likums “Par ārvalstnieku un bezvalstnieku ieceļošanu un uzturēšanos Latvijas Republikā), in force prior to 1 May 2003, read as follows:\n\nSection 11\n\n“Any foreigner or stateless person shall be entitled to stay in the Republic of Latvia for more than three months [version in force since 25 May 1999: ‘more than ninety days in the course of one half of a calendar year’], provided that he or she has obtained a residence permit in accordance with the provisions of this Act. ...”\n\nSection 12\n\n(amended by the Act of 15 October 1998)\n\n“Aliens or stateless persons may be issued with...\n\n(1) a temporary residence permit;\n\n(2) a permanent residence permit. ...”\n\nSection 23(1)\n\n(added by the Act of 18 December 1996, in force since 21 January 1997)\n\n“Permanent residence permits may be obtained by aliens who, on 1 July 1992, were officially registered as being resident for an indefinite period within the Republic of Latvia if, at the time of applying for a permanent residence permit, they are officially registered as being resident within the  and are entered in the register of residents.\n\nCitizens of the former  who acquired the citizenship of another State before 1 September 1996 must apply for a permanent residence permit by 31 March 1997. Citizens of the former  who acquired the citizenship of another State after 1 September 1996 must apply within six months of the date on which they acquired the citizenship of that State. ...”\n\nSection 34\n\n“The person concerned may, within one month of notification of the decision to refuse a residence permit, appeal against the decision to the head of the Directorate, who shall examine the appeal within one month.\n\nThe Minister of the Interior may, by decree, set aside an unlawful decision by the Directorate or the head of the Directorate ordering a residence permit to be issued or refused.\n\nAn appeal may be lodged with the courts against the above-mentioned decision or decree by\n\n(1)   the person concerned if he or she is legally resident within the territory of the ;\n\n(2)   the person resident in  who invited the alien ... whose application for a residence permit has been refused, where the invitation was in connection with family reunification. ...”\n\nSection 35\n\n“No residence permit shall be issued to a person who\n\n...\n\n(5)  was deported from  during the five years preceding the application;\n\n(6) has knowingly supplied false information in order to obtain such a permit;\n\n(7) is in possession of false or invalid identity or immigration documents;\n\n...”\n\nSection 38\n\n“The head of the Directorate or of the regional office of the Directorate shall issue a deportation order...\n\n...\n\n(2) if the alien ... is in the country without a valid visa or residence permit; ...”\n\nSection 40\n\n“The individual concerned shall leave the  within seven days after the deportation order has been served on him or her, provided that no appeal is lodged against the order in accordance with this section.\n\nPersons in respect of whom a deportation order is issued may appeal against it within seven days to the head of the Directorate, who shall extend the residence permit pending consideration of the appeal.\n\nAn appeal against the decision of the head of the Directorate shall lie to the court within whose territorial jurisdiction the Directorate’s headquarters are situated, within seven days after the decision has been served.”\n\n35.  At the material time the practical arrangements concerning registration of residence were governed by Regulation no. 76 of 12 February 1993 on registration of residence for residents of the Republic of Latvia and cancellation thereof (Iedzīvotāju pierakstīšanas un izrakstīšanas noteikumi Latvijas Republikā). Section 4 required any existing registration of residence to be cancelled in order to obtain a new registration in .\n\n36.  Since 1 May 2003 the Aliens Act cited above is no longer in force; it was repealed and replaced by the Immigration Act (Imigrācijas likums) of 31 October 2002. The relevant provisions of the new Act read as follows:\n\nSection 1\n\n“The present Act uses the following definitions:\n\n1.  an alien [ārzemnieks] – a person who is neither a Latvian citizen nor a “[permanently resident] non-citizen” of ; ...”\n\nSection 23(3)\n\n“In cases not covered by the present Act, the temporary residence permit shall be granted by the Minister of the Interior, where the relevant decision accords with the provisions of international law or the interests of the , or on humanitarian grounds.”\n\nSection 24(2)\n\n“In cases not covered by the present Act, the permanent residence permit shall be granted by the Minister of the Interior, where it accords with the interests of the State.”\n\nSection 33 (2)\n\n“... When the time-limit set down [for submitting an application for a residence permit] has passed, the head of the Directorate may authorise [the person concerned] to submit the [relevant] documents, where such authorisation accords with the interests of the Latvian State, or on grounds of force majeure or humanitarian grounds.”\n\nSection 47\n\n“1. Within ten days of establishment of the facts detailed in the first and second subparagraphs of the present paragraph, the [relevant] official of the Directorate shall take a forcible expulsion decision ..., where:\n\n(1) the alien has not left the Republic of Latvia within seven days of receiving the deportation order ..., and has not appealed against the order to the head of the Directorate..., or the head of the Directorate has dismissed the appeal;\n\n...\n\n2.  In the cases referred to in the first subparagraph of paragraph 1 of this section, no appeal shall lie against the forcible expulsion decision...\n\n...\n\n4.  In the event of a change of circumstances, the head of the Directorate may set aside a forcible expulsion decision.”\n\nD.  General administrative law\n\n37.  Section 360(4) of the Administrative Procedure Act (Administratīvā procesa likums), in force since 1 February 2004, provides:\n\n“An administrative act may not be enforced if more than three years have elapsed since it became enforceable. In calculating the limitation period, any period during which implementation of the administrative act was suspended shall be deducted.”\n\n38. At the time of the facts reported by the applicant, the relevant provisions of the Regulatory Offences Code (Administratīvo pārkāpumu kodekss) read as follows:\n\nArticle 187, fourth paragraph\n\n“... Use of a passport which has been replaced by a new passport shall be punishable by a fine of up to 100 lati [approximately 150 euros].”\n\nArticle 190(3)\n\n“Failure to provide the offices of the Latvian Nationality and Immigration Department ... with the information to be entered in the register of residents within the time allowed shall be punishable by a fine of between 10 and 25 lati [approximately 38 euros].”\n\nTHE LAW\n\nI.  THE GOVERNMENT’S PRELIMINARY OBJECTION\n\nA.  The parties’ submissions\n\n39.  By letter of 3 February 2005 the Government informed the Court of the practical measures taken by the authorities with a view to regularising the applicant’s stay in  (see paragraphs 29-31 above). They explained that a decision had been taken at the Cabinet of Ministers’ meeting of 2 February 2005 to remedy the applicant’s complaint directly by offering her a permanent residence permit. In view of these measures, the Government considered that the matter giving rise to the case had been resolved and the application should be struck out of the Court’s list of cases in accordance with Article 37 § 1 (b) of the Convention. In that connection, the Government referred in particular to the cases of Pančenko v.  (dec.), no. 40772/98, 28 October 1999, and Mikheyeva v. Latvia (dec.), no. 50029/99, 12 September 2002, in which the Court had held that the regularisation of the applicants’ stay sufficed for them no longer to be able to claim to be victims of a violation of Article 8 of the Convention.\n\n40.  The applicant observed that she did not have all the documents required in order to obtain a permanent residence permit; for instance, she had no document attesting to the lawfulness of her income. She was prepared in principle to “agree to the Government’s proposal”, but solely on condition that the Government provided redress for the damage she had sustained as a result of the alleged violation, and reimbursed the costs and expenses she had incurred in the proceedings before the Court. The applicant claimed an overall sum of 14, 626.86 lati (LVL) in that regard.\n\n41.  In their observations in reply, the Government submitted that the applicant’s stay could not be regularised unilaterally; Mrs Shevanova must actually come forward and demonstrate her wish to obtain the residence permit granted to her. To date, however, the applicant had not taken the steps indicated by the Directorate. As for providing proof of lawful income, the Government furnished a copy of a letter from the head of the Directorate dated 12 May 2005, according to which a written guarantee from the applicant’s son, who was legally resident in , would suffice for that purpose. As to the sum claimed by the applicant, the Government considered it to be unjustified.\n\nB.  The Court’s assessment\n\n42.  The Court considers that in the instant case the objection raised by the Government is closely linked to the question whether the applicant has effectively lost her status of “victim” within the meaning of Article 34 of the Convention as a result of developments since the admissibility decision in the present case. It is true that, in its judgment in Pisano v. Italy ([GC] (striking out), no. 36732/97, 24 October 2002), the Court examined this question separately from the question of the application of Article 37 § 1 (b), ruling that the applicant could continue to claim the status of “victim”, while going on to decide that the matter had been resolved (loc. cit., §§ 3839). However, the present application concerns the removal of a foreign national and her illegal residence within the national territory; in cases of this type, where the applicant’s stay was regularised during the course of the Court’s examination of the application, the Court has generally considered whether it should continue its examination under Article 34 of the Convention by reference precisely to the notion of “victim” (see, for example, the Pančenko and Mikheyeva decisions, cited above; see also Maaouia v. France (dec.), no. 39652/98, ECHR 1999II; Aristimuño Mendizabal v. France, (dec.), no. 51431/99, 21 June 2005; and Yildiz v. Germany (dec.), no. 40932/02, 13 October 2005). The Court considers that in the instant case the Government’s objection should be examined under Articles 34 and 37 taken together, as a finding that the applicant has lost her “victim” status within the meaning of Article 34 of the Convention would prompt the Court to conclude that the matter has been resolved within the meaning of Article 37 § 1 (b).\n\n43.  The Court points out first of all that, in order to conclude in the instant case that the matter has been resolved within the meaning of Article 37 § 1 (b) and that there is therefore no longer any objective justification for the applicant to pursue her application, it is necessary to examine, firstly, whether the circumstances complained of directly by the applicant still obtain and, secondly, whether the effects of a possible violation of the Convention on account of those circumstances have also been redressed (see Pisano, cited above, § 42). Furthermore, in relation to Article 34, the Court has always held that, as a general rule, a decision or measure favourable to the applicant is not sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the alleged breach of the Convention (see, among many other authorities, Amuur v. France, judgment of 25 June 1996, Reports of Judgments and Decisions 1996III, p. 846, § 36; Dalban v.  [GC], no. 28114/95, § 44, ECHR 1999VI; Labita v.  [GC], no. 26772/95, § 142, ECHR 2000IV; and Guisset v. , no. 33933/96, § 66, ECHR 2000IX).\n\n44.  Where the person concerned complains in particular of his or her deportation or illegal status within the country, the minimum steps required are firstly, the setting-aside of the deportation order and, secondly, the issuing or recognition of a residence permit (see the Mikheyeva decision, cited above). However, it is also necessary to ascertain in each case whether these measures are sufficient to fully remedy the complaint in question.\n\n45.  In the instant case the Court observes that, until 1998, the applicant was legally resident in . In April 1998 her name was removed from the register of residents and she was served with a deportation order. Although the order was never enforced, its existence indisputably placed the applicant in a very uncertain and insecure position in . Only in January and February 2005, that is, after the present application had been declared admissible by the Court, did the Latvian authorities take practical steps aimed at regularising the applicant’s stay. It is worth noting that almost seven years elapsed between the removal of the applicant’s name from the register and the adoption of the above-mentioned measures.\n\n46.  The Court notes that none of the relevant Latvian authorities explicitly acknowledged the existence of a violation of Article 8 of the Convention. It observes, however, that the Directorate’s letter of 7 January 2005 referred to the Court’s decision on the admissibility of the present application. It therefore accepts that the fact that the applicant’s complaint to the Court was thus taken into consideration could be regarded as implicit acknowledgement of the existence of an issue under Article 8.\n\n47.  That said, and regard being had to all the relevant circumstances of the case, the Court considers that the measures taken by the authorities do not constitute adequate redress for the complaint in question. Admittedly, the Government’s explanations – which have not been disputed by the applicant – make clear that the regularisation arrangements proposed would allow her to live permanently and without hindrance in . However, that solution does not erase the long period of insecurity and legal uncertainty which she has undergone in . In sum, while it is true that some redress has been afforded, it is no more than partial (see the Aristimuño Mendizabal decision, cited above, and, mutatis mutandis, Chevrol v. France, no. 49636/99, § 42, ECHR 2003III).\n\n48.  The Court further considers that this case differs from the cases of Maaouia, Pančenko, Mikheyeva and Yildiz, cited above, and from the case of Mehemi v.  (no. 2) (no. 53470/99, ECHR 2003IV), in which the granting of a residence permit was found to constitute redress. In Maaouia, Mehemi (no. 2) and Yildiz, the alleged violation of Article 8 stemmed from the removal or deportation of the applicants. In Pančenko and Mikheyeva, the complaints were similar to that of Mrs Shevanova, but the length of the applicants’ illegal residence in the country was appreciably shorter (almost three years in the case of Mrs Pančenko and approximately six years in the case of Mrs Mikheyeva). In the instant case, the alleged violation stems from the insecure and uncertain situation in which the applicant lived for around seven years. In the circumstances, the Court finds that the adverse consequences for the applicant resulting from the circumstances complained of have not been wholly erased.\n\n49.  It follows that, since the authorities have not afforded full redress for the violation alleged by the applicant, the latter can still claim to be a “victim” within the meaning of Article 34 of the Convention. The matter has therefore not yet been resolved and the Court sees no grounds for applying Article 37 § 1 (b) of the Convention.\n\n50.  Accordingly, the Court dismisses the Government’s objection.\n\nII.  ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION\n\n51.  The applicant submitted that the decision to deport her from  constituted unjustified and disproportionate interference with the exercise of her right to respect for her private and family life, as guaranteed by Article 8 of the Convention. The relevant passages of Article 8 provide:\n\n“1.  Everyone has the right to respect for his private and family life...\n\n2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”\n\nA.  The parties’ submissions\n\n1.  The Government\n\n52.  The Government denied that there had been interference with the applicant’s rights under Article 8. They made the point first of all that, in guaranteeing the right to respect for family life, Article 8 presupposed the existence of a “family”. That concept encompassed on the one hand the relationship established by marriage and on the other the relationship between parents and their children. In particular, the latter relationship did not necessarily attract the protection of Article 8 without evidence of further elements of dependency. In the Government’s view, the applicant had not provided evidence of a specific bond of dependency between herself and her adult son. The Government further submitted that, in immigration matters, Article 8 did not entail any general obligation on the part of the State to allow family reunification within its territory.\n\n53.  In the instant case the Government emphasised that, when applying for the status of “permanently resident non-citizen”, the applicant had deliberately concealed the fact that she had obtained Russian citizenship four years previously. The relevant provision of the Non-Citizens Act (see paragraph 33 above), however, was couched in clear terms such that the applicant could not have been unaware that the Act did not apply to persons who had citizenship of another State. The Government further endorsed the findings of the Senate of the Supreme Court to the effect that the right of individuals to have two addresses in two different countries had not been at issue in the case, as the only offence of which the applicant had been accused was of having resided in Latvia without a valid visa or residence permit.\n\n54.  The Government stated in that connection that the main function of the register of residents introduced in 1991 was to identify those persons who were legally and permanently resident in . Being formally registered in  was a prerequisite for non-nationals wishing to be entered in the register. (The system was a legacy from the Soviet era, when it had been known as propiska). Under this system, only a single residence could be registered, whether in  or elsewhere. Hence, a registration of residence in another country rendered the person’s registration in  invalid and vice versa.\n\n55.  The Government also observed that, as a Russian citizen, the applicant could have applied to the Latvian authorities for a permanent residence permit under section 23(1) of the Aliens Act, but had not done so. The provision in question had been designed specifically to enable citizens of the former USSR who had acquired citizenship of another State to reside without hindrance in . Instead of entering an application and having her stay regularised in accordance with the law, the applicant had chosen to flout the law, mislead the Latvian authorities and remain in  illegally.\n\n56.  Even assuming that the measure complained of could be said to amount to interference with the applicant’s rights under Article 8 of the Convention, the Government were satisfied that the said interference fulfilled the requirements of the second paragraph of that Article. Firstly, it had been “in accordance with the law”, having been based on section 38 of the Aliens Act, which was drafted in a sufficiently clear and foreseeable manner and authorised the Directorate or its head to issue a deportation order in respect of a nonnational illegally resident within Latvian territory.\n\n57.  Secondly, the interference had pursued at least two “legitimate aims” within the meaning of Article 8 § 2 of the Convention, namely the prevention of crime and the prevention of disorder. The Government observed that the primary function of the register of residents was to identify those persons who were resident in  on a legal and permanent basis and towards whom the State might have certain obligations, for instance in the social-security sphere. In such circumstances, the State and society had an interest in ensuring that illegal residents did not benefit from rights and guarantees to which they had no entitlement. Moreover, the objectives of the impugned measure had been linked to the overall objectives of immigration legislation, which included the protection of national security, individual citizens and the democratic system.\n\n58.  Lastly, the Government replied in the affirmative to the question whether the impugned measure had been “necessary in a democratic society” in order to achieve the aim pursued. In their view, the expulsion of an alien for contravening the immigration legislation was a measure generally accepted in the domestic law of the Contracting States. Equally, in the present case, the interference at issue had been examined at every level of the courts, which had subjected the deportation order to careful scrutiny and found it to be lawful. The Government stressed that the applicant was a Russian national, had been born in Russia, was of Russian ethnic origin, spoke Russian as her mother tongue and had a brother living in . She therefore had sufficiently strong ties with that country. The Government expressed doubts, on the other hand, as to the degree to which the applicant was integrated in Latvian society.\n\n59.  Finally, the Government submitted that the deportation order had not been followed by the applicant’s immediate removal from Latvian territory as soon as it became enforceable; a period of time had elapsed before the head of the Directorate had ordered her forcible expulsion. Moreover, the measure complained of had never been enforced, and the applicant continued to live in  to the present day.\n\n2.  The applicant\n\n60.  The applicant submitted that the decision to deport her from Latvia undoubtedly amounted to interference with her private and family life since, should the deportation order be executed, she would be separated from the son with whom she lived in . She stressed that  had been her sole country of residence for over thirty-five years and that, until 2000, she had been legally registered as resident in the country. With regard to her work in  in 1995 and 1996, she said that the two periods she had spent working there had lasted only 100 and 120 days respectively. As to her Russian citizenship and her official registration of a place of residence in Russia, she argued that these had been essential in order to avoid potential problems in an unstable region close to . In other words, it had never been her intention either to leave Latvia or to settle in .\n\n61.  The applicant further expressed doubts as to the “lawfulness” of the interference. Firstly, in her view, section 38 of the Aliens Act was to be read in conjunction with section 49, which stated that international treaties took precedence over domestic legislation. The Latvian authorities should therefore take account of Article 8 of the Convention, which guaranteed the applicant’s right to respect for her private and family life and constituted a reason for not deporting her. Secondly, the applicant challenged the Government’s argument that her registration of a residence in Russia had automatically cancelled out – or “rendered invalid” – her residence registration in . On the contrary, her residence permit had been valid until 9 April 1998, when the Directorate had removed her name from the register of residents and issued an order for her deportation; hence, her residence in  had been perfectly legal until then. Lastly, the applicant contested the view that the effects of the provisions in question were foreseeable. In her opinion, it was not obvious who was or was not covered by the NonCitizens Act, a fact demonstrated by the numerous sets of judicial proceedings which had been brought on that very subject.\n\n62.  Finally, as to the alleged breaches of Latvian immigration law, the applicant conceded that she had omitted to apply for a permanent residence permit in accordance with the law. However, she considered that this fact could not serve as a basis for withdrawing her permanent-resident status in  and deporting her. Neither did that omission on her part prevent her from applying for a residence permit after the deadline set by the abovementioned provision. In support of that argument the applicant provided copies of two judgments by the Senate of the Supreme Court in two separate cases concerning citizens of the former USSR who had left  temporarily and returned subsequently. In both cases the Senate had found that the persons concerned did not automatically and unconditionally lose the right to remain in .\n\n63.  The applicant also acknowledged that she had concealed her Russian citizenship when applying for the status of “permanently resident noncitizen”. She submitted in that connection that, since she was not a lawyer, she had not realised that only persons who had no nationality could obtain that status. Even assuming that she had concealed the information deliberately, the decision to expel her constituted in any event a measure manifestly disproportionate to any legitimate aim pursued. The applicant argued in particular that, under Latvian law, the action in question was merely a regulatory offence not punishable under criminal law and attracting a fine of LVL 100 (approximately 150 euros (EUR)). There was therefore no foundation for the Government’s assertion that her actions had been sufficiently dangerous to justify her removal from . In the circumstances, the applicant took the view that the interference in question could not be said to be necessary and justified in a democratic society.\n\nB.  The Court’s assessment\n\n1.  Whether there was interference\n\n64.  The Court reiterates at the outset that the Convention does not guarantee the right of an alien to enter or to reside in a particular country and that Contracting States have the right, as a matter of well-established international law, to control the entry, residence and expulsion of aliens (see, among many other authorities, El Boujaïdi v. France, judgment of 26 September 1997, Reports 1997-VI, p. 1992, § 39; Baghli v. France, no. 34374/97, § 45, ECHR 1999-VIII; and Boultif v. Switzerland, no. 54273/00, § 39, ECHR 2001-IX).\n\n65.  Nevertheless, the decisions taken by States in the immigration sphere can in some cases amount to interference with the right to respect for private and family life secured by Article 8 § 1 of the Convention, in particular where the persons concerned possess strong personal or family ties in the host country which are liable to be seriously affected by an expulsion order. Such interference is in breach of Article 8 unless it is “in accordance with the law”, pursues one or more legitimate aims under the second paragraph of that Article, and is “necessary in a democratic society” in order to achieve them (see, for example, Moustaquim v. Belgium, judgment of 18 February 1991, Series A no. 193, p. 18, § 36; Dalia v. France, judgment of 19 February 1998, Reports 1998-I, p. 91, § 52; and Amrollahi v. Denmark, no. 56811/00, § 33, 11 July 2002).\n\n66.  In the instant case the Court notes that the applicant arrived in  in 1970, that is, at the age of twenty-two. The evidence in the case file shows that, since 1970, she has always lived within Latvian territory, and that her work-related absences in 1995 and 1996 are the longest periods she has spent outside the country. Moreover, for seven years of her time in  she was married, and she gave birth to her son there. In fact, it is not in dispute that, during her stay within Latvian territory, she has forged the personal, social and economic ties that make up the private life of every human being. The Court cannot but find, therefore, that the decision to deport the applicant from Latvia constituted an interference with her “private life” within the meaning of Article 8 of the Convention (see, mutatis mutandis, Slivenko v.  [GC], no. 48321/99, § 96, ECHR 2003X).\n\n67.  On the other hand, the Court is of the opinion that the applicant cannot rely on the existence of “family life” in relation to her adult son. The Court has consistently held that the relationship between adult children and their parents, which does not form part of the core family, does not necessarily attract the protection of Article 8 without evidence of further elements of dependency involving more than the normal affective ties (see, in particular, Kwakye-Nti and Dufie v. the Netherlands (dec.), no. 31519/96, 7 November 2000). In the present case, the Court has already found that there was no specific bond of this type between the applicant and her son (see Shevanova and Ševanovs v.  (dec.), no. 58822/00, 15 February 2001). Nevertheless, it will take into consideration the ties between the applicant and her adult son under the head of the applicant’s “private” life (see, mutatis mutandis, the Slivenko judgment, cited above, § 97; see also Kolosovskiy v. Latvia (dec.), no. 50183/99, 29 January 2004, and Ivanov v. Latvia (dec.), no. 55933/00, 25 March 2004).\n\n68.  Lastly, the Court observes that the deportation order served on the applicant on 11 June 1998 has never been enforced. It further notes that section 360(4) of the Administrative Procedure Act stipulates that an administrative act may not be enforced if more than three years have elapsed since it became enforceable (see paragraph 37 above). Accordingly, the applicant is no longer under any real threat of removal from . Moreover, in its Decree no. 75 of 2 February 2005, the Cabinet of Ministers instructed the Minister of the Interior to issue the applicant with a permanent residence permit “once the documents required to make such an application have been received”. The Court observes that this solution would allow the applicant to remain in  on a legal and permanent basis; that in turn would enable her to lead a normal social life and maintain normal ties with her son and any other persons close to her. The applicant could therefore exercise freely her right to respect for her private and family life as interpreted in the Court’s case-law.\n\n69.  However, the Court reiterates that Article 8, like any other provision of the Convention or the Protocols thereto, must be interpreted in such a way as to guarantee not rights that are theoretical or illusory but rights that are practical and effective (see, mutatis mutandis, Artico v. Italy, judgment of 13 May 1980, Series A no. 37, pp. 15-16, § 33, and Soering v. the United Kingdom, judgment of 7 July 1989, Series A no. 161, p. 34, § 87). Furthermore, while the chief object of Article 8, which deals with the right to respect for one’s private and family life, is to protect the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this negative undertaking, there may be positive obligations inherent in effective respect for private or family life (see, for example, Gül v. Switzerland, judgment of 19 February 1996, Reports 1996-I, pp. 174175, § 38; Ignaccolo-Zenide v. Romania, no. 31679/96, § 94, ECHR 2000I; and Mehemi v. France (no. 2), no. 53470/99, § 45, ECHR 2003IV). In other words, it is not enough for the host State to refrain from deporting the person concerned; it must also, by means of positive measures if necessary, afford him or her the opportunity to exercise the rights in question without interference. As the Court has observed above, all the measures taken by the Government do not wipe out the long period of uncertainty and insecurity undergone by the applicant in .\n\n70.  In sum, the fact that the applicant has not been deported from  and that she can now regularise her stay there does not alter the Court’s reasoning as to the existence of interference with the applicant’s private life.\n\n2.  Whether the interference was justified\n\n71.  It remains to be determined whether the interference which the Court has found to have occurred was compatible with the second paragraph of Article 8 of the Convention, that is, whether it was “in accordance with the law”, pursued one or more of the legitimate aims listed in that paragraph and was “necessary in a democratic society” in order to achieve them.\n\n72.  With regard first of all to the lawfulness of the interference, the Court reiterates that the words “in accordance with the law” within the meaning of Article 8 § 2 of the Convention mean first and foremost that the impugned measure must have a basis in domestic law. However, the existence of a legal basis is not sufficient: the law in question must also be accessible to the person concerned and be formulated with sufficient precision to enable him or her – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. A law which confers a measure of discretion is not in itself incompatible with this requirement, provided that the scope of any such discretion and the manner of its exercise are defined with sufficient precision, having regard to the legitimate aim in question, to give the individual adequate protection against arbitrariness. The level of precision required depends, however, on the sphere concerned: in relation to rights guaranteed by Article 8 of the Convention, the law must be couched in clear terms in order to indicate to all concerned in what circumstances and under what conditions the public authorities are entitled to interfere with these rights (see, among many other authorities, Lavents v. Latvia, no. 58442/00, § 135, 28 November 2002).\n\n73.  In the instant case the Court notes that the relevant domestic authority applied section 38 of the Aliens Act, in force at the material time, which allowed the head of the Directorate to issue a deportation order in respect of an alien residing within Latvian territory without a valid visa or residence permit. Section 35 of the same Act, meanwhile, stated that no residence permit would be issued to persons who had been deported from  in the previous five years or who had knowingly provided false information with a view to obtaining a residence permit. In the light of the principles outlined above, the Court considers that these provisions were couched in sufficiently clear terms for anyone concerned to foresee, with a reasonable degree of certainty, the likely legal consequences of the conduct contemplated therein (see, for example, Eriksson v. Sweden, judgment of 22 June 1989, Series A no. 156, p. 24, § 59, and Vogt v. Germany, judgment of 26 September 1995, Series A no. 323, p. 25, § 48). The same is true of section 1(1) of the Non-Citizens Act, which makes very clear that the Act applies only to persons “who are not citizens of  or any other State”. The interference was therefore “in accordance with the law”.\n\n74.  The Court further considers that the right of the State to control the entry and residence of non-nationals within its territory presupposes that it may take dissuasive measures against persons who have broken the law on immigration. Consequently, the decision to deport the applicant pursued at least one of the aims cited by the Government, namely that of preventing disorder.\n\n75.  It remains to be established whether the impugned measure was “necessary in a democratic society”, that is to say, whether it was proportionate to the legitimate aim pursued. In that connection the Court notes that the removal of the applicant’s name from the register of residents and the order for her deportation were prompted by her own dishonest conduct: having found the Soviet passport which she had mislaid eight years previously and which had been replaced by a new identity document, the applicant omitted to return it to the relevant authorities. Being in possession of two passports, she performed a number of fraudulent actions, having a false stamp placed in the first passport, which had been officially reported as no longer valid, and using that passport to obtain a residence registration in  and Russian citizenship. She also concealed the fact of her Russian citizenship in her dealings with the immigration authorities, leading them to believe that her legal status remained unchanged. The Court observes in particular that, as a Russian citizen, the applicant could have regularised her stay in  by applying for a residence permit under section 23(1) of the Aliens Act, but did not do so. On the contrary, instead of taking this lawful approach she chose to act in a fraudulent manner which she herself concedes to have been illegal.\n\n76.  As the Court stated above, the sovereign right of a State to control the entry and residence of non-nationals within its territory implies of necessity that it may take dissuasive measures against persons who act in breach of the applicable provisions in the matter; without that possibility, the right would be merely illusory. Expulsion of the person concerned from the country would seem to be the most logical penalty, in view of the specific nature of the rights in question. In many cases, sentencing the offender to a prison term or payment of a fine and not deporting him or her would be tantamount to saying that the sentence imposed dispensed the person concerned from the obligation to comply with the law. Nevertheless, even in a situation of this kind, the person’s expulsion may be disproportionate for the purposes of Article 8 § 2 of the Convention, in particular where the individual concerned has strong personal or family ties within the country.\n\n77.  The Court reiterates that most of the similar applications it has examined to date under Article 8 of the Convention concerned cases in which the alien deported or about to be deported had committed crimes or serious offences (see, among other authorities, the Moustaquim, El Boujaïdi, Dalia and Baghli judgments, cited above; see also Beldjoudi v. France, judgment of 26 March 1992, Series A no. 234A; Nasri v. France, judgment of 13 July 1995, Series A no. 320B; Boughanemi v. France, judgment of 24 April 1996, Reports 1996II; Bouchelkia v. France, judgment of 29 January 1997, Reports 1997I; Mehemi v. France, judgment of 26 September 1997, Reports 1997VI; Boujlifa v. France, judgment of 21 October 1997, Reports 1997VI; and Ezzouhdi v. , no. 47160/99, 13 February 2001). In some of these cases, the Court found that there had been a violation of Article 8 of the Convention notwithstanding the seriousness of the applicants’ criminal convictions. In the present case, on the other hand, the actions of which the applicant was accused did not constitute a criminal offence in the strict sense, but merely a regulatory offence attracting a relatively small fine – which, moreover, was never enforced.\n\n78.  In sum, and having weighed up on the one hand the seriousness of the actions of which the applicant was accused and, on the other, the severity of the measure taken against her, the Court concludes that the Latvian authorities exceeded the margin of appreciation left to the Contracting States in this sphere and did not strike a fair balance between the legitimate aim of preventing disorder and the applicant’s interest in having her right to respect for her private life protected. The Court is therefore unable to find that the interference complained of was “necessary in a democratic society”.\n\nAccordingly, there has been a violation of Article 8 of the Convention.\n\nIII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n79.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Pecuniary damage\n\n80.  The applicant submitted that, owing to her detention “in February and March 2001”, she had not been paid her full salary; during the two months in question, she had received only LVL 32 whereas, in 2002, her average monthly salary had been LVL 129.28. Consequently, the Government should repay her the difference between the first amount and a sum double the second amount, giving a total of LVL 226.56. In addition, between 27 February and 5 March 2001, she had been in hospital; her hospital stay had cost LVL 10.30. Finally, she had had to buy medicines for fifteen months at a cost of approximately LVL 20 per month, making a total of LVL 300 (however, the applicant did not produce any documents to substantiate this amount). Hence, the overall sum claimed by the applicant in respect of pecuniary damage totalled LVL 536.86 (approximately EUR 812).\n\n81.  The Government disputed the existence of a causal link between the alleged violation and the amounts claimed by the applicant. Firstly, they challenged the applicant’s assertion of a partial loss of earnings: the applicant had left the detention centre for illegal immigrants on 28 February 2001 and had been in hospital until 5 March 2001. However, after the latter date she had been able to work, and the supposed loss of earnings for the month of March could not possibly be connected to the deportation proceedings against her. The same applied to the other two amounts claimed. Referring to the applicant’s medical file, the Government argued that, while her heart condition had certainly become worse during that period, it had existed previously. Lastly, with regard to the medicines the applicant claimed to have purchased, the Government stressed that no evidence had been produced demonstrating, for instance, that they had in fact been purchased or for what length of time the applicant had had to take them.\n\n82.  The Court considers that the applicant has not demonstrated with sufficient certainty the existence of a direct causal link between the alleged pecuniary damage and the violation (see Van Geyseghem v.  [GC], no. 26103/95, § 40, ECHR 1999I, and Nikolova v.  [GC], no. 31195/96, § 73, ECHR 1999II). Accordingly, it dismisses the applicant’s claims under this head.\n\nB.  Non-pecuniary damage\n\n83.  The applicant claimed LVL 10,000 (approximately EUR 15,000) in compensation for the anxiety she had suffered for almost four years, particularly on account of the threat of deportation she had faced throughout that time. Her arrest and detention in February 2001 had further aggravated her psychological state: moreover, her detention had constituted a serious infringement of Article 5 of the Convention. Producing a medical certificate in support of her argument, the applicant asserted that her state of health had deteriorated as a result of the psychological trauma she had undergone in detention.\n\n84.  The Government considered the sum claimed by the applicant to be excessive. Firstly, they pointed out that the application related only to the alleged violation of Article 8 of the Convention; the applicant had relied on Article 5 only in her claim for just satisfaction. Secondly, the Government maintained that the anxiety suffered by the applicant had resulted from her own conduct rather than from the measures taken in the case by the Latvian authorities. Thirdly, they pointed out that the order for Mrs Shevanova’s deportation had never been enforced, that she continued to reside in  and that she could regularise her stay at any time, as had been made clear to her. In the circumstances, the Government considered that the finding of a violation would constitute in itself sufficient redress for any non-pecuniary damage the applicant might have sustained; in support of that argument, they cited several judgments of the Court and several decisions by the Latvian courts.\n\n85.  The Court considers that the applicant sustained a certain degree of non-pecuniary damage on account of her illegal status within Latvian territory, giving rise to the finding of a violation of Article 8 of the Convention. Ruling on an equitable basis as required by Article 41, the Court awards the applicant EUR 5,000 under this head.\n\nC.  Costs and expenses\n\n86.  The applicant claimed a sum of LVL 1,525.45 (approximately EUR 2,300) for costs and expenses, including:\n\n(a)  LVL 1,420 for the work carried out by the non-governmental organisation Latvijas Cilvēktiesību komiteja (the Latvian Human Rights Committee): that amount, set out in an overall invoice issued on 26 April 2002, was broken down as follows:\n\n(i)  LVL 350 for the drafting of complaints and applications to the Latvian administrative authorities (70 hours’ work at an hourly rate of LVL 5);\n\n(ii)  LVL 250 for representing the applicant before the Latvian courts and other authorities in  (10 hours’ work at an hourly rate of LVL 25);\n\n(iii)  LVL 300 for preparation of the application (60 hours’ work at an hourly rate of LVL 5) and LVL 60 for the translation of the documents in the case file to accompany the application;\n\n(iv)  LVL 250 for the correspondence with the Registry of the Court after the application had been lodged (50 hours’ work at an hourly rate of LVL 5);\n\n(v)  LVL 210 for office expenses (telephone, fax, Internet and so forth);\n\n(b)  LVL 150.45 for other expenses (including the legal costs incurred by the applicant during the second set of proceedings seeking to have the deportation order set aside (see paragraph 25 above) and for the translation into Russian of the Court’s partial decision on the admissibility of the application).\n\n87.  The Government challenged the sums claimed by the applicant. In particular, they considered that there were no grounds for her request for reimbursement of the costs incurred during the second set of proceedings before the Latvian courts, as the effective aim of those proceedings had been to challenge a final decision. Hence, the proceedings in question had been extraordinary and were not to be taken into consideration for the purposes of exhaustion of domestic remedies. Similarly, in its partial decision of 15 February 2001, the Court had declared only one of the applicant’s complaints admissible – the complaint under Article 8 of the Convention – and had rejected the remainder. In the Government’s view, that fact should be taken into account in calculating the amount to be reimbursed under Article 41 of the Convention.\n\n88.  The Court reiterates that, in order to be reimbursed, costs must relate to the violation or violations found and must be reasonable as to quantum. In addition, Rule 60 § 2 of the Rules of Court provides that itemised particulars must be submitted of all claims made under Article 41 of the Convention, together with the relevant supporting documents or vouchers, failing which the Court may reject the claim in whole or in part (see, for example, Lavents, cited above, § 154). Equally, the Court may award the injured party payment not only of the costs and expenses incurred in the proceedings before it, but also those incurred before the domestic courts to prevent or rectify a violation found by the Court (see Rotaru v. Romania [GC], no. 28341/95, § 86, ECHR 2000-V).\n\n89.  The Court notes that some confusion surrounds the documents substantiating the legal assistance provided to the applicant. It observes at the outset that none of the documents in the file provides evidence of the Latvian Human Rights Committee having participated in the proceedings before it. However, the content of some of the documents, and in particular a legal representation contract dated 6 June 2000, shows that the applicant was represented by Mr G. Kotovs, working for the said association. As to the expenses set out in the invoice of 26 April 2002, the Court notes that they are described in very general terms, without the cost of the individual legal services being specified. In any event, the sum claimed by the applicant – EUR 2,300 – appears somewhat excessive given the nature and legal complexity of the case. In these circumstances, and making its assessment on an equitable basis, the Court considers it reasonable to award the applicant the sum of EUR 1,000 to cover all heads of costs taken together. To this amount is to be added any value-added tax that may be chargeable (see Lavents, cited above, loc. cit.).\n\nD.  Default interest\n\n90.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT\n\n1.  Dismisses by six votes to one the Government’s preliminary objection;\n\n2.  Holds by six votes to one that there has been a violation of Article 8 of the Convention;\n\n3.  Holds unanimously\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Latvian lati at the rate applicable at the date of settlement:\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n4.  Dismisses unanimously the remainder of the applicant’s claim for just satisfaction.\n\nDone in French, and notified in writing on 15 June 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.\n\nIn accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:\n\n(a)  partly concurring opinion of Mr Spielmann;\n\n(b)  dissenting opinion of Mrs Briede.\n\n1.  I share the opinion of the majority in finding a violation of Article 8 of the Convention under the heading of “private life”. However, I do not share the majority’s view that the applicant cannot rely on the existence of “family life” between herself and her adult son on the ground that the relationship between adult children and their parents, which does not form part of the core family, does not necessarily attract the protection of Article 8 without evidence of further elements of dependency involving more than the normal affective ties (see paragraph 67 of the judgment).\n\n2.  It is true that this very restrictive interpretation of the notion of family life is in line – in the specific sphere of the entry, residence and expulsion of non-nationals – with the case-law established in Slivenko (see Slivenko v.  [GC], no. 48321/99, § 97, ECHR 2003-X). In addition – and I am keenly aware of this – the Court found, in its partial decision of 15 February 2001 on the admissibility of the present case, that the ties between the applicant and her son did not go beyond the normal affective ties. The Court found as follows (translation):\n\n“In the instant case the Court notes that the second applicant was twenty-five years old when the deportation order was served on his mother, and that he has not claimed the existence of any specific ties of dependency, whether financial or otherwise, between himself and his mother. It may well be that, since they have lived together continuously, the second applicant would prefer to maintain his links with his mother in . However, as the principles articulated in the Court’s case-law make clear, Article 8 does not guarantee a right to choose the most suitable place to develop family life (see, mutatis mutandis, Ahmut v. the Netherlands, judgment of 28 November 1996, Reports of Judgments and Decisions 1996VI, § 71). In the instant case the second applicant has not claimed the existence of any obstacle to his visiting his mother in Russia or having her visit him in Latvia on the basis of a visa, and the Court does not believe that he could develop family life with her only if she were to remain resident in .\n\nIn the circumstances, and in so far as this complaint was raised by the second applicant, it should be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.”\n\n3.  Allowing for this, and still bearing in mind the Slivenko judgment of 9 October 2003, which I am obliged to follow, I cannot in all conscience fail to register my disagreement with this unduly restrictive approach to the notion of family life.\n\n4.  The Court has traditionally – in a wide variety of spheres, moreover – adopted a broad construction of the notion of “family life”. As far back as the Marckx case, it emphasised that “‘family life’, within the meaning of Article 8, includes at least the ties between near relatives, for instance those between grandparents and grandchildren, since such relatives may play a considerable part in family life”. The Court went on to conclude that “‘respect’ for a family life so understood implies an obligation for the State to act in a manner calculated to allow these ties to develop normally” (see Marckx v. Belgium, judgment of 13 June 1979, Series A no. 31, p. 21, § 45; see also Scozzari and Giunta v.  [GC], nos. 39221/98 and 41963/98, § 221, ECHR 2000VIII).\n\n5.  By way of example I would cite the L. judgment of 1 June 2004, in which the Court accepted that family life could also exist between a child and a parent who had never lived together, if other factors demonstrated that the relationship had sufficient constancy to create de facto family ties (see L. v. the , no. 45582/99, § 36, ECHR 2004IV). The Court has even gone so far as to say that “family life” can encompass de facto relationships between persons with no ties of kinship (see X, Y and Z v. the United Kingdom, judgment of 22 April 1997, Reports 1997II, pp. 629-630, §§ 36-37). What counts is whether there are “legal or factual elements indicating the existence of a close personal relationship” (see L., cited above, § 37).\n\n6.  In the instant case the respondent Government, in the context of possible regularisation of the applicant’s stay, stated that a written guarantee from the applicant’s son would suffice as proof of the applicant’s lawful income (see paragraph 41 of the judgment). They thereby acknowledged, at least implicitly, the possibility of the mother being dependent on her son. The Court, in its partial decision on admissibility of 15 February 2001, noted that the applicant’s son had not claimed the existence of any ties of dependency with his mother. It added that, in its view, the applicant’s remaining in  was not the only means by which her son could develop family life with her. While acknowledging that “it may well be that ... the second applicant would prefer to maintain his ties with his mother in ”, the Court, on the basis of all these factual elements, decided not to recognise the existence of “family life”.\n\n7.  I do not subscribe to this point of view.\n\n8.  Giving precedence to the criterion of dependency to the detriment of that of normal affective ties strikes me as a very artificial approach to determining the existence of “family life”. It seems inconceivable to me that so little importance can be attached to the affective ties between a mother and her son that they can fall outside the scope of “family life”.\n\n9.  This line of case-law which, admittedly, appears to be confined to the sphere of expulsions, greatly impoverishes the notion of “family life”.\n\n1.  I regret that I am unable to subscribe to the findings and the reasoning of the majority in this case. It is my firm conviction that, given the steps taken by the Latvian authorities in 2005 to regularise the applicant’s stay, the latter can no longer claim to be a “victim” of the alleged violation of Article 8 of the Convention. I shall set out below the reasons why I have reached this conclusion.\n\n2.  Let me first make two preliminary remarks. Firstly, to my mind, the case as it stood at the time of adoption of the judgment bears a close resemblance to the case of Sisojeva and Others v. Latvia (no. 60654/00, judgment of 16 June 2005), in which Judge Vajić and I expressed a joint dissenting opinion. I will therefore refer to that opinion, while adding some further comments.\n\n3.  Secondly, although in the instant case – unlike Sisojeva – this issue does not appear to be central, I should like nonetheless to reiterate that Article 8 of the Convention cannot be construed as guaranteeing as such the right to a particular type of residence permit. Where the domestic legislation provides for several different types, the Court must analyse the legal and practical implications of issuing a particular permit. If it allows the holder to reside within the territory of the host country and to exercise freely there the rights secured by Article 8 § 1 of the Convention, the granting of such a permit represents in principle a sufficient measure to meet the requirements of that provision (see, mutatis mutandis, Mehemi v. France (no. 2), no. 53470/99, § 55, ECHR 2003-IV). In such cases, the Court is not competent to rule on whether the individual concerned should be granted one particular legal status rather than another, that choice being a matter for the domestic authorities alone.\n\n4.  Accordingly, I should like to move on directly to the main issue at stake in this case, namely the definition of the status of “victim” within the meaning of Article 34 of the Convention. Admittedly, in dismissing the Government’s preliminary objection, the majority was simply following well-established case-law; however, in my view, that case-law is erroneous.\n\n5.  In paragraphs 43-44 of the judgment, for instance, the majority states:\n\n“43.  ... Furthermore, in relation to Article 34, the Court has always held that, as a general rule, a decision or measure favourable to the applicant is not sufficient to deprive him of his status as a ‘victim’ unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the alleged breach of the Convention...\n\n44.  Where the person concerned complains in particular of his or her deportation or illegal status within the country, the minimum steps required are, firstly, the settingaside of the deportation order and, secondly, the issuing or recognition of a residence permit... However, it is also necessary to ascertain in each case whether these measures are sufficient to fully remedy the complaint in question.”\n\n6.  Furthermore, in its recent decision in the case of Fjodorova and Others v. Latvia (no. 69405/01, 6 April 2006), the Court held:\n\n“The Court reiterates that an applicant who has obtained adequate redress at domestic level for the alleged violations of the Convention may no longer claim the status of ‘victim’... That rule applies even if the applicant obtains satisfaction after the proceedings before the Court have commenced, in accordance with the subsidiary nature of the Convention system of safeguards. As a general rule, where the applicant complains of his deportation and, consequently, of his irregular status within the country, the quashing of the deportation order against him and the granting of a residence permit are sufficient for him no longer to be able to claim to be a ‘victim’...”\n\n7.  The Court’s usual approach can thus be summarised as follows:\n\n(1) as a general rule, in order for the applicant to lose his or her status as “victim”, the Government must meet both of the following conditions: (a) it must acknowledge the existence of a violation of the Convention and (b) it must afford redress for it;\n\n(2) in some specific cases, providing effective redress for the complaint is sufficient to deprive the applicant of his or her “victim” status. Cases concerning deportation and extradition therefore constitute a special category, one in which regularisation of the applicant’s stay is in principle sufficient, without the respondent Government needing also to “acknowledge” the existence of a violation.\n\n8.  Leaving aside the somewhat inconsistent nature of this approach (as is clear in the Fjodorova decision, the first of these conditions is not always mentioned, with the result that it is not easy to discern where and when acknowledgement is actually a requirement), I should like to recall the background to it. The rule referred to above appears for the first time in Eckle v. Germany (judgment of 15 July 1982, Series A no. 51, pp. 3031, §§ 66-67):\n\n“66.  ... [M]itigation of sentence and discontinuance of prosecution granted on account of the excessive length of proceedings do not in principle deprive the individual concerned of his status as a victim ...; they are to be taken into consideration solely for the purpose of assessing the extent of the damage he has allegedly suffered...\n\nThe Court does not exclude that this general rule might be subject to an exception when the national authorities have acknowledged either expressly or in substance, and then afforded redress for, the breach of the Convention... In such circumstances, to duplicate the domestic process with proceedings before the Commission and the Court would appear hardly compatible with the subsidiary character of the machinery of protection established by the Convention...\n\n67.  ... Accordingly, it has to be ascertained whether, as the Government submitted, the German courts held that Article 6 par. 1 had been breached and, if so, whether they granted redress.”\n\n9.  Allow me to remind you that, in the Eckle case, the applicant was complaining of the length of criminal proceedings against him. However, the above-mentioned formula – “first acknowledge, then afford redress” – appeared so effective that the Court began to use it in all kinds of cases examined by it. For example: detention of a person pending his deportation (Amuur v. France, judgment of 25 June 1996, Reports 1996III, § 36); freedom of expression (Dalban v.  [GC], no. 28114/95, § 44, ECHR 1999VI); right to a fair hearing before the Conseil d’Etat (Chevrol v. France, no. 49636/99, § 36, ECHR 2003III); right to peaceful enjoyment of one’s possessions (Brumărescu v.  [GC], no. 28342/95, § 50, ECHR 1999VII); electoral rights (Ždanoka v. Latvia [GC], no. 58278/00, § 69, ECHR 2006- ...), and so forth.\n\n10.  I do not dispute the fact that, in some cases, application of this formula was justified. What concerns me is that, by dint of excessive recourse to this principle, the Court has ultimately lost sight of its exceptional nature. In other words, it has, little by little, made into a general rule something which ought not to be, while at the same time turning the general principle into an exception.\n\n11.  It should be borne in mind that, in the Eckle case, the Court was faced with an exceptional situation, in which the applicant was complaining of the length of two sets of criminal proceedings which had lasted approximately seventeen and ten years respectively (see Eckle, cited above, § 79). As the Court observed at the very beginning of its reasoning, “such a delay is undoubtedly inordinate and is, as a general rule, to be regarded as exceeding the ‘reasonable time’ referred to in Article 6 § 1” (ibid., § 80); this, then, was a case in which it was clear from the outset that a violation would be found. There are certainly many other cases of this type – relating, for instance, to allegations of torture or ill-treatment – in which the finding of a serious violation of the Convention is more or less a foregone conclusion (see, among many other authorities, Selmouni v. France [GC], no. 25803/94, ECHR 1999V). In such cases it is not unreasonable to assert that, in view of the nature and seriousness of the alleged violations, the Government should first acknowledge that the person’s fundamental rights were violated. However, I would stress that this category of cases is still the exception and represents a minority; the present case certainly does not fall into this category.\n\n12.  Of course, some might counter this argument by saying that the Court arrived at the reasoning in question as a result of its dynamic and changing interpretation of the Convention. Nevertheless, as I see it, the interpretation of legal rules, no matter how dynamic it is, must not produce an absurd or illogical outcome; the formula in question, however, leads us to precisely such a logical dead-end. It is clear that the status of “victim” within the meaning of Article 34 of the Convention (locus standi) is quite separate from the issue of whether or not the rights conferred by the Convention have been violated. That being the case, how can the Court require the State to acknowledge the existence of a violation of the Convention if it is not yet sure of it itself?\n\n13.  In my opinion, the present case offered an excellent opportunity to remedy this situation; unfortunately, the majority has not taken that opportunity. Be that as it may, I remain convinced that, as a general rule, the domestic authorities deprive the applicant of his or her victim status when they effectively bring to an end the situation complained of and afford adequate redress. Only in exceptional cases (a category to which this case does not belong) do the seriousness and flagrant nature of the alleged violation require that the State first acknowledge that there has been a violation.\n\n14.  One last point: I should like to register my disagreement with paragraph 47 (and also paragraph 48) of the judgment. In dismissing the Government’s preliminary objection, the majority referred to the decision in Aristimuño Mendizabal v. France (no. 51431/99, 21 June 2005; see also the judgment of 17 January 2006). In my view, the Aristimuño Mendizabal case is fundamentally different from the present case. Mrs Aristimuño Mendizabal complained of a situation of uncertainty created by the fact that, despite the existence of Community legislation entitling her to reside in  permanently, she had been obliged to seek temporary regularisation of her stay every three months over a fourteen-year period. Hence, I see no resemblance, however remote, to the situation of Mrs Shevanova, and I do not believe that the case cited above can serve as a precedent in the instant case.\n\n15.  In the light of the above I would have taken the view, unlike the majority, that, given the measures proposed to the applicant in order to regularise her stay, she could no longer claim to be a “victim” of a violation of Article 8 of the Convention. For that reason I would have concluded that the matter giving rise to the present case had been resolved and that the application should be struck out of the Court’s list of cases in accordance with Article 37 § 1 (b) of the Convention. Such a solution would also have been fair from the applicant’s point of view since, had the Court struck out the application, it would have been able to reimburse her costs and expenses under Rule 44 § 3 of the Rules of Court (see Pisano v. Italy [GC] (striking out), no. 36732/97, §§ 5156, 24 October 2002). That is why I voted with the majority on the question of just satisfaction, while specifying that my agreement related only to the amount of one thousand euros awarded by the Court for costs and expenses.\n\n15.  In the light of the above I would have taken the view, unlike the majority, that, given the measures proposed to the applicant in order to regularise her stay, she could no longer claim to be a “victim” of a violation of Article 8 of the Convention. For that reason I would have concluded that the matter giving rise to the present case had been resolved and that the application should be struck out of the Court’s list of cases in accordance with Article 37 § 1 (b) of the Convention. Such a solution would also have been fair from the applicant’s point of view since, had the Court struck out the application, it would have been able to reimburse her costs and expenses under Rule 44 § 3 of the Rules of Court (see Pisano v. Italy [GC] (striking out), no. 36732/97, §§ 5156, 24 October 2002). That is why I voted with the majority on the question of just satisfaction, while specifying that my agreement related only to the amount of one thousand euros awarded by the Court for costs and expenses.","title":""}
{"_id":"passage_679","text":"PROCEDURE\n\n1.  The case originated in an application (no. 497/09) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a German national, Mr Ulrich Koch (“the applicant”), on 22 December 2008.\n\n2.  The applicant was represented by Mr D. Koch, a lawyer practising in Braunschweig. The German Government (“the Government”) were represented by their Agent, Ms A. Wittling-Vogel of the Federal Ministry of Justice, and by Mr C. Walter, Professor of international law.\n\n3.  The applicant alleged that the refusal to grant his late wife authorisation to acquire a lethal dose of drugs allowing her to end her life violated both her and his own right to respect for private and family life. He further complained about the domestic courts’ refusal to examine the merits of his complaint.\n\n4.  A Chamber of the Fifth Section communicated the application on 11 September 2009. A hearing took place in public in the Human Rights Building, , on 23 November 2010 (Rule 59 § 3).\n\nThere appeared before the Court:\n\nThe Court heard addresses by Mr Koch and Mr Walter as well as their replies to questions put to them.\n\n5.  By a decision of 31 May 2011 the Court declared the application admissible.\n\n6.  The applicant and the Government each filed further written observations on the merits (Rule 59 § 1). In addition, third party comments were received from Dignitas, an association based in Switzerland aimed at securing to its members a life and death in line with human dignity, represented by Mr L. A. Minelli, and from Aktion Lebensrecht für alle e. V. (AlfA), an association based in Germany dedicated to the protection of the sanctity of human life from conception to natural death, represented by the Alliance Defense Fund, the latter being represented by Mr R. Kiska, counsel, all of whom had been given leave to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3).\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n7.  The applicant was born in 1943 and lives in Braunschweig.\n\n8.  The applicant and his late wife B.K., born in 1950, had lived together since 1978 and married in 1980. From 2002 onwards, B.K. had been suffering from total sensorimotor quadriplegia after falling in front of her doorstep. She was almost completely paralysed and needed artificial ventilation and constant care and assistance from nursing staff. She further suffered from spasms. According to the medical assessment, she had a life expectancy of at least fifteen more years. She wished to end what was, in her view, an undignified life by committing suicide with the applicant’s help. The couple contacted the Swiss assisted-suicide organisation, Dignitas, for assistance.\n\n9.  In November 2004 B.K. requested the Federal Institute for Drugs and Medical Devices (Bundesinstitut für Arzneimittel und Medizinprodukte – “the Federal Institute”) to grant her authorisation to obtain 15 grams of pentobarbital of sodium, a lethal dose of medication that would enable her to commit suicide at her home in Braunschweig.\n\n10.  On 16 December 2004 the Federal Institute refused to grant her that authorisation, relying on section 5(1) (6) of the German Narcotics Act (Betäubungsmittelgesetz – see “Relevant domestic law” below). It found that her wish to commit suicide was diametrically opposed to the purpose of the Narcotics Act, which was aimed at securing the necessary medical care for the individuals concerned. Authorisation could therefore only be granted for life-supporting or life-sustaining purposes and not for the purpose of helping a person to end his or her life.\n\n11.  On 14 January 2005 the applicant and his wife lodged an administrative appeal with the Federal Institute.\n\n12.  In February 2005 the applicant and his wife, who had to be transported lying on her back on a stretcher, travelled for approximately ten hours over a distance of more than 700 kilometres from Braunschweig to Zurich in Switzerland. On 12 February 2005 B.K. committed suicide there, assisted by Dignitas.\n\n13.  On 3 March 2005 the Federal Institute confirmed its earlier decision. In addition, it expressed doubts as to whether a State-approved right of an individual to commit suicide could be derived from Article 8. In any event, Article 8 could not be interpreted as imposing an obligation on the State to facilitate the act of suicide with narcotic drugs by granting authorisation to acquire a lethal dose of medication. A right to commit suicide would be inconsistent with the higher-ranking principle enshrined in Article 2 § 2 of the German Basic Law (see “Relevant domestic law” below), which laid down the “comprehensive” obligation of the State to protect life, inter alia by refusing to grant authorisation to obtain a lethal dose of a drug for the purpose of committing suicide.\n\n14.  Finally, the Federal Institute “informed” the applicant that he had no standing to lodge an administrative appeal as he lacked the need for legal protection (Rechtsschutzbedürfnis). In particular, the applicant could not improve his own position through an appeal, as his legal position had not been the subject of the administrative proceedings.\n\n15.  On 4 April 2005 the applicant lodged an action for a declaration that the decision of the Federal Institute had been unlawful (Fortsetzungsfeststellungsklage) and that it thus had a duty to grant his wife the requested authorisation.\n\n16.  On 21 February 2006 the  (Verwaltungsgericht) declared the applicant’s action inadmissible. It found that he lacked standing to lodge the action as he could not claim to be the victim of a violation of his own rights. The Federal Institute’s refusal to grant his wife authorisation to obtain a lethal dose of medication did not interfere with his right to protection of his marriage and family life as guaranteed by Article 6 § 1 of the Basic Law (Grundgesetz – see “Relevant domestic law” below). Any other interpretation would lead to the assumption that each infringement of the rights of one spouse would automatically also be an infringement of the rights of the other spouse. That assumption would water down the separate legal personality of each spouse, which was clearly not the purpose of Article 6 § 1 of the Basic Law. Furthermore, the contested decisions did not interfere with his own right to respect for family life under Article 8 of the Convention, as they did not affect the way in which the applicant and his wife lived together.\n\n17.  Moreover, the applicant could not rely on his wife’s rights, as the right to be granted authorisation to obtain the requested dose of drugs was of an eminently personal and non-transferable nature. Even assuming that there had been a violation of his late wife’s human dignity by the Federal Institute’s refusal, according to the Federal Constitutional Court’s case-law (see “Relevant domestic law and practice” below) the refusal could not produce effects beyond her life as it did not contain elements of disparagement capable of impairing the applicant’s wife’s image in the eyes of posterity.\n\n18.  Finally, the court held that in any event the refusal of the Federal Institute to grant the applicant’s wife the requested authorisation had been lawful and in compliance with Article 8 of the Convention. In particular, any interference with her right to respect for private life was necessary in a democratic society for the protection of health and life and thus also for the protection of the rights of others. Referring to the Court’s judgment in the case of Pretty (see Pretty v. the United Kingdom, no. 2346/02, § 74, ECHR 2002III), the court held that the domestic authorities had a wide margin of appreciation to assess the danger and risks of abuse. Therefore, the fact that the provisions of the Narcotics Act permitted exceptions only for what was medically needed could not be considered disproportionate.\n\n19.  On 22 June 2007 the North-Rhine Westphalia Administrative Court of Appeal (Oberverwaltungsgericht) dismissed the applicant’s request for leave to appeal. It found, in particular, that the right to protection of marriage and family life under Article 6 § 1 of the Basic Law and Article 8 § 1 of the Convention did not confer a right to have the spouses’ marriage terminated by the suicide of one of them. Moreover, it considered that the decisions of the Federal Institute had not interfered with the applicant’s right to respect for private life within the meaning of Article 8 § 1 of the Convention. Even if the right to die had existed, its very personal character would not allow third persons to infer from Article 6 § 1 of the Basic Law or Article 8 § 1 of the Convention a right to facilitate another person’s suicide. Finally, the applicant could not rely on Article 13 as he had no arguable claim to be the victim of a violation of a right guaranteed under the Convention.\n\n20.  On 4 November 2008 the  (Bundesverfassungsgericht, no. 1 BvR 1832/07) declared a constitutional complaint lodged by the applicant inadmissible as he could not rely on a posthumous right of his wife to human dignity. It held that the posthumous protection of human dignity extended only to violations of the general right to respect, which was intrinsic to all human beings, and of the moral, personal and social value which a person had acquired throughout his or her own life. However, such violations were not at stake in respect of the applicant’s wife. Furthermore, the applicant was not entitled to lodge a constitutional complaint as legal successor to his deceased wife. In particular, it was not possible to lodge a constitutional complaint to assert another person’s human dignity or other non-transferable rights. A legal successor could only introduce a constitutional complaint in cases, which primarily involved pecuniary claims and where the complaint was aimed at pursuing the successor’s own interests.\n\nII.  RELEVANT DOMESTIC LAW AND PRACTICE\n\nA.  The Basic Law\n\n21.  Article 6 § 1 of the Basic Law provides that marriage and family enjoy the special protection of the State.\n\nUnder Article 2 § 2 of the Basic Law every person has the right to life and physical integrity.\n\nThe  has accepted the posthumous protection of human dignity in cases where the image of the deceased person had been impaired in the eyes of posterity by ostracism, defamation, mockery or other forms of disparagement (see decision of 5 April 2001, no. 1 BvR 932/94).\n\nB.  The Narcotics Act\n\n22.  The Narcotics Act governs the control of narcotic drugs. Three annexes to the Act enumerate the substances, which are considered as drugs, including pentobarbital of sodium in Annex III.\n\nAccording to section 4 (1) no. 3 (a) of the Narcotics Act it is permissible to obtain the substances listed in Annex III if they are prescribed by a medical practitioner. In all other cases, section 3(1)(1) of the Act provides that the cultivation, manufacture, import, export, acquisition, trade and sale of drugs are subject to authorisation from the Federal Institute for Drugs and Medical Devices.\n\nIn accordance with section 5(1)(6) of the Act, no such authorisation can be granted if the nature and purpose of the proposed use of the drug contravenes the purposes of the Narcotics Act, namely, to secure the necessary medical care of the population, to eliminate drug abuse and to prevent drug addiction.\n\nDoctors may only prescribe pentobarbital of sodium if the use thereof on or in the human body is justified (section 13 (1)(1) of the Narcotics Act).\n\nC.  Provisions governing doctors’ duties at the end of a patient’s life\n\n1.  Criminal responsibility\n\n23.  Section 216 of the Criminal Code reads as follows:\n\nKilling at the request of the victim; mercy killing\n\n“(1) If a person is induced to kill by the express and earnest request of the victim the penalty shall be imprisonment from six months to five years.\n\n(2) Attempts shall be punishable”\n\nCommitting suicide autonomously is exempt from punishment under German criminal law. It follows that the act of assisting an autonomous suicide does not fall within the ambit of section 216 of the Criminal Code and is exempt from punishment. However, a person can be held criminally responsible under the Narcotics Act for having provided a lethal drug to an individual wishing to end his or her life.\n\nAccording to the case-law of the Federal Court of Justice (compare judgment of 13 September 1994, 1 StR 357/94) the discontinuation of a lifeprolonging treatment of a terminally ill patient with the patient’s consent does not engage criminal responsibility. This applies irrespective of the fact that the interruption of the treatment has to be effected by actively stopping and switching off the medical device (Federal Court of Justice, judgment of 25 June 2010, 2 StR 454/09).\n\n2.  Professional rules for doctors\n\n24.  The professional codes of conduct are drawn up by the medical associations under the supervision of the health authorities. The codes are largely similar to the Model Professional Code for German Doctors, section 16 of which provides as follows:\n\n(Assisting the dying)\n\n“(1) Doctors may – prioritising the will of the patient – refrain from life-prolonging measures and limit their activities to the mitigation of symptoms only if postponement of an inevitable death would merely constitute an unacceptable prolongation of suffering for the dying person.\n\n(2) Doctors may not actively curtail the life of the dying person. They may not put their own interests, or the interests of third parties, above the well-being of the patient.”\n\nContraventions against the Professional Code of Conduct are sanctioned by disciplinary measures culminating in a withdrawal of the licence to practise medicine.\n\nIn connection with the demand for doctor-assisted suicide, the 112th German Medical Assembly of May 2009 resolved that doctors should provide assistance in and during the process of dying, but should not help patients to die, as the involvement of a doctor in suicide would contravene medical ethics.\n\nIII.  COUNCIL OF EUROPE DOCUMENTS\n\n25.  Recommendation no. 1418 (1999) of the Council of Europe, insofar as relevant, reads as follows:\n\n“9. The assembly therefore recommends that the Committee of Ministers encourage the member states of the Council of Europe to respect and protect the dignity of terminally ill and dying persons in all respects:\n\na. by recognising and protecting a terminally ill or dying person’s rights to comprehensive palliative care, while taking the necessary measures:\n\n(...)\n\nb. by protecting the terminally ill or dying person’s right to self-determination, while taking the necessary measures:\n\n(...)\n\niii. to ensure that no terminally ill or dying person is treated against his or her will while ensuring that he or she is neither influenced nor pressured by another person. Furthermore, safeguards are to be envisaged to ensure that their wishes are not formed under economic pressure;\n\niv. to ensure that a currently incapacitated terminally ill or dying person’s advance directive or living will refusing special medical treatments is observed...\n\nv. to ensure that – notwithstanding the physician’s ultimate responsibility – the expressed wishes of a terminally ill or dying person with regards to particular forms of treatment are taken into account, provided they do not violate human dignity;\n\nvi. to ensure that in situations where an advance directive of living will does not exist, the patient’s right to life is not infringed upon. A catalogue of treatments which under no conditions may be withheld or withdrawn is to be defined.\n\nc. by upholding the prohibition against intentionally taking the life of terminally ill or dying person’s while:\n\n(i) recognising that the right to life, especially with regard to a terminally ill or dying person, is guaranteed by the member states, in accordance with Article 2 of the European Convention on Human Rights which states that “no one shall be deprived of his life intentionally”;\n\n(ii) recognising that a terminally ill or dying person’s wish to die never constitutes any legal claim to die at the hand of another person;\n\n(iii) recognising that a terminally ill or dying person’s wish to die cannot of itself constitute a legal justification to carry out actions intended to bring about death.”\n\nIV.  COMPARATIVE LAW\n\n26.  Comparative research in respect of forty-two Council of Europe Member States shows that in thirty-six countries (Albania, Andorra, Austria, Azerbaijan, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, France, Georgia, Greece, Hungary, Ireland, Latvia, Lithuania, the Former Yugoslav Republic of Macedonia, Malta, Moldova, Monaco, Montenegro, Norway, Poland, Portugal, Romania, Russia, San Marino, Spain, Serbia, Slovakia, Slovenia, Turkey, Ukraine and the United Kingdom) any form of assistance to suicide is strictly prohibited and criminalised by law. In Sweden and , assistance to suicide is not a criminal offence; however, Estonian medical practitioners are not entitled to prescribe a drug in order to facilitate suicide. Conversely, only four member States (Switzerland, Belgium, the Netherlands and ) allow medical practitioners to prescribe lethal drugs, subject to specific safeguards (compare Haas v. Switzerland, no. 31322/07, §§ 30-31 and 55, 20 January 2011).\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF THE APPLICANT’S RIGHTS UNDER ARTICLE 8 OF THE CONVENTION\n\n27.  The applicant complained that the domestic courts’ refusal to examine the merits of his complaint about the Federal Institute’s refusal to authorise his wife to acquire a lethal dose of pentobarbital of sodium had infringed his right to respect for private and family life under Article 8 of the Convention, which provides:\n\n“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.\n\n2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”\n\nA.  Whether there had been an interference with the applicant’s rights under Article 8\n\n1.   Submissions by the Government\n\n28.  According to the Government, there had not been any interference with the applicant’s rights under Article 8 of the Convention. The Government considered that the applicant could not claim to be a victim of a violation of his Convention rights within the meaning of Article 34 of the Convention. They submitted that the applicant himself was not the subject of the State measure complained of; neither could he qualify as an “indirect victim”.\n\n29.  The Government did not dispute the fact that the applicant had been emotionally affected by his wife’s suicide and the surrounding circumstances. It was true that the Court had accepted that under very specific circumstances serious violations of the Convention rights guaranteed in Articles 2 and 3 might give rise to additional violations of close relatives in view of the emotional distress inflicted upon them. However, there was no indication that, in terms of degree and manner, the applicant’s suffering went beyond the burden that was inevitable when a spouse faced obstacles in organising his or her suicide.\n\n30.  In contrast to cases in which the victim was prevented by State action from lodging an application, the applicant’s wife had been in a position to lodge a complaint with the Court herself even after the alleged violation of her Convention right. The fact that she had ended her life of her own accord before lodging an application could not result in an extension of the entitlement to lodge an application, having particular regard to the fact that she had not availed herself of any possibility to accelerate the proceedings, for example by requesting interim measures.\n\n31.  The Government further considered that the applicant could not plead that a decision on the application was in the public interest, because the Court had already clarified the relevant issues regarding Article 8 of the Convention in its Pretty judgment (cited above), and Article 37 § 1 of the Convention was not applicable to a case in which the immediate victim of a measure taken by the State had died before lodging an application with the Court.\n\n32.  According to the Government, Article 8 of the Convention was not applicable in the instant case. They considered that the instant case had to be distinguished from the Pretty case in that the applicant’s wife had not sought protection from State interference with the realisation of her wish to end her life, but had sought to oblige the State to facilitate the acquisition of a specific drug so that she could take her life in the manner she desired. Such a duty would be diametrically opposed to the values of the Convention, and especially to the State’s duty under Article 2 to protect life.\n\n33.  They pointed out that the Court, in the Pretty case (cited above, § 67), was not prepared explicitly to spell out that Article 8 encompassed a right of every person to decide on the end of his or her life and to receive assistance if necessary. The same held true for the Haas case (cited above, § 61), in which the Court refused to derive a positive obligation from Article 8 to facilitate suicide in dignity. It thus remained unclear whether B.K. had a substantial right to assistance in order to end her life in dignity under Article 8.\n\n34.  Neither was there any interference with a procedural right derived from Article 8. According to the Government, the Court had accepted procedural guarantees relating to family life only in cases where the existence of a substantive right under Article 8 was not in doubt. The procedural guarantees inherent in Article 8 were devised to avert the risk that the conduct of the proceedings as such predetermined their outcome. Conversely, in the instant case, the outcome of the proceedings had not been predetermined by the conduct of the proceedings, but by B.K.’s autonomous decision to end her life. It would be fruitless to derive an additional procedural protection from Article 8 if the substantive right to be protected had yet to be established. This held all the more true since the general procedural guarantees of access to court and fairness in the proceedings were sufficiently covered by Articles 6 § 1 and 13 of the Convention.\n\n2.  Submissions by the applicant\n\n35.  The applicant submitted that the domestic decisions interfered with his own rights under Article 8 of the Convention. Both the Federal Institute and the domestic courts had failed to appreciate that he had a personal interest in the decision on his late wife’s request. This personal interest derived from the wish that his wife’s decision to end her life be respected. Furthermore, the distressing situation provoked by his wife’s unfulfilled wish to commit suicide had immediate repercussions on his own state of health.\n\n36.  The applicant pointed out that his wife had been prevented from ending her life within the privacy of their family home, as originally planned by the couple, and instead he had been forced to travel to  to enable his wife to commit suicide. The Court had previously considered closest family members to be victims within the meaning of Article 34 of the Convention because of their close relationship to the person mainly concerned, if the interference had implications for the family member lodging the application. In the case at hand, the applicant and his wife had found themselves in a terrible situation, which also concerned the applicant as a compassionate husband and devoted carer. As the relationship between husband and wife was extremely close, any infringement directed against the rights and liberties of one partner was directed against the rights that were shared by both partners. It followed that each partner in the marriage was entitled to defend the joint rights and liberties of both partners and that the applicant was himself a victim of a violation of his Convention rights.\n\n37.  In the present case, denying the right of the widower to complain about the conduct of the German authorities would mean that B.K., in order not to lose her right to submit her complaint, would have been forced to stay alive – with all the suffering this implied – until the entire proceedings before the domestic courts, as well as before the Court, were terminated. As B.K. had died shortly after lodging the administrative appeal in January 2005, she had had no factual possibility of accelerating the court proceedings by requesting interim measures.\n\n38.  Consequently, the questions raised in the present application would never be answered unless a patient endured many years of additional suffering. This would be in direct contradiction to the essence of the Convention, which was the protection of human dignity, freedom and autonomy and to the principle that the Convention was intended to guarantee not rights that were theoretical or illusory, but rights that were practical and effective (the applicant referred to Artico v. Italy, 13 May 1980, Series A no. 37).\n\n39.  According to the applicant, Article 8 of the Convention encompassed the right to end one’s own life. The right to life in the sense of Article 2 did not contain any obligation to live until the “natural end”. B.K.’s decision to end her biological life did not imply that she waived in any way her right to life. The lethal dose of medication requested by her would have been necessary in order to allow her to end her life by a painless and dignified death in her own family home. Because of the refusal to authorise the purchase, she had been forced to travel to  in order to end her life.\n\n3.  Submissions by the third parties\n\n(a)  Dignitas\n\n40.  Dignitas submitted that a person’s decision to determine the manner of ending his or her life was part of the right to self-determination protected by Article 8 of the Convention. A  should only regulate the right of an individual who independently decided on the time or methods of his or her demise in order to prevent hasty and insufficiently considered actions. As far as the associations working in this field already had preventive mechanisms in place, governmental measures were not necessary in a democratic society.\n\n(b)  AlfA\n\n41.  Referring to the Court’s case law, in particular the case of Sanles Sanles v. Spain ((dec.), no. 48335/99, ECHR 2000XI) AlfA submitted that the rights relied upon by the applicant were of a non-transferable nature and could not be relied upon by a third party. Under the case-law of the Court, transferability of victim status could only occur where the alleged violation had prevented the direct victim from asserting his claim (Bazorkina v. Russia, no. 69481/01, § 139, 27 July 2006) or where the negative consequences of an alleged violation directly affected the heirs bringing a claim on behalf of the deceased (Ressegatti v. , no. 17671/02, § 25, 13 July 2006). However, none of these principles applied in case an applicant, having complained about the denial of authorisation to die by assisted suicide, subsequently died as a result of assisted suicide carried out under a jurisdiction where such act was not illegal.\n\n42.  Furthermore, neither the Convention nor any other document governing the right to life had ever recognised the converse right to die. The liberalisation of assisted suicide in the  had led to an alarming number of abuse cases, in which lethal injections were given without the patient’s consent.\n\n4.  The Court’s assessment\n\n43.  The Court observes, at the outset, that it qualifies the Government’s objection against the applicant’s victim status as a question of whether there had been an interference with the applicant’s own rights under Article 8 of the Convention. The Court notes that the applicant submitted that his wife’s suffering and the eventual circumstances of her death affected him in his capacity as a compassionate husband and carer in a way which led to a violation of his own rights under Article 8 of the Convention. In this respect, the instant case has to be distinguished from cases brought before the Court by the deceased person’s heir or relative solely on behalf of the deceased. It follows that it does not have to be determined in the present context whether the Convention right relied upon by the applicant was capable of being transferred from the immediate victim to his or her legal successor (compare in this respect Sanles Sanles, cited above).\n\n44.  In spite of these differences, the Court considers that the criteria developed in its previous case-law for allowing a relative or heir to bring an action before the Court on the deceased person’s behalf are also of relevance for assessing the question whether a relative can claim a violation of his own rights under Article 8 of the Convention. The Court will thus proceed by examining the existence of close family ties (see (a) below, compare, for example, Direkçi, v.  (dec.), no. 47826/99, 3 October 2006); whether the applicant had a sufficient personal or legal interest in the outcome of the proceedings (see (b), below, compare Bezzina Wettinger and Others v. Malta, no. 15091/06, § 66, 8 April 2008; Milionis and Others v. Greece, no. 41898/04, §§ 23-26, 24 April 2008; Polanco Torres and Movilla Polanco, cited above, § 30, 21 September 2010) and whether the applicant had previously expressed an interest in the case (see (c), below, compare Mitev v. Bulgaria (dec.), no. 42758/07, 29 June 2010).\n\n45.  (a) The Court notes, at the outset, that the applicant and B.K. had been married for 25 years at the time the latter filed her request to be granted the permission to acquire the lethal drug. There is no doubt that the applicant shared a very close relationship with this late wife.\n\n(b) The applicant has further established that he had accompanied his wife throughout her suffering and had finally accepted and supported her wish to end her life and travelled with her to  in order to realise this wish.\n\n(c) The applicant’s personal commitment is further demonstrated by the fact that he lodged the administrative appeal jointly with his wife and pursued the domestic proceedings in his own name after her death. Under these exceptional circumstances, the Court accepts that the applicant had a strong and persisting interest in the adjudication of the merits of the original motion.\n\n46.  The Court further observes that the instant case concerns fundamental questions evolving around a patient’s wish to selfdeterminedly end his or her life which are of general interest transcending the person and the interest both of the applicant and of his late wife. This is demonstrated by the fact that similar questions have repeatedly been raised before the Court (compare Pretty and Sanles Sanles, both cited above, and, most recently, Haas, cited above).\n\n47.  The Court finally turns to the Government’s argument that there had been no need to grant the applicant an own right to pursue his wife’s motion, as B.K. could have awaited the outcome of the proceedings before the domestic courts, which she could have accelerated by requesting interim measures. The Court observes, at the outset, that the applicant and B.K. jointly lodged an administrative appeal on 14 January 2005. On 12 February 2005, less than a month later, B.K. committed suicide in . The ensuing proceedings before the domestic courts lasted until 4 November 2008, when the  declared the applicant’s constitutional complaint inadmissible. It follows that the domestic proceedings were terminated some three years and nine months after B.K.’s death.\n\n48.  With regard to the Government’s submissions that B.K. could have requested interim measures in order to expedite the proceedings, the Court observes that interim measures are generally aimed at safeguarding a plaintiff’s legal position pending the main proceedings. They are, as a matter of principle, not meant to foreclose the outcome of the main proceedings. Having regard to the gravity of the claim at issue and to the irreversible consequences any granting of an interim injunction would necessarily have entailed, the Court is not convinced that requesting an interim injunction in the instant case would have been suited to accelerate the proceedings before the domestic courts.\n\n49.  Even assuming that the domestic courts would have processed the proceedings more speedily if B.K. had still been alive pending the proceedings, it is not for the Court to decide whether B.K., having decided to end her life after a long period of suffering, should have awaited the outcome of the main proceedings before three court instances in order to secure a decision on the merits of her claim.\n\n50.  Having regard to the above considerations, in particular to the exceptionally close relationship between the applicant and his late wife and his immediate involvement in the realisation of her wish to end her life, the Court considers that the applicant can claim to have been directly affected by the Federal Institute’s refusal to grant authorisation to acquire a lethal dose of pentobarbital of sodium.\n\n51.  The Court further reiterates that the notion of “private life” within the meaning of Article 8 of the Convention is a broad concept which does not lend itself to exhaustive definition (see, inter alia, Pretty, cited above, § 61). In the Pretty judgment, the Court established that the notion of personal autonomy is an important principle underlying the guarantees of Article 8 of the Convention (see Pretty, ibid.). Without in any way negating the principle of sanctity of life protected under the Convention, the Court considered that, in an era of growing medical sophistication combined with longer life expectancies, many people were concerned that they should not be forced to linger on in old age or in states of advanced physical or mental decrepitude which conflicted with strongly held ideas of self and personal identity (Pretty, cited above, § 65). By way of conclusion, the Court was “not prepared to exclude” that preventing the applicant by law from exercising her choice to avoid what she considered would be an undignified and distressing end to her life constituted an interference with her right to respect for private life as guaranteed under Article 8 § 1 of the Convention (Pretty, cited above, § 67).\n\n52.  In the case of Haas v. Switzerland, the Court further developed this case-law by acknowledging that an individual’s right to decide in which way and at which time his or her life should end, provided that he or she was in a position freely to form her own will and to act accordingly, was one of the aspects of the right to respect for private life within the meaning of Article 8 of the Convention (see Haas, cited above, § 51). Even assuming that the State was under an obligation to adopt measures facilitating a dignified suicide, the Court considered, however, that the Swiss authorities had not violated this obligation in the circumstances of that specific case (Haas, cited above, § 61).\n\n53.  The Court finally considers that Article 8 of the Convention may encompass a right to judicial review even in a case in which the substantive right in question had yet to be established (compare Schneider v. , no. 17080/07, § 100, 15 September 2011).\n\n54.  Referring to the above considerations, the Court considers that the Federal Institute’s decision to reject B.K.’s request and the administrative courts’ refusal to examine the merits of the applicant’s motion interfered with the applicant’s right to respect for his private life under Article 8 of the Convention.\n\nB.  Compliance with Article 8 § 2 of the Convention\n\n55.  The Court will thus proceed by examining whether the applicant’s own rights under Article 8 of the Convention were sufficiently safeguarded within the course of the domestic proceedings.\n\n1.  Submissions by the Government\n\n56.  The Government submitted that the applicant’s claims regarding his own rights were fully heard by the German courts. The mere fact that these courts rendered decisions of inadmissibility did not mean that they did not deal with the substance of the applicant’s claim. The  examined the alleged violation of the applicant’s rights under Article 8 of the Convention and quoted the relevant case law of the Court. It followed that the applicant’s procedural rights had been sufficiently safeguarded in the domestic proceedings.\n\n57.  Even assuming that Article 8 of the Convention could impose the duty on a State to facilitate the acquisition of a specific drug in order to facilitate suicide, the Government considered that the Federal Institute’s refusal was justified under paragraph 2 of Article 8. The decision had a legal basis in the relevant provisions of the Narcotics Act and pursued the legitimate aim of protecting health and the right to life. As regarded the question whether the decision was necessary in a democratic society, the Government considered that they should be granted a wide margin of appreciation, having particular regard to the fact that the legal situation in the Member States varied considerably. They further referred to the ethical dimension of the question of whether and to what extent the State should facilitate or support suicide, which was demonstrated by the fact that the German National Ethics Council (Nationaler Ethikrat) had examined the questions at stake. The fundamental importance which the German legal order attached to the protection of life against inflicted euthanasia also had strong historical reasons which had led to a particularly forceful legal concept of human dignity.\n\n58.  Moreover, B.K. had other possibilities at her disposal to end her life painlessly. In particular, she could have demanded that her doctor switch off the respiratory equipment while being treated with palliative measures. Under the law as applied by the domestic courts at the relevant time (see paragraph 23 above) her doctor would not have risked criminal responsibility.\n\n59.  The Government further submitted that it was primarily up to the Government to assess which risks granting unrestricted access to drugs entailed. They considered that granting unrestricted access to a fatal drug could create an appearance of normality, which could lead to a sense of pressure on the part of the elderly and the seriously ill “not to become a burden”. Summing up, the Government considered that the overriding interest of protecting life justified the refusal to grant the applicant’s wife the authorisation to obtain a lethal dose of pentobarbital of sodium.\n\n2.  Submissions by the applicant\n\n60.  The applicant submitted that the domestic courts, by refusing to examine the merits of his motion, had violated his procedural rights under Article 8 of the Convention.\n\n61.  The decision taken by the Federal Institute failed to pursue a legitimate aim and was not necessary within the meaning of paragraph 2 of Article 8. The lethal dose of medication requested by the applicant’s wife would have been necessary in order to allow ending her life by a painless and dignified death in her own family home. There were no other means available which would have allowed her to end her life in her family home. In particular, the pertinent rules would not have allowed her to end her life by interrupting life-supporting treatment in a medically assisted way, as she was not terminally ill at the time she decided to put an end to her life. The pertinent law in this area was and remained unclear and only allowed the interruption of life-support for patients suffering from a life-threatening illness.\n\n62.  The applicant accepted that a measure of control was necessary in order to prevent abuse of lethal medication. However, suicide should be allowed if it was justified on medical grounds. The applicant further considered that assisted suicide was not incompatible with Christian values and was more broadly accepted by society than the Government might assume. In this respect, the applicant referred to several public statements issued by individual persons and non-governmental organisations in . The applicant further emphasised that he did not advocate the provision of unrestricted access to lethal drugs, but merely considered that his wife should have been authorised the requested dose in this individual case. There was no indication that the decision of an adult and sane person to end his or her life ran counter to the public interest or that the requested authorisation would lead to an abuse of narcotic substances. In this respect, the applicant pointed out that pentobarbital of sodium was widely prescribed as a means of assisted suicide in  without this having any negative effects.\n\n3.  Submissions by the third parties\n\n63.  Dignitas considered that the requirements laid down in the Artico judgment of the Court (cited above) could only be fulfilled if pentobarbital of sodium was made available to persons wishing to end their life and if at the same time experienced personnel ensured its correct application. The third party finally submitted that the option of an assisted suicide without having to face the heavy risk inherent in commonly known suicide attempts was one of the best methods of suicide prevention.\n\n64.  AlfA considered that even a blanket ban on assisted suicide was not a disproportionate restriction on the right to privacy enshrined in Article 8 of the Convention as such law reflected the importance of the right to life. The restrictions existing in  were necessary in the overriding interest of protecting life until natural death. Doctors overwhelmingly concurred that palliative care improvements rendered assisted suicide unnecessary.\n\n4.  Assessment by the Court\n\n65.  The Court will start its examination under the procedural aspect of Article 8 of the Convention. The Court observes, at the outset, that both the Administrative Court and the Administrative Court of Appeal refused to examine the merits of the applicant’s motion on the ground that he could neither rely on his own rights under domestic law and under Article 8 of the Convention, nor did he have standing to pursue his late wife’s claim after her death. While the , in an obiter dictum, expressed the opinion that the Federal Institute’s refusal had been lawful and in compliance with Article 8 of the Convention (see paragraph 18, above), neither the Administrative Court of Appeal nor the  examined the merits of the original motion.\n\n66.  The Court concludes that the administrative courts – notwithstanding an obiter dictum made by the first instance court – refused to examine the merits of the claim originally brought before the domestic authorities by B.K.\n\n67.  The Court further observes that the Government did not submit that the refusal to examine the merits of this case served any of the legitimate interests under paragraph 2 of Article 8. Neither can the Court find that the interference with the applicant’s right served any of the legitimate aims enumerated in that paragraph.\n\n68.  It follows that there has been a violation of the applicant’s right under Article 8 to see the merits of his motion examined by the courts.\n\n69.   With regard to the substantive aspect of the complaint under Article 8, the Court reiterates that the object and purpose underlying the Convention, as set out in Article 1, is that the rights and freedoms should be secured by the  within its jurisdiction. It is fundamental to the machinery of protection established by the Convention that the national systems themselves provide redress for breaches of its provisions, with the Court exercising a supervisory role subject to the principle of subsidiarity (compare, among other authorities, Z. and Others v. the United Kingdom, no. 29392/95, § 103, ECHR 2001-V and A. and Others v. the  [GC], no. 3455/05, § 147, ECHR 2009).\n\n70.  The Court considers that this principle is even more pertinent if the complaint concerns a question where the State enjoys a significant margin of appreciation. Comparative research shows that the majority of Member States do not allow any form of assistance to suicide (compare paragraph 26, above and Haas, cited above, § 55). Only four States examined allowed medical practitioners to prescribe a lethal drug in order to enable a patient to end his or her life. It follows that the State Parties to the Convention are far from reaching a consensus in this respect, which points towards a considerable margin of appreciation enjoyed by the State in this context (also compare Haas, cited above, § 55).\n\n71.  Having regard to the principle of subsidiarity, the Court considers that it is primarily up to the domestic courts to examine the merits of the applicant’s claim. The Court has found above that the domestic authorities are under an obligation to examine the merits of the applicant’s claim (see paragraph 66, above). Accordingly, the Court decides to limit itself to examining the procedural aspect of Article 8 of the Convention within the framework of the instant complaint.\n\n72.  It follows from the above that the domestic courts’ refusal to examine the merits of the applicant’s motion violated the applicant’s right to respect for his private life under Article 8 in of the Convention.\n\nII.  ALLEGED VIOLATION OF THE APPLICANT’S WIFE’S RIGHTS UNDER ARTICLE 8 OF THE CONVENTION\n\n73.  The Court recalls that, in its decision on the admissibility of the instant complaint, it had joined to the merits the question whether the applicant had the legal standing to complain about a violation of his late wife’s Convention rights.\n\nA.  The Government’s submissions\n\n74.  Relying on the Court’s decision in the case of Sanles Sanles (cited above), the Government submitted that the asserted right to end one’s own life was of an eminently personal and non-transferable nature and that the applicant could therefore not assert this right in the name of his deceased wife. There was no reason to depart from this case law. The applicant’s participation in the domestic proceedings could not turn an eminently personal right, such as the alleged right to assistance in order to end one’s life, into a right that could be enforced by others.\n\n75.  But even if the asserted right were to be considered transferable, the applicant could not complain of a violation of his deceased wife’s right under Article 8 of the Convention as there was no indication that, in terms of degree and manner, the applicant’s suffering went beyond the burden that was inevitable when a spouse faced obstacles in organising his or her suicide.\n\nB.  The applicant’s submissions\n\n76.  The applicant considered that the instant case fell to be distinguished from the Sanles Sanles case. In particular, he shared a much closer relationship with the deceased person than the sister-in-law who lodged the complaint in the above-mentioned case. Furthermore, the applicant, in the instant case, could claim a violation both of his deceased wife’s rights and of his own rights under Article 8.\n\n77.  It was decisive that the applicant and his wife had jointly submitted an administrative appeal against the Federal Institute’s decision. After his wife’s death, he had pursued the proceedings before the courts. It followed that he had a legitimate interest to pursue this case before the Court. The applicant further emphasised that there was a particular general interest in a ruling on the issues raised by the instant case.\n\nC.  The Court’s assessment\n\n78.  The Court reiterates that in the case of Sanles Sanles (cited above) the applicant was the sister-in law of Mr S., a deceased tetraplegic who had brought an action in the Spanish courts requesting that his general practitioner be authorised to prescribe him the medication necessary to relieve him of the pain, anxiety and distress caused by his condition “without that act being considered under the criminal law to be assisting to suicide or to be an offence of any kind”. The Court considered that the right claimed by the applicant under Article 8 of the Convention, even assuming that such right existed, was of an eminently personal nature and belonged to the category of non-transferable rights. Consequently, the applicant could not rely on this right on behalf of Mr S. and the complaint was to be declared inadmissible as being incompatible ratione personae with the provisions of the Convention.\n\n79.  The Court confirmed the principle that Article 8 was of a nontransferrable nature and could thus not be pursued by a close relative or other successor of the immediate victim in the cases of Thevenon v. France ((dec.), no. 2476/02, 28 June 2006) and Mitev (cited above).\n\n80.  The Court reiterates that “[while it] is not formally bound to follow its previous judgments, it is in the interests of legal certainty, foreseeability and equality before the law that it should not depart, without good reason, from precedents laid down in previous cases.” (see, among many other authorities, Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 74, ECHR 2002VI, and Bayatyan v. Armenia [GC], no. 23459/03, § 98, 7 July 2011, and the case law cited in those judgments).\n\n81.  The Court does not find that it has been presented with sufficient reasons to depart from its established case-law as far as it was under consideration by the Court in the instant case. It follows that the applicant does not have the legal standing to rely on his wife’s rights under Article 8 of the Convention because of the non-transferable nature of these rights. The Court recalls however that it has concluded above that there has been a violation of the applicant’s own right to respect for his private life in the instant case (see paragraph 72 above). It follows that the applicant is not deprived of a protection under the Convention even if he is not allowed to rely on his wife’s Convention rights.\n\n82.  By virtue of Article 35 § 4 in fine of the Convention, which empowers it to “reject any application which it considers inadmissible ... at any stage of the proceedings”, the Court concludes that the applicant’s complaint about a violation of his late wife’s rights under Article 8 of the Convention is to be rejected under Article 34 as being incompatible ratione personae with the provisions of the Convention.\n\nIII.  ALLEGED VIOLATION OF THE APPLICANT’S RIGHT OF ACCESS TO\n\n83.  Relying on Article 13 in conjunction with Article 8 of the Convention, the applicant complained that the German courts had violated his right to an effective remedy when denying his right to challenge the Federal Institute’s refusal to grant his wife the requested authorisation.\n\n84.  In its decision on admissibility, the Court has further considered that this complaint might fall to be examined under the aspect of the applicant’s right of access to a court. However, in the light of its above finding regarding Article 8 of the Convention (see paragraph 72 above), the Court considers that it is not necessary to examine whether there has also been a violation of the applicant’s rights under Article 13 or under Article 6 § 1 of the Convention.\n\nIV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n85.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n1.  Non- pecuniary damage\n\n86.  The applicant claimed an overall sum of 5,000 euros (EUR) in respect of non-pecuniary damage for his wife’s pain and additional suffering due to the unwanted extension of her life and EUR 2,500 for his own suffering.\n\n87.  The Government considered that it had not been necessary for the applicant and his wife to subject themselves to additional suffering as B.K. would have had other means at her disposal to end her life. They furthermore pointed out that B.K.’s personal suffering ended at the time of her death.\n\n88.  The Court has found above that the applicant cannot rely on a violation of his late wife’s Convention rights. It follows that he cannot claim any compensation for non-pecuniary damage on her behalf. Conversely, the Court considers that the applicant must have sustained non-pecuniary damage due to the domestic courts’ refusal to examine the merits of his motion and, deciding on an equitable basis, awards the sum claimed for his own suffering in full.\n\n2.  Pecuniary damage\n\n89.  The applicant, relying on documentary evidence, further claimed an overall sum of EUR 5,847.27, comprising the lawyer’s fee for the administrative appeal against the Federal Institute’s decision (EUR 197.20), costs incurred for photocopying B.K.’s medical file (EUR 94.80) and the expenses incurred by B.K.’s transport to  and by her assisted suicide.\n\n90.  The Government submitted that there was no causal connection between the alleged violation of a Convention right and the damage claimed.\n\n91.  The Court considers, at the outset, that the costs of the administrative appeal proceedings fall to be considered below under the head of “costs and expenses”. With regard to the remainder of the applicant’s claim, the Court observes that B.K. committed suicide in  before the German courts had given any decision on the motion. Accordingly, the Court does not discern a link of causation between the domestic courts’ refusal to examine the merits of B.K.’s claim and the expenses incurred by B.K.’s transport to  and her suicide. Accordingly, the Court does not make any award in this respect.\n\nB.  Costs and expenses\n\n92.  The applicant, who submitted documentary evidence in support of his claim, sought a total of EUR 46,490.91 for costs and expenses. This sum comprised EUR 6,539.05 for lawyers’ fees and expenses in the proceedings before the national courts, as well as EUR 39,951.86 for lawyers’ fees and expenses before this Court. He submitted that he had agreed to pay his lawyer EUR 300 per hour.\n\n93.  The Government expressed their doubts as to the necessity and appropriateness of the amount claimed. They further pointed out that the applicant had not submitted a written agreement on the hourly rate he claimed.\n\n94.  According to the Court’s case law, an applicant is entitled to the reimbursement of costs and expenses only as far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the claim for costs and expenses in the domestic proceedings in full. Including the costs of the administrative appeal proceedings (EUR 197.20, see paragraphs 89 and 91 above), the Court awards the applicant the amount of EUR 6,736.25 (including VAT) for the proceedings before the domestic courts. Further taking into account that the applicant’s complaints before the Court were only partially successful, the Court considers it reasonable to award the sum of EUR 20,000 (including VAT) for the proceedings before the Court.\n\nC.  Default interest\n\n95.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Declares the applicant’s complaint about a violation of his wife’s Convention rights inadmissible;\n\n2.  Holds that there has been a violation of Article 8 of the Convention in that the domestic courts refused to examine the merits of the applicant’s motion;\n\n3.  Holds that it is not necessary to examine whether there has been a violation of the applicant’s right of access to a court under Article 6 § 1 of the Convention;\n\n4.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n5.  Dismisses the remainder of the applicant’s claim for just satisfaction.\n\nDone in English and French, and notified in writing on 19 July 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_494","text":"PROCEDURE\n\n1.  The case originated in an application (no. 68351/01) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Sabri Diri (“the applicant”), on 2 March 2001.\n\n2.  The applicant, who had been granted legal aid, was represented by Mr Elban and Mr Kırdök, lawyers practising in . The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.\n\n3. The applicant alleged in particular that he had been ill-treated during his detention in the Tekirdağ F-Type Prison and that the authorities had failed to conduct an effective investigation into his allegations. He invoked Articles 3 and 13 of the Convention.\n\n4.  On 15 April 2001 the applicant asked the Court to request the Turkish Government, under Rule 39 of the Rules of Court, to order a medical examination of the applicant, with a view to establishing the traces of falaka.\n\n5.  On 31 May 2001 the President of the Third Section of the Court decided to apply Rule 39 of the Rules of Court and informed the respondent Government that it was desirable, in the interests of the parties and the proper conduct of the proceedings before the Court, to conduct a medical examination of the applicant, in particular a Magnetic Resonance Imaging (MRI) scan and/or a bone scintigraphy.\n\n6.  On 20 January 2006 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n7.  The applicant was born in 1969 and currently lives in .\n\nBackground to the case\n\n8.  The applicant, convicted of membership of an illegal organisation, was serving his prison sentence in the Ümraniye E-Type Prison in  at the time of the events.\n\n9.  In December 2000 a large number of prisoners, including the applicant, started a hunger strike to protest against the F-Type prisons. On 19 December 2000 the security forces conducted an operation in several prisons to stop the protests. In the course of these operations, numerous prisoners and members of the security forces were wounded and 32 persons died. Following these events, on 22 December 2000 the applicant was transferred from Ümraniye E-Type Prison to the Kocaeli Kandıra F-Type Prison, together with several other prisoners. The Government stated that the applicant showed resistance to the security forces during the operation in the Ümraniye E-Type Prison. In a medical report issued by the Kocaeli Kandıra F-Type Prison doctors on 22 December 2000, it was noted that the applicant had scars on the right side of his jaw and nose; bruises on his eye lids, a round hyperaemic oedema on his head measuring 3 cm and sensitivity on his abdomen. The report concluded that the applicant was unfit to work for one week. The applicant maintained that he was beaten on admission to the Kandıra F-Type Prison.\n\nThe applicant's detention in the Tekirdağ F-Type Prison\n\n10.  On 23 February 2001 the applicant was transferred to the Tekirdağ FType Prison. On admission to the prison, he was allegedly strip searched and beaten and his hair and moustache forcibly cut. He also stated that he was put in a cell alone and was forced to listen to loud music. According to the applicant, as he refused to stand up and shout his name during the daily headcounts, he was subjected to ill-treatment by the prison guards, in particular falaka (beating on the soles of the feet).\n\n11.  On 24 February 2001 and 3 March 2001, respectively, the applicant was examined by the prison doctor, who did not find any signs of ill-treatment on the applicant's body.\n\n12.  On 4 March 2001 the applicant's lawyer filed a petition with the Tekirdağ public prosecutor's office and complained about the ill-treatment which the applicant had suffered in the Tekirdağ prison. He also requested that the applicant be examined by a forensic doctor.\n\n13. The Tekirdağ public prosecutor initiated an investigation into the applicant's allegations. Upon the order of the public prosecutor, on 8 March 2001 the applicant was examined once again by the prison doctor, who reported that there were no signs of ill-treatment on his body. On the same day, the Tekirdağ public prosecutor took a statement from the applicant. Before the prosecutor, the applicant explained that, on admission to the Tekirdağ Prison, the prison personnel had shaved his hair and moustache by force and that he had been stripped naked. He further maintained that he had been placed in a single cell and subjected to falaka twice.\n\n14.  On 14 March 2001 the public prosecutor issued a decision of nonprosecution relying on the medical reports dated 24 February, 3 March and 8 March 2001, according to which there was no sign of ill-treatment on the applicant's body.\n\n15.  On 6 April 2001 the applicant filed an appeal against the decision of the public prosecutor.\n\n16.  On 19 April 2001 the  rejected the applicant's appeal.\n\n17.  Following the introduction of the present application, on 31 May 2001 the Court requested the Government to conduct further medical examinations on the applicant, namely a bone scintigraphy and a Magnetic Resonance Imaging scan (MRI).\n\n18.  On 26 June 2001 the Government submitted two medical reports dated 13 and 14 June 2001 which had been drawn up as a result of the MRI scan and the bone scintigraphy respectively.\n\nThe MRI report dated 13 June 2001 stated the following:\n\n“Bone signal intensity was normal. Bone contours were regular. Achilles tendon signal characteristics and thickness were normal.\n\nNo pathology in the soft tissues was detected.\n\nResult:\n\nNote: An increased intensity observed in the fat suppression sequences in the medial regions of both feet is attributed to the coil artefact.”\n\nThe bone scintigraphy report dated 14 June 2001 read as follows:\n\n“Examination of dynamic, blood flow and blood pool images of both feet taken following intravenous injection of 20mCi Tc-99m MDP and of delayed static and anterior/posterior images of the whole body taken four hours later revealed the following:\n\nIn both feet, blood flow was normal; increased activity uptake was observed in the blood pool phase in the areas of the lower extremity of the left tibia and the ankle.\n\nThe delayed static images revealed increased radiopharmaceutical uptake in the lower extremities of both tibias and in the bones of the big toe (more noticeable in the right foot). Increased radiopharmaceutical uptake was also observed in the left-tibia joint and the upper fibula.\n\nApart from in the regions indicated above, radiopharmaceutical distribution and uptake in the skeletal system fell within normal limits.\n\nBoth kidneys were visualised slightly.\n\nConclusion: The increased radiopharmaceutical uptake in the regions described above is indicative of traumatism.”\n\n19.  On 19 July 2001, taking into account the applicant's poor health due to the hunger strike, the authorities released him from prison for six months.\n\n20.  On 25 September 2001 the Tekirdağ public prosecutor requested the Forensic Medicine Institute to make an assessment of the applicant's bone scintigraphy result, in particular to indicate the cause of the findings mentioned in the report.\n\n21.  In the meantime, on 16 October 2001 having regard to the findings indicated in the bone scintigraphy, the International Law Department of the Ministry of Justice consulted the Directorate General of Criminal Law Issues as to whether a writ of mandamus (yazılı emir) should be issued to restart the investigation into the applicant's allegations of ill-treatment. On 17 October 2001 the General Directorate of Criminal Law Issues wrote to the Tekirdağ public prosecutor, requesting his opinion on the matter. In his reply dated 28 December 2001, the public prosecutor argued that, as the bone scintigraphy test did not reveal the exact cause or the timing of the injuries, a writ of mandamus to quash the decision of the  could not be issued in the circumstances of the present case.\n\n22.  On 30 November 2001 the Forensic Medicine Institute replied that the findings mentioned in the bone scintigraphy report could not have resulted from rheumatism or the hunger strike, but were caused by a trauma.\n\n23.  On 7 December 2001 the Tekirdağ public prosecutor asked the Forensic Medicine Institute to clarify whether it was possible to determine the date when these injuries had been sustained.\n\n24.  On 12 December 2001 the Forensic Medicine Institute replied that it was not possible to make such an assessment.\n\n25.  The applicant returned to the Tekirdağ F-Type Prison on 5 April 2002, but was released once again on 12 April 2002 for another six months.\n\n26.  On 2 September 2006 the applicant's lawyer requested an additional expert report from Dr Şebnem Korur Fincancı, a forensic expert. Dr Fincancı was asked to evaluate the findings of the bone scintigraphy test dated 14 June 2001 and to assess whether the findings indicated in the report matched the applicant's allegation of falaka. In this connection, Dr Fincancı was provided with a written statement by the applicant, in which he gave a detailed description of the ill-treatment to which he had been subjected in the Tekirdağ F-Type Prison. In this statement, the applicant explained that, as a protest against the F-Type prison system, he had refused to stand up and shout his name out during the daily headcounts. When he did not obey the warnings of the prison guards, a large group of guards entered his cell and started beating him, while two guards held his arms and another two secured his feet. Then one guard sat on the applicant's abdomen and another placed his hand over the applicant's mouth. After they had tied his feet with a belt, several guards struck his feet with their belts.\n\n27.  In her report dated 11 September 2006, Dr Fincancı concluded that when the static and dynamic images of the bone scintigraphy test were examined together, the findings in the report corresponded to the applicant's allegation of falaka. She further opined that the trauma complained of was inflicted on the applicant about three months prior to the test. While drafting her report, Dr Fincancı had regard to the applicant's previous medical reports dated 22 December 2000, 24 February 2001, 3 March 2001 and 8 March 2001.\n\n28.  In response to the report of Dr Fincancı, the Government submitted another report issued by the Forensic Medicine Institute dated 9 January 2007 which contradicted Dr Fincancı, stating that the findings in the bone scintigraphy test did not reveal the cause of the injuries on the applicant's feet and that it was not possible to make an evaluation as to when these injuries could have been sustained.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION\n\n29.  The applicant complained in the first place that the prison conditions in the Tekirdağ F-Type Prison breached Article 3. He maintained in particular that on admission to the prison he had been strip searched and his hair and moustache forcibly cut. He also maintained that he had been kept alone in a cell and forced to listen to loud music. Secondly, the applicant complained that he had been beaten and subjected twice to falaka, when he refused to participate in the daily headcounts. Article 3 reads as follows:\n\n“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”\n\n30.  The Government contested those arguments.\n\nA.  Concerning the conditions of detention\n\n31.  The applicant complained under Article 3 that, on admission to the Tekirdağ F-Type Prison, he had been strip searched and his hair and moustache forcibly shaved; he had been kept in a cell alone and subjected to loud music.\n\n32.  The Court recalls that it has in the past examined similar complaints and declared them inadmissible (see, Gündoğan v. Turkey (dec.), no. 29/02, 13 December 2005; Yılmaz Karakaş v. Turkey (dec.), no. 68909/01, 9 November 2004). It finds no particular circumstances in the instant case, nor any elements apt to disclose treatment of the prohibited severity, which would require it to depart from this jurisprudence.\n\n33.  In view of the above, the Court concludes that the applicant has not laid the basis of an arguable claim and that this part of the application should therefore be declared inadmissible as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.\n\nB.  Concerning the alleged ill-treatment\n\n1.  Admissibility\n\n34.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\n2.  Merits\n\na)  The alleged ill-treatment\n\n35.  The Court reiterates that Article 3 of the Convention ranks as one of the most fundamental provisions in the Convention, from which no derogation is permitted. It also enshrines one of the basic values of the democratic societies making up the Council of Europe. The object and purpose of the Convention as an instrument for the protection of individual human rights requires that these provisions be interpreted and applied so as to make its safeguards practical and effective (see Avşar v. Turkey, no. 25657/94, § 390, ECHR 2001-VII (extracts)).\n\n36.  Furthermore, the Court reiterates that, in respect of a person deprived of liberty, recourse to physical force which has not been made strictly necessary by the individual's own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 (see Ribitsch v. Austria, judgment of 4 December 1995, Series A no. 336, p. 26, § 38; Krastanov v. Bulgaria, no. 50222/99, § 53, 30 September 2004).\n\n37.  Where allegations are made under Article 3 of the Convention, the Court must conduct a particularly thorough scrutiny (see Ülkü Ekinci v. Turkey, no. 27602/95, § 135, 16 July 2002) and will do so on the basis of all the material submitted by the parties.\n\n38.  In assessing evidence, the Court has adopted the standard of proof “beyond reasonable doubt” (see Orhan v. Turkey, no. 25656/94, § 264, 18 June 2002; Avşar, cited above, § 282). Such proof may, however, follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Ülkü Ekinci, cited above, § 142).\n\n39.  Furthermore, where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII).\n\n40.  In the present case, the applicant complained that he had been subjected to falaka twice, when he resisted standing up and shouting his name out during the daily headcounts.\n\n41.  The Government denied that the applicant had been ill-treated. They stated that the applicant must have sustained these injuries in the course of the incidents that took place in December 2000 in the Ümraniye E-Type Prison. They also stated that the applicant's allegation that he had been subjected to falaka in the Tekirdag F-Type Prison was unsubstantiated since there was twenty-four hour video surveillance in that prison. The Government further explained that the applicant had been examined three times by the prison doctor who had found no traces of ill-treatment on his body. They argued that, since there were no traces on his body, the doctor was not required to transfer the applicant to a hospital for further tests. Any such obligation in that regard would, in the Government's opinion, impose an excessive burden on the authorities. They also maintained that, although the bone scintigraphy results revealed that the applicant's feet had been exposed to trauma, in their view this did not necessarily mean that the applicant had been subjected to falaka as alleged. A trauma could have been caused by stress or insufficiency fractures. In this connection, the Government referred to the fact that the applicant had been on a hunger strike for a long time and that his bones had been weakened due to improper nourishment and a lack of physical exercise. In the absence of any concrete evidence proving the origin and the timing of the injuries, the Government maintained that the applicant's ill-treatment allegations should be considered as unsubstantiated.\n\n42.  In line with the above-mentioned case-law, the Court remains free to make its own assessment in the light of all the material before it (see, mutatis mutandis, Selmouni v. France [GC], no. 25803/94, § 86, ECHR 1999V).\n\n43.  The Court notes that the findings indicated in the bone scintigraphy report dated 14 June 2001 and the medical report issued by the Forensic Medicine Institute on 30 November 2001 are consistent with the applicant's allegation that he had been subjected to falaka in the Tekirdağ F-Type Prison. As clearly indicated in these reports, the injuries to the applicant's feet could not have been caused by rheumatism or the result of his hunger strike. They could only have been sustained by trauma. The Court takes note of the Government's observations that these injuries must have been caused during the incidents which took place in the Ümraniye E-Type Prison in December 2000. In this connection, it refers to the medical report dated 22 December 2000, which noted several injuries on the applicant's body. The Court does not see any reason why the doctors who examined the applicant on 22 December 2000 would not have reported the injuries to the applicant's feet if they had been sustained on that occasion. It further notes that the Government maintained that the trauma could have been caused by stress fractures or insufficiency fractures; however these submissions are not supported by any convincing evidence. As a result, the Court concludes that the injuries to the applicant's feet must be attributable to a form of ill-treatment for which the authorities at Tekirdağ bore responsibility.\n\n44.  As to the seriousness of the treatment in question, the Court reiterates that, under its case-law in this sphere (see, among other authorities, Selmouni, cited above, §§ 96-97), in order to determine whether a particular form of ill-treatment should be qualified as torture, it must have regard to the distinction, embodied in Article 3, between this notion and that of inhuman or degrading treatment. It appears that it was the intention that the Convention should, by means of this distinction, attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering.\n\n45.  In this connection, the Court considers that the treatment complained of was inflicted on the applicant intentionally by the prison guards with the purpose of punishing him and of breaking his physical and moral resistance to the prison administration. In these circumstances, the Court finds that this act was particularly serious and cruel and capable of causing severe pain and suffering. It is therefore concludes that this sort of ill-treatment amounted to torture within the meaning of Article 3 of the Convention.\n\n46.  There has consequently been a violation of Article 3 on that account.\n\nb)  The alleged inadequacy of the investigation\n\n47.  The applicant further maintained, under Article 3, that the authorities had not conducted an adequate investigation into his complaints of ill-treatment.\n\n48.  The Government denied this allegation. They stated that the domestic authorities had conducted a serious investigation into the applicant's allegations.\n\n49.  The Court recalls that where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other similar agents of the State, that provision, read in conjunction with the State's general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. As with an investigation under Article 2, such investigation should be capable of leading to the identification and punishment of those responsible. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see, among other authorities, Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV).\n\n50.  Turning to the facts of the present case, the Court observes that the applicant brought his complaints of ill-treatment to the attention of the authorities by filing a complaint with the Tekirdağ public prosecutor on 4 March 2001 (paragraph 12 above). In his petition, the applicant also requested to be examined by a forensic doctor. On 8 March 2001, upon the order of the public prosecutor, the applicant was once again examined by the same prison doctor, who did not report any signs of ill-treatment on the applicant's body. The same day, a short statement was taken from the applicant, who repeated his allegations of ill-treatment. At this point, the Court notes with regret that the public prosecutor omitted to request any further medical examination, to take statements from the accused prison guards or to question witnesses and the prison doctor who had drafted the three medical reports dated 24 February 2001, 3 March 2001 and 8 March 2001, before delivering his decision of non-prosecution. In delivering his decision, the prosecutor limited himself to the three medical reports which merely stated that there was no sign of ill-treatment on the applicant's body. The Court recalls in this connection that proper medical examinations are an essential safeguard against ill-treatment. The forensic doctor must enjoy formal and de facto independence, have been provided with specialised training and been allocated a mandate which is sufficiently broad in scope (see, Akkoç v. , nos. 22947/93 and 22948/93, § 55 and § 118, ECHR 2000X). In the instant case, the medical reports dated 3 and 8 March 2001, which were drafted by the prison's own doctor, provided limited medical information and did not include any explanation by the applicant as regards his complaints.\n\n51.  The Court also finds it noteworthy that, after the bone scintigraphy results dated 14 June 2001 and the subsequent report of the Forensic Medicine Institute dated 30 November 2001, which confirmed that the injuries to the applicant's feet could only have been sustained by a trauma, the public prosecutor, who had the authority under Article 167 of the Criminal Code to restart the domestic investigation into the applicant's allegations of ill-treatment, took no further action. It is further noted that, although the International Law Department of the Ministry of Justice consulted the Directorate General of Criminal Law Issues as to whether a writ of mandamus should be issued to restart the investigation into the applicant's allegations of ill-treatment, the public prosecutor gave a negative opinion on this proposal, stating that the bone scintigraphy results did not indicate the cause or the timing of these injuries. The Court considers that, had the public prosecutor restarted the domestic investigation on the basis of this new evidence, he could have collected valuable information as to how and when these injuries might have been sustained.\n\n52.  In the light of the above, the Court concludes that the applicant's claim that he was subjected to falaka during his detention in the Tekirdağ F-Type Prison was not subject to an effective investigation by the domestic authorities as required by Article 3 of the Convention.\n\n53.  There has therefore been a procedural violation of Article 3 in this regard.\n\nII.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION\n\n54\tThe applicant alleged under Article 13 that the domestic authorities failed to conduct an effective investigation into his allegations of ill-treatment.\n\n55.  The Government contested that argument.\n\n56.  The Court notes that this complaint is linked to the one examined above and must likewise be declared admissible.\n\n57.  However, having regard to the finding relating to Article 3 (see paragraphs 49-53 above), the Court considers that it is not necessary to examine separately whether, in this case, there has been a violation of Article 13.\n\nIII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n58.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n59.  The applicant claimed 30,000 euros (EUR) in respect of non-pecuniary damage.\n\n60.  The Government contested the claim.\n\n61.  The Court finds that the applicant must have suffered pain and distress which cannot be compensated solely by the Court's finding of a violation. Having regard to the nature of the violation found and ruling on an equitable basis, it awards the applicant EUR 15,000 in respect of non-pecuniary damage.\n\nB.  Costs and expenses\n\n62.  The applicant also claimed a total of EUR 9,826.18 for the costs and expenses incurred before the domestic courts and for those incurred before the .\n\n63.  The Government contested this claim.\n\n64.  The Court may make an award in respect of costs and expenses in so far that they were actually and necessarily incurred and were reasonable as to quantum (see Sawicka v. Poland, no. 37645/97, § 54, 1 October 2002). Making its own estimate based on the information available, and ruling on an equitable basis, the Court awards the applicant a global sum of EUR 2,500 in respect of costs and expenses less the sum of EUR 850 received in legal aid from the Council of Europe.\n\nC.  Default interest\n\n65.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Declares the complaint concerning the prison conditions inadmissible and the remainder of the application admissible;\n\n2.  Holds that there has been a substantive violation of Article 3 of the Convention on account of the applicant's torture in the Tekirdağ F-Type Prison;\n\n3.  Holds that there has been a procedural violation of Article 3 of the Convention on account of the failure of the authorities to conduct an effective investigation into the applicant's allegations that he was tortured in the Tekirdağ F-Type Prison;\n\n4.  Holds that there is no need to examine separately the complaint under Article 13 of the Convention;\n\n5.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts to be converted into New Turkish liras at the rate applicable at the date of settlement and free of any taxes or charges that may be payable:\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n6.  Dismisses the remainder of the applicant's claim for just satisfaction.\n\nDone in English, and notified in writing on 31 July 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_628","text":"PROCEDURE\n\n1.  The case originated in an application (no. 40852/05) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Sergey Anatolyevich Shlychkov (“the applicant”), on 16 September 2005.\n\n2.  The applicant, who had been granted legal aid, was represented by Ms O. Preobrazhenskaya, a lawyer practising in Strasbourg. The Russian Government (“the Government”) were represented by Mr Georgy Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.\n\n3.  The applicant alleged that he had been ill-treated in custody by the police, that there had been no effective investigation into the alleged illtreatment and that his conviction had been based on a confession obtained under duress.\n\n4.  On 26 February 2010 the application was communicated to the Government.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n5.  The applicant was born in 1955 and lives in Naro-Fominsk in the Moscow region. He is currently serving his sentence in IK-4 detention facility in the village of Udarnyy in the Republic of Mordovia.\n\nA.  Background events\n\n6.  At 8.20 p.m. on 6 March 2004 Ms E. was robbed in the street and was stabbed through the heart. She died of the wound shortly afterwards. The assailant took a mobile phone and 2,500 Russian roubles (RUB) from the victim’s purse.\n\n7.  The Naro-Fominsk town prosecutor’s office (“the town prosecutor’s office”) instituted a criminal investigation into E.’s killing. Having obtained from the mobile phone operator the call logs in respect of the victim’s phone, the investigators established that at 9.50 pm on 6 March 2004 a phone call had been made to a number belonging to Ms A. from E.’s phone using the applicant’s SIM card.\n\nB.  The applicant’s arrest\n\n1.  The applicant’s account\n\n8.  At 11 a.m. on 18 March 2004 the police arrived at the applicant’s flat and ordered him to follow them to the police station.\n\n9.  Once at the police station, the applicant explained that on 6 March 2004 he had bought a used mobile phone from a stranger because a friend of his had earlier expressed an interest in purchasing a second-hand phone. In order to test the phone, he had inserted his SIM card and made a call to his then girlfriend, Ms A. He also claimed that on the same day he had played slot machines and won RUB 2,500. Then the officers questioning him showed him a call log from Ms E.’s phone, informed him of the killing and suggested that he confess to mitigate his sentence. The applicant refused to admit to the crime.\n\n10.  The officers proceeded to hit and kick him on his head, chest and flanks. The applicant fainted several times. The beatings went on for twelve hours. Eventually the applicant gave in and agreed to write down a “statement of surrender and confession” (явка с повинной), as dictated by the officers, admitting to the robbery and murder of Ms E.\n\n11.  An investigator of the town prosecutor’s office, Mr A., questioned the applicant as a suspect and later went to the applicant’s flat to seize a few items including the mobile phone contract for the applicant’s SIM card.\n\n12.  The applicant was not provided with legal assistance on 18 March 2004.\n\n2.  The Government’s account\n\n13.  The applicant was brought to the police station at 10 p.m. on 18 March 2004. Upon arrival the police officers asked him how he had obtained Ms E.’s phone and then showed him the call log. The applicant looked at the log and then asked the officers to leave him alone in the room. He then wrote a statement of surrender and confession describing the circumstances of the crime. No physical force was applied to the applicant.\n\n14.  In the Government’s submission, on 18 March 2004 the applicant complained to the town prosecutor’s office; however, he did not raise the issue of ill-treatment.\n\n14.  In the Government’s submission, on 18 March 2004 the applicant complained to the town prosecutor’s office; however, he did not raise the issue of ill-treatment.\n\n15.  At 12.30 p.m. on 19 March 2004 an arrest record was drawn up. It contained a handwritten note by the applicant that read as follows: “[I] agree with the arrest, rights are understood, [I have] no statement to make”.\n\n15.  At 12.30 p.m. on 19 March 2004 an arrest record was drawn up. It contained a handwritten note by the applicant that read as follows: “[I] agree with the arrest, rights are understood, [I have] no statement to make”.\n\n16.  A handwritten statement signed by the applicant and dated 19 March 2004 affirmed that the applicant’s rights had been explained to him; that he did not require legal assistance; that the “bodily injuries visible at [that] moment on [his] face and body [had been] inflicted on 11 March 2004 by [his] roommate Dima”; and that police officers had not used force against him.\n\nC.  Criminal proceedings against the applicant and complaints about the alleged ill-treatment\n\nC.  Criminal proceedings against the applicant and complaints about the alleged ill-treatment\n\nC.  Criminal proceedings against the applicant and complaints about the alleged ill-treatment\n\nC.  Criminal proceedings against the applicant and complaints about the alleged ill-treatment\n\n17.  Between 12.40 a.m and 2.55 a.m on 19 March 2004 the applicant was questioned without a lawyer present.\n\n17.  Between 12.40 a.m and 2.55 a.m on 19 March 2004 the applicant was questioned without a lawyer present.\n\n18.  In the early morning on 19 March 2004 the applicant was placed in a temporary detention centre (Изолятор временного содержания, hereinafter “IVS”). According to the Government, when placed in the IVS, the applicant did not make any healthrelated complaints. He had a bruise under his right eye. An entry in the IVS logbook was made by an ambulance doctor stating that the applicant was “in a post-epileptic-fit state”.\n\n18.  In the early morning on 19 March 2004 the applicant was placed in a temporary detention centre (Изолятор временного содержания, hereinafter “IVS”). According to the Government, when placed in the IVS, the applicant did not make any healthrelated complaints. He had a bruise under his right eye. An entry in the IVS logbook was made by an ambulance doctor stating that the applicant was “in a post-epileptic-fit state”.\n\n19.  Between 11.10 a.m. and 12.50 p.m. on 19 March 2004 the applicant was questioned in the presence of Mr B., a legal-aid lawyer. According to the Government, in the course of the interview he described how he had committed the crime. The record of the interview reads that the applicant found the knife used as the murder weapon at a market after a fire.\n\n20.  On 20 or 22 March 2004 the investigators carried out an investigative re-enactment. In the applicant’s submission, the re-enactment was limited to bringing him to the crime scene and photographing him there. According to the Government, during the visit the applicant confirmed his statement made in the presence of the lawyer in the course of the second interview of 19 March 2004. He also selected a knife similar to that used to stab Ms E. from a selection of four knives available at a local shop.\n\n21.  On 20 March 2004 a judge of the Naro-Fominsk Town Court (“the Town Court”) placed the applicant in custody. The applicant complained to the judge about his ill-treatment; she refused to take note of the allegations, however, stating that they could be examined in the course of the trial against the applicant.\n\n22.  On 25 March 2004 the applicant was formally charged with murder and robbery. He retracted his confession.\n\n23.  On 26 March 2004 the police transported the applicant to a remand prison. However, the staff on duty refused to admit the applicant as he had visible injuries. The applicant was returned to the IVS. On 29 March 2004 the police again tried to transfer him to the remand prison and were refused for the second time.\n\n23.  On 26 March 2004 the police transported the applicant to a remand prison. However, the staff on duty refused to admit the applicant as he had visible injuries. The applicant was returned to the IVS. On 29 March 2004 the police again tried to transfer him to the remand prison and were refused for the second time.\n\n24.  On 30 March 2004 the police brought the applicant to the NaroFominsk polyclinic where he underwent an X-ray examination which showed that there were fractures to three ribs with signs that the bones were beginning to heal. The following day the applicant was admitted to the remand prison.\n\n25.  According to the applicant, once in the remand prison, he complained about his illtreatment to the town prosecutor’s office.\n\n26.  According to the Government, the applicant raised the ill-treatment complaint on 17 June 2004. The town prosecutor’s office carried out a preinvestigation inquiry on the basis of the complaint.\n\n26.  According to the Government, the applicant raised the ill-treatment complaint on 17 June 2004. The town prosecutor’s office carried out a preinvestigation inquiry on the basis of the complaint.\n\n27.  On 18 June 2004 Mr A., an investigator with the town prosecutor’s office, refused to initiate criminal proceedings into the alleged ill-treatment. He observed that upon arrival at the IVS the applicant had had a bruise under his right eye and yet had made no complaints about his state of health, and noted that, according to the IVS logbook, an ambulance had been called for the applicant on account of an epileptic fit.\n\n28.  On an unspecified date the criminal case against the applicant was submitted for trial before the Moscow Regional Court (“the Regional Court”).\n\n29.  The applicant first took cognisance of the decision of 18 June 2004 on 29 June 2004 while studying the case file in the criminal case against him.\n\n30.  The applicant complained about the town prosecutor’s office’s refusal of 18 June 2004 to the Russian Prosecutor General’s Office, which forwarded it for examination by the Prosecutor’s Office of the Moscow region. The latter forwarded the complaint to the town prosecutor’s office (against which the complaint was directed). The applicant received no reply.\n\n31.  The applicant did not attempt to institute any judicial review proceedings, considering that they would be futile on account of the judge’s reply of 20 March 2004.\n\n32.  On 27 July 2004 the Regional Court scheduled a trial hearing on 9 August 2004.\n\n33.  The applicant raised the matter of ill-treatment before the Regional Court at his trial.\n\n33.  The applicant raised the matter of ill-treatment before the Regional Court at his trial.\n\n34.  On 20 October 2004 the Regional Court ordered an expert medical examination of the X-ray of 30 March 2004. It can be seen from the trial record of that date that N. informed the judge that he was not an expert in interpreting Xrays and asked for a period of two weeks to consult a colleague; the judge acceded to the request. On 4 November 2004 N. drew up a report stating that the rib fractures had been caused by blunt objects; by 30 March 2004 the knitting together of the fractures had commenced; the fractures had been “considerably old” and “no injuries corresponding to [those of] 11 and 18 March 2004 [had been] identified”. The judge rejected the applicant’s request for another expert report.\n\n35.  The Regional Court dismissed the record of the first interview of 19 March 2004 as inadmissible evidence for the reason that the interview had been conducted without a lawyer present.\n\n36.  On 3 December 2004 the Regional Court convicted the applicant of robbery and murder and sentenced him to twenty years’ imprisonment. The court referred to the applicant’s pre-trial confession, the record of his questioning by the investigator, his statements at the investigative reenactment and other physical evidence.\n\n36.  On 3 December 2004 the Regional Court convicted the applicant of robbery and murder and sentenced him to twenty years’ imprisonment. The court referred to the applicant’s pre-trial confession, the record of his questioning by the investigator, his statements at the investigative reenactment and other physical evidence.\n\n37.  The trial judge also examined in detail the evidence presented by the parties in relation to the allegation of illtreatment, including the decision of 18 June 2004 and the expert medical report ordered in respect of the X-ray. The judge also heard evidence from an expert, N., as well as investigator Mr A. and several police officers. The judge refused to examine the IVS logbook which, according to the applicant, would support his assertion that there were injuries. Instead, the judge examined a letter from the deputy director of the IVS, according to which on his arrival there the applicant only had had a black eye which he had explained as having received before the arrest. The deputy director had also noted that the logbook entry concerning the call for an ambulance had been made for another person. The judge dismissed the applicant’s allegations of ill-treatment and declared the relevant evidence (the confession statement, the interview record and the investigative re-enactment record) admissible.\n\n38.  On 6 December 2004 the applicant lodged an appeal reiterating the issue of his confession under duress without a lawyer present, as well as the weakness of the prosecution’s case against him. He insisted on his innocence.\n\n39.  On 14 December 2004 the applicant lodged an additional appeal in which he claimed that the Regional Court had wrongly considered his previous conviction as an aggravating factor and yet had chosen to regard the surrender and confession as a mitigating factor. He asked for the firstinstance judgment to be quashed on the grounds given in his appeal of 6 December 2004.\n\n40.  On the same date the applicant (through his counsel) lodged an appeal in which he insisted that the statement of surrender and confession had not been genuine as he had been forcibly brought to the police station and detained there for twelve hours with no access to a lawyer.\n\n41.  On 16 March 2005 the Supreme Court of Russia upheld the firstinstance judgment in a summary fashion.\n\n42.  The applicant further unsuccessfully sought supervisory review of his conviction.\n\n43.  On 5 April 2005 the applicant sent another complaint to the Prosecutor General’s Office, which was forwarded to the town prosecutor’s office.\n\n44.  On 12 May 2005 the deputy town prosecutor quashed the decision of 18 June 2004 and issued an instruction to carry out an additional preinvestigation inquiry.\n\n45.  On 15 May 2005 S., an investigator with the town prosecutor’s office, refused to institute an investigation into the applicant’s allegations of ill-treatment. He found it established that on 12 March 2004 a police officer in Naro-Fominsk had received a report of a violent fight; on 13 March 2004 he had invited the applicant to come in for a “preventative talk” and had noticed two bruises under the applicant’s eyes. S. concluded that the bruise under the applicant’s right eye had been a result of the injury inflicted long before the arrest. He also pointed out that the Regional Court had “carefully examined” the applicant’s version of ill-treatment by police officers. The issue of the fractured ribs was not examined.\n\nII.  RELEVANT DOMESTIC LAW\n\n.  For the summary of relevant domestic law see Lyapin v. Russia (no. 46956/09, §§ 96-102, 24 July 2014).\n\nIII.  RELEVANT INTERNATIONAL MATERIALS\n\nEuropean Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”)\n\nEuropean Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”)\n\nEuropean Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”)\n\n47.  The CPT Standards 2002 (revised in 2011) (CPT/Inf/E (2002) 1Rev. 2011) contain the following provisions (Extract from the 2nd General Report [CPT/Inf (92) 3]):\n\n“36.  The CPT attaches particular importance to three rights for persons detained by the police: the right of the person concerned to have the fact of his detention notified to a third party of his choice (family member, friend, consulate), the right of access to a lawyer, and the right to request a medical examination by a doctor of his choice (in addition to any medical examination carried out by a doctor called by the police authorities). They are, in the CPT’s opinion, three fundamental safeguards against the ill-treatment of detained persons which should apply as from the very outset of deprivation of liberty, regardless of how it may be described under the legal system concerned (apprehension, arrest, etc.).\n\n37.  Persons taken into police custody should be expressly informed without delay of all their rights, including those referred to in paragraph 36. Further, any possibilities offered to the authorities to delay the exercise of one or other of the latter rights in order to protect the interests of justice should be clearly defined and their application strictly limited in time. As regards more particularly the rights of access to a lawyer and to request a medical examination by a doctor other than one called by the police, systems whereby, exceptionally, lawyers and doctors can be chosen from preestablished lists drawn up in agreement with the relevant professional organisations should remove any need to delay the exercise of these rights.\n\n38.  Access to a lawyer for persons in police custody should include the right to contact and to be visited by the lawyer (in both cases under conditions guaranteeing the confidentiality of their discussions) as well as, in principle, the right for the person concerned to have the lawyer present during interrogation.\n\nAs regards the medical examination of persons in police custody, all such examinations should be conducted out of the hearing, and preferably out of the sight, of police officers. Further, the results of every examination as well as relevant statements by the detainee and the doctor’s conclusions should be formally recorded by the doctor and made available to the detainee and his lawyer.”\n\n.  The relevant part of the CPT’s country report, following its visit to the Russian Federation of 21 May to 4 June 2012 (CPT/Inf (2013) 41), reads as follows:\n\n“39. As repeatedly stressed by the CPT in the past, the prompt and proper medical examination of persons admitted to IVS establishments is essential, in particular in order to facilitate any subsequent investigative measures related to allegations of illtreatment.\n\nThe Committee once again calls upon the Russian authorities to take immediate steps to ensure that:\n\n-  all persons admitted to IVS establishments are properly interviewed and physically examined by qualified health-care staff on the day of their admission or the following day; the same approach should be adopted each time a person returns to an IVS cell after having been taken out by operational officers (even for a short period of time);\n\n-  all medical examinations (whether they are carried out in hospitals or in law enforcement facilities) are conducted out of the hearing and – unless the health-care professional concerned expressly requests otherwise in a given case – out of the sight of law enforcement officials;\n\n-  the record drawn up following the medical examination of a detained person in a hospital or law enforcement establishment contains: (i) a full account of statements made by the person concerned which are relevant to the medical examination (including his/her description of his/her state of health and any allegations of ill-treatment), (ii) a full account of objective medical findings based on a thorough examination, and (iii) as far as possible, the health-care professional’s conclusions as to the consistency between injuries observed and any allegations of ill-treatment made by the person concerned;\n\n-  whenever injuries are recorded which are consistent with allegations of ill-treatment made by a detained person (or which, even in the absence of allegations, are indicative of ill-treatment), the record is systematically brought to the attention of the competent investigative authorities, regardless of the wishes of the person concerned. Detained persons and their lawyers should be entitled to receive a copy of that record at the same time.”\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION\n\n49.  The applicant complained that on 18 March 2004 he had been illtreated by police officers and that the domestic authorities had failed to conduct an effective investigation into the alleged ill-treatment. He relied on Article 3 of the Convention, which reads as follows:\n\n“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”\n\n50.  The Government submitted at the outset that the applicant had failed to exhaust the effective domestic remedies available to him as he had not challenged the town prosecutor’s office’s refusal to investigate the alleged ill-treatment of 18 June 2004 before a court. They further stated that the applicant’s allegations had not been supported by any medical certificates or other evidence and that the applicant had described the events in vague terms. The bruise under the applicant’s right eye noted upon arrival at the IVS on 19 March 2004 had been a result of the fight with “Dima”. They concluded that the complaint was manifestly ill-founded.\n\n51.  The applicant insisted that he had exhausted the domestic remedies available to him in the circumstances of the case referring to the following: firstly, he had learned of the refusal of 18 June 2004 on 29 June 2004 while studying the criminal case file shortly before the commencement of the trial against him; secondly, the Regional Court had examined the allegations of ill-treatment in detail – in particular, it had requested an expert medical report and had questioned several witnesses including the police officers allegedly involved; lastly, the issue of illtreatment had been brought to the attention of the Supreme Court of Russia on appeal. The applicant further maintained his complaint about the ill-treatment and emphasised the lack of an effective investigation into it pointing out, in particular, that the investigative authorities had not even attempted to establish which injuries had been inflicted in the course of the fight with “Dima”.\n\nA.  Admissibility\n\n52.  Turning to the Government’s plea of non-exhaustion, the Court observes that the applicant indeed failed to seek judicial review of the town prosecutor’s office’s refusal to investigate the alleged ill-treatment of 18 June 2004.  It reiterates, however, that the rule of exhaustion of domestic remedies must be applied with some degree of flexibility and without excessive formalism (see Akdivar and Others v. Turkey, 16 September 1996, § 69, Reports of Judgments and Decisions 1996IV).\n\n53.  It has not been disputed between the parties that the applicant raised his complaints of ill-treatment before the Regional Court during the trial proceedings against him, complaining of police brutality and the prosecutor’s indifference to his claims. The Regional Court did not refuse to entertain his complaints for failure to comply with any formal requirements: it took cognisance of the merits of those complaints by examining the applicant, the police officers and other witnesses and examining the inquiry materials, and upheld the conclusions of the prosecutor’s office. The Supreme Court of Russia endorsed the Regional Court’s findings in that respect. The Government did not argue that in pursuing this avenue of judicial review, the applicant had removed from the domestic courts the option of examining the relevant issues. In those circumstances, where the courts have already embarked on the analysis of an applicant’s complaints, the Court does not find it unreasonable that the applicant did not lodge the same complaints with the same courts (see Akulinin and Babich v. Russia, no. 5742/02, §§ 31-32, 2 October 2008; Vladimir Fedorov v. Russia, no. 19223/04, §§ 4749, 30 July 2009; and Lopata v. Russia, no. 72250/01, § 107, 13 July 2010). In such circumstances the Court dismisses the Government’s objection.\n\n54.  The Court further notes that this complaint is not manifestly illfounded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n1.  General principles\n\n55.  The Court has stated on many occasions that Article 3 of the Convention enshrines one of the most fundamental values of democratic societies. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman and degrading treatment or punishment, irrespective of the victim’s conduct (see Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV, and Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999V).\n\n56.  Allegations of ill-treatment must be supported by appropriate evidence (see, among many other authorities, Keller v. Russia, no. 26824/04, § 114, 17 October 2013). To assess this evidence, the Court adopts the standard of proof “beyond reasonable doubt”, but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25, and Bouyid v. Belgium [GC], no. 23380/09, § 82, 28 September 2015).\n\n57.  In relation to detainees, the Court has emphasised that persons in custody are in a vulnerable position and that the authorities are under a duty to protect their physical well-being (see, with further references, Bobrov v. Russia, no. 33856/05, § 33, 23 October 2014). Where an individual claims to have been injured as a result of illtreatment in custody, the Government are under an obligation to provide a complete and sufficient explanation as to how the injuries were caused (see Ribitsch v. Austria, 4 December 1995, § 34, Series A no. 336). In the absence of such explanation, the Court can draw inferences which may be unfavourable for the Government (see, with further references, Bouyid, cited above, § 83).\n\n58.  The Court further recalls that where an individual raises an arguable claim that he has been seriously ill-treated by the police or other such State agents unlawfully and in breach of Article 3 of the Convention, that provision – read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in ... [the] Convention” – requires by implication that there should be an effective official investigation (see Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports 1998VIII).\n\n59.  An obligation to investigate “is not an obligation of result, but of means”: not every investigation should necessarily be successful or come to a conclusion which coincides with the claimant’s account of events; however, it should in principle be capable of leading to the establishment of the facts of the case and, if the allegations prove to be true, to the identification and punishment of those responsible (see Zelenin v. Russia, no. 21120/07, § 42, 15 January 2015).\n\n60.  An investigation into serious allegations of ill-treatment must be thorough. This means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or illfounded conclusions to close their investigation or as the basis for their decisions (see Assenov and Others, cited above, §§ 103 et seq.). They must take all reasonable steps available to them to secure evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence and so forth (see, with further references, Korobov and Others v. Estonia, no. 10195/08, § 113, 28 March 2013). Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard (see Mikheyev v. Russia, no. 77617/01, § 108, 26 January 2006).\n\n61.  Furthermore, the investigation must be expeditious. In cases examined under Articles 2 and 3 of the Convention, where the effectiveness of an official investigation is at issue, the Court has often assessed whether the authorities reacted promptly to the complaints at the relevant time (see Labita, cited above, §§ 133 et seq.). Consideration has been given to the starting of investigations, delays in taking statements (see Timurtaş v. Turkey, no. 23531/94, § 89, ECHR 2000-VI, and Tekin v. Turkey, 9 June 1998, § 67, Reports 1998-IV), and the length of time taken to complete the initial investigation (see Indelicato v. Italy, no. 31143/96, § 37, 18 October 2001).\n\n2.  Application of the general principles to the present case\n\n62.  The Court observes at the outset that the events of 18 March 2004, the date on which the applicant was allegedly subjected to ill-treatment, are disputed between the parties. However, it is common ground between them that the X-ray of 30 March 2004 showed that the applicant had three fractured ribs (see paragraph 24 above).\n\n.  The Court notes that in the course of the proceedings before it the Government have not put forward any explanation as to the origin of the fractures in question as they chose to comment only on the bruise under the applicant’s right eye. That compels the Court to establish the facts, drawing such inferences as it deems appropriate from that attitude (see Savriddin Dzhurayev v. Russia, no. 71386/10, § 132, ECHR 2013 (extracts)).\n\n64.  The Court observes at the outset that the materials in its possession demonstrate that the applicant was not examined by a doctor or other medical professional upon placement in the IVS despite the fact that he had visible bruising on his face which was noted, in particular, by the deputy head of the facility (see paragraphs 18, 27 and 37 above). It emphasises in this connection that the CPT regards a right of access to a doctor for detained persons during their custody by law-enforcement agencies as one of the three fundamental safeguards against ill-treatment (see paragraph 47 above). In the absence of any explanation for such an omission put forward by the respondent Government, the Court cannot but conclude that the failure on the part of the IVS personnel to ensure that the applicant’s injuries were immediately examined and documented by a doctor divested the applicant of an important safeguard against a breach of Article 3 of the Convention (compare İlhan v. Turkey [GC], no. 22277/93, § 87, ECHR 2000VII; Barabanshchikov v. Russia, no. 36220/02, § 46, 8 January 2009; Davitidze v. Russia, no. 8810/05, § 95, 30 May 2013; and Zayev v. Russia, no. 36552/05, §§ 85-86, 16 April 2015).\n\n.  The Court further notes that the only medical evidence available in the present case, namely the X-ray examination of 30 March 2004, showed fractures of three ribs in an early stage of recovery (see paragraph 24 above). When dismissing the allegations of ill-treatment, the Regional Court relied heavily on the findings of N. who had concluded that the fact that the rib fractures had begun to knit by 30 March 2004 to be sufficient to refute the applicant’s version of the events of 18 March 2004. The Court observes, however, that the Regional Court was made aware of the fact that N. regarded his expertise in reading Xrays insufficient to assess the rib fractures without external assistance (see paragraph 34 above). Moreover, N.’s assessment of the fractures as “considerably old” does not appear to be sufficiently precise to dismiss with certainty the claim that the applicant had sustained injuries twelve days prior to the X-ray.\n\n.  In view of the above considerations, the Court concludes that the applicant presented a sufficiently detailed and consistent account of the beatings by the police officers on 18 March 2004 and, accordingly, raised an arguable claim of alleged ill-treatment.\n\n.  Since no credible account of how the fractures to the applicant’s ribs had been caused was given either at the domestic pre-investigation inquiry stage or before the Court, it considers that the respondent Government failed to discharge their burden of proof and that it was not satisfactorily established that the applicant’s account of events was inaccurate or otherwise erroneous (see Ryabtsev v. Russia, no. 13642/06, § 74, 14 November 2013, and Zelenin, cited above, § 49). In such circumstances the Court does not deem it necessary to assess the Government’s assertion that the injuries could have been inflicted in the fight with “Dima” on 11 March 2004.\n\n68.  Bearing in mind the authorities’ obligation to account for injuries caused to persons within their control in custody, the Court concludes that the applicant’s injuries, at least in part, were the result of treatment he underwent while in police custody for which the respondent State bore responsibility.\n\n68.  Bearing in mind the authorities’ obligation to account for injuries caused to persons within their control in custody, the Court concludes that the applicant’s injuries, at least in part, were the result of treatment he underwent while in police custody for which the respondent State bore responsibility.\n\n69.  Having regard to all the circumstances of the ill-treatment, its physical and mental effects and the applicant’s health, the Court finds that the accumulation of the acts of physical violence inflicted on the applicant amounted to inhuman and degrading treatment, in breach of Article 3 of the Convention.\n\n69.  Having regard to all the circumstances of the ill-treatment, its physical and mental effects and the applicant’s health, the Court finds that the accumulation of the acts of physical violence inflicted on the applicant amounted to inhuman and degrading treatment, in breach of Article 3 of the Convention.\n\n70.  There has therefore been a violation of the above provision under its substantive limb.\n\n.  The Court observes that it is not disputed by the parties that the State was under a procedural obligation, arising from Article 3 of the Convention, to carry out an effective investigation into the applicant’s allegations of illtreatment.\n\n.  The Court notes that the town prosecutor’s office carried out a preinvestigation inquiry into the applicant’s allegations. It is not convinced, however, that the inquiry in question was sufficiently thorough and effective to meet the requirements of Article 3 of the Convention.\n\n.  Indeed, the Court has previously ruled that in the context of the Russian legal system a “preinvestigation inquiry” alone is not capable of leading to the punishment of those responsible, since the opening of a criminal case and a criminal investigation are prerequisites for bringing charges against the alleged perpetrators which may then be examined by a court. The Court drew strong inferences from the mere fact that the investigative authority had refused to open a criminal investigation into credible allegations of serious illtreatment in police custody, regarding it as indicative of the State’s failure to comply with its obligation under Article 3 of the Convention to carry out an effective investigation (see Lyapin v. Russia, no. 46956/09, §§ 135-36, 24 July 2014). Moreover, the Court found that as a result of their refusals to open a criminal case, the town prosecutor’s office had never conducted a proper criminal investigation in which the whole range of investigative measures could be carried out, including questioning, confrontation, identification parade, search and seizure, and crime reconstruction (ibid., § 132).\n\n.  In view of the above, the Court also considers in the instant case that the refusal to open a criminal case into the applicant’s credible allegations of ill-treatment at the hands of the police officers on 18 March 2004 amounted to a failure to carry out an effective investigation as required by Article 3 of the Convention. This conclusion makes it unnecessary for the Court to examine in detail the preinvestigation inquiry conducted in the applicant’s case, with a view to identifying specific deficiencies and omissions on the part of the investigators (see Zelenin, cited above, § 59).\n\n.  The above considerations are sufficient for the Court to conclude that there has been a violation of Article 3 of the Convention under its procedural limb.\n\nII.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION\n\n76.  The applicant complained under Article 6 of the Convention that he had been convicted on the basis of his confession given under duress and without a lawyer present. The Court will examine this complaint under Article 6 §§1 and 3 (c) of the Convention, which, in so far as relevant, provides:\n\n“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...\n\n...\n\n3.  Everyone charged with a criminal offence has the following minimum rights:\n\n...\n\n(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require ...”\n\n77.  The Government submitted that the record of the first interview of 19 March 2004 conducted without a lawyer present (see paragraph 17 above) had been declared inadmissible evidence by the Regional Court and that accordingly in that part of the applicant’s complaint was manifestly illfounded. With regard to the statement of surrender and confession, the Government admitted that it had been made without a lawyer present; they noted, however, that the applicant had waived the right to legal assistance in writing and that in his appeal of 14 December 2004 he had invoked the fact of surrender and confession as a mitigating circumstance. The Government stated that the applicant’s conviction had been based on various pieces of evidence, in particular, the record of the second interview of 19 March 2004 (see paragraph 19 above), the investigative re-enactment record, witnesses’ statements and other unspecified evidence. They concluded that the applicant’s complaint was manifestly ill-founded.\n\n78.  The applicant alleged that, because of the ill-treatment he had sustained at the hands of the police, he could not be said to have waived his right to legal assistance on 19 March 2004. Moreover, the statement of surrender and confession had been written on 18 March 2004, that is to say before the statement declining legal assistance had been put in writing. He concluded that there had been no clear and unequivocal waiver of his right to legal assistance in his case and that, consequently, his Convention right of access to a lawyer had been breached. He further pointed out that the selfincriminatory statement made under duress without the benefit of legal advice had served as the sole evidence of his guilt.\n\nA.  Admissibility\n\n79.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n.  The Court reiterates that it is not the role of the Court to determine, as a matter of principle, whether particular types of evidence – for example, evidence obtained unlawfully in terms of domestic law – may be admissible. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. This involves an examination of the unlawfulness in question and, where the violation of another Convention right is concerned, the nature of the violation found (see Gäfgen v. Germany [GC], no. 22978/05, § 163, ECHR 2010).\n\n.  The right to silence and the privilege against self-incrimination are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6 of the Convention. Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities, thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6 of the Convention. The right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused (see Jalloh v. Germany [GC], no. 54810/00, § 100, ECHR 2006IX).\n\n.  Confession statements obtained in violation of Article 3 of the Convention are inherently unreliable. Furthermore, their use in criminal proceedings is often a reason for which the acts of ill-treatment are committed in the first place. Taking such statements into consideration in finding a person guilty is incompatible with the guarantees of Article 6 of the Convention (see Söylemez v. Turkey, no. 46661/99, § 122, 21 September 2006).\n\n.  The Court has found in earlier cases, in respect of confessions as such, that the admission of statements obtained as a result of torture (compare Örs and Others v. Turkey, no. 46213/99, § 60, 20 June 2006; Harutyunyan v. Armenia, no. 36549/03, §§ 63, 64 and 66, ECHR 2007III; Levinţa v. Moldova, no. 17332/03, §§ 101 and 104-05, 16 December 2008; Hajnal v. Serbia, no. 36937/06, § 113, 19 June 2012), or of other illtreatment in breach of Article 3 of the Convention (see Söylemez, cited above, §§ 107 and 12224; Iordan Petrov v. Bulgaria, no. 22926/04, § 136, 24 January 2012; and Nasakin v. Russia, no. 22735/05, §§ 98-100, 18 July 2013) as evidence in establishing the relevant facts in criminal proceedings rendered the proceedings as a whole unfair. The use of evidence secured as a result of a violation of one of the core and absolute rights guaranteed by the Convention always raises serious issues as to the fairness of the proceedings, even if the admission of such evidence was not decisive in securing a conviction (see Gäfgen, cited above, § 165).\n\n.  In the present case, it is not disputed between the parties that the self-incriminating statement of surrender and confession made by the applicant without a lawyer present, following his arrest and placement in police custody, formed part of the evidence adduced against him in the course of the criminal proceedings. The Regional Court did not find the statement inadmissible and referred to it when finding the applicant guilty and convicting him.\n\n.  The Government, however, asserted that the applicant had waived his procedural rights, relying on his written statements of 19 March 2004 (see paragraphs 1516 above). The Court reiterates in this connection that a waiver of a right guaranteed by the Convention – in so far as it is permissible – must not run counter to any important public interest, must be established in an unequivocal manner and must be attended by minimum safeguards commensurate to the waiver’s importance (see Sejdovic v. Italy [GC], no. 56581/00, § 86, ECHR 2006-II). In the circumstances of the present case it finds it impossible to agree with the Government’s waiver claim as the written statements of 19 March 2004 were clearly made after the statement of surrender and confession had been drawn up on 18 March 2004. Most importantly, the applicant cannot be said to have validly waived his privilege against self-incrimination in view of the Court’s finding in paragraph 69 above that he had sustained the ill-treatment in violation of Article 3 of the Convention.\n\n86.  The Court therefore finds that the domestic courts’ use of the applicant’s surrender and confession statement as evidence in establishing the applicant’s guilt – irrespective of the probative value of that statement and irrespective of whether its use was decisive in securing the applicant’s conviction – has rendered the applicant’s trial unfair.\n\n.  There has therefore been a violation of Article 6 § 1 of the Convention.\n\n.  In view of the above, the Court does not deem it necessary to examine separately the part of the applicant’s complaint concerning lack of access to a lawyer.\n\nIII.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION\n\n89.  The applicant raised a number of other complaints under various Convention provisions. Having regard to all the material in its possession, the Court finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.\n\nIV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n90.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n91.  The applicant claimed 40,000 euros (EUR) in respect of pecuniary damage for the cost of medical treatment that he would require as a result of the ill-treatment. In particular, he claimed that his hearing had been impaired and that he had developed heart pains. He also requested EUR 6,000 allegedly embezzled from him by a lawyer previously retained by him.\n\n92.  He further claimed EUR 300,000 in respect of non-pecuniary damage caused by the ill-treatment. He also claimed EUR 650,000 in compensation for his detention.\n\n93.  The Government stated that the claims in respect of pecuniary damage were not supported by evidence. They further asserted that the claims in respect of nonpecuniary damage were excessive.\n\n94.  The Court does not discern any causal link between the violations found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it considers that the applicant must have suffered nonpecuniary damage on account of the breaches of his Convention rights which cannot be compensated for by mere findings of violations and awards the applicant EUR 19,500 under that head.\n\nB.  Costs and expenses\n\n95.  The applicant also claimed EUR 1,640 for the costs and expenses incurred before the Court corresponding to 24.5 hours’ work on the part of his representative. An itemised schedule of these costs was submitted.\n\n96.  The Government asserted that the applicant’s claims under this head were not supported by evidence.\n\n97.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, and bearing in mind that the applicant was granted EUR 850 in legal aid for his representation by Ms Preobrazhenskaya, the Court considers it reasonable to award the sum of EUR 790 for costs and expenses incurred in the proceedings before it.\n\nC.  Default interest\n\n98.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\n1.  Declares the complaints about alleged ill-treatment in police custody, the ineffectiveness of the ensuing investigation and the use at the trial of the coerced confession obtained without a lawyer present admissible and the remainder of the application inadmissible;\n\n2.  Holds that there has been a violation of Article 3 of the Convention under its substantive limb;\n\n3.  Holds that there has been a violation of Article 3 of the Convention under its procedural limb;\n\n4.  Holds that there has been a violation of Article 6 § 1 of the Convention in respect of the use of the applicant’s surrender and confession statement as evidence;\n\n5.  Holds that it is not necessary to examine separately the applicant’s complaint under Article 6 § 1 of the Convention concerning lack of access to a lawyer;\n\n6.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n7.  Dismisses the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 9 February 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_635","text":"PROCEDURE\n\n1.  The case originated in an application (no. 25597/07) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Finnish national, Ms Sirpa Marita Taavitsainen (“the applicant”), on 13 June 2007.\n\n2.  The applicant was represented by Mr Jaakko Tuutti, a lawyer practising in . The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.\n\n3.  On 10 November 2008 the President of the Fourth Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 3).\n\nTHE FACTS\n\n4.  The applicant was born in 1971 and lives in .\n\nI. THE CIRCUMSTANCES OF THE CASE\n\n5.  On 16 June 2001 the police searched the applicant's apartment on account of a suspicion that it had been used for procuring. On 26 June 2001 she was questioned as a suspect. On 11 August 2001 the pre-trial investigation was completed.\n\n6.  On 23 August 2001 the public prosecutor preferred charges against the applicant for procuring, allegedly committed during the period from 4 to 11 June 2001.\n\n7.  On an unspecified date the applicant was summoned to appear before the Tampere District Court (käräjäoikeus, tingsrätten) at a hearing which was to take place on 6 March 2002.\n\n8.  However, the hearing was cancelled owing to the fact that Ms H., a witness, had failed to appear before the court although lawfully summoned to do so. Another witness, Ms M., had not been summoned. Both witnesses were Estonian citizens. The hearing of the case was postponed until 12 August 2002 and Ms H. was summoned to appear before the court on pain of a fine of 650 euros (EUR).\n\n9.  On 12 August 2002 the District Court noted that the above-mentioned witnesses had failed to appear before it although lawfully summoned. The court adjourned the case until 11 December 2002 and decided to summon the witnesses on pain of a fine of EUR 800 each.\n\n10.  On 11 December 2002 the District Court noted that the witnesses had not been summoned, postponed the hearing of the case until 1 December 2003 and decided that the witnesses should be summoned to appear before it on pain of a fine of EUR 800 each. The court also issued warrants for their arrest.\n\n11.  On 1 December 2003 the District Court again noted that the witnesses had not been summoned, adjourned the case until 26 May 2004 and decided that the witnesses should be summoned to appear on pain of a fine of EUR 800 each. The court also issued warrants for their arrest.\n\n12.  On 26 May 2004 the District court noted that Ms M. had not been summoned and that Ms H. had been summoned but failed to appear. It postponed the hearing of the case until 8 December 2004, issued warrants for their arrest and decided that they should be brought to court.\n\n13.  On 8 December 2004 the District Court noted that the witnesses had not been found. The case was adjourned until further notice.\n\n14.  According to the Government, seven more attempts were made by the District Court to hold an oral hearing between 2005 and 2008. These attempts proved unsuccessful, as the witnesses could not be brought before the court in .\n\n15.  In January 2008 the District Court contacted the Finnish liaison prosecutor in  to explore the possibility of arranging the hearing of the witnesses through a video link.\n\n16.  In the autumn of 2008 the District Court received video-conferencing equipment. On 9 January 2009 the District Court issued a request for international legal assistance to  to have the hearing by video link arranged.\n\n17.  On 23 February 2009 the District Court held its oral hearing. The applicant argued that the proceedings had exceeded a reasonable time and were thus in breach of the Convention. In consequence, the charges against her should be dismissed. The court rejected the applicant's argument. It acknowledged that the proceedings had been delayed but noted that the delay had resulted from the unsuccessful attempts to bring the crucial witnesses before the court. It was only after the Tampere District Court was provided with video-conferencing equipment that the hearing could be held and the court was able to receive testimony from the witnesses in their own country.\n\n18.  On 3 March 2009 the District Court gave its judgment. It found that, between 4 and 11 June 2001, the applicant had provided an apartment for the practice of prostitution for two women and gained from that arrangement. It convicted the applicant of procuring and sentenced her to 30 unit fines. It also ordered her to pay the State 1,681.87 euros (EUR) representing the proceeds of the offence.\n\n19.  In assessing the gravity of the offence the court noted that the two women who had occupied the applicant's apartment had not been controlled by her, but had provided sexual services of their own free will. The court again acknowledged the excessive length of the proceedings, noting that it was not attributable to the applicant. Relying on Chapter 6, Article 7 of the Penal Code (rikoslaki, strafflagen) it stated that she was entitled to redress for the delay, which could be awarded either by choosing a more lenient type of punishment or by reducing the sentence. The court went on to state that the applicant had been found guilty of fairly small-scale unorganised procuring. It also took into account the short period of time over which the offence had been committed and the small amount of proceeds obtained. For those reasons, and due to the length of the proceedings, the court concluded that the applicant should be sentenced to a fine. The court also took into account the delay in the proceedings in the amount of the unit fines, without specifying the reduction in the sentence.\n\n20.  No appeals were filed with the Court of Appeal (hovioikeus, hovrätten) and the judgment gained legal force on 11 March 2009.\n\nII. RELEVANT DOMESTIC LAW\n\n21.  Chapter 6, Article 7 of the Penal Code, as amended by Act No. 515/2003, which took effect on 1 January 2004, reads in relevant parts:\n\n“In addition to what is provided above in Article 6, grounds for mitigating the sentence that are also to be taken into consideration are\n\n...\n\n(3) a considerably long period that has passed since the commission of the offence;\n\nif the punishment that accords with established practice would for these reasons lead to an unreasonable or exceptionally detrimental result.”\n\n22.  The sanction for procuring provided by the Penal Code runs from one unit fine to three years' imprisonment (Chapter 2a, Article 1(1) and Chapter 20, Article 9 (1)).\n\n23.  Chapter 17, Article 34a of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken), as amended by Act no. 360/2003, which came into force on 1 October 2003, provides the following:\n\n“A witness...may be heard in the oral hearing without his or her appearance in person with the use of a video conference of other appropriate technical means of communication, where the persons participating in the hearing have an audio and video link with one another, if the court deems that this is suitable and:\n\n1) the person to be heard cannot, due to illness or another reason, appear in person in the oral hearing, or his or her personal appearance in proportion to the significance of the testimony would cause unreasonable costs or unreasonable inconvenience;\n\n2) the credibility of the statement of the person to be heard can be reliably assessed without his or her personal appearance at the oral hearing;\n\n3) the procedure is necessary in order to protect the person to be heard or a person related to him or her in the manner referred to in Chapter 15, Article 10 (2) of the Penal Code, from a threat directed at life or health; or\n\n4) the person to be heard has not reached the age of 15 years or he or she is mentally incapacitated.\n\nA party shall be given an opportunity to put questions to the person being heard.\n\nIn the cases referred to above in points 1 and 2 of paragraph 1, however, a telephone may also be used at the hearing.”\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION\n\n24.  The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:\n\n“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”\n\n25.  The Government contested that argument.\n\n26.  The period to be taken into consideration began on 16 June 2001 when the police searched the applicant's apartment and ended on 3 March 2009 when the District Court gave its judgment. It thus lasted seven years, eight months and 18 days for one level of jurisdiction.\n\nA.  Admissibility\n\n27.  The Government argued, firstly, that the applicant had received sufficient redress in that the District Court essentially mitigated the sentence due to the length factor, as provided by Chapter 6, Article 7 of the Penal Code. The court acknowledged the delay in the proceedings and stated that it was not attributable to the applicant. It followed that the applicant could no longer claim to be victim of the alleged breach of the “reasonable time” requirement. Secondly, the Government argued that the applicant failed to make use of the domestic remedies in that she did not appeal against the District Court's judgment. The Government concluded that, in any case, the application was manifestly ill-founded as the delay in the proceedings was not attributable to the State.\n\n28.  The applicant pointed out that the punishment for procuring ranged from one unit fine to three years' imprisonment. The District Court had relied on several factors, favourable to the applicant, when fixing her sentence. The length factor did not stand out as the decisive factor in that respect. The sentence imposed on the applicant, 30 unit fines, might well have been an appropriate punishment for the offence in question, even excluding the mitigation. As the reduction in the sentence had not been made in a clear and measurable manner, the applicant had not lost her victim status. The applicant further contested the Government's other arguments.\n\n29.  The Court points out that the mitigation of a sentence on the ground of the excessive length of proceedings does not in principle deprive the individual concerned of his or her status as a victim within the meaning of Article 34 of the Convention. However, this general rule is subject to an exception when the national authorities have acknowledged in a sufficiently clear way the failure to observe the reasonable time requirement and have afforded redress by reducing the sentence in an express and measurable manner (see Eckle v. Germany, 15 July 1982, § 66, Series A no. 51, § 66, Beck v. Norway, no. 26390/95, § 27, 26 June 2001 and Cocchiarella v. Italy [GC], no. 64886/01, § 77, ECHR 2006-...).\n\n30.  In the present case, while it is true that the District Court stated that it was taking into account the length of proceedings in reducing the applicant's sentence, it is not apparent from its judgment what this reduction was. As the applicant pointed out, the District Court relied on several factors when fixing her sentence. It is clear from that court's reasoning that the applicant's offence was not considered grave. In the absence of any information from the Government on comparable sentencing practices (compare and contrast Beck v. Norway, cited above, §§ 17 and 28), the Court cannot but subscribe to the applicant's view that the appropriate punishment in her case might well have been at the lower end of the sentencing scale, even excluding the length factor.\n\n31.  The Court acknowledges the attempt by the District Court to comply with the requirements of Article 6 § 1 of the Convention by affording the applicant redress for the excessive length of the proceedings. It is not, however, satisfied that the reduction of the sentence was measurable and had a decisive impact on the applicant's sentence. The Court thus finds that the applicant may still claim to be a victim.\n\n32.  As to the Government's argument concerning the alleged failure by the applicant to exhaust domestic remedies, the Court considers it appropriate to examine that issue in connection with the complaint concerning the alleged violation of Article 13 of the Convention.\n\n33.  Having regard to the above, the Court notes that the complaint concerning the length of the proceedings is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, nor is it inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n34.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II).\n\n35.  The Government contended that the delay in the proceedings did not result from any inactivity of the District Court but rather from the failure of the witnesses to appear before that court. Several attempts were made to bring the witnesses to the hearing, but they proved unsuccessful. As the witnesses were citizens of another State, the court was not able to use coercive measures against them. The hearing could only be arranged after the court was provided with video-conferencing equipment and the witnesses were able to give testimony in their own country. The hearing of those witnesses constituted crucial evidence in the case.\n\n36.  The applicant contested the Government's view. If the video-conferencing equipment was the only effective means for the successful handling of cases with international connections, it should be asked why the State did not provide the court with such equipment sooner.\n\n37.  The Court finds the applicant's argument justified. It acknowledges the difficulty for the District Court to obtain the attendance of the two witnesses in the absence of the possibility to use coercive measures against them, both being foreign nationals. However, having regard to the District Court's reasoning, as summarised in paragraph 17 above, it seems that the only obstacle to the hearing of those witnesses by means of video conferencing was the lack of suitable equipment. The Court observes that the provision enabling the hearing of a witness by such means came into force on 1 October 2003. Yet the State did not provide the Tampere District Court with video-conferencing equipment until autumn 2008 thus, in practice, hindering the application of the above-mentioned provision. The Government have not claimed that there was any other impediment to the hearing of the witnesses via video link, such as lack of co-operation by the Estonian authorities or suitable video-conferencing equipment in that country. On the contrary, it appears that the Estonian authorities acceded to the District Court's request for international legal assistance once it was made, without delay. The Court thus finds that the delay in the proceedings at hand is attributable to the State.\n\n38.  The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Pélissier and Sassi, cited above).\n\n39.  Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.\n\nThere has accordingly been a breach of Article 6 § 1.\n\nII.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION\n\n40.  The applicant also complained that there was no effective remedy at her disposal for her length complaint. She relied on Article 13 of the Convention, which reads:\n\n“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”\n\n41.  The Government contested that argument.\n\n42.  The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.\n\n43.  As the Court has held on many occasions, Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief. The scope of the Contracting States' obligations under Article 13 varies depending on the nature of the applicant's complaint; however, the remedy required by Article 13 must be “effective” in practice as well as in law (see, among other authorities, Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000-XI and Cocchiarella v. Italy [GC], cited above, §§ 74-79, ECHR 2006-...).\n\n44.  The Court reiterates that, under Finnish law, the applicant was at no stage of the proceedings able to request a domestic court to expedite the conduct of the proceedings or to file a claim for compensation either during their course or following their termination (see, for example, Scordino v. Italy (no. 1) [GC], no. 36813/97, § 186, ECHR 2006). Moreover, given the uncertainty of whether the appellate court would eventually apply Chapter 6, Article 7 of the Penal Code and mitigate the sentence on the ground of the excessive length of the proceedings, to the extent of providing sufficient redress, the Court finds that the defendant cannot be expected to appeal against a lower court's judgment solely for that purpose. The remedy suggested by the Government also appears illusory in a situation where the proceedings have already exceeded a reasonable time. The Government have failed to substantiate the existence of any remedy whereby the applicant could have obtained redress for her complaint.\n\n45.  It follows that the applicant did not have an effective remedy in the present case. There has thus been a breach of Article 13 of the Convention.\n\nIII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n46.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n47.  The applicant claimed 5,000 euros (EUR) in respect of non-pecuniary damage.\n\n48.  The Government contested the claim submitting that any compensation under that head should not exceed EUR 2,000.\n\n49.  The Court considers that it should award the full sum claimed.\n\nB.  Costs and expenses\n\n50.  The applicant also claimed EUR 2,305.80 (inclusive of value-added tax) for the costs and expenses incurred before the Court.\n\n51.  The Government contested the claim. Any award should not exceed EUR 1,400.\n\n52.  According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers that the sum claimed should be awarded in full.\n\nC.  Default interest\n\n53.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Declares the application admissible;\n\n2.  Holds that there has been a violation of Article 6 § 1 of the Convention;\n\n3.  Holds that there has been a violation of Article 13 of the Convention in that connection;\n\n4.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:\n\n(i) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;\n\n(ii) EUR 2,305.80 (two thousand three hundred and five euros and eighty cents), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.\n\nDone in English, and notified in writing on 8 December 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_712","text":"PROCEDURE\n\n1.  The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table\n\n2.  The Russian Government (“the Government”) were given notice of the applications.\n\nTHE FACTS\n\n3.  The list of applicants and the relevant details of the applications are set out in the appended table.\n\n4.  The applicants complained of the unlawful detention (deprivation of liberty). They also raised other complaints under the provisions of the Convention.\n\nTHE LAW\n\nJOINDER OF THE APPLICATIONS\n\n5.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.\n\nALLEGED VIOLATION OF ARTICLE 5 § 1 of the Convention\n\n6.  The applicants complained that the administrative escorting and arrest procedures and their ensuing detention had been in contravention of Article 5 § 1 of the Convention, which, in so far as relevant, reads as follows:\n\n“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:\n\n...\n\n(c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ...”\n\n7.  The Court has previously examined complaints brought by persons arrested and detained in similar circumstances in Russia. Having examined the applicable domestic regulations, the Court established that, under the Russian law, the escorting to a police station and ensuing detention there for the purpose of preparing an administrative arrest record would be permissible only if such record could not be drawn up at the place where the alleged offence had been discovered. The law also required that such escorting and detention be an “exceptional case” and necessary for the prompt and proper examination of the alleged administrative case or to secure the enforcement of any penalty to be imposed (see, for example, Navalnyy v. Russia [GC], nos. 29580/12 and 4 others, § 71, 15 November 2018). The authorities’ failure to comply with those requirements, in the Court’s view, led to it finding a violation of Article 5 § 1 of the Convention (see, in particular, Korneyeva v. Russia, no. 72051/17, §§ 34-36, 8 October 2019).\n\n8.  Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility (including by applying the three-month extension introduced by decision of the President of the Court in 2020 as a consequence of the lockdown imposed in France on account of the COVID19 pandemic (see Saakashvili v. Georgia (dec.), nos. 6232/20 and 22394/20, §§ 46-59, 1 March 2022)) and merits of these complaints. The Court discerns nothing in the official records submitted for it to conclude that recourse to such procedures was justified, as required by the Russian law. It concludes that that the national authorities failed to comply with applicable rules of domestic procedure and considers that the applicants’ arrest and detention were not “in accordance with a procedure prescribed by law”.\n\n9.  These complaints are therefore admissible and disclose a breach of Article 5 § 1 of the Convention.\n\nOTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW\n\n10.  The applicants submitted other complaints which also raised issues under the Convention, given the relevant well-established case-law of the Court (see the appended table). These complaints are not manifestly illfounded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its wellestablished case-law (see Karelin v. Russia, no. 926/08, 20 September 2016, concerning examination of criminal cases in the absence of a prosecuting party in the judicial proceedings governed by the Federal Code of Administrative Offences, Frumkin v. Russia, no. 74568/12, 5 January 2016, concerning disproportionate measures taken by the authorities against organisers and participants of public assemblies, and Tsvetkova and Others v. Russia, nos. 54381/08 and 5 others, §§ 179-91, 10 April 2018, concerning delayed review of the applicants’ sentence of administrative detention).\n\n11.  In view of the above findings, the Court considers that there is no need to deal separately with the applicants’ complaints under Article 6 of the Convention concerning other aspects of the fairness of the proceedings and alleged restrictions on the right to examine witnesses.\n\nAPPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n12.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\n13.  Regard being had to the documents in its possession and to its caselaw (see, in particular, Saidov v. Russia [Committee], no. 31872/19, § 23, 26 July 2022), the Court considers it reasonable to award the sums indicated in the appended table.\n\n14.  The Court further considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\nDecides to join the applications;\n\nDeclares the complaints concerning the unlawful detention (deprivation of liberty) and the other complaints under well-established case-law of the Court, as set out in the appended table, admissible, and decides that it is not necessary to examine separately the applicants’ complaints under Article 6 of the Convention concerning other aspects of the fairness of the proceedings and alleged restrictions on the right to examine witnesses;\n\nHolds that these complaints disclose a breach of Article 5 § 1 of the Convention concerning the unlawful detention (deprivation of liberty);\n\nHolds that there has been a violation of the Convention and its Protocols as regards the other complaints raised under well-established case-law of the Court (see appended table);\n\nHolds\n\nthat the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;\n\nthat from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.\n\nDone in English, and notified in writing on 13 October 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_906","text":"PROCEDURE\n\nPROCEDURE\n\n1.  The case originated in an application (no. 54574/07) against the Republic of Serbia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Serbian national, Mr Dragoslav Paunović (“the applicant”), on 3 December 2007.\n\n2.  The applicant was represented by Mr I. Pavlović, a lawyer practising in Sokobanja. The Serbian Government (“the Government”) were represented by their former Agent, Ms N. Plavšić, who was recently substituted by their current Agent, Ms. Z. Jadrijević Mladar.\n\n3.  The applicant alleged that the Niš District Court had lacked impartiality, in breach of his right to a fair hearing.\n\n4.  The application was initially allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). On 29 September 2015 notice of the application was given to the Government. On 20 September 2019 the Court changed the composition of its Sections (Rule 25 § 1) and the present case was thus assigned to the newly composed Fourth Section (Rule 52 § 1).\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\nA.  The criminal proceedings against the applicant\n\n5.  The applicant was born in 1956 and lives in Soko Banja.\n\n5.  The applicant was born in 1956 and lives in Soko Banja.\n\n6.  On 2 August 2006 I.S., a deputy prosecutor of the Aleksinac Municipal Public Prosecutor’s Office, indicted the applicant for causing bodily harm and death by dangerous driving (teško delo protiv bezbednosti javnog saobraćaja).\n\n6.  On 2 August 2006 I.S., a deputy prosecutor of the Aleksinac Municipal Public Prosecutor’s Office, indicted the applicant for causing bodily harm and death by dangerous driving (teško delo protiv bezbednosti javnog saobraćaja).\n\n7.  On 24 October 2006, at the first main hearing of the case against the applicant before the Aleksinac Municipal Court (Opštinski sud u Aleksincu), as well as at later hearings (tokom glavnog pretresa), the prosecutor’s office was represented by deputy prosecutors S.S. and I.S.\n\n8.  On 12 December 2006 the Aleksinac Municipal Court sentenced the applicant to six months’ imprisonment for the said offence. Both the applicant and the deputy prosecutor, I.S., appealed against this judgment.\n\n8.  On 12 December 2006 the Aleksinac Municipal Court sentenced the applicant to six months’ imprisonment for the said offence. Both the applicant and the deputy prosecutor, I.S., appealed against this judgment.\n\n9.  On 17 April 2007 the Niš District Court (Okružni sud u Nišu) sitting on a bench of three judges, namely Judge N.S. as President, Judge B.K. as judge rapporteur and Judge S.M., upheld the first-instance judgment on appeal. Judge B.K. had been elected as a judge of the District Court on 15 August 2006.\n\n9.  On 17 April 2007 the Niš District Court (Okružni sud u Nišu) sitting on a bench of three judges, namely Judge N.S. as President, Judge B.K. as judge rapporteur and Judge S.M., upheld the first-instance judgment on appeal. Judge B.K. had been elected as a judge of the District Court on 15 August 2006.\n\n10.  The applicant appealed on points of law (zahtev za ispitivanje zakonitosti pravosnažne presude), complaining, inter alia, about the presence of Judge B.K. on the bench of the Niš District Court in the appeal proceedings. The applicant argued that as Judge B.K. had held the position of deputy municipal public prosecutor in Aleksinac during the first-instance criminal proceedings against him, the composition of the Niš District Court’s bench had breached the guarantee of impartiality. He complained as follows:\n\n“Judge [B.K.], who took part as a member of the second-instance chamber and a judge rapporteur in the proceedings on appeal, held the position of the deputy municipal public prosecutor in Aleksinac at the time of the first-instance proceedings ...\n\n... the public interest in the criminal proceedings against [the applicant] was championed by the Aleksinac Municipal Public Prosecutor’s Office, whose representative was B.K. ...\n\n... that [B.K.] should have been withdrawn because of the incompatibility of the positions of judge and prosecutor.”\n\n... that [B.K.] should have been withdrawn because of the incompatibility of the positions of judge and prosecutor.”\n\n11.  On 23 October 2007 the Supreme Court of Serbia dismissed the applicant’s appeal on points of law, finding that Judge B.K. had not participated in proceedings against the applicant as a prosecutor, and it upheld the decisions of the lower courts. As regards the complaint that the second-instance court had not been impartial, the Supreme Court stated:\n\n“The Supreme Court finds the complaints in the appeal to be groundless as it appears from the case file that a member of the bench, Judge B.K., did not participate in these proceedings as a deputy municipal public prosecutor, nor did he take part in the investigation, and therefore he did not have to be removed from the bench purely because during the first-instance proceedings he held the said function in Aleksinac.”\n\n12.  The applicant was released from prison on 11 June 2008, after serving four months of his sentence.\n\nB.  Other relevant facts\n\n13.  The applicant worked as a tax inspector for the Tax Inspectorate of the Ministry of Finance.\n\n13.  The applicant worked as a tax inspector for the Tax Inspectorate of the Ministry of Finance.\n\n14.  In exercising his duties, the applicant reviewed the work of a particular company and in 2005 lodged an application for the institution of misdemeanour proceedings against that company and a person in charge, V.K., who is the brother of Judge B.K.\n\n15.  On 20 March 2008, pursuant to the State Administration Act, the Ministry of Finance dismissed the applicant ex lege from the civil service because he had been convicted of a crime and sentenced to six months’ imprisonment.\n\nII.  RELEVANT DOMESTIC LAW AND PRACTICE\n\nII.  RELEVANT DOMESTIC LAW AND PRACTICE\n\n16.  The provisions of the Code of Criminal Procedure 2001 (Zakonik o krivičnom postupku, Official Gazette of the Federal Republic of Yugoslavia nos. 70/01 and 68/02; and Official Gazette of the Republic of Serbia – “OG RS” – nos. 58/04, 85/05, 115/05 and 46/06), as in force at the material time, provided various grounds for the compulsory disqualification of judges from the bench, as follows:\n\n“A judge or lay judge shall be excluded from sitting in a case:\n\n1)  if he has suffered an injury or damage as a result of the offence;\n\n...\n\n4)  if in the same criminal case he took part in the investigation [vršio istražne radnje] or if he has taken part in the proceedings as a prosecutor, defence lawyer, legal guardian or legal counsel of the injured person or of the prosecutor, or if he has testified as a witness or as an expert witness;\n\n...\n\n6)   if there are other circumstances which may cast doubt on his impartiality.”\n\n6)   if there are other circumstances which may cast doubt on his impartiality.”\n\n17.  The grounds set out in paragraphs 1 to 5 of Article 40 are considered mandatory grounds for the recusal of a judge or lay judge from sitting in a case. Article 41 provided that, from the moment that a judge or lay judge became aware of any absolute ground disqualifying him or her from sitting in a case, that judge was required to take no further part or to bring the circumstances which would disqualify him or her from sitting to the immediate attention of the president of the court of which he or she was a member, whereupon the president would be required to appoint another judge in his or her stead. A judge or lay judge was also required to inform the president of the court of any other circumstances (under Article 40(6)) which would warrant his withdrawal.\n\n17.  The grounds set out in paragraphs 1 to 5 of Article 40 are considered mandatory grounds for the recusal of a judge or lay judge from sitting in a case. Article 41 provided that, from the moment that a judge or lay judge became aware of any absolute ground disqualifying him or her from sitting in a case, that judge was required to take no further part or to bring the circumstances which would disqualify him or her from sitting to the immediate attention of the president of the court of which he or she was a member, whereupon the president would be required to appoint another judge in his or her stead. A judge or lay judge was also required to inform the president of the court of any other circumstances (under Article 40(6)) which would warrant his withdrawal.\n\n18.  Articles 7 and 14 of the Public Prosecutor Office Act (Zakon o javnom tužilastvu, OG RS nos. 63/01, 42/02, 39/03, 44/04, 61/05, 46/06 and 106/06 – the last-mentioned reference published a relevant decision of the Constitutional Court) prescribe that a public prosecutor is to perform his or her duties directly or through his or her deputies and that everyone in the prosecutor’s office is subordinate to him or her, including his or her deputies. Deputy public prosecutors are required to perform all actions entrusted to them by public prosecutors and may also, without any specific authorisation, undertake any action public prosecutors are authorised to perform.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION\n\n19.  The applicant complained that in the appeal proceedings before the Niš District Court his case had not been examined fairly by an impartial tribunal, having regard to the presence on the bench of Judge B.K., who had previously held the position of deputy municipal public prosecutor at the time of the first-instance criminal proceedings against the applicant. The applicant also submitted that, in exercising his duties as a tax inspector in 2005, he had reviewed the work of a particular company and proposed instigating misdemeanour proceedings against that company and a person in charge, V.K., who was the brother of Judge B.K. (see paragraph 14 above). This, in the applicant’s view, amounted to a breach of the Convention requirement for his case to be determined by an “impartial tribunal”, in breach of Article 6 § 1 of the Convention, which in so far as relevant reads as follows:\n\n“In the determination ...of any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”\n\nA.  Complaint concerning the alleged partiality of Judge B.K. on the ground of his family relationship with V.K.\n\nA.  Complaint concerning the alleged partiality of Judge B.K. on the ground of his family relationship with V.K.\n\n20.  The Court considers it appropriate to first address the complaint of an alleged lack of impartiality on the basis of Judge B.K.’s family relationship with the above-mentioned V.K., against whom the applicant sought to initiate misdemeanour proceedings (see paragraph 14 above).\n\n21.  The Government emphasised that the applicant had failed to raise his allegations that he had made an application for the opening of misdemeanour proceedings against Judge B.K.’s brother before the domestic courts and in his application form before the Court, but had mentioned it for the first time in his observations submitted after notice of the present case had been given to the Government. They suggested that the applicant had abused the right of individual application within the meaning of Article 35 § 3 (a) of the Convention, in that his new argument before the Court had been concealed and misleading, as he had failed to raise it in a timely manner and at domestic level.\n\n22.  The Court points out that it has jurisdiction to review, in the light of the entirety of the Convention’s requirements, the circumstances complained of by an applicant. Furthermore, an applicant can clarify or elaborate upon his or her initial submissions during the Convention proceedings. The Court has to take account not only of the original application but also of the additional documents intended to complete the latter by eliminating initial omissions or obscurities (see, for example, Ringeisen v. Austria, 16 July 1971, § 90, Series A no. 13, and Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 121-122, 20 March 2018, with further references).\n\n23.  Turning to the present case, however, the Court observes that the complaint summarised in paragraph 20 above was not included in the initial application, in which the applicant raised a complaint under Article 6 of the Convention with regard only to the alleged dual function of Judge B.K. in the impugned criminal proceedings. The additional complaint was submitted after notice of the application had been given to the Government, in the applicant’s final response of 17 March 2016 to the Government’s objections as to the admissibility and merits of the application. This complaint is not an elaboration of the applicant’s original complaint to the Court, notification of which was given to the Government. It was thus not raised or elaborated upon early enough to allow an exchange of observations between the parties (see, in various contexts and mutatis mutandis, Nuray Şen v. Turkey (no. 2), no. 25354/94, § 200, 30 March 2004; Skubenko v. Ukraine (dec.), no. 41152/98, 6 April 2004; Melnik v. Ukraine, no. 72286/01, §§ 6163, 28 March 2006; Maznyak v. Ukraine, no. 27640/02, § 22, 31 January 2008; Kuncheva v. Bulgaria, no. 9161/02, § 18, 3 July 2008; Lisev v. Bulgaria, no. 30380/03, § 33, 26 February 2009; and Tsonyo Tsonev v. Bulgaria, no. 33726/03, § 24, 1 October 2009).\n\n24.  Nevertheless, the Court does not have to decide whether it is appropriate to take this matter up separately at this stage in the proceedings, as the complaint is in any event inadmissible because the applicant failed to raise it, either in form or in substance, in his appeal before the Supreme Court (see paragraph 10 above) and has therefore failed to exhaust the available and effective domestic remedies (see Schimanek v. Austria (dec.), no. 32307/96, 1 February 2000; Salaman v. the United Kingdeom (dec.), no. 43505/98, 15 June 2000; Strømberg v. Denmark (dec.), no. 57211/00, 20 June 2002; and Andersen v. Denmark (dec.), no. 57204/00, 5 September 2002).\n\n25.  Therefore, the Court considers that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.\n\nB.  Complaint concerning the alleged partiality of Judge B.K. on the ground of his dual function\n\n1.  Admissibility\n\n26.  The Government stated that the applicant had failed to make use of the constitutional avenue of redress and provided several decisions of the Constitutional Court in which it had found that the domestic courts had lacked impartiality and had ordered the reopening of the proceedings in issue, albeit on different grounds from the one at issue in the present case.\n\n27.  Given that the Court has already found that a constitutional complaint was not, in principle, an effective remedy for applications lodged before 8 August 2008 (see Vinčić and Others v. Serbia, nos. 44698/06 and 30 others, § 51, 1 December 2009), and that the issue of whether domestic remedies have been exhausted is normally determined by reference to the date when the application was lodged (see Cvetković v. Serbia, no. 17271/04, § 41, 10 June 2008, and Baumann v. France, no. 33592/96, § 47, ECHR 2001-V (extracts)) – that is, before 8 August 2008 in the present case (see paragraph 1 above) – the Court considers that the applicant had indeed exhausted all effective legal remedies and had no obligation to avail himself of a constitutional complaint. Accordingly, the Government’s objection must be dismissed.\n\n28.  The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\n2.  Merits\n\n29.  The applicant maintained that his right to a fair hearing by an impartial tribunal had been breached as the second-instance court had lacked impartiality. He stated that the judge, B.K., should have withdrawn because of the mutual incompatibility of the positions of judge and prosecutor. The applicant stated that Judge B.K. had been a deputy municipal public prosecutor at the time of the first-instance proceedings against him and that it was irrelevant whether the judge had appeared as a prosecutor at the hearing or not. The applicant highlighted that, in any event, deputy public prosecutors represent public prosecutors in the exercise of their duties and referred to the principles of the unity, indivisibility and hierarchical structure of the public prosecutor’s department (princip inokosnosti funkcije javnog tužioca; see paragraph 18 above). Therefore, the applicant contended that the role of Judge B.K. in the second-instance proceedings had cast doubt on the compliance with the objective test of the impartiality requirement of Article 6 § 1 of the Convention.\n\n30.  The Government maintained that there had been no violation of Article 6 § 1 of the Convention. They firstly submitted that the mere fact that B.K. had once been a member of the Aleksinac Municipal Public Prosecutor’s Office was not a reason to cast doubt on his impartiality in his subsequent role as a member of the court bench. In contrast with the Piersack v. Belgium case (1 October 1982, Series A no. 53), in the present case B.K. had in no way been superior to the deputy prosecutors, had neither had authority to review or correct submissions of other deputies nor authority to affect the activities of the deputies acting in the applicant’s case in any way. According to the criminal investigation file (Ki no. 73/06), it was clear that B.K. had never been assigned to process the applicant’s case in his role as deputy prosecutor and that he had not undertaken any action in the proceedings against the applicant.\n\n31.  Referring further to the case of Walston v. Norway ((dec.), no. 37372/97, 11 December 2001), and the time-frame in which Judge B.K. had been a deputy prosecutor, the Government submitted that Judge B.K. had been appointed as a judge of the Niš District Court on 15 August 2006 (see paragraph 9 above), before the municipal court had even held the first hearing in the applicant’s case (see paragraph 7 above). In other words, Judge B.K. had not been a deputy public municipal prosecutor for over two months by the time that the first main hearing had been held, but instead had been a judge of the District Court. Therefore, he could not have appeared at any stage of the proceedings before the domestic courts as a deputy public prosecutor.\n\n32.  The Government further explained the domestic mechanisms for the elimination of any irregularities that might cast doubt on the independence and impartiality of the courts, including the possibility of recusal (see paragraph 17 above). They emphasised that the applicant had used one of these mechanisms, namely a request for protection of legality, by raising the particular issue in his case (see paragraph 10 above). However, the highest national court had not considered that the applicant’s fears concerning the judge’s impartiality had been objectively justified and had concluded that the conditions for the judge’s recusal had not been fulfilled as the judge had not undertaken any role in the criminal prosecution (see paragraph 11 above).\n\n33.  Finally, the Government referred again to the Piersack case (cited above, § 30 (b)) in concluding that “it would be going too far to the opposite extreme to maintain that former judicial officers in the public prosecutor’s department were unable to sit on the bench in every case that had been examined initially by that department, even though they had never had to deal with the case themselves”.\n\n34.  The Court notes that the relevant case-law is set out in Morice v. France ([GC] no. 29369/10, §§ 73-78, ECHR 2015; see also, in the criminal context, Kyprianou v. Cyprus [GC], no. 73797/01, §§ 118-21, 15 December 2005, and Sigurður Einarsson and Others v. Iceland, no. 39757/15, §§ 55-59, 4 June 2019). It can be summed up as follows.\n\n34.  The Court notes that the relevant case-law is set out in Morice v. France ([GC] no. 29369/10, §§ 73-78, ECHR 2015; see also, in the criminal context, Kyprianou v. Cyprus [GC], no. 73797/01, §§ 118-21, 15 December 2005, and Sigurður Einarsson and Others v. Iceland, no. 39757/15, §§ 55-59, 4 June 2019). It can be summed up as follows.\n\n35.  Impartiality denotes the absence of prejudice or bias. Its existence or otherwise can be assessed under a subjective approach, that is trying to ascertain the personal conviction or interest of a given judge in a particular case, and an objective approach, that is determining whether the judge concerned offered sufficient guarantees to exclude any legitimate doubt in that respect. As to the second test, it involves determining whether, quite apart from the personal conduct of an individual judge, there are ascertainable facts which may raise doubts as to a court’s impartiality. The litigants’ standpoint is important but not decisive; what is decisive is whether any fears in that respect can be held to be objectively justified (see Micallef v. Malta [GC], no. 17056/06, § 96, ECHR 2009). In that respect even appearances may be of a certain importance, or, in other words, “justice must not only be done, it must also be seen to be done” (see De Cubber v. Belgium, 26 October 1984, § 26, Series A no. 86). In order to satisfy the impartiality requirement, the national court must comply with both the subjective and objective tests (see, among many authorities, Morice, cited above, § 73).\n\n36.  The Court recalls that account must also be taken of questions of internal organisation (see Piersack, cited above, § 30 (d), and A.K. v. Liechtenstein, no. 38191/12, § 67, 9 July 2015) and that the existence of national procedures for ensuring impartiality, namely rules regulating the withdrawal of judges, is equally a relevant factor. Such rules manifest the national legislature’s concern to remove all reasonable doubts as to the impartiality of the judge or court concerned and constitute an attempt to ensure impartiality by eliminating the causes of such concerns. In addition to ensuring the absence of actual bias, they are directed at removing any appearance of partiality and so serve to promote the confidence which the courts in a democratic society must inspire in the public (see Micallef, cited above, § 99, and Mežnarić v. Croatia, no. 71615/01, § 27, 15 July 2005). Thus, any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw (see Castillo Algar v. Spain, 28 October 1998, § 45, Reports of Judgments and Decisions 1998VIII).\n\n37.  According to the Court’s case law, the fact that a judge has acted in different capacities in the same case may in certain circumstances compromise a tribunal’s impartiality. In Piersack (cited above, §§ 30-31) the fact that a judge had presided over a criminal trial after having been the head of the public prosecutor’s office in charge of the prosecution in the same case was capable of casting doubt on the tribunal’s impartiality, in breach of Article 6 § 1 of the Convention. In Wettstein v. Switzerland (no. 33958/96, § 47, ECHR 2000-XII) there was an overlap of time between the two sets of proceedings in which one person had exercised both the function of a judge in one case, and that of the legal representative of the party opposing the applicant in the other. As a result, in that case the applicant had reason to be concerned that the judge in question would continue to see him as the opposing party. The Court concluded that this situation could have raised legitimate fears in the applicant that the judge would not approach the case with the requisite impartiality. Lastly, in Mežnarić (cited above, §§ 28-37), the judge played the dual roles of a judge at third instance and a lawyer for the applicant’s opponents at an early stage of a single set of proceedings, a fact which was also reinforced by the involvement of the judge’s daughter as the lawyer for the applicant’s opponents during the proceedings. These elements were sufficient for the Court to conclude that there had been a violation of Article 6 § 1 of the Convention in that case.\n\n38.  Turning to the circumstances of the present case, the Court observes that the applicant was sentenced to six months’ imprisonment for dangerous driving by the Aleksinac Municipal Court following his indictment by the Aleksinac Municipal Public Prosecutor’s Office (see paragraphs 6 and 7 above). His appeal was dismissed by the bench of the Niš District Court at second-instance. The Court notes that the applicant’s fear of a lack of impartiality in the instant case stemmed from the fact that Judge B.K. held the position of deputy municipal public prosecutor in the Aleksinac Municipal Public Prosecutor’s Office at the time of the applicant’s indictment for the offence in question by that same office, and later took part in the second-instance criminal proceedings against the applicant as the judge rapporteur (see paragraph 9 above).\n\n39.  The applicant raised this objection before the Supreme Court (see paragraph 10 above), using an available remedy – an appeal on points of law (zahtev za ispitivanje zakonitosti pravosnažne presude). The Supreme Court upheld the reasoning of the lower court and dismissed the appeal concerning impartiality, finding that Judge B.K. had not taken part in the investigation or the applicant’s indictment as a deputy prosecutor and had therefore not needed to be removed from the bench simply because he had held that prosecutor role in Aleksinac during the first-instance proceedings (see paragraph 11 above).\n\n40.  In the present case, the Court observes that Judge B.K. did not recuse himself, nor did the applicant request his recusal or submit an objection about his potential prejudice or his conduct during the court’s session in the course of the appeal proceedings. The bench gave comprehensive reasons for its ruling and evinced no bias against the applicant in general (contrast Kyprianou, cited above, §§ 130-133, and, mutatis mutandis, the related case of Panovits, cited above, §§ 96-100). Thus, there is no indication that Judge B.K. was actually, or subjectively, biased against the applicant when sitting in the District Court in his case, nor did the applicant allege so.\n\n41.  The Court further recalls that the fact that a judge previously in his career has acted as a public prosecutor is not in itself a reason for fearing that he lacks impartiality (see Piersack, cited above, § 30(b), and K. v. Denmark (dec.), no. 19524/92, Commission decision of 5 May 1993), nor it is the case when a judge was once an officer of the public prosecutor’s department in a case that has been examined initially by that department, when the judge in question had never had to deal with that case himself or herself (Piersack, ibid.). As regards the judge B.K.’s earlier position, the Court considers that in the present case Judge BK. did not in fact play a dual role in the single set of proceedings which forms the object of the present application. The information provided by the Government (see paragraph 30 above) confirms that Judge B.K. had not been actively or formally involved in the preparatory stages of the criminal proceedings or in the drafting of the indictment by the prosecutor’s office. In contrast with Piersack (cited above), which concerned a judge who had previously performed the duties of senior deputy to the public prosecutor and had had the power to supervise the activities of the deputy prosecutors, in the present case Judge B.K. had in no way been hierarchically superior to the deputy prosecutors acting in the applicant’s case, nor had he given them any instruction on how to act. He had neither authority to review or correct submissions of other deputies nor authority to affect the activities of the deputies acting in the applicant’s case in any way. The Court concurs with the Government and recalls its finding in the Piersack case (cited above, § 30(b); see also Jerino’ v. Italy (dec.), no. 27549/02, 2 September 2004):\n\n“It would be going too far to the opposite extreme to maintain that former judicial officers in the public prosecutor’s department were unable to sit on the bench in every case that had been examined initially by that department, even though they had never had to deal with the case themselves. So radical a solution, based on an inflexible and formalistic conception of the unity and indivisibility of the public prosecutor’s department, would erect a virtually impenetrable barrier between that department and the bench. It would lead to an upheaval in the judicial system of several Contracting States where transfers from one of those offices to the other are a frequent occurrence. Above all, the mere fact that a judge was once a member of the public prosecutor’s department is not a reason for fearing that he lacks impartiality”.\n\n42.  While the Court emphasises the importance of “appearances” in this context (see the case-law quote in paragraph 35 above), it finds that the judge’s connection to the prosecution in the present case was remote and it is not persuaded that the mere fact that B.K. was a member of the prosecutor’s office at the time that the applicant was indicted is sufficient to raise doubts as to the independence and impartiality of the second-instance court. In the light of the foregoing, the Court, like the Supreme Court, does not consider that the applicant’s fears with regard to this Judge’s impartiality were objectively justified.\n\n43.  Consequently, the Court considers that there has been no violation of Article 6 of the Convention.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\n1.  Declares the complaints concerning Judge B.K.’s alleged dual function admissible and the remainder of the application inadmissible;\n\n2.  Holds that there has been no violation of Article 6 of the Convention.\n\nDone in English, and notified in writing on 3 December 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_477","text":"PROCEDURE\n\n.  The case originated in an application (no. 3851/12) against the Republic of Malta lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Maltese national, Mr Anthony Aquilina (“the applicant”), on 20 December 2011.\n\n.  The applicant was represented by Dr Joseph Ellis, a lawyer practising in Valletta. The Maltese Government (“the Government”) were represented by their Agent, Dr Peter Grech, Attorney General.\n\n.  The applicant alleged that his property rights were being infringed as a result of legislative amendments in 1979 which imposed on him a continued lease relationship for an indeterminate time without providing him with a fair and adequate rent. He relied on Article 1 of Protocol No. 1 to the Convention.\n\n.  On 21 February 2013 the application was communicated to the Government.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n.  The applicant was born in 1948, and at the time of lodging the application lived in Milton, Ontario, Canada.\n\nA.  Background to the case\n\n.  Malta has gone through various legislative regimes in order to regulate its housing situation. The first regime came about in 1931 and protected tenants from the termination of their leases. This was followed by the 1944 Rent Restriction (Dwelling Houses) Ordinance which, apart from regulating termination of the lease of dwelling houses, also controlled rents and the initial conditions of contracts. The Housing Act was then enacted in 1949, with the aim of providing a solution to homelessness caused by the Second World War. In 1959 the Housing (Decontrol) Ordinance, Chapter 158 of the Laws of Malta (hereinafter “the HD Ordinance”) was enacted, which provided incentives to encourage landlords to rent their property, and created a special class of dwelling houses free from rent control.\n\n.  The applicant owns a property in Gozo (a maisonette measuring 105 square metres) which he inherited from his parents, his mother having passed away in 1984.\n\n.  On 12 January 1960 the property was registered as a “decontrolled dwelling house” in accordance with Article 3 of the HD Ordinance. At the time, Article 5 (1) of the HD Ordinance provided that the provisions of the “Rent Ordinances” (the Reletting of Urban Property (Regulation) Ordinance, Chapter 69 of the Laws of Malta and the Rent Restriction (Dwelling Houses) Ordinance, Chapter 116 of the Laws of Malta) were not applicable to dwelling houses decontrolled in accordance with Article 3 of the HD Ordinance.\n\n.  In 1970 the applicant’s mother leased the premises to couple C., who are Maltese citizens (born in 1943 and 1950 respectively), for a rent of 35 Maltese Liri (MTL) (approximately 81.50 euros (EUR)) every six months, which was later decreased to the equivalent of EUR 75.70 every six months. At the time, the law permitted her to increase the rent, to refuse to renew the lease or to change its terms on renewal.\n\n.  In 1979 the Maltese parliament enacted an amendment to the HD Ordinance, which provided that the rent restrictions set out in the Rent Ordinances would apply where tenants were Maltese citizens and occupied houses as ordinary residences. It further provided that landlords could not refuse to renew leases, raise their rent, or impose new conditions on renewal, except as provided for by law (see “Relevant domestic law” below). The applicant submitted that the contractual freedom of parties was greatly restricted as a result of the new provisions, in that his family could not charge a fair rent or recover possession of their property, despite the fact that his tenants owned substantial immovable property.\n\n.  By a decision of the Rent Regulation Board (RRB) of 7 July 1998, the rent was further reduced to EUR 65.22 per year. The applicant did not appeal.\n\n.  In 1995 new laws were enacted in respect of new leases which could again be free from rent control. They did not apply to the applicant’s case.\n\n.   In 2009 and 2010 new concepts and provisions were introduced, aimed at gradually eliminating the restrictive regimes applicable to leases entered into before 1995.\n\n.   Thus, while a rent of EUR 65.22 per year had been paid to the applicant since September 1998, a rent of EUR 185 had been paid from September 2010 onwards in view of the above-mentioned amendments. However, the applicant refused to accept any rent as from 2007 and it was duly deposited in court by the tenants by means of a schedule of deposit.\n\n.  According to a court-appointed architect’s evaluation made in the context of constitutional proceedings instituted in 2005 (see paragraph 17 below), the property at that time had a rental value of EUR 2,912 per year. According to an architect’s report commissioned by the Government, the rental market value in 2013 was EUR 2,900 per year, and the sale value EUR 58,000.\n\n.  To date, couple C still reside in the applicant’s property. It does not at present appear that they have any children formally residing with them.\n\nB.  The proceedings brought by the applicant\n\n1.  First set of constitutional redress proceedings (no. 49/05)\n\n17.  In 2005 the applicant instituted constitutional redress proceedings complaining, inter alia, that the 1979 amendments (in particular Article 5 (2) and (3) of the HD Ordinance, which prohibited landlords from refusing to renew existing leases or from raising their rent) had breached his property rights under Article 1 of Protocol No. 1 to the Convention.\n\n18.  On 4 June 2008 the Civil Court (First Hall) in its constitutional jurisdiction rejected his complaint. Basing its judgment on domestic case-law relating to the same subject matter, it considered that he remained the owner of the property at issue, which was being used as a dwelling house, that he could still evict the tenants if they failed to fulfil their obligations under the lease, and that although the amount of rent was low, the law provided for an increase in rent every fifteen years, amounting to double the actual rent. The interference with his rights was therefore proportionate given the needs of society. Moreover, his mother had not been forced to lease out the property.\n\n19.  The applicant appealed on 25 June 2008.\n\n20.  On 3 November 2008 the Constitutional Court dismissed his appeal as being lodged out of time, the statutory time-limit having expired on 16 June 2008.\n\n.  On 29 April 2009 he lodged an application with the Court, relying on Article 1 of Protocol No. 1 to the Convention.\n\n.  By a decision of 10 November 2009 the Court, sitting as a Committee of three judges, declared the applicant’s application inadmissible. It found that he had lodged his appeal with the Constitutional Court out of time. The domestic remedies had therefore not been exhausted as required by Article 35 § 1 of the Convention.\n\n2.  Second set of constitutional redress proceedings\n\n23.  In 2010 the applicant instituted constitutional redress proceedings complaining that the 1979 amendments, which prohibited landlords from refusing to renew existing leases or from raising their rent when the tenant was a Maltese citizen, had breached his property rights under Article 1 of Protocol No. 1 to the Convention. He submitted that the amendments introduced in 2009 had not improved his situation, even assuming they (in particular Article 1531C of the Civil Code) applied to the case in question, a matter which was unclear in the domestic context. With a new rent of EUR 185 per year (see Relevant domestic law below), he remained a victim of the alleged violation, not least because he was also prevented from refusing to renew the lease. He cited the then recent case of Amato Gauci v. Malta (no. 47045/06, 15 September 2009), in which the Court had found a violation in analogous circumstances.\n\n24.  By a decree of 30 April 2010 the Civil Court (First Hall) in its constitutional jurisdiction ruled that the defendant in the case should be the Attorney General of Malta, not the State of Malta as purported by the applicant.\n\n25.  On 15 October 2011 the Civil Court (First Hall) in its constitutional jurisdiction, upholding the objection raised by the third party who joined in the suit (kjamat fil-kawża), rejected the applicant’s complaint on the basis that the matter had already become res judicata by virtue of the decision of 4 June 2008 (see paragraph 18 above). It noted that such a conclusion required three elements, namely the same parties (eaedem personae), the same object (eadem res) and the same cause of action (eadem causa petendi). Moreover, where the arguments raised were different, it had to be seen whether they could have been raised at the time of the principal judgment. In the present case, it considered that there had been no doubt that the requirement of eaedem personae had been met, despite the fact that the applicant had attempted to bring the present proceedings against the State and that the other proceedings had been against the Attorney General, as it was clear that the defendant in both cases was the Maltese Government. The element of eadem res had also been satisfied in so far as the present case concerned the same lease of the same property, with the same tenants and the same circumstances that had led the applicant to institute proceedings the first time round. Similarly, the element of eadem causa petendi had also been satisfied, since the applicant’s applications to the court were to a great extent the same, if not identical, despite the fact that he had made further arguments and submitted that his situation had remained unchanged notwithstanding the 2009 amendments to the Civil Code. The court considered that the changes to the application had not changed the nature of the action, namely a claim that the restrictions on the rent imposed by the law had been disproportionate. This matter had already been dealt with by the court in the first set of proceedings (no. 49/05), where it had decided that a fair balance had been struck by the authorities; it was not therefore open to the applicant to relitigate the matter. The court further held that even though the applicant had argued that despite the 2009 amendments (if they applied at all) he had remained a victim of the alleged violation, there was already a judgment in his respect stating that the law in so far as it applied to his case had not breached his rights, and the more recent amendments had not worsened his situation. Thus, the Civil Court (First Hall) held that there could not have been a breach of his rights even under the new law. Lastly, it concluded that any new arguments put forward by him should have been incorporated into the first set of proceedings. As to the Court’s recent case-law, it considered that the judgment cited did not entitle the applicant to ask for a fresh examination of his case.\n\n26.  By a judgment of 24 June 2011 the Constitutional Court upheld the first-instance judgment, considering the appeal to be frivolous and vexatious.\n\nII.  RELEVANT DOMESTIC LAW\n\n.  The Housing Decontrol Ordinance, Chapter 158 of the Laws of Malta, as amended in 1979 by means of Act XXIII of 1979 and again in 2004, in so far as relevant, reads as follows:\n\n“(1) Subject to the following provisions of this article and of article 6, the provisions of the Rent Ordinances shall not apply to any decontrolled dwelling-house from the day on which the house is registered in accordance with the provisions of article 3.\n\n(2) Where on the expiration of the lease of a decontrolled dwelling-house (whether such period be conventional, legal, customary or otherwise) the tenant is a citizen of Malta and occupies the house as his ordinary residence, the provisions of sub-article (3) shall have effect and the provisions of the Reletting of Urban Property (Regulation) Ordinance shall also apply but only in so far as they are not inconsistent with the said provisions of this article.\n\n(3) The provisions referred to in sub-article (2) are:\n\n(a) It shall not be lawful for the lessor of the dwelling house to refuse to renew the lease except in any of the circumstances set out in paragraph (b), nor shall it be lawful for him to raise the rent, or to impose new conditions for the renewal of the lease, except as provided in paragraphs (c) and (d).\n\n(b) The lessor may only refuse to renew the lease, and may only resume possession of the house, at the termination of the lease, if he shows to the satisfaction of the Board, on an application to resume possession, that in the course of the lease, the tenant has failed to pay the rent due by him in respect of two or more terms within fifteen days from the day on which the lessor called upon him for payment, or has caused considerable damage to the house, or otherwise failed to comply with the conditions of the lease or his obligations thereunder, or has used the premises for a purpose other than mainly as his ordinary residence.\n\n(c) The rent payable under the same lease after the date of the first renewal of the lease made by virtue of this sub-article may be increased by the lessor, upon such renewal and after the lapse of every fifteenth year thereafter during the continuance of the lease in favour of the same tenant, by so much of the rent payable immediately before such renewal or before the commencement of each subsequent fifteen year period, being an amount not exceeding the said rent, as represents in proportion to such rent the increase in inflation since the year the rent to be increased was last established.\n\n(d) Where, on or before the date of any renewal of the lease of the dwelling-house, the lessor files in the Registry of the Board, a certificate, signed by a qualified architect and civil engineer and which is either accepted as correct by the tenant or has been so declared by the Board on an application by the lessor requesting such a declaration, showing that the house is in good state of maintenance and repair, all repairs and all maintenance of the dwelling-house shall thereafter, and throughout the continuance of the lease in favour of the same tenant, be at the charge of the tenant.”\n\n28.  The 2009 amendments include the introduction of various articles of the Civil Code, Chapter 16 of the Laws of Malta, which in so far as relevant, and as amended again in 2010, read as follows:\n\n“(1) The rent of a residence which has been in force before the 1st June 1995 shall be subject to the law as in force prior to the 1st June 1995 so however that unless otherwise agreed upon in writing after the 1st January 2010, the rate of the rent as from the first payment of rent due after the 1st January 2010, shall, when this was less than one hundred and eighty-five euro (€185) per year, increase to such amount:\n\nProvided that where the rate of the lease was more than one hundred eighty-five euro (€185) per year, this shall remain at such higher rate as established.\n\n(2) In any case the rate of the rent as stated in sub-article (1) shall increase every three years by a proportion equal to the increase in the index of inflation according to article 13 of the Housing (Decontrol) Ordinance; the first increase shall be made on the date of the first payment of rent due after the 1st January 2013:\n\nProvided that where the lease on the 1st January 2010 will be more than one hundred eighty-five euro (€185) per year, and by a contract in writing prior to 1st June 1995 the parties would have agreed upon a method of increase in rent, after 1st January 2010 the increases in rent shall continue to be regulated in terms of that agreement until such agreement remains in force.”\n\n“The external ordinary maintenance of a tenement leased prior to 1st January 2010, save unless otherwise agreed upon in writing between the parties, shall be at the expense of the tenant and not of the lessor.”\n\n“In the event of a lease of a house used as an ordinary residence made prior to 1st June 1995 that person who will be occupying the tenement under a valid title of lease on the 1st June 2008 as well as his or her spouse if living together and if they are not legally separated shall be deemed to be the tenant; when the tenant dies the lease shall be terminated:\n\nProvided further that a person continues the lease after the death of the tenant under the same conditions of the tenant if on the 1st June 2008 -\n\n(i) such person is the natural or legal child of the tenant and has lived with the said tenant for four years out of the last five years; and after 1st June 2008 continues to live with the tenant until his death:\n\nProvided that, if more than one child has lived with the tenant for four years out of the last five years before the 1st June 2008 and they continued to live with the tenant until his death, all such children will continue the lease in solidum; this lease shall not extend to the wife, husband or offspring of the child, or\n\n(ii) such person is the brother or sister of the tenant, who on the death of the tenant is forty-five years of age or more, or brother or sister of her husband or his wife who is forty-five years of age or more, and who has lived with the tenant for four years out of the last five years before 1st June 2008 and who after that date continued living with the tenant until his death:\n\nProvided that, if there are more than one brother or sister who are over forty-five years of age and who have been living with the tenant for four years out of the last five years before the 1st June 2008 and have continued living with him until his death, all such brothers or sisters shall continue the lease in solidum; this lease shall not extend to the wife, husband or children of the said brother or sister, or\n\n(iii) such person is the natural or legal child of the tenant, who is younger than five years of age and after 1st June 2008 has continued to live with the tenant until his death, or\n\n(iv) such person is the natural or legal ascendant of the tenant, who is forty-five years of age, and who has lived with the tenant for a period of four years out of the last five years before the 1st June 2008 and has continued living with the tenant until his death; this lease shall not extend to the wife, husband or children of the ascendant:\n\nProvided that if on the death of the tenant, there are several children, siblings, or ascendants who all satisfy the criteria of paragraphs (i), (ii), (iii) or (iv), all those persons shall have the right to continue the tenancy together in solidum:\n\nProvided further that a person shall not be deemed not to have lived with the tenant for the sole reason that she has been temporarily absent from the residence of the tenant due to work, study or medical care:\n\nWithout prejudice to the provisions of this article, a person shall not be entitled to continue the lease following the death of the tenant, unless such person satisfies the means test criteria which the Minister responsible for accomodation may introduce from time to time.”\n\n“(1) The lessor is bound to deliver the thing in a good state of repair in every respect.\n\n(2) During the continuance of the lease, the lessor is bound to make all repairs which may become necessary, excluding, in the case of buildings, the repairs mentioned in article 1556, if he has not expressly bound himself to this effect.\n\n(3) For the purposes of this Title with regard to an urban, residential and commercial tenement, \"structural repairs\" shall be deemed to be those relating to the structure of the building itself, including the ceilings.\n\n(4) When the lessor in the case of a residence leased prior to the 1st June, 1995 carries out structural repairs which have become necessary not due to his own fault, then the rent shall be increased by six per cent of the costs incurred:\n\nProvided that where the structural repairs have not become necessary due to a fault of the lessee, then the said lessee has the right to terminate the lease even though the period of the lease has not yet lapsed:\n\nProvided that in the cases where the lessor is willing to carry out these repairs, the lessee may choose to carry out such repairs at his expense, and in such an event the rent shall remain unchanged; however the lessee shall in such case have no right for any full or partial compensation for such structural repairs at the termination of the lease.”\n\n“If the lessee uses the thing leased for any purpose other than that agreed upon by the parties, or as presumed in the previous article, or in a manner which may prejudice the lessor, the lessor may, according to circumstances, demand the dissolution of the contract.”\n\n“(1) In the case of a residential tenement, failure to use the tenement for a period exceeding twelve months shall be deemed to be bad use of the thing leased in terms of article 1555.”\n\n“The lessee of an urban tenement is responsible for all repairs other than structural repairs.”\n\n“A contract of letting and hiring may also be dissolved, even in the absence of a resolutive condition, where either of the parties fails to perform his obligation; and in any such case the party aggrieved by the non-performance may elect either to compel the other party to perform the obligation if this is possible, or to demand the dissolution of the contract together with damages for non-performance:\n\nProvided that in the case of urban, residential and commercial tenements where the lessee fails to pay punctually the rent due, the contract may be terminated only after that the lessor would have called upon the lessee by means of a judicial letter, and the lessee notwithstanding such notification, fails to pay the said rent within fifteen days from notification.”\n\n29.  Article 39 (1) and (4) of Act X of 2009 provided as follows:\n\n“(1) Leases which were in force before the 1st of June 1995 and which are still in force on the 1st January 2010, shall continue to be regulated by the laws which were in force before the 1st of June 1995, other than the provisions of Title IX Part II of Book Second of the Civil Code, Of Contracts of Letting and Hiring, as amended by this Act and subject to any regulations made in virtue of the amendments introduced by this Act.”\n\n“(4) The provisions of Title IX of Part II of Book Second of the Civil Code, Of Contracts of Letting and Hiring, shall also apply to the letting of urban tenements where terminated contracts of emphyteusis or sub-emphyteusis have been or are about to be converted into leases by virtue of the law:\n\nProvided that in the case of leases made by virtue of the Housing (Decontrol) Ordinance, the provisions of the said Ordinance defining the person to be considered as the lessee and the provisions providing for the transfer of the lease after the demise of the lessee shall continue to apply notwithstanding the aforesaid provisions of the Civil Code.”\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION\n\n.  The applicant complained that his property rights had been breached in so far as the law denied him a realistic possibility of resuming possession of his property, given that this was only possible in exceptional circumstances. Moreover, he was unable to charge a fair rent as it could only be doubled every fifteen years, a restriction which did not take into account the condition of the property market. He contended that the applicable restrictions were not in the public interest, and that he had had to shoulder a disproportionate and excessive burden contrary to that provided in Article 1 of Protocol No.1, which reads as follows:\n\n“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.\n\nThe preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”\n\n.  The Government contested the claim.\n\nA.  Admissibility\n\n1.  The Government’s objection that the application was substantially the same\n\n.  The Government noted that the application was the same as that rejected by the Court in 2009 for non-exhaustion of domestic remedies. They submitted that the applicant had reinstituted constitutional proceedings only to cure his earlier failings, a matter also highlighted by the constitutional jurisdictions, and that the bringing of a second application before the Court was therefore uncalled for. They further noted that they were not required to raise the plea of res judicata at the domestic level. Being a principle of public order and legal certainty, it could also be raised by the domestic court ex officio.\n\n.  The applicant submitted that in his first application, the Court had not examined the case on the merits. Moreover, in his second application before the Maltese courts, the Government had not raised the plea of res judicata; it had only been the third parties who had done so, despite them not having been a party to the initial proceedings. In that respect, the Constitutional Court’s findings had, in his view, been incongruous.\n\n.  According to Article 35 § 2 (b), an application is to be declared inadmissible if it “is substantially the same as a matter that has already been examined by the Court ... and contains no relevant new information”. The Court must therefore ascertain whether the two applications brought before it by the applicant relate essentially to the same person, the same facts and the same complaints (see, mutatis mutandis, Pauger v. Austria, no. , Commission decision of 9 January 1995, Decisions and Reports 80-A, p. 170, and Folgerø and Others v. Norway (dec.), no. , 14 February 2006).\n\n.  The Court considers that in so far as the facts of the case refer to the period antecedent to the Constitutional Court judgment of 3 November 2008, the application relates essentially to the same person, the same facts and the same complaints, and is therefore inadmissible pursuant to Article 35 § 2 of the Convention.\n\n.  The same cannot be said, however, about the application in so far as it concerns the period subsequent to that judgment. The Court notes that the applicant has complained about rent restrictions which have affected his rights as landlord over his property, circumstances which therefore constitute a continuing interference for the purposes of Article 1 of Protocol No. 1 (see Amato Gauci v. Malta, no. 47045/06, § 51, 15 September 2009). In consequence, in circumstances such as those of the present case which must be seen in the light of changing circumstances as well as relevant new elements – including but not limited to, further legislative intervention - he is entitled to institute fresh proceedings where his claims would be determined in the light of the current situation.\n\n37.  It follows that the Government’s objection is dismissed in so far as the complaint concerns the period after 3 November 2008.\n\n2.  Conclusion\n\n.  The Court notes that the complaint concerning the period after 3 November 2008 is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\n.  The Court further finds that the remainder of the application is inadmissible pursuant to Article 35 § 2 (b) of the Convention.\n\nB.  Merits\n\n1.  The parties’ submissions\n\n.  The applicant submitted that after 1959, premises such as those at issue were not restricted and parties enjoyed contractual freedom. However, following the 1979 amendments to the law this was no longer the case and restrictions became applicable to properties rented out to tenants who were citizens of Malta and occupied houses as ordinary residences. The restrictions were no longer applicable to new leases contracted after 1995. The applicant thus had been and remained subject to these restrictions over his property, which, he opined, had not been improved by the 2009 amendments and which, in his view, did not necessarily apply in his case given that their application was dependent on the interpretation given to Article 39 (4) of Act X of 2009 (see paragraph 29 above), and the non-application of the principle of lex specialis derogat lex generali.\n\n.  He noted that this interference had been suffered by his mother before him, and the fact that he had inherited the property in 1984 under those conditions did not mean that he was not suffering such an interference with his property rights. Moreover, when his mother had leased the property it had been in an open market, and she could not have envisaged that previously abolished restrictions (in 1959) would resurface twenty years later and be imposed on her.\n\n.  The applicant highlighted that the enjoyment of his possessions had been severely restricted. Firstly, he could not resume possession of his property (except in extreme circumstances which were difficult to attain). Secondly, he could not charge a fair rent, as the law only provided for it to be doubled every fifteen years, which did not reflect increases in the property market (which, as an example, had increased by more than 40% over the seven-year period between 2004 and 2011).\n\n.  The applicant submitted that such restrictions had not been in the public interest, given the huge amount of vacant property on the Maltese islands (27.6% of total dwellings), particularly on the island of Gozo, where the property at issue was located and where “homelessness does not feature as a notable problem” (substantiated by the relevant census statistics and other documentation submitted to the Court dated 2005 and 2006 respectively). Indeed, the Government had not submitted any evidence of an emergency situation existing in 1979 when the laws had been amended in the tenants’ favour (following twenty years of a free market). Nor had these laws done any good, given that people had started to mistrust the Government, who could tip the balance to one end or another at their convenience. In fact, people had stopped investing in residential property, opting to invest in holiday accommodation which was not subject to restrictions. Thus, instead of achieving the Government’s alleged aim of decent residential accommodation, the measure had been counterproductive. The Government had not even substantiated that there were tenants in need of protection nowadays. In fact, if this were so, it would be in stark contrast to the liberalisation of leases undertaken after 1995. Thus, the Government had failed to prove that the existence of such restrictions to date pursued any existing and current public interest. In reality, as in the present case, the restrictions had solely aimed to enrich tenants and impoverish landlords. The applicant noted that in the present case, the tenant and his sister had received by donation a plot of land measuring 2,185 square metres, which had been subsequently parcelled out into nine building plots and sold to third parties. Despite such land availability or the relevant income, couple C remained housed by the applicant at an extremely low rent. To add insult to injury, the tenants were ready to move out had they been paid a financial incentive (key money) of EUR 232,494.\n\n.  The applicant reiterated that in his view, it was not without doubt that the 2009 amendments were applicable to him, and in particular the new definition of tenant was surely not applicable, as clearly could be seen from Article 39 (4) of Act X of 2009 (see paragraph 29 above). Thus, the amendments had only marginally ameliorated his position, in that the minimum rent had been adjusted to EUR 185 per year and was revisable every three years. Any other provisions were either inapplicable or had already been provided for by the 1979 law. Admitting that he had erred in his claims during the proceedings before the RRB in 1998, he considered that under domestic law an appeal could only be lodged in respect of applications for the repossession of premises or on a point of law; however, neither of these categories applied to his case. He further noted that, had the proper regime been applied, the rent should have been adjusted to EUR 246 in 1994 and EUR 363 in 2009, and in that case the amendments of 2009 would not even have applied to him. In addition, he submitted that the Government’s calculations as to the increases available to him were incorrect. In reality, it had only been in 2013 that such an increase had been due and this would have amounted to EUR 194.63 per year in his current position, while under the HD Ordinance it would have amounted to EUR 381.83. Thus, even assuming the Government’s rental estimate for that year amounting to EUR 2,900 (see paragraph 15 above) to be correct (although the applicant considered it improbable), the said rents would still have amounted to 6.7 % and 13.17 % of the current market value respectively. This went to show how meagre the improvements had been, and the fact that an increase according to inflation did not reflect price increases in immovable property, which according to the Immovable Price Index Notice (Subsidiary legislation 246.08) had been 42.92% for the period between 2004 and 2012.\n\n.  It followed that the extremely subsidised housing at his expense, where there had been no social or economic need, nor any subsidisation by the State or any opportunity to evict his tenants, had made him bear an individual and excessive burden.\n\n.  The Government submitted that there had not been an interference with the applicant’s property rights in so far as the HD Ordinance (as amended in 1979) only limited the already existent protection of tenants to Maltese citizens occupying premises as ordinary residences. Moreover, he had inherited the premises in 1984, thus at the time he had become its owner, the property had already been subject to that law. It followed that the property had not lost any worth since he had inherited it. The Government were of the opinion that no right existed to maintain in force an existing regime, that is to say that a certain regime would never be regulated in future. Furthermore, the 1959 law had been an emergency ordinance with the aim of ameliorating specific situations.\n\n.  Without prejudice to the above, the Government submitted that the control of the use of such property was and remained in the general interest, namely the protection of tenants by providing decent and adequate accommodation and the avoidance of homelessness, which was still relevant today given the number of families lacking financial resources. They noted that various people were still dependent on leases, irrespective of the amount of vacant property. According to information submitted by them, the number of applications for social housing in 1988 was 4,982 and in 1989 was 1,622; it continued to decrease, reaching a low in 2001 with 249 applications, increasing gradually until 2012 when there were 932 applications, which by 2013 were down again to 756 (in 2008 it was 693). Indeed, the 1979 amendments had come about as a legislative reaction to protect tenants, following the years of unrestricted leases, and whose leases and emphyteutic grants of dwelling houses covered by prevailing laws were at the time coming to an end. Had it not been for such restrictions, the number of persons in need of social housing aid would have been greater.\n\n.   The Government further submitted that by means of amendments in 2009 and 2010, which applied to the applicant’s premises, the Government aimed to gradually eliminate protected tenancies. Those amendments had helped to mitigate interference with owners’ rights. They had introduced an increase in the amount of rent by introducing a minimum rent of EUR 185 per year. The rent could be increased every three years in accordance with inflation. While owners retained their rights to dispose of the property, tenants had limited rights and were obliged to take good care of the property as well as incur all expenses related to ordinary repairs and maintenance. In the event that owners were to make extraordinary repairs to the property, the law allowed for a further increase in the annual rent by 6% of the value of the repairs. Furthermore, tenants could only use a property for its intended purpose and any other use, or non-use, for twelve months, would entitle owners to ask for the dissolution of the contract. Lastly, the revision of the definition of tenant had been more favourable to land owners (see Relevant domestic law above). The law had thus struck a balance between the rights of tenants and those of owners, who under these circumstances could make some profit.\n\n.  The Government considered that it was not right to compare the rent received by the applicant to market values. Proportionality had to be assessed in the light of the economic and social reality of Malta. They noted that in 1997 the minimum weekly wage in Malta had been EUR 106, increasing up to EUR 162 in 2013 (in 2008 it had been EUR 146). In any event, they pointed out that the Convention did not give a right to receive profits, and the discrepancy between market values and that rent had to fall within the margin of appreciation of the State to legislate and put in place social measures. Furthermore, they noted that the low rent received since 1998 was not a result of the 1979 laws, but of a wrong decision by the RRB which had not been appealed against. They considered that the applicant should have appealed had he considered that the decision was not based on a correct application and interpretation of law. They further noted that despite that decision, since 2010, according to the amended legal regime, the applicant had been entitled to a rent of EUR 185 per year, which in 2012 could have been increased to EUR 246 per year. These amounts had been based on the original rental values the applicant’s mother had agreed to.\n\n.  The Government noted that the applicant had not proved that couple C had had alternative accommodation; while it was true that Mr C had entered into some contracts of sale, he had been a co-owner of the property sold and therefore it could not be assumed that he made sufficient earnings to enable the couple to acquire a dwelling of their own. Moreover, couple C were now of an advanced age and no relatives lived with them, thus it was possible that the applicant would regain possession in the future.\n\n.  In view of the above, and the fact that rent had been originally established by the applicant’s mother in an open market, the Government considered that the applicant had not suffered an individual burden, nor had there been any arbitrary or unforeseen impact on his property rights.\n\n2.  The Court’s assessment\n\n52.  As the Court has stated on a number of occasions, Article 1 of Protocol No. 1 comprises three distinct rules: the first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions; the third rule, stated in the second paragraph, recognises that the Contracting States are entitled, inter alia, to control the use of property in accordance with the general interest. The three rules are not, however, distinct in the sense of being unconnected. The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule (see, among other authorities, James and Others v. the United Kingdom, 21 February 1986, § 37, Series A no. 98; Beyeler v. Italy [GC], no. 33202/96, § 98, ECHR 2000-I; and Saliba v. Malta, no. 4251/02, § 31, 8 November 2005).\n\n53.  The Government contested the assertion that there had been an interference with the applicant’s property rights within the meaning of Article 1 of Protocol No. 1 to the Convention, on the basis that the law at issue had already been in force when the applicant had inherited the property. The Court notes that the application of legislation affecting landlords’ rights over many years constitutes a continued interference for the purposes of Article 1 of Protocol No. 1 (see, mutatis mutandis, HuttenCzapska [GC], no. 35014/97, § 210, ECHR 2006). Thus, in circumstances such as those of the present case, both the applicant’s mother and subsequently the applicant suffered interference with their property rights (see, mutatis mutandis, Amato Gauci, cited above, § 51). For the purposes of this case, however, the complaint is confined to the application of the 1979 amendments to the applicant’s rights over his property, from 3 November 2008 onwards.\n\n.  The Court has previously held that rent control-schemes and restrictions of an applicant’s right to terminate a tenant’s lease constitute control of the use of property within the meaning of the second paragraph of Article 1 of Protocol No. 1. It follows that the case should be examined under the second paragraph of Article 1 of Protocol No. 1 (see, inter alia, Bittó and Others v. Slovakia, no. 30255/09, § 101, 28 January 2014 and Amato Gauci, cited above, § 52).\n\n.  The first requirement of Article 1 of Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of possessions be lawful. In particular, its second paragraph, while recognising that States have the right to control the use of property, subjects their right to the condition that it be exercised by enforcing “laws”. Moreover, the principle of lawfulness presupposes that the applicable provisions of domestic law are sufficiently accessible, precise and foreseeable in their application (see, mutatis mutandis, Broniowski v. Poland [GC], no. 31443/96, § 147, ECHR 2004-V, and Saliba, cited above, § 37).\n\n.  Furthermore, a measure aimed at controlling the use of property can only be justified if it is shown, inter alia, to be “in accordance with the general interest”. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the “general” or “public” interest.  The notion of “public” or “general” interest is necessarily extensive. In particular, spheres such as housing of the population, which modern societies consider a prime social need and which plays a central role in the welfare and economic policies of Contracting States, may often call for some form of regulation by the State. In that sphere, decisions as to whether, and if so when, it may fully be left to the play of free market forces or whether it should be subject to State control, as well as the choice of measures for securing the housing needs of the community and of the timing for their implementation, necessarily involve consideration of complex social, economic and political issues. Finding it natural that the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one, the Court has on many occasions declared that it will respect the legislature’s judgment as to what is in the “public” or “general” interest unless that judgment is manifestly without reasonable foundation (see Hutten-Czapska, cited above, §§ 165-166).\n\n.  That the interference was lawful has not been disputed by the parties. The Court finds that the restriction arising from the 1979 amendments was imposed by Act XXIII of 1979 and was therefore “lawful” within the meaning of Article 1 of Protocol No. 1. It further considers that the legislation at issue in the present case pursued a legitimate social policy aim, namely the social protection of tenants (see Velosa Barreto, § 35; Hutten-Czapska, § 178; and Amato Gauci, § 55, all cited above). It is, however, also true that the relevance of that general interest may have decreased over time, particularly after 2008, the years at issue in the present case. This matter will therefore be reverted to in the Court’s assessment as to the proportionality of the impugned measure.\n\n.  Any interference with property must also satisfy the requirement of proportionality. As the Court has repeatedly stated, a fair balance must be struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights, the search for such a fair balance being inherent in the whole of the Convention. The requisite balance will not be struck where the person concerned bears an individual and excessive burden (see Sporrong and Lönnroth v. Sweden, 23 September 1982, §§ 69-74 Series A no. 52, and Brumărescu v. Romania [GC], no. 28342/95, § 78, ECHR 1999-VII).\n\n.  The concern to achieve this balance is reflected in the structure of Article 1 of Protocol No. 1 as a whole. In each case involving an alleged violation of that Article, the Court must therefore ascertain whether by reason of the State’s interference the person concerned had to bear a disproportionate and excessive burden (see James and Others v. the United Kingdom, 21 February 1986, § 50, Series A no. 98; Mellacher and Others v. Austria, 19 December 1989, § 48, Series A no. 169; and Spadea and Scalabrino v. Italy, 28 September 1995, § 33, Series A no. 315B).\n\n.  In assessing compliance with Article 1 of Protocol No. 1, the Court must make an overall examination of the various interests in issue, bearing in mind that the Convention is intended to safeguard rights that are “practical and effective”. It must look behind appearances and investigate the realities of the situation complained of. In cases concerning the operation of wide-ranging housing legislation, that assessment may involve not only the conditions of the rent received by individual landlords and the extent of the State’s interference with freedom of contract and contractual relations in the lease market, but also the existence of procedural and other safeguards ensuring that the operation of the system and its impact on a landlord’s property rights are neither arbitrary nor unforeseeable. Uncertainty – be it legislative, administrative or arising from practices applied by the authorities – is a factor to be taken into account in assessing the State’s conduct. Indeed, where an issue in the general interest is at stake, it is incumbent on the public authorities to act in good time, and in an appropriate and consistent manner (see Immobiliare Saffi v. Italy, [GC], no. 22774/93, § 54, ECHR 1999-V, Bittó and Others, cited above, § 98, and Broniowski, cited above, § 151).\n\n.  Moreover, in situations where the operation of the rent-control legislation involves wide-reaching consequences for numerous individuals and has economic and social consequences for the country as a whole, the authorities must have considerable discretion not only in choosing the form and deciding on the extent of control over the use of property, but also in deciding on the appropriate timing for the enforcement of the relevant laws. Nevertheless, that discretion, however considerable, is not unlimited and its exercise cannot entail consequences at variance with the Convention standards (see, mutatis mutandis, Hutten-Czapska, cited above, § 223, and Amato Gauci, cited above, § 59).\n\n.  The Court notes the impact the application of the 1979 amendments had on the applicant’s property. In particular, although the property was originally decontrolled and not subject to rent or other contractual restrictions, the applicant subsequently could not exercise his right of use in terms of physical possession, as the house was occupied by tenants who were Maltese citizens and he could not terminate the lease (see, mutatis mutandis, Statileo v. Croatia, no. 12027/10, § 126, 10 July 2014). Thus, while he remained the owner of the property, he was subjected to a forced landlord-tenant relationship for what appears to be an indefinite period of time. He could only bring the lease to an end if his tenants failed to pay the rent or caused considerable damage to the house, or if they otherwise failed to comply with the conditions of the lease or their obligations thereunder, or if they used the premises for a purpose other than mainly as their ordinary residence. The Court further considers that the possibility of the tenants leaving the premises voluntarily was remote, especially since the tenancy could be inherited (despite the disputed application of the definition of tenant, which was varied only slightly by the 2010 amendments). The Government’s contention that transfer of the tenancy by inheritance was improbable given that couple C were of an advanced age and currently living alone was not substantiated and remains to be considered as pure speculation. It follows that these circumstances inevitably left the applicant in a state of uncertainty as to whether he would ever be able to recover his property.\n\n.  Moreover, the applicant could not increase the rent more than as provided for by the recent amendments. The Court points out that in the application of the 1979 and subsequent amendments to his case, he was in an even worse position as regards the amount of rent payable because of an error in the RRB proceedings, which he admitted (see paragraph 44 above). In fact it is not disputed that the RRB had based its decision on a regime which was not applicable to the property at issue, thus providing a lower rent, and that the applicant had not appealed. In this connection, the Court does not find it necessary to determine whether an appeal before the RRB would have been possible in the instant case, as in any event it has not been contested that, even if the proper law was applied, the RRB could not have awarded more than what was established by law which, according to the applicant, was not a fair amount of rent. It follows, however, that this further pejoration in the rent payable is attributable to him, and the assessment of the proportionality of the measure will thus take into account what he would have received in rent under the applicable regime complained of, as also amended in 2009 and 2010, and not what he actually received. Further, the Court notes that it is not up to it to interpret domestic law, and for the purposes of the present case it can in any event consider that the 2009 and 2010 amendments – slightly improving a landlord’s position – applied to the applicant’s case. The parties are also in disagreement as to the maximum amount of rent applicable; however, it suffices for the Court to note that in 2013 such rent would not in any event have exceeded EUR 382 annually (see paragraph 44 above), which is less than 1/7th of the rental market value as established by the Government for that year (EUR 2,900). The Court considers that State control over levels of rent falls into a sphere subject to a wide margin of appreciation by the State, and its application may often cause significant reductions in the amount of rent chargeable (see, in particular, Mellacher and Others, cited above, § 45). Nevertheless, this may not lead to results which are manifestly unreasonable, such as amounts of rent allowing only a minimal profit (see Amato Gauci, cited above § 62).\n\n.  These restrictions must be seen in the light of the demands of the general interest of the community. The Court notes that as stated by the Government, the 1979 amendments to the HD Ordinance were aimed to protect tenants in need, whose protection was diminishing with the fading out of previous favorable regimes. Thus, in its balancing exercise the Court will have to determine whether such a degree of tenant protection to the detriment of owners is still justified thirty years after those amendments, that is to say, from 2008 onwards.\n\n.  Firstly, the Court notes that the documentation provided by the applicant confirms that there is and has been in the last decade a substantial amount of vacant property in the country. Secondly, as admitted by the Government, steps were being taken to phase out controlled leases and that new leases were no longer controlled after 1995. Despite this open regime being in force for nearly two decades, it seems from the statistics submitted by the Government that from 2008 onwards less than 2% of the population were requesting aid for social housing. Regrettably, the Government have not submitted information as to how many tenants still benefit today from protected rents and whether these protected rents are justified in respect of each tenant (see Bittó and Others, cited above, §§ 109-110). In addition, as had been established in other cases (see Amato Gauci, cited above), there has been a rise in the standard of living in Malta over the past decades. It follows from the above that the needs and the general interest which may have existed in 1979 must have decreased over the three decades that ensued. Indeed, as submitted by the Government, the minimum wage in 2008 was EUR 146 a week or EUR 7,592 per year, and in 2013 it was EUR 162 a week or EUR 8,424 per year. The Court further observes that the national minimum pension according to the Social Security Act is, according to circumstances, four fifths (if the husband was maintaining his wife) or two thirds of the relevant minimum wage. It follows that, for example, for the year 2013, even assuming couple C were dependent solely on one individual’s minimum wage (EUR 8,424 per year), what they should have paid in annual rent for lodging purposes according to the 1979 amendments (which the Court noted in paragraph 63 above could not in any case be more than EUR 382 per year) amounted to less than 5% of their annual income (what they were actually paying amounted to less than 2.2%). Had they been dependent only on one national minimum pension it would have amounted to less than 6% of their annual income.\n\n.  The Court further notes that it has not been disputed that the RRB was not an effective remedy enabling the applicant to evict the tenants (contrast Velosa Barreto, cited above), either on the basis of his own need or that of his relatives or on the basis that the couple were not deserving of such protection, as they owned alternative accommodation or could have afforded it (see Amato Gauci, cited above, § 71). Consequently, the application of the law itself lacked adequate procedural safeguards aimed at achieving a balance between the interests of the tenants and those of the owners (see also Statileo, cited above, § 128).\n\n.  In the present case, despite the considerable discretion of the State in choosing the form and deciding on the extent of control over the use of property in such cases, the Court finds that, having regard to the low rental value which could have been received by the applicant, his state of uncertainty as to whether he would ever recover his property, the lack of procedural safeguards in the application of the law and the rise in the standard of living in Malta over the past decades, a disproportionate and excessive burden was imposed on the applicant who was requested to bear most of the social and financial costs of supplying housing accommodation to couple C (see Amato Gauci, cited above, § 63). It follows that the Maltese State failed to strike the requisite fair balance between the general interests of the community and the protection of the applicant’s right of property.\n\n.  There has accordingly been a violation of Article 1 of Protocol No.1 to the Convention.\n\nII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n.  The applicant claimed pecuniary damage amounting to EUR 2,900 yearly from 2008 to the end of the current state of affairs, from which must be deducted the sums deposited by the tenants with the domestic courts. He further claimed EUR 1,500 yearly for the period 1987 to 2008. He further claimed EUR 35,000 in non-pecuniary damage, given that he has been unable to regain possession of his property since 1979.\n\n.  The Government submitted that a finding of a violation sufficed as just satisfaction. In any event, an award calculated on the basis of an open market value was not justified. As to non-pecuniary damage, they considered that an amount of EUR 5,000 would suffice.\n\n.  The Court notes that the applicant is entitled to compensation in respect of the loss of control, use, and enjoyment of his property from December 2008 to date. In assessing the pecuniary damage sustained by him, the Court has, as far as appropriate, considered the estimates provided and had regard to the information available to it on rental values in the Maltese property market during the relevant period. It has further considered the legitimate purpose of the restriction imposed, reiterating that legitimate objectives in the “public interest”, such as those pursued in measures of economic reform or measures designed to achieve greater social justice, may call for less than reimbursement of the full market value (see James and Others, cited above, § 54, and Jahn and Others v. Germany [GC], nos. 46720/99, 72203/01 and 72552/01, § 94, ECHR 2005-VI). However, the situation in the present case might be said to involve a degree of public interest which is less marked than in previous similar Maltese rent-law cases and which does not justify such a substantial reduction compared with the free market rental value (see Amato Gauci, cited above, § 77). It further considers that a one-off payment of 5% interest should be added to the above amount (see Ghigo v. Malta (just satisfaction), no. 31122/05, § 20, 17 July 2008). The Court, also bearing in mind that it was because of the applicant’s own fault that he was receiving an even lower rent, considers it reasonable to award EUR 11,550, from which must be deducted the sums already deposited in court by couple C in rent since 2008, which can still be retrieved by the applicant.\n\n.  Under Article 41 of the Convention, the purpose of awarding sums by way of just satisfaction is to provide reparation solely for damage suffered by those concerned to the extent that such events constitute a consequence of the violation that cannot otherwise be remedied (ibid., § 249). It is therefore not for the Court to quantify the amount of rent due in the future. Consequently, it dismisses the applicant’s claim for future losses, without prejudice to any future claims he may have.\n\n.  The Court further considers that the applicant must have suffered non-pecuniary damage which the finding of a violation in this judgment does not suffice to remedy. Deciding in equity, it therefore awards him EUR 2,500 in respect of non-pecuniary damage.\n\nB.  Costs and expenses\n\n.  The applicant also claimed EUR 9,629.22 as per submitted bills of costs for proceedings before the domestic courts (of which only EUR 5,217 concerned the second set of constitutional court proceedings) and EUR 5,900 for proceedings before the Court.\n\n.  The Government did not contest the amounts stipulated in the bill of costs concerning the domestic proceedings, but submitted that no receipts had been provided showing that those costs had been paid. As to the costs before the Court, they considered that the sum of EUR 1,500 was sufficient.\n\n.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the Court notes that expenses related to the first set of constitutional proceedings fall outside the scope of this case and thus no award may be made for that purpose. As to the expenses relating to the second set of proceedings, while they have not yet been paid, the Court observes that they nonetheless remain due. As to expenses in connection with the proceedings before it, the Court notes the absence of a breakdown of costs, or any details as to the number of hours worked and the rate charged per hour. Regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 7,500 covering costs under all heads.\n\nC.  Default interest\n\n.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\n1.  Declares the complaint concerning Article 1 of Protocol No. 1 to the Convention in so far as it relates to the period after 3 November 2008 admissible, and the remainder of the application inadmissible;\n\n2.  Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;\n\n3.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n4.  Dismisses the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 11 December 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_830","text":"PROCEDURE\n\n1.  The case originated in an application (no. 16631/04) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Maltese national, Mr Nazzareno Zarb (“the applicant”), on 5 April 2004.\n\n2.  The applicant was represented by Mr C. Soler and by Mr C. Cardona, lawyers practising in Birkirkara (). The Maltese Government (“the Government”) were represented by their Agent, Mr S. Camilleri, Attorney General.\n\n3.  On 27 September 2005 the Court (Fourth Section) declared the application partly inadmissible and decided to communicate the complaints concerning the length of the proceedings and the lack of remedies in that respect to the Government. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n4.  The applicant was born in 1971 and is currently detained at Corradino prison ().\n\nA.  The criminal proceedings against the applicant\n\n5.  On 5 April 1991 the applicant, accused together with other persons of various counts of aggravated theft (including theft in various factories and car theft), was arraigned before the Court of Magistrates sitting as a Court of Criminal Inquiry.\n\n6.  The prosecution concluded the case on the merits on 12 October 1993. It produced further evidence on charges of recidivism on 14 January 1994.\n\n7.  The legal qualification of the charges was presented on 14 April 1994, on which date the Court of Magistrates started to hear the evidence for the defence.\n\n8.  In a judgment of 15 February 1995, the Court of Magistrates acquitted the applicant of two of the charges, namely receiving stolen goods and theft of a car. It found the applicant guilty of the remaining six charges of theft and sentenced him to four years’ imprisonment.\n\n9.  The applicant appealed against his conviction and sentence. Four of his co-accused appealed, challenging exclusively the reasonableness of their sentence.\n\n10.  The defendants introduced a number of requests for release on bail, for the examination of new witnesses and for leave to present further submissions. This led to the adjournment of the case on several occasions, in particular on 29 February 1996 and on 13 March 1997, dates scheduled for the delivery of the judgment. The examination of the case was suspended from 14 January until 8 October 1999 because the presiding judge was ill.\n\n11.  The delivery of the judgment was scheduled first for 9 January, then for 30 October 2001; however, the proceedings were adjourned as some of the accused wished to present further submissions and because the presiding judge had been assigned to a foreign tribunal. By an order of 3 October 2002 the Court of Criminal Appeal adjourned the proceedings sine die awaiting the outcome of the constitutional claim which the applicant had introduced in the meantime (see infra, under B. “The applicant’s constitutional claim”).\n\n12.  The proceedings were resumed after the determination of the applicant’s constitutional claim, and on 15 January 2004 the Court of Appeal gave its final judgment. It reaffirmed that its role was not to interfere with the first court’s appreciation of the evidence, as long as it was satisfied that the conclusions reached by the Court of Magistrates were lawful and reasonable. In the light of the material before it and having regard to the fact that the applicant had admitted his guilt, the Court of Criminal Appeal confirmed the first-instance judgment.\n\nB. The applicant’s constitutional claim\n\n1.  Before the Civil Court\n\n13.  In the meantime, on 5 April 2002 the applicant had filed a constitutional claim with the  (First Hall). Invoking Article 6 of the Convention and Article 39 of the Constitution of Malta, he complained about the length of the criminal proceedings and alleged that his trial had not been fair.\n\n14.  In a judgment of 15 May 2003, the  dismissed the applicant’s claim.\n\n15.  The  observed that no delay could be imputed to the prosecution or to the trial court. The case was a rather complex one, as it involved many counts and a number of accused persons. Moreover, the Court of Magistrates had to hear several witnesses and to obtain many documents. Notwithstanding this, most of the requests for bail were decided on 17 April 1991, which was only twelve days after the date of the arraignment. Some of the accused failed to appear at several hearings, thus obliging the trial court to adjourn the proceedings. There were also difficulties in controlling the various accused, as their behaviour during the hearings had obstructed the normal course of justice. As some of them did not respect the bail conditions, the police had to take action for the revocation of bail and the Court of Magistrates had to decide on this issue. Some witnesses were untraceable and others, albeit properly summoned, did not attend the sittings. There had been no excessive delay in the inquiries and it had to be taken into account that it was necessary to exhibit the record of the inquiry for every single charge. The prosecution had concluded the case within a reasonable time and the proceedings before the Court of Magistrates were conducted without any unnecessary delay.\n\n16.  As to the proceedings before the Court of Criminal Appeal, they were prolonged because of the great number of claims presented by the defence and the need to obtain several reports from prison officials and/or psychiatric experts on the behaviour of the defendants, with a view to considering the progress they had made while in prison. Apart from the period between 14 January and 8 October 1999, the case was never left dormant.\n\n17.  Therefore, notwithstanding the fact that the case had been pending for about eleven years, there had been no substantial delay. It was true that most of the delay had been caused by the requests of other accused and not of the applicant himself. However, the Court of Criminal Appeal considered that, the crimes being connected, it would not have been consonant with the proper administration of justice to separate the defendants’ respective situations.\n\n2.  Before the\n\n18.  On 27 May 2003 the applicant appealed against the ’s judgment to the .\n\n19.  In a judgment of 31 October 2003, the latter quashed the impugned judgment in so far as it concerned the applicant’s complaint relating to the length of the criminal proceedings and declared that there had been a breach of the “reasonable time” principle. It also ordered the Attorney General to pay the applicant 100 Maltese liras (Lm – approximately 240 Euros) as just satisfaction. It held that each party had to bear its own costs. The  confirmed the ’s judgment for the remainder.\n\n20.  The  considered that there had been some delay at the appeal stage. The case was not particularly complex as the appeals concerned almost exclusively the measure of the penalty. Notwithstanding this, the case remained undecided for almost six years and six months and in November 2001 it was eventually referred to a new presiding magistrate. Even if it was true that the defendants presented a number of claims which had the effect of slowing down the proceedings, the Court of Criminal Appeal had the duty to ensure that the duration of the trial was not excessive. As most of these claims had been introduced by the other defendants, and not by the applicant himself, there had been a violation of the “reasonable time” principle in respect of the latter.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION\n\n21.  The applicant’s complaint relates to the length of the criminal proceedings brought against him. He invoked Article 6 § 1 of the Convention which, in so far as relevant, reads as follows:\n\n“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by a ... tribunal...”\n\nA.  Admissibility\n\n1.  The Government’s objection concerning the lack of “victim status”\n\n22.  The Government argued that the applicant could not claim to be a “victim”, within the meaning of Article 34 of the Convention, of the facts complained of. They observed that the  had indeed acknowledged a violation of the “reasonable time” principle and granted the applicant Lm 100 in compensation for moral damage, thus providing adequate redress for the breach of the Convention.\n\n23.  The applicant submitted that he had undeniably suffered a violation of Article 6 of the Convention and that the award of Lm100 for a human rights violation causing a considerable amount of hardship was far from adequate.\n\n24.  The Court reiterates that a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, for example, Eckle v. Germany, judgment of 15 July 1982, Series A no. 51, p. 32, §§ 69 et seq.; Amuur v. France, judgment of 25 June 1996, Reports of Judgments and Decisions 1996III, p. 846, § 36; Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999VI; and Jensen v. Denmark (dec.), no. 48470/99, 20 September 2001, ECHR 2001X).\n\n25.  The issue as to whether a person may still claim to be the victim of an alleged violation of the Convention essentially entails on the part of the Court an ex post facto examination of his or her situation. As it has already held in other length-of-proceedings cases, the question whether he or she has received reparation for the damage caused – comparable to just satisfaction as provided for under Article 41 of the Convention – is an important issue. Regarding violations of the reasonable-time requirement, one of the characteristics of sufficient redress which may remove a litigant’s victim status relates to the amount awarded as a result of using the domestic remedy. The Court has already had occasion to indicate that an applicant’s victim status may depend on the level of compensation awarded at domestic level on the basis of the facts about which he or she complains before the Court (Scordino v. Italy (No. 1), no. 36813/97, §§ 181 and 202, 29 March 2006).\n\n26.  In the case of Scordino v. Italy (No. 1), the Grand Chamber held that when, in order to prevent or to put right violations of the “reasonable time” principle, Contracting States choose to introduce remedies of a compensatory nature, it might be easier for the domestic courts to refer to the amounts awarded at domestic level for other types of damage – personal injury, damage relating to a relative’s death or damage in defamation cases for example – and rely on their innermost conviction, even if that results in awards of amounts that are lower than those fixed by the Court in similar cases. However, the Court is required to verify whether the way in which the domestic law is interpreted and applied has produced consequences that are consistent with the principles of the Convention, as interpreted in the light of the Court’s case-law. It recalls that, especially for States that have effectively incorporated the Convention into their legal systems, a clear error in assessment on the part of the domestic courts may also arise as a result of a misapplication or misinterpretation of the Court’s case-law (Scordino, cited above, §§ 182-192).\n\n27.  In the present case, it is not disputed that the  has found a violation of Article 6 § 1 of the Convention by reason of the excessive length of the criminal proceedings complained of. There has therefore been acknowledgment, at the domestic level, of the violation of the applicant’s rights. It remains to be ascertained whether the redress granted can be considered appropriate and sufficient.\n\n28.  According to the Court’s case-law, there is a strong but rebuttable presumption that excessively long proceedings will occasion non-pecuniary damage. It is acceptable, however, that, in some cases, the length of proceedings may result in only minimal non-pecuniary damage or no non-pecuniary damage at all. The domestic courts will then have to justify their decision by giving sufficient reasons. Moreover, when no remedy designed to expedite the proceedings is provided for by the domestic legal system, which only affords the possibility of obtaining a financial compensation, the threshold in respect of which the amount will still allow a litigant to claim to be a “victim” will be higher (Scordino, cited above, §§ 204-206).\n\n29.  In the instant case, the  awarded the applicant Lm 100 (approximately EUR 240) for an overall length of more than twelve years and nine months for two instances. It found that there had been some delay at the appeal stage. Thus, the  applied a rate of less than EUR 19 per annum. The Court observes that this amount is approximately 1.7 % of what it generally awards in similar Italian cases (see, for instance and mutatis mutandis, Maurano v. Italy, no. 43350/98, § 32, 26 April 2001). That factor in itself leads to a result that is manifestly unreasonable having regard to its case-law. It will revert to this matter in the context of Article 41 (see paragraph 56-57 below).\n\n30.  In conclusion, the Court considers that the redress was insufficient. As the second condition – appropriate and sufficient redress – has not been fulfilled, the Court considers that the applicant can in the instant case still claim to be “victim” of a breach of the “reasonable-time” requirement.\n\n31.  Accordingly, the Government’s objection concerning the lack of “victim status” should be dismissed.\n\n2.  Other grounds for declaring this complaint inadmissible\n\nThe Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n32.  The applicant submitted that his case was by no means complex, as it did not involve any complicated issue of fact or of law. He was of the opinion that the overall length of the trial could have been reduced by separating the proceedings against him from those of his co-accused. This should have been done particularly when it became evident that the applicant was being prejudiced by the irregular behaviour, requests and applications of the other co-accused. He emphasised that he had filed the least number of requests throughout the entire proceedings.\n\n33.  The Government acknowledged that the findings of the Constitutional Court of Malta were correct and that there had been a breach of Article 6 § 1 of the Convention.\n\n34.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).\n\n35.  In the present case, the period to be taken into consideration began on 5 April 1991, when the applicant was arraigned before the Court of Magistrates, and ended on 15 January 2004, the date of the Court of Appeal’s judgment. The proceedings at issue thus lasted twelve years, nine months and ten days for two levels of jurisdiction.\n\n36.  The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above).\n\n37.  The Court observes that the applicant’s case was not particularly complex. This is even more evident with regard to the appeal proceedings, in which, as the  pointed out, the main issue was the measure of the penalty (see paragraph 20 above). Even though the parties had not identified any particular period of inactivity at the first-instance stage, the Court notes that the proceedings before the Court of Magistrates lasted three years, nine months and ten days (from 5 April 1991 until 15 February 1995 – see paragraphs 5-8 above). As to the appeal proceedings, they lasted more than eight years and ten months, a period which is excessive. Moreover, the case was adjourned on several occasions: to examine the co-accused’s requests, because the presiding judge was ill; and because he had been assigned to a foreign tribunal. The delivery of the judgment was also postponed on at least one occasion (see paragraphs 10 and 11 above). As rightly acknowledged by the , these facts entailed a substantial period of inactivity, for which no convincing explanation had been given by the Government.\n\n38.  The Court recalls that in the present case the  found that a reasonable time had been exceeded. However, the fact that the constitutional proceedings, examined as a whole, did not cause the applicant to lose his “victim” status constitutes an aggravating circumstance regarding a breach of Article 6 § 1 for exceeding a reasonable time (see, mutatis mutandis, Scordino, cited above, § 225). The Court will therefore revert to this issue under Article 41.\n\n39.  Having examined all the material submitted to it, and having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.\n\n40.  There has accordingly been a breach of Article 6 § 1\n\nII. ALLEGED VIOLATION OF ARTICLE 13 READ IN CONJUNCTION WITH ARTICLE 6 § 1 OF THE CONVENTION\n\n41.  Invoking Article 13 of the Convention, taken in conjunction with Article 6 § 1, the applicant alleged that the violation of the “reasonable time” principle found in his case was not redressed in an effective manner, as the Constitutional Court granted him only Lm 100 as just satisfaction. Article 13 reads as follows:\n\n“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”\n\n42.  The Government contested that argument.\n\nA.  Admissibility\n\nThe Government’s objection of failure to exhaust domestic remedies\n\n43.  The Government submitted that the applicant, who invoked a violation of Article 6 § 1 before the domestic courts, had never raised an issue under Article 13 in the context of his constitutional complaint. In the Government’s view, this amounted to non-exhaustion of domestic remedies.\n\n44.  The applicant alleged that all domestic remedies had been exhausted. He observed that before the  in its constitutional jurisdiction he had requested a declaration of a violation of the reasonable time requirement and the grant of adequate compensation.\n\n45.  The Court does not consider it necessary to examine whether the applicant has exhausted all available domestic remedies and consequently leaves this matter open.\n\n2.  Other grounds for declaring this complaint inadmissible\n\n46.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n47.  The Court observes firstly, that Article 13 of the Convention guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudła v. Poland, [GC], no. 30210/96, § 156, ECHR 2000-XI).\n\n48.  The Court has frequently held that the remedy required by Article 13 must be “effective” in practice as well as in law (see, for example, İlhan v.  [GC], no. 22277/93, § 97, ECHR 2000-VII). The term “effective” is also considered to mean that the remedy must be adequate and accessible (see Paulino Tomás v. Portugal (dec.), no. 58698/00, ECHR 2003-XIII). Remedies available to a litigant at domestic level for raising a complaint about the length of proceedings are “effective” within the meaning of Article 13 of the Convention if they prevent the alleged violation or its continuation, or provide adequate redress for any violation that has already occurred (see Mifsud v. France (dec.) [GC], no. 57220/00, § 17, ECHR 2002-VIII, Scordino v. Italy (no. 1), cited above, §§ 186-188, and Surmeli v. Germany [GC], no. 75529/01, § 99, 8 June 2006). Lastly, the Court recalls that the effectiveness of a remedy within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant (see Surmeli v. Germany, cited above, § 98) and the mere fact that an applicant’s claim fails is not in itself sufficient to render the remedy ineffective (Amann v. Switzerland, [GC], no. 27798/95, §§ 88-89, ECHR 2002-II).\n\n49. The Court must determine whether the means available to the applicant in Maltese law for raising a complaint about the length of the proceedings in his case could be considered “effective”.\n\n50.  The Court notes that a remedy was in principle provided under Maltese law, which enabled the applicant to raise with the national courts his complaint about the length of the proceedings in his case. He instituted constitutional proceedings before the  (First Hall) in its constitutional jurisdiction and, on appeal, before the . His complaint under Article 13 mainly related to the amount of the compensation awarded by the , a question which the Court has addressed in its examination of the Government’s objection of lack of victim status (see paragraphs 24-31 above).\n\n51.  The Court observes that there existed no limit on the amount of compensation which could be granted to an applicant in such proceedings. The amount awarded to the applicant was based solely on the exercise by the domestic court judges’ of their discretion as to what might constitute appropriate pecuniary redress in the circumstances of the applicant’s own case. The mere fact that the amount of compensation given was low does not render the remedy in itself ineffective. Furthermore, no other evidence has been provided showing that the remedy at issue could be considered ineffective. In the light of the foregoing, the Court considers that the above mentioned situation cannot be regarded as a breach of the applicant’s right to an effective remedy.\n\n52.  Accordingly, there has been no violation of Article 13 of the Convention in the present case.\n\nIII. APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n53.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n54.  The applicant alleged that due to the delay in the proceedings, he was unable to run his business and to obtain the related profits. He claimed Lm 35,000 (approximately EUR 84,000) for pecuniary damage.\n\n55.  The applicant further claimed Lm 5,000 (EUR 12,000) for moral damage.\n\n56.  The Government submitted that there was no causal link between the violation found and the amount claimed for pecuniary damage. They observed that there was no evidence that the applicant was in any lawful employment immediately before the commencement of the proceedings at issue. Moreover, it was unlikely that, as alleged by the applicant, his business had increased while he was in prison serving another sentence unconnected with the proceedings complained of.\n\n57.  As to non-pecuniary damage, the Government pointed out that the period spent by the applicant in detention on remand had been deducted from his final sentence. Furthermore, for most of the period in question the applicant was in detention under preventive arrest or serving sentences in connection with other proceedings.\n\n58.  The Court observes that there is no causal link between the pecuniary damage claimed by the applicant and the violation found in the present case. Therefore it makes no award under this head.\n\n59.  On the other hand the Court considers that the applicant suffered moral damage. However, at the domestic level the applicant had already obtained Lm 100 in this respect. In the case of Scordino v. Italy (No. 1) (see judgment quoted above, §§ 268-269) the Grand Chamber has stressed that the amount to be awarded for non-pecuniary damage under Article 41 may be less than that indicated in its case-law where the applicant has already obtained a finding of a violation at domestic level and compensation by using a domestic remedy. However, where an applicant can still claim to be a “victim” after exhausting that domestic remedy he or she must be awarded the difference between the amount obtained from the national jurisdictions and an amount that would not have been regarded as manifestly unreasonable compared with the amount awarded by the Court if it had been awarded at the domestic level.\n\n60. Having regard to the circumstances of the present case (see paragraph 37 above), the Court considers that, in the absence of domestic remedies, it would have awarded the sum of EUR 10,300. It notes that the applicant was awarded EUR 240 by the , which is approximately 2.3 % of what the Court would have awarded. In the Court’s view, this factor in itself leads to a result which is manifestly unreasonable having regard to the criteria established in its case-law.\n\n61.  Having regard to the characteristics of the domestic remedy chosen by  and the fact that, notwithstanding this national remedy, the Court has found a violation, it considers, ruling on an equitable basis, that the applicant should be awarded EUR 4,500, plus any tax that may be chargeable on that amount.\n\nB.  Costs and expenses\n\n62.  The applicant claimed a total sum of Lm 2,000 (approximately EUR 4,800) for the costs incurred before the domestic jurisdictions. He also sought Lm 500 (approximately EUR 1,200) for the costs incurred before the Court.\n\n63.  The Government submitted that the amount claimed for the domestic proceedings was manifestly excessive. They recalled that the  had decided that each party should bear its own costs. The applicant’s claim was unclear and the applicant had failed to produce receipts or invoices in this respect.\n\n64.  As to the costs before the Court, the Government accepted that the amount claimed was reasonable.\n\n65.  According to the Court’s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. It is true that the applicant failed to produce receipts or other documents showing the exact amount incurred before the domestic jurisdictions. It is nevertheless to be noted that before introducing his application in , the applicant had exhausted the available national remedies, submitting a constitutional complaint to the  and the . Even though this remedy did not pertain exclusively to the violation of the “reasonable time” principle, the Court accepts that the applicant had incurred expenses at the domestic level in order to correct the breach of the Convention (see, mutatis mutandis, Rojas Morales v. Italy, no. 39676/98, § 42, 16 November 2000). Having regard to the elements in its possession and to its practice in this area, the Court awards, EUR 500 under this head. The Court also considers that the amount claimed for the costs incurred before it is reasonable. It therefore awards the applicant the sum claimed in this respect (EUR 1,200).\n\n66.  It follows that the total sum due to the applicant for costs and expenses is EUR 1,700, plus any tax that may be chargeable on that amount.\n\nC.  Default interest\n\n67.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1. Declares the application admissible;\n\n2.  Holds that there has been a violation of Article 6 § 1 of the Convention;\n\n3.  Holds that there has been no violation of Article 13 of the Convention;\n\n4.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Maltese Liri at the rate applicable at the date of settlement:\n\n(iii)  any tax that may be chargeable on the above amounts;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n5.  Dismisses the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 4 July 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.\n\nIn accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinions of Mr Bonello is annexed to this judgment.\n\n1. I voted to award the applicant only EUR 4500 in respect of non-pecuniary damages, solely in deference to the criteria recently established by the Grand Chamber of the Court in the cases of Scordino and Cocchiarella v. Italy (29 March 2006) in which deliberations I did not participate and with whose conclusions I respectfully disagree.\n\n2. According to its long-established criteria, the Court would have awarded the applicant EUR 10,300 had his case been decided in . Instead of applying the Strasbourg scale of compensation, the domestic courts fobbed the applicant off with EUR 240 – which represents a beggarly 2.3% of what the Strasbourg Court would have awarded (see § 60).\n\n3. For having complied with the Convention’s requirement of exhausting domestic remedies before applying to the , the applicant now finds himself penalized by getting only about 45% of what would have been due to him according to the Court’s practice. The argument (used in Scordino and Cocchiarella) that the sum obtainable in  should anyway be curtailed because the applicant enjoyed the convenience of a domestic remedy, in the present case falls flat on its face. The so-called domestic ‘remedy’ worked out at only 2.3% of what he was entitled to, and the so-called ‘convenience’ consisted in having to undergo the burden of three sets of court proceedings instead of one.","title":""}
{"_id":"passage_898","text":"PROCEDURE\n\n1.  The case was referred to the Court by the European Commission of Human Rights (\"the Commission\") on 13 April 1992, within the three-month period laid down in Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the Convention. It originated in an application (no. 12875/87) against the  lodged with the Commission under Article 25 (art. 25) by an Austrian, Mrs Ingrid Hoffmann, on 20 February 1987.\n\nThe Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby  recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 8, 9 and 14 (art. 8, art. 9, art. 14) of the Convention and Article 2 of Protocol No. 1 (P1-2).\n\n2.  In response to the enquiry made in accordance with Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that she wished to take part in the proceedings and designated the lawyer who would represent her (Rule 30). The President gave him leave to use the German language during the proceedings (Rule 27 para. 3).\n\n3.  The Chamber to be constituted included ex officio Mr F. Matscher, the elected judge of Austrian nationality (Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21 para. 3 (b)). On 25 April 1992 the President drew by lot, in the presence of the Registrar, the names of the other seven members, namely Mr L.-E Pettiti, Mr B. Walsh, Mr R. Macdonald, Mr C. Russo, Mr N. Valticos, Mr I. Foighel and Mr G. Mifsud Bonnici (Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43). Mr Macdonald was later replaced by Mr M.A. Lopes Rocha, substitute judge, as he was unable to attend (Rules 22 para. 1 and 24 para. 1).\n\n4.  Mr Ryssdal assumed the office of President of the Chamber (Rule 21 para. 5) and, through the Registrar, consulted the Agent of the Austrian Government (\"the Government\"), the Delegate of the Commission and the applicant’s representative on the organisation of the proceedings (Rules 37 para. 1 and 38). Pursuant to the resulting orders and instructions, the Registrar received the memorial of the applicant and the memorial of the Government on 17 September 1992 and 21 September 1992 respectively. The Secretary to the Commission indicated that the Delegate would submit her observations at the hearing.\n\n5.  In accordance with the President’s decision, the hearing took place in public in the , , on 25 January 1993. The Court had held a preparatory meeting beforehand. Mr R. Bernhardt, the Vice-President of the Court, replaced Mr Ryssdal, who was unable to attend (Rule 21 para. 5, second sub-paragraph).\n\nThere appeared before the Court:\n\n- for the Government\n\n- for the Commission\n\n- for the applicant\n\nThe Court heard their addresses as well as replies to the questions of some of its members.\n\nAS TO THE FACTS\n\nI.  THE PARTICULAR CIRCUMSTANCES OF THE CASE\n\nA. Introduction\n\n6.  Mrs Ingrid Hoffmann is an Austrian citizen residing in Gaissau. She is a housewife.\n\n7.  In 1980 Mrs Hoffmann - then Miss Berger - married Mr S., a telephone technician. At that time, they were both Roman Catholics.\n\nTwo children were born to them, a son, Martin, in 1980 and a daughter, Sandra, in 1982. They were baptised as Roman Catholics.\n\n8.  The applicant left the Roman Catholic Church to become a Jehovah’s Witness.\n\n9.  On 17 October 1983 the applicant instituted divorce proceedings against Mr S. She left him in August or September 1984 while the proceedings were still pending, taking the children with her.\n\nThe divorce was pronounced on 12 June 1986.\n\nB. Proceedings before the  District Court\n\n10.  Following their separation, both the applicant and Mr S. applied to the Innsbruck District Court (Bezirksgericht) to be granted parental rights (Elternrechte) over the children.\n\nMr S. submitted that if the children were left in the applicant’s care, there was a risk that they would be brought up in a way that would do them harm. He claimed that the educational principles of the religious denomination to which the applicant belonged were hostile to society, in that they discouraged all intercourse with non-members, all expressions of patriotism (such as singing the national anthem) and religious tolerance. All this would lead to the children’s social isolation. In addition, the Jehovah’s Witnesses’ ban on blood transfusions might give rise to situations in which their life or their health was endangered.\n\nWith regard to the son, Martin, Mr S. noted that he would eventually have to refuse to perform military service or even the civilian service exacted in its stead.\n\nThe applicant claimed that she was better placed to take care of the children, being in a position to devote herself to them completely, and as a mother better able to provide them with the necessary family environment. She alleged that Mr S. did not even provide for their maintenance, as he was both legally and morally bound to do. She acknowledged, however, that she intended to bring the children up in her own faith.\n\nThe youth office of the Innsbruck District Authority (Bezirkshauptmannschaft, Abteilung Jugendfürsorge) expressed a preference for granting parental rights to the applicant; it referred to, inter alia, the expert opinion of a child psychologist.\n\n11.  By decision of 8 January 1986, the District Court granted parental rights to the applicant and denied them to Mr S.\n\nAccording to its reasoning, only the children’s well-being fell to be considered. The material living conditions of both parents were such that either of them would be able to take proper care of the children; however, the father would need his mother’s help. The children had stronger emotional ties with the applicant, having lived with her for a year and a half already, and separating them from her might cause them psychological harm. It followed that it was preferable to leave the children with the mother.\n\nThe District Court further observed:\n\n\"As against this, it has been stated by the children’s father, essentially as his only argument, that Ingrid S.’s membership of the religious community of the Jehovah’s Witnesses has serious detrimental effects on the children. As to this, it ought to be made clear right away that in no case are parents’ religious convictions as such a relevant criterion in deciding on parental rights and duties pursuant to Article 177 para. 2 of the Civil Code. These rights cannot be refused to a parent or withheld from him for the sole reason that he or she belongs to a religious minority.\n\nHowever, in the concrete case it needs to be examined whether the mother’s religious convictions have a negative influence on her upbringing of the children which should be taken into account and whether their well-being is impaired as a result. It appears in particular that Ingrid S. would not allow blood transfusions to be given to her children; that for herself she rejects communal celebration of such customary holidays as Christmas or Easter; that the children experience a certain tension in relation to an environment which does not correspond to their faith; and that their integration in societal institutions such as kindergarten and school is made more difficult. However, the father’s apprehension of complete social isolation as a result of the mother’s religion does not appear well-founded in the light of the established facts. In addition, no possible dangers to either child’s development have appeared in the course of the establishment of the facts.\n\nIt is true that the facts adduced (blood transfusions, holidays, impaired social integration) are in principle capable of having detrimental effects on the children. This point must now be examined in the context of the particular case. It appears first of all that the father’s argument that Martin and Sandra would be exposed in an emergency to serious danger to their life and health by the refusal of a blood transfusion is not of decisive importance. In the absence of parental permission for a medically necessary blood transfusion to either child, such permission can be replaced by a judicial decision in accordance with Article 176 of the Civil Code (compare the decision of the Innsbruck Regional Court (Landesgericht) of 3 July 1979, 4R 128/79). In any case, according to this legal provision, anyone can apply to the court for an order that is necessary to ensure the welfare of the child when the parent endangers it by his conduct. In view of this possibility of applying to the court, which is available at all times, no danger to the children need be inferred from the mother’s attitude to blood transfusions.\n\nAs for Ingrid S.’s rejection of holidays, notice must be taken of her express agreement to allow the father to take the children on such occasions and celebrate them with the children as he sees fit. The mother’s religious convictions thus do not deprive Martin and Sandra of the possibility of celebrating these holidays in the usual way, so that no detriment to the children can be found in this regard either.\n\nOf the reservations with regard to the mother’s upbringing of the children resulting from her religion the only remaining one of any significance is the circumstance that Martin and Sandra will in later life experience somewhat more difficulty in finding their way in social groups as a result of the religious precepts of the Jehovah’s Witnesses and will find themselves to some extent in a special position. However, the court cannot consider this so detrimental to the children’s welfare that they should for that reason not be entrusted to their mother, with whom they have such a close psychological relationship and to whose care they are accustomed. Careful consideration must lead to the conclusion that in spite of more difficult social integration, as discussed above, it appears to be more in the interest of the children’s welfare to grant parental rights to the mother than to transfer them to the father.\"\n\nC. Proceedings before the\n\n12.  Mr S. appealed against the above decision to the  (Landesgericht).\n\n13.  The Regional Court rejected the appeal by decision of 14 March 1986. Its grounds for so doing were the following:\n\n\"The main thrust of the appeal is to argue that the decision of the first-instance court is incompatible with the children’s welfare in view of the mother’s membership of the religious community of the Jehovah’s Witnesses. In this connection, the appellant discusses the criteria and objectives peculiar to that religious community and the resulting social attitudes, which are in his opinion wrong; it follows, in his view, that both children are bound to suffer harm if the parental rights and duties are assigned to the mother, and in particular that they may be forced into social isolation removed from reality.\n\nThe appellant’s line of argument in this regard is unsound. The Jehovah’s Witnesses, formerly known as Serious Bible Students, a community based upon their own interpretation of the Bible, are not outlawed in Austria; it may therefore be assumed that their objectives neither infringe the law nor offend morality (see Article 16 of the Basic Law in conjunction with Article 9 (art. 9) of the European Convention on Human Rights). Therefore, the mother’s membership of that religious community cannot of itself constitute a danger to the children’s welfare ...\n\nAdmittedly, the mother’s religion will in all probability affect the children’s care and upbringing, and they may come to experience a certain tension in relation to an environment which does not correspond to their faith. The first-instance court has already dealt at length with part of the appellant’s arguments that relate thereto and has given detailed and conclusive reasons why the father’s objections against assigning the parental rights and duties to the mother cannot in the final instance be decisive. The new points raised on appeal - relating to a lack of understanding of democracy and a lack of subordination to the State - cannot cast doubt on the first-instance decision as regards the children’s welfare; it suffices in this respect to recall the legal recognition of the religious community of the Jehovah’s Witnesses, which meant, contrary to the appellant’s allegation, that the first-instance court did not in fact need to seek ex officio an expert opinion on the objectives or the ‘nature’ of the Jehovah’s Witnesses. Nor were the first-instance proceedings incomplete because no expert medical opinion was sought regarding the question, which was raised anew on appeal, of blood transfusions, which are rejected by the Jehovah’s Witnesses; in the event that a judicial remedy (a decision pursuant to Article 176 of the Civil Code) arrives too late, it will in the final instance be up to the physician treating the patient, when confronted with the problem, to reach a decision, with a view in the first place to life-saving medical action and only in the second place taking into account the rejection of blood transfusions which is peculiar to the Jehovah’s Witnesses.\n\nThe appellant’s further line of argument - to the effect that a properly arranged transfer of the children to himself and properly arranged visiting rights for the mother could not cause the same shock as had the mother’s forcible removal of the children, and that the decision under appeal had legalised her unilateral action - also fails to convince. The appellant overlooks the fact that, in view of the paramount importance of the children’s welfare, the way in which they reached the place where they are currently being taken care of is not necessarily decisive. Even illegal conduct would be of relevance only to the extent that it might, in an individual case, be possible to infer therefrom a lack of suitability for care or upbringing; it is not otherwise decisive for determining the attribution of parental rights and duties whether or not the parent concerned has taken charge of the children without authorisation. It remains true, however, that both children have for a long time developed harmoniously in the mother’s care, that there is a closer relationship with her than with the father, and that, whatever the religious or philosophical views of the mother, neither child has suffered any harm in his or her physical or - particularly - psychological development; in fact the appellant could not seriously claim that they had actually suffered in the latter respect.\"\n\nD. Proceedings before the Supreme Court\n\n14.  Mr S. lodged an appeal on points of law (außerordentlicher Revisionsrekurs) with the Supreme Court (Oberster Gerichtshof).\n\n15.  By decision of 3 September 1986, the Supreme Court overturned the judgment of the , granting parental rights to Mr S. instead of the applicant. It gave the following reasons:\n\n\"The appellant has not hitherto claimed that the children belonged to the Roman Catholic faith; however, he has stated, and it has in fact been established, that the mother is bringing them up according to the principles of the Jehovah’s Witnesses’ teaching. It is also uncontested that the children do not belong to this confession. The lower courts had therefore to examine whether or not the mother’s bringing up the children in this way contravened the provisions of the Federal Law of 1985 on the Religious Education of Children (Bundesgesetz über die religiöse Kindererziehung), BGBl (Bundesgesetzblatt, Federal official Gazette) 1985/155 (re-enactment of the Law of 15 July 1921 on the Religious Education of Children, dRGB (deutsches Reichsgesetzblatt, German Reich Gazette) I. 939). According to Article 1 of the 1921 Act the religious education of a child shall be decided upon by an agreement freely entered into by the parents, in so far as the responsibility for his or her care and upbringing is vested in them. Such an agreement may be revoked at any time and is terminated by the death of either spouse. Article 2, paragraph 1, of the 1921 Act lays down that if such an agreement does not or ceases to exist, the provisions of the Civil Code on the care and upbringing of children shall extend to their religious education. However, according to Article 2, paragraph 2 of the 1921 Act, during the existence of the marriage neither parent may decide without the consent of the other that the child is to be brought up in a faith different from that shared by both parents at the time of the marriage or from that in which he or she has hitherto been brought up.\n\nSince in any case the children do not belong to the faith of the Jehovah’s Witnesses, their education according to the principles of this sect (which is not, as the appellant rightly points out, a recognised religious community: see Adamovich-Funk, Österreichisches Verfassungsrecht, [Austrian Constitutional Law], Vol. 3, p. 415) contravenes Article 2, paragraph 2, of the 1921 Act. The ’s failure to apply this provision is obviously in breach of the law.\n\nMoreover, the lower courts also failed in their decisions to give due consideration to the children’s welfare ... . That the mother, as has been established, would refuse to consent to the children’s receiving a necessary blood transfusion constitutes a danger to their well-being, since requesting a court to substitute its consent for that of the mother ... may in urgent cases involve a life-threatening delay and medical intervention without seeking the approval of the person entitled to take care of the child is considered contrary to the law ... . It has also been established that if the children are educated according to the religious teaching of the Jehovah’s Witnesses, they will become social outcasts. In the initial decision as to which of the spouses is to have the right to provide care and upbringing, these circumstances cannot be ignored. Although it is preferable for young children to be taken care of by their mother ..., this applies only provided that all other things are equal ... . There is no maternal privilege as regards the attribution of parental right ... . The stress caused to the children by being transferred to the care of the other parent, which in any case is usually transitory, has to be accepted in their own best interests ... . The file contains no documentary basis for the assumption that a change to another carer ‘would with a high degree of probability cause the children serious psychological harm’ ... . Even according to the opinion of the lower courts, the father is able to see to the children’s upbringing, since they have a good relationship with him and with their grandmother, who would take charge of their care and upbringing during the father’s absence at work; the availability of accommodation for the children in the house of the father’s parents is assured. Therefore, only transfer of parental rights and duties to the father is in the children’s interest.\"\n\nII.  JEHOVAH’S WITNESSES\n\n16.  Numbering about four million worldwide not counting uninitiated sympathisers, the Jehovah’s Witnesses form a particular religious movement. It originated in  in the 1870s. Formerly known by names such as International Bible Students, the Jehovah’s Witnesses took their present name in 1931.\n\n17.  A central feature of Jehovah’s Witness doctrine is the belief that the Holy Scriptures in the original Hebrew and Greek are the revealed word of Jehovah God and must therefore be taken as literal truth.\n\nThe refusal to accept blood transfusions is based on several scriptural references, most notably Acts 15: 28-29, which reads (New World translation):\n\n\"For the holy spirit and we ourselves have favored adding no further burden to you, except these necessary things, to keep abstaining from things sacrificed to idols and from blood and from things strangled and from fornication. If you carefully keep yourselves from these things, you will prosper ...\"\n\nIII.  RELEVANT DOMESTIC LAW\n\nA. The Civil Code\n\n18.  Article 177 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch) deals with the custody of children in an event such as the dissolution of their parents’ marriage by divorce. It reads:\n\n\"(1) Where the marriage between the parents of a legitimate minor has been dissolved, annulled or declared void, or where the parents are separated other than merely for a temporary period, they may submit to the court an agreement concerning which of them shall in the future have custody of the child. The court shall approve the agreement if it is in the interests of the child’s welfare.\n\n(2) Where no agreement is reached within a reasonable time, or if the agreement reached is not in the interest of the child’s welfare, the court shall decide which parent is to have sole custody of the child in the future; in the case of a separation of the parents which is not merely temporary, such a decision shall be taken only on application by one of them.\"\n\n19.  Both during and after the parents’ marriage, the court may be called upon to substitute its approval or consent for that of the parents (or parent). The relevant provision is Article 176, which reads:\n\n\"Where the conduct of the parents threatens the welfare of a minor, the court shall be required, irrespective of who has applied to it, to make the orders necessary for the protection of the child’s welfare. Such an order may also be made on application by one of the parents when the parents have failed to reach an agreement concerning a matter of importance to the child. In particular the court may withdraw custody of a child, either wholly or in part, including rights of approval and consent provided by law. In individual cases the court is also required to substitute its approval or consent for parental approval or consent required by law, when there is no justified reason for refusal.\"\n\n20.  In taking decisions under Articles 176 and 177, the courts follow the criteria set out in Article 178a, which reads:\n\n\"In assessing the interests of the minor, his or her personality and needs must be duly taken into consideration, particularly his or her talents, abilities, inclinations and developmental opportunities, as well as the material circumstances of the parents.\"\n\nB. Regulation of religious life\n\n21.  Religious freedom is guaranteed by Article 14 of the Basic Law (Staatsgrundgesetz), which reads:\n\n\"(1) Complete freedom of beliefs and conscience is guaranteed to everyone.\n\n(2) Enjoyment of civil and political rights shall be independent of religious confessions; however, a religious confession may not stand in the way of civic duties.\n\n(3) No one shall be compelled to take any church-related action or to participate in any church-related celebration, except in pursuance of a power conferred by law on another person to whose authority he is subject.\"\n\n22.   has a system of recognition of religious communities. It is governed by the Act of 20 May 1874 concerning the Legal Recognition of Religious Communities (Gesetz betreffend die gesetzliche Anerkennung von Religionsgesellschaften), RGBl (Reichsgesetzblatt, Official Gazette of the Austrian Empire) 1874/68. Only five religious communities are so recognised, among them the Roman Catholic Church but not the Jehovah’s Witnesses. Religious groupings without legal recognition have legal personality as \"societies\" (Vereine) under the general law.\n\n23.  The religious education of children is governed by the Federal Act on the Religious Education of Children, which re-enacted a German law dating from 1921 that was incorporated into Austrian law in 1939 (see paragraph 15 above).\n\nArticle 1 reads:\n\n\"The religious education of a child shall be decided upon by an agreement freely entered into by the parents, in so far as the responsibility for the child’s care and upbringing is vested in them. Such an agreement may be revoked at any time and is terminated by the death of either spouse.\"\n\nArticle 2 reads:\n\n\"(1) If such an agreement does not or ceases to exist,the provisions of the Civil Code on the care and upbringing of children shall extend to their religious education.\n\n(2) During the existence of their marriage neither parent may decide without the consent of the other that the child is to be brought up in a faith different from that shared by both parents at the time of their marriage or from that in which he or she has hitherto been brought up, or that a child is to cease to attend religious education classes.\n\n(3) In the absence of such consent, application may be made for the mediation of, or a decision by, the guardianship court. In any such decision the interests of education shall be paramount even in cases not covered by Article 176 of the Civil Code. Before the decision is taken the child’s parents, and if necessary relatives, relatives by marriage and teachers, must be heard if this is possible without significant delays or disproportionate costs. The child itself must be heard if it has reached the age of ten.\"\n\nC. Medical action\n\n24.  The need for parental permission for administering blood transfusions to minors follows from the law governing medical action in general.\n\nThus, the Hospitals Act (Krankenanstaltengesetz), BGBl 1/1957, lays down in Article 8:\n\n\"(1)...\n\n(2) Hospital patients may be medically treated only in accordance with the principles and recognised methods of medical science.\n\n(3) Special curative treatments including surgical operations may be carried out on a patient only with his consent, but if the patient has not yet reached the age of eighteen or if because he lacks mental maturity or health he cannot assess the necessity or usefulness of the treatment, only with the consent of his legal representative. Consent is not required if the treatment is so urgently necessary that the delay involved in obtaining the consent of the patient or his legal representative or in appointing a legal representative would endanger his life or would entail the danger of serious harm to his health. The medical director of the hospital or the doctor responsible for the management of the hospital department concerned shall decide on the necessity and urgency of treatment.\"\n\n25.  It is a criminal offence to administer medical treatment without the requisite consent; this follows from Article 110 of the Criminal Code (Strafgesetzbuch), which reads:\n\n\"(1) Whoever treats another person, even according to the rules of medical science, without having obtained that person’s consent, shall be liable to imprisonment for up to six months or to a fine of up to 360 daily rates.\n\n(2) If the offender has failed to obtain the consent of the patient because he assumed that a delay in the treatment would entail a serious risk for the life or health of the patient, he shall be punished according to paragraph 1 only if the assumed risk did not exist and if by taking due care ... he could have been aware of this.\n\n(3) The offender shall be punished only at the request of the person who underwent unauthorised treatment.\"\n\nPROCEEDINGS BEFORE THE COMMISSION\n\n26.  Mrs Hoffmann applied to the Commission on 20 February 1987. She complained that she had been denied custody of the children on the ground of her religious convictions. She invoked her right to respect for her family life (Article 8 of the Convention) (art. 8), her right to freedom of religion (Article 9) (art. 9) and her right to ensure the education of her children in conformity with her own religious convictions (Article 2 of Protocol No. 1) (P1-2); she further claimed that she had been discriminated against on the ground of religion (Article 14) (art. 14).\n\n27.  The application (no. 12875/87) was declared admissible on 10 July 1990. In its report of 16 January 1992 (Article 31) (art. 31), the Commission expressed the opinion:\n\n(a) by eight votes to six, that there had been a violation of Article 8 read in conjunction with Article 14 (art. 14+8);\n\n(b) by twelve votes to two, that no separate issue arose in regard to Article 9 (art. 9) taken separately or in conjunction with Article 14 (art. 14+9);\n\n(c) unanimously, that there had been no violation of Article 2 of Protocol No. 1 (P1-2).\n\nThe full text of the Commission’s opinion and of the separate opinions contained in the report is reproduced as an annex to this judgment.\n\nAS TO THE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 8 (art. 8), TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 14 (art. 14+8)\n\n28.  The applicant complained that the Austrian Supreme Court had awarded parental rights over the children Martin and Sandra to their father in preference to herself, because she was a member of the religious community of Jehovah’s Witnesses; she claimed a violation of her rights under Article 8 (art. 8) of the Convention, both taken alone and read in conjunction with Article 14 (art. 14+8).\n\nThe Government denied that there had been a violation at all, whereas the Commission agreed that there had been a violation of Article 8 taken in conjunction with Article 14 (art. 14+8).\n\n29.  According to Article 8 para. 1 (art. 8-1) of the Convention, \"Everyone has the right to respect for his private and family life, his home and his correspondence.\"\n\nThe Court notes at the outset that the children had lived with the applicant for two years after she had left with them before the judgment of the Supreme Court of 3 September 1986 compelled the applicant to give them up to their father. The Supreme Court’s decision therefore constitutes an interference with the applicant’s right to respect for her family life and the case thus falls within the ambit of Article 8 (art. 8). The fact relied on by the Government in support of the opposite view, namely that the Supreme Court’s decision was taken in the context of a dispute between private individuals, makes no difference in this respect.\n\nA. Alleged violation of Article 8 taken in conjunction with Article 14 (art. 14+8)\n\n30.  In view of the nature of the allegations made, the Court, like the Commission, considers it appropriate to examine the present case under Article 8 taken in conjunction with Article 14 (art. 14+8), which reads as follows:\n\n\"The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.\"\n\n31.  In the enjoyment of the rights and freedoms guaranteed by the Convention, Article 14 (art. 14) affords protection against different treatment, without an objective and reasonable justification, of persons in similar situations (see, amongst other authorities, the Sunday Times v. the United Kingdom (no. 2) judgment of 26 November 1991, Series A no. 217, p. 32, para. 58).\n\nIt must first be determined whether the applicant can claim to have undergone different treatment.\n\n32.  In awarding parental rights - claimed by both parties - to the mother in preference to the father, the Innsbruck District Court and  had to deal with the question whether the applicant was fit to bear responsibility for the children’s care and upbringing. In so doing they took account of the practical consequences of the religious convictions of the Jehovah’s Witnesses, including their rejection of holidays such as Christmas and Easter which are customarily celebrated by the majority of the Austrian population, their opposition to the administration of blood transfusions, and in general their position as a social minority living by its own distinctive rules. The District and Regional Courts took note of the applicant’s statement to the effect that she was prepared to allow the children to celebrate holidays with their father, who had remained Roman Catholic, and to allow the administration of blood transfusions to the children if and when required by law; they also considered the psychological relationship existing between the children (who were very young at the time) and the applicant and her general suitability as a carer.\n\nIn assessing the interests of the children, the Supreme Court considered the possible effects on their social life of being associated with a particular religious minority and the hazards attaching to the applicant’s total rejection of blood transfusions not only for herself but - in the absence of a court order - for her children as well; that is, possible negative effects of her membership of the religious community of Jehovah’s Witnesses. It weighed them against the possibility that transferring the children to the care of their father might cause them psychological stress, which in its opinion had to be accepted in their own best interests.\n\n33.  This Court does not deny that, depending on the circumstances of the case, the factors relied on by the Austrian Supreme Court in support of its decision may in themselves be capable of tipping the scales in favour of one parent rather than the other. However, the Supreme Court also introduced a new element, namely the Federal Act on the Religious Education of Children (see paragraphs 15 and 23 above). This factor was clearly decisive for the Supreme Court.\n\nThe European Court therefore accepts that there has been a difference in treatment and that that difference was on the ground of religion; this conclusion is supported by the tone and phrasing of the Supreme Court’s considerations regarding the practical consequences of the applicant’s religion.\n\nSuch a difference in treatment is discriminatory in the absence of an \"objective and reasonable justification\", that is, if it is not justified by a \"legitimate aim\" and if there is no \"reasonable relationship of proportionality between the means employed and the aim sought to be realised\" (see, amongst other authorities, the Darby v. Sweden judgment of 23 October 1990, Series A no. 187, p. 12, para. 31).\n\n34.  The aim pursued by the judgment of the Supreme Court was a legitimate one, namely the protection of the health and rights of the children; it must now be examined whether the second requirement was also satisfied.\n\n35.  In the present context, reference may be made to Article 5 of Protocol No. 7 (P7-5), which entered into force for Austria on 1 November 1988; although it was not prayed in aid in the present proceedings, it provides for the fundamental equality of spouses inter alia as regards parental rights and makes it clear that in cases of this nature the interests of the children are paramount.\n\n36.  In so far as the Austrian Supreme Court did not rely solely on the Federal Act on the Religious Education of Children, it weighed the facts differently from the courts below, whose reasoning was moreover supported by psychological expert opinion. Notwithstanding any possible arguments to the contrary, a distinction based essentially on a difference in religion alone is not acceptable.\n\nThe Court therefore cannot find that a reasonable relationship of proportionality existed between the means employed and the aim pursued; there has accordingly been a violation of Article 8 taken in conjunction with Article 14 (art. 14+8).\n\nB. Alleged violation of Article 8 (art. 8) taken alone\n\n37.  In view of the conclusion reached in paragraph 36 above, the Court does not consider it necessary to rule on the allegation of a violation of Article 8 (art. 8) taken alone; the arguments advanced in this respect are in any case the same as those examined in respect of Article 8 taken in conjunction with Article 14 (art. 14+8).\n\nII. ALLEGED VIOLATION OF ARTICLE 9 (art. 9)\n\n38.  The Court considers, as did the Commission, that no separate issue arises under Article 9 (art. 9) either taken alone or read in conjunction with Article 14 (art. 14+9), since the factual circumstances relied on as the basis of this complaint are the same as those which are at the root of the complaint under Article 8 taken in conjunction with Article 14 (art. 14+8), of which a violation has been found.\n\nIII. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 1 (P1-2)\n\n39.  The applicant’s complaint under Article 2 of Protocol No. 1 (P1-2) was not pursued before the Court, which finds no reason to examine it of its own motion.\n\nIV. APPLICATION OF ARTICLE 50 (art. 50)\n\n40.  According to Article 50 (art. 50),\n\n\"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.\"\n\nThe applicant made no claim in respect of non-pecuniary damages but she claimed ATS 75,000 in respect of costs and expenses actually incurred before the Convention organs and not covered by legal aid.\n\nThe Commission expressed no opinion as to this claim. The Government found it acceptable; the Court agrees.\n\nFOR THESE REASONS, THE COURT\n\n1.  Holds by five votes to four that there has been a violation of Article 8 in conjunction with Article 14 (art. 14+8);\n\n2.  Holds unanimously that it is unnecessary to rule on the allegation of a violation of Article 8 (art. 8) taken alone;\n\n3.  Holds unanimously that no separate issue arises under Article 9 (art. 9), either taken alone or in conjunction with Article 14 (art. 14+9);\n\n4.  Holds unanimously that it is not necessary to rule on the allegation of a violation of Article 2 of Protocol No. 1 (P2-1);\n\n5.  Holds by eight votes to one that the respondent State is to pay to the applicant, within three months, for costs and expenses, 75,000 (seventy-five thousand) Austrian Schillings.\n\nDone in English and in French, and delivered at a public hearing in the Human Rights Building, , on 23 June 1993.\n\nIn accordance with Article 51 para. 2 (art. 51-2) of the Convention and Rule 53 para. 2 of the Rules of Court, the following separate opinions are annexed to this judgment:\n\n- dissenting opinion of Mr Matscher;\n\n- partly dissenting opinion of Mr Walsh;\n\n- dissenting opinion of Mr Valticos;\n\n- dissenting opinion of Mr Mifsud Bonnici.\n\nI feel unable to subscribe to the reasoning and the conclusion of the majority as regards the alleged violation of Article 8 taken in conjunction with Article 14 (art. 14+8).\n\n1.  First of all it is necessary to examine whether there really was an interference by a public authority with the applicant’s family life within the meaning of Article 8 (art. 8). When they separated, the parents did not reach agreement on custody of the children, both parties claiming it for themselves in the competent courts. At first instance and on appeal the courts found for the mother, while the Supreme Court decided in favour of the father. The case therefore concerned a private dispute between two individuals - each of whom was equally entitled from the beginning - which the courts, to which the parties turned as they had failed to reach an agreement, had to decide on the basis of the applicable law, since the fact that the mother had - without authorisation - taken the children away with her did not give her any additional rights. Accordingly, the fact that the children were taken back to their father’s home following the final decision of the Supreme Court was not in itself an interference with the mother’s rights within the meaning of Article 8 (art. 8).\n\n2.  Even assuming that there was an interference, the following should be noted.\n\nThe only criterion on which the courts should base their decision in a case such as this is the welfare of the children. The Supreme Court determined the welfare of the children differently from the courts below. It is not for the  to substitute its assessment for that of the competent State authorities, which enjoy a wide margin of appreciation in the matter. But it is nevertheless the Court’s duty to review whether the choice made by these authorities was within the margin of appreciation that the Convention grants them and did not infringe the rights secured in it.\n\nIn this instance it did not. The Supreme Court attached more importance to the adverse effects on the children’s welfare which might result from the mother’s membership of the religious community of the Jehovah’s Witnesses. It did not therefore discriminate against the mother’s religion as such but merely took into consideration certain consequences which belonging to that religion might entail for the well-being of the children, and this would seem to me to be wholly legitimate.\n\nFurthermore, the Supreme Court criticised the courts below for neglecting the fact that, in deciding on the children’s future religious education unilaterally, the mother had infringed the provisions of the 1921 Act.\n\n3.  Even though I do not find in the present case any violation of Article 8 taken together with Article 14 (art. 14+8), I have to deprecate the phrasing of some of the reasons given in the Supreme Court’s judgment. But as the Court has noted many times, inept and unfortunate phrasing in a judicial decision does not on its own constitute a violation of the Convention.\n\n1.  I do not agree that in this case there was a violation of Articles 8 and 14 (art. 14+8) taken together, or alone, by reason of the Supreme Court’s decision which overturned the decision of the lower court by withdrawing from the applicant the custody of her children. The refusal was grounded on the fear that the children’s welfare could be put at risk by reason of the applicant’s intention not to permit a blood transfusion, if medically necessary, to either of her children should the occasion arise unless ordered to do so by a court.\n\n2.  The mother’s attitude was dictated by the tenets of the religious society or sect she had joined subsequent to the birth of her children. She had become a member of Jehovah’s Witnesses after quitting the Catholic Church and she had accepted the view that to permit blood transfusion for her children, who were in her custody, would be morally wrong. Her children had remained members of the Catholic Church, as had her husband. Her children had no known objection to a necessary blood transfusion. In effect the applicant was imposing her religious beliefs upon the life and health of her children and in disregard of the rights of the father and of the provisions of the Religious Education of Children Act 1921.\n\n3.  The father’s notice of appeal to the Supreme Court specifically mentioned the withholding of possible blood transfusion as the reason for seeking a reversal of the order of the lower court. That was an objective ground which a court might or might not, in any given case, regard as a sufficient ground for the transfer of custody. That is not a matter upon which this Court could usurp the discretion of the national court. The matter before the Supreme Court was a question of the hazard of the health of the children. In gauging the seriousness of the hazard the Supreme Court recognised that the cause of the hazard was, admittedly, the applicant’s new religious views. The reason or motives for the creation of the hazard are but secondary to the objective effect of the existence of the hazard. If the applicant’s attitude was not traceable to a religious belief the question before the national court would remain essentially the same. The fact that the hazard was brought into existence by a religious belief not shared by those upon whom it was sought to impose it does not create a situation where the removal of the hazard must necessarily, if at all, be regarded as a discrimination on the grounds of religious belief. The national court’s duty was to evaluate or weigh the effects as distinct from the cause.\n\n4.  The appeal to the Supreme Court was heard before the divorce of the parents became final. After that a different legal situation arose which could give rise to a further recourse to the national courts in consequence of the effect of the divorce on the provisions of the Religious Education of Children Act 1921. That is a situation which is not before this Court.\n\n5.  I agree with the decision of the Court in relation to Article 8 (art. 8) taken alone, Article 9 (art. 9) and Article 2 of Protocol No. 1 (P1-2).\n\nI am unable to share the opinion of the majority of the Chamber that there was in the present case a violation of Articles 8 and 14 (art. 8, art. 14) of the Convention, in that the Supreme Court’s decision refusing to grant Mrs Hoffmann custody of her children constituted discrimination on the grounds of religion.\n\nIt is in fact clear, in my opinion, that the said decision by the Supreme Court was not based on the sole fact that Mrs Hoffmann was a Jehovah’s Witness, but essentially on the consequences that this would have had for the children’s future. The question would surely not have arisen in the case of a different religion not having the special characteristics of Jehovah’s Witnesses. Thus the refusal to have blood transfusions could, whatever has been said, have endangered the children’s health and even their lives. The peculiarities of this religion’s tenets of faith would have led to the children being set apart from normal social life and would have contributed to marginalising them and restricting their future and their development. The children had admittedly not yet been accepted into the faith of Jehovah’s Witnesses, but the mother took them with her to the Sunday meetings. Since she made weekly visits for spreading her faith (admittedly without being accompanied by her children), it was to be expected that her children would also become objects of her proselytising zeal, it being natural for her to wish to ensure what she regarded as their salvation.\n\nIt should thus have been held that the Supreme Court’s decision resulted not from \"a distinction based essentially on a difference in religion alone\", as the majority of the Court declared, but from the legitimate concern to protect the future of the Hoffmann children.\n\nI am unable to agree with the five members of the Court who make up the majority. My reasons are the following:\n\n1.  Article 8 (art. 8) of the Convention prohibits interference by a public authority with the exercise of the right of one’s private and family life, home and correspondence.\n\n2.  In my opinion, a fundamental distinction must be made between interference and intervention. Interference implies that action whereby one interposes or meddles in something, without having the right to do so. Intervention, on the other hand, is that action whereby one steps in-between, to prevent or hinder a harm which otherwise will occur.\n\n3.  Usually, whenever a marriage breaks down, one or both of the parties requests the court to intervene; as did the applicant and her husband, in the instant case. The first necessary intervention therefore came from the Innsbruck District Court. This first decision of the court was appealed from by the husband, to the , and a second (extraordinary) appeal was eventually made to the Supreme Court of Austria.\n\n4.  Each one of these courts had to reach a decision with regard to the care and custody of the children of the marriage. Each one of them was by law obliged to intervene and I cannot see how one can consider these decisions to be interferences by a public authority in the private and family life of the applicant. Rather, these were all necessary interventions, the like of which occur in their hundreds in the daily court life of all the States of the Council of Europe.\n\n5.  The Supreme Court’s decision reversed the previous two judgments in that it held that those decisions did not conform with the provisions of the Federal Law of 15 July 1921, which regulated the problem of the religious education of children.\n\n6.  This law provides that the question of the religious education of children is to be regulated as follows:\n\n(a) on marriage the question shall be settled by the free agreement of the partners;\n\n(b) the original agreement may be changed by mutual agreement of the parents at any time;\n\n(c) the father or the mother cannot unilaterally change the agreement;\n\n(d) when one of them dies, the agreement lapses.\n\n7.  The Supreme Court of  decided that the religious education of the Hoffmann children had to be regulated according to the original agreement freely entered into between the parents. The breakup of the marriage did not authorise either one of the parents, or the court, to change the original agreement.\n\n8.  The appeal to the Supreme Court was lodged on points of law, mainly on the omission of the lower courts to take account of the 1921 law. This could not in fact be disputed, and one cannot see how the Supreme Court could, in its turn, ignore that law as well. It follows that its decision had to be based on both the elements already in the file and the law of 1921. I cannot see how because of this addition the decision violates the Convention. The lawyer of the applicant, in the oral pleadings, submitted that \"the decision of the Supreme Court contradicts Austrian law\". I do not believe that I am entitled to hear and decide appeals from the Supreme Court of Austria on the provisions of Austrian law and as to whether Austrian court decisions contradict Austrian law.\n\n9.  In view of all this, I consider all the submissions on the merits or demerits of the applicant’s religion as being irrelevant to the issue. The only relevant issue is whether the applicant is entitled or not to vary the original agreement on religious instruction which she had reached with her husband, irrespective of the religion to which that agreement referred. And this issue as regulated by Austrian law does not violate the Convention.\n\n10.  For these reasons I cannot find that either the decision of the Supreme Court of Austria or the Austrian Federal Law on Religious Instruction are in violation of the Convention. Since I find the application completely unfounded, I am not prepared to grant anything under Article 50 (art. 50).","title":""}
{"_id":"passage_728","text":"INTRODUCTION\n\n1.  The case concerns the alleged ill-treatment of the applicants at the hands of State officials between 2008 and 2011, and the alleged ineffective investigation in that regard, as well as other complaints under the Court’s well-established case-law.\n\nTHE FACTS\n\n2.  The applicants are an Uzbekistani and Russian nationals who live in various regions in Russia. The applicants’ details and information about their representatives are set out in the appended table.\n\n3.  The Government were represented by Mr M. Galperin, the former Representative of the Russian Federation to the European Court of Human Rights, and lately by his successor in that office, Mr. M. Vinogradov.\n\n4.  The relevant facts in respect of each application, as submitted by the parties, may be summarised as follows.\n\nKOVAL v. RUSSIA, APPLICATION No. 29627/10\n\nThe events of 14 and 15 May 2009\n\nThe events of 14 and 15 May 2009\n\n5.  The applicant was arrested and convicted in the same criminal proceedings with Mr Yanchenko (see below, application no. 31414/10). On 14 May 2009 at about 6.10 p.m. three police officers arrested the applicant at the flat of his partner, G., on suspicion of robbery. According to the applicant, the police officers dragged him off the bed and beat him. Later in the evening, the applicant was taken to police station no. 3 in Engels, Saratov Region (3 ОМ УВД по ЭМР), where, according to the applicant’s version of events, the beatings continued until 10 p.m. It also follows from the applicant’s account of events that the police officers applied electric shocks to his legs, and that he was barefoot and dressed only in his underwear throughout the entire period after his arrest.\n\n5.  The applicant was arrested and convicted in the same criminal proceedings with Mr Yanchenko (see below, application no. 31414/10). On 14 May 2009 at about 6.10 p.m. three police officers arrested the applicant at the flat of his partner, G., on suspicion of robbery. According to the applicant, the police officers dragged him off the bed and beat him. Later in the evening, the applicant was taken to police station no. 3 in Engels, Saratov Region (3 ОМ УВД по ЭМР), where, according to the applicant’s version of events, the beatings continued until 10 p.m. It also follows from the applicant’s account of events that the police officers applied electric shocks to his legs, and that he was barefoot and dressed only in his underwear throughout the entire period after his arrest.\n\n6.  On the same date, at 10 p.m., the applicant was taken to the Engels Town Psychiatric Hospital (ГУЗ “Энгельсская психиатрическая больница”) for alcohol testing. According to alcohol testing record no. 1986 of 14 May 2009, the applicant was barefoot and dressed in dirty clothes and had the following injuries: multiple abrasions on the lower limbs and a periorbital haematoma on the left side. According to the applicant, he was provided with some clothes just before being taken to the hospital.\n\n6.  On the same date, at 10 p.m., the applicant was taken to the Engels Town Psychiatric Hospital (ГУЗ “Энгельсская психиатрическая больница”) for alcohol testing. According to alcohol testing record no. 1986 of 14 May 2009, the applicant was barefoot and dressed in dirty clothes and had the following injuries: multiple abrasions on the lower limbs and a periorbital haematoma on the left side. According to the applicant, he was provided with some clothes just before being taken to the hospital.\n\n7.  The applicant was taken back to the police station, charged with the administrative offence of being drunk in a public place and, at around midnight, placed into a cell for administrative detainees where he spent the night. It appears from the material in the case file that on 15 May 2009 the applicant was convicted of that administrative offence.\n\n7.  The applicant was taken back to the police station, charged with the administrative offence of being drunk in a public place and, at around midnight, placed into a cell for administrative detainees where he spent the night. It appears from the material in the case file that on 15 May 2009 the applicant was convicted of that administrative offence.\n\n8.  According to the applicant, on 15 May 2009 at 8 a.m. the police officers continued to beat him and apply electric shocks to him. At 9.15 a.m. the applicant signed his confession statement (явка с повинной).\n\n8.  According to the applicant, on 15 May 2009 at 8 a.m. the police officers continued to beat him and apply electric shocks to him. At 9.15 a.m. the applicant signed his confession statement (явка с повинной).\n\n9.  At 11.20 a.m. an investigating officer, V., drew up the record of the applicant’s arrest. At 11.35 a.m. she questioned the applicant in the presence of a lawyer. During the interview the applicant made similar statements as in his confession.\n\n9.  At 11.20 a.m. an investigating officer, V., drew up the record of the applicant’s arrest. At 11.35 a.m. she questioned the applicant in the presence of a lawyer. During the interview the applicant made similar statements as in his confession.\n\n10.  At 2.40 p.m. the applicant was taken to the Engels Town Emergency Care Hospital (МУЗ “Энгельсская городская больница скорой медицинской помощи”). According to the hospital’s response to the inquiry of the Engels District Court of the Saratov Region of 26 August 2009, the applicant had the following injuries at the material time: softtissue bruises on the face and contusions on the head.\n\n10.  At 2.40 p.m. the applicant was taken to the Engels Town Emergency Care Hospital (МУЗ “Энгельсская городская больница скорой медицинской помощи”). According to the hospital’s response to the inquiry of the Engels District Court of the Saratov Region of 26 August 2009, the applicant had the following injuries at the material time: softtissue bruises on the face and contusions on the head.\n\n11.  At 3.20 p.m. the applicant was transferred to the temporary detention facility (ИВС). Upon his arrival he was examined by a paramedic (фельдшер) who indicated the following injuries in the logbook: soft-tissue bruises on the face, contusions on the head and a haematoma on the left wrist joint.\n\n11.  At 3.20 p.m. the applicant was transferred to the temporary detention facility (ИВС). Upon his arrival he was examined by a paramedic (фельдшер) who indicated the following injuries in the logbook: soft-tissue bruises on the face, contusions on the head and a haematoma on the left wrist joint.\n\n12.  On 18 May 2009 at 5.10 p.m., the applicant was transferred to IZ64/1 Saratov Region (ФБУ ИЗ-64/1 ГУФСИН России по Саратовской области). Upon his arrival the following injuries were indicated in the logbook: soft-tissue bruises and contusions on the face and abrasions on the upper and lower limbs.\n\nOfficial inquiry into the alleged ill-treatment\n\n13.  On an unspecified date the applicant lodged his first complaint about his ill-treatment by the police officers. On 6 August 2009 the investigating authorities launched an inquiry into his allegations.\n\n13.  On an unspecified date the applicant lodged his first complaint about his ill-treatment by the police officers. On 6 August 2009 the investigating authorities launched an inquiry into his allegations.\n\n14.  According to forensic medical examination report no. 1789 of 12 August 2009, at the material time the applicant had a haematoma on his forehead and a contusion near his left eye. The medical expert concluded that the injuries had been inflicted by hard blunt objects.\n\n15.  On 16 August 2009 the investigating officer in charge of the inquiry refused to institute criminal proceedings. On 8 October 2009 that refusal was quashed.\n\n16.  On 31 October 2009 the investigating officer issued another refusal to institute criminal proceedings. The applicant attempted to challenge that decision under Article 125 of the Code of Criminal Procedure of the Russian Federation (“the CCrP”). On 18 November 2009 the Engels District Court of the Saratov Region refused to accept his complaint for examination as the applicant had already been convicted. On 3 February 2010 the Saratov Regional Court upheld the first-instance decision in cassation.\n\n17.  On 25 November 2009 and 26 February and 4 May 2010, the investigating officer issued further refusals to institute criminal proceedings. On 24 May 2010 the refusal of 4 May 2010 was quashed.\n\n17.  On 25 November 2009 and 26 February and 4 May 2010, the investigating officer issued further refusals to institute criminal proceedings. On 24 May 2010 the refusal of 4 May 2010 was quashed.\n\n18.  On 3 June 2010 the investigating officer issued another refusal to open a criminal case into the applicant’s alleged ill-treatment. In his decision the investigating officer relied, inter alia, on the testimony of one of the police officers who had carried out the applicant’s arrest. According to him, the applicant had been very drunk and had not put up any resistance during the arrest. The police officer denied having used any physical force against the applicant but acknowledged having used handcuffs in view of the applicant’s inability to walk in a straight line or talk. The refusal also cited the testimonies of G., who denied having seen the police officers use any physical force against the applicant, and V., who had noticed injuries on the applicant during his first interview and had asked him about their origin. According to V., the applicant had explained that he had hurt himself by accident. The investigating officer concluded that since the applicant had been charged with a serious criminal offence, the use of physical force by the police officers during his arrest had been lawful and justified. He also concluded that no physical force had been used against the applicant after his arrest, and that his allegations of ill-treatment were merely an attempt to avoid criminal responsibility.\n\n18.  On 3 June 2010 the investigating officer issued another refusal to open a criminal case into the applicant’s alleged ill-treatment. In his decision the investigating officer relied, inter alia, on the testimony of one of the police officers who had carried out the applicant’s arrest. According to him, the applicant had been very drunk and had not put up any resistance during the arrest. The police officer denied having used any physical force against the applicant but acknowledged having used handcuffs in view of the applicant’s inability to walk in a straight line or talk. The refusal also cited the testimonies of G., who denied having seen the police officers use any physical force against the applicant, and V., who had noticed injuries on the applicant during his first interview and had asked him about their origin. According to V., the applicant had explained that he had hurt himself by accident. The investigating officer concluded that since the applicant had been charged with a serious criminal offence, the use of physical force by the police officers during his arrest had been lawful and justified. He also concluded that no physical force had been used against the applicant after his arrest, and that his allegations of ill-treatment were merely an attempt to avoid criminal responsibility.\n\n19.  The applicant challenged the refusal of 3 June 2010 under Article 125 of the CCrP. On 24 September 2010 the Engels District Court of the Saratov Region dismissed his complaint. On 8 December 2010 the Saratov Regional Court quashed the first-instance decision in cassation and discontinued the proceedings. The regional court held that the applicant’s allegations of ill-treatment had been examined and dismissed by the trial court, and that it was open to him to challenge his conviction by means of a supervisory review.\n\n20.  On 15 May 2013 the investigating officer issued the most recent refusal to institute criminal proceedings. The contents of that refusal were for the most part identical to the one of 3 June 2010.\n\nThe applicant’s trial\n\n21.  On 11 November 2009 the Engels District Court of the Saratov Region convicted the applicant.\n\n22.  According to the written record of the trial, G. testified before the district court that she had heard the police officers beating the applicant during his arrest on 14 May 2009 and had later seen bloodstains on the bed sheets.\n\n22.  According to the written record of the trial, G. testified before the district court that she had heard the police officers beating the applicant during his arrest on 14 May 2009 and had later seen bloodstains on the bed sheets.\n\n23.  The district court dismissed the applicant’s allegations of illtreatment, relying on the refusal of 31 October 2009, and held that both his confession statement and interview record of 15 May 2009 were admissible as they were consistent with each other and other material in the case file and the applicant had been questioned in the presence of a lawyer. At the same time, the district court held that the administrative offence record of 14 May and the decision of 15 May 2009 convicting the applicant of that administrative offence (see paragraph 7 above) were inadmissible, as they contained information inconsistent with the circumstances of the applicant’s arrest on 14 May 2009 as established during the trial.\n\n23.  The district court dismissed the applicant’s allegations of illtreatment, relying on the refusal of 31 October 2009, and held that both his confession statement and interview record of 15 May 2009 were admissible as they were consistent with each other and other material in the case file and the applicant had been questioned in the presence of a lawyer. At the same time, the district court held that the administrative offence record of 14 May and the decision of 15 May 2009 convicting the applicant of that administrative offence (see paragraph 7 above) were inadmissible, as they contained information inconsistent with the circumstances of the applicant’s arrest on 14 May 2009 as established during the trial.\n\n24.  On the same date the district court issued an interlocutory decision acknowledging that the investigating authorities had failed to draw up the record of the applicant’s arrest within three hours from his de facto apprehension on 14 May 2009, in violation of Article 92 §§ 1 and 3 of the CCrP, and to inform the prosecutor thereof. The district court concluded that the applicant’s constitutional right to liberty had thus been violated.\n\n24.  On the same date the district court issued an interlocutory decision acknowledging that the investigating authorities had failed to draw up the record of the applicant’s arrest within three hours from his de facto apprehension on 14 May 2009, in violation of Article 92 §§ 1 and 3 of the CCrP, and to inform the prosecutor thereof. The district court concluded that the applicant’s constitutional right to liberty had thus been violated.\n\n25.  On 16 February 2010 the Saratov Regional Court upheld the applicant’s conviction in cassation. On 16 July 2012 the Presidium of the Saratov Regional Court upheld the applicant’s conviction in the supervisory review proceedings. The regional court relied in both decisions on the findings of the trial court.\n\nCivil proceedings\n\n26.  On an unspecified date the applicant lodged a civil claim against the Ministry of Finance of the Russian Federation seeking, inter alia, compensation for non-pecuniary damage for his unrecorded detention on 14 and 15 May 2009 and his unlawful administrative prosecution. In his claim the applicant relied on the interlocutory decision of the Engels District Court of the Saratov Region of 11 November 2009.\n\n27.  On 24 February 2011 the Oktyabrskiy District Court of Saratov dismissed the applicant’s claim. The court noted that the applicant had been convicted of several crimes and sentenced to a prison term, that the trial court had deducted the period of his unrecorded detention from his sentence, and that his situation had, thus, been improved. The district court also noted that the applicant had failed to prove the unlawfulness of the investigating authorities’ actions and concluded that he had not submitted any evidence of a violation of his personal non-property rights.\n\n28.  On 24 May 2011 the Saratov Regional Court upheld the firstinstance decision in cassation. The regional court relied in its decision on the findings of the district court.\n\nYANCHENKO v. RUSSIA, APPLICATION No. 31414/10\n\nThe events of 14 May 2009\n\n29.  On 14 May 2009 at about 1 or 2 p.m. the applicant was arrested by three police officers in the street in Engels, Saratov Region, on suspicion of robbery. According to the applicant, after his apprehension the police officers knocked him to the ground, handcuffed him, and started beating and kicking him on the head and body.\n\n30.  In the evening, the applicant was taken to police station no. 3 in Engels where, according to his version of events, the police officers continued to kick, punch and beat him with a plastic bottle of water, forcing him to confess.\n\n30.  In the evening, the applicant was taken to police station no. 3 in Engels where, according to his version of events, the police officers continued to kick, punch and beat him with a plastic bottle of water, forcing him to confess.\n\n31.  On the same date at 7.10 p.m., the applicant signed a confession statement. At 8.10 p.m. an investigating officer, V., started the applicant’s interview as a suspect which lasted until 10.20 p.m. During the interview the applicant made similar statements as in his confession.\n\n31.  On the same date at 7.10 p.m., the applicant signed a confession statement. At 8.10 p.m. an investigating officer, V., started the applicant’s interview as a suspect which lasted until 10.20 p.m. During the interview the applicant made similar statements as in his confession.\n\n32.  On 15 May 2009 at 00.21 a.m., the applicant was taken to the Engels Town Emergency Care Hospital and diagnosed with an abrasion of the soft tissues of the face. At 11.30 a.m. the applicant was once again examined by the doctors at the hospital. According to the hospital’s response to an inquiry by the Engels District Court of the Saratov Region of 26 August 2009, the applicant had the following injuries at the material time: closed craniocerebral injury, brain concussion and an abrasion on the face.\n\n32.  On 15 May 2009 at 00.21 a.m., the applicant was taken to the Engels Town Emergency Care Hospital and diagnosed with an abrasion of the soft tissues of the face. At 11.30 a.m. the applicant was once again examined by the doctors at the hospital. According to the hospital’s response to an inquiry by the Engels District Court of the Saratov Region of 26 August 2009, the applicant had the following injuries at the material time: closed craniocerebral injury, brain concussion and an abrasion on the face.\n\n33.  On the same date the applicant was placed in the temporary detention facility. Upon his arrival there the applicant was examined by a paramedic who indicated the following injuries in the logbook: an abrasion on the face and a bruise on the back.\n\n33.  On the same date the applicant was placed in the temporary detention facility. Upon his arrival there the applicant was examined by a paramedic who indicated the following injuries in the logbook: an abrasion on the face and a bruise on the back.\n\n34.  On 19 May 2009 at 12.30 p.m. the applicant was once again taken to the Engels Town Emergency Care Hospital and diagnosed with a closed craniocerebral injury, brain concussion and an abrasion on the face.\n\n34.  On 19 May 2009 at 12.30 p.m. the applicant was once again taken to the Engels Town Emergency Care Hospital and diagnosed with a closed craniocerebral injury, brain concussion and an abrasion on the face.\n\n35.  On 19 May 2009 the applicant was transferred to IZ-64/1 Saratov Region. Upon his arrival, the following injuries were registered in the logbook: a haematoma in the left lumbar region and an abrasion on the nasal bridge.\n\nOfficial inquiry into the alleged ill-treatment\n\n36.  According to the applicant, in May 2009 he lodged his first complaint about his ill-treatment with the investigating authorities. On 6 August 2009 the investigating authorities launched an inquiry into his allegations.\n\n36.  According to the applicant, in May 2009 he lodged his first complaint about his ill-treatment with the investigating authorities. On 6 August 2009 the investigating authorities launched an inquiry into his allegations.\n\n37.  According to forensic medical examination report no. 1788 of 12 August 2009, at the material time the applicant had the following injuries: abrasions on the nose and forehead. The medical expert concluded that those injuries had been inflicted by hard blunt objects, however, it was impossible to establish when they had been inflicted as the medical documents did not contain a detailed description of them.\n\n38.  On 16 August 2009 an investigating officer in charge of the inquiry refused to institute criminal proceedings into the applicant’s complaint. On 8 October 2009 that refusal was quashed.\n\n39.  On 31 October and 25 November 2009 and 26 February and 4 May 2010, the investigating officer issued further refusals to institute criminal proceedings. Those refusals were quashed on 22 November 2009 and 17 February, 22 April and 24 May 2010 respectively.\n\n40.  The applicant attempted to challenge the refusal of 31 October 2009 under Article 125 of the CCrP. On 18 November 2009 the Engels District Court of the Saratov Region refused to accept his complaint for examination as the applicant had already been convicted. On 3 February 2010 the Saratov Regional Court upheld the first-instance decision in cassation.\n\n40.  The applicant attempted to challenge the refusal of 31 October 2009 under Article 125 of the CCrP. On 18 November 2009 the Engels District Court of the Saratov Region refused to accept his complaint for examination as the applicant had already been convicted. On 3 February 2010 the Saratov Regional Court upheld the first-instance decision in cassation.\n\n41.  On 3 June 2010 the investigating officer issued another refusal to institute criminal proceedings. In his decision the investigating officer relied, inter alia, on the testimony of V., who had noticed injuries on the applicant during his first interview and asked him about their origin. According to V., the applicant had explained that he had hurt himself by accident. The investigating officer concluded that since the applicant had been charged with a serious criminal offence, the use of physical force by the police officers during his arrest had been lawful and justified. He also concluded that no physical force had been used against the applicant after his arrest, and that his allegations of ill-treatment were merely an attempt to avoid criminal responsibility.\n\n42.  On 15 May 2013 the investigating officer issued another refusal to institute criminal proceedings. The contents of that refusal were for the most part identical to the one of 3 June 2010.\n\nThe applicant’s trial\n\nThe applicant’s trial\n\n43.  On 11 November 2009 the Engels District Court of the Saratov Region convicted the applicant and his co-defendant, Mr Koval (see above, application no. 29627/10). The district court examined the police officers who had carried out the applicant’s arrest. The police officers stated that the applicant had not put up any resistance during the arrest but had attempted to flee, and they had had to use physical force and handcuffs to prevent him from escaping. It also appears from the written record of the trial that the applicant’s mother testified that she had seen the applicant on 14 May 2009 at noon and that he had had no visible injuries at that time. She also stated that she had seen the applicant on 15 May 2009 at about 1 a.m. and that he had already had abrasions on his face. As in the case of Mr Koval (see paragraph 23 above), the district court dismissed the applicant’s allegations of ill-treatment, relying on the refusal of 31 October 2009, and held that both his confession statement and interview record of 14 May 2009 were admissible as they were consistent with each other and with other material in the case file, and the applicant had been questioned in the presence of a lawyer.\n\n43.  On 11 November 2009 the Engels District Court of the Saratov Region convicted the applicant and his co-defendant, Mr Koval (see above, application no. 29627/10). The district court examined the police officers who had carried out the applicant’s arrest. The police officers stated that the applicant had not put up any resistance during the arrest but had attempted to flee, and they had had to use physical force and handcuffs to prevent him from escaping. It also appears from the written record of the trial that the applicant’s mother testified that she had seen the applicant on 14 May 2009 at noon and that he had had no visible injuries at that time. She also stated that she had seen the applicant on 15 May 2009 at about 1 a.m. and that he had already had abrasions on his face. As in the case of Mr Koval (see paragraph 23 above), the district court dismissed the applicant’s allegations of ill-treatment, relying on the refusal of 31 October 2009, and held that both his confession statement and interview record of 14 May 2009 were admissible as they were consistent with each other and with other material in the case file, and the applicant had been questioned in the presence of a lawyer.\n\n44.  On 16 February 2010 the Saratov Regional Court upheld the applicant’s conviction in cassation. The regional court relied in its decision on the findings of the trial court.\n\nPISKUNOV v. RUSSIA, APPLICATIONS Nos. 59280/10 AND 3 OTHERS\n\nThe events of 26 June 2009\n\n45.  On 26 June 2009 at 1 a.m., the applicant was arrested in the street in Bratsk, Irkutsk Region, by police officers on suspicion of banditry, multiple counts of armed robbery and multiple murders. At 3 a.m. the applicant was taken to the temporary detention facility at the police department of the Central Circuit of Bratsk (ИВС ОВД по ЦО г. Братска). According to the applicant, upon his arrival he was examined by a member of the medical staff who recorded in the logbook that he had no injuries.\n\n45.  On 26 June 2009 at 1 a.m., the applicant was arrested in the street in Bratsk, Irkutsk Region, by police officers on suspicion of banditry, multiple counts of armed robbery and multiple murders. At 3 a.m. the applicant was taken to the temporary detention facility at the police department of the Central Circuit of Bratsk (ИВС ОВД по ЦО г. Братска). According to the applicant, upon his arrival he was examined by a member of the medical staff who recorded in the logbook that he had no injuries.\n\n46.  On the same date after 10.20 a.m., the applicant was escorted to the Bratskiy district police department (ОВД по Братскому Району) for questioning. According to the applicant, before his interview the investigating officer, M., punched him five or six times on the face, head and body, as well as hitting him once with a rubber truncheon on the neck, inflicting bruises and abrasions on the applicant’s face and neck, including a bruise under his left eye. As it follows from the applicant’s version of events, he eventually agreed to sign the written record of his interview as a suspect for fear of being ill-treated further.\n\n47.  The applicant’s allegations of ill-treatment by M. were confirmed by his co-defendant B. in his written statement to the Court of 27 July 2010.\n\n48.  On 26 June 2009 at 10 p.m., the applicant was escorted back to the temporary detention facility.\n\n48.  On 26 June 2009 at 10 p.m., the applicant was escorted back to the temporary detention facility.\n\n49.  On 29 June 2009 the applicant was examined by medical experts of the Bratsk Forensic Medical Examination Division (Братское Отделение СМЭ).\n\n50.  On 3 February 2009 the applicant was transferred to IZ-38/2 Irkutsk Region (ФБУ ИЗ-38/2 ГУФСИН России по Иркутской области).\n\nOfficial inquiry into the alleged ill-treatment\n\nOfficial inquiry into the alleged ill-treatment\n\n51.  On 9 December 2009 the applicant lodged a complaint about his illtreatment by M. with the Irkutsk Regional Court and asked the trial judge to request his medical documents from the temporary detention facility and the Bratsk Forensic Medical Examination Division. It appears from the material in the case file that his complaint was sent by the remand prison, but never reached the regional court.\n\n52.  On 25 January 2010 during the trial hearing in his criminal case, the applicant complained about his ill-treatment by M. On the same date the Irkutsk Regional Court ordered an inquiry into the applicant’s allegations of ill-treatment. On 2 February 2010 the investigating authorities, acting on the regional court’s order, launched an inquiry.\n\n52.  On 25 January 2010 during the trial hearing in his criminal case, the applicant complained about his ill-treatment by M. On the same date the Irkutsk Regional Court ordered an inquiry into the applicant’s allegations of ill-treatment. On 2 February 2010 the investigating authorities, acting on the regional court’s order, launched an inquiry.\n\n53.  On 8 February 2010 the investigating officer in charge of the inquiry refused to institute criminal proceedings. The investigating officer mainly relied in his refusal on the testimony of M., who denied having used any physical force against the applicant, and the statements of the police officers who had carried out the applicant’s arrest. The police officers stated that the applicant and B. had put up armed resistance and attempted to escape and, therefore, they had had to use physical force and handcuffs and fire shots in the air during their arrest. They also denied having used any further physical force against the applicant and B. after their apprehension. The refusal did not refer to the medical examination act of 29 June 2009 or any other medical documents.\n\n53.  On 8 February 2010 the investigating officer in charge of the inquiry refused to institute criminal proceedings. The investigating officer mainly relied in his refusal on the testimony of M., who denied having used any physical force against the applicant, and the statements of the police officers who had carried out the applicant’s arrest. The police officers stated that the applicant and B. had put up armed resistance and attempted to escape and, therefore, they had had to use physical force and handcuffs and fire shots in the air during their arrest. They also denied having used any further physical force against the applicant and B. after their apprehension. The refusal did not refer to the medical examination act of 29 June 2009 or any other medical documents.\n\n54.  The applicant challenged the refusal of 8 February 2010 under Article 125 of the CCrP. On 15 September 2010 the Bratsk Town Court of the Irkutsk Region refused to accept his complaint for examination as the applicant had already been convicted. On 10 November 2010 the Irkutsk Regional Court upheld that decision in cassation.\n\nThe applicant’s trial\n\nThe applicant’s trial\n\n55.  On 17 March 2010 the Irkutsk Regional Court convicted the applicant of banditry, armed robbery, and multiple murders. The regional court excluded any possibility that the applicant had been forced to incriminate himself during his interview as a suspect on 26 June 2009. It relied on the refusal to institute criminal proceedings of 8 February 2010 and the testimony of the investigating officer M. and the police officers who had denied using any duress in respect of the applicant. It also follows from the police officers’ testimony that the applicant had been apprehended in his car and had dropped his gun straight away after they had shot in the air, and that no physical force had been used against him during the arrest. The regional court also noted that the applicant had been questioned on multiple occasions in the presence of a lawyer and concluded that the latter’s presence had objectively eliminated any possibility of duress.\n\n55.  On 17 March 2010 the Irkutsk Regional Court convicted the applicant of banditry, armed robbery, and multiple murders. The regional court excluded any possibility that the applicant had been forced to incriminate himself during his interview as a suspect on 26 June 2009. It relied on the refusal to institute criminal proceedings of 8 February 2010 and the testimony of the investigating officer M. and the police officers who had denied using any duress in respect of the applicant. It also follows from the police officers’ testimony that the applicant had been apprehended in his car and had dropped his gun straight away after they had shot in the air, and that no physical force had been used against him during the arrest. The regional court also noted that the applicant had been questioned on multiple occasions in the presence of a lawyer and concluded that the latter’s presence had objectively eliminated any possibility of duress.\n\n56.  On 22 July 2010 the Supreme Court of the Russian Federation upheld the applicant’s conviction in cassation. In its decision the Supreme Court also relied on the refusal of 8 February 2010 and the findings of the trial court.\n\nThe applicant’s attempts to obtain a copy of the medical examination act of 29 June 2009\n\nThe applicant’s attempts to obtain a copy of the medical examination act of 29 June 2009\n\n57.  On 18 February 2010 during the trial hearing in his criminal case, the applicant requested the Irkutsk Regional Court to make an inquiry with the Bratsk Forensic Medical Examination Office about his medical examination on 29 June 2010. On the same date the regional court dismissed the request as the inquiry into his allegations of ill-treatment had been completed.\n\n58.  On 14 May 2010 the applicant requested a copy of the medical examination act of 29 June 2009 from the Bratsk Forensic Medical Examination Office. On 4 June 2010 the head of the Bratsk Forensic Medical Examination Office replied to the applicant’s request with an extract from Order no. 694 of 21 July 1978 of the Ministry of Health of the USSR, which provided in section 3.8 that two copies of medical examination acts were to be drawn up, one of which was to be sent to the law-enforcement or judicial authorities, and the other to be stored at the relevant forensic medical examination bureau.\n\n59.  On 25 June 2010 the applicant complained about the reply of 4 June 2010 to the Bratsk Town Court of the Irkutsk Region. On 1 July 2010 the town court refused to examine the applicant’s complaint under Article 125 of the CCrP. On 14 September 2010 the Irkutsk Regional Court upheld that decision in cassation.\n\n60.  In 2013 on an unspecified date, the applicant lodged a civil claim with the Bratsk Town Court of the Irkutsk Region about the refusal to provide him with a copy of the medical examination act of 29 June 2009. On 17 July 2013 the town court dismissed his claim as the applicant had failed to comply with the three-month time-limit for lodging such a claim.\n\n60.  In 2013 on an unspecified date, the applicant lodged a civil claim with the Bratsk Town Court of the Irkutsk Region about the refusal to provide him with a copy of the medical examination act of 29 June 2009. On 17 July 2013 the town court dismissed his claim as the applicant had failed to comply with the three-month time-limit for lodging such a claim.\n\n61.  On 1 February 2016 the applicant lodged another request for a copy of the medical examination act of 29 June 2009 with the Irkutsk Regional Forensic Medical Examination Bureau. On 2 March 2016 the latter replied that a copy of the medical examination act could be provided only upon a request made by the relevant judicial or investigating authority. On an unspecified date the applicant complained about the reply of 2 March 2016 to the Ministry of Health of the Irkutsk Region. On 24 August 2016 the Deputy Minister of Health of the Irkutsk Region replied that in accordance with the domestic law it was not possible to issue him with a copy of the medical examination act.\n\nOther relevant information\n\nOther relevant information\n\n62.  From 16 March to 24 May 2017 the applicant was detained in IZ-2 Irkutsk Region (ФКУ СИЗО-2 ГУФСИН России по Иркутской области). Throughout the entire period of his detention, the prison guards systematically put handcuffs on the applicant whenever he was outside his cell.\n\n62.  From 16 March to 24 May 2017 the applicant was detained in IZ-2 Irkutsk Region (ФКУ СИЗО-2 ГУФСИН России по Иркутской области). Throughout the entire period of his detention, the prison guards systematically put handcuffs on the applicant whenever he was outside his cell.\n\n63.  On 27 March 2017 the head of IZ-2 Irkutsk Region decided to place the applicant under surveillance (профилактический учёт) as a prisoner who was likely to abscond or assault members of the prison administration or other law-enforcement officers.\n\n64.  On an unspecified date the applicant lodged an administrative claim with the Bratsk Town Court of the Irkutsk Region in which he complained, inter alia, about being systematically handcuffed during his detention in IZ2 Irkutsk Region.\n\n64.  On an unspecified date the applicant lodged an administrative claim with the Bratsk Town Court of the Irkutsk Region in which he complained, inter alia, about being systematically handcuffed during his detention in IZ2 Irkutsk Region.\n\n65.  On 19 January 2018 the Bratsk Town Court dismissed the applicant’s administrative claim. The court noted that the applicant had been sentenced to life imprisonment for having committed particularly grave crimes against human life and public safety, referred to the relevant decision of the head of the remand prison, and concluded that the systematic use of handcuffs on the applicant had been lawful and in accordance with the domestic law.\n\n66.  From 22 April to 23 December 2019 the applicant was detained in IZ-1 Yamalo-Nenetskiy Region (ФКУ СИЗО-1 УФСИН России по Ямало-Ненецкому автономному округу). According to him, during his detention there he was under constant surveillance, mostly by female guards, using two closed-circuit television cameras (“CCTV cameras”) installed inside the cell in such a way that the entire cell, except for the toilet, was clearly visible.\n\n67.  From 21 May to 2 July 2019 the applicant was transported on multiple occasions to the Labytnangi Town Court of the Yamalo-Nenetskiy Region to participate in an unspecified set of proceedings. During the court hearings the applicant was held in a small metal cage installed in the courtroom. Each time he was transported to and from the town court, the applicant was handcuffed.\n\n68.  On 29 May 2019 the administrative commission of IZ-1 YamaloNentskiy Region decided to place the applicant under surveillance as a prisoner who was likely to assault members of the prison administration and other law-enforcement officers.\n\n69.  On various dates the applicant lodged complaints about his handcuffing with the Labytnangi town police department (ОМВД России по г. Лабытнанги) and the Labytnangi town prosecutor’s office. On 11 July and 5 August 2019 those authorities replied that his handcuffing had been lawful and based on the decision of the administrative commission of the remand prison and the relevant provisions of the domestic law.\n\n70.  It also appears from documents submitted by the Government that the applicant had earlier been placed under surveillance as a prisoner who was likely to assault members of the prison administration and other lawenforcement officers in IK-18 Yamalo-Nenetskiy Region (ФКУ ИК-18 УСФИН России по Ямало-Ненецкому автономному округу), his usual place of detention.\n\n71.  On 31 January 2020 the applicant was transferred again to IZ-1 Yamalo-Nenetskiy Region. According to him, his current prison cell is also equipped with two CCTV cameras and is constantly monitored by prison guards.\n\nTYGULEV v. RUSSIA, APPLICATION No. 25694/12\n\nThe events of 22 February 2011\n\n72.  On 22 February 2011 between 8 and 9 p.m. the applicant was arrested by police officers in the street in Saratov on suspicion of robbery. According to the applicant, during his arrest the police officers pushed him down to the ground, twisted his arms behind his back, handcuffed him, and dragged him to a police car.\n\n72.  On 22 February 2011 between 8 and 9 p.m. the applicant was arrested by police officers in the street in Saratov on suspicion of robbery. According to the applicant, during his arrest the police officers pushed him down to the ground, twisted his arms behind his back, handcuffed him, and dragged him to a police car.\n\n73.  Later in the evening, the applicant was taken to the operativesearch division of Criminal Investigations Service no. 1 in the Saratov Region (ОРЧ по линии УУР № 1 при ГУ МВД РФ по Саратовской области), where, according to his version of events, three police officers beat him on the head and body, then took him to another office, put him on the carpet face down, handcuffed him, tied his legs together with wire, suffocated him with a gas mask, and applied electric shocks to his legs.\n\n73.  Later in the evening, the applicant was taken to the operativesearch division of Criminal Investigations Service no. 1 in the Saratov Region (ОРЧ по линии УУР № 1 при ГУ МВД РФ по Саратовской области), where, according to his version of events, three police officers beat him on the head and body, then took him to another office, put him on the carpet face down, handcuffed him, tied his legs together with wire, suffocated him with a gas mask, and applied electric shocks to his legs.\n\n74.  On 23 February 2011 the applicant was taken to police station no. 4 (ОМ № 4) where at 4 p.m. an investigating officer drew up the record of his arrest. On the same date the applicant signed the record of his interview as a suspect which contained self-incriminating statements.\n\n75.  On 24 February 2011 the Leninskiy District Court of Saratov ordered the applicant’s pre-trial detention.\n\n76.  On the same date the applicant took part in the on-site verification of his statements (проверка показаний на месте) and signed the relevant record.\n\n76.  On the same date the applicant took part in the on-site verification of his statements (проверка показаний на месте) and signed the relevant record.\n\n77.  On 25 February 2011 upon his arrival at the temporary detention facility at the Saratov Directorate of Internal Affairs (ИВС УВД по г. Саратову), the applicant was examined by a doctor who diagnosed him with autonomic dysfunction of hypotonic type and recorded the following injuries in medical examination register no. 123: abrasions to the right malar region, left buccal region and on the left upper eyelid, a yellow-green haematoma in the pit of the left elbow, abrasions on the lower third of both forearms, subcutaneous haemorrhages on the right side of the chest, a bruise on the top of the left foot, an abrasion in the lumbar region of the spinal cord, and a yellow-green haematoma on the posterior surface of the right shoulder.\n\nOfficial inquiry into the alleged ill-treatment\n\n78.  On 24 February 2011 the applicant complained about his illtreatment during his detention hearing at the Leninskiy District Court of Saratov.\n\n79.  On 14 March 2011 the applicant complained about his ill-treatment to the investigating authorities.\n\n80.  On 20 April 2011 an investigating officer refused to institute criminal proceedings owing to the absence of any evidence of a crime.\n\n81.  On 18 May 2011 the applicant lodged another complaint about his ill-treatment by the police officers.\n\n82.  On 16 June 2011 the investigating officer issued another refusal to institute criminal proceedings. On 21 June 2011 that refusal was quashed.\n\n82.  On 16 June 2011 the investigating officer issued another refusal to institute criminal proceedings. On 21 June 2011 that refusal was quashed.\n\n83.  On 1 July 2011 the investigating officer again refused to institute criminal proceedings. The refusal was based on the testimony of the police officers who stated that the applicant had put up resistance during the arrest and they had had to twist his arms behind his back to prevent him from fleeing. The police officers denied having used any further physical force against the applicant either during or after his arrest.\n\n84.  On 1 March 2012 the refusal of 20 April 2011 was quashed.\n\n85.  On 10 August 2012 the investigating authorities instituted criminal proceedings in response to the complaint lodged by the applicant’s codefendant, Mr Mikhail Eduardovich Petrov, one of the applicants in Mansurov and Others v. Russia ([Committee], nos. 4336/06 and 7 others, § 118-22, 16 February 2021), about his ill-treatment by the same police officers on 22 February 2011.\n\n86.  On 31 January 2013 the applicant’s wife was questioned in connection with the above-mentioned criminal case. According to her, she had witnessed the police officers pushing the applicant and holding him down on the ground during his arrest. She also testified that on 23 February 2011 she had seen the applicant at the police station, that at that time he had already had injuries on his face, and that on 25 February 2011 she had seen him at the Leninskiy District Court of Saratov and had learnt from him that on 22 February 2011 he and Mr Petrov had been ill-treated by the same police officers.\n\n86.  On 31 January 2013 the applicant’s wife was questioned in connection with the above-mentioned criminal case. According to her, she had witnessed the police officers pushing the applicant and holding him down on the ground during his arrest. She also testified that on 23 February 2011 she had seen the applicant at the police station, that at that time he had already had injuries on his face, and that on 25 February 2011 she had seen him at the Leninskiy District Court of Saratov and had learnt from him that on 22 February 2011 he and Mr Petrov had been ill-treated by the same police officers.\n\n87.  On 21 June 2013 the refusal of 1 July 2011 was quashed, the investigating authorities instituted criminal proceedings in respect of the applicant’s complaint, joined them to the criminal proceedings opened on 10 August 2012, and granted the applicant victim status.\n\n87.  On 21 June 2013 the refusal of 1 July 2011 was quashed, the investigating authorities instituted criminal proceedings in respect of the applicant’s complaint, joined them to the criminal proceedings opened on 10 August 2012, and granted the applicant victim status.\n\n88.  On 26 June 2013 the investigating officer ordered a forensic medical expert examination. According to expert report no. 3243 of 5 July 2013, the applicant had the following injuries at the material time: abrasions to the right malar region, the left buccal region and on the left upper eyelid, a haematoma on the left elbow, abrasions on both forearms, haemorrhages on the right side of the chest, an abrasion in the lumbar region, and haematomas on the right shoulder and the left buttock. The medical expert was unable to confirm the previously diagnosed bruise on the top of the left foot due to the absence of a specific description of it in the medical file. The medical expert further concluded that the haematomas on the elbow, shoulder and buttock could have been inflicted five to seven days before the applicant’s examination on 25 February 2011, but was unable to establish when the other injuries had been inflicted due to the absence of a detailed description of them in the medical file. All the injuries had been inflicted by hard blunt objects in no less than seven traumatic impacts. The medical expert further stated that it was unlikely that the applicant had sustained those injuries by falling down on the ground and hitting himself against it, but that it would be possible to inflict the injuries on the face, buttock, forearms and chest oneself. The diagnosed injuries had caused no damage to the applicant’s health. The medical expert also indicated that the applicant had no injuries characteristic of electric shocks and that it was necessary to conduct an investigative experiment to verify if the applicant could have sustained his injuries during his arrest.\n\n88.  On 26 June 2013 the investigating officer ordered a forensic medical expert examination. According to expert report no. 3243 of 5 July 2013, the applicant had the following injuries at the material time: abrasions to the right malar region, the left buccal region and on the left upper eyelid, a haematoma on the left elbow, abrasions on both forearms, haemorrhages on the right side of the chest, an abrasion in the lumbar region, and haematomas on the right shoulder and the left buttock. The medical expert was unable to confirm the previously diagnosed bruise on the top of the left foot due to the absence of a specific description of it in the medical file. The medical expert further concluded that the haematomas on the elbow, shoulder and buttock could have been inflicted five to seven days before the applicant’s examination on 25 February 2011, but was unable to establish when the other injuries had been inflicted due to the absence of a detailed description of them in the medical file. All the injuries had been inflicted by hard blunt objects in no less than seven traumatic impacts. The medical expert further stated that it was unlikely that the applicant had sustained those injuries by falling down on the ground and hitting himself against it, but that it would be possible to inflict the injuries on the face, buttock, forearms and chest oneself. The diagnosed injuries had caused no damage to the applicant’s health. The medical expert also indicated that the applicant had no injuries characteristic of electric shocks and that it was necessary to conduct an investigative experiment to verify if the applicant could have sustained his injuries during his arrest.\n\n89.  On 8 July 2013 the investigating officer ordered another forensic medical expert examination. In expert report no. 224 of 22 July 2013, the medical experts made similar conclusions to the ones in expert report no. 3243 of 5 July 2013. They also noted that it was likely that the abrasions on the forearms had been caused by handcuffs, that the haematomas on the left buttock, right shoulder, and in the pit of the left elbow had been inflicted seven to ten days before the applicant’s examination on 25 February 2011, and that the applicant’s injuries could have been caused by falling accidentally from five metres or one metre seventy centimetres and hitting himself against objects.\n\n89.  On 8 July 2013 the investigating officer ordered another forensic medical expert examination. In expert report no. 224 of 22 July 2013, the medical experts made similar conclusions to the ones in expert report no. 3243 of 5 July 2013. They also noted that it was likely that the abrasions on the forearms had been caused by handcuffs, that the haematomas on the left buttock, right shoulder, and in the pit of the left elbow had been inflicted seven to ten days before the applicant’s examination on 25 February 2011, and that the applicant’s injuries could have been caused by falling accidentally from five metres or one metre seventy centimetres and hitting himself against objects.\n\n90.  On 6 August 2013 the investigating officer ordered an additional forensic medical expert examination. According to expert report no. 207-y of 30 October 2013, the medical experts confirmed the findings of the previous expert examinations concerning the nature of the applicant’s injuries and when they had been inflicted, but excluded the diagnosed haematoma on the left buttock as there was no record of that injury in the medical records of 25 February 2011.\n\n90.  On 6 August 2013 the investigating officer ordered an additional forensic medical expert examination. According to expert report no. 207-y of 30 October 2013, the medical experts confirmed the findings of the previous expert examinations concerning the nature of the applicant’s injuries and when they had been inflicted, but excluded the diagnosed haematoma on the left buttock as there was no record of that injury in the medical records of 25 February 2011.\n\n91.  On 10 November 2013 the investigating officer discontinued the criminal proceedings for the absence of any evidence of a crime. The decision relied, inter alia, on the testimony provided by the three police officers who had stated that the applicant had put up active resistance and attempted to escape during the arrest and, therefore, they had had to use handcuffs and wrestling techniques, namely twisting his arms behind his back, and pushing and holding him down on the snow. According to the police officers, they had taken the applicant to the operative-search division and subsequently, when he had agreed to sign a confession statement, had escorted him to police station no. 4. The decision also referred to the testimony of the police driver who attested to having seen abrasions on the applicant’s face after his arrest on 22 February 2011. The investigating officer concluded in his decision that the applicant had sustained his injuries during the arrest on 22 February 2011, and that the police officers had acted within their powers and in accordance with the law.\n\n92.  The decision of 10 November 2013 also cited the testimony provided by Mr Petrov’s mother who had attested to having seen the applicant at the police station on 23 February 2011 with injuries on his face and limping and moving around in a bent position; by the applicant’s wife who had seen him on 23 February 2011 at about 1 a.m. with abrasions and bruises on his face; and by the applicant’s acquaintance, K., who had stated that on 22 February 2011 she had seen no injuries on the visible parts of the applicant’s body, while on 24 February 2011 she had noticed bruises and abrasions on his face.\n\nThe applicant’s trial\n\nThe applicant’s trial\n\n93.  On 11 July 2011 the Leninskiy District Court of Saratov convicted the applicant of multiple counts of robbery. The district court relied, inter alia, on the applicant’s self-incriminating statements in the record of his interview as a suspect of 23 February 2011 and in the record of the on-site verification of his statements of 24 February 2011. The district court held that the applicant had been questioned in the presence of his lawyer, which ruled out any duress, and dismissed his allegations of ill-treatment, relying on the refusals to institute criminal proceedings. The district court also noted that the police officers had been examined during the trial and had denied having used any physical force against the applicant during his arrest or the investigative actions. The district court concluded that the applicant’s injuries had not been inflicted by the police officers and had been sustained by him in other circumstances.\n\n93.  On 11 July 2011 the Leninskiy District Court of Saratov convicted the applicant of multiple counts of robbery. The district court relied, inter alia, on the applicant’s self-incriminating statements in the record of his interview as a suspect of 23 February 2011 and in the record of the on-site verification of his statements of 24 February 2011. The district court held that the applicant had been questioned in the presence of his lawyer, which ruled out any duress, and dismissed his allegations of ill-treatment, relying on the refusals to institute criminal proceedings. The district court also noted that the police officers had been examined during the trial and had denied having used any physical force against the applicant during his arrest or the investigative actions. The district court concluded that the applicant’s injuries had not been inflicted by the police officers and had been sustained by him in other circumstances.\n\n94.  On 1 December 2011 the Saratov Regional Court upheld the applicant’s conviction in cassation. The regional court relied in its decision on the findings of the trial court.\n\nOther relevant information\n\nOther relevant information\n\n95.  On 16 February 2021 the Court delivered its judgment in Mansurov and Others (cited above). In that judgment the Court held that on 22 February 2011 the applicant’s co-defendant, Mr Petrov (application no. 15362/12), had been ill-treated by the same police officers, who had applied electric shocks to him, at the same place and in connection with the same criminal case as in the applicant’s account of events (ibid., §§ 108-22 and 188-89). The Court found in that case that there had been a violation of Article 3 of the Convention both under its substantive and procedural limbs in respect of Mr Petrov (ibid., § 190).\n\nMASALGIN v. RUSSIA, APPLICATION No. 30722/12\n\nThe events of 21 August 2008\n\n96.  On 21 August 2008 at about 1.10 a.m., the applicant was arrested by police officers in the street in Moscow near his house. According to the applicant, during his arrest the police officers pushed him to the ground and started kicking and punching him on the head and body, then they handcuffed him, pulled his arms up behind his back, dragged him by the handcuffs to a police car and continued to beat him inside the car. The applicant was escorted to “Khamovniki” police department (ОВД «Хамовники») in Moscow. According to his account of events, while being escorted to the police department he had been unconscious and had woken up when the police officers pulled him up by the handcuffs and punched him in the groin.\n\n96.  On 21 August 2008 at about 1.10 a.m., the applicant was arrested by police officers in the street in Moscow near his house. According to the applicant, during his arrest the police officers pushed him to the ground and started kicking and punching him on the head and body, then they handcuffed him, pulled his arms up behind his back, dragged him by the handcuffs to a police car and continued to beat him inside the car. The applicant was escorted to “Khamovniki” police department (ОВД «Хамовники») in Moscow. According to his account of events, while being escorted to the police department he had been unconscious and had woken up when the police officers pulled him up by the handcuffs and punched him in the groin.\n\n97.  On the same date from 1.30 to 3.10 a.m., the five police officers who had carried out the applicant’s arrest drew up reports in which they stated that the applicant had assaulted one of them and they had used physical force in order to apprehend him. The reports did not contain any specific description of the physical force used against the applicant.\n\n97.  On the same date from 1.30 to 3.10 a.m., the five police officers who had carried out the applicant’s arrest drew up reports in which they stated that the applicant had assaulted one of them and they had used physical force in order to apprehend him. The reports did not contain any specific description of the physical force used against the applicant.\n\n98.  On the same date at 12.55 p.m., the applicant was taken to City Clinical Hospital no. 67 (Городская клиническая больница № 67). According to an extract from the applicant’s medical file no. 6825/08 of 21 August 2008, the applicant was diagnosed with a closed craniocerebral injury, brain concussion, bruises and abrasions of the soft tissues of the head, face, chest, upper limbs, and a contused and lacerated injury of the left buccal mucosa. The applicant was discharged from the hospital at 3 p.m. on the same date.\n\n99.  According to the photos provided by the applicant, at the material time he had bruises and abrasions on his face, head, elbows and wrists, a periorbital haematoma on the right side, and a haematoma on the left inner thigh.\n\nThe applicant’s further medical examinations and treatment\n\nThe applicant’s further medical examinations and treatment\n\n100.  On 9 September 2008 the applicant was examined by a doctor at Polyclinic no. 117 (Поликлиника № 117) who diagnosed him as suffering from a condition resulting from a closed craniocerebral injury and brain concussion sustained on 21 August 2008, multiple bruises on the body and head, and abrasions on both wrists.\n\n100.  On 9 September 2008 the applicant was examined by a doctor at Polyclinic no. 117 (Поликлиника № 117) who diagnosed him as suffering from a condition resulting from a closed craniocerebral injury and brain concussion sustained on 21 August 2008, multiple bruises on the body and head, and abrasions on both wrists.\n\n101.  According to the applicant’s medical file no. 4948/08 at Polyclinic no. 117, on 11 September 2008 he was examined by a panel of doctors who diagnosed him with bilateral entrapment polyneuropathy of the hands, possibly of a post-traumatic nature, and a condition resulting from a closed craniocerebral injury and brain concussion sustained on 21 August 2008. On the same date the applicant was also examined by a doctor from the Clinic of Nervous Diseases (Клиника нервных болезней им. А. Я. Кожевникова) who confirmed that diagnosis.\n\n102.  From 30 May to 6 June 2009, the applicant underwent inpatient treatment in the neurological unit of City Clinical Hospital no. 71 (Городская клиническая больница № 71), having been diagnosed with after-effects of the repetitive craniocerebral injuries sustained in 2007 and 2008.\n\nOfficial inquiry into the alleged ill-treatment\n\n103.  On 21 August 2008 the applicant’s neighbour, V., complained to the investigating authorities about the ill-treatment of her husband and the applicant by the police officers.\n\n104.  On 27 August 2008 the applicant’s mother, who had been present during his arrest, lodged a similar complaint with the investigating authorities.\n\n105.  On 11 and 22 September and 9 November 2008 the investigating authorities refused to institute criminal proceedings into the applicant’s alleged ill-treatment.\n\n106.  On 12 November 2008 the applicant also lodged a complaint about his ill-treatment by the police officers.\n\n107.  On 27 November 2008 the applicant lodged a complaint under Article 125 of the CCrP with the Khamovnicheskiy District Court of Moscow.\n\n108.  On 8 December 2008 the refusal of 9 November 2008 was quashed.\n\n109.  On 18 December 2008 the investigating authorities issued another refusal, which was subsequently quashed on 11 January 2009.\n\n110.  On 14 January 2009 the Khamovnicheskiy District Court of Moscow dismissed the applicant’s complaint as the inquiry was still ongoing.\n\n111.  On 21 January 2009 the investigating authorities issued another refusal to institute criminal proceedings. The applicant was only notified of this decision on 4 March 2009.\n\n112.  On 6 March 2009 the applicant challenged the refusal of 21 January 2009 under Article 125 of the CCrP.\n\n112.  On 6 March 2009 the applicant challenged the refusal of 21 January 2009 under Article 125 of the CCrP.\n\n113.  On 4 May 2009 the investigating officer in charge of the inquiry ordered a forensic medical expert examination. According to expert report no. 1238-AM of 7 May 2009, the applicant had the following injuries at the material time: contusions in the frontotemporal and periocular regions on the right side, on the left side of the face and on the chin, abrasions on the left side of the forehead, on the right side of the chest, on the right shoulder joint, on both elbow joints and on the left shin, and an injury to the left buccal mucosa. The expert was not able to confirm the diagnosed brain concussion as the applicant had been examined by a neurologist on one occasion and had had no follow-up supervision. The expert concluded that the contusions and abrasions had been inflicted by hard blunt objects but was unable to establish when and how they had been inflicted owing to the absence of a detailed description of them in the medical file. The expert held that the described injuries had not caused any damage to the applicant’s health.\n\n114.  On 19 June 2009 the Khamovnicheskiy District Court of Moscow examined and dismissed the applicant’s complaint of 6 March 2009. On 29 July 2009 the Moscow City Court upheld that decision in cassation.\n\n115.  On 13 August 2010 the refusal of 21 January 2009 was quashed.\n\n115.  On 13 August 2010 the refusal of 21 January 2009 was quashed.\n\n116.  On 16 December 2010 the investigating officer issued the most recent refusal to institute criminal proceedings. In her decision the investigating officer relied, inter alia, on the testimony and reports of the police officers who had stated that the applicant had put up active resistance during the arrest, had assaulted Police Officer N. and torn his uniform, and that they had had to have recourse to physical force and handcuff him. The police officers who had been the last to arrive on the scene had also stated that they had witnessed the applicant kicking and screaming at the police officers. One of them had testified that the applicant had been knocking his head against the ground. Neither of the police officers had specified in their testimony what physical force had been used against the applicant. The refusal also cited the testimony of several eyewitnesses who had seen a fight between the applicant and the police officers but did not specify what kind of physical force had been used against the applicant. The testimony of the applicant’s mother cited in the refusal supported the applicant’s version of events. The refusal also referred to the decision of the Khamovnicheskiy District Court of Moscow of 30 April 2010 and concluded that the police officers had acted lawfully when using physical force against the applicant.\n\n116.  On 16 December 2010 the investigating officer issued the most recent refusal to institute criminal proceedings. In her decision the investigating officer relied, inter alia, on the testimony and reports of the police officers who had stated that the applicant had put up active resistance during the arrest, had assaulted Police Officer N. and torn his uniform, and that they had had to have recourse to physical force and handcuff him. The police officers who had been the last to arrive on the scene had also stated that they had witnessed the applicant kicking and screaming at the police officers. One of them had testified that the applicant had been knocking his head against the ground. Neither of the police officers had specified in their testimony what physical force had been used against the applicant. The refusal also cited the testimony of several eyewitnesses who had seen a fight between the applicant and the police officers but did not specify what kind of physical force had been used against the applicant. The testimony of the applicant’s mother cited in the refusal supported the applicant’s version of events. The refusal also referred to the decision of the Khamovnicheskiy District Court of Moscow of 30 April 2010 and concluded that the police officers had acted lawfully when using physical force against the applicant.\n\n117.  The applicant challenged the refusal of 16 December 2010 under Article 125 of the CCrP. On 23 August 2011 the Khamovnicheskiy District Court of Moscow dismissed his complaint. On 31 October 2011 the Moscow City Court upheld that decision in cassation. The domestic courts held that the investigating authorities had conducted a thorough inquiry into the applicant’s allegations of ill-treatment and that the refusal of 16 December 2010 was in accordance with the domestic law.\n\nThe applicant’s trial\n\n118.  On 29 August 2008 the investigating authorities instituted a criminal case against the applicant for having assaulted Police Officer N. during his arrest on 21 August 2008.\n\n118.  On 29 August 2008 the investigating authorities instituted a criminal case against the applicant for having assaulted Police Officer N. during his arrest on 21 August 2008.\n\n119.  On 11 November 2008 the investigating authorities conducted a face-to-face confrontation (очная ставка) between the applicant and Police Officer N. The latter stated that the applicant had put up active resistance when the police officers had attempted to handcuff him after his assault on N., and that they had given the applicant “relaxing blows” (расслабляющие удары) on the body and in the pelvic area.\n\n120.  On 30 April 2010 the Khamovnicheskiy District Court of Moscow examined the applicant’s criminal case and established that on 21 August 2008 at 1.10 a.m. the applicant, after refusing to obey the orders of Police Officer N., had offended him by using obscene language, had punched him once on the head, and had torn a shoulder badge and chest pockets off his uniform. The district court relied on the findings of the inquiry into the applicant’s allegations of ill-treatment and concluded that his injuries had resulted from the lawful use of physical force by the police officers during the arrest. The district court also noted that the injuries recorded in his medical documents could have resulted from his own actions during his arrest. The district court held that the applicant was to be exempted from criminal liability due to his mental illness which prevented him from realising the nature and public danger of his actions and ordered his compulsory medical treatment.\n\n121.  On 16 August 2010 the Moscow City Court upheld the firstinstance decision in cassation.\n\nVOROTNIKOV v. RUSSIA, APPLICATION No. 68536/12\n\nThe events of 20 April 2011\n\n122.  On 20 April 2011 at about 4.30 p.m., the applicant, who was a minor at the time, was arrested together with his friend, K., in a street in Moscow by two police officers patrolling the area. According to the applicant, when he refused to get into the police car, the police officers started to push and pull him inside, punched him in the abdomen and on the face and kicked him on the right ankle. According to the applicant, when he fell to the ground, the police officers continued to beat him, then handcuffed him and threw him into the car.\n\n122.  On 20 April 2011 at about 4.30 p.m., the applicant, who was a minor at the time, was arrested together with his friend, K., in a street in Moscow by two police officers patrolling the area. According to the applicant, when he refused to get into the police car, the police officers started to push and pull him inside, punched him in the abdomen and on the face and kicked him on the right ankle. According to the applicant, when he fell to the ground, the police officers continued to beat him, then handcuffed him and threw him into the car.\n\n123.  The applicant and K. were escorted to the police department in the Shchukino District in Moscow (ОВД по району Щукино г. Москвы). At 4.56 p.m. a police officer for juvenile affairs called an ambulance for the applicant. The applicant was examined by an ambulance doctor who diagnosed him with a blunt-trauma abdominal injury, closed craniocerebral injury, brain concussion, soft-tissue bruises on the head and a closed fracture of the right ankle.\n\n123.  The applicant and K. were escorted to the police department in the Shchukino District in Moscow (ОВД по району Щукино г. Москвы). At 4.56 p.m. a police officer for juvenile affairs called an ambulance for the applicant. The applicant was examined by an ambulance doctor who diagnosed him with a blunt-trauma abdominal injury, closed craniocerebral injury, brain concussion, soft-tissue bruises on the head and a closed fracture of the right ankle.\n\n124.  At about 5.40 p.m. the applicant was taken to City Clinical Hospital no. 1 (ГКБ № 1 им. Н.И. Пирогова). According to medical file no. 12140 of 20 April 2011, the applicant underwent an X-ray examination and was examined by a neurologist, a traumatologist and a surgeon. At 10.30 p.m. he was admitted to the surgery unit of the hospital for inpatient treatment. On 21 April 2011 the applicant underwent an MRI which showed blood in both maxillary sinuses. On 26 April 2011 he was transferred to the traumatology unit for further treatment. According to the discharge report of 10 May 2011, on that date the applicant was discharged from the hospital with the following final diagnosis: closed craniocerebral injury, brain concussion, bilateral hemosinus, rupture of the talofibular ligament of the right ankle and multiple soft-tissue bruises on the head and front abdomen.\n\n124.  At about 5.40 p.m. the applicant was taken to City Clinical Hospital no. 1 (ГКБ № 1 им. Н.И. Пирогова). According to medical file no. 12140 of 20 April 2011, the applicant underwent an X-ray examination and was examined by a neurologist, a traumatologist and a surgeon. At 10.30 p.m. he was admitted to the surgery unit of the hospital for inpatient treatment. On 21 April 2011 the applicant underwent an MRI which showed blood in both maxillary sinuses. On 26 April 2011 he was transferred to the traumatology unit for further treatment. According to the discharge report of 10 May 2011, on that date the applicant was discharged from the hospital with the following final diagnosis: closed craniocerebral injury, brain concussion, bilateral hemosinus, rupture of the talofibular ligament of the right ankle and multiple soft-tissue bruises on the head and front abdomen.\n\n125.  On 20 April 2011 one of the police officers drew up a report about the circumstances of the applicant’s arrest. In it he stated, in particular, that the applicant had been refusing to obey their orders and get into the police car, and they had had to use physical force against him. The report did not contain any description of the physical force used against the applicant.\n\nOfficial inquiry into the alleged ill-treatment\n\n126.  On 20 April 2011 the applicant’s mother and the hospital reported the incident to the police.\n\n127.  On 21 April 2011 the investigating authorities launched an inquiry into the applicant’s alleged ill-treatment by the police officers.\n\n128.  On 25 April 2011 the investigating officer in charge of the inquiry ordered a forensic medical expert examination of the applicant. According to expert report no. 1186/6519 of 26 April 2011, in view of his mother’s refusal, the applicant was not examined by a medical expert and, therefore, the latter was not able to make any conclusions about his injuries.\n\n129.  On 15 May 2011 the investigating officer ordered another forensic medical expert examination.\n\n130.  On 21 May 2011 the investigating officer refused to institute criminal proceedings. On 23 May 2011 that refusal was quashed.\n\n130.  On 21 May 2011 the investigating officer refused to institute criminal proceedings. On 23 May 2011 that refusal was quashed.\n\n131.  According to expert report no. 7420м/8448 of 30 May 2011, the applicant’s closed craniocerebral injury, soft-tissue contusions to the face and back of the head, abrasions on the chin and brain concussion could have been inflicted by hard blunt objects at the time of his arrest and qualified as damage of mild severity to his health. The abrasions on the applicant’s limbs and body and the contusion on his right hand could also have been inflicted by hard blunt objects and did not qualify as damage to the applicant’s health. The medical expert refused to draw any conclusions as to the abrasion and contusion on the applicant’s right ankle and the rupture of the talofibular ligament due to the lack of an additional MRI and ultrasound examinations. The diagnosed bruise on the right side of the applicant’s chest and multiple bruises on the abdominal wall were not subject to expert examination due to the absence of a detailed description of them in the medical documents; the same went for the diagnosed hemosinus which had not been confirmed by an X-ray examination.\n\n132.  On 23 June 2011 the investigating officer issued another refusal to institute criminal proceedings. On 24 June 2011 that refusal was quashed.\n\n132.  On 23 June 2011 the investigating officer issued another refusal to institute criminal proceedings. On 24 June 2011 that refusal was quashed.\n\n133.  On 24 June 2011 the investigating officer ordered an additional forensic medical expert examination. According to expert report no. 9691м/10611 of 30 June 2011, the medical expert came to the same conclusions as in the report of 30 May 2011.\n\n133.  On 24 June 2011 the investigating officer ordered an additional forensic medical expert examination. According to expert report no. 9691м/10611 of 30 June 2011, the medical expert came to the same conclusions as in the report of 30 May 2011.\n\n134.  On 25 July 2011 the investigating officer issued the most recent refusal to institute criminal proceedings. The refusal was based, inter alia, on the testimony of the police officers who had carried out the applicant’s arrest. The police officers stated that they had bent the applicant’s head and forced him into the car as he had been refusing to obey their orders, and denied having used any other physical force against him. The refusal also relied on the testimony of a bystander, M., who had witnessed the applicant pushing the police officers away during his arrest. M. stated that the three of them had eventually fallen to the ground, after which the police officers had kept the applicant lying there for some time, and then they had all got into the police car. That testimony was confirmed by two other eyewitnesses. The refusal also cited the testimony given by K., who confirmed the applicant’s version of events. The investigating officer concluded that the physical force used by the police officers, namely forcing the applicant into the police car, had been lawful and necessary to overcome his resistance. The investigating officer also noted, relying on the testimony of the police officers and the video-footage from the police department, that after his arrival at the police department the applicant had been moving around on his own and that, therefore, he could have injured his ankle after being escorted there.\n\n134.  On 25 July 2011 the investigating officer issued the most recent refusal to institute criminal proceedings. The refusal was based, inter alia, on the testimony of the police officers who had carried out the applicant’s arrest. The police officers stated that they had bent the applicant’s head and forced him into the car as he had been refusing to obey their orders, and denied having used any other physical force against him. The refusal also relied on the testimony of a bystander, M., who had witnessed the applicant pushing the police officers away during his arrest. M. stated that the three of them had eventually fallen to the ground, after which the police officers had kept the applicant lying there for some time, and then they had all got into the police car. That testimony was confirmed by two other eyewitnesses. The refusal also cited the testimony given by K., who confirmed the applicant’s version of events. The investigating officer concluded that the physical force used by the police officers, namely forcing the applicant into the police car, had been lawful and necessary to overcome his resistance. The investigating officer also noted, relying on the testimony of the police officers and the video-footage from the police department, that after his arrival at the police department the applicant had been moving around on his own and that, therefore, he could have injured his ankle after being escorted there.\n\n135.  On 15 August 2011 the applicant challenged the refusal of 25 July 2011 under Article 125 of the CCrP. On 13 March 2012 the Khoroshevskiy District Court of Moscow dismissed his complaint. On 18 April 2012 the Moscow City Court upheld the first-instance decision in cassation. The domestic courts held that the investigating authorities had conducted a comprehensive inquiry into the applicant’s complaint, had collected and examined all relevant pieces of evidence, and that the conclusions made in the refusal of 25 July 2011 were lawful and well founded.\n\nRELEVANT LEGAL FRAMEWORK AND PRACTICE\n\n136.  For the relevant provisions of domestic law on the prohibition of torture and other forms of ill-treatment and the procedure for examining a criminal complaint, see Lyapin v. Russia (no. 46956/09, §§ 96-102, 24 July 2014), and Ryabtsev v. Russia (no. 13642/06, §§ 48‑52, 14 November 2013).\n\nTHE LAW\n\nJOINDER OF THE APPLICATIONS\n\n137.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.\n\nALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION\n\n138.  The applicants complained under Article 3 of the Convention that they had been subjected to ill-treatment by State officials and that the State had failed to conduct an effective investigation into their allegations of illtreatment. They also complained under Article 13 of the Convention about the lack of an effective remedy in respect of their complaints under Article 3 of the Convention. The relevant parts of those provisions read as follows:\n\nArticle 3\n\n“No one shall be subjected to torture or to inhuman or degrading treatment ...”\n\nArticle 13\n\n“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority ...”\n\n“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority ...”\n\nAdmissibility\n\n139.  The Court notes that the applicants’ complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.\n\nMerits\n\nThe parties’ submissions\n\n140.  The Government contested the applicants’ allegations, maintaining the conclusions of the domestic inquiries.\n\n141.  In the case of Mr Yanchenko, the Government also suggested that the applicant had been injured before his arrest.\n\n142.  In the case of Mr Piskunov, the Government also submitted that the applicant had failed to substantiate his complaint, as he had not provided the Court with a copy of the medical examination act of 29 June 2009.\n\n143.  The applicants maintained their complaints.\n\nThe Court’s assessment\n\nCredibility of the applicants’ allegations of ill-treatment by State officials\n\n144.  The Court observes that the applicants were arrested by the police on suspicion of having committed either criminal or administrative offences.\n\n145.  In Mr Piskunov’s case, the Court observes, and it is not disputed by the parties, that on 29 June 2009 the applicant was examined by medical experts who diagnosed him with certain injuries and recorded them in a medical examination act (see paragraph 49 above). The Court further notes that the applicant attempted on multiple occasions to obtain a copy of that medical examination act but neither his requests nor his inquiries proved to be successful (see paragraphs 51 and 57-61 above). The Court further notes that in its notification letter of 13 July 2017, it requested the Government to submit, inter alia, copies of the medical evidence in the applicant’s case. The Government, however, failed to produce the medical examination act of 29 June 2009 or any other medical evidence without stating any reasons therefor. In these circumstances, the Court considers that it can draw inferences from the Government’s conduct in this respect and finds it established that the applicant did sustain the injuries described in his application to the Court (see paragraph 46 above) after spending time in custody and that those injuries were recorded in the medical examination act of 29 June 2009 (see, mutatis mutandis, Pishchalnikov v. Russia, no. 7025/04, § 75, 24 September 2009).\n\n146.  The Court further observes that, after spending various periods of time in custody, the rest of the applicants were also found to have sustained injuries of various degrees, as recorded by forensic medical experts (see paragraphs 14, 37, 88-90, 113, 131 and 133 above), detention facilities (see paragraphs 11-12, 33, 35 and 77 above), or medical institutions (see paragraphs 6, 10, 32, 34, 98, 100-101 and 123-124 above).\n\n147.  Having examined the material in the case files and the submissions of the parties, the Court considers that the injuries sustained by the applicants were well documented and could arguably have resulted from the violence allegedly suffered by them at the hands of State officials. The above factors are sufficient to give rise to a presumption in favour of the applicants’ accounts of events and to satisfy the Court that the applicants’ allegations of their ill-treatment in police custody were credible.\n\nEffectiveness of the domestic investigation into the alleged ill-treatment\n\n148.  The Court observes that the applicants’ credible allegations of their injuries being the result of police or investigating officers’ violence were dismissed by the investigating authorities as unfounded based mainly on the statements of the police or investigating officers denying their involvement in the applicants’ ill-treatment (see paragraphs 18, 41, 53, 83, 116 and 134 above).\n\n149.  In all cases, except for Mr Piskunov’s, the decisions of the investigating authorities refusing to open criminal proceedings (at least six decisions in Mr Koval’s and Mr Yanchenko’s cases, at least three decisions in Mr Tyugulev’s case, at least five decisions in Mr Masalgin’s case, and at least two decisions in Mr Vorotnikov’s case) were quashed each time by a superior investigating authority for having been based on an incomplete inquiry, and a fresh inquiry was ordered. In Mr Koval’s, Mr Masalgin’s and Mr Vorotnikov’s cases, the most recent refusals to institute criminal proceedings issued by the investigating authorities were upheld by the domestic courts (see paragraphs 19, 117 and 135 above). In Mr Piskunov’s case, the domestic courts refused to examine his complaint against the refusal as he had already been convicted by the trial court (see paragraph 54 above). In Mr Tyugulev’s case, a criminal case was finally opened more than two years after the applicant’s first complaint, but the criminal proceedings were subsequently discontinued for the absence of any evidence of a crime (see paragraphs 87 and 91 above).\n\n150.  As regards the forensic medical expert examinations, the Court reiterates that proper medical examinations are essential safeguards against ill-treatment (see Akkoç v. Turkey, nos. 22947/93 and 22948/93, §§ 55 and 118, ECHR 2000‑X). In this regard the Court notes that in some cases the forensic examinations were conducted with a significant delay after the events (three months in Mr Koval’s and Mr Yanchenko’s cases, almost two and a half years in Mr Tyugulev’s case, and more than eight months in Mr Masalgin’s case). In Mr Piskunov’s case, the applicant was examined by medical experts three days after his arrest, however, the relevant medical examination act was not taken into account by the investigating authorities when examining his allegations of ill-treatment (see paragraph 53 above).\n\n151.  It also appears that in the case of Mr Koval, the investigating officer did not request the medical expert to establish when the applicant’s injuries had been inflicted (see paragraph 14 above). In the cases of Mr Koval, Mr Yanchenko, Mr Tyugulev, Mr Masalgin and Mr Vorotnikov, it also seems that the medical experts were provided with insufficient information to give a proper assessment of their injuries (see paragraphs 14, 37, 88-90, 113, 131 and 133 above).\n\n152.  In this connection the Court considers that significant delays such as in these cases, as well as the lack of information provided to forensic experts, made it impracticable for the experts to provide adequate answers to the questions raised by the requesting authority (see Mogilat v. Russia, no. 8461/03, § 64, 13 March 2012).\n\n153.  The Court reiterates its findings that the mere carrying out of a preinvestigation inquiry under Article 144 of the Code of Criminal Procedure of the Russian Federation (“the CCrP”) is insufficient if the authorities are to comply with the standards established under Article 3 of the Convention for an effective investigation into credible allegations of illtreatment in police custody. It is incumbent on the authorities to institute criminal proceedings and conduct a proper criminal investigation in which a full range of investigative measures are carried out (see Lyapin v. Russia, no. 46956/09, §§ 129 and 132‑36, 24 July 2014).\n\n154.  The Court has no reason to hold otherwise in the present cases, which involve credible allegations of treatment proscribed by Article 3 of the Convention. It finds that the State has failed to carry out an effective investigation into the applicants’ allegations of violence by State officials.\n\nThe Government’s submissions\n\n155.  The Government supported the conclusions of the investigating authorities to the effect that the applicants’ injuries had not been attributable to the conduct of the police officers and had been either the result of the lawful use of force by the police in arresting the applicants or sustained in other circumstances.\n\n156.  At the outset the Court notes that in the cases of Mr Koval, Mr Yanchenko, Mr Piskunov and Mr Tyugulev, it was not provided with any evidence supporting the investigating authorities’ conclusions, such as, for example, reports made by the police officers to their superiors in relation to the use of force or handcuffs during the applicants’ arrests. In these cases, the police officers were particularly obliged to report to their superiors about the use of force during the applicants’ arrests in view of their visible injuries (see paragraphs 6, 10-12, 14, 32-35, 37, 46, 77 and 88-90 above). In the cases of Mr Masalgin and Mr Vorotnikov, the Government submitted copies of the police officers’ reports describing the circumstances of their arrests (see paragraphs 97 and 125 above).\n\n157.  In Mr Masalgin’s case, the Court notes that neither the reports of the police officers, nor any other document, except for the testimony of Police Officer N. (see paragraph 119 above), explain what kind of physical force was used against the applicant. The Court further notes that although the version put forward by the domestic authorities could explain some of the injuries sustained by the applicant on the date of his arrest, it nevertheless fails to provide any plausible explanation for his medical conditions such as the closed craniocerebral injury and post-traumatic bilateral entrapment polyneuropathy of the hands.\n\n158.  In Mr Vorotnikov’s case, the Court notes that the injuries sustained by the applicant on the date of his arrest do not correspond to the physical force described by the police officers. The Court also notes that the version put forward by the domestic authorities provides some explanation for only one of the applicant’s injuries (see paragraph 134 above) and ignores the rest of them, including the closed craniocerebral injury.\n\n159.  The Court therefore considers that the Government’s explanations lack an assessment of the actions of the police officers in using force and the actions on the part of the applicants which could have justified the use of force, as well as an assessment of whether the use of force was indispensable and not excessive (see Ksenz and Others v. Russia, nos. 45044/06 and 5 others, § 103, 12 December 2017, and Ryabov v. Russia, no. 2674/07, § 47, 17 July 2018).\n\n160.  Given that the Government’s explanations were based on the superficial domestic inquiries falling short of the requirements of Article 3 of the Convention, the Court finds that they cannot be considered satisfactory or convincing. It holds that the Government have failed to discharge their burden of proof and produce evidence capable of casting doubt on the account of events of the applicants, which it therefore finds established (see Olisov and Others v. Russia, nos. 10825/09 and 2 others, §§ 83-85, 2 May 2017, and Ksenz and Others, cited above, §§ 102‑04).\n\nLegal classification of the treatment\n\n161.  The applicants alleged that they had been subjected to torture and inhuman and degrading treatment.\n\n161.  The applicants alleged that they had been subjected to torture and inhuman and degrading treatment.\n\n162.  Having regard to the injuries sustained by Mr Yanchenko, Mr Piskunov, Mr Masalgin and Mr Vorotnikov and confirmed by the medical evidence, the Court finds that the law-enforcement authorities subjected them to inhuman and degrading treatment.\n\n163.  The Court observes that Mr Koval and Mr Tyugulev alleged that they had been subjected to ill-treatment using, inter alia, electric shocks (see paragraphs 5, 8 and 73 above).\n\n163.  The Court observes that Mr Koval and Mr Tyugulev alleged that they had been subjected to ill-treatment using, inter alia, electric shocks (see paragraphs 5, 8 and 73 above).\n\n164.  In the case of Mr Koval, the Court notes that the applicant was examined by medical practitioners on the same day of each episode of illtreatment, and that no evidence of electric shocks was recorded in his medical documents (see paragraphs 6 and 10-11 above). In these circumstances, the Court is unable to conclude that the applicant was subjected to ill-treatment using electric shocks. Therefore, the Court finds that the police officers subjected the applicant to inhuman and degrading treatment.\n\n164.  In the case of Mr Koval, the Court notes that the applicant was examined by medical practitioners on the same day of each episode of illtreatment, and that no evidence of electric shocks was recorded in his medical documents (see paragraphs 6 and 10-11 above). In these circumstances, the Court is unable to conclude that the applicant was subjected to ill-treatment using electric shocks. Therefore, the Court finds that the police officers subjected the applicant to inhuman and degrading treatment.\n\n165.  In the case of Mr Tyugulev, the Court observes that the applicant was examined by a doctor three days after the alleged use of electric shocks (see paragraph 77 above). The Court further notes that the applicant was diagnosed with multiple abrasions on his face and forearms, and bruises on various parts of his body (see paragraphs 77 and 88-90 above). The Court also notes that it has already found that Mr Tyugulev’s co-defendant, Mr Petrov, was subjected to torture in a similar manner as that described by the applicant by the same police officers on the same date and at the same police station (see Mansurov and Others v. Russia [Committee], nos. 4346/06 and 7 others, §§ 108-11 and 188-90, 16 February 2021 – see paragraph 95 above). The Court thus finds that the existence of the applicant’s physical pain and suffering is attested to by the medical reports and the applicant’s statements regarding his ill-treatment at the police station, in particular with electric shocks, which were not refuted by the Government. The sequence of events also demonstrates that the pain and suffering was inflicted on him intentionally, namely with a view to extracting confessions to having committed crimes (see Samoylov v. Russia, no. 64398/01, § 53, 2 October 2008, and Lolayev v. Russia, no. 58040/08, § 79, 15 January 2015). In such circumstances, the Court concludes that, taken as a whole and having regard to its purpose and severity, the illtreatment of Mr Tyugulev amounted to torture within the meaning of Article 3 of the Convention.\n\nConclusion\n\n166.  There has accordingly been a violation of Article 3 of the Convention under its substantive and procedural limbs in respect of all of the applicants. In the light of this finding, the Court considers that it is not necessary to examine whether there has also been a violation of Article 13 of the Convention.\n\nALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION\n\n167.  Four of the applicants, Mr Koval, Mr Yanchenko, Mr Piskunov and Mr Tyugulev, complained under Article 6 § 1 of the Convention that the criminal proceedings against them had been unfair as the domestic courts had used their self-incriminating statements obtained under duress in their conviction. The relevant part of Article 6 § 1 reads as follows:\n\n“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”\n\nAdmissibility\n\n168.  The Court notes that this part of the application is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nMerits\n\nThe parties’ submissions\n\n169.  The Government contested the applicants’ allegations, maintaining that the applicants had not been subjected to ill-treatment and had given their self-incriminating statements voluntarily.\n\n170.  The applicants maintained their complaints.\n\nThe Court’s assessment\n\n171.  The Court has on several occasions found that the admission of confession statements obtained in violation of Article 3 of the Convention renders the criminal proceedings as a whole automatically unfair, irrespective of the probative value of those statements and irrespective of whether their use was decisive in securing the defendant’s conviction (see Turbylev v. Russia, no. 4722/09, § 90, 6 October 2015, and Golubyatnikov and Zhuchkov v. Russia, nos. 44822/06 and 49869/06, §§ 113-16, 9 October 2018).\n\n172.  The Court notes that the self-incriminating statements made by the applicants following their apprehension and during their time in police custody formed part of the evidence produced against them in the criminal proceedings. The trial and appeal courts did not find those statements inadmissible and referred to them when finding the applicants guilty and convicting them (see paragraphs 23, 25, 43-44, 55-56 and 93-94 above).\n\n173.  The Court further notes that it has already established that the applicants were subjected to ill-treatment at the hands of State officials (see paragraphs 162 and 164-165 above), which took place immediately before the applicants confessed to having committed the crimes with which they were subsequently charged (see paragraphs 8-9, 31, 46 and 74 above).\n\n174.  In such circumstances, the Court is not convinced by the Government’s argument that the applicants’ confession statements should be regarded as having been given voluntarily. It concludes that, regardless of the impact the applicants’ statements obtained under duress had on the outcome of the criminal proceedings against them, such evidence rendered the criminal proceedings unfair (see El Haski v. Belgium, no. 649/08, § 85, 25 September 2012, and Tangiyev, no. 27610/05, § 74, 11 December 2012).\n\n175.  There has, accordingly, been a violation of Article 6 § 1 of the Convention in respect of Mr Koval, Mr Yanchenko, Mr Piskunov and Mr Tyugulev.\n\nALLEGED VIOLATION OF ARTICLE 5 §§ 1 AND 5 OF THE CONVENTION\n\n176.  Mr Koval also complained under Article 5 §§ 1 and 5 of the Convention about his unrecorded detention between 6.10 p.m. on 14 May 2009 and 11.20 a.m. on 15 May 2009 after his de facto apprehension, and the impossibility of claiming compensation despite the acknowledgement by the trial court of the unlawfulness of his detention during that period of time. The relevant provisions read as follows:\n\n“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:\n\n...\n\n5.  Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”\n\nAdmissibility\n\nThe parties’ submissions\n\n177.  The Government agreed in their observations that there had been a delay in drawing up the applicant’s record of arrest. At the same time, they noted that the period of the applicant’s unrecorded detention had been included in his prison term, and that the applicant had failed to challenge the lawfulness of the law-enforcement authorities’ actions under Articles 123 to 125 of the CCrP.\n\n178.  The applicant maintained his complaints.\n\nThe Court’s assessment\n\nVictim status\n\n179.  The Government can be understood to be claiming that the applicant is no longer a victim of the alleged violation of Article 5 § 1 of the Convention, as the Engels District Court of the Saratov Region acknowledged the mistake and corrected it by deducting the period of the unrecorded detention from the applicant’s sentence.\n\n180.  The Court observes that it has already addressed the same argument by the Russian Government in other cases (see Lebedev v. Russia, no. 4493/04, §§ 43-48, 25 October 2007, and Arefyev v. Russia, no. 29464/03, §§ 70-72, 4 November 2010). In those cases the Court noted that the inclusion of the time spent in custody in the overall time to be served by the applicants was not in any way connected to the alleged violation of Article 5 § 1 of the Convention; rather, it followed from Article 72 of the Russian Criminal Code, which provided for the automatic deduction of time spent in custody from the final sentence, irrespective of whether or not it was irregular.\n\n181.  The Court sees no reason to depart from that finding in the present case. Therefore, the applicant cannot be said to have lost his victim status within the meaning of Article 34 of the Convention. The Government’s objection should therefore be dismissed.\n\nNon-exhaustion of domestic remedies\n\n182.  The Government can be understood to also be raising an objection of non-exhaustion of domestic remedies, as the applicant did not lodge a complaint under Articles 123 to 125 of the CCrP to challenge the lawfulness of the law-enforcement authorities’ actions.\n\n183.  The Court has previously stated that an applicant must have made normal use of domestic remedies which are likely to be effective and sufficient and that, when a remedy has been pursued, use of another remedy which has essentially the same objective is not required (see Lagutin and Others v. Russia, nos. 6228/09 and 4 others, § 75, 24 April 2014).\n\n184.  In the present case the applicant complained about his unrecorded detention before the trial court, which acknowledged in a separate decision the failure of the investigating authorities to draw up a record of the applicant’s arrest within the time-limit set by the domestic law, and explicitly stated in that decision that it had led to the violation of the applicant’s right to liberty (see paragraph 24 above). The applicant also lodged a civil claim for compensation for non-pecuniary damage in that respect, which was examined and dismissed by the domestic courts at two levels of jurisdiction. The Court therefore considers that the applicant has complied with the exhaustion requirement.\n\n185.  Accordingly, the Court dismisses the Government’s objection on this point.\n\nConclusion as to admissibility\n\n186.  The Court notes that the applicant’s complaints under Article 5 of the Convention are neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible.\n\nMerits\n\nThe parties’ submissions\n\n187.  The Government submitted that there had been no violation of the applicant’s rights under Article 5 of the Convention. They further argued that the applicant had an enforceable right to compensation for the alleged unrecorded detention, but his civil claim had been dismissed due to his own failure to substantiate it.\n\n188.  The applicant maintained his complaints.\n\nThe Court’s assessment\n\nArticle 5 § 1 of the Convention\n\n189.  The Government acknowledged in their observations that the applicant had been arrested on 14 May 2009 and that there had been a delay in drawing up the record of his arrest, but disagreed that there had been a violation of Article 5 § 1 of the Convention.\n\n190.  The Court has already held on many occasions that unrecorded detention of an individual is a complete negation of the fundamentally important guarantees contained in Article 5 of the Convention, that it discloses a most grave violation of that provision, and must be seen as incompatible with the requirement of lawfulness and with the very purpose of Article 5 of the Convention (see Fortalnov and Others v. Russia, nos. 7077/06 and 12 others, § 76, 26 June 2018, with further references). Moreover, the lack of any acknowledgment or record of a person’s detention as a suspect makes him or her potentially vulnerable not only to arbitrary interference with the right to liberty but also to ill-treatment (see Fartushin v. Russia, no. 38887/09, § 53, 8 October 2015, and Leonid Petrov v. Russia, no. 52783/08, § 54, 11 October 2016).\n\n191.  The Court observes that the applicant was apprehended on 14 May 2009 no later than 6.10 p.m., which is not disputed by the Government and is confirmed by the material in the case file in the applicant’s criminal proceedings. The record of the applicant’s arrest was drawn up on 15 May 2009 at 11.20 a.m., that is more than seventeen hours after his de facto apprehension. During that time the applicant was subjected to inhuman and degrading treatment (see paragraph 164 above), and signed a confession statement (see paragraph 8 above). The Court further observes that the delay in recording the applicant’s arrest was found by the trial court to have violated the domestic law provisions and, in consequence, the applicant’s right to liberty (see paragraph 24 above).\n\n192.  The Court also notes that the applicant appears to have been subjected to administrative detention to ensure his availability as a criminal suspect without, however, the requisite safeguards for his procedural rights as a suspect (see paragraph 7 above). The Court reiterates its position that such conduct on the part of investigating authorities is incompatible with the principle of legal certainty and protection from arbitrary detention under Article 5 of the Convention (see Fortalnov and Others, cited above, § 83, with further references).\n\n193.  Based on the above, the Court concludes that there has been a violation of Article 5 § 1 of the Convention on account of Mr Koval’s unrecorded detention.\n\nArticle 5 § 5 of the Convention\n\n194.  The Government submitted that the applicant had had an enforceable right to compensation and had used the procedure provided for that purpose in the domestic law.\n\n195.  The Court reiterates that compensation for detention imposed in breach of the provisions of Article 5 must be not only theoretically available but also accessible in practice to the individual concerned (see Abashev v. Russia, no. 9096/09, § 39, 27 June 2013, with further references).\n\n196.  In the present case the domestic courts dismissed the applicant’s civil claim for compensation for non-pecuniary damage for his unrecorded detention by referring to the applicant’s criminal conviction and the deduction of the period of unrecorded detention from his prison term. The domestic courts concluded that the applicant’s right had thus been restored, and held that the applicant had failed to demonstrate the unlawfulness of the domestic authorities’ actions as was required by Articles 1069 and 1070 of the Russian Civil Code.\n\n197.  The Court has already assessed in other cases the manner in which Articles 1069 and 1070 of the Russian Civil Code were applied by the Russian courts, precluding the applicants in those cases from obtaining compensation for the detention that was imposed in breach of Article 5 § 1 of the Convention (see, inter alia, Makhmudov v. Russia, no. 35082/04, § 104, 26 July 2007, and Abashev, cited above, § 42). The Court also observes that Russian law does not provide for State liability for detention which was unrecorded or unacknowledged in any procedural form (see Ivan Kuzmin v. Russia, no. 30271/03, § 79, 25 November 2010).\n\n198.  Therefore, the applicant did not have an enforceable right to compensation as is required under Article 5 § 5 of the Convention. There has accordingly been a violation of this provision in respect of Mr Koval.\n\nOTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW\n\n199.  Mr Piskunov also raised other complaints under Articles 3, 8 and 13 of the Convention.\n\nAlleged violations of Articles 3 and 13 of the Convention on account of systematic handcuffing in a secure environment\n\n200.  Mr Piskunov complained that his systematic handcuffing during his detention in IZ-2 Irkutsk Region from 16 March to 24 May 2017 amounted to a violation of Article 3 of the Convention. He also complained under Article 13 of the Convention about the lack of effective remedies in respect of his complaint under Article 3 of the Convention. The relevant parts of those provisions read as follows:\n\nArticle 3\n\n“No one shall be subjected to torture or to inhuman or degrading treatment ...”\n\nArticle 13\n\n“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority ...”\n\n201.  The Government submitted that the applicant had not been handcuffed at all during his detention in IZ-2 Irkutsk Region, and that therefore his complaint under Article 3 of the Convention was manifestly ill-founded. They also submitted that, in consequence, his complaint under Article 13 of the Convention was to be dismissed as incompatible ratione materiae with the provisions of the Convention.\n\n202.  The Court observes, and it is not disputed by the parties, that the Bratsk Town Court of the Irkutsk Region found in its decision of 19 January 2018 that the applicant’s routine handcuffing during his detention in IZ-2 Irkutsk Region had been lawful and based on his life prisoner status and the decision of the head of that remand prison (see paragraph 65 above). Therefore, the Court finds it established that the applicant was systematically handcuffed during his detention in IZ-2 Irkutsk Region.\n\n203.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other ground. Accordingly, it must be declared admissible.\n\n204.  The Court further notes that the applicant was placed under surveillance only on 27 March 2017, but he was handcuffed from 16 March 2017 when he arrived at IK-2 Irkutsk Region (see paragraphs 6263 above). Therefore, it can be assumed that for at least eleven days the handcuffing was not based on any individual security concerns, but on his status as a life prisoner. The decision to place the applicant under surveillance was taken once and there was no reassessment of the applicant’s conduct during the period complained of. The Court also notes that there is no evidence in the case file of any actual risk assessment conducted by either the remand prison authorities or the town court which would justify the routine use of handcuffs on the applicant for an extended period of time.\n\n205.  The Court has already held in a similar case that systematic handcuffing of prisoners in a secure environment without sufficient justification could be regarded as degrading treatment (see Shlykov and Others v. Russia, nos. 78638/11 and 3 others, § 93, 19 January 2021).\n\n206.  The Court sees no reason to depart from that finding in the present case, and concludes that there has been a violation of Article 3 of the Convention on account of Mr Piskunov’s systematic handcuffing without sufficient justification during his detention in IZ-2 Irkutsk Region from 16 March to 24 May 2017. In the light of this finding, the Court considers that it is not necessary to examine whether there has also been a violation of Article 13 of the Convention.\n\nAlleged violations of Articles 3 and 13 of the Convention on account of handcuffing during transportation\n\n207.  Mr Piskunov also complained that his handcuffing during transportation between IZ-1 Yamalo-Nenetskiy Region and the Labytnangi Town Court of the Yamalo-Nenetskiy Region on multiple occasions from 21 May to 2 July 2019 amounted to a violation under Article 3 of the Convention. He also complained under Article 13 of the Convention about the lack of effective remedies in respect of his complaint under Article 3 of the Convention.\n\n208.  The Government submitted that the applicant’s handcuffing during transportation between the remand prison and the town court had been lawful, based on the decision of the administrative commission of the remand prison, and warranted by security considerations. They also submitted that, in consequence, his complaint under Article 13 of the Convention in that respect was to be dismissed as incompatible ratione materiae with the provisions of the Convention.\n\n209.  The Court observes, and it is not disputed by the parties, that during his detention in IZ-1 Yamalo-Nenetskiy Region the applicant was handcuffed only on the dates of the hearings at the town court and that the period of handcuffing on each occasion was limited to the time it took to transport the applicant between the remand prison and the town court.\n\n210.  The Court has previously found that the use of handcuffs could be warranted on specific occasions, such as transfers outside prison, and that such handcuffing per se, in the absence of any adverse effects on the applicant’s health, use of force, or public exposure, exceeding what could be reasonably considered necessary in the circumstances, does not attain the minimum level of severity required by Article 3 of the Convention (see as a recent example Rudakov v. Russia (dec.) [Committee], no. 70711/12, §§ 1820, 30 March 2021, with further references).\n\n211.  The Court sees no reason to depart from that finding in the present case and concludes that this part of the application discloses no appearance of a violation of Article 3 of the Convention. It follows that this part must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.\n\n212.  Accordingly, as the applicant did not have an “arguable claim” of a violation of a substantive Convention provision, Article 13 of the Convention is inapplicable to this part of the application. It follows that the complaint under Article 13 of the Convention must also be rejected pursuant to Article 34 §§ 3 (a) and 4 of the Convention.\n\nAlleged violations of Articles 3 and 13 of the Convention on account of being held in a metal cage during the court hearings\n\n213.  Mr Piskunov also complained that he had been held in a metal cage in the courtroom during the hearings held at the Labytnangi Town Court of the Yamalo-Nenetskiy Region on multiple occasions from 21 May to 2 July 2019, and alleged that such confinement amounted to degrading treatment prohibited by Article 3 of the Convention. He also complained under Article 13 of the Convention about the lack of effective remedies in respect of his complaint under Article 3 of the Convention.\n\n214.  The Government submitted that the Court should examine this part of the application in accordance with its established case-law.\n\n215.  The Court observes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other ground. Accordingly, it must be declared admissible.\n\n216.  In the leading cases of Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, ECHR 2014 (extracts), and Vorontsov and Others v. Russia, no. 59655/14 and 2 others, 31 January 2017, the Court already dealt with the issue of the use of metal cages in courtrooms and found that such a practice constituted in itself an affront to human dignity and amounted to degrading treatment prohibited by Article 3 of the Convention.\n\n217.  Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion in the present case. There has accordingly been a violation of Article 3 of the Convention on account of the applicants’ confinement in a metal cage before the Labytnangi Town Court of the Yamalo-Nenetskiy Region on multiple occasions from 21 May to 2 July 2019.\n\n218.  The Court further considers that in view of its reasoning and findings under Article 3 of the Convention, there is no need to deal separately with the applicant’s complaint under Article 13 of the Convention.\n\nAlleged violation of Article 8 of the Convention on account of permanent video surveillance\n\n219.  Mr Piskunov also complained that the permanent CCTV camera surveillance of his cells during his detention in IZ-1 Yamalo-Nenetskiy Region, carried out mostly by female guards, had breached his right to respect for his private life as guaranteed by Article 8 of the Convention, which reads as follows:\n\n“1.  Everyone has the right to respect for his private ... life ...\n\n2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”\n\n220.  The Government informed the Court that it did not wish to submit any observations in respect of this complaint.\n\n221.  The Court observes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other ground. Accordingly, it must be declared admissible.\n\n222.  The Court has already established, in an earlier case against Russia, that the national legal framework governing the placement of detainees under permanent video surveillance in penal institutions falls short of the standards set out in Article 8 of the Convention and does not afford appropriate protection against arbitrary interference by the authorities with the detainees’ right to respect for their private life (see Gorlov and Others v. Russia, nos. 27057/06 and 2 others, §§ 97-98, 2 July 2019).\n\n223.  Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion in the present case. It considers, regard being had to the case-law cited above, that in the instant case the placement of the applicant under permanent video surveillance when confined to his cells in IZ-1 YamaloNenetskiy Region was not “in accordance with law”.\n\n224.  This complaint, therefore, discloses a breach of Article 8 of the Convention.\n\nAPPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n225.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nDamage\n\n226.  The applicants alleged that they had sustained very serious nonpecuniary damage and claimed compensation in the amounts indicated in the appended table.\n\n227.  Mr Piskunov also claimed 340,000 euros (EUR) and EUR 15,500 in respect of pecuniary damage. These amounts represented the applicant’s estimate of the income he had lost as a result of his criminal conviction and imprisonment, and of his living expenses incurred during his detention.\n\n228.  Mr Vorotnikov also claimed 20,000 Russian roubles (RUB) and RUB 100,000 in respect of pecuniary damage. These amounts represented the cost of his clothes which were allegedly damaged during his apprehension by the police officers, and of his medical expenses allegedly incurred for treatment of his injuries sustained on 20 April 2011. The applicant did not submit any documents or receipts in support of his claim in respect of pecuniary damage.\n\n229.  In respect of Mr Koval’s, Mr Piskunov’s, Mr Tyugulev’s, Mr Masalgin’s and Mr Vorotnikov’s claims, the Government submitted that the Court should apply Article 41 of the Convention in accordance with its established case-law. In respect of Mr Yanchenko’s claim, the Government submitted that the finding of a violation would constitute in itself sufficient just satisfaction for any non-pecuniary damage suffered by the applicant.\n\n230.  In respect of Mr Piskunov’s claim for pecuniary damage, the Government submitted that it was excessive and not supported by any documents.\n\n231.  Having regard to the circumstances of the present case and the nature of the violations found, the Court considers it reasonable to award the applicants the amounts indicated in the appended table in respect of nonpecuniary damage, plus any tax that may be chargeable on those amounts.\n\n232.  As for Mr Piskunov’s claim in respect of pecuniary damage, the Court does not discern any causal link between the violations found and the pecuniary damage alleged. It therefore rejects this part of Mr Piskunov’s claim.\n\n233.  As for Mr Vorotnikov’s claim in respect of pecuniary damage, the Court observes that the applicant did not submit any evidence in support of his claim. The Court therefore dismisses this part of Mr Vorotnikov’s claim as unsubstantiated.\n\nCosts and expenses\n\n234.  Mr Koval, Mr Yanchenko and Mr Vorotnikov claimed compensation in respect of their costs and expenses incurred in the proceedings before the Court. Mr Koval, Mr Yanchenko, Mr Piskunov and Mr Vorotnikov also claimed compensation in respect of their costs and expenses incurred in the domestic proceedings. The respective amounts are indicated in the appended table.\n\n235.  The Court granted legal aid to Mr Koval and Mr Yanchenko amounting to EUR 850 each in respect of their costs and expenses. They did not provide any receipts or legal aid agreements in support of the remaining part of their claims in respect of costs and expenses incurred in the proceedings before the Court. Mr Koval and Mr Yanchenko also claimed EUR 200 each in respect of their costs and expenses incurred in the domestic proceedings, for which they submitted copies of the respective domestic court’s decisions.\n\n236.  Mr Piskunov claimed EUR 1,500 in respect of his costs and expenses incurred in the domestic proceedings, for which he submitted copies of the respective domestic court’s decisions.\n\n237.  Mr Vorotnikov claimed EUR 50,000 in respect of his costs and expenses incurred both in the domestic proceedings and in the proceedings before the Court. He submitted copies of three legal aid agreements for a total sum of RUB 2,000,000 (approximately EUR 48,870).\n\n238.  As for Mr Koval’s, Mr Yanchenko’s and Mr Piskunov’s claims in respect of costs and expenses, the Government submitted that they were excessive and not supported by any documents. In Mr Vorotnikov’s case the Government suggested that the Court should apply Article 41 of the Convention in accordance with its established case-law.\n\n239.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum (see McCann and Others v. the United Kingdom, 27 September 1995, § 220, Series A no. 324). In the present case, regard being had to the documents in its possession, the Court considers it reasonable to award Mr Koval, Mr Yanchenko, Mr Piskunov and Mr Vorotnikov the amounts indicated in the appended table, plus any tax that may be chargeable to the applicants.\n\nDefault interest\n\n240.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\nDecides to join the applications;\n\nDeclares the complaints of Mr Piskunov about his handcuffing during transportation and the lack of effective remedies in that respect under Articles 3 and 13 of the Convention inadmissible;\n\nDismisses the Government’s preliminary objections in the case of Mr Koval;\n\nDeclares the remainder of the applications admissible;\n\nHolds that there has been a violation of Article 3 of the Convention under its substantive limb in that Mr Tyugulev was subjected to torture in police custody and that Mr Koval, Mr Yanchenko, Mr Piskunov, Mr Masalgin and Mr Vorotnikov were subjected to inhuman and degrading treatment, and a violation of Article 3 of the Convention under its procedural limb in respect of all the applicants in that no effective investigation was carried out by the domestic authorities into their complaints;\n\nHolds that there has been a violation of Article 6 § 1 of the Convention in respect of Mr Koval, Mr Yanchenko, Mr Piskunov and Mr Tyugulev;\n\nHolds that there has been a violation of Article 5 §§ 1 and 5 of the Convention in respect of Mr Koval;\n\nHolds that there has been a violation of Article 3 of the Convention in respect of Mr Piskunov on account of his routine handcuffing in a secure environment;\n\nHolds that there has been a violation of Article 3 of the Convention in respect of Mr Piskunov on account of his confinement in a metal cage during his court hearings;\n\nHolds that there has been a violation of Article 8 of the Convention in respect of Mr Piskunov on account of the permanent video surveillance of his cells at the remand prison;\n\nHolds that there is no need to examine the applicants’ complaints under Article 13 of the Convention;\n\nHolds\n\nthat the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, plus any tax that may be chargeable to the applicants, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;\n\nthat from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts indicated in the appended table at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\nDismisses the remainder of the applicants’ claims for just satisfaction.\n\nDone in English, and notified in writing on 5 October 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.\n\nAPPENDIX\n\ntable-0","title":""}
{"_id":"passage_140","text":"PROCEDURE\n\n1.  The case originated in an application (no. 6433/18) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Vasyl Mykolayovych Sokolovskyy (“the applicant”), on 30 January 2018.\n\n2.  The applicant was represented by Ms O.V. Shapoval, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna from the Ministry of Justice.\n\n3.  The applicant complained that he had not received adequate medical treatment in detention and that he had not had an effective domestic remedy for the above complaint. He further complained that the authorities had failed to give relevant and sufficient reasons to justify his pre-trial detention, that there had been no effective procedure to challenge the lawfulness of his detention, and that he had had no enforceable right to compensation for his allegedly arbitrary detention.\n\n4.  On 2 February 2018 the applicant applied to the Court for an interim measure under Rule 39 of the Rules of Court, so that he could be transferred to a specialist medical facility for further neurological treatment. The Court rejected that request on 20 February 2018. The application was granted priority under Rule 41 of the Rules of Court.\n\n5.  On 19 April 2018 notice of the above complaints was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n6.  The applicant was born in 1976 and is detained in Kyiv.\n\nA.  Criminal proceedings against the applicant\n\n7.  On 1 December 2016 the applicant was arrested by the police on suspicion of human trafficking.\n\n8.  On 2 December 2016 the Babushkinskyy District Court of Dnipro (“the District Court”) ordered his detention. The relevant decision stated that he might otherwise abscond or hinder the investigation. The court further stated that the applicant, while at liberty, might influence witnesses and communicate with others online. No further details were provided by the court in that regard. The court also set bail of 2,000,000 Ukrainian hryvnias (UAH) as an alternative measure. On 5 December 2016 the applicant was released after payment of the bail.\n\n9.  According to the applicant, upon his release he was immediately arrested by the police on similar charges (new episodes of human trafficking) within other criminal proceedings.\n\n10.  On 6 December 2016 the District Court ordered his detention. The relevant decision stated that he might otherwise abscond or hinder the investigation. No further details were provided by the court in that regard. The court also set bail of UAH 3,000,000 as an alternative measure. On 23 December 2016 that decision was upheld on appeal.\n\n11.  On 26 January and 22 March 2017 the District Court extended the applicant’s detention until 26 March and 20 May 2017 respectively, retaining the ability for him to be released on bail. The District Court gave similar reasons for his continued detention as those in its decision of 6 December 2016.\n\n12.  On 4 May 2017 the criminal case against the applicant was forwarded to the District Court for trial.\n\n13.  On 13 May 2017, in the course of the preparatory hearing, the District Court extended the applicant’s detention until 10 July 2017. The decision stated that he had no permanent place of residence, had been accused of a serious crime, might otherwise abscond or hinder the investigation by influencing witnesses or destroying or concealing evidence, or continue with his criminal activity. No further details were provided by the court in that regard.\n\n14.  On 1 June 2017 the Higher Specialised Court for Civil and Criminal Matters changed the court competent to hear the applicant’s case to the Solomyanskyy District Court of Kyiv (“the trial court”).\n\n15.  On 26 June 2017 the trial court resumed the preparatory hearing and extended the applicant’s detention until 24 August 2017. The court gave similar reasons for the applicant’s continued detention as those given by the District Court in its decision of 13 May 2017, without providing any further details.\n\n16.  On 7 August, 3 October and 30 November 2017 and 24 January 2018 the trial court extended the applicant’s detention for the respective periods, the most recent period being set to expire on 24 March 2018. The trial court reiterated the reasons for the applicant’s continued detention given previously, without providing any further details. In the decision of 24 January 2018 it dismissed a request for release which the applicant had lodged that day. No reasons were provided for that decision.\n\n17.  According to the available information, the applicant is being held in detention, while the case against him is still pending before the trial court.\n\nB.  Medical care provided to the applicant\n\n1.  The applicant’s state of health prior to his arrest\n\n18.  According to the applicant, he has a long-term heart condition following a heart attack in 2011. In 2011 and 2016 he underwent stenting treatment.\n\n19.  On 30 November 2016 he was taken to hospital by ambulance with severe chest pain. He was diagnosed with ischemic heart disease and unstable angina.\n\n20.  On 1 December 2016 he was discharged from hospital as his state of health had improved.\n\n2.  Medical care provided to the applicant while in detention\n\n21.  Between 1 December 2016 and 24 June 2017 the applicant was detained in the Dnipro Pre-Trial Detention Centre (“the SIZO”). He did not submit any information about the medical treatment he received during that period.\n\n22.  On 24 June 2017 the applicant was transferred to the Kyiv SIZO.\n\n23.  According to the medical examination carried out that day, the applicant was diagnosed with ischemic heart disease, artherosclerotic and postinfarction cardiosclerosis, atherosclerosis of aorta (transmural myocardial infarction 2011), class III exertional angina (pectoris) and heart insufficiency. He was given recommendations regarding his further treatment. The parties did not provide the Court with details of the recommended treatment.\n\n24.  On 26 June 2017 the penal authorities informed the applicant’s defence lawyer that the SIZO had no cardiologist on its staff.\n\n25.  On 4 September 2017 the applicant consulted a SIZO surgeon.\n\n26.  From 27 to 30 September 2017 the applicant underwent treatment at the Stragesko Cardiology Institute. According to the relevant medical records, the applicant was diagnosed with ischemic heart disease, class III exertional angina (pectoris) and stage 3 hypertension. He was prescribed medication and informed that he required monitoring by a cardiologist. According to the Government, the recommended treatment could be provided to the applicant within the SIZO.\n\n27.  On 19 January 2018 the applicant consulted a cardiologist at the SIZO who recommended him inpatient treatment at a specialist cardiology facility. His overall condition was described as “moderately serious”. According to the Government, the medical treatment prescribed to him could be provided within the SIZO.\n\n28.  On 22 January 2018 a forensic expert from the Kyiv City Clinical Bureau of Forensic Examinations issued a report, at the request of the applicant’s defence lawyer, stating that the applicant had, inter alia, the following chronic illnesses: stage 3 hypertension, heart failure, class III exertional angina (pectoris), ischemic heart disease, post-infarction cardiosclerosis, and a post-stent condition. The expert recommended, inter alia, that he be given ongoing medical treatment under the care of a doctor and a coronary intervention. He concluded that the applicant’s health would be put at a serious and potentially fatal risk if he were not provided with adequate inpatient treatment outside the SIZO.\n\n29.  On 7 February 2018 the SIZO authorities replied to the request by the applicant’s defence lawyer stating, inter alia, that the SIZO had no cardiologist on its staff.\n\n30.  On 11, 18, 19, 20 and 25 February 2018 the applicant complained to the SIZO authorities about the deterioration of his state of health and requested medical treatment outside the SIZO. In particular, he stated that he had been suffering pain in his chest and dizziness, and had lost consciousness a number of times. It appears that he did not receive any response to his requests.\n\n31.  According to a certificate issued by the SIZO on 12 February 2018, the applicant remained under the care of the SIZO medical staff and did not require inpatient medical treatment. It was indicated in the certificate that the SIZO had no cardiologist on its staff.\n\n32.  On 22 February 2018 the SIZO informed the prosecution authorities and the trial court about the applicant’s state of health. The SIZO stated that the recommendations concerning his monitoring by a cardiologist and further treatment at the specialist cardiology facility could not be implemented by the SIZO owing to the absence of a cardiologist on its staff.\n\n33.  On 27 February 2018 the SIZO governor informed the applicant’s defence lawyer that the applicant was receiving symptomatic treatment. It was mentioned that the provision of specialist and high quality medical treatment was not possible at the SIZO, and that the applicant’s further detention was to be considered by the trial court.\n\n34.  On 28 February 2018 the State-run facility “The Heart Institute” issued a consultative opinion, recommending that the applicant undergo inpatient cardiology treatment.\n\n35.  On 1 March 2018 the SIZO again informed the applicant’s defence lawyer, with reference to previous medical opinions, that the applicant required ongoing monitoring by a cardiologist but that this was not possible at the SIZO because there was no cardiologist on its staff.\n\n36.  On 6 March 2018 a forensic expert from the Kyiv City Clinical Bureau of Forensic Examinations issued a report, at the request of the applicant’s defence lawyer, reiterating the conclusions given in the previous report of 22 January 2018 (see paragraph 28 above).\n\n37.  On 11 June 2018 the SIZO informed the applicant’s defence lawyer about her client’s state of health, reiterating the same information given on 1 March 2018 (see paragraph 35 above).\n\n38.  The parties did not inform the Court of the treatment provided to the applicant after June 2018.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION\n\n39.  The applicant complained that he had not been provided with adequate medical treatment and care while in detention in the SIZO and that he had not had an effective domestic remedy for the above complaint. He relied on Articles 3 and 13 of the Convention, which read as follows:\n\n“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”\n\n“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”\n\nA.  Admissibility\n\n40.  The Government submitted that the applicant had failed to exhaust effective domestic remedies in respect of his complaint of inadequate medical treatment. They considered that he should have lodged his health complaints with the prosecutor’s office and the domestic courts.\n\n41.  The applicant submitted that he had regularly complained about his health issues to the SIZO and the trial court, but to no avail.\n\n42.  The Court considers that that argument is closely linked to the substance of the applicant’s complaints concerning the lack of domestic remedies for his complaint of inadequate medical treatment. It must therefore be joined to the merits.\n\n43.  The Court further notes that the above complaints are neither manifestly illfounded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. They must therefore be declared admissible.\n\nB.  Merits\n\n1.  Exhaustion of domestic remedies and alleged violation of Article 13 of the Convention\n\n44.   The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 of the Convention obliges those seeking to bring a case against the State before the Court to first use the remedies provided by the national legal system. Consequently, States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system. The rule is based on the assumption, reflected in Article 13 of the Convention, with which it has close affinity, that there is an effective remedy available to deal with the substance of an “arguable complaint” under the Convention and to provide appropriate relief. Moreover, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000XI, and Handyside v. the United Kingdom, 7 December 1976, § 48, Series A no. 24).\n\n45.   The Court recalls that it has already found a violation of Article 13 in cases against Ukraine on the grounds that there were no effective domestic remedies in respect of complaints concerning conditions of detention and a lack of medical treatment (see, among other authorities, Melnik v. Ukraine, no. 72286/01, §§ 113-16, 28 March 2006; Dvoynykh v. Ukraine, no. 72277/01, § 72, 12 October 2006; Ukhan v. Ukraine, no. 30628/02, §§ 91-92, 18 December 2008; Iglin v. Ukraine, no. 39908/05, § 77, 12 January 2012; and Barilo v. Ukraine, no. 9607/06, §§ 104-05, 16 May 2013). With reference to the above-mentioned case-law and the circumstances of the present case, the Court finds that the Government have not shown that the applicant had in practice an opportunity to obtain effective remedies for his complaint, that is to say, remedies which could have prevented the violations from occurring or continuing, or could have afforded the applicant appropriate redress.\n\n46.  The Court therefore concludes that there has been a violation of Article 13 of the Convention in conjunction with Article 3 of the Convention on account of the lack of an effective and accessible remedy under domestic law for the applicant’s complaint under Article 3 of the Convention, and, consequently, dismisses the Government’s objection as to the applicant’s failure to exhaust domestic remedies.\n\n2.  Alleged violation of Article 3 of the Convention\n\n47.  The applicant complained that he had not received adequate medical treatment for his heart condition. He stated in particular that, according to the medical recommendations, he had required specialist medical care, but had only been given symptomatic treatment at the SIZO medical unit owing to the absence of a cardiologist on its staff.\n\n48.  The Government disagreed, stating that the medical care provided to the applicant had been in full compliance with the requirements of Article 3 of the Convention.\n\n49.  The applicable general principles in respect of medical treatment in detention have been summarised in Hummatov v. Azerbaijan (nos. 9852/03 and 13413/04, §§ 11222, 29 November 2007); Ukhan v. Ukraine (cited above, §§ 7783); Petukhov v. Ukraine (no. 43374/02, §§ 9198, 21 October 2010); and Sergey Antonov v. Ukraine (no. 40512/13, §§ 7075, 22 October 2015).\n\n50.  Turning to the circumstances of the present case, the Court notes at the outset that the medical condition the applicant suffered from (see paragraphs 23, 26 and 28 above) was serious enough to affect his everyday functioning and to even pose a risk to his life. He could therefore have experienced considerable anxiety regarding whether the medical care provided to him was adequate.\n\n51.  The Court further notes that the applicant was recommended inpatient treatment at a specialist cardiology facility a number of times (see paragraphs 27, 28, 34 and 36 above). It appears that that recommendation was never implemented.\n\n52.  In this connection, the Court notes that the authorities acknowledged that the SIZO medical unit was not sufficiently equipped and staffed to address the applicant’s heart condition (see paragraphs 24, 29, 31-33, 35 and 37 above). This indicates that the applicant received merely symptomatic treatment in response to his health problems. It further notes that it has previously established in cases against Ukraine a lack of qualified medical staff and/or equipment capable of adequately addressing applicants’ health needs in detention (see, for example, Yakovenko v. Ukraine, no. 15825/06, §§ 9697, 25 October 2007; Temchenko v. Ukraine, no. 30579/10, § 89, 16 July 2015; and Osipenkov v. Ukraine [Committee], no. 31283/17, § 27, 29 January 2019).\n\n53.  While acknowledging that the applicant received some treatment in detention, the Court cannot subscribe to the Government’s argument that the level of medical care provided to him was sufficient. The documentary information provided by the Government in support of their observations refers to the applicant’s illnesses and doctors’ recommendations for treatment. It however does not refute the applicant’s grievances about the quality of treatment he received in detention (see paragraph 47 above).\n\n54.  The foregoing considerations are sufficient to enable the Court to conclude that the State failed to comply with its obligations under Article 3 of the Convention. There has accordingly been a violation of that provision.\n\nII.  ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION\n\n55.  The applicant complained that the domestic courts’ decisions ordering his detention had been arbitrary and had lacked reasoning. He further complained that the trial court had failed to properly examine his request for release lodged on 24 January 2018. Lastly, he complained that he had had no enforceable right to compensation for his allegedly arbitrary detention. He relied on Article 5 §§ 1 (c), 3, 4 and 5 of the Convention.\n\n56.  Being master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018), and having regard to the substance of the applicant’s complaints under Article 5 §§ 1 and 3 concerning the arbitrariness and reasoning of the domestic courts’ decisions ordering his detention, the Court decides to examine them under Article 5 § 3 of the Convention.\n\nThe relevant provisions of Article 5 §§ 3, 4 and 5 of the Convention read as follows:\n\n“3.  Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.\n\n4.  Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.\n\n5.  Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”\n\nA.  Admissibility\n\n57.  The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.\n\nB.  Merits\n\n1.  Article 5 § 3 of the Convention\n\n58.  The applicant submitted that his detention had been unlawful and unjustified, as the courts had repeatedly referred to the same set of grounds for his detention without providing any details in that respect. He further stated that, despite being generally in compliance with domestic law, his continued detention had not been necessary in the circumstances. Lastly, he stressed that the courts had failed to consider alternative preventive measures after the case had been transferred to the trial court.\n\n59.  The Government submitted that the domestic courts had carefully examined the circumstances of the case when deciding to detain the applicant and had provided well-reasoned decisions in compliance with both the domestic legislation and the Convention.\n\n60.  The applicable general principles are set out in Buzadji v. the Republic of Moldova ([GC], no. 23755/07, §§ 84-91 and 102, 5 July 2016).\n\n61.  The Court observes that there is no dispute between the parties that the applicant has been in uninterrupted detention since his arrest on 1 December 2016 (see paragraph 7 above).\n\n62.  The Court further observes that, contrary to the Government’s assertion, the District Court’s decisions of 2 and 6 December 2016 did not contain clear and precise reasons for the applicant’s detention but simply referred to the investigator’s submissions, without any examination of the plausibility of the grounds invoked by the latter (see paragraphs 8 and 10 above). As regards the court’s reference to the risk of the applicant’s potential influence over witnesses and communication with others online if at liberty, the Court wonders how the existence of that risk correlates with the applicant’s ability to be released on bail (idem).\n\n63.  Next, the Court observes that the courts’ reasoning did not evolve with the passage of time. In their further decisions to extend the applicant’s detention, namely those taken on 26 January, 22 March, 13 May, 26 June, 7 August, 3 October and 30 November 2017 and 24 January 2018, the courts reiterated the same set of grounds, namely the seriousness of the charges against the applicant and the risk that he might abscond and hinder the investigation by influencing witnesses or destroying or concealing evidence, or continue with his criminal activity. The Court notes that the decisions ordering the applicant’s detention were couched in general terms and contained repetitive phrases. They do not suggest that the courts made an appropriate assessment of the facts relevant to the question of whether such a preventive measure was necessary in the circumstances at the relevant stage of the proceedings.\n\n64.  Furthermore, with the exception of the decisions of 26 January and 22 March 2017 (see paragraph 11 above), the domestic authorities did not consider any other preventive measures as an alternative to detention (see Osypenko v. Ukraine, no. 4634/04, §§ 77 and 79, 9 November 2010).\n\n65.  The Court has often found a violation of Article 5 § 3 of the Convention in cases against Ukraine on the basis that the domestic courts referred to the same set of grounds, if there were any, throughout the period of the applicant’s detention (see, for example, Kharchenko v. Ukraine, no. 40107/02, §§ 80-81 and 99, 10 February 2011, and Ignatov v. Ukraine, no. 40583/15, § 41, 15 December 2016).\n\n66.  Having regard to the above, the Court considers that by failing to address the specific facts of the applicant’s situation and by relying essentially and routinely on the seriousness of the charges against him, the authorities extended the applicant’s detention pending trial on grounds which cannot be regarded as “sufficient” and “relevant”.\n\n67.  There has accordingly been a violation of Article 5 § 3 of the Convention.\n\n2.  Article 5 § 4 of the Convention\n\n68.  The applicant complained that the trial court had failed to properly examine his request for release lodged on 24 January 2018.\n\n69.  The Government argued that the applicant had had at his disposal an effective procedure to challenge the lawfulness of his detention.\n\n70.  The Court observes that the applicant’s grievances were focused on the trial court’s failure to give relevant reasons in its decision of 24 January 2018 when examining in the same proceedings the prosecutor’s request to extend his detention and his request for release. In this connection, the Court notes that it has already examined this issue under Article 5 § 3 of the Convention (see paragraphs 62-67 above). It sees no need to deal with the same point under Article 5 § 4 of the Convention as well (see, mutatis mutandis, Ignatenco v. Moldova, no. 36988/07, § 91, 8 February 2011, and Khodorkovskiy and Lebedev v. Russia, nos. 11082/06 and , § 525, 25 July 2013). Accordingly, no separate examination of the applicant’s complaint under Article 5 § 4 of the Convention is required.\n\n3.  Article 5 § 5 of the Convention\n\n71.  The Court observes that the applicant’s complaint in this regard is similar to the complaints examined by the Court in a number of other cases against Ukraine (see, as the most recent example, Sinkova v. Ukraine, no. 39496/11, §§ 79-84, 27 February 2018). The Court concludes that he did not have an enforceable right to compensation for his unlawful detention, as required by Article 5 § 5 of the Convention. There has therefore been a violation of that provision.\n\nIII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n72.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n73.  The applicant claimed 2,000,000 Ukrainian hryvnias (UAH) (65,150 euros (EUR)), representing the amount which he paid as bail, and UAH 11,972.87 (EUR 390) for the expenses incurred for his medication. He further claimed EUR 10,000 in respect of non-pecuniary damage.\n\n74.  The Government considered the claims unsubstantiated and excessive.\n\n75.  The Court finds that there is no causal link between the payment of bail and the violation alleged; it therefore rejects the above claim. As to the applicant’s claim in respect of medical expenses, the Court finds it unsubstantiated. On the other hand, it awards him EUR 10,000, the full amount sought in respect of nonpecuniary damage, plus any tax that may be chargeable.\n\nB.  Costs and expenses\n\n76.  The applicant also claimed EUR 8,000 for the legal costs incurred before the Court. He asked that they be paid directly into his representative’s bank account. He also claimed EUR 50 for administrative expenses.\n\n77.  The Government considered the amount claimed unsubstantiated.\n\n78.  Regard being had to the documents in its possession and to its caselaw, the Court awards EUR 1,000 under this head. This amount is to be paid directly into the bank account of the applicant’s representative, Ms O.V. Shapoval, as requested by the applicant (see, for example, Khlaifia and Others v. Italy [GC], no. 16483/12, § 288, 15 December 2016).\n\nC.  Default interest\n\n79.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\n1.  Joins to the merits the Government’s objection concerning the non-exhaustion of domestic remedies in respect of the applicant’s complaint of the lack of adequate medical care in detention and rejects this objection after an examination of the merits;\n\n2.  Declares the applicant’s complaints under Articles 3 and 13 of the Convention concerning the lack of adequate medical care in detention and the lack of an effective domestic remedy for the above complaint, and his complaints under Article 5 §§ 3, 4, and 5 of the Convention admissible;\n\n3.  Holds that there has been a violation of Article 3 of the Convention;\n\n4.  Holds that there has been a violation of Article 13 of the Convention;\n\n5.  Holds that there has been a violation of Article 5 § 3 of the Convention;\n\n6.  Holds that there has been a violation of Article 5 § 5 of the Convention;\n\n7.  Holds that there is no need to examine separately the complaint under Article 5 § 4 of the Convention;\n\n8.  Holds\n\n(a)  that the respondent State is to pay, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n9.  Dismisses the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 4 July 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_228","text":"PROCEDURE\n\n1.  The case originated in an application (no. 30452/96) against the  lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Ms Yüksel Takak (“the applicant”), on 15 November 1995.\n\n2.  The applicant was represented by Mr İ. Kavak, a lawyer practising in . The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Convention institutions.\n\n3.  The applicant alleged, in particular, that she was denied a fair hearing on account of the presence of a military judge on the bench of the Izmir State Security Court which tried and convicted her and the limited jurisdiction of this court. She further alleged that her conviction had been based on her statements which she had withdrawn and that she had not been allowed to examine a witness against her.\n\n4.  The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).\n\n5.  The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.\n\n6.  By a decision of 18 May 1999 the Court declared the application admissible.\n\n7.  On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Third Section (Rule 52 § 1).\n\n8.  The applicant and the Government each filed observations on the merits (Rule 59 § 1).\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n9.  The applicant was born in 1966 and lives in .\n\n10.  On 11 March 1994 the applicant was taken into custody by the officers from the Izmir Security Directorate Anti-Terror branch on suspicion of aiding and abetting an illegal terrorist organisation, the PKK.\n\n11.  On 17 March 1994 the applicant was brought before the judge at the . Before the court she pleaded not guilty and maintained that she did not accept the statements that she had made at the Security Directorate. She further denied the testimony of a witness, A.A., against her. Subsequently, the court ordered her release on account of insufficient evidence to remand her in custody.\n\n12.  On 7 April 1994 the public prosecutor at the  filed an indictment with the court charging the applicant under Article 169 of the Criminal Code and Article 5 of Law no. 3713 (the Prevention of Terrorism Act 1991 as amended) with aiding and abetting the PKK.\n\n13.  On 24 November 1994 the  convicted the applicant as charged and sentenced her to three years and nine months' imprisonment. She was further debarred from public service for three years. The court based its judgment on the following evidence: some ammunition found by the police, various weapons and the ballistics reports confirming the applicant's use thereof, invoices, a notebook used for recording expenditures of the PKK, photos of the applicant taken with some PKK militants, the statements made by the applicant at the Security Directorate, the statements made by S.A., A.A., M.T. and F.A. at the Security Directorate, the Public Prosecutor's office and before the court and finally the testimonies of T.T., N.F., A.O., H.K. and B.O., who were being tried by the same court for charges with other offences.\n\n14.  On 25 September 1995 the Court of Cassation upheld the 's judgment of 24 November 1994.\n\n15.  On 1 November 1995 the  chief public prosecutor suspended the execution of the applicant's sentence until 28 April 1996 as she had given birth.\n\nII.  RELEVANT DOMESTIC LAW AND PRACTICE\n\n16.  The Court refers to the overview of the domestic law derived from previous submissions in other cases, in particular Özel v. Turkey (no. 42739/98, §§ 20-21, 7 November 2002) and Gençel v. Turkey (no. 53431/99, §§ 11-12, 23 October 2003).\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION\n\n17.  The applicant complains under Article 6 § 1 of the Convention that she was denied a fair hearing by an independent and impartial tribunal on account of the presence of a military judge on the bench of the Izmir State Security Court which tried and convicted her. She further complains under the same heading that the  had limited jurisdiction and that it based its judgment on statements made by her which she had withdrawn. She finally submits under Article 6 § 3 (d) of the Convention that she was denied the right to examine one of the witnesses against her.\n\n18.  The Court notes that it examined similar cases in the past and found a violation of Article 6 § 1 (see Özel, cited above, §§ 33-34, and Özdemir v. Turkey, no. 59659/00, §§ 35-36, 6 February 2003).\n\n19.  The Court sees no reason to come to a conclusion different from that reached in these cases. It is reasonable that the applicant, who was prosecuted in a  for aiding and abetting an illegal organisation, should have been apprehensive about being tried by a bench which included a regular army officer and member of the Military Legal Service. On that account, she could legitimately fear that the  might allow itself to be unduly influenced by considerations which had nothing to do with the nature of the case. In other words, the applicant's fears as to the State Security Court's lack of independence and impartiality can be regarded as objectively justified (see Incal v. Turkey, judgment of 9 June 1998, Reports of Judgments and Decisions 1998-IV, p. 1573, § 72 in fine).\n\n20.  Accordingly, the Court concludes that there has been a violation of Article 6 § 1.\n\n21.  Having regard to its finding that the applicant's right to a fair hearing by an independent and impartial tribunal has been infringed, the Court considers that it is unnecessary to examine the applicant's other complaints under Article 6 §§ 1 and 3 (d) (see Incal, cited above, § 74, and Çıraklar v. Turkey, judgment of 28 October 1998, Reports 1998-VII, § 45).\n\nII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n22. Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damages\n\n23.  The applicant claimed a total of 225,000 pounds sterling (GBP) for pecuniary and non-pecuniary damage, equivalent to 326,949 euros (EUR).\n\n24.  The Government did not submit any observations on these claims.\n\n25.  Regarding the question of pecuniary damage, the Court considers in the first place that it cannot speculate as to what the outcome of the proceedings before the State Security Court might have been had the violation of the Convention not occurred (see Findlay v. the United Kingdom, judgment of 25 February 1997, Reports 1997-I, § 85). Moreover, the applicant's claim in respect of pecuniary damage was not borne out by any evidence. It is therefore inappropriate to award the applicant compensation for pecuniary damage.\n\n26.  With regard to non-pecuniary damage, the Court considers that the finding of a violation constitutes in itself sufficient compensation for any non-pecuniary damage suffered by the applicant (see Çıraklar, cited above, § 49).\n\n27.  Where the Court finds that an applicant has been convicted by a tribunal which is not independent and impartial within the meaning of Article 6 § 1, it considers that, in principle, the most appropriate form of relief would be to ensure that the applicant is granted in due course a retrial by an independent and impartial tribunal (see Gençel, cited above, § 27).\n\nB.  Costs and expenses\n\n28.  The applicant claimed a total of GBP 38,500, equivalent to EUR 55,944.70, for costs and expenses incurred in the proceedings before the domestic authorities and before the  institutions.\n\n29.  The Government did not make any submissions on these claims.\n\n30.  The Court will make an award in respect of costs and expenses in so far as these were actually and necessarily incurred and were reasonable as to quantum (see, as a recent authority, Sawicka v. Poland, no. 37645/97, § 54, 1 October 2002).\n\n31.  Making its own estimate based on the information available, the Court awards the applicant EUR 3,000 in respect of costs and expenses.\n\nC.  Default interest\n\n32.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Holds that there has been a violation of Article 6 § 1 of the Convention as regards the complaint relating to the independence and impartiality of the ;\n\n2.  Holds that it is not necessary to consider the applicant's other complaints under Article 6 of the Convention;\n\n3.  Holds that this finding of a violation constitutes in itself sufficient just satisfaction for non-pecuniary damage;\n\n4.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 3,000 (three thousand euros) in respect of costs and expenses, plus any tax that may be chargeable;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n5.  Dismisses the remainder of the applicant's claim for just satisfaction.\n\nDone in English, and notified in writing on 1 April 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_250","text":"PROCEDURE\n\n1.  The case originated in an application (no. 16092/05) against  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mrs Kateryna Fedorivna Balandina (“the applicant”), on 20 April 2005.\n\n2.  The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.\n\n3.  On 13 December 2005 the Court decided to communicate the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n4.  The applicant was born in 1945 and lives in Kharkiv.\n\n5.  On 5 May 2000 the Dzerzhynskiy District Court of Kharkiv (Дзержинський районний суд м. Харкова) awarded the applicant 4,489.02 hryvnyas (UAH) against her former employer, the Frunzenskiy District Municipal Renovation Company (Державне комунальне ремонтно-будівельне підприємство з ремонту житлового фонду Фрунзенського району м. Харкова) in salary arrears and other payments.\n\n6.  This judgment was not appealed against, became final, and the enforcement proceedings were instituted to collect the judgment debt.\n\n7.  On 16 June 2000 the Kharkiv City Council (Харківська міська рада) ordered liquidation of the debtor-company and on 22 September 2000 the enforcement writ was transferred to the liquidation commission.\n\n8.  On various occasions the applicant complained to the State authorities about the failure of the debtor-company to pay her the judgment debt and was informed that the collection of the debt was not possible on account of the debtor-company's lack of funds. The judgment remains unenforced to the present date.\n\nII.  RELEVANT DOMESTIC LAW\n\n9.  The relevant domestic law is set out in the judgment of 27 July 2004 in the case of Romashov v. Ukraine (no. 67534/01, §§ 16-19).\n\nTHE LAW\n\nI.  ALLEGED VIOLATIONS OF ARTICLES 6 § 1, 13 AND ARTICLE 1 OF PROTOCOL No. 1\n\n10.  The applicant complained about the State authorities' failure to enforce the judgment of the Dzerzhynskiy District Court of Kharkiv given in her favour. She invoked Articles 6 § 1 and  13 of the Convention and Article 1 of Protocol No. 1, which provide, insofar as relevant, as follows:\n\nArticle 6 § 1\n\n“In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...”\n\nArticle 13\n\n“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”\n\nArticle 1 of Protocol No. 1\n\n“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.\n\nThe preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest ....”\n\nA.  Admissibility\n\n11.  The Government raised objections, contested by the applicant, regarding exhaustion of domestic remedies similar to those already dismissed in a number of the Court's judgments regarding non-enforcement of judgments against the public companies (see e.g. among many others, Sychev v. Ukraine, no. 4773/02, §§ 42-46, 11 October 2005 and Romashov v. Ukraine, cited above, no. 67534/01, §§ 28-32). The Court considers that these objections must be rejected for the same reasons.\n\n12.  The Court concludes that the applicant's complaints raise issues of fact and law under the Convention, the determination of which requires an examination on the merits. The Court finds no ground for declaring them inadmissible. The Court must therefore declare them admissible.\n\nB.  Merits\n\n13.  In their observations on the merits of the applicant's case, the Government contended that there had been no violation of her Convention rights.\n\n14.  The applicant disagreed.\n\n15.  The Court notes that the delay in the enforcement of the judgment given in the applicant's favour has exceeded seven and a half years.\n\n16.  The Court has frequently found violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in cases raising similar issues, where a debtor was a public enterprise (see e.g., Kucherenko v. , no. 27347/02, §§ 26-27, 15 December 2005).\n\n17.  Having examined all the material in its possession, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case.\n\n18.  There has, accordingly, been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.\n\n19.  The Court does not find it necessary in the circumstances to examine under Article 13 of the Convention the same complaint as under Article 6 § 1.\n\nII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n20.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n21.  The applicant claimed the unsettled judgment debt and 10,000 euros (EUR) in respect of non-pecuniary damage.\n\n22.  The Government contested these claims.\n\n23.  The Court finds that the Government should pay the applicant the unsettled judgment debt by way of compensation for pecuniary damage. It further finds that the applicant must have suffered non-pecuniary damage on account of the violations found. Ruling on an equitable basis, the Court awards the applicant EUR 2,000 under this head.\n\nB.  Costs and expenses\n\n24.  The applicant did not submit any claim under this head. The Court therefore makes no award.\n\nC.  Default interest\n\n25.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Declares the application admissible;\n\n2.  Holds that there has been a violation of Article 6 § 1 of the Convention;\n\n3.  Holds that there has been a violation of Article 1 of Protocol No. 1;\n\n4.  Holds that there is no need to examine the complaint under Article 13 of the Convention;\n\n5.  Holds\n\n(a)  that the respondent State is to pay the applicant within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention,\n\n(i)  the unsettled debt still owed to her;\n\n(ii)  the sum of EUR 2,000 (two thousand euros) in respect of non-pecuniary damage, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n6.  Dismisses the remainder of the applicant's claim for just satisfaction.\n\nDone in English, and notified in writing on 6 December 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_201","text":"PROCEDURE\n\n1.  The case originated in an application (no. 34499/06) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Mrs Ilonka Perić (“the applicant”), on 8 August 2006.\n\n2.  The applicant was represented by Mr M. Zrilić, a lawyer practising in . The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik.\n\n3.  On 10 April 2007 the Court decided to communicate the complaint concerning the applicant’s right to a fair trial to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.\n\nTHE FACTS\n\nTHE CIRCUMSTANCES OF THE CASE\n\n4.  The applicant was born in 1919 and lives in Opatija.\n\n5.  On 23 October 2002 the applicant brought a civil action in the Opatija Municipal Court (Općinski sud u Opatiji) against D. K. and J. K., seeking termination of a contract for lifelong maintenance (ugovor o doživotnom uzdržavanju). She enclosed a copy of the contract in question, drawn up on 3 August 1993, and its annex of 30 November 1999. The contract stipulated that the defendants were to care for the applicant until her death in order to acquire all her property post mortem. She also asked that two witnesses, E. P. and Š. T., be heard. The defendants submitted receipts for monthly payments for the applicant’s maintenance and asked that four witnesses be heard.\n\n6.  At the hearing held on 6 February 2003 the Municipal Court heard evidence from the parties and after that, in the presence of the applicant’s counsel, scheduled the next hearing for 17 March 2003. The applicant’s counsel fell ill and had to be hospitalised pending urgent surgery. On 11 March 2003 he sent a fax to the Municipal Court excusing himself from the hearing scheduled for 17 March and asked for an adjournment of the hearing. However, the Municipal Court proceeded with the hearing and heard two witnesses, Lj. M. and Š. M., the parents of one of the defendants. It also scheduled a further hearing for 23 April 2003 and ordered that two other witnesses, also called on behalf of the defendants, be heard. Neither the applicant nor her counsel were notified of the hearing.\n\n7.  The counsel did attend the hearing of 23 April 2003, which he had learned about by chance when at the Opatija Municipal Court on that day for other reasons. The Municipal Court heard two witnesses for the defendants, A. A. and I. P., as scheduled, but refused the proposal of the applicant’s counsel that five other witnesses be heard. The relevant parts of the transcript of the hearing read as follows:\n\n“Counsel for the plaintiff asks that the plaintiff’s neighbours M. C., S. R., V. G., N. I. and N. Z. be heard as witnesses about the circumstances of the applicant’s daily life and the care she has received from them in the past two years and in particular in the period of four months following her release from a hospital, when she was immobile.\n\n...\n\nCounsel for the plaintiff withdraws his request that E. P. be called as a witness since, according to the plaintiff, that person is not able to attend a hearing at the court.\n\nThe judge decides that evidence is not to be heard from Š. T., E. P., M. C., S. R., V. G., N. I. and N. Z. and no further evidence is to be presented.”\n\nThe Municipal Court proceeded by closing the proceedings and pronouncing its judgment, dismissing the applicant’s claim. The relevant part of the judgment read as follows:\n\n“In view of the above, the court considers that the factual background has been fully established on the basis of the parties’ testimony and in particular in the contract for lifelong maintenance and its annex and the enclosed receipts for payment. For that reason the court declined to hear evidence from the witnesses called on behalf of the plaintiff, because these witnesses cannot tell the court anything of influence on its judgment, save for the fact that they, owing to the plaintiff’s age, have been increasingly assisting her on a daily basis. For precisely that reason the court is not relying on the evidence heard from the witnesses Lj. M., Š. M. and A. A.”\n\n8.  A subsequent appeal by the applicant was dismissed by the  (Županijski sud u Rijeci) on 10 December 2003.\n\n9.  On 12 February 2004 the applicant lodged a constitutional complaint alleging, inter alia, that her right to a fair trial had been infringed, because the hearing of 17 March 2003 had been held in the absence of her counsel who had duly excused himself due to his urgent hospitalisation and that she had thus been prevented from questioning two witnesses. Furthermore, neither she nor her counsel had been notified of the hearing scheduled for 23 April 2003. Although her counsel did attend the hearing, which he had learned about by chance on the very same day, he had not been able to prepare himself to question the two further witnesses who had been heard at that hearing. Thus, she had been prevented from questioning any of the four witnesses, all of whom had been heard on behalf of the defendants. Finally, she complained that the Opatija Municipal Court had refused to hear any of her seven witnesses. On 21 June 2006 the  (Ustavni sud Republike Hrvatske) dismissed the complaint as ill-founded.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION\n\n10.  The applicant complained that the civil proceedings instituted by her were unfair, relying on Article 6 § 1 of the Convention which reads as follows:\n\n“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”\n\n11.  The Government contested that argument.\n\nA.  Admissibility\n\n12.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n13.  The applicant contended that in the civil proceedings instituted upon her action the Opatija Municipal Court had refused to hear any of her six witnesses while it had heard four witnesses on behalf of the defendants. She further argued that she had been prevented from questioning two witnesses, Lj. M. and Š. M, heard on behalf of her opponents, and also that she had not been adequately represented at the hearing held on 23 April 2003 since neither she nor her counsel had been notified of the date of the hearing. Although her counsel had attended the hearing, of which he had learned by chance, having been at the Opatija Municipal Court on that date for other reasons, he had not known that two witnesses were to be heard at that hearing and therefore he had had no chance to prepare himself properly to question those witnesses.\n\n14.  The Government asserted that the applicant had enjoyed the benefits of a fair trial, stressing that the trial court had accepted the following as evidence from the applicant: her own testimony and a copy of the contract for lifelong care with its annex; while on behalf of the defendants it had heard four witnesses and had seen the receipts for payment of monthly sums for the applicant’s maintenance. They further contended that the relevant domestic law empowered trial courts to decide what evidence to admit. In the proceedings at issue the trial court had established relevant facts from the evidence heard by the parties and the documents submitted. Hence, there had been no need to hear the witnesses called on behalf of the applicant. Furthermore, the trial court had given adequate reasons for dismissing the applicant’s further evidence.\n\n15.  As to the applicant’s contention that she had not been given an opportunity to question two witnesses, namely Lj. M. and Š. M, the second defendant’s parents, the Government maintained that the trial court had expressly stated that its judgment had not relied on the evidence heard from these witnesses.\n\n16.  As to the applicant’s allegations that neither she not her counsel had been duly informed of the hearing held on 23 April 2003, the Government submitted that the applicant’s counsel had nevertheless attended the hearing in question, questioned the witnesses and asked that five further witnesses be heard, which showed that the applicant had been sufficiently and adequately represented at that hearing.\n\n17.  The Court reiterates that while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see Schenk v. Switzerland, judgment of 12 July 1988, Series A no. 140, p. 29, §§ 45-46, and Garcia Ruiz v. Spain [GC] no. 30544/96, ECHR 1999-I, § 28). Similarly, it is in the first place for the national authorities, and notably the courts, to interpret domestic law and the Court will not substitute its own interpretation for theirs in the absence of arbitrariness. This principle applies, inter alia, to the application of procedural rules concerning the nomination of witnesses by parties (see Tamminen v. , no. 40847/98, § 38, 15 June 2004). In this connection, the Court further reiterates that it is not within its province to substitute its own assessment of the facts for that of the national courts. However, under the Court’s case-law, the requirements of fairness of the proceedings include the way in which the evidence is taken and submitted. The Court’s task is to ascertain whether the proceedings in their entirety, including the way in which evidence was taken and submitted, were fair within the meaning of Article 6 § 1 (see, inter alia, Dombo Beheer B.V. v. the Netherlands, judgment of 27 October 1993, Series A no. 274, pp. 18,19, §  31.).\n\n18.  The requirements inherent in the concept of fair hearing are not necessarily the same in cases concerning the determination of civil rights and obligations as they are in cases concerning the determination of a criminal charge. This is borne out by the absence of detailed provisions such as paragraphs 2 and 3 of Article 6 applying to cases of the former category. Thus, although these provisions have a certain relevance outside the strict confines of criminal law (see, mutatis mutandis, Albert and Le Compte v. Belgium, judgment of 10 February 1983, Series A no. 58, p. 20, § 39), the Contracting States have greater latitude when dealing with civil cases concerning civil rights and obligations than they have when dealing with criminal cases (see Pitkänen v. , no. 30508/96, § 59, 9 March 2004).\n\n19.  Nevertheless, certain principles concerning the notion of a fair hearing in cases concerning civil rights and obligations emerge from the Court’s case-law. Most significantly for the present case, it is clear that the requirement of equality of arms, in the sense of a fair balance between the parties, applies in principle to such cases as well as to criminal cases (see Feldbrugge v. the Netherlands, judgment of 29 May 1986, Series A no. 99, p. 17, § 44 and Dombo Beheer, cited above, p. 19, § 33). In that connection the Court considers that as regards litigation involving opposing private interests, equality of arms implies that each party must be afforded a reasonable opportunity to present his case - including his evidence - under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent. It is left to the national authorities to ensure in each individual case that the requirements of a fair hearing are met (see Dombo Beheer, cited above, p. 19, § 33).\n\n20.  As to the present case, the Court notes that the applicant initially, when bringing her civil action, proposed that evidence be heard from two witnesses, E. P. and Š. T. Later on, at the hearing held on 23 April 2003, the applicant withdrew her request that E. P. be heard, and proposed that the court hear evidence from further five witnesses, M. C., S. R., V. G., N. I. and N. Z. She stated that the relevance of their evidence was that they could provide information on the care provided to her by persons other than the defendants, who had undertaken an obligation to care for the applicant in order to acquire all her property post mortem. Thus, the evidence heard from these witnesses would, in the applicant’s view, show that the defendants had failed to provide her with adequate care and hence had failed to fulfil their contractual obligations, which entitled the applicant to seek the termination of the contract in question.\n\n21.  As to the reasons given by the domestic courts for not admitting the evidence adduced by the applicant, the Court notes that, even though a domestic court has a certain margin of appreciation when choosing arguments in a particular case and admitting evidence in support of the parties’ submissions, an authority is obliged to justify its activities by giving reasons for its decisions (see Suominen v. , no. 37801/97, § 36, 1 July 2003).\n\n22.  In the instant case the Opatija Municipal Court justified its refusal to hear evidence from six witnesses called on behalf of the applicant by saying that the factual background of the case had been sufficiently established from the parties’ statements and the supporting documents, namely the contract for lifelong maintenance and its annex and the receipts for payments made by the defendants to the applicant. In this connection, the Court notes that the contract in question together with its annex was submitted by the applicant as an enclosure when her civil action was lodged on 23 October 2002. The receipts for payment were submitted by the defendants at the beginning of the trial and the parties’ evidence was heard at the hearing held on 6 February 2003.\n\n23.  Thus, according to the Opatija Municipal Court’s arguments, the facts had already been sufficiently established on 6 February 2003, which was the only reason for not admitting any further evidence proposed by the applicant. The Court notes however that after that date four more witnesses called on behalf of the defendants were heard as follows: at the hearing held on 17 March 2003, in the absence of the applicant and her counsel, Lj. M. and Š. M., the parents of one of the defendants, were heard, while on the hearing held on 23 April 2003 R. P. and A. A. were heard.\n\n24.  The Court notes that, while refusing to hear any of the six witnesses called on behalf of the applicant, the trial court nevertheless heard four witnesses called on behalf of the defendants even after it considered that the factual background of the case had already been fully established. In this connection the Court observes that, although it is not its task to examine whether the court’s refusal to admit the evidence submitted by the applicant was well-founded, in its assessment of compliance of the procedure in question with the principle of equality of arms which is a feature of the wider concept of a fair trial (see Ekbatani v. Sweden, judgment of 26 May 1988, Series A no. 134, p. 14, § 30), significant importance is attached to appearances and to the increased sensitivity of the public to the fair administration of justice (see Borgers v. Belgium, judgment of 30 October 1991, Series A no. 214B, p. 31, § 24).\n\n25.  Bearing in mind the above considerations viewed in the light of the applicable principles, the Court finds that the applicant did not have a fair trial in the proceedings in question, in so far as the trial court refused to hear evidence from any of the six witnesses called on behalf of the applicant, for reasons which contradicted the trial court’s agreement to hear evidence from four witnesses called on behalf of the defendants.\n\nThere has therefore been a violation of Article 6 § 1.\n\n26.  In view of the above findings the Court does not need to examine the remainder of the applicant’s complaints of fairness of proceedings.\n\nII.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION\n\n27.  The applicant complained that she had had no effective remedy in respect of her Article 6 complaints. She relied on Article 13 of the Convention which reads as follows:\n\n“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”\n\n28.  The Court notes that the applicant was able to lodge an appeal against the first instance judgment and a constitutional complaint whereby she was able to advance the same complaints that she is now presenting before the Court The fact that the remedies used by the applicant were unsuccessful does not render them ineffective for the purposes of Article 13 of the Convention.\n\n29.  It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.\n\nIII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n30.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n31.  The applicant claimed 100,000 Croatian kunas (HRK) in respect of non-pecuniary damage.\n\n32.  The Government deemed the sum claimed excessive and unfounded as there had been no causal link between the violations complained of and the applicant’s financial expectations.\n\n33.  The Court cannot speculate about the outcome of the trial had it been in conformity with Article 6 and therefore, an award of just satisfaction can only be based on the fact that the applicant did not have the benefit of the guarantees of that Article. The Court, accepting that the lack of such guarantees has caused the applicant non-pecuniary damage which cannot be made good by the mere finding of a violation, awards her 2,000 euros (EUR) in that respect.\n\nB.  Costs and expenses\n\n34.  The applicant also claimed HRK 4,392 for the costs and expenses incurred before the domestic courts and HRK 13,505 for those incurred before the Court.\n\n35.  The Government made no comments in this respect.\n\n36.  According to the Court’s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings and considers it reasonable to award the sum of EUR 1,800 for the proceedings before the Court.\n\nC.  Default interest\n\n37.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Declares the complaint concerning the applicant’s right to a fair trial admissible and the remainder of the application inadmissible;\n\n2.  Holds that there has been a violation of Article 6 § 1 of the Convention;\n\n3.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts which are to be converted into the national currency of the respondent State at the rate applicable at the date of settlement:\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n4.  Dismisses the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 27 March 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_641","text":"PROCEDURE\n\n1.  The case originated in an application (no. 25555/10) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Moldovan national, Mr Igor Pascari (“the applicant”), on 26 April 2010.\n\n2.  The applicant, who had been granted legal aid, was represented by Mr V. Zamă, a lawyer practising in Chisinau. The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol.\n\n3.  The applicant alleged, in particular, that the courts had determined a criminal charge against him in proceedings in which he had not been involved.\n\n4.  On 15 September 2011 the application was communicated to the Government.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n5.  The applicant was born in 1983 and lives in Chisinau.\n\n6.  The applicant is a bus driver. On 14 August 2009 he was involved in an accident with a car in which no one was injured. According to the findings of the police, the driver of the other vehicle involved in the accident, P.C., had changed lanes without paying attention to the applicant’s bus, which had been overtaking it in the other lane. The applicant had not had enough time to brake and had hit P.C.’s car on the rear left side. On the same date the chief inspector of the traffic police issued a decision finding P.C. responsible for the accident under Article 242 § 1 of the Traffic Code (see paragraph 12 below), fined him 800 Moldovan lei (MDL) (the equivalent of 50 euros (EUR)) and gave him five penalty points.\n\n.  On an unspecified date P.C. contested that decision.\n\n.  By a judgment of 29 September 2009 the Anenii Noi District Court dismissed P.C.’s objection and upheld the decision of the chief inspector of the traffic police. The applicant was not involved in the proceedings. Only P.C. and the police officer who had been present at the site of the accident were present and the latter opposed P.C.’s objection. P.C. challenged the District Court’s decision.\n\n.  On 19 November 2009, the Bender Court of Appeal reversed the decision of the first-instance court, finding the applicant guilty of causing the accident. The court found that the applicant had not kept a safe distance between his bus and the vehicle in front of him and stated as follows:\n\n“... according to article 49 of the Route Code, the driver of a vehicle shall keep a safe distance between his vehicle and the vehicle in front of him, in such a manner as to avoid collision in case of sudden braking by the foregoing vehicle.\n\nThese rules were not observed by the driver of the vehicle which was behind, namely by the driver of the bus [...], Mr Igor Pascani, and by no means by Mr P.C.”\n\nThe applicant was again not involved in the proceedings and only found out about them at a later date. Under domestic law he was not able to challenge the Court of Appeal’s decision.\n\n.  As a result of the above judgment and based on its conclusions, on 22 January 2010 the chief inspector of the traffic police issued a new decision by which he found the applicant guilty of the breach of Article 49 of the Traffic Code causing the accident of 14 August 2009. The operative part of the decision stated as follows:\n\n“...Pascari Igor is declared guilty of having committed the offence provided by Article 242 § 1 of the Code of Administrative Offences (CAO), however, according to Article 30 § 3 of the CAO no sanction shall be applied in view of the statutory limitation period.”\n\n.  It appears from the documents submitted by the parties that following the accident the owner of the bus recovered the cost of its repairs from P.C.’s insurance company. After the judicial proceedings in which the applicant was found responsible, P.C. attempted to recover the cost of the repairs of his car from the other party’s insurance company. However, it appears from the case file that the company suspended payment until the case has been finally determined by the Court.\n\nII.  RELEVANT DOMESTIC LAW\n\n12.  According to Article 242 § 1 of the Code of Administrative Offences (CAO), a breach of traffic rules which only causes damage is punishable by a fine of MDL 800 and five penalty points.\n\n.  According to article 49 of the Route Code, the driver of a vehicle shall keep a safe distance between his vehicle and the vehicle in front of him, in such a manner as to avoid collision in case of sudden braking by the foregoing vehicle.\n\n14.  In accordance with Article 36 of the CAO, when drivers have a total number of fifteen penalty points against them their licence can be suspended for between six months and one year.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION\n\n15.  The applicant complained that, contrary to Article 6 § 1 of the Convention, the criminal charges against him had been determined in court proceedings in which he had not been involved. Article 6 § 1 reads as follows:\n\nA.  Admissibility\n\n16.  The Government submitted that the applicant had failed to exhaust domestic remedies, namely a compensation claim against the insurance companies which had insured both vehicles involved in the accident.\n\n17.  The Court considers that claiming compensation from the insurance company is entirely unrelated to the complaint, which is that the applicant was criminally convicted without being involved in the proceedings. Accordingly, the Court dismisses the Government’s objection of non-exhaustion of domestic remedies as ill-founded.\n\n18.  The Government further contended that the applicant’s complaint under Article 6 § 1 was incompatible ratione materiae because the proceedings from which the applicant had been absent were not criminal proceedings for the purposes of Article 6 of the Convention.\n\n19.  The applicant disagreed with the Government and noted that in Ziliberberg v. Moldova (no. 61821/00, §§ 29-36, 1 February 2005), the Court had found that acts which were considered offences under the CAO were criminal in nature for the purposes of the Convention.\n\n20.  The Court observes that the general principles concerning the applicability of Article 6 were summarised in Ziliberberg (ibid., § 29).\n\n21.  It further finds, with the applicant, that the act considered as an offence and punished by Article 242 of the CAO is directed towards all citizens and not towards a given group possessing a special status. It also notes that the fine and penalty points provided for by that provision are not intended as pecuniary compensation for damage but are punitive and deterrent in nature. That is particularly true when taking into consideration the effect of the penalty points, which can lead to the suspension of a driving licence for between six and twelve months (see paragraphs 12 and 13 above). The Court reiterates that a punitive character is the customary distinguishing feature of criminal penalties (ibid., § 33).\n\n22.  The Court further notes that eventually the applicant was not punished in the way provided for by Article 242 § 1 of the CAO due to a technicality. However, it observes that what is decisive is the potential penalty rather than the one actually imposed (see Demicoli v. Malta, 27 August 1991, § 34, Series A no. 210) and notes that it was a matter of technicality that the applicant was not penalised.\n\n23.  In the light of the foregoing, the Court considers that Article 6 § 1 is applicable in the instant case under its criminal head. It therefore dismisses the Government’s second objection.\n\n24.  Lastly, the Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n25.  The applicant argued that the failure to involve him in the proceedings in which his guilt for the accident of 14 August 2009 had been determined had constituted a breach of his right to a fair trial, guaranteed by Article 6 § 1 of the Convention.\n\n26.  The Government did not make any submissions about the merits of the case.\n\n27.  The Court notes that there is no dispute between the parties about the fact that the applicant was not involved in the proceedings which ended with the decision of the Bender Court of Appeal of 19 November 2009. It further notes that it is clear from the case file that the Bender Court of Appeal determined, inter alia, that the applicant was responsible for causing the accident of 14 August 2009. Although that finding did not amount to a final determination of his guilt, it had a decisive effect on such a determination. Indeed, the police based its decision of 22 January 2010 entirely on the conclusions reached by the Bender District Court of 19 November 2009 without making any further investigation or reaching any new conclusions of its own (see paragraphs 9 and 10 above). In fact, the chief inspector was obliged to conform to the to the appeal court’s judgment and could not have reached any other conclusion. Moreover, the judgment of 19 November 2009 had the effect of res judicata in respect of both the applicant and P.C., if only for making the latter immune from responsibility for the accident. Since in a car accident involving two vehicles, there should be at least one person responsible, the final exclusion of P.C.’s responsibility by the Bender Court of Appeal implicitly predetermined the applicant’s guilt. In those circumstances, the Court must conclude that there has been a breach of Article 6 § 1 of the Convention.\n\nIII.  ALLEGED VIOLATION OF ARTICLE 1 of protocol no. 1 to THE CONVENTION\n\n28.  The applicant also complained that the unfairness of the criminal proceedings against him had had the effect of infringing his right to the peaceful enjoyment of his possessions, as secured by Article 1 of Protocol No. 1 to the Convention, which provides:\n\n“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.\n\nThe preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”\n\n29.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and therefore declares it admissible. However, in view of its findings under Article 6 § 1of the Convention (see paragraphs 25-27 above), the Court does not consider it necessary to examine the complaint separately.\n\nIV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n30.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n.  The applicant did not make any claim in respect of pecuniary damage and submitted that at this stage of the proceedings such damage was impossible to assess. He therefore asked the Court to reserve the issue of pecuniary damage for a separate judgment. The applicant also claimed 5,000 euros (EUR) in respect of non-pecuniary damage.\n\n.  The Government objected and argued that the amount claimed was excessive.\n\n33.  In view of the violations found above and of the circumstances of the case, the Court does not consider it necessary to reserve the issue of pecuniary damage. It rejects the applicant’s claim in that respect.\n\n34.  On the other hand, the Court considers that the applicant must have been caused a certain amount of stress and frustration as a result of the breach of his right to a fair trial. Making its assessment on an equitable basis, it awards the applicant EUR 2,500 in respect of non-pecuniary damage.\n\nB.  Costs and expenses\n\n35.  The applicant also claimed EUR 590 for the costs and expenses incurred before the Court.\n\n36.  The Government objected and argued that the amount claimed was excessive.\n\n.  Regard being had to the circumstances of the case and to the documents submitted by the applicant, the Court considers it reasonable to award the entire amount claimed.\n\nC.  Default interest\n\n38.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT\n\n1.  Declares, by a majority, the application admissible;\n\n2.  Holds, by four votes to three, that there has been a violation of Article 6 § 1 of the Convention;\n\n3 Holds, by four votes to three, that there is no need to examine the complaint under Article 1 of Protocol No. 1 to the Convention;\n\n4.  Holds, by four votes to three,\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n5.  Dismisses, unanimously, the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 30 August 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.\n\nIn accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges P. Lemmens, K. Turković and G. Ravarani is annexed to this judgment.\n\n1.  We regret that we cannot share the view of the majority that there has been a violation of Article 6 § 1 of the Convention in this case. We consider that the majority apply Article 6 § 1 in a way that is wholly inconsistent with the Court’s case-law and disregards the limits of the res judicata effect.\n\nThe proceedings at issue\n\n2.  In order to analyse the legal issues raised by the complaint, it is important to correctly determine the facts, in particular the scope of the proceedings at issue.\n\nOn 14 August 2009 a road accident took place, involving P.C., the driver of a car, and the applicant, the driver of a bus owned by V.B.\n\nOn the same date the chief inspector of the traffic police found that P.C. had violated the traffic rules and imposed a fine on him. Seeking to be relieved of criminal responsibility and exempted from the imposed fine, P.C. challenged that decision. He was unsuccessful before the District Court of Anenii Noi (judgment of 29 September 2009), but eventually won his case before the Court of Appeal of Bender (judgment of 19 November 2009). The latter court held that the applicant had not observed the traffic rules and that he was responsible for the accident. The court accordingly annulled the decision of the chief inspector.\n\nWe would like to underline that the judicial proceedings brought by P.C. were aimed solely at obtaining a ruling on the “criminal” liability of the one accused person, namely P.C. himself. The applicant was not a party in those proceedings as there had not been any charge against him and there had not been any request by any of the parties to join him to the proceedings.\n\nOn 22 January 2010 the chief inspector of the traffic police issued a new decision. Basing himself on the judgment of the Court of Appeal, he declared the applicant guilty of a breach of the traffic rules, but did not apply any sanction, the reason for this being that the criminal prosecution was time-barred. The applicant did not challenge that decision.\n\n3.  In his application, the applicant also mentioned the civil consequences of the decision to hold him responsible.\n\nHe indicated that after the decision of the chief inspector of 14 August 2009, P.C.’s insurer paid 2,702 Moldovan lei (MDL) (approximately EUR 124) to V.B. for the damage to the bus. Following the decision of the chief inspector of 22 January 2010, P.C. sought payment of his car repairs from V.B.’s insurer. The insurance company replied that it would await the decision of our Court in the present case. The applicant calculated that the insurer would compensate only part of the damage, leaving himself liable for MDL 40,894 (approximately EUR 1,870). P.C.’s insurance company, for its part, indicated that it expected V.B. to pay back the money which he had received.\n\nNone of the claims of P.C. or his insurer seems to have led to any civil proceedings.\n\nInapplicability of Article 6 § 1 to the proceedings before the Court of Appeal\n\n4.  The majority hold that Article 6 § 1 is applicable in the instant case (see paragraphs 18-23 of the judgment).\n\nWe have no problem accepting that the proceedings which started with the chief inspector’s decision of 14 August 2009 concerned a “criminal charge” within the meaning of Article 6 § 1. The “criminal” nature of a charge based on the traffic rules and resulting in an administrative fine being imposed is also not disputed by the Government. However, this is not the point at issue. The question is whether the relevant proceedings concerned a charge against the applicant.\n\nIndeed, “charge”, for the purposes of Article 6 § 1, is defined as the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence, a definition that also corresponds to the test whether the situation of the suspect has been substantially affected (see Deweer v. Belgium, 27 February 1980, § 46, Series A no. 35; Eckle v. Germany, 15 July 1982, § 73, Series A no. 51; Reinhardt and Slimane-Kaïd v. France, 31 March 1998, § 93, Reports of Judgments and Decisions 1998II; Escoubet v. Belgium [GC], no. 26780/95, § 34, ECHR 1999VII; and McFarlane v. Ireland [GC], no. 31333/06, § 143, 10 September 2010). In their submissions, the Government referred to the Court’s case-law, and argued on that basis that Article 6 § 1 was not applicable.\n\nThere is no doubt that the proceedings before the Court of Appeal concerned a charge brought against P.C. The latter had a right to respect for the guarantees provided by Article 6 § 1. By contrast, as indicated above (see paragraph 2), there had been no charge against the applicant in those proceedings. The procedural guarantees of Article 6 § 1 were therefore totally irrelevant for him.\n\nIn our opinion, the Government’s objection based on the incompatibility ratione materiae of the application with the Convention is well-founded. In so far as the applicant complains of a violation of Article 6 § 1 as a result of the decision of the Court of Appeal, the application should have been declared inadmissible.\n\nEffects of the findings of the Court of Appeal with respect to the applicant\n\n5.  In finding that there was a violation of Article 6 § 1 as a result of the Court of Appeal’s decision, the majority refer to the fact that that court determined that the applicant, not P.C., was responsible for causing the accident, and that this decision was res judicata in respect of both P.C. and the applicant (see paragraph 27 of the judgment). The majority thus consider that the decision of the Court of Appeal had a far-reaching erga omnes effect attached to each and all of its findings.\n\nWe note, first of all, that the majority’s decision is based on an interpretation of the domestic rules on res judicata in criminal cases. However, the contents and scope of domestic law on this point have not been discussed by the parties. In our opinion, it is questionable whether the majority are correct in assuming that the chief inspector was obliged to conform to the Court of Appeal’s judgment to the extent that he could not have reached any other decision on the applicant’s conduct in the light of the applicable traffic rules.\n\n6.  Indeed, res judicata is generally attached only to those findings that form the necessary basis for the court’s conclusion. The proceedings before the Court of Appeal concerned the “criminal” liability of P.C. The decision that P.C. was not guilty of having violated the traffic rules is undoubtedly a decision that constitutes res judicata. We are not sure that the same can be said about any findings with respect to the applicant. Should not all findings other than the ones relating to the “criminal” liability of P.C. be considered obiter dicta, with no binding force at all? Should this not be particularly true of findings relating to a third party who was not charged and who accordingly was not able to defend himself against any charge?\n\nIt is true that in order to relieve P.C. of responsibility the Court of Appeal stated that the applicant was the only one of the two drivers involved in the accident who was responsible for the accident. However, it seems to us that this statement concerning the applicant’s responsibility would fit within the category of obiter dicta, as that finding was not necessary for assessing P.C.’s criminal liability. Indeed, the acquittal of P.C. was not dependent on a finding that the applicant was criminally liable. To hold otherwise would ignore the whole spectrum of situations that might arise in concreto, in which neither party may be responsible or where certain circumstances may exclude the criminal responsibility of both drivers, such as force majeure.\n\nMoreover, contrary to what the majority suggest (see paragraph 27 of the judgment), even in the event of a car accident involving two drivers, the acquittal of one driver on the basis that the accident was caused by the other driver does not necessarily mean that that other driver is criminally liable.\n\n7.  A consequence of the right to adversarial proceedings is that the quality of res judicata cannot be invoked against a person with respect to assessments of fact or law made in proceedings to which that person was not a party. Assessments made in a given case must remain relative and their effect limited to those proceedings (see Navalnyy and Ofitserov v. Russia, nos. 46632/13 and 28671/14, § 105, 23 February 2016; see also, from the point of view of the right to a court having jurisdiction to examine all the factual and legal issues relevant to the determination of the dispute before it, Beaumartin v. France, 24 November 1994, § 38, Series A no. 296B; Terra Woningen B.V. v. the Netherlands, 17 December 1996, § 54, Reports of Judgments and Decisions 1996VI; and Chevrol v. France, no. 49636/99, § 82, ECHR 2003III). Accordingly, in the present case it would not be compatible with the right to a fair trial if a criminal or civil court were automatically to follow the Court of Appeal’s view that the applicant was responsible for the accident without full and proper examination at a trial in which the applicant would be able to challenge that view.\n\nHowever, the present application does not lend itself to an examination of whether either Moldovan law or any subsequent decision by a Moldovan authority complies with this aspect of the right to a fair trial.\n\nIn the first place, while the chief inspector, following the judgment of the Court of Appeal, found the applicant guilty of a breach of the traffic rules, the applicant did not challenge that decision. He therefore did not avail himself of the opportunity to challenge any alleged automatic reliance by the chief inspector on the Court of Appeal’s statement before a competent court. In addition we note that the Court is not required to examine the impugned legislation in abstracto, but must confine itself to the circumstances of the case before it. In any event, as stated above, the parties have not discussed the contents and scope of domestic law relating to res judicata in criminal cases.\n\nSecondly, no civil claim has yet been brought against the applicant, either by P.C. or by P.C.’s insurer (see paragraph 3 above). His complaint in this respect is premature. At the present time the applicant cannot claim to be already a victim of a violation of his right to a fair trial with respect to the possible civil consequences of the Court of Appeal’s finding. It is in this sense that we also understand the objection of the Government, who argue that the applicant has not exhausted all remedies at his disposal to obtain compensation for the damage he may have sustained himself or to defend himself against claims for compensation for the damage sustained by other parties (see paragraph 16 of the judgment, which, however, in our opinion expresses the objection too narrowly). In so far as the applicant complains about the civil consequences of the Court of Appeal’s decision, the Government’s objection should have been accepted and the application declared inadmissible.\n\nRespect for the applicant’s right to presumption of innocence?\n\n8.  The foregoing does not necessarily exclude the possibility that the applicant is already in a position to complain of a violation of his human rights as a result of the decision of the Court of Appeal.\n\nIndeed, Article 6 § 2 of the Convention guarantees the right to be presumed innocent. This provision is relevant with respect to premature statements made by public authorities or public officials suggesting that a person is guilty before that person has been charged and his guilt established by the competent judicial authority (see, among many others, Allenet de Ribemont v. France, 10 February 1995, § 35, Series A no. 308, and Lavents v. Latvia, no. 58442/00, § 125, 28 November 2002). The presumption of innocence may be infringed on account of premature expressions of a person’s guilt made within the scope of a judgment against another person, for instance a separately prosecuted co-accused (see Karaman v. Germany, no. 17103/10, § 42, 27 February 2014).\n\nIn a case about the criminal liability of a person involved in a situation in which other persons are also involved, it may be indispensable for the assessment of the guilt of the person who is on trial to refer to the role of third persons. However, if facts relating to the role of third persons have to be introduced, the court should avoid giving more information than necessary for the assessment of the criminal responsibility of the person who is accused in the trial before it (see Karaman, cited above, § 64; see also Bezek v. Germany (dec.), nos. 4211/12 and 5850/12, § 36, 21 April 2015, and Navalnyy, cited above, § 104).\n\n9.  The applicant did not allege a violation of Article 6 § 2. We therefore will not discuss whether an issue could be said to have arisen in the present case. We would like to point out, however, that in order to assess whether or not there has been a violation of Article 6 § 2, regard would have to be had not only to the language used by the Court of Appeal, but also to the nature and the context of the proceedings before that court (see Allen v. the United Kingdom [GC], no. 25424/09, § 126, ECHR 2013).\n\nFor the purposes of the present opinion it is sufficient to note that if the majority had seen a problem, they could only have examined that problem from the point of view of Article 6 § 2 (provided that the application lent itself to such an examination) and not, as they did, from the point of view of Article 6 § 1.","title":""}
{"_id":"passage_66","text":"PROCEDURE\n\n1.   The case was referred to the Court by the European Commission of Human Rights (\"the Commission\") on 7 April 1993, within the three-month period laid down by Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the Convention. It originated in an application (no. 16969/90) against  lodged with the Commission under Article 25 (art. 25) on 1 May 1990 by an Irish citizen, Mr Joseph Keegan.\n\nThe Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby  recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 6, 8 and/or 14 (art. 6, art. 8, art. 14) of the Convention.\n\n2.   In response to the enquiry made in accordance with Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that he wished to take part in the proceedings and designated the lawyer who would represent him (Rule 30).\n\n3.   The Chamber to be constituted included ex officio Mr B. Walsh, the elected judge of Irish nationality (Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21 para. 3 (b)). On 23 April 1993, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mr J. De Meyer, Mr S.K. Martens, Mrs E. Palm, Mr R. Pekkanen, Mr A.N. Loizou, Mr J.M. Morenilla and Mr J. Makarczyk (Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).\n\nOn 25 May 1993 Mr Walsh withdrew from the Chamber pursuant to Rule 24 para. 2. By letter of 30 June 1993 the Agent of the Government of Ireland (\"the Government\") notified the Registrar of the appointment of the Hon. Mr Justice John Blayney, a judge of the Supreme Court of Ireland, as an ad hoc judge (Article 43 of the Convention and Rule 23) (art. 43).\n\n4.   As President of the Chamber (Rule 21 para. 5), Mr Ryssdal, through the Registrar, consulted the Agent of the Government, the applicant’s lawyer and the Delegate of the Commission on the organisation of the procedure (Rules 37 para. 1 and 38). Pursuant to the order made in consequence, the Registrar received on 23 September 1993 the applicant’s memorial and, on 14 October 1993, the Government’s. He was subsequently informed by the Secretary to the Commission that the Delegate would submit his observations at the hearing.\n\n5.   In accordance with the President’s decision, the hearing took place in public in the Human Rights Building, , on 23 November 1993. The Court had held a preparatory meeting beforehand.\n\nThere appeared before the Court:\n\n- for the Government\n\n- for the Commission\n\n- for the applicant\n\nThe Court heard addresses by Sir Basil Hall, Ms Browne and Mr Gleeson as well as replies to questions put by several of its members.\n\nAS TO THE FACTS\n\nI.   THE PARTICULAR CIRCUMSTANCES OF THE CASE\n\n6.   The applicant met his girlfriend Miss V. (\"V.\") in May 1986. They lived together from February 1987 until February 1988. Around Christmas 1987 they decided to have a child. Subsequently, on 14 February 1988, they became engaged to be married.\n\nOn 22 February 1988 it was confirmed that V. was pregnant. Shortly after this the relationship between the applicant and V. broke down and they ceased co-habiting. On 29 September 1988 V. gave birth to a daughter S. of whom the applicant was the father. The applicant visited V. at a private nursing home and saw the baby when it was one day old. Two weeks later he visited V.’s parents’ home but was not permitted to see either V. or the child.\n\n7.   During her pregnancy V. had made arrangements to have the child adopted and on 17 November 1988 she had the child placed by a registered adoption society with the prospective adopters. She informed the applicant of this in a letter dated 22 November 1988.\n\nA. The proceedings before the Circuit Court\n\n8.   The applicant subsequently instituted proceedings before the Circuit Court to be appointed guardian under section 6A, sub-section 1, of the Guardianship of Infants Act 1964, which would have enabled him to challenge the proposed adoption. He also applied for custody of the child. Pursuant to the Adoption Act 1952, an adoption order cannot be made, inter alia, without the consent of the child’s mother and the child’s guardian (see paragraph 19 below). While a married man is a guardian of his children, an unmarried man is not unless so appointed by the court (see paragraphs 25 and 26 below).\n\n9.   On 29 May 1989 the Circuit Court appointed the applicant guardian and awarded him custody.\n\nB. The proceedings before the High Court\n\n10.   Following an appeal against the judgment of the Circuit Court by V. and the prospective adopters, the High Court found in July 1989 that the applicant was a fit person to be appointed guardian and that there were no circumstances involving the welfare of the child which required that the father’s rights be denied. Mr Justice Barron of the High Court stated:\n\n\"I am of the opinion that in considering the applications both for custody and guardianship I must have regard to circumstances as they presently exist and that in considering the welfare of the child I must take into account the fact that she has been placed for adoption. Each application must be taken as part of a global application and not as a separate and distinct one. The test therefore is:\n\n(1) whether the natural father is a fit person to be appointed guardian, and, if so:\n\n(2) whether there are circumstances involving the welfare of the child which require that, notwithstanding he is a fit person, he should not be so appointed.\n\nIn the present case, I am of the opinion that he satisfies the first condition and that unless the welfare of the child is to be regarded as the sole consideration, he satisfies the second condition ...\n\nIn my opinion, having regard to the purposes of the Status of Children Act 1987, the rights of the father should not be denied by considerations of the welfare of the child alone, but only where - and they do not exist in the present case - there are good reasons for so doing.\"\n\nC. The proceedings before the Supreme Court\n\n11.   After the conclusion of the High Court proceedings Mr Justice Barron acceded to an application by V. and the prospective adopters to state a case for the opinion of the Supreme Court. The questions put to the Supreme Court by the judge were as follows:\n\n\"(1) Am I correct in my opinion as to the manner in which section 6A of the Guardianship of Infants Act 1964, as inserted by section 12 of the Status of Children Act 1987, should be construed?\n\n(2) If not, what is the proper construction of that section and what other, if any, principles should I have applied or considered whether in relation to guardianship or custody which derive either from law or from the provisions of the Constitution?\"\n\n12.   Delivering the majority judgment of the Supreme Court on 1 December 1989, Chief Justice Finlay stated that the High Court had incorrectly construed section 6A of the 1964 Act as conferring on the natural father a right to be a guardian. He considered that the Act only gave the natural father a right to apply to be guardian. It did not equate his position with that of a married father. The first and paramount consideration in the exercise of the court’s discretion was the welfare of the child, and the blood link between child and father as merely one of the many relevant factors which may be viewed by the court as relevant to that question. He added, inter alia:\n\n\"... although there may be rights of interest or concern arising from the blood link between the father and the child, no constitutional right to guardianship in the father of the child exists. This conclusion does not, of course, in any way infringe on such considerations appropriate to the welfare of the child in different circumstances as may make it desirable for the child to enjoy the society, protection and guardianship of its father, even though its father and mother are not married.\n\nThe extent and character of the rights which accrue arising from the relationship of a father to a child to whose mother he is not married must vary very greatly indeed, depending on the circumstances of each individual case.\n\nThe range of variation would, I am satisfied, extend from the situation of the father of a child conceived as the result of a casual intercourse, where the rights might well be so minimal as practically to be non-existent, to the situation of a child born as the result of a stable and established relationship and nurtured at the commencement of his life by his father and mother in a situation bearing nearly all of the characteristics of a constitutionally protected family, when the rights would be very extensive indeed ...\"\n\nHe concluded that:\n\n\"... regard should not be had to the objective of satisfying the wishes and desires of the father to be involved in the guardianship of and to enjoy the society of his child unless the Court has first concluded that the quality of welfare which would probably be achieved for the infant by its present custody which is with the prospective adoptive parents, as compared with the quality of welfare which would probably be achieved by custody with the father is not to an important extent better\".\n\nThe matter was then referred back to the High Court for the case to be decided in light of this interpretation.\n\nD. The subsequent proceedings before the High Court\n\n13.   The High Court resumed its examination of the case in early 1990. It heard, inter alia, the evidence of a consultant child psychiatrist who considered that the child would suffer short-term trauma if moved to the applicant’s custody. In the longer term she would be more vulnerable to stress and be less able to cope with it. She would also have difficulty in forming \"trust\" relationships.\n\n14.   In his judgment of 9 February 1990 Mr Justice Barron recalled that the applicant wished bona fide to have custody of his daughter and that he felt the existence of an emotional bond.\n\nHe had also noted that if the child remained with the adopters she would obtain the benefit of a higher standard of living and would be likely to remain at school longer. However, he considered that differences springing solely from socio-economic causes should not be taken into account where one of the claimants is a natural parent. In his view \"to do otherwise would be to favour the affluent as against the less well-off which does not accord with the constitutional obligation to hold all citizens as human persons equal before the law\".\n\nApplying the test laid down by the Supreme Court in the light of the dangers to the psychological health of the child he allowed the appeal of the natural mother and the prospective adopters and concluded as follows:\n\n\"The result, it seems to me, is this. If the child remains where she is, she will if the adoption procedures are completed become a member of a family recognised by the Constitution and freed from the danger of psychological trauma. On the other hand if she is moved she will not be a member of such a family and in the short and long term her future is likely to be very different. The security of knowing herself to be a member of a loving and caring family would be lost. If moved, she will I am sure be a member of a loving and caring unit equivalent to a family in her eyes. Nevertheless the security will be lost and there will be insecurity arising from the several factors which have been enumerated.\n\nIn my view these differences and the danger to her psychological health are of such an importance that I cannot hold that the quality of welfare likely to be achieved with the prospective adopters would not be to an important extent better than that likely to be achieved by custody with the father. That being so, his wish and desire to be involved in the guardianship of and to enjoy the society of his child is not a factor which I am to take into account. In these circumstances, the welfare of the infant requires her to remain in her present custody. Accordingly the application for relief must be refused.\"\n\n15.   An adoption order was subsequently made in respect of the child.\n\nII.   RELEVANT DOMESTIC LAW AND PRACTICE\n\nA. Appeals to the Supreme Court\n\n16.   A decision of the High Court which determines an appeal from the Circuit Court cannot be appealed to the Supreme Court (Eamonn Andrews Productions Limited v. Gaiety Theatre Enterprises [1978] Irish Reports 295). The High Court can, however, ask for the opinion of the Supreme Court on points of law by way of a case stated.\n\nB. Adoption\n\n17.   The adoption of children in  is governed by the Adoption Act 1952. This Act was amended in 1964, 1974 and 1976.\n\nSection 8 of the 1952 Act established a body to be known as the Adoption Board (An Bord Uchtála) to fulfil the functions assigned to it by the Act, its principal function being to make adoption orders on application being made to it by persons desiring to adopt a child.\n\n18.   Arrangements for the adoption of a child under the age of seven years may only be made by a registered adoption society or a Health Board (section 34 of the 1952 Act) and where the mother or guardian of a child proposes to place the child at the disposal of a registered adoption society for adoption the society must, before accepting the child, furnish the mother or father with a statement in writing explaining clearly the effect of an adoption order on the rights of the mother or guardian and the provisions of the Act relating to consent to the making of an adoption order (section 39 of the 1952 Act). When the applicant’s child was placed for adoption there was also a requirement that notice in writing had to be given to the Adoption Board before or within seven days after the reception of the child into the home of the proposed adopters (section 10 of the Adoption Act 1964).\n\n1. Consent\n\n19.   As regards the requisite consent of the natural parent, section 14 of the 1952 Act provides as follows:\n\n\"(1) An adoption order shall not be made without the consent of every person being the child’s mother or guardian or having charge of or control over the child, unless the Board dispenses with any such consent in accordance with this section.\n\n(2) The Board may dispense with the consent of any person if the Board is satisfied that that person is incapable by reason of mental infirmity of giving consent or cannot be found.\n\n...\n\n(6) A consent may be withdrawn at any time before the making of an adoption order.\"\n\n2. Entitlement to be heard by the Adoption Board\n\n20.   As regards those persons who are entitled to be heard on an application for an adoption order, section 16 of the 1952 Act provides as follows:\n\n\"(1) The following persons and no other persons shall be entitled to be heard on an application for an adoption order -\n\n(a) the applicants,\n\n(b) the mother of the child,\n\n(c) the guardian of the child,\n\n(d) a person having charge of or control over the child,\n\n(e) a relative of the child,\n\n(f) a representative of a registered adoption society which is or has been at any time concerned with the child,\n\n(g) a priest or minister of a religion recognised by the Constitution (or, in the case of any such religion which has no ministry, an authorised representative of the religion) where the child or a parent (whether alive or dead) is claimed to be or to have been of that religion,\n\n(h) an officer of the Board,\n\n(i) any other person whom the Board, in its discretion, decides to hear.\n\n(2)   A person who is entitled to be heard may be represented by counsel or solicitor.\n\n(3)   The Board may hear the application wholly or partly in private.\n\n(4)   Where the Board has notice of proceedings pending in any court of justice in regard to the custody of a child in respect of whom an application is before the Board, the Board shall make no order in the matter until the proceedings have been disposed of.\"\n\n21.   The Supreme Court has held in the leading case of the State (Nicolaou) v. An Bord Uchtála (the Adoption Board) [1966] Irish Reports 567 that the relevant provisions of the Adoption Act 1952, which permitted the adoption of a child born out of wedlock without the consent of the natural father or without the right to be heard by the Adoption Board prior to the making of an adoption order, were not repugnant to the Constitution on the grounds that they discriminated against the natural father or infringed his constitutional rights (Article 40, sections 1 and 3 of the Constitution). It also held that the protection afforded to the \"family\" in Article 41 of the Constitution related only to the \"family\" based on marriage.\n\n3. Application to the High Court\n\n22.   Section 20 of the 1952 Act provides:\n\n\"20. (1) The Board may (and, if so requested by an applicant for an adoption order, the mother or guardian of the child or any person having charge of or control over the child, shall, unless it considers the request frivolous) refer any question of law arising on an application for an adoption order to the High Court for determination.\n\n(2) Subject to rules of court, a case stated under this section may be heard in camera.\"\n\nC. Custody and guardianship\n\n1. Welfare of the child\n\n23.   As regards proceedings relating, inter alia, to the custody or guardianship or upbringing of an infant, the Guardianship of Infants Act 1964 provided as follows:\n\n\"Welfare\" in relation to an infant is defined as follows in section 2 of the said Act:\n\n\"‘Welfare’, in relation to an infant, comprises the religious and moral, intellectual, physical and social welfare of the infant.\"\n\n2. Rights of married parents\n\n24.   Section 6 of the 1964 Act provided as follows:\n\n\"(1) The father and mother of an infant shall be guardians of the infant jointly.\n\n(2) On the death of the father of an infant the mother, if surviving, shall be guardian of the infant, either alone or jointly with any guardian appointed by the father or by the court.\n\n(3) On the death of the mother of an infant the father, if surviving, shall be guardian of the infant, either alone or jointly with any guardian appointed by the mother or by the court.\"\n\n3. Rights of the natural father\n\n25.   The definition of \"father\" under section 2 of the 1964 Act did not include the father of a child born out of wedlock.\n\n26.   The Status of Children Act 1987 amended the Guardianship of Infants Act 1964 in the following way:\n\n\"11. Section 6 of the Act of 1964 is hereby amended by the substitution of the following subsection for subsection (4):\n\n‘(4) Where the mother of an infant has not married the infant’s father, she, while living, shall alone be the guardian of the infant unless there is in force an order under section 6A (inserted by the Act of 1987) of this Act or a guardian has otherwise been appointed in accordance with this Act.’\n\n12.   The Act of 1964 is hereby amended by the insertion after section 6 of the following section:\n\n‘6A (1) Where the father and mother of an infant have not married each other, the court may on the application of the father, by order appoint him to be a guardian of the infant.\n\n(2) ... the appointment by the court under this section of the father of an infant as his guardian shall not affect the prior appointment of any person as guardian of the infant under section 8 (1) of this Act unless the court otherwise orders ...’\"\n\n27.   As regards court applications for custody of an infant, the 1964 Act provided as follows:\n\n\"11. (1) Any person being a guardian of an infant may apply to the court for its direction on any question affecting the welfare of the infant and the court may make such order as it thinks proper.\n\n(2) The court may by an order under this section\n\n(a) give such directions as it thinks proper regarding the custody of the infant and the right of access to the infant of his father or mother;\n\n...\"\n\n28.   This section of the 1964 Act was amended by the 1987 Act as follows:\n\n\"13. Section 11 of the Act of 1964 is hereby amended by the substitution of the following subsection for subsection (4):\n\n‘(4) In the case of an infant whose father and mother have not married each other, the right to make an application under this section regarding the custody of the infant and the right of access thereto of his father or mother shall extend to the father who is not a guardian of the infant, and for this purpose references in this section to the father or parent of an infant shall be construed as including him.’\"\n\n4. Powers of guardians\n\n29.   The 1964 Act provides, inter alia, that a guardian under the Act shall be entitled (1) to the custody of the infant and to take proceedings for the restoration of his custody of the infant against any person who wrongfully takes away or detains the child and (2) to the possession and control of all property of the infant (section 10).\n\nD. Recent developments in Irish adoption practice\n\n30.   The following developments have taken place subsequent to the facts of the present case.\n\nBy memorandum of 30 April 1990 from the Registrar of the Adoption Board, the relevant adoption societies and social workers have been notified, inter alia, of the rights of the natural father to apply for joint guardianship and/or custody of or access to his child. The memorandum also draws attention to the desirability of ascertaining from the mother and, where practicable, the father, his intentions in relation to the child as regards adoption although it recognises the practical difficulties which may arise when mothers do not want to involve the father or do not know who or where he is.\n\nWhere an adoption agency is given an indication by the natural father that he opposes the placement of the child for adoption the agency is advised to consider the prudence of delaying the placement for a period. The memorandum further states that where a natural father has applied to a court under no circumstances should the child be placed for adoption pending the determination of the court proceedings.\n\nBy a letter of 6 April 1992 the Adoption Board has informed the relevant adoption societies and social workers of a review of its policy in relation to natural fathers of children placed for adoption and the necessity of following new procedures. The letter indicates that whenever a natural father is\n\n(a) named as father on the child’s birth certificate, (b) in a continuous relationship with the mother,\n\nhe should be notified, if not already aware, of the application to adopt his child and offered a hearing by the Board on the application.\n\nIn addition two forms must now be completed by the adoption agency or by the applicant or applicants. These forms make the fullest relevant enquiries for the purpose, inter alia, of ascertaining the identity and intentions of the natural father as regards the proposed adoption.\n\nPROCEEDINGS BEFORE THE COMMISSION\n\n31.   Mr Keegan applied to the Commission on 1 May 1990. He complained that there had been a violation of his right to respect for family life (Article 8 of the Convention) (art. 8) in that his child had been placed for adoption without his knowledge or consent and that national law did not afford him even a defeasible right to be appointed guardian. He further complained of a denial of his right of access to court (Article 6 para. 1) (art. 6-1) in that he had no locus standi in the proceedings before the Adoption Board. He also alleged that, as the natural father, he had been discriminated against in the exercise of the above-mentioned rights (Article 14 taken in conjunction with Article 6 and/or Article 8) (art. 14+6, art. 14+8) when his position was compared to that of a married father.\n\n32.   The application (no. 16969/90) was declared admissible on 13 February 1992. In its report of 17 February 1993 (Article 31) (art. 31), the Commission expressed the opinion that there had been a violation of Article 8 and of Article 6 para. 1 (art. 8, art. 6-1) (unanimously) and that it was not necessary to examine whether there had been a violation of Article 14 taken in conjunction with Article 6 and/or Article 8 (art. 14+6, art. 14+8) (by eleven votes to one).\n\nThe full text of the Commission’s opinion is reproduced as an annex to this judgment.\n\nAS TO THE LAW\n\nI.   THE GOVERNMENT’S PRELIMINARY OBJECTIONS\n\nA. Whether the applicant can complain on his daughter’s behalf\n\n33.   The Government submitted that the applicant has no locus standi in relation to complaints by his daughter since only a person who exercises parental rights or is a guardian is entitled to bring a complaint under the Convention on behalf of a child.\n\n34.   In the course of the hearing before the Court the applicant indicated that it would no longer be appropriate for him to pursue any claim in respect of alleged infringements of his daughter’s rights in the light of an adoption order now having been made in respect of her (see paragraph 15 above).\n\n35.   In view of this position, the Court considers that it is only called upon to examine allegations concerning violations of the applicant’s rights. It is thus unnecessary to examine the Government’s objection on this point.\n\nB. Whether the applicant failed to exhaust domestic remedies\n\n36.   The Government contended that the application should be rejected for non-exhaustion of domestic remedies, contrary to Article 26 (art. 26) of the Convention, on the grounds:\n\n(1)   that the applicant had not appealed to the Supreme Court against the final determination of the guardianship and custody proceedings by the High Court;\n\n(2)   that he had failed to complain before the Irish courts of the fact that the law did not enable him to become involved in the adoption process and, in particular, to be consulted by the Adoption Board prior to any adoption;\n\n(3)   that he had not challenged the constitutionality of the legal provisions relating to a natural father by bringing proceedings in the High Court alleging that the State had failed to afford him equal treatment compared to a married father and had failed to vindicate his personal rights.\n\n37.   Both the applicant and the Commission contended that there was no substance in any of these grounds.\n\n38.   The Court notes that the Government had raised points (2) and (3) in the proceedings before the Commission but not point (1). Accordingly they are estopped from raising this objection before the Court.\n\nApart from this, under Irish law no appeal lies from the decision of the High Court on an appeal from the Circuit Court (see paragraph 16 above).\n\n39.   As regards points (2) and (3) the Court recalls that the only remedies required to be exhausted are remedies which are effective and capable of redressing the alleged violation (see, amongst many authorities, the Open Door and Dublin Well Woman v. Ireland judgment of 29 October 1992, Series A no. 246, p.23, para. 48). It considers that the applicant would have had no prospect of success in making these claims before the courts having regard to the case-law of the Supreme Court which denies to a natural father any constitutional right to take part in the adoption process (see paragraph 21 above).\n\n40.   It follows that the Government’s objections based on non- exhaustion of domestic remedies fail.\n\nII.   ALLEGED VIOLATION OF ARTICLE 8 (art. 8)\n\n41.   The applicant alleged a violation of his right to respect for family life contrary to Article 8 (art. 8) of the Convention which provides:\n\n\"1.   Everyone has the right to respect for his private and family life, his home and his correspondence.\n\n2.   There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.\"\n\nA. Applicability of Article 8 (art. 8)\n\n42.   The Government maintained that the sporadic and unstable relationship between the applicant and the mother had come to an end before the birth of the child and did not have the minimal levels of seriousness, depth and commitment to cross the threshold into family life within the meaning of Article 8 (art. 8). Moreover, there was no period during the life of the child in which a recognised family life involving her had been in existence. In their view neither a mere blood link nor a sincere and heartfelt desire for family life were enough to create it.\n\n43.   For both the applicant and the Commission, on the other hand, his links with the child were sufficient to establish family life. They stressed that his daughter was the fruit of a planned decision taken in the context of a loving relationship.\n\n44.   The Court recalls that the notion of the \"family\" in this provision is not confined solely to marriage-based relationships and may encompass other de facto \"family\" ties where the parties are living together outside of marriage (see, inter alia, the Johnston and Others v. Ireland judgment of 18 December 1986, Series A no. 112, p. 25, para. 55). A child born out of such a relationship is ipso iure part of that \"family\" unit from the moment of his birth and by the very fact of it. There thus exists between the child and his parents a bond amounting to family life even if at the time of his or her birth the parents are no longer co-habiting or if their relationship has then ended (see, mutatis mutandis, the Berrehab v. the Netherlands judgment of 21 June 1988, Series A no. 138, p. 14, para. 21).\n\n45.   In the present case, the relationship between the applicant and the child’s mother lasted for two years during one of which they co-habited. Moreover, the conception of their child was the result of a deliberate decision and they had also planned to get married (see paragraph 6 above). Their relationship at this time had thus the hallmark of family life for the purposes of Article 8 (art. 8). The fact that it subsequently broke down does not alter this conclusion any more than it would for a couple who were lawfully married and in a similar situation. It follows that from the moment of the child’s birth there existed between the applicant and his daughter a bond amounting to family life.\n\nB. Compliance with Article 8 (art. 8)\n\n1. Paragraph 1 of Article 8 (art. 8-1)\n\n46.   The applicant maintained that the State failed to respect his family life by facilitating the secret placement of his daughter for adoption without his knowledge or consent and by failing to create a legal nexus between himself and his daughter from the moment of birth.\n\nMoreover, the test applied by the Supreme Court to determine the question of custody placed him at a considerable disadvantage vis-à-vis the adoptive parents by requiring him to show that any advantages that they had to offer the child were not important for her welfare. In his submission, to be consistent with Article 8 (art. 8) the law ought to have conferred on him a defeasible right to guardianship and, in any competition for custody with strangers, there ought to have existed a rebuttable legal presumption that the child’s welfare was best served by being in his care and custody. He stressed, however, that he was not seeking to overturn the adoption order that had been made in respect of his child.\n\n47.   For the Government, Contracting States enjoy a wide margin of appreciation in the area of adoption. The right to respect for family life cannot be interpreted so broadly as to embrace a right to impose the wishes of the natural father over the interests of the child in disregard of the findings of fact made by the courts.\n\nThe applicant, as the Supreme Court had held, had a right to apply to be made a guardian, which right he had exercised. Furthermore, the Supreme Court took into account the blood link between him and his daughter as one of the factors to be weighed in the balance in assessing the child’s welfare. In addition, the applicant had every opportunity to present his case and to have his interests considered by the courts. However, in this process the rights and interests of the mother, who had wanted her child to be adopted, had also to be taken into account.\n\nIn particular, the Government emphasised that to grant a natural father a defeasible right to guardianship could give rise to complications, anguish and hardship in other cases and concerned a matter of social policy on which the  should be reluctant to intervene.\n\n48.   In the Commission’s view the obstacles under Irish law to the applicant establishing a relationship with his daughter constituted a lack of respect for his family life in breach of a positive obligation imposed by Article 8 (art. 8).\n\n49.   The Court recalls that the essential object of Article 8 (art. 8) is to protect the individual against arbitrary action by the public authorities. There may in addition be positive obligations inherent in an effective \"respect\" for family life. However, the boundaries between the State’s positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are, none the less, similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation (see, for example, the Powell and Rayner v. the United Kingdom judgment of 21 February 1990, Series A no. 172, p. 18, para. 41, and the above-mentioned Johnston and Others judgment, p. 25, para. 55 ).\n\n50.   According to the principles set out by the Court in its case-law, where the existence of a family tie with a child has been established, the State must act in a manner calculated to enable that tie to be developed and legal safeguards must be created that render possible as from the moment of birth the child’s integration in his family (see, mutatis mutandis, the Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, p. 15, para. 31, and the above-mentioned Johnston and Others judgment, p. 29, para. 72). In this context reference may be made to the principle laid down in Article 7 of the United Nations Convention on the Rights of the Child of 20 November 1989 that a child has, as far as possible, the right to be cared for by his or her parents. It is, moreover, appropriate to recall that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life even when the relationship between the parents has broken down (see, inter alia, the Eriksson v. Sweden judgment of 22 June 1989, Series A no. 156, p. 24, para. 58).\n\n51.   In the present case the obligations inherent in Article 8 (art. 8) are closely intertwined, bearing in mind the State’s involvement in the adoption process. The fact that Irish law permitted the secret placement of the child for adoption without the applicant’s knowledge or consent, leading to the bonding of the child with the proposed adopters and to the subsequent making of an adoption order, amounted to an interference with his right to respect for family life. Such interference is permissible only if the conditions set out in paragraph 2 of Article 8 (art. 8-2) are satisfied.\n\n52.   In view of this finding, it is not necessary to examine whether Article 8 (art. 8) imposed a positive obligation on  to confer an automatic but defeasible right to guardianship on natural fathers such as the applicant.\n\n2. Paragraph 2 of Article 8 (art. 8-2)\n\n(a) \"In accordance with the law\" and legitimate aim\n\n53.   It is clear that the decision to place the child for adoption without the father’s knowledge or consent was in accordance with Irish law as were the decisions taken by the courts concerning the welfare of the child. That they pursued the legitimate aim of protecting the rights and freedoms of the child is evident from the judgments of the High Court and the Supreme Court in this case (see paragraphs 10-14 above).\n\n(b) Necessity in a democratic society\n\n54.   For the Government, the interference was proportionate to the protection of the child’s health as well as of her rights and freedoms. The interpretation of Irish law by the Supreme Court took proper account of the paramount interests of the child. It remained open to the natural father to apply to the courts to be appointed, where appropriate, the guardian and/or custodian of the child.\n\nThey contended that it was fair and wholly consistent with the Convention that special regulations be enforced to protect the interests of a child born out of wedlock. Indeed it would be impractical and potentially harmful to the interests of such a child to grant the natural father rights that extended beyond a right to apply for guardianship. In any event the Adoption Board may, in its discretion, decide to hear the natural father.\n\n55.   The Court notes that the applicant was afforded an opportunity under Irish law to claim the guardianship and custody of his daughter and that his interests were fairly weighed in the balance by the High Court in its evaluation of her welfare. However, the essential problem in the present case is not with this assessment but rather with the fact that Irish law permitted the applicant’s child to have been placed for adoption shortly after her birth without his knowledge or consent. As has been observed in a similar context, where a child is placed with alternative carers he or she may in the course of time establish with them new bonds which it might not be in his or her interests to disturb or interrupt by reversing a previous decision as to care (see, inter alia, the W. v. the United Kingdom judgment of 8 July 1987, Series A no. 121, p. 28, para. 62). Such a state of affairs not only jeopardised the proper development of the applicant’s ties with the child but also set in motion a process which was likely to prove to be irreversible, thereby putting the applicant at a significant disadvantage in his contest with the prospective adopters for the custody of the child.\n\nThe Government have advanced no reasons relevant to the welfare of the applicant’s daughter to justify such a departure from the principles that govern respect for family ties. That being so, the Court cannot consider that the interference which it has found with the applicant’s right to respect for family life, encompassing the full scope of the State’s obligations, was necessary in a democratic society. There has thus been a violation of Article 8 (art. 8).\n\nIII.   ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)\n\n56.   The applicant complained that he had no access to a court under Irish law to challenge the placement of his child for adoption and no standing in the adoption procedure. He invoked Article 6 para. 1 (art. 6-1) of the Convention according to which:\n\n\"1.   In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal ...\"\n\nThe Commission upheld his complaint.\n\nA. Applicability\n\n57.   The Court considers that Article 6 para. 1 (art. 6-1) is applicable to the present dispute (see, inter alia, the above-mentioned W. v. the United Kingdom judgment, pp. 32-35, paras. 72-79). Indeed this has not been seriously contested by the Government in the proceedings before the Court.\n\nB. Compliance\n\n58.   The Government submitted in the first place that the Adoption Board was not a court and thus the fact that the applicant had no statutory right to be heard by that body could not infringe this provision. Secondly, it was open to the applicant to apply to the courts for guardianship and custody of his daughter, which he did. Since these proceedings controlled and determined the activities of the Adoption Board which can make no order where it has notice of such an action, Article 6 para. 1 (art. 6-1) was complied with (see paragraph 20 above).\n\n59.   In the Court’s view the adoption process must be distinguished from the guardianship and custody proceedings. As has been previously observed, the central problem in the present case relates to the placement of the child for adoption without the prior knowledge and consent of the applicant (see paragraph 51 above).  The applicant had no rights under Irish law to challenge this decision either before the Adoption Board or before the courts or, indeed, any standing in the adoption procedure generally (see paragraphs 20-22 above). His only recourse to impede the adoption of his daughter was to bring guardianship and custody proceedings (see paragraphs 8-14 above). By the time these proceedings had terminated the scales concerning the child’s welfare had tilted inevitably in favour of the prospective adopters.\n\nAgainst this background, it is not necessary to decide whether the Adoption Board, which admittedly exercises certain quasi-judicial functions, is a tribunal within the meaning of Article 6 para. 1 (art. 6-1).\n\n60.   There has thus been a breach of this provision.\n\nIV.   ALLEGED VIOLATION OF ARTICLE 14 (art. 14)\n\n61.   The applicant further complained that he had been discriminated against contrary to Article 14 of the Convention in conjunction with Article 8 (art. 14+8) in the enjoyment of his right to respect for family life and in conjunction with Article 6 para. 1 (art. 14+6-1) as regards his right of access to court. He maintained that a married father in similar circumstances enjoyed the full protection of Articles 8 and 6 (art. 8, art. 6).\n\n62.   Having regard to its findings in respect of both of these provisions (see paragraphs 55 and 60 above) the Court does not consider it necessary to examine this complaint (see the above-mentioned Open Door and Dublin Well Woman judgment, p. 32, para. 83).\n\nV.   APPLICATION OF ARTICLE 50 (art. 50)\n\n63.   Article 50 (art. 50) of the Convention provides as follows:\n\n\"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.\"\n\nA. Damage\n\n1. Pecuniary loss\n\n64.   The applicant claimed IR £2,000 which he had been obliged to pay before his entitlement to legal aid in respect of the guardianship and custody proceedings.\n\n65.   The Government made no objection. The Court considers that this sum should be awarded in full.\n\n2. Non-pecuniary loss\n\n66.   The applicant submitted that he should be awarded substantial damages having regard to the fact that his daughter has now been adopted following two years of traumatic court proceedings and that it is unlikely that he will ever be re-united with her. He emphasised, as previously mentioned, that he was not seeking to overturn the adoption order (see paragraph 46 above).\n\n67.   The Government contended that a finding of a violation would constitute adequate just satisfaction in the circumstances of the case.\n\n68.   The Court is of the view that damages are appropriate in this case having regard to the trauma, anxiety and feelings of injustice that the applicant must have experienced as a result of the procedure leading to the adoption of his daughter as well as the guardianship and custody proceedings. It awards him IR £10,000 under this head.\n\nB. Costs and expenses\n\n69.   The applicant claimed a total amount of IR £42,863 by way of costs and expenses. He submitted inter alia an affidavit from a practising cost accountant in  by way of substantiation of the reasonableness of his claim.\n\n70.   The Government submitted that there should be a reduction of IR £5,000 in respect of solicitor’s fees and IR £3,700 in respect of counsel’s fees.\n\n71.   The Court observes that whereas the applicant has furnished it with a detailed substantiation of his claim the Government have provided no evidence in support of their submission. In such circumstances the claim should be allowed in full less 51,691.29 French francs already paid by way of legal aid in respect of fees and expenses.\n\nThis amount is to be increased by any value-added tax that may be chargeable.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.   Holds that it is not necessary to examine the Government’s objection concerning the applicant’s standing to complain on behalf of his daughter;\n\n2.   Dismisses the remainder of the Government’s preliminary objections;\n\n3.   Holds that there has been a violation of Article 8 (art. 8);\n\n4.   Holds that there has been a violation of Article 6 para. 1 (art. 6-1);\n\n5.   Holds that it is not necessary to examine the applicant’s complaint under Article 14 (art. 14);\n\n6.   Holds that  is to pay to the applicant, within three months, IR £12,000 (twelve thousand) in respect of non- pecuniary and pecuniary damage and, in respect of costs and expenses, the sums resulting from the calculation to be made in accordance with paragraph 71 of the judgment.\n\nDone in English and in French, and delivered at a public hearing in the Human Rights Building, , on 26 May 1994.","title":""}
{"_id":"passage_360","text":"PROCEDURE\n\n1.  The case originated in an application (no. 2260/10) against the French Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Congolese national, Mr Deo Tanda-Muzinga (“the applicant”), on 29 December 2009.\n\n2.  The applicant was represented by Mr C. Meyer, a lawyer practising in Strasbourg. The French Government (“the Government”) were represented by their Agent, Ms E. Belliard, Head of the Legal Department, Ministry of Foreign Affairs.\n\n3.  The applicant alleges, in particular, that the obstacles encountered in obtaining visas for his wife and children in the context of the so-called “family reunification” procedure for refugees amounted to a violation of his right to respect for his family life, guaranteed by Article 8 of the Convention.\n\n4.  On 21 September 2010 the application was communicated to the Government.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n5.  The applicant was born in 1970 and lives in Venissieux.\n\nA.  Facts at the time the application was lodged\n\n6.  In the course of 2000 the applicant, a Congolese national, was granted refugee status under the mandate of the United Nations High Commissioner for Refugees in Cameroon (hereafter UNHCR/Cameroon). According to his certificate of refugee status, he was accompanied by his wife, who also held such a certificate, and his children (Vanessa Ntabugi, born in the Democratic Republic of Congo in 1994, and Michelle Tanda-Ngubiri, born in 2001 in Cameroon). The couple had a third child (Benjamin Tanda) who was born in Yaoundé (Cameroon) in 2004, but the applicant was absent when his son was born, having left Cameroon to claim asylum in France.\n\n7.  On 19 July 2004 the French Office for the Protection of Refugees and Stateless Persons (hereafter, the OFPRA) rejected his claim. On 6 August 2004 the applicant appealed against that decision. By a decision of 8 February 2007, the Refugee Appeals Board (the Commission des recours des réfugiés, formerly the National Asylum Tribunal, the Commission nationale du droit d’asile, CNDA) granted the applicant refugee status. He obtained a ten-year residence permit and in April 2007 the OFPRA issued him with a marriage certificate and a family record book (livret de famille), serving as civil-status documents.\n\n8.  By a letter of 26 June 2007, for the purpose of family reunion and on the basis of the “family reunification” procedure for certified refugees (see paragraph 36 below), the applicant applied for long-stay visas for his wife and three children. By a letter of 28 June 2007, the Movement of Aliens Section at the Ministry of Foreign Affairs informed the applicant that it would contact the OFPRA to verify, on the basis of the statements which had enabled him to be granted refugee status, whether those persons were indeed members of the family group, before contacting the French consular services in Yaoundé with a view to compiling an application file for long-stay visas.\n\n9.  By a letter of 13 February 2008, the Visa Section at the Ministry of Immigration informed the applicant that the consular services in Yaoundé would be summoning his family for an interview.\n\n10.  The applicant’s wife was requested to attend an interview at the consulate on 21 February 2008. After she had submitted the necessary documents for compiling the application, the consular authorities asked her to contact the UNHCR/Cameroon delegation to obtain travel papers for herself and her children, in accordance with the Convention of 28 July 1951. She was assured that once she had brought those documents to the consulate she would be issued with an acknowledgement of receipt of the visa application. On 18 March 2008 the applicant’s wife submitted to the consulate a travel document, issued in her name after a favourable opinion had been obtained from the Cameroonian Ministry of External Affairs. This document, which could substitute a national passport, indicated that she was accompanied by her three children. She did not receive an acknowledgment of receipt of her visa application.\n\nHaving received no news on examination of his request, the applicant applied to various authorities, including the consulate in Yaoundé, for information as to why the visas had not been issued, and included a copy of all of the documents in his possession, including his residence permit, the reconstituted documents issued by the OFPRA, his wife’s certificate of refugee status, the document serving as his elder daughter’s birth certificate, and the birth certificates of the two other children.\n\n11.  On 30 May 2008 the applicant lodged an appeal with the Appeals Board against Decisions to refuse Entry Visas to France (the CRRV, hereafter the “Appeals Board”), against the consular authorities’ implicit refusal.\n\n12.  By a letter of 3 June 2008, the OFPRA replied to a letter from the applicant dated 24 January 2008 in the following terms:\n\n“I have the honour to inform you that on 23 July 2007 the Office certified your family’s situation to the visa section. You are registered with the Office as the husband of Mrs Julie Ngubiri Zirirane and father of three children (Vanessa Ntabugi, born on 28 December 1994; Michelle Tanda, born on 4 June 2001; and Benjamin Tanda, born on 3 September 2004). I further observe that your family has been or will shortly be invited to lodge an application for a visa with the consular authorities in Yaoundé”.\n\n13.  On 11 June 2008 the applicant lodged an urgent application before the Conseil d’État, requesting a stay of execution of the consular authorities’ implicit decision to refuse the visas.\n\n14.  On 12 June 2008 the Conseil d’État acknowledged receipt of the appeal for abuse of authority lodged by the applicant calling for judicial review of this implicit decision.\n\n15.  By an order of 23 June 2008, the urgent-applications judge at the Conseil d’État dismissed the urgent application for a stay of execution, on the grounds that the Appeals Board had not yet ruled on the matter.\n\n16.  On 30 July 2008, after two months without any reply from the Appeals Board, which amounted to implicit rejection, the applicant lodged a new urgent application for a stay of execution, as well as an urgent application for protection of a fundamental freedom (requête en référé-liberté), dated 3 August 2008.\n\n17.  By an order of 13 August 2008, the urgent-applications judge at the Conseil d’État rejected the urgent application for protection of a fundamental freedom.\n\n18.  By a letter of 13 August 2008, the applicant was summoned to a hearing on the urgent application for a stay of execution, scheduled for 10 September 2008. The applicant, who attended the hearing on that date, learnt of pleadings by the Minister of Immigration, which he received only on 12 September, contesting the birth certificates of his children Michelle and Benjamin. Following this hearing, the applicant submitted a memorandum for the deliberations.\n\n19.  According to the Government’s observations, the transcripts of the certificates obtained on 13 and 23 April 2008 from the relevant local authorities had revealed that birth certificate no. 1271 held by the civil-status authorities of the 4th arrondissement of Yaoundé concerned the birth of a boy and not that of Michelle Tanda, and that birth certificate no. 78/2004, held by the civil-status authorities of the 2nd arrondissement of Yaoundé, concerned the birth of a girl and not that of Benjamin Tanda.\n\n20.  On 16 September 2008, the urgent-applications judge informed the applicant that he had decided to reopen the investigation in the case and that he had communicated the memorandum for the deliberations to the relevant Minister for Immigration.\n\n21.  By an order of 26 September 2008, the Conseil d’État dismissed the urgent application for a stay of execution:\n\n“[the applicant] alleges that ... the criterion of urgency has been met, in that he has been living separately from his wife and children for almost four years; [that the impugned decision] is tainted by error of law, in that by refusing to issue visas on the grounds that certain civil-status documents were absent, it breached Article 11 of Directive (EC) no.200/86 of 22 September 2003 on the right to family reunification; ... that the submitted documents cannot be considered of doubtful authenticity; that he [had] provided evidence establishing his family ties with his wife and his children; that his children’s birth certificates had been registered by the Office of the High Commissioner for Refugees;\n\n... the Minister alleges ... that the criterion of urgency has not been met, in that responsibility for the separation lies with the applicant; that the latter has not established that he has maintained regular written or telephone contact with his family or has contributed to their upkeep since his departure; that the argument alleging a breach of the Directive of 22 September 2003 is ineffective, in so far as it has been correctly transposed into domestic law and cannot therefore have direct effect; that this text does not require the national authorities to issue a visa to an applicant who has not established his or her filiation with the refugee; that the submission of fraudulent documents is a public policy reason justifying the rejection of visa applications submitted in a family context; ...\n\nIt appears from the facts of the case ... that visa applications submitted by [the applicant], who has refugee status in France, in respect of his wife Julie B. and his three children, Vanessa C., Michelle D. and Benjamin D., were refused on the grounds that filiation had not been established for the latter two children on account of the doubtful authenticity of the submitted birth certificates; the argument that such a ground could not be a legal basis for the decision to refuse [the visas] is not such, as the evidence stands, to give rise to serious doubts as to the lawfulness of this decision, in view of the outcome of the civil-status verifications carried out by the French Consulate General in Yaoundé and the fact that the fraudulent nature of the request was such as to entail refusal not only of visas applied for in respect of these two children, but also in respect of his wife and his third child...”\n\n22.  On 6 October 2008, in the context of an appeal for judicial review, the relevant Minister filed a memorial concluding that the birth certificates of Michelle and Benjamin Tanda were fraudulent. With regard to the alleged violations of Articles 3 and 8 of the Convention, he responded that it had already been shown that the applicant had abandoned his wife and putative children, that the parent-child relationship had not been established and that the applicant had not shown that he had maintained ties with them. The applicant responded by arguing that an anomaly in the referencing of the birth certificates was not sufficient to establish the doubtful authenticity or fraudulent nature of the documents submitted by his wife. He noted firstly, with regard to Benjamin’s birth certificate, “that it was not certain that the certificate sought by the authorities was related to the document in question, given that the first component of its reference number seemed to be made up of three figures, rather than two (“?78/2004”) (see paragraph 19 above), which would be more coherent, given the date it had been drawn up, in September 2004”. He argued that the Minister did not explain how UNHCR/Cameroon had issued a Family Composition Certificate (dated 26 September 2008, referring to his wife and his three children) and official travel documents permitting his family to travel internationally. He pointed out that he had submitted to the court correspondence from the Cameroonian Ministry for External Relations, dated 11 March and 13 August 2008, drawn up in the context of the checks conducted with a view to issuing those travel documents (travel document for the child Michelle, issued on 26 August 2008 following the favourable opinion of 13 August 2008). He added that the authenticity of the other documents submitted to the court had not been called into question, namely the declaration of Michelle’s birth, issued by the Cité Verte District Hospital in Yaoundé, and the declaration of Benjamin’s birth, issued by the Yaoundé Police Medical Centre, nor that of the travel documents for his first two children, drawn up on 26 August 2008. Lastly, he indicated that other evidence submitted to the court, photographs and bank transfer statements, invalidated the Immigration Ministry’s arguments as to the reality of his ties with his wife and children.\n\n23.  On 7 October 2008 UNHCR/Cameroon drew up a “certifiate of parenthood”, stating that the applicant and his wife were the legitimate parents of the children known as Michelle Tanda-Ngubiri and Benjamin Tanda.\n\n24.  By a letter of 22 May 2009, the applicant’s lawyer informed him that a hearing had taken place before the Conseil d’État on 20 May 2009; the public rapporteur had proposed that his appeal be dismissed and had suggested that judicial rectification of the civil-status documents of the children concerned be carried out in Cameroon.\n\n25.  By a judgment of 8 July 2009, served on 5 August, the Conseil d’État rejected the appeal. It pointed out that the transcripts of the certificates, obtained by the French authorities in the Cameroonian civil-status offices for the purpose of verifying the civil-status documents of the two children born in that country, had shown that two totally different birth certificates had been issued under the same reference numbers, and concerned third parties. It considered that even if the fraudulent nature of one of the two certificates had not been demonstrated, this did not create any doubt as to evidence of the inauthenticity of the second certificate, and concluded that “in those circumstances, neither the submission of declarations of birth from the Yaoundé Maternity Hospital and the Yaoundé Police Medical Centre, not the allegation that this discrepancy originated in dysfunctions within the Cameroonian civil-status authorities, allow for the fraudulent nature of at least one of the documents thus produced to be set aside”. Lastly, it specified that the fraudulent nature of at least one of the submitted documents was such as to entail refusal of all of the requested visas.\n\n26.  On 16 July 2009 a psychologist from the Comité inter-mouvements auprès des évacués (CIMADE) certified that the applicant’s psychological health had deteriorated, and described a worsening state of depression. She submitted that “in addition to the traumatic events experienced in his country, [the applicant] is currently developing reactional depression as a result of the separation from his family, which has lasted for several years... Although he was simultaneously actively engaged in preparing a professional insertion plan, the applicant is finding it increasingly difficult to take the necessary steps and is sliding into a form of apathy”.\n\n27.  In a letter of 17 July 2009, the applicant’s lawyer confirmed that the appeal had been dismissed and informed him that the public rapporteur’s closing arguments were not available in writing.\n\n28.  Following that decision, the applicant contacted the UNHRC/Paris Office and the Director of the OFPRA. By a letter of 18 August 2009, the former replied that, according to the information communicated by the Cameroonian delegation, the French Consulate in Yaoundé was willing to issue a visa to his wife and to two of his children, Vanessa and Benjamin. With regard to the birth certificate for his daughter Michelle, he was advised to submit a request to the Yaoundé tribunal de grande instance for a supplementary judgment relating to a birth certificate. By a letter of 21 August 2009, the Director of the OFPRA wrote to the CIMADE, which had also received the applicant’s file; he was considering transferring his refugee status to another country. In that letter, the Director pointed out that his department, by a memorandum of 23 July 2007, had certified his family situation to the sub-directorate for visas in Nantes, the only administrative body with competence for the family reunification of foreigners.\n\n29.  The applicant’s wife brought proceedings before the Yaoundé Court of First Instance, seeking to obtain a supplementary judgment concerning Michelle’s civil status. By a judgment of 27 October 2009, that court declared that it did not have jurisdiction. On 24 February 2010 she brought proceedings before the Yaoundé tribunal de grande instance for the same purpose.\n\n30.  By a decision of 30 April 2010, following a further request by the applicant’s family, the consular authorities refused to issue long-stay visas.\n\n31.  According to the Government, new checks carried out in 2010 established that it had been possible to authenticate Benjamin’s birth certificate but the doubtful authenticity of the birth certificate produced for Michelle, which had been double-checked, had prompted the consular authorities to maintain their refusal to issue visas to the whole family.\n\n32.  On 18 June 2010 the applicant brought proceedings before the Appeals Board against the decision of 30 April 2010. His request was implicitly refused.\n\nB.  Facts which occurred after communication of the application\n\n33.  On 20 September 2010 the applicant applied to the urgent-applications judge at the Nantes Administrative Court seeking an order for a stay of execution of the Appeal Board’s implicit decision to refuse his request. By an order of 28 October 2010, the urgent-applications judge ordered a stay of execution of that decision on the ground that the reasons for the rejection had not been communicated. He added:\n\n“... further, as the evidence stands, although there is uncertainty as to the parent-child relationship in respect of one of the three children, Michelle, [the applicant] refers, without however submitting it, to a supplementary judgment which purportedly substantiates his allegations; having regard to the length of time that the applicant has been separated from his family, the criterion of urgency is met; ... it is appropriate to direct the Minister to re-examine the visa application within one month of notification of the present order”.\n\n34.  According to the applicant, on 19 November 2010 UNHCR/Cameroon’s lawyer forwarded to him, and to the French authorities, the original copy of a judgment delivered by the Yaoundé tribunal de grande instance on 3 June 2010, reconstituting the birth certificate for the child Michelle. That judgment indicates that, on the day following Michelle’s birth, a declaration of birth had been duly drawn up by the doctor at the Yaoundé Cité Verte Hospital and handed to her mother, for the purpose of having the child’s birth certificate issued by the Yaoundé IV district office. However, as the applicant’s wife had been unaware of the rules in force in Cameroon for this administrative procedure, she had entrusted this declaration of birth to a third party, who had demanded and obtained from her the sum of 20,000 Central African francs (CFA) in order to obtain the birth certificate; this third party had given her a document presented as birth certificate no. 1271/2001, allegedly drawn up and signed by the mayor of Yaoundé IV. The tribunal de grande instance specified that since this document was a forgery Michelle’s birth certificate had never been issued, and it ordered that this step be taken.\n\n35.  By a letter of 17 January 2011, the Government informed the Court that on 8 December 2010 the French consular authorities had issued the long-stay visas requested by the applicant’s wife and children. They alleged that, during the period in which the visa applications were re-examined, the applicant had communicated to the consular authorities the judgment of 3 June 2010 to which he had referred but had not produced in the course of the proceedings.\n\n...\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION\n\n50.  The applicant alleged that the consular authorities’ prolonged refusal to issue the visas to this wife and his children had infringed his right to respect for his private life as guaranteed by Article 8 of the Convention, which reads as follows:\n\n“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.\n\n2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”\n\nA.  Admissibility\n\n51.  The Government requested that the case be “struck out”, as the applicants could no longer claim to be “victims” of a violation of Article 8 of the Convention, given that they had obtained the visas. They explained that the French authorities had agreed in principle to family reunification (see paragraph 9 above) and that it was only the discovery of the irregularities in the civil-status documents submitted in support of the visa applications which had delayed the issue of these visas. They had been issued as soon as the Yaoundé tribunal de grande instance’s judgment of 3 June 2010 had been brought to the authorities’ attention. Examination of a possible violation of Article 8 § 1 of the Convention had thus ended at the stage of evidence of the documents’ authenticity; verification of the genuine nature of the applicant’s filiation had been essential standard practice, was in accordance with the legislation and could not be contrary to the stipulations of Article 8.\n\n52.  The applicant contested the Government’s submissions, arguing that they had neither recognised nor afforded redress for the alleged violation of the Convention. In this connection, he argued that the order in his favour issued by the urgent-applications judge on 28 October 2010 (see paragraph 33 above) had not been taken on the basis of a violation of fundamental rights, but on the grounds of a failure to communicate the reasons for the Appeal Boards’ refusal. The applicant considered that the Government had grasped the pretext provided by UNHCR/Cameroon’s communication of the judgment of 3 June 2010 to find a solution to the dispute, in breach of Article 11 of the European Directive 2003/86/EC ... He emphasised that there had been no need for an interminable administrative procedure that went against the evidence in the documents provided by UNHCR/Cameroon. The applicant added that his daughter Vanessa had been raped in Cameroon during this lengthy period; following an unwanted pregnancy, she had given birth, aged fifteen, in December 2010, two weeks after arriving in France. The reason for her being granted refugee status had been precisely because she was at risk of being raped or assassinated; in the applicant’s opinion, it was the incompetence of the French authorities which had led to this tragedy.\n\n53.  The Court considers it appropriate to examine the Government’s request as a plea of inadmissibility, based on the applicant’s loss of “victim” status within the meaning of Article 34 of the Convention.\n\n54.  It is the settled case-law of the Court that the word “victim” in the context of Article 34 of the Convention denotes the person directly affected by the act or omission in issue. The existence of a violation of the Convention is conceivable even in the absence of prejudice; prejudice is relevant only in the context of Article 41. Consequently, a decision or measure favourable to an applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Nada v. Switzerland [GC], no. 10593/08, § 128, ECHR 2012).\n\n55.  In the instant case, the Court notes that the applicant’s family had been able to join him once the visas had been issued. However, this measure was taken in December 2010 – in other words, three and a half years after his request for family reunification, and well after the applicant had sought a ruling from the domestic courts on the alleged violation of the Convention. The French authorities had not explicitly recognised, either in the domestic proceedings or before the Court, that there had been a violation of the applicant’s Convention rights during that period. Moreover, the decision to issue the visas was not followed by redress for the purposes of the Court’s case-law, cited above. Accordingly, the Court considers that the applicant can still claim to be a “victim” within the meaning of Article 34 of the Convention.\n\n56. Nonetheless, the Court notes that the Government have requested it to strike out the application. The Court must therefore determine whether the new facts brought to its notice, namely that the visas have been issued, can lead it to conclude that the dispute has now been resolved or that, for another reason, it is no longer justified to continue the examination of the application and, in consequence, that the application may be struck out of the Court’s list in application of Article 37 § 1 of the Convention, which states:\n\n“1.  The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that\n\n(a)  the applicant does not intend to pursue his application; or\n\n(b)  the matter has been resolved; or\n\n(c)  for any other reason established by the Court, it is no longer justified to continue the examination of the application.\n\nHowever, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”\n\n57.  As the applicant has clearly indicated that he wishes to pursue his application, sub-paragraph (a) of this provision is not applicable. However, this does not exclude the application of sub-paragraphs (b) or (c) without the applicant’s agreement, as his or her consent is not a criterion in this regard (see Akman v. Turkey (striking out), no. 37453/97, ECHR 2001VI). In order to conclude that the matter has been resolved within the meaning of Article 37 § 1 (b) and that that there is therefore no longer any objective justification for the applicant to pursue his application, the Court considers that it is necessary to examine, firstly, whether the circumstances complained of directly by the applicant still obtain and, secondly, whether the effects of a possible violation of the Convention on account of those circumstances have also been redressed (see Pisano v. Italy (striking out) [GC], no. 36732/97, § 42, 24 October 2002; Shevanova v. Latvia (striking out) [GC], no. 58822/00, § 45, 7 December 2007; and Konstantin Markin v. Russia [GC], no. 30078/06, § 87, ECHR 2012 (extracts)).\n\n58.  In the present case, the applicant’s family obtained the necessary visas for travel to France on 8 December 2010, and reunification has been achieved. The substantive facts complained of by the applicant have thus ceased to exist. It remains therefore to be ascertained whether the possibility of leading a family life following the issuing of the visas is sufficient to erase the possible consequences of the situation of which the applicant complained to the Court. In this connection, the Court notes that the applicant, who held a residence permit issued following the granting of refugee status, applied in June 2007 for family reunification in respect of those members of his family who remained under the international protection afforded by the remit of the Office of the United Nations High Commissioner for Refugees in Cameroon. Yet it was not until December 2010, that is, three and a half years after the application for family reunification, and following more than six years of family separation, that the French authorities issued the visas that would enable the family to be reunited. During this period, the applicant took all the necessary legal steps to establish his parent-child relationship with Michelle and Benjamin in order to overcome the obstacles to the reunification of the family, which had also suffered an ordeal as a result of the lengthy separation following his departure from Cameroon (see paragraph 52 above). In view of this long period of uncertainty and of the serious consequences of this separation for the applicant and for his family (see paragraph 52 above), the Court considers that the effects of a possible violation of the Convention have not been sufficiently redressed for it to find that the matter has been resolved within the meaning of Article 37 § 1 (b) of the Convention (see, mutatis mutandis, Polidario v. Switzerland, no. 33169/10, § 58, 30 July 2013). In this connection, it considers that the present case differs from the above-cited Shevanova judgment, in which the applicant, who was subject to an expulsion order, had had her situation regularised several years later, having remained on Latvian territory throughout and having adopted “a manifestly fraudulent attitude”, thus delaying through “her own conduct” the issuing of a permanent residence permit that would have enabled her to maintain her relationship with her adult son and to exercise freely her right to respect for her family life in Latvia. Furthermore, in the present case the applicant’s children were minors and had been separated from him for more than six years; they were in a difficult situation following their flight from the Democratic Republic of Congo, which necessarily entailed serious consequences that their subsequent reunion had not been able to redress sufficiently.\n\n59.  Accordingly, the Court rejects the Government’s request to strike the application out under Article 37 § 1 (b) of the Convention.\n\n60.  Moreover, the Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n1.  The parties’ submissions\n\n61.  The applicant complained of an abuse of process on account of the allegation that he had committed fraud in breach of public policy – an act capable of amounting to a criminal offence –, which had ended with an acknowledgment, without a word of excuse, of the genuine nature of the family ties that he had established from the outset with the help of the UNHCR. He submitted that the judgment of 3 June 2010 reconstituting his daughter Michelle’s birth certificate could not have come as a surprise to the French authorities, or been a decisive factor in granting all of the requested visas, given that the documents forwarded directly by the UNHCR to the French authorities as far back as 2007 confirmed that the parent-child relationship was genuine. The production of this judgment changed nothing, since, on the one hand, the case file enabling filiation to be proved was fairly convincing, and, on the other, because the decisions to refuse visas to the whole family did not depend on this reconstitution. The applicant pointed out that the urgent-applications judge had held that the criterion of urgency was not met because he had not maintained relationships with his relatives and because the birth certificates of the children Michelle and Benjamin were fraudulent. According to the applicant, this example in itself demonstrated that “the issue was far from being that of re-establishing [the child] Michelle’s filiation”.\n\n62.  The applicant argued that the concept of public order relied on in the present case was vague. He considered that the impugned refusal was not in any event necessary, since alternative and less radical solutions could have been taken: a request for additional information from the parties, so that the Ministry of Immigration could have been invited to submit questions to the Cameroonian authorities – including the Yaoundé tribunal de grande instance –, a short-term visa pending the submission of supplementary documents, a DNA test.\n\n63.  The Government pointed out that decisions in family reunification cases were required to comply with Article 8 (Conseil d’État, Aykan, 10 April 1992). They alleged that the impugned decision was in accordance with the law, namely section L. 211-1 of the CESEDA... In addition, the authorities had been justified in verifying the authenticity of the civil-status documents submitted to them, under Article 47 of the Civil Code. They further claimed that the national authorities had been pursuing a legitimate aim, that of combatting documentary fraud, which was a threat to public order. According to the Government, the Court had, in this connection, acknowledged that the fact of States exercising their right to control the entry and residence of aliens was an element in ensuring public order. In the present case, the submission of fraudulent documents was a reason of ordre public (public policy) which justified the impugned decision... With regard to the certificate submitted by UNHCR/Cameroon, the Government considered that a document of this sort had no bearing on the checks carried out by the consular authorities. A certificate by that organisation did not amount to evidence of a parent-child relationship, given that it was a document drawn up on the basis of a mere statement, or following the submission of documents in respect of which it was not the UNHCR’s task to verify whether they were authentic.\n\nLastly, the Government considered that the impugned measure had been proportionate to the aim pursued and struck a fair balance between the competing interests. They drew attention to the margin of appreciation enjoyed by the States in the area of immigration, the fact that the applicant’s situation had been examined on several occasions and that the visas had been issued as soon as the judgment of 3 June 2010 was received.\n\n2.  The Court’s assessment\n\n(a)  Applicable principles\n\n64.  In the context of positive obligations as in that of negative obligations, the State must strike a fair balance between the competing interests of the individual and those of the community as a whole. It enjoys a certain margin of appreciation in this regard (see Tuquabo-Tekle and Others v. the Netherlands, no. 60665/00, § 42, 1 December 2005, and Osman v. Denmark, no. 38058/09, § 54, 14 June 2011).\n\n65.  The Court has recognised that, subject to its treaty obligations, a State has the right to control the entry of non-nationals into its territory. Article 8 does not impose on the Contracting States any general obligation to respect immigrants’ choice of the country of residence and to authorise family reunion in its territory (see Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 67, Series A no. 94, and Berisha v. Switzerland, no. 948/12, § 49, 30 July 2013).\n\n66.  Nevertheless, in a case which concerns family life as well as immigration, the extent of a State’s obligations will vary according to the particular circumstances of the persons involved and the general interest. Factors to be taken into account in this context are the extent to which family life would effectively be ruptured, the extent of the ties of the persons concerned in the Contracting State, whether there are insurmountable obstacles in the way of the family living in the country of origin of the alien concerned and whether there are factors of immigration control or considerations of public order weighing in favour of exclusion (see Rodrigues da Silva and Hoogkamer v. the Netherlands, no. 50435/99, §  39, ECHR 2006I, and Antwi and Others v. Norway, no. 26940/10, §§ 88-89, 14 February 2012).\n\n67.  Where children are concerned, the national authorities must, in assessing proportionality for the purposes of the Convention, take account of their best interests (see Popov v. France, nos. 39472/07 and 39474/07, § 139, 19 January 2012, and Berisha, cited above, § 51).\n\n68.  The Court further reiterates, by way of comparison, that in the event of deportation, aliens benefit from the specific guarantees provided for in Article 1 of Protocol No. 7. Whilst such guarantees with regard to the family life of aliens are not regulated by the Convention under Article 8, which contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8 (see, in general, McMichael v. the United Kingdom, 24 February 1995, § 87, Series A no. 307B, and, in particular, Cılız v. the Netherlands, no. 29192/95, § 66, ECHR 2000VIII, and Saleck Bardi v. Spain, no. 66167/09, § 30, 24 May 2011). In this area, the quality of the decision-making process depends on the speed with which the State takes action (see Ciliz, cited above, § 71; Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, no. 13178/03, § 82, ECHR 2006XI; Saleck Bardi, cited above, § 65; and Nunez v. Norway, no. 55597/09, § 84, 28 June 2011).\n\n69.  Lastly, the Court considers it appropriate to reiterate its recent case-law finding that, in respect of the burden of proof for asylum seekers, it has considered that, having regard to the special situation in which they find themselves, it is appropriate in numerous cases to give them the benefit of the doubt when assessing the credibility of their statements and the documents submitted in support thereof. Equally, when information is presented which gives strong reasons to question the veracity of an asylum-seeker’s submissions, the individual must provide a satisfactory explanation for the alleged inaccuracies in those submissions (see F.N. and Others v. Sweden, no. 28774/09, § 67, 18 December 2012). Likewise, the applicant is responsible for providing a satisfactory explanation so as to address any relevant objections as to the authenticity of the documents submitted (see Mo.P. v. France (dec.), no. 55787/09, 30 April 2013).\n\n(b)  Application to the present case\n\n70.  The Court notes that the applicability of Article 8 of the Convention to the present case is not in dispute between the parties. It further notes that the procedure for family reunification can be broken down into two parts. Once authorisation has been given by the Prefect, the family members concerned are required to obtain an entry visa to France; the issuing of such visas is not automatic, since it is subject to the requirements of the maintenance of public order. The Court therefore considers that the disputed refusal to issue the visas does not amount to an “interference” in the applicant’s exercise of his right to respect for his family life, but that the case concerns an alleged failure on the part of the respondent State to comply with a “positive obligation”.\n\n71.  According to the applicant, the decision-making process which led the national authorities to refuse initially to issue visas to the members of his family had not guaranteed the protection of his interests. He pointed out, in particular, the failure to take account of both his refugee status and the urgency of examining carefully the visa applications. The Government submitted that the impugned refusal was based on public-order considerations which had been verified at several stages of the procedure in line with the State’s margin of appreciation in this area, before the applicant submitted the judgment reconstituting the birth certificate for his daughter Michelle.\n\n72.  The Court accepts that the national authorities are faced with a delicate task when having to assess the authenticity of civil-status documents, on account of the difficulties that arise in some cases from failings on the part of the civil-status authorities in certain countries from which migrants originate, and the associated risks of fraud. The national authorities are, in principle, best placed to assess the facts on the basis of the evidence gathered by or submitted to them (see Z.M. v. France, no. 40042/11, § 60, 14 November 2013) and they must therefore be allowed a measure of discretion in this regard. This was the conclusion of the French Constitutional Council, for which the right of aliens – who are stably and regularly resident in France – to bring to the country their minor children and their spouse is subject to a procedure for checking civil-status documents, something that can prove difficult and time-consuming... The Court cannot but observe that, in the present case, the consular authority noted that the applicant’s wife had submitted a false document in respect of their daughter Michelle, although it cannot be excluded that she was unaware of its fraudulent nature (see paragraph 34 above), and that the national courts decided that this circumstance was sufficient to justify the refusal to issue all of the requested visas.\n\n73.  However, the Court considers that, in view of the decision taken some months previously to grant the applicant refugee status, and the subsequent recognition of the principle that he was entitled to family reunification, it was of crucial importance that the visa applications be examined promptly, attentively and with particular diligence. It is not the Court’s task to take the place of the competent authorities in examining whether or not the civil-status certificates submitted in support of the request for family reunification were fraudulent within the meaning of Article 47 of the Civil Code. However, the Court is competent to ascertain whether the domestic courts, in applying and interpreting the provisions of that provision, secured the guarantees set forth in Article 8 of the Convention, taking into account the applicant’s refugee status and the protection of his interests protected by it. In this connection, it considers that, in the circumstances of the present case, the respondent State was under an obligation, in order to respond to the applicant’s request, to institute a procedure that took into account the events that had disrupted and disturbed his family life and had led to his being granted refugee status. The Court will therefore concentrate its assessment on the quality of this procedure and focus its attention on the “procedural requirements” of Article 8 of the Convention (see paragraph 68 above).\n\n74.  In this connection, the Court observes that the applicant’s family life had been discontinued purely as a result of his decision to flee his country of origin, out of a genuine fear of persecution within the meaning of the 1951 Geneva Convention (see Mayeka and Kaniki Mitunga, cited above, § 75, and TuquaboTekle and Others, cited above, § 47). Accordingly, and contrary to what was consistently asserted by the relevant ministry throughout the interlocutory proceedings and the proceedings on the merits (see paragraphs 21 and 22 above), and until the communication of the application to the respondent Government, the applicant could not be held responsible for the separation from his family. The arrival of his wife and children, who were aged three, six and thirteen at the time of the request for family reunification and were themselves refugees in a third country, was thus the only means by which family life could resume.\n\n75.  The Court reiterates that the family unity is an essential right of refugees and that family reunion is an essential element in enabling persons who have fled persecution to resume a normal life (see the UNHCR’s remit...). It further reiterates that it has held that obtaining such international protection constitutes evidence of the vulnerability of the parties concerned (see Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 155, ECHR 2012). In this connection, it notes that there exists a consensus at international and European level on the need for refugees to benefit from a family reunification procedure that is more favourable than that foreseen for other aliens, as evidenced by the remit and the activities of the UNHCR and the standards set out in Directive 2003/86 EC of the European Union .... In this context, the Court considers that it was essential for the national authorities to take account of the applicant’s vulnerability and his particularly difficult personal history, to pay close attention to his arguments of relevance to the outcome of the dispute, to inform him of the reasons preventing family reunification, and, lastly, to take a rapid decision on the visa applications.\n\n76.  From this perspective, the Court considers it relevant to take account of the standards set out in the international instruments in this area and to bear in mind the recommendations of non-governmental organisations (NGOs) specialising in the rights of aliens. Thus and before further examination of the merits, it observes that the International Convention on the Rights of the Child recommends that applications for family reunification be examined in a flexible and human manner. It attaches importance to the fact that the Council of Europe’s Committee of Ministers and its Human Rights Commissioner have supported and clarified this objective... With regard to forms of evidence, it notes in Directive 2003/86/EC of the European Union ... and in various texts issued by international sources and NGOs that national authorities are encouraged to take into consideration “other evidence” of the existence of family ties if the refugee is unable to provide official supporting documents. The UNHCR, the Council of Europe and the NGOs have concurred in drawing attention to the importance of broadening these forms of evidence; ... and the Cimade has expressed the hope that the relevant French authorities would take account of documents serving as civil-status documents issued by the OFPRA, and those already verified by that Office .... Lastly, it is important to note that several reports have criticised the practices preventing family reunification, on account of the excessive length and complexity of the procedure for issuing visas; they have emphasised the need to shorten the procedure by showing greater flexibility in respect of the requirements regarding the evidence attesting to family ties ....\n\n77.  In the present case, the course of the contested proceedings, as described above, may be summarised as follows:\n\n(a)  The applicant made his first application for family reunification in June 2007 and the agreement in principle was given on 13 February 2008, eight months later. His family was then summoned to the French Consulate in Yaoundé, which launched a verification procedure about which the applicant was not informed. Without news of the outcome of his application, and unaware of the obstacles to the issuing of the visas, the latter lodged an appeal against the implied decision of rejection, to which the Appeals Board did not reply. It was only at the hearing on the urgent application for a stay of execution, in September 2008, that the applicant learnt of the pleadings filed by the Minister of Immigration contesting the birth certificates of his children Michelle and Benjamin.\n\n(b)  Following a suggestion apparently made by the public rapporteur at the hearing held by the Conseil d’État on 20 May 2009 on an application for judicial review brought by the applicant, the latter’s wife applied to the Yaoundé tribunal de grande instance for judicial rectification of their daughter Michelle’s birth certificate.\n\n(c)  Faced with the dismissal of his appeal by the Conseil d’État in July 2009, the applicant submitted a second application for family reunification. This was also dismissed, without reasons, in April 2010 and the Appeals Board did not reply to the appeal lodged by him.\n\n(d)  Following further checks carried out in 2010, more than two years after the application for family reunification, it proved possible to authenticate Benjamin’s birth certificate, as the Government accepted (see paragraph 31 above).\n\n(e)  After communication of the application to the Government by the Court, on 21 September 2010 the applicant obtained an order from the urgent-application’s judge in which the latter stated that “having regard to the length of time that the applicant has been separated from his family, the criterion of urgency is met”, and directed the Minister to re-examine the visa application.\n\n(f)  On 19 November 2010 UNHCR/Cameroon’s lawyer forwarded the judgment reconstituting the birth certificate of the applicant’s daughter, and the consular authorities issued the visas one month later.\n\n78.  Against this background, the Court notes that in the absence of the explanations and reasons which were nonetheless required by law ..., the applicant was not in a position to understand the precise objections to his plan until September 2008, that is, fifteen months after his first application for family reunification. It also notes that the competent authorities, who were aware of the proceedings before the Cameroonian courts seeking the reconstitution of Michelle’s birth certificate (see paragraph 24 above), did not see fit to enquire as to the progress of those proceedings when refusing to issue the visas for the second time (see paragraph 32 below). Lastly, following further checks in 2010, they eventually found that the parent-child bond with his son Benjamin had been established, although it had been contested in the same way as the relationship with his daughter Michelle (see paragraphs 21, 24 and 31 above).\n\n79.  The Court further observes the difficulties encountered by the applicant when seeking to participate effectively in the proceedings and in putting forward the “other evidence” establishing family ties. Yet the applicant had declared his family ties from the start of his asylum application, and immediately after his reunification application the OFPRA had certified the family composition in documents that were deemed to be authentic (see paragraphs 8, 12, 28... above). Furthermore, the Court attaches importance to the fact that the UNHCR, convinced of the authenticity of their case, had assisted the applicant and later his family from the time of their flight from the Democratic Republic of Congo until the conclusion of the proceedings (see the numerous documents in paragraphs 22 and 23 and paragraph 28 above; see also, mutatis mutandis, Mayeka and Kaniki Mitunga, cited above, § 82). The Cameroonian Ministry of Foreign Affairs had also approved his wife’s travel papers, which specified that she was accompanied by her three children (see paragraph 10 above) and subsequently approved Michelle’s travel papers (see paragraph 22 above). Finally, the applicant had adduced other evidence proving that he had maintained contacts with his family (see paragraph 22 above). The Court considers that this evidence was not without relevance; the applicant could reasonably have expected that it would be seen as attesting to his past family life and that the national authorities would give it due consideration.\n\n80.  Lastly, the Court notes that it took almost three and a half years for the national authorities to cease contesting the parent-child relationship between the applicant and his children. This lapse of time was excessive, having regard to the applicant’s specific situation and what was at stake for him in the verification procedure.\n\n81.  All of the above considerations reveal the agonising and apparently hopeless situation in which the applicant found himself. The Court notes that the accumulation and protracted nature of the numerous hurdles encountered in the course of the proceedings by the applicant – who had already been subject to traumatic experiences which justified the granting of refugee status (see paragraph 26 above) – have left him in a state of severe depression.\n\n82.  Having regard to the foregoing, and notwithstanding the margin of appreciation left to the respondent State in this area, the Court considers that the national authorities did not give due consideration to the applicant’s specific situation, and concludes that the decision-making process did not offer the guarantees of flexibility, promptness and effectiveness required in order to secure his right to respect for family life under Article 8 of the Convention. Accordingly, the State has failed to strike a fair balance between the applicant’s interests on the one hand and its own interest in controlling immigration on the other.\n\nThere has therefore been a violation of Article 8 of the Convention.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\n...\n\n2.  Holds, that there has been a violation of Article 8 of the Convention;\n\n...\n\nDone in French, and notified in writing on 10 July 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_529","text":"PROCEDURE\n\n1.  The case originated in an application (no. 3316/04) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Mr Bozhidar Mihaylov Bozhkov (“the applicant”), on 22 January 2004.\n\n2.  The applicant was represented by Mr Y. Grozev, a lawyer practising in . The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Dimova, of the Ministry of Justice.\n\n3.  The applicant alleged that his conviction and punishment for writing a newspaper article had been in breach of his right to freedom of expression.\n\n4.  On 24 June 2008 the President of the Fifth Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 1 of the Convention), and to conduct the proceedings in the case simultaneously with those in Kasabova v. Bulgaria (no. 22385/03) (Rule 42 (former 43) § 2 of the Rules of Court).\n\n5.  The application was later transferred to the Fourth Section of the Court, following the recomposition of the Court’s sections on 1 February 2011.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\nA.  The applicant and the newspaper\n\n6.  The applicant, born in 1968, is a journalist by profession. At the relevant time he was employed by Sega, a national daily newspaper, working as a correspondent in his hometown of Burgas.\n\nB.  Background to the case\n\n7.  In the Bulgarian education system, after the seventh or eighth grade, when pupils complete their primary education, they can continue either in an ordinary or in a specialised secondary school. The ordinary secondary schools’ curriculum does not usually involve the intensive teaching of a special subject such as mathematics, foreign languages or engineering. Enrolment in them is on the basis of documents only and does not typically present a problem. The curriculum of the specialised secondary schools does include the teaching of such subjects, and pupils are admitted to them exclusively on the basis of competitive examinations, which take place in June (the school year in  starts on 15 September). Under regulations issued by the Ministry of Education and Science, pupils with certain medical conditions can be admitted to specialised secondary schools without an examination, as an exceptional measure.\n\n8.  On 5 May 2000 the head of the Burgas education inspectorate, a territorial division of the Ministry of Education and Science, appointed a commission to select for admission to specialised secondary schools pupils with certain chronic medical conditions or special educational needs. The commission’s members were four employees of the inspectorate, Ms T.K., Ms A.M., Mr R.E. and Mr G.D., and a paediatrician, Dr N.P.\n\n8.  On 5 May 2000 the head of the Burgas education inspectorate, a territorial division of the Ministry of Education and Science, appointed a commission to select for admission to specialised secondary schools pupils with certain chronic medical conditions or special educational needs. The commission’s members were four employees of the inspectorate, Ms T.K., Ms A.M., Mr R.E. and Mr G.D., and a paediatrician, Dr N.P.\n\n9.  On 12 June 2000 fourteen parents of children who were sitting competitive examinations to gain admission to specialised secondary schools wrote a letter to the Ministry of Education and Science. They said that one hundred and fiftyseven children had been admitted to specialised secondary schools in Burgas on the basis of a medical condition and not following a competitive examination. Most of those were apparently the children of medical doctors, paramedical staff and teachers. The parents complained that whereas they were paying thousands of levs for private preparatory lessons, certain pupils had been bragging that they would be admitted to the English Secondary School in Burgas in exchange for paying 300 Bulgarian levs (BGN); indeed, only a month later this had become a fact. They cited several examples of perfectly healthy children who had been diagnosed as suffering from serious chronic illnesses. They said that they were not blaming the admissions commission, which had merely been taking note of the prior conclusions of medical doctors and allocating the pupils to schools depending on the nature of their purported health problems. They insisted that the Ministry should set up a special commission to investigate. A number of parents subsequently staged daily public protests in front of the building of the Burgas education inspectorate.\n\n9.  On 12 June 2000 fourteen parents of children who were sitting competitive examinations to gain admission to specialised secondary schools wrote a letter to the Ministry of Education and Science. They said that one hundred and fiftyseven children had been admitted to specialised secondary schools in Burgas on the basis of a medical condition and not following a competitive examination. Most of those were apparently the children of medical doctors, paramedical staff and teachers. The parents complained that whereas they were paying thousands of levs for private preparatory lessons, certain pupils had been bragging that they would be admitted to the English Secondary School in Burgas in exchange for paying 300 Bulgarian levs (BGN); indeed, only a month later this had become a fact. They cited several examples of perfectly healthy children who had been diagnosed as suffering from serious chronic illnesses. They said that they were not blaming the admissions commission, which had merely been taking note of the prior conclusions of medical doctors and allocating the pupils to schools depending on the nature of their purported health problems. They insisted that the Ministry should set up a special commission to investigate. A number of parents subsequently staged daily public protests in front of the building of the Burgas education inspectorate.\n\n10.  Following this complaint, on 7 July 2000 the Minister of Education and Science appointed three officials of the Ministry to inspect the work of the admissions commission. Having done so between 10 and 14 July 2000, the three officials produced a fivepage report on 18 July 2000. The report, which was not made public, found that the commission had committed a number of violations of the school admissions regulations, such as admitting pupils who did not have the requisite medical conditions, making findings on the basis of invalid medical documents and poorly documenting its activities. It also said that there were indications that Dr N.P. had been forging documents. The report’s proposals included “imposing disciplinary punishments on the commission’s members, commensurate with the violations found and in line with the Labour Code”. On 25 September 2000 the Minister imposed on Ms T.K., Ms A.M., Mr R.E. and Mr G.D. the disciplinary punishment of a “warning of dismissal”, citing a number of violations and omissions in the school admissions procedures.\n\n10.  Following this complaint, on 7 July 2000 the Minister of Education and Science appointed three officials of the Ministry to inspect the work of the admissions commission. Having done so between 10 and 14 July 2000, the three officials produced a fivepage report on 18 July 2000. The report, which was not made public, found that the commission had committed a number of violations of the school admissions regulations, such as admitting pupils who did not have the requisite medical conditions, making findings on the basis of invalid medical documents and poorly documenting its activities. It also said that there were indications that Dr N.P. had been forging documents. The report’s proposals included “imposing disciplinary punishments on the commission’s members, commensurate with the violations found and in line with the Labour Code”. On 25 September 2000 the Minister imposed on Ms T.K., Ms A.M., Mr R.E. and Mr G.D. the disciplinary punishment of a “warning of dismissal”, citing a number of violations and omissions in the school admissions procedures.\n\n11.  Some time after that the Burgas regional prosecutor’s office opened an inquiry concerning Ms T.K., Ms A.M., Mr R.E. and Mr G.D. On 12 December 2002 it instituted a formal investigation against “the implicated officials of the education inspectorate” on suspicion of bribetaking. In the course of this investigation the authorities interviewed the four officials, some parents who had complained to the Ministry of Education and Science and parents alleged to have given bribes to have their children admitted to “specialised” schools. In 28 October 2003 the prosecutor’s office decided to discontinue the investigation without bringing charges. It said that while the officials had indeed breached their duty and had been given a disciplinary punishment as a result, there was no evidence that they had done so as a result of bribetaking.\n\nC.  The impugned article\n\nC.  The impugned article\n\n12.  The applicant learned about the story and decided to cover it in an article, which appeared on pages one and two of the 11 September 2000 issue of Sega under the headline “Bribes scandal in Burgas secondary schools”. It bore the subheadline “[The Ministry of Education and Science] sacks four experts for taking money from sick children” and the applicant’s byline, and read, in so far as relevant, as follows:\n\n“Four employees of the Burgas inspectorate will be punished because they took bribes in relation to the admission of sick children to elite secondary schools, Sega has learned. The Education Minister [D.D.] will decide their fate today. [Mr R.E.], [Mr G.D.], [Ms T.K.] and [Ms A.M.] were hired to compile a list of pupils with congenital or acquired diseases who will continue their education in elite secondary schools. An investigation by inspectors from  which took place between 10 and 15 June found that the four officials, together with [Dr N.P.], placed 40 people in secondary schools and vocational secondary schools on the basis of forged medical certificates.\n\nUnder [Ministry] regulations, children with more serious illnesses should be placed higher on the list.\n\nHowever, the inspection showed that these places had been taken by children in whose medical records non-existent complications had been deliberately inserted. The documents were provided by [Dr N.P.] and the commission did not check their accuracy.\n\nThe affair was exposed after angry parents of children whose applications had been rejected sent a letter to the [Ministry of Education and Science]. The commission of representatives from the Education and Health ministries proposes that the four experts be sacked as a disciplinary measure and that [Dr N.P.] be banned from practising medicine.\n\nThose concerned have declined to comment to the media and [Dr N.P.] has been unavailable for two weeks.”\n\nThose concerned have declined to comment to the media and [Dr N.P.] has been unavailable for two weeks.”\n\n13.  In an additional article published on 16 September 2000 under the headline “Blue MP promises to hush up false medical records scandal in Burgas”, the applicant again reported on the story, quoting comments made by Dr N.P. and mentioning that the Minister of Education and Science had been supposed to decide a few days earlier whether to impose disciplinary punishments on Ms T.K., Ms A.M., Mr R.E. and Mr G.D.\n\nD.  The proceedings against the applicant\n\n1.  The proceedings before the Pomorie District Court\n\n1.  The proceedings before the Pomorie District Court\n\n14.  On 7 December 2000 Ms T.K., Ms A.M., Mr R.E. and Mr G.D. lodged a criminal complaint against the applicant and Sega’s editorinchief with the Burgas District Court (Бургаски районен съд). They alleged that by respectively writing and publishing the 11 September 2000 article the applicant had disseminated, and the editor had allowed to be disseminated, injurious statements of fact about them and had imputed an offence to them. In their view, by so doing the applicant and the editor had committed libel, contrary to Articles 147 § 1 and 148 § 2 of the Criminal Code (see paragraphs 28 and 29 below). They sought compensation in the amount of BGN 30,000.\n\n15.  At some point during the proceedings the complainants dropped the charges against Sega’s editorinchief.\n\n16.  The Burgas District Court held hearings on 19 April and 18 May 2002. The judge examining the case was also in charge of another case which the four complainants had brought against another journalist in relation to an article covering the same events. After convicting the other journalist on 11 May 2002, the judge withdrew from the case, citing negative comments made by the applicant about her judgment in the other case. On 12 July 2002 all the judges of the Burgas District Court stated that they did not wish to take part in the examination of the case, citing public protests by journalists and the airing of allegations that they were all biased against the applicant. Accordingly, on 25 July 2002 the Supreme Court of Cassation ordered that the case be transferred to the Pomorie District Court (Поморийски районен съд).\n\n17.  The trial before the Pomorie District Court took place on 6 November and 18 December 2002 and on 29 January and 14 February 2003. The court heard evidence from the applicant, the complainants and a number of witnesses called by both parties, including the supervisor of the four complainants and the deputy regional governor of Burgas.\n\n17.  The trial before the Pomorie District Court took place on 6 November and 18 December 2002 and on 29 January and 14 February 2003. The court heard evidence from the applicant, the complainants and a number of witnesses called by both parties, including the supervisor of the four complainants and the deputy regional governor of Burgas.\n\n18.  In a judgment of 14 February 2003 the Pomorie District Court found the applicant guilty of having, in the printed press, disseminated injurious statements of fact about Ms T.K., Ms A.M., Mr R.E. and Mr G.D., officials carrying out their duties, contrary to Article 148 §§ 1 (2) and (3) and 2 taken in conjunction with Article 147 § 1 of the Criminal Code. The court acquitted the applicant of the charges of having imputed offences to them and of having committed the offence in public, contrary to Article 148 §§ 1 (1) and 2 of the Code. It applied Article 78a of the Code (see paragraph 32 below) and replaced the applicant’s criminal liability with four administrative fines of BGN 500 each. The court further ordered the applicant to pay each of the complainants compensation for nonpecuniary damage amounting to BGN 100, plus interest from 11 September 2000 until settlement, and dismissed the remainder of their claims. Finally, it ordered the applicant to pay BGN 16 in court fees. The court described the facts set out above and continued as follows:\n\n“To gather the information necessary for his article, [the applicant] had conversations with parents protesting in front of the [Burgas education inspectorate]... From them he learned about the alert which had triggered the appointment of the [inspection commission]. He talked to the head of [the inspectorate], [Ms P.], and [other journalists] from Sofia (whose names he did not disclose), from whom he learned that the inspection had revealed a number of violations and that it was expected that there would be a proposal to the Minister to impose stiff disciplinary punishments on the complainants. [The applicant] asserts that he [also] talked to the deputy regional governor in charge of education, [Mr G.S.]. [However], at trial [Mr G.S.] testified that his conversation with the applicant had taken place after, not before, the article’s publication.\n\nAnother witness, ... a colleague of the complainants, [testified that] the article’s publication had had a severe negative impact on [them], leaving them very depressed, worried and unable to do their work with their usual confidence.\n\nOn the basis of these findings of fact the court makes the following findings of law:\n\nAccording to Article 147 § 1 of the [Criminal Code], the offence of defamation consists in disseminating injurious statements of fact about someone or imputing an offence to him or her. ... The complainants accuse [the applicant] of committing both forms of the offence – disseminating untrue injurious statements of fact and imputing an offence to them. The complainants and their counsel maintain that the imputed offence was the taking of bribes from children, [contrary to] Article 301 [of the Criminal Code]. Having read the article carefully, the court finds that [the applicant] did not impute an offence to the complainants. The article does not contain any allegation that the complainants took bribes. Its first part (including the headings) stated that the complainants would be punished with disciplinary dismissal for having taken bribes. [The applicant] did not comment on the appropriateness of the purportedly impending punishment, and in the second part of the article described in a relatively detailed manner what he considered to be the facts of the matter, which would form the grounds for the punishments. These facts did not include bribetaking. It is averred that the unlawful admission of pupils was made possible by Dr [N.P.]’s fabrication of false medical documents and that the complainants relied on these documents without checking their accuracy. Taken together these parts of the article lead to the conclusion that [the applicant] did not allege that the complainants had taken bribes. The court accordingly finds [him] not guilty of the charge of imputing an offence. It is therefore not necessary to discuss the evidence and the facts suggesting the commission of such an offence, or [the applicant’s] certainty ... that it had taken place.\n\n[The applicant] did, however, commit the other form of [defamation]. In his article [he] disseminated an injurious statement of fact, namely that the complainants would be punished with disciplinary dismissal for having taken bribes for having children admitted to elite secondary schools in Burgas. The injurious character of this statement is a metalegal characteristic. The law does not spell out the content of this notion. For this reason, whether or not a circumstance is injurious must be determined on the basis of [public opinion]. The dismissal of an individual from an official post for taking bribes is generally seen as a sign of that individual’s poor morals. The court accordingly accepts that the disseminated statement is injurious.\n\nAccording to Article 147 § 2 [of the Criminal Code], [those making allegedly defamatory assertions] are not to be punished if the assertions are found to be true. This means that defamation has been committed only if the injurious statements disseminated are untrue. In the instant case this is so. It has been established that the complainants were not dismissed but [only] warned that they could face dismissal and that this did not happen on 11 September 2000. It is, however, rather more important to point out that the grounds for the disciplinary punishments were not the taking of bribes but the violations described in the report of the inspecting commission and in the reasons for the orders imposing disciplinary punishments.\n\nThe untrue injurious statement was disseminated through the publication of the article in Sega. It is well known and not disputed [by the parties] that this newspaper is circulated on the territory of [the entire country]. The court therefore accepts that the aggravating element of Article 148 §§ 1 (2) and 2 [of the Criminal Code] is present.\n\nThe untrue injurious statement disseminated was connected with the performance of the complainants’ duties. As members of the admissions commission for pupils with chronic medical conditions and special educational needs they were ‘public officials’ within the meaning [of the Criminal Code]. The court therefore accepts that the aggravating element of Article 148 §§ 1 (3) and 2 [of the Code] is [also] present.\n\nThe untrue injurious statement was not disseminated in public. The fact that the offence was characterised [as having been committed through the printed press makes it impossible for it to have been committed in public]. An injurious statement is considered to have been disseminated in public if this was done in the presence of several persons, whereas the dissemination of information in the printed press ... involves no direct contact between the person imparting the information and those receiving it. The court therefore finds [the applicant] not guilty of [disseminating the injurious statement in public] contrary to Article 148 §§ 1 (1) and 2 in conjunction with Article 147 § 1 [of the Criminal Code].\n\nThe defence disputes the existence of mens rea. It asserts that [the applicant] was not aware that the statements he made were untrue. What is more, according to the defence [the applicant] believed that the complainants had been taking bribes in performing their duties as members of the commission. This belief was based on objective facts. These arguments are inapposite and should not be addressed by the court, as in the impugned article [the applicant] did not allege that the complainants had been taking bribes. Seen from this perspective, whether or not [the applicant] believed that bribes had been taken is irrelevant. What matters is whether [the applicant] was aware of the untruthfulness of [the assertion] that on the day of publication of the article the Minister of Education and Science ... would impose on the complainants the disciplinary punishment of ‘dismissal’ on the grounds that they had taken bribes from sick children. This is so because, [according to the Supreme Court of Cassation’s caselaw,] ‘when [a journalist] has properly verified the truthfulness of the information in line with established journalistic practice [and] the internal nonbinding rules of the relevant newspaper or publishing house’, by using the sources available in practice, [he or she can be said to have acted] in a professional manner and in good faith, which excludes criminal and civil liability for defamation ([citation]). It has not been established that [the applicant acted] in a professional manner and in good faith. None of the sources used by [him] provided information to that effect. The information which [he] received from the head of the inspectorate, [Ms P.], and [other journalists] from  indicated that at the close of the inspection the commission appointed by the Minister was to propose that the complainants be subjected to stiff disciplinary punishments (on unspecified grounds). Before the publication of the article [the applicant] did not talk to the deputy regional governor, [Mr G.S.]. The conversations conducted with parents of children [not admitted] could not give [the applicant] reliable information either about the internal control measures envisaged by the Minister or about the grounds for taking them. At the time of publication there was not a single source indicating to [the applicant] that the complainants would be dismissed as a disciplinary measure or that the grounds given by the Minister for that would be bribetaking. The court therefore finds that [the applicant] realised the untruthfulness of the injurious statements he disseminated and that the offence was therefore intentional. [The offence of defamation] does not require the defamed persons to sustain damage. The antisocial consequences of such an act arise simply from the dissemination of the injurious statements. By publishing his article [the applicant] intended just that – to bring the untrue injurious statements to the knowledge of an unlimited number of people. The offence was committed with direct intent because [the applicant] was aware of the antisocial character of his act and wished its adverse consequences to occur...\n\nIn sum, the court finds that [the applicant] has committed with respect to each of the complainants an offence under Article 148 §§ 1 (2) and (3) and 2 in conjunction with Article 147 § 1 [of the Criminal Code]. (The four offences were committed [in a single act].) The penalty for such an offence is a fine ranging from five to fifteen thousand levs and public reprimand. [The applicant] has not been convicted of a publicly prosecutable offence ... and the offences have not engendered pecuniary damage. [The case thus comes under] Article 78a [of the Code], and [the applicant]’s criminal liability should be replaced with an administrative fine of BGN 500 to BGN 1,000.\n\nTo determine the amount of the fine, the court ... took into account the mitigating and aggravating circumstances. [The applicant] was not found to have committed other transgressions, i.e. he does not exhibit criminal tendencies and the level of risk he presents to society is low. Despite the existence of two additional qualifying elements (which is of itself an aggravating factor), the nonpecuniary damage sustained by the complainants as a result of the offence is negligible (see below for more on this point). [The applicant] denies any wrongdoing, which is his right, but at the same time has provided detailed explanations about the case and practical cooperation in ascertaining the truth. For these reasons, the court finds that there is a preponderance of mitigating circumstances, and fixes the punishment for each offence at the minimum amount, namely BGN 500.\n\nThe complainants’ claims for damages are wellfounded, because in all cases the dissemination of untrue injurious statements tarnishes the good name of the persons associated with the alleged facts. Under sections 45 and 52 [of the 1951 Obligations and Contracts Act] the compensation [for nonpecuniary damage] must be determined by the court in equity. The court finds that the sum of BGN 5,000 claimed by each of [the complainants] would amount to just compensation for the nonpecuniary damage suffered by them as a result of the slur on their reputations. However, [the applicant] is not liable to pay the entirety of that sum. Apart from the untrue injurious statements, in his article [he] also reported true injurious facts, in respect of which he does not bear any criminal or civil liability. The article points out that the complainants committed violations which led to the unlawful admission of children to the abovementioned secondary schools. These facts were true. Their publication by [the applicant] was legal, because in publishing them he was exercising his constitutional right to seek and impart information, and helping other citizens to exercise their constitutional right to receive information (Article 41 § 1 ... of the Constitution).\n\nThe evidence gathered in the case leads to the conclusion that the reputations of [the complainants] have suffered chiefly as a result of the true injurious facts reported by [the applicant]. [The relevant regulations] lay down a procedure whereby the State [in line with its constitutional obligations] encourages education, creating conditions for the vocational training of children with special needs or medical conditions. Since this activity is a constitutional obligation of the State, its performance in strict compliance with the relevant rules is of paramount importance. Seen from a different perspective, when the performance of this activity has been marred by a series of serious violations and this has led to the unlawful admission of pupils to the detriment of other pupils who have recognised medical conditions or needs, these violations inevitably lead to the loss of the good names of the officials concerned. For these reasons, the court finds that the reputations of [the complainants] suffered as a result of their own illicit behaviour. When imparting information about this [the applicant] went too far – alongside the true injurious statement he made an untrue statement about the impending punishments and the grounds for them. As a result, [the complainants’] reputations suffered additionally, but not materially, because even if [the applicant] had not said what punishments would be imposed by the Minister, [the complainants’] reputations would have been greatly impaired anyway. [The applicant] is liable only for the nonpecuniary damage arising out of the dissemination of the untrue injurious statements. In view of the foregoing, the court finds that the equitable amount of compensation is BGN 100 for each of [the complainants]. The remainder of the civil claims are groundless and are to be dismissed.”\n\nThe evidence gathered in the case leads to the conclusion that the reputations of [the complainants] have suffered chiefly as a result of the true injurious facts reported by [the applicant]. [The relevant regulations] lay down a procedure whereby the State [in line with its constitutional obligations] encourages education, creating conditions for the vocational training of children with special needs or medical conditions. Since this activity is a constitutional obligation of the State, its performance in strict compliance with the relevant rules is of paramount importance. Seen from a different perspective, when the performance of this activity has been marred by a series of serious violations and this has led to the unlawful admission of pupils to the detriment of other pupils who have recognised medical conditions or needs, these violations inevitably lead to the loss of the good names of the officials concerned. For these reasons, the court finds that the reputations of [the complainants] suffered as a result of their own illicit behaviour. When imparting information about this [the applicant] went too far – alongside the true injurious statement he made an untrue statement about the impending punishments and the grounds for them. As a result, [the complainants’] reputations suffered additionally, but not materially, because even if [the applicant] had not said what punishments would be imposed by the Minister, [the complainants’] reputations would have been greatly impaired anyway. [The applicant] is liable only for the nonpecuniary damage arising out of the dissemination of the untrue injurious statements. In view of the foregoing, the court finds that the equitable amount of compensation is BGN 100 for each of [the complainants]. The remainder of the civil claims are groundless and are to be dismissed.”\n\n19.  In a decision of 13 March 2003 the Pomorie District Court ordered the applicant to pay the complainants’ costs, amounting to BGN 300.\n\n2.  The proceedings before the\n\n20.  Both the applicant and the complainants appealed. The applicant argued, among other things, that the institution of criminal proceedings against the complainants on charges of bribery meant that there were grounds to suspect that they had committed such offences and that he had been justified in mentioning that fact in the article.\n\n21.  The  (Бургаски окръжен съд) heard the appeal on 4 July 2003.\n\n21.  The  (Бургаски окръжен съд) heard the appeal on 4 July 2003.\n\n22.  In a final judgment of 23 July 2003 it upheld the applicant’s conviction and sentence, but increased the award of damages, ordering the applicant to pay BGN 1,000 to each of the complainants. The  also upheld the lower court’s ancillary costs order. It held, in so far as relevant, as follows:\n\n“...\n\nConcerning the arguments ... that the [lower court’s] judgment is illfounded and in breach of substantive law: The appeal states that criminal proceedings were instituted against the complainants on charges of bribery in breach of Article 302 § 1 [of the Criminal Code], and that for this reason [the applicant] cannot be deemed to have intentionally made untrue and injurious assertions. It can however be seen from the reasoning of [the lower court] that [the applicant] was acquitted of the charge of imputing to the complainants the offence of bribery. The [lower court’s] reasoning on that point is fully shared by this court and, accordingly, the objections that the [lower court’s] judgment was unfounded or in breach of substantive law do not call for further discussion.\n\nThe court finds that the punishments imposed on [the applicant] were properly fixed. [The lower court] correctly replaced [the applicant’s] criminal liability [under] Article 78a of [the Criminal Code] with fines in the minimum amount allowed by the law, namely BGN 500 for each of the offences, taking into account [the applicant’s] lack of a criminal record or other antisocial acts, [the] lower level of risk [he poses] to society, [and] his detailed explanations about the facts of the case. In its reasoning the court said that the nonpecuniary damage sustained by the complainants was not significant. That view cannot be shared by [this court]. Unlike pecuniary damage, the non-pecuniary damage caused through a criminal act should not be taken into account for the purpose of fixing the punishment. The nonpecuniary damage suffered by the victims of crime is strictly individual and should be taken into account solely for the purpose of fixing the amount of compensation, not the quantum and type of the punishment. Nevertheless, [this court] considers that the minimum penalties imposed on [the applicant] will [be sufficient to] further the aims of the punishment, as envisaged by [the Criminal Code]. The court therefore finds that this part of the [lower court’s judgment] should be upheld.\n\nAs regards the civil claims for compensation for nonpecuniary damage:\n\nThe court finds unfounded the complainants’ requests to increase the amount of compensation to BGN 5,000 for each of them. It is true that the complainants sustained non-pecuniary damage – a blemish on their reputations, concerned as they are about their professional standing and good names – as a result of the offences against them. [The lower court], however, correctly stated in its reasoning that [the applicant’s] article had reported injurious facts which were true, namely that the complainants had committed violations in their work, which led to the unlawful admission of children to secondary schools, and which were more significant than the fact that the complainants would be dismissed. For this reason, the court considers that [the lower court] was right not to allow the civil claims in full. However, in [this court’s] view, the awards [it] made are too small. The amount of BGN 100 for each of [the complainants] cannot make good their suffering resulting from the affront to their dignity. Regard being had to the way in which the offence was committed – circulation of the injurious assertions in a publication which is sold nationwide, thus bringing them to the attention of large number of people –, [as well as] the negative impact this had on the complainants’ mental state, health and capacity for work ..., this court finds that it would be just to award the complainants BGN 1,000 each. This part of [the lower court’s] judgment should therefore be modified, by increasing the amount which [the applicant] has to pay to the complainants to BGN 1,000 for each of them in respect of nonpecuniary damage.\n\nConcerning the costs of the proceedings:\n\nIn a decision of 13 March 2003 [the lower court] ordered [the applicant] to pay the complainants the amount of BGN 300 for costs. [The applicant] was found not guilty of the charge of imputing an offence and of the charge under Article 148 §[§] 1 (1) [and 2] of [the Criminal Code]. Under [the relevant provisions of the Code of Criminal Procedure], he must accordingly bear the full cost related to the charges of which he was found guilty... However, in this court’s view, [the lower court] correctly ordered the applicant to pay the entirety of the costs in the case, because the complainants are also a private prosecuting party and it is the court’s practice in such cases to award the costs in full. ...”\n\n3.  The payment of the fine, damages and costs\n\n3.  The payment of the fine, damages and costs\n\n23.  In 2003 the authorities issued enforcement proceedings against the applicant to recover the fine. Those proceedings were closed on 2 April 2008 following the payment of the fine, plus interest, in its entirety. The total amount paid by the applicant was BGN 2,229.71.\n\n23.  In 2003 the authorities issued enforcement proceedings against the applicant to recover the fine. Those proceedings were closed on 2 April 2008 following the payment of the fine, plus interest, in its entirety. The total amount paid by the applicant was BGN 2,229.71.\n\n24.  In 2003 the four complainants also issued enforcement proceedings against the applicant to recover the damages and the costs awarded to them. The amounts due were paid by Sega between February 2004 and April 2005. The newspaper recovered the sums paid by deducting them from the applicant’s salary. The total amount paid in this way was BGN 7,621.04.\n\nE.  Other developments\n\nE.  Other developments\n\n25.  On 3 April 2001 a member of Parliament officially questioned the Minister of Education and Science about the affair. On 9 April 2001 the Minister replied, saying, inter alia, that the officials found guilty of committing violations of the admissions procedure had been disciplined and that the Ministry did not have competence to institute criminal proceedings, which was a matter for the prosecuting authorities.\n\n25.  On 3 April 2001 a member of Parliament officially questioned the Minister of Education and Science about the affair. On 9 April 2001 the Minister replied, saying, inter alia, that the officials found guilty of committing violations of the admissions procedure had been disciplined and that the Ministry did not have competence to institute criminal proceedings, which was a matter for the prosecuting authorities.\n\n26.  On 3 July 2002 another journalist who had covered the story, Ms K. Kasabova, together with three officials of the Ministry of Education and Science, testified about the “sick children” affair before the National Assembly’s Standing Committee on Complaints and Petitions. At the end of the hearing the Committee unanimously resolved to send the material to the Burgas prosecuting authorities with a view to the possible initiation of criminal proceedings against Ms T.K., Ms A.M., Mr R.E. and Mr G.D., asking the Minister of Health whether the medical doctors responsible had been punished, and asking the Minister of Education and Science whether penalties had been imposed on Ms T.K., Ms A.M., Mr R.E. and Mr G.D. and whether the penalties had corresponded to the posts they occupied.\n\nII.  RELEVANT DOMESTIC LAW\n\nA.  The Constitution\n\nA.  The Constitution\n\n27.  The relevant provisions of the 1991 Constitution read as follows:\n\nArticle 32 § 1\n\n“The private life of citizens shall be inviolable. All citizens are entitled to be protected against unlawful interference in their private or family life and against infringements of their honour, dignity and reputation.”\n\nArticle 39\n\n“1.  Everyone is entitled to express an opinion or to publicise it through words, whether written or oral, sounds or images, or in any other way.\n\n2.  This right shall not be exercised to the detriment of the rights and reputation of others, or for incitement to forcible change of the constitutionally established order, perpetration of a crime or enmity or violence against anyone.”\n\nArticle 40 § 1\n\n“The press and the other mass media shall be free and not subject to censorship.”\n\nArticle 41\n\n“1.  Everyone has the right to seek, receive and impart information. The exercise of that right may not be directed against the rights and the good name of other citizens or against national security, public order, public health or morals.\n\n2.  Citizens shall have the right to information from State bodies or agencies on any matter of legitimate interest to them, unless the information is a State secret or a secret protected by law or it affects the rights of others.”\n\nArticle 57 § 2\n\n“Rights shall not be abused, nor shall they be exercised to the detriment of the rights or the legitimate interests of others.”\n\nB.  The Criminal Code\n\nB.  The Criminal Code\n\n28.  Article 147 of the 1968 Criminal Code, as in force since March 2000, provides as follows:\n\n“1.  Any person who disseminates an injurious statement of fact about another or imputes an offence to him or her shall be punished for defamation by a fine ranging from three to seven thousand levs, as well as by public reprimand.\n\n2.  The perpetrator shall not be punished if he or she proves the truth of the said statement or imputation.”\n\n2.  The perpetrator shall not be punished if he or she proves the truth of the said statement or imputation.”\n\n29.  If the defamation is committed through the printed press, or if the defamed parties are public officials carrying out their duties, it is punishable by a fine ranging from BGN 5,000 to BGN 15,000, as well as by public reprimand (Article 148 §§ 1 (2) and (3) and 2, as in force since March 2000). Since March 2000 all instances of defamation are privately prosecutable offences (Article 161, as in force since March 2000). In 1998 Article 148 survived a challenge of unconstitutionality, with the  ruling that increased penalties where the defamed parties were public officials did not disproportionately restrict freedom of expression (реш. № 20 от 14 юли 1998 г. по к. д. № 16 от 1998 г., обн., ДВ, бр. 83 от 21 юли 1998 г.).\n\n29.  If the defamation is committed through the printed press, or if the defamed parties are public officials carrying out their duties, it is punishable by a fine ranging from BGN 5,000 to BGN 15,000, as well as by public reprimand (Article 148 §§ 1 (2) and (3) and 2, as in force since March 2000). Since March 2000 all instances of defamation are privately prosecutable offences (Article 161, as in force since March 2000). In 1998 Article 148 survived a challenge of unconstitutionality, with the  ruling that increased penalties where the defamed parties were public officials did not disproportionately restrict freedom of expression (реш. № 20 от 14 юли 1998 г. по к. д. № 16 от 1998 г., обн., ДВ, бр. 83 от 21 юли 1998 г.).\n\n30.  The mens rea for the offence of defamation can only be direct intent or oblique intent (recklessness), not negligence (Article 11(4)). Mens rea, in the form of intent or negligence, is an essential element of any criminal offence (Article 9 § 1 and Article 11 §§ 1, 2 and 3).\n\n30.  The mens rea for the offence of defamation can only be direct intent or oblique intent (recklessness), not negligence (Article 11(4)). Mens rea, in the form of intent or negligence, is an essential element of any criminal offence (Article 9 § 1 and Article 11 §§ 1, 2 and 3).\n\n31.  In a judgment of 26 May 2000 (реш. № 111 от 26 май 2000 г. по н. д. № 23/2000 г., ВКС, II н. о.) the Supreme Court of Cassation held that provided that, prior to publication, journalists checked their information in line with the practice established in the profession or with the internal rules of the relevant medium, by using the sources available in practice, they could not be held to have acted wilfully or even negligently and were not guilty of defamation. It went on to say that, owing to the accessory nature of a civilparty claim, the general rule of tort law that fault was presumed was not applicable to the examination of tort claims in criminal defamation proceedings. In such proceedings, the rules governing fault as an element of the tort of defamation were those of the criminal law. The court also held that under Bulgarian law strict liability could not be applied in respect of defamation, and referred to the constitutional principle that public officials were subject to wider limits of acceptable criticism than private individuals.\n\n31.  In a judgment of 26 May 2000 (реш. № 111 от 26 май 2000 г. по н. д. № 23/2000 г., ВКС, II н. о.) the Supreme Court of Cassation held that provided that, prior to publication, journalists checked their information in line with the practice established in the profession or with the internal rules of the relevant medium, by using the sources available in practice, they could not be held to have acted wilfully or even negligently and were not guilty of defamation. It went on to say that, owing to the accessory nature of a civilparty claim, the general rule of tort law that fault was presumed was not applicable to the examination of tort claims in criminal defamation proceedings. In such proceedings, the rules governing fault as an element of the tort of defamation were those of the criminal law. The court also held that under Bulgarian law strict liability could not be applied in respect of defamation, and referred to the constitutional principle that public officials were subject to wider limits of acceptable criticism than private individuals.\n\n32.  Article 78a § 1, as in force at the relevant time, mandated the courts to replace convicted persons’ criminal liability with an administrative punishment – a fine ranging from 500 to 1,000 levs – if (i) the offence of which they had been convicted was punishable by up to two years’ imprisonment or a lesser penalty, in respect of an intentional offence, (ii) they had not previously been convicted of a publicly prosecutable offence and their criminal liability had not previously been replaced by an administrative punishment, and (iii) the pecuniary damage caused by the criminal act had been made good. The administrative fine could not be higher than the criminal fine envisaged for the offence (Article 78a § 5). Along with the fine the court could impose occupational disqualification of up to three years, if such a punishment was envisaged for the offence (Article 78a § 4).\n\nIII.  RELEVANT INTERNATIONAL MATERIALS\n\nIII.  RELEVANT INTERNATIONAL MATERIALS\n\n33.  On 4 October 2007 the Parliamentary Assembly of the Council of Europe adopted Resolution 1577 (2007), Towards decriminalisation of defamation, in which it called on the Member States to, inter alia, guarantee that there is no misuse of criminal prosecutions for defamation (point 17.2); remove from their defamation legislation any increased protection for public figures (point 17.6); ensure that under their legislation persons pursued for defamation have appropriate means of defending themselves, in particular means based on establishing the truth of their assertions and on the general interest (point 17.7); set reasonable and proportionate maxima for awards for damages and interest in defamation cases so that the viability of a defendant media organ is not placed at risk (point 17.8); and provide appropriate legal guarantees against awards for damages and interest that are disproportionate to the actual injury (point 17.9).\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION\n\n34.  The applicant complained under Article 10 of the Convention about his conviction and punishment for having written the impugned article.\n\n35.  Article 10, in so far as relevant, provides as follows:\n\n“1.  Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...\n\n2.  The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”\n\nA.  The parties’ submissions\n\n36.  The Government submitted that the applicant had published his article without proper journalistic enquiry. They cited at length the reasons given by the Pomorie District Court and asserted that both levels of jurisdiction, having fully considered the arguments of the parties to the libel proceedings and their evidence, had determined the claim impartially, giving reasons that were fully consonant with this Court’s caselaw. The Government drew attention to the fact that the four officials had availed themselves of an avenue of redress accessible to any defamed individual. In their view, it was also telling that the courts had waived the applicant’s criminal liability and simply imposed an administrative penalty on him. The award of damages had also been in reasonable proportion to the injury to the claimants’ reputations. It was also worth noting that the prosecuting authorities had discontinued the criminal investigation against the officials owing to lack of evidence that they had asked for or taken bribes. The interference had therefore been proportionate and justified.\n\n37.  The applicant disagreed. He pointed to several factors which made his conviction disproportionate. He had been reporting on a matter of great public concern, namely corruption. The authorities had acted secretively and had been reluctant to reveal information about the issue, which had made it necessary to engage in more assertive reporting. He had been convicted for a factual inaccuracy which he had been unable to avoid even after verifying his story in line with good journalistic practice. The allegation that bribes had been taken had a reliable basis, namely the high number of irregularities in the admissions procedure and the allegations of parents whose children had been denied admission. Those allegations had appeared credible and were quite specific. The focus of his short article had been more on reporting the parents’ protest and the inquiry by the Ministry of Education and Science. In writing the article, he had relied on interviews with parents and students, and information from colleagues and from the head of the education inspectorate.\n\n38.  The applicant further submitted that the penalties imposed on him had been excessive; indeed, the very fact of his conviction had been disproportionate. The reasons adduced by the national courts had been partly irrelevant and insufficient. Those courts had focused entirely on the internal inquiry by the Ministry of Education and Science and fully disregarded the information from parents. Such an approach neglected the role of the press and the context in which the article had been published. Despite the public protests by parents the authorities had not been very active in investigating the irregularities in the admissions process, which made them a less reliable source in that respect. It had therefore been fully justifiable for the applicant to rely on the information from parents. This, coupled with the high number of irregularities, could reasonably be interpreted as an indication of corruption. Moreover, the article had specified that at the time of writing no final decision had been taken on how to punish the four officials. It had been written under pressure of time, but with reasonable care and on the basis of sound factfinding.\n\nB.  The Court’s assessment\n\n39.  The Court considers that this complaint is not manifestly illfounded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.\n\n1.  Whether there was interference, and whether it was “prescribed by law” and pursued a legitimate aim\n\n40.  It was not disputed that the applicant’s conviction, coupled with the order to pay damages, constituted interference – in the form of a “penalty” – with his right to freedom of expression. Nor was it contested that this interference was “prescribed by law”, namely Articles 147 and 148 of the Criminal Code (see paragraphs 28 and 29 above), and was aimed at protecting the “reputation or rights of others” within the meaning of Article 10 § 2 of the Convention.\n\n2.  “Necessary in a democratic society”\n\n(a)  General considerations\n\n41.  The arguments adduced before the Court concentrated on the question whether the interference had been “necessary in a democratic society” to achieve that aim. The determination whether this was so must be based on the following general principles emerging from the Court’s caselaw (see, among other authorities, Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, §§ 8891, ECHR 2004XI, with further references):\n\n(a)  The test of “necessity in a democratic society” requires the Court to determine whether the interference corresponded to a pressing social need. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those delivered by independent courts. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10.\n\n(b)  The Court’s task in exercising its supervisory function is not to take the place of the competent domestic courts but rather to review under Article 10 the decisions they have taken pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully or in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole, including the content of the statements held against the applicant and the context in which he or she has made them.\n\n(c)  In particular, the Court must determine whether the reasons adduced by the national authorities to justify the interference were relevant and sufficient and whether the measure taken was proportionate to the legitimate aims pursued. In doing so, the Court has to satisfy itself that the national authorities, basing themselves on an acceptable assessment of the relevant facts, applied standards which were in conformity with the principles embodied in Article 10.\n\n(d)  The Court must also ascertain whether the domestic authorities struck a fair balance between the protection of freedom of expression as enshrined in Article 10 and the protection of the reputation of those against whom allegations have been made, a right which, as an aspect of private life, is protected by Article 8 of the Convention.\n\n42.  An additional factor of particular importance in the present case is the vital role of “public watchdog” which the press performs in a democratic society. Although it must not overstep certain bounds, in particular in respect of the reputation and rights of others, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on political issues and on other matters of general interest (ibid., § 93, with further references). The Court must apply the most careful scrutiny when, as here, the sanctions imposed by a national authority are capable of discouraging the participation of the press in debates over matters of legitimate public concern (see, among other authorities, Tønsbergs Blad A.S. and Haukom v. Norway, no. 510/04, § 88, ECHR 2007III).\n\n43.  The Court further notes that the article in respect of which the applicant was convicted and penalised was reporting facts relating to alleged irregularities and corrupt practices in the admission of students to secondary schools (see paragraph 12 above). There can be no doubt that this was a question of considerable public interest, even sparking parliamentary debates and a hearing before a parliamentary committee (see paragraphs 25 and 26 above), and that the publication of information about it formed an integral part of the task of the media in a democratic society.\n\n44.  It should also be observed that the individuals mentioned in the article were public officials, whom the Court has found as a rule to be subject to wider limits of acceptable criticism than private individuals (see Thoma v. Luxembourg, no. 38432/97, § 47, ECHR 2001III; Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 80, ECHR 2004XI; Mamère v. France, no. 12697/03, § 27, ECHR 2006XIII; and Dyundin v. Russia, no. 37406/03, § 26, 14 October 2008). However, the national courts were unable to take that into account and were instead bound to punish the applicant more severely (see paragraphs 18 and 22 above), because Article 148 §§ 1 (3) and 2 of the Criminal Code treats the official capacity of the victim of an alleged defamation as an automatic aggravating circumstance (see paragraph 29 above). The Court will revert to this matter below.\n\n(b)  As to the assessment of whether the applicant acted as a responsible journalist\n\n45.  The Court notes, firstly, that the applicant was acquitted of imputing the offence of bribe-taking to the four officials concerned and, secondly, that he conceded that the statement in respect of which he had been convicted – to the effect that the officials were to be dismissed because of corruption – was a statement of fact which ultimately proved to be untrue. In those circumstances, the Court sees no reason to engage in a detailed analysis of the manner in which the national courts approached the questions of burden and standard of proof (contrast Kasabova v. Bulgaria, no. 22385/03, §§ 5862, 19 April 2011). Its inquiry will instead focus on whether those courts made an acceptable assessment of whether the applicant had acted fairly and responsibly in gathering and publishing the impugned information.\n\n46.  In that connection the Court observes that Article 10 does not guarantee wholly unrestricted freedom of expression even with respect to press coverage of matters of serious public concern and relating to politicians or public officials. Under the terms of its second paragraph the exercise of this freedom carries with it “duties and responsibilities”, which also apply to the press. These “duties and responsibilities” are liable to assume significance when, as in the present case, there is a question of attacking the reputation of named individuals and undermining the “rights of others”. By reason of the “duties and responsibilities” inherent in the exercise of the freedom of expression, the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism (see, among other authorities, Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 65, ECHR 1999-III). Indeed, in situations where on the one hand a statement of fact is made and insufficient evidence is adduced to prove it, and on the other the journalist is discussing an issue of genuine public interest, verifying whether the journalist has acted professionally and  in good faith becomes paramount (see Flux v. Moldova (no. 7), no. 25367/05, § 41, 24 November 2009).\n\n47.  In the recent case of Rumyana Ivanova, the Court found that, in view of the nature of the applicant’s allegation (that an individual featured on an official list via certain companies owned by him), the task of researching and demonstrating it was not unreasonable or impossible (see Rumyana Ivanova v. , no. 36207/03, §§ 6365, 14 February 2008). By contrast, the nature of the allegation in the present case (that the four complainants would be dismissed for bribetaking) made it very difficult, if not impossible, for the applicant to provide direct corroboration of it (compare with Thorgeir Thorgeirson v. Iceland, 25 June 1992, § 65 in fine, Series A no. 239). That difficulty stemmed from two sources.\n\n48.  First, the event to which the article was referring lay in the future. It was therefore inherently impossible for the applicant to know for certain what disciplinary sanctions would be imposed on the four complainants, and on what specific grounds. Of course, he could have overcome that difficulty simply by delaying publication. However, it is not for the Court to substitute its own views for those of the press as to the appropriate timing of publication of a news story. News is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest (see Observer and Guardian v. the United Kingdom, 26 November 1991, § 60, Series A no. 216, and Sunday Times v. the United Kingdom (no. 2), 26 November 1991, § 51, Series A no. 217). In as much as the story related to the school admission process, it was not unreasonable to publish it before the beginning of the school year four days later; the Minister imposed the punishments another ten days after that (see paragraph 10 in fine above).\n\n49.  Secondly, at the time of publication the authorities had not yet released any official information on the results of the internal inspection carried out by the Ministry (see paragraph 10 above). The lack of such information, coupled with the uncontested existence of numerous irregularities in the admission of students, could reasonably have prompted the applicant to report on anything that was available, including uncorroborated information (see, mutatis mutandis, Flux (no. 7), cited above, § 44). It should be reiterated in that connection that the situation must be examined as it presented itself to the journalist at the material time, rather than with the benefit of hindsight (see Bladet Tromsø and Stensaas, cited above, §§ 66 in fine and 72).\n\n50.  It is true that the national courts, in assessing whether or not the applicant had acted with mens rea, examined the steps which he had taken to ensure the accuracy of the published information and found them insufficient (see paragraphs 18 and 22 above). However, the courts did not take the abovementioned matters into account, and disregarded other factors which were equally relevant for determining whether or not the applicant had acted in good faith. For instance, they paid no heed to the overall thrust of the article and the fact that it also included accurate allegations about a number of breaches of the school admissions regulations committed by the four officials. While they treated that matter merely as a circumstance justifying a lower award of damages, the Court considers that, in view of the overall thrust of the article (see Castells v. Spain, 23 April 1992, § 48 in limine, Series A no. 236; Perna v. Italy [GC], no. 48898/99, § 47 in limine, ECHR 2003V; and Timpul InfoMagazin and Anghel v. Moldova, no. 42864/05, § 35, 27 November 2007), that element was equally relevant for the assessment of whether or not the applicant had acted as a responsible journalist. The criterion of responsible journalism should recognise the fact that it is the article as a whole that the journalist presents to the public. It is true that the applicant could have phrased the impugned statement in a more careful manner, so as to highlight the fact that the actual disciplinary penalties to be imposed on the officials and the exact grounds for them were still uncertain. However, it cannot be overlooked that he did point out that “the Minister [would] decide their fate [that day]” (see paragraph 12 above) and that the article was a short news flash which called for concise wording. The Court therefore sees no reason to find that the applicant acted out of a desire to publish information with reckless disregard for its accuracy. Indeed, the allegations made by the protesting parents, coupled with the high number of irregularities in the school admission procedure (see paragraphs 9 and 10 above), made it at least plausible that the inspection relating to the four officials’ professional conduct might touch upon the issue of corruption and lead to disciplinary sanctions on such grounds. It is noteworthy in that connection that the prosecuting authorities later opened an investigation concerning the officials on suspicion of bribetaking (see paragraph 11 above).\n\n51.  Having regard to the above factors, the overall context of the case and the important public interest involved, the Court is satisfied that the applicant acted as a responsible journalist. It would emphasise in that connection that if the national courts apply an overly rigorous approach to the assessment of journalists’ professional conduct, the latter could be unduly deterred from discharging their function of keeping the public informed. The courts must therefore take into account the likely impact of their rulings not only on the individual cases before them but also on the media in general. In the instant case, the four officials’ interest in protecting their reputation was not sufficient to outweigh the vital public interest in ensuring an informed debate on a matter of considerable public interest. It is significant in that connection that, as pointed out by the national courts (see paragraphs 18 and 22 above), the bulk of the harm to the officials’ reputation stemmed not from the untrue allegation made by the applicant in respect of the disciplinary sanctions imposed on them, but from his accurate reporting of their unlawful behaviour in the school admission process.\n\n(c)  As to the severity of the sanction\n\n52.  Although in the light of the abovementioned reasons the Court is of the opinion that the applicant’s conviction was in itself disproportionate, it considers it necessary to also examine the severity of the sanction imposed on him and the proportionality of the damages and costs which he was ordered to pay.\n\n53.  It begins by noting that while the use of criminallaw sanctions in defamation cases is not in itself disproportionate (see Radio France and Others v. France, no. 53984/00, § 40, ECHR 2004II; Lindon, OtchakovskyLaurens and July v. France [GC], nos. 21279/02 and 36448/02, § 59, ECHR 2007XI; Długołęcki v. Poland, no. 23806/03, § 47, 24 February 2009; and Saaristo and Others v. Finland, no. 184/06, § 69 in limine, 12 October 2010), the nature and severity of the penalties imposed are factors to be taken into account, because they must not be such as to dissuade the press from taking part in the discussion of matters of legitimate public concern (see Cumpǎnǎ and Mazǎre, cited above, § 111). In addition, an award of damages for defamation must bear a reasonable relationship of proportionality to the injury to reputation suffered (see Tolstoy Miloslavsky v. the United Kingdom, 13 July 1995, § 49, Series A no. 316B, and Steel and Morris v. the United Kingdom, no. 68416/01, § 96, ECHR 2005II). Indeed, those points were made by the Parliamentary Assembly in its Resolution 1577 (2007) (see paragraph 33 above).\n\n54.  In the instant case, although the proceedings started as criminal, the trial court, in application of Article 78a of the Criminal Code, waived the applicant’s criminal liability and imposed only an administrative punishment (see paragraphs 18 and 32 above). In Rumyana Ivanova the Court attached particular weight to that factor (see Rumyana Ivanova, cited above, § 69). However, it cannot overlook the fact that the possibility offered by Article 78a is apparently available only once, which means that, if convicted a second time of defamation, the applicant is likely to face criminal penalties.\n\n55.  In any event, the Court finds that the overall sum which the applicant was required to pay was a far more important factor in terms of the potential chilling effect of the proceedings on him and other journalists. The four fines imposed on him came to a total of BGN 2,000. However, that amount must not be seen in isolation, but together with the damages – which were substantially increased by the  (see paragraph 22 above) – and the costs awarded to the complainants. Those came to BGN 4,000 and BGN 300 respectively, making the total sum payable BGN 6,300 (EUR 3,221.14). That sum, which was the equivalent of more than fiftyseven minimum monthly salaries (BGN 110 (EUR 56.24) at the relevant time), was payable by the applicant alone (contrast with Worm v. , 29 August 1997, §§ 15 and 57, Reports of Judgments and Decisions 1997V). Unlike Rumyana Ivanova, where the Court was satisfied that BGN 3,050 was reasonable in the circumstances (see Rumyana Ivanova, cited above, § 69), in the case at hand it finds that BGN 6,300 was an excessive sum. The evidence submitted by the applicant shows that he struggled for years to pay it in full (see paragraphs 23 and 24 above and contrast with Stângu and Scutelnicu v. Romania, no. 53899/00, § 56, 31 January 2006, and Mihaiu v. Romania, no. 42512/02, § 71 in fine, 4 November 2008).\n\n(e)  Conclusion\n\n56.  In conclusion, the Court finds that the national authorities did not adduce sufficient reasons for the interference with his right to freedom of expression and subjected him to disproportionate sanctions. It follows that the interference in question was not “necessary in a democratic society”.\n\n57.  There has therefore been a violation of Article 10 of the Convention.\n\nII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n58.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n59.  The applicant claimed repayment of the amounts which he had been ordered to pay in fines, damages to the civil claimants, costs and interest. According to him, those came to 10,250 Bulgarian levs (BGN). He further claimed 5,000 euros (EUR) in respect of nonpecuniary damage.\n\n60.  The Government submitted that the claims were exorbitant. In their view, the finding of a violation was sufficient compensation for any damage suffered by the applicant.\n\n61.  The Court considers that in view of the nature of the violation of Article 10 of the Convention, the applicant is entitled to recover the sums that he was ordered to pay in fines, damages and costs, plus interest (see Lingens v. Austria, 8 July 1986, § 50, Series A no. 103, and Scharsach and News Verlagsgesellschaft v. Austria, no. 39394/98, § 50, ECHR 2003XI). However, the Court notes that, according to the evidence submitted by the applicant, the total amount paid by him came to BGN 9,850.75 and not BGN 10,250 (see paragraphs 23 and 24 above). The Court therefore awards the applicant BGN 9,850.75, plus any tax that may be chargeable.\n\n62.  The Court further finds that an award of compensation in respect of non-pecuniary damage is justified in this case. Making its assessment on an equitable basis, as required under Article 41, the Court awards the applicant the full amount claimed by him under that head (EUR 5,000), plus any tax that may be chargeable.\n\nB.  Costs and expenses\n\n63.  The applicant sought the reimbursement of EUR 3,040 incurred in fees for fifty hours’ work by his lawyer on the proceedings before the Court, at BGN 100 per hour. He submitted a fee agreement between him and his legal representative and a timesheet. He requested that any sum awarded under this head be made payable directly to his legal representative.\n\n64.  The Government disputed both the number of hours claimed and the hourly rate charged by the applicant’s lawyer.\n\n65.  According to the Court’s caselaw, applicants are entitled to the reimbursement of their costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,500, plus any tax that may be chargeable to the applicant. This amount is to be paid directly into the bank account of the applicant’s legal representative, Mr Y. Grozev.\n\nC.  Default interest\n\n66.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Declares the application admissible;\n\n2.  Holds that there has been a violation of Article 10 of the Convention;\n\n3.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement:\n\n(b)  that from the expiry of the abovementioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n4.  Dismisses the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 19 April 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_556","text":"PROCEDURE\n\n1.  The case originated in an application (no. 24247/04) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Russian nationals, Ms Inna Nikolayevna Prisyazhnikova and Mr Nikolay Nikolayevich Dolgopolov (“the applicants”), on 28 May 2004.\n\n2.  The second applicant was represented before the Court by the first applicant, Ms I. Prisyazhnikova. The Russian Government (“the Government”) were represented by Mr P. Laptev, Representative of the  at the European Court of Human Rights.\n\n3.  On 27 September 2004 the Court decided to communicate the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. On 30 August 2005 the Court put additional questions to the parties.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n4.  The applicants were born 1966 and 1934 respectively, and live in Neryungri in the Sakha (Yakutiya) Republic of the .\n\n5.  The applicants brought a civil action against the Government, seeking to enforce State promissory notes for purchase of a Russian-made car or to recover the monetary value thereof.\n\n6.  On 17 March 2003 the Ust-Yanskiy District Court of the Sakha (Yakutiya) Republic found for the applicants and awarded 112,441.80 Russian roubles (“RUR”) to the first applicant and RUR 107,327.82 to the second applicant against the Ministry of Finance.\n\n7.  On 23 April 2003 the Supreme Court of the Sakha (Yakutiya) Republic (hereinafter – “the Supreme Court”) rejected an appeal by the Ministry of Finance and upheld the judgment.\n\n8.  The enforcement proceedings were opened on 15 May 2003, but the judgment was not enforced.\n\n9.  By interim decision of 11 August 2003, Judge R. of the Supreme Court of the Sakha (Yakutiya) Republic refused a request by the Ministry of Finance for obtaining the case file for the purpose of initiating supervisory-review proceedings. The Ministry had claimed that the courts had incorrectly applied the substantive law.\n\n10.  By letter of 20 October 2003, the Supreme Court's President rejected a renewed request by the Ministry of Finance for launching the supervisory-review proceedings.\n\n11.  On 9 June 2004 the Ministry of Finance introduced a new application for supervisory review of the judgments in the applicants' favour, founded on the same grounds as before.\n\n12.  On 30 September 2004 the Supreme Court's President issued an interim decision on remitting the applicants' cases for examination on the merits to the Supreme Court's Presidium by way of supervisory review. In the procedural part, the interim decision of 11 August 2003, but not the letter of 20 October 2003, was mentioned.\n\n13.  On 14 October 2004 the Presidium of the Supreme Court of the Sakha (Yakutiya) Republic, in a five-judge formation presided over by the Supreme Court's President, found that the lower courts had not taken into account certain provisions relating to reimbursement of State promissory notes. On that ground, relying on Articles 388 and 390 of the Code of Civil Procedure, the Presidium quashed the judgments in the applicants' favour and dismissed their claim as having no basis in the domestic law.\n\nII.  RELEVANT DOMESTIC LAW AND PRACTICE\n\nA.  Code of Civil Procedure of the\n\nA.  Code of Civil Procedure of the\n\n15.  The relevant provisions governing the supervisory-review proceedings read as follows:\n\nArticle 13. Binding force of judicial decisions\n\n“1.  Courts may issue judicial decisions in the form of judicial orders, judgments and interim decisions...”\n\nArticle 376. Right to apply to a court exercising supervisory review\n\n“1.  Judicial decisions that have become legally binding, with the exception for judicial decisions by the Presidium of the Supreme Court of the Russian Federation, may be appealed against... to a court exercising supervisory review, by parties to the case and by other persons whose rights or legal interests have been adversely affected by these judicial decisions.\n\n2.  Judicial decisions may be appealed against to a court exercising supervisory review within one year after they became legally binding...”\n\nArticle 378.  Contents of an application for supervisory review\n\n“An application for supervisory review must contain:\n\n(1)  the name of the court to which it is addressed;\n\n...\n\n(4)  a reference to the first-instance, appeal or cassation courts that examined the case and a summary of their decisions;\n\n(5)  a reference to the judgment or decision which is being appealed against...”\n\nArticle 381. Examination of an application for supervisory review\n\n“2. Having examined an application for supervisory review, the judge issues an interim decision on –\n\n(1)  obtaining the case file if there exist doubts as to the lawfulness of the judicial decision;\n\n(2)  refusing to obtain the case file if the arguments in the application for supervisory review may not, in accordance with the federal law, result in quashing of the judicial decision.\n\n...\n\n6.  The President of the regional Supreme Court... may disagree with the judge's decision refusing to obtain the case file. In such case the President issues his own decision on obtaining the case file.”\n\nArticle 382. Examination of case files obtained by the supervisory-review court\n\n“2.  Having examined the case file obtained by the supervisory-review court, the judge issues an interim decision on –\n\n– refusing to remit the case for examination on the merits by the supervisory-review court;\n\n– remitting the case for examination of the application for supervisory review on the merits by the supervisory-review court.”\n\nArticle 383.  Interim decision refusing to remit the case for examination on the merits by the supervisory-review court\n\n“2.  The President of the regional Supreme Court... may disagree with the judge's decision refusing to remit the case for examination on the merits by the supervisory-review court. In such case the President issues his own decision on remitting the case for examination on the merits by the supervisory-review court.”\n\nArticle 384. Decision on remitting the case for examination on the merits\nby a supervisory-review court\n\n“1.  A judicial decision on remitting the case for examination on the merits by a supervisory-review court must contain:\n\n(7)  a reasoned description of the grounds for remitting the case for examination on the merits...”\n\nArticle 390. Competence of the supervisory-review court\n\n“1.  Having examined the case by way of supervisory review, the court may\n\n...\n\n(5)  quash or alter the judicial decision issued by a court of first, second or supervisory-review instance and issue a new judicial decision, without remitting the matter for a fresh examination, if substantive legal provisions have been erroneously applied or interpreted.”\n\nB.  Enforcement Proceedings Act (Law of 21 July 1997)\n\nB.  Enforcement Proceedings Act (Law of 21 July 1997)\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 ON ACCOUNT OF QUASHING OF THE JUDGMENTS IN THE APPLICANTS' FAVOUR\n\nArticle 6 § 1\n\n“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time... by [a]... tribunal...”\n\nArticle 1 of Protocol No. 1\n\n“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law...”\n\nA.  Admissibility\n\nB.  Merits\n\n1.  Alleged violation of Article 6 of the Convention\n\n(a)  Arguments by the parties\n\n(b)  The Court's assessment\n\n26.  The Court further observes that the Ministry's applications for supervisory review were founded on substantially similar arguments. The first was rejected by a Supreme Court judge, the second was dismissed by the Supreme Court President but the third was granted by the same President. It transpires from Articles 381 § 6 and 383 § 2 of the CCP that the President of a regional Supreme Court may overrule the decision of any other judge of the court, whereby that judge refused institution of supervisory-review proceedings. As the Court has already observed, the President's power to do so was not subject to any time-limit (see Denisov v. Russia (dec.), no. 33408/03, 6 May 2004).\n\n27.  Furthermore, the Court notes that under the Russian Code of Civil Procedure the President's power to overrule decisions of other judges is not circumscribed in any way. The President has an unfettered discretion to initiate supervisory-review proceedings, a mere “disagreement” with the ordinary judge's decision being a sufficient ground for doing so (see Articles 381 § 6 and 383 § 2 of the CCP). The President needs no application by a party to exercise that discretion and may take such initiative at any time.\n\n2.  Alleged violation of Article 1 of Protocol No. 1\n\nII.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1 ON ACCOUNT OF LENGTHY NON-ENFORCEMENT OF THE JUDGMENTS\n\nA.  Admissibility\n\n35.  It follows that at least from 23 April 2003 to 14 October 2004 the judgments in the applicants' favour were “enforceable” and it was incumbent on the State agency to abide by their terms. In any event, the Court reiterates that the quashing of a judgment in a manner which has been found to have been incompatible with the principle of legal certainty and the applicant's “right to a court” cannot be accepted as justification for the failure to enforce that judgment (see Sukhobokov v. , no. 75470/01, § 26, 13 April 2006). Accordingly, the Government's objection must be dismissed.\n\nB.  Merits\n\nIII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n42.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\nA.  Damage\n\n45.  The Court recalls that in the instant case it found a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, in that the judgments in the applicants' favour had remained unenforced for a long period of time and had been subsequently quashed. The applicants were thereby prevented from receiving the money they had legitimately expected to receive. There has been therefore a causal link between the violations found and the applicants' claim for the pecuniary damage in so far as it covered the original awards. The applicants' right to receive bigger amounts was not upheld in the domestic proceedings and they did not claim any interest for the period that lapsed between the original award and the Court's judgment. Accordingly, the Court awards RUR 112,442 to Ms Prisyazhnikova and RUR 107,328 to Mr Dolgopolov in respect of the pecuniary damage, plus any tax that may be chargeable on those amounts, and dismisses the remainder of their claim for the pecuniary damage.\n\nB.  Costs and expenses\n\n47.  The applicants did not claim costs or expenses and there is accordingly no call to make an award under this head.\n\nC.  Default interest\n\n48.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Declares the application admissible;\n\n2.  Holds that there has been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 on account of the quashing of the judgments of of 17 March 2003, as upheld on appeal on 23 April 2003, by way of supervisory review;\n\n3.  Holds that there has been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 on account of prolonged non-enforcement of the judgments of 17 March 2003, as upheld on appeal on 23 April 2003;\n\n4.  Holds\n\n(a)  that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n5.  Dismisses the remainder of the applicants' claim for just satisfaction.\n\nDone in English, and notified in writing on 28 September 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_710","text":"PROCEDURE\n\n1.  The case originated in an application (no. 36469/08) against the Republic of Armenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Armenian national, Mr Levon Ter-Petrosyan (“the applicant”), on 30 August 2008.\n\n2.  The applicant was represented by Mr V. Grigoryan, a lawyer practising in Yerevan. The Armenian Government (“the Government”) were represented by their Agent, Mr G. Kostanyan, and subsequently by Mr Y. Kirakosyan, Representative of the Republic of Armenia before the European Court of Human Rights.\n\n3.  The applicant alleged, in particular, that his right to freedom of peaceful assembly had been violated and that he had had no effective remedy in that respect.\n\n4.  On 15 May 2012 the complaints concerning the applicant’s alleged house arrest, the interference with his right to freedom of peaceful assembly, the alleged lack of an effective remedy and his alleged discrimination were communicated to the Government and the remainder of the application was declared inadmissible.\n\n5.  The Government submitted their observations on 5 November 2012, while the applicant filed his on 25 March 2013. In view of the fact that the applicant’s observations had been filed outside the time-limit of 28 February 2013 set by the Court, the President of the Section decided, pursuant to Rule 38 § 1 of the Rules of Court, not to include his belated observations in the case file for the consideration of the Court.\n\n6.  Mr Armen Harutyunyan, the judge elected in respect of Armenia, was unable to sit in the case (Rule 28 of the Rules of Court). Accordingly, the President of the Chamber decided to appoint Mr Jovan Ilievski to sit as an ad hoc judge (Rule 29).\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n7.  The applicant was born in 1945 and lives in Yerevan. He was the President of Armenia between 1991 and 1998.\n\nA.  The 19 February 2008 presidential election and the post-election demonstrations\n\n8.  On 19 February 2008 a presidential election was held in Armenia. The applicant was running as the main opposition candidate, his main opponent being the then Prime Minister, Mr Sargsyan, who represented the ruling party and was a close ally of the outgoing President, Mr Kocharyan.\n\n9.  Immediately after the announcement of the preliminary results of the election, the applicant called on his supporters to gather at Freedom Square in central Yerevan in order to protest against the irregularities which had allegedly occurred in the election process, announcing that the election had not been free and fair.\n\n10.  From 20 February 2008 onwards, nationwide daily protest rallies were held by the applicant’s supporters, their main meeting place being Freedom Square and the surrounding park. It appears that the rallies at Freedom Square, held during the daytime and late into the night, attracted at times tens of thousands of people, while several hundred demonstrators stayed in that area around the clock, having set up a camp. The applicant participated in the rallies in his capacity as opposition leader and presidential candidate, giving speeches two to three times a day on issues of political and public interest and regularly calling on his supporters to continue the mass protests. He himself also stayed at Freedom Square around the clock, leaving only for two to three hours a day.\n\n11.  On 23 February 2008 the outgoing President held individual meetings with the chief of police, chief of the army and chief of national security, announcing that he would not allow anybody to destabilise the situation in the country and giving instructions to that effect. The applicant alleged that, following those meetings, persecution had begun against many of his supporters. Various political and public figures who had expressed their support for his candidacy, members of his election campaign and other supporters were arrested and charged on various grounds. Furthermore, many of his supporters in the regions were subjected to ill-treatment and psychological pressure at police stations, were dismissed from work or deprived of social benefits. His telephone conversations and those of his supporters were tapped and various party premises searched.\n\n12.  On 24 February 2008 the Central Election Commission announced that Mr Sargsyan had won the election with around 52% of all votes cast, while the applicant had received around 21% of votes.\n\n13.  On 29 February 2008 the rallies were still in full swing, while all the international election observers had left the country. The applicant alleged that the authorities had deliberately waited for the departure of the international observers before starting their unlawful dispersal of the assembly at Freedom Square.\n\n14.  On the same date the applicant applied to the , contesting the election results and seeking to annul them.\n\nB.  The early morning police operation on 1 March 2008 and the applicant’s alleged house arrest\n\n15.  The applicant alleged that on 1 March 2008 at around 6 a.m. the police had arrived at Freedom Square. At that time he had been asleep in his car parked at the square. Most of the demonstrators who were camping there were also asleep, but news spread that the police were in the vicinity and the demonstrators began to waken. The applicant was woken by his bodyguard and walked to one of the statues situated in the centre of the square. By then the police forces had already encircled the several hundred demonstrators based on the square. They started making a loud noise by banging their rubber batons against their shields, which spread panic among the demonstrators. Some of them managed to switch on the microphones and the lights on the square, whereupon the applicant addressed the demonstrators from a platform: “We see that police forces have arrived on the square. Please, do not have any contact with them and do not touch them. Please, keep your distance from them. Let us wait and see what they want from us. If they have something to tell us, we are ready to listen. Please, be patient and peaceful”. The demonstrators followed his request and kept their distance from the police forces, which by then had surrounded the demonstrators with a triple cordon. Suddenly, without any prior warning or orders to disperse, the police forces, shouting loudly, had attacked the demonstrators, violently beating them with rubber batons and destroying the camp. In a matter of minutes the demonstrators were pushed out of Freedom Square. They tried to save themselves by fleeing from the police officers who chased, beat and kicked them brutally, regardless of their age and gender.\n\n16.  In the meantime, the applicant, who was on the platform, was approached by the Head of the State Protection Department (SPD) of the National Security Service, who was also the chief of the Armenian President’s bodyguard team, and other SPD officers. They surrounded the applicant and his bodyguards and then forcibly took them to one of the central statues on the square, where the applicant was ordered to sit on a bench surrounded only by SPD officers. After the square was cleared of all demonstrators, the Head of the SPD approached the applicant and ordered him to leave the square. The applicant refused to comply, saying that he would not leave the square voluntarily and that they could make him do so only by arresting him. After further attempts to make the applicant leave the square failed, the Head of the SPD forced the applicant into a car and took him to his house in Yerevan. Once there, he was not allowed to leave the territory of his house and garden. The roads to his house were blocked by special police forces, SPD officers, the road traffic police and other police units. Block posts were set up and all vehicles heading to and from his house were checked and searched. No one could reach the applicant or go in or out of his home without the permission of the special forces. The special forces, after carrying out a search of visitors and their vehicles, reported their identity and the purpose of their visit to an unidentified superior and allowed visitors to go in and out only after receiving instructions from that person.\n\n17.  It appears that, after Freedom Square was cleared of demonstrators, some of them relocated to the area near the French Embassy, where they were later joined by thousands of others who apparently poured into the streets of Yerevan in response to the events of the early morning in order to voice their discontent. It further appears that the rallies continued throughout the city until late at night, involving clashes between protesters and law enforcement officers and resulting in ten deaths, including eight civilians, numerous injured and a state of emergency being declared by the outgoing President. The state of emergency, inter alia, prohibited the holding of any further rallies and other mass public events for a period of twenty days.\n\n18.  The Government contested the applicant’s above-mentioned allegations and alleged the following. Firstly, the reason for the police operation of 1 March 2008 at Freedom Square had been the information obtained the day before by the law enforcement authorities, according to which a large number of weapons were to be distributed to the protesters to incite provocative actions and mass disorder in Yerevan. Members of the relevant police force had arrived on Freedom Square at around 7 a.m. to verify that information, but met with resistance from the demonstrators who had attacked the police officers with wooden bats, metal rods and stones. Secondly, once violence had erupted on Freedom Square, because his security was in danger the applicant had been surrounded on the platform by the Head of the SPD and other SPD officers and taken to the edge of the square, about 20 to 30 metres away, where he sat on a bench surrounded by SPD officers. After the assembly was terminated, the applicant, who was still sitting on the bench, was advised by the Head of the SPD to go home, but he refused. During that time a journalist freely approached the applicant, interviewed him and left. The applicant was then again advised by the Head of the SPD to go home, but did not respond. An SPD car then approached and the applicant got into the car voluntarily and was taken by SPD officers to his home in Yerevan. While being taken home, the applicant did not express any wish to go elsewhere. Later in the afternoon additional SPD and police forces were stationed near the applicant’s house as part of special security measures employed on that day in respect of all persons under State protection, because of the escalating violence in Yerevan. For security reasons SPD officers were instructed to search everyone entering the applicant’s house, but they were never instructed to prohibit anyone from entering the house or to prevent the applicant from leaving. The applicant expressed the wish to leave the house and to join the demonstrators near the French Embassy only once, on 1 March. He was told by the Head of the SPD that he was free to leave and go wherever he wanted, but the SPD would not be able to ensure his security in the area near the French Embassy and they would not accompany him there. The applicant did not wish to leave the house without State protection.\n\n18.  The Government contested the applicant’s above-mentioned allegations and alleged the following. Firstly, the reason for the police operation of 1 March 2008 at Freedom Square had been the information obtained the day before by the law enforcement authorities, according to which a large number of weapons were to be distributed to the protesters to incite provocative actions and mass disorder in Yerevan. Members of the relevant police force had arrived on Freedom Square at around 7 a.m. to verify that information, but met with resistance from the demonstrators who had attacked the police officers with wooden bats, metal rods and stones. Secondly, once violence had erupted on Freedom Square, because his security was in danger the applicant had been surrounded on the platform by the Head of the SPD and other SPD officers and taken to the edge of the square, about 20 to 30 metres away, where he sat on a bench surrounded by SPD officers. After the assembly was terminated, the applicant, who was still sitting on the bench, was advised by the Head of the SPD to go home, but he refused. During that time a journalist freely approached the applicant, interviewed him and left. The applicant was then again advised by the Head of the SPD to go home, but did not respond. An SPD car then approached and the applicant got into the car voluntarily and was taken by SPD officers to his home in Yerevan. While being taken home, the applicant did not express any wish to go elsewhere. Later in the afternoon additional SPD and police forces were stationed near the applicant’s house as part of special security measures employed on that day in respect of all persons under State protection, because of the escalating violence in Yerevan. For security reasons SPD officers were instructed to search everyone entering the applicant’s house, but they were never instructed to prohibit anyone from entering the house or to prevent the applicant from leaving. The applicant expressed the wish to leave the house and to join the demonstrators near the French Embassy only once, on 1 March. He was told by the Head of the SPD that he was free to leave and go wherever he wanted, but the SPD would not be able to ensure his security in the area near the French Embassy and they would not accompany him there. The applicant did not wish to leave the house without State protection.\n\n19.  On 1 March 2008 the Secretary General of the Council of Europe issued the following press release:\n\n“I am very concerned about reports of injuries during the security forces’ operation to disperse protesters in  this morning. If these reports are confirmed, all allegations of excessive force should be properly investigated. It is also vital to prevent any further violence.\n\nI am also alarmed by the reports that the runner-up in the recent presidential elections, former President [Levon Ter-Petrosyan], has been put under house arrest. If this is true, he should be immediately released. If he is accused of committing a crime, he should be properly charged and prosecuted in a court of law like anyone else. In a democracy you cannot arbitrarily detain political opponents.”\n\n20.  On the same day the SPD issued a statement that was broadcast on the public television channel, to the effect that SPD officers had decided to remove the applicant from Freedom Square, pursuant to Section 6 § 3 of the Act on Ensuring the Security of Persons Subject to Special State Protection, in order to ensure his safety – as a former President of Armenia subject to State protection – from any danger posed by the situation created during the police operation in the morning of 1 March 2008. The applicant had been removed from the square and taken to his house, which was similarly to be protected by the SPD, pursuant to Section 12 (2) of the same Act. Bearing in mind the necessity of ensuring the applicant’s security, as well as taking into account the fact that the applicant’s leaving his home might lead to unpredictable developments and pose a danger to his security, the SPD – in the situation which had arisen – had warned the applicant that he must categorically refrain from attempting to leave his house, indicating that otherwise the SPD could not bear responsibility for his safety, since they could not accompany him to an unlawful demonstration.\n\n21.  On 4 March 2008 the applicant’s representative filed a request at the hearing before the Constitutional Court, submitting that the applicant was under de facto house arrest and unable to attend, and requesting that the Constitutional Court take measures to ensure his attendance. The President of the Constitutional Court replied that the applicant had three representatives at the hearing. However, if the applicant also wished to attend but was unable for whatever reason, the request would be examined and an appropriate decision would be taken.\n\n22.  On the same date the Constitutional Court took a decision, ordering the General Prosecutor’s Office to clarify the fact of the applicant’s alleged de facto deprivation of liberty, as claimed by his representatives, and to ensure his attendance at the hearing before the Constitutional Court if he so wished.\n\n23.  On the same date the General Prosecutor’s Office replied that the applicant was not deprived of his liberty, there were no restrictions on his freedom of movement, there was no such concept as “house arrest” under the law and he was free to attend the hearing before the Constitutional Court if he so wished. It was not the duty of the General Prosecutor’s Office to ensure his attendance.\n\n24.  The applicant alleged that, following the decision of the Constitutional Court, he was allowed to attend the hearing on 5 March 2008 for one hour. Otherwise, his house arrest lasted without interruption until at least 20 March 2008.\n\n25.  The Government contested the applicant’s allegations and claimed that the applicant had attended the hearing before the Constitutional Court after he had expressed the wish to do so and had been accompanied by SPD officers. After the hearing was over, he himself had asked to return home and thereafter he did not express any wish to leave his house until the state of emergency was lifted on 20 March 2008. The special SPD reinforcements were removed from the applicant’s house on 16 March 2008. Throughout that period the applicant had numerous visitors at his house, including journalists, diplomats and other persons, none of whom was prohibited from entering.\n\n26.  On 8 March 2008 the  dismissed the applicant’s application of 29 February 2008.\n\nII.  RELEVANT DOMESTIC LAW\n\nA.  Code of Administrative Procedure (2008-2014)\n\n27.  Article 65 (challenging claim) provides that an applicant, by lodging a challenging claim, may demand partial or full annulment or modification of an interfering administrative act.\n\n28.  Article 66 (obligating claim) provides that an applicant, by lodging an obligating claim, may demand the enactment of a favourable administrative act which an administrative authority refused to – or did not – enact.\n\n29.  Article 67 (performance of an action claim) provides that an applicant, by lodging a claim for performance of an action, may demand the performance of certain actions or refraining from such actions which are not aimed at the enactment of an administrative act.\n\n30.  Article 68 (acknowledgement claim) provides that an applicant, by lodging an acknowledgement claim, may demand (1) an acknowledgement of existence or absence of any legal relationship, if he cannot lodge a claim under Articles 65-67 of the Code; (2) an acknowledgement of invalidity of an administrative act; and (3) an acknowledgement of unlawfulness of an interfering administrative act or action which no longer has legal force, if the applicant has a legitimate interest in having the act or action in question acknowledged as unlawful, that is if (a) there is a risk of once again enacting a similar interfering administrative act or performing a similar action in a similar situation; (b) the applicant intends to claim pecuniary damages; or (c) the applicant pursues the aim of rehabilitating his honour, dignity or business reputation.\n\nB.  Act on Ensuring the Security of Persons Subject to Special State Protection (2004)\n\n31.  Section 1 lists the main concepts used in the Act which include, among others, “protected objects”, that is buildings, constructions, structures, adjacent territories and transportation means where persons subject to State protection are permanently or temporarily located and which require protection in order to ensure the security of persons subject to State protection.\n\n32.  Section 6 § 3 provides that a former President of Armenia is provided with personal lifetime State protection, except in cases prescribed by law.\n\n33.  Section 10 provides that the authority carrying out State protection is the State Protection Department of Armenia (hereafter, the competent authority).\n\n34.  Section 11 lists the main tasks of the competent authority which include, among others, (2) ensuring the security of persons subject to State protection at their permanent or temporary location, including during travel, and (7) ensuring the regime of access control established at a protected object.\n\n35.  Section 12 (2) provides that the competent authority is obliged to organise and implement protective, regime, technical and other measures aimed at ensuring the security of persons subject to State protection.\n\n36.  Section 13 (4) provides that the competent authority has the right to check the identity documents of public officials and other persons during their entry and exit to and from a protected object, to carry out their inspection and an inspection of objects which they have on them, their transportation means and objects transported in them, including by applying technical measures.\n\nC.  Assemblies, Rallies, Marches and Demonstrations Act (2004-2011)\n\n37.  Section 14 § 1(4) provides that the police are entitled to decide to terminate a public event and to order the organisers to terminate the event, by allowing them a reasonable time-limit to do so, if, after a warning by the police, public order and requirements of the law continue to be violated and this poses a real risk to the life and health of others, State and public security and public order, and may cause substantial pecuniary damage to the State, the community, natural or legal persons.\n\nIII.  RELEVANT INTERNATIONAL MATERIALS\n\nA.  Council of Europe bodies\n\n1.  The Functioning of Democratic Institutions in Armenia: Report by the Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee), Doc. 11579, 15 April 2008\n\n1.  The Functioning of Democratic Institutions in Armenia: Report by the Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee), Doc. 11579, 15 April 2008\n\n38.  The relevant extract from the Report provides:\n\n“13.  The exact circumstances that led to the tragic events of 1 March 2008, as well as the manner in which they were handled by the authorities, including the declaration of the state of emergency, must be subject to an official independent investigation. However, according to the official version, in the early morning of 1 March 2008, the police attempted a search of the tent camp on Freedom Square. After they met with resistance from the protesters, the police took the decision to clear the tent camp. During this action, 31 persons were injured – according to official information – and Mr Levon Ter-Petrosyan was placed under de facto house arrest¹. ...\n\n[Footnote:]\n\n2.  Report by the Council of Europe Commissioner for Human Rights on his Special Mission to Armenia, 12-15 March 2008, CommDH(2008)11REV, 20 March 2008\n\n2.  Report by the Council of Europe Commissioner for Human Rights on his Special Mission to Armenia, 12-15 March 2008, CommDH(2008)11REV, 20 March 2008\n\n39.  The relevant extract from the Report provides:\n\n“1.  Introduction\n\n...During his visit from 12 to 15 March 2008, the Commissioner ... had a separate meeting with the former President and Presidential candidate, [Levon Ter-Petrosyan]. ...\n\n3.  Events on 1 March\n\n... The search operation reportedly started early Saturday morning at approximately 6.30, according to several interlocutors. During this operation tents were taken down and people were beaten and injured. Demonstrators started resisting and clashes broke out between the police and security forces and the demonstrators.\n\nAccording to the both parties, a tentative agreement seems to have been reached later that same morning to relocate the demonstration and allow it to continue, either in front of the Myasnikyan’s monument [near the French Embassy] or close to the main train station. However, this agreement appears never to have been properly communicated to the demonstrators by their leaders, notably [Mr Ter-Petrosyan], who at that stage was prevented from leaving his residence. ...\n\n8.  Arrests\n\n... Former President [Mr Levon Ter-Petrosyan] is currently held in what must be qualified as de facto house arrest. He is provided close protection by the authorities in charge of the State of , notably the National Security Services. According to the Head of Police, he is free to leave his house, however the close protection service will only accompany him to safe places.”\n\nB.  Human Rights Watch Report: Democracy on Rocky Ground: Armenia’s Disputed 2008 Presidential Election, Post-Election Violence, and the One-Sided Pursuit of Accountability, February 2009\n\nB.  Human Rights Watch Report: Democracy on Rocky Ground: Armenia’s Disputed 2008 Presidential Election, Post-Election Violence, and the One-Sided Pursuit of Accountability, February 2009\n\n40.  The relevant extract from the Report provides:\n\n“[Levon Ter-Petrosyan], who had been sleeping in his car parked at the square, was woken up. According to the account he gave Human Rights Watch, he addressed the [protesters], some of whom by this time were out of their tents, asking them to step back from the police line, and then to stay where they were and wait for instructions from the police. He also warned the police that there were women and children among the demonstrators.\n\nEven before [Ter-Petrosyan] finished his address, police advanced towards the demonstrators in several lines, beating their truncheons against their plastic shields. According to multiple witnesses, the police made no audible demand for anyone to disperse nor gave any indication of the purpose of their presence. They started pushing demonstrators from the square with their shields, causing some to panic and scream and others to run. Some demonstrators appeared ready to fight the police, which was why, according to [Ter-Petrosyan], he urged the crowd not to resist the police. Others were still in their tents.\n\nImmediately afterwards, without any warning, riot police attacked the demonstrators, using rubber truncheons, iron sticks, and electric shock batons. According to [the applicant], a group of about 30 policemen under the command of [the Head of the SPD] approached him and forcibly took him aside. When asked if he was arrested, [Ter-Petrosyan] was told that police were there to guarantee his safety and that he was requested to cooperate. [Levon Ter-Petrosyan] was subsequently taken home and effectively put under house arrest.”\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION AND ARTICLE 2 OF PROTOCOL No. 4\n\n41.  The applicant complained that during the police operation at Freedom Square he had first been isolated by the SPD officers and later placed under de facto house arrest which had lasted until about 25 March 2008. He relied on Article 2 of Protocol No. 4, while the Court considered it necessary to examine this complaint also under Article 5 § 1 of the Convention, which in so far as relevant read as follows:\n\n“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:\n\n(a)  the lawful detention of a person after conviction by a competent court;\n\n(b)  the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;\n\n(c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;\n\n(d)  the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;\n\n(e)  the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;\n\n(f)  the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”\n\n“1.  Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.\n\n...\n\n3.  No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.\n\n4.  The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.”\n\nA.  The parties’ submissions\n\nA.  The parties’ submissions\n\n42.  The Government submitted that these complaints were inadmissible on the following grounds.\n\nFirstly, the applicant lacked victim status, since he had never been deprived of his liberty or of his right to freedom of movement in March 2008. He had not been removed from Freedom Square against his will or taken home by force. He had been aware that the SPD, entrusted with the protection of his security, was taking him home after a violent clash at Freedom Square and he had not objected to that. Nor did he express the wish to stay at Freedom Square or to go elsewhere. While at home, the applicant was free to go anywhere, and it was he who refused to leave the house after SPD officers told him that they would not accompany him when he expressed the wish to join the demonstrators in the vicinity of the French Embassy. The applicant’s presence at the hearing before the Constitutional Court was the result of his own free will, as opposed to any actions or decisions by the Constitutional Court or the General Prosecutor’s Office. As regards the additional SPD and police forces which were deployed at the applicant’s house on the afternoon of 1 March 2008 as a result of the escalation of violence in Yerevan, they were merely performing their duty of ensuring the applicant’s security and they never barred his exit from the house or prevented anyone from entering.\n\nSecondly, the applicant had failed to exhaust the domestic remedies. In particular, he could have lodged a challenging claim under Article 65 of the Code of Administrative Procedure (CAP) and/or an acknowledgement claim under Article 68 of the CAP against the allegedly unlawful actions of the SPD, namely his alleged forcible removal from Freedom Square and the alleged ban on leaving his house. The Government argued that there had been numerous cases at the material time in which applicants had made successful claims in the Administrative Court against law enforcement authorities, and submitted copies of four judgments rendered by that court against the Armenian Police. They added that it was not possible to produce any judgment by the Administrative Court concerning specifically the actions of the SPD, because no such claims had ever been lodged with that court, in view of the narrow sphere of law enforcement activities of that particular administrative body.\n\n43.  As regards the merits of the applicant’s complaints, the Government submitted that there had been no interference with the applicant’s rights guaranteed by Article 5 of the Convention and Article 2 of Protocol No. 4. He had been removed without his consent only from the platform on Freedom Square and taken to a secure place about 20 to 30 metres away, for his own security, since violence had broken out on Freedom Square, but no force or compulsion had been applied to the applicant as he had left Freedom Square, nor any restrictions on his liberty or freedom of movement thereafter. In any event, even assuming that there was an interference with Article 2 of Protocol No. 4, it was prescribed by law, namely Sections 6 § 3, 11 (2) and 12 (2) of the Act on Ensuring the Security of Persons Subject to Special State Protection. The interference, namely the security measures, was aimed at the prevention of possible crimes against the applicant since there was violent disorder at Freedom Square, and then later at home because all persons under State protection were affected by the security measures due to the security situation in Yerevan. The interference was necessary in a democratic society since it was normal practice in democratic societies to protect both current and former presidents and high-ranking officials, especially in emergency situations.\n\n44.  The applicant did not reply to the Government’s submissions, having failed to submit his observations in due time.\n\nB.  The Court’s assessment\n\n45.  The Court notes at the outset that the parties disagreed on the issue of whether any restrictions had been placed on the applicant’s liberty and freedom of movement following the early morning events of 1 March 2008. The Government contested the applicant’s allegations that he had been taken home by force and not allowed to leave his residence for several weeks, with the exception of attending a hearing before the Constitutional Court. Both the applicant and the Government submitted witness statements in support of their positions. Thus, the dispute between the parties is primarily of fact and the Court must therefore first examine whether there was, in the instant case, deprivation of liberty or a restriction on the applicant’s liberty of movement to which Article 5 of the Convention and Article 2 of Protocol No. 4 apply.\n\n46.  In this connection, the Court notes the several reports suggesting that the applicant may have been placed under so-called “house arrest” as a result of his political activity, including a press release by the Secretary General of the Council of Europe, the Monitoring Committee of the Parliamentary Assembly of the Council of Europe, Human Rights Watch and the Council of Europe Commissioner for Human Rights, who also personally met with the applicant during his special mission to Armenia between 12 and 15 March 2008 (see paragraphs 19 and 38-40 above). At the same time, the Court does not have at its disposal any strong and unequivocal evidence which would corroborate those allegations and show beyond reasonable doubt that this was indeed the case and that the SPD acted in bad faith and abused its authority by restricting the applicant’s liberty or freedom of movement under the guise of ensuring his security or otherwise. This issue was never examined before any domestic authority, while the above-mentioned reports, while undoubtedly worrying, are not sufficient by themselves to allow the Court to accept unhesitatingly the applicant’s version of events. The Court is therefore not in a position to conclude that the applicant was deprived of his liberty or that his freedom of movement was restricted within the meaning of Article 5 § 1 of the Convention and Article 2 of Protocol No. 4 as alleged.\n\n46.  In this connection, the Court notes the several reports suggesting that the applicant may have been placed under so-called “house arrest” as a result of his political activity, including a press release by the Secretary General of the Council of Europe, the Monitoring Committee of the Parliamentary Assembly of the Council of Europe, Human Rights Watch and the Council of Europe Commissioner for Human Rights, who also personally met with the applicant during his special mission to Armenia between 12 and 15 March 2008 (see paragraphs 19 and 38-40 above). At the same time, the Court does not have at its disposal any strong and unequivocal evidence which would corroborate those allegations and show beyond reasonable doubt that this was indeed the case and that the SPD acted in bad faith and abused its authority by restricting the applicant’s liberty or freedom of movement under the guise of ensuring his security or otherwise. This issue was never examined before any domestic authority, while the above-mentioned reports, while undoubtedly worrying, are not sufficient by themselves to allow the Court to accept unhesitatingly the applicant’s version of events. The Court is therefore not in a position to conclude that the applicant was deprived of his liberty or that his freedom of movement was restricted within the meaning of Article 5 § 1 of the Convention and Article 2 of Protocol No. 4 as alleged.\n\n47.  In these circumstances, the Court finds that the applicant’s complaints under Article 5 § 1 of the Convention and Article 2 of Protocol No. 4 are not sufficiently substantiated and that, consequently, this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.\n\nII.  ALLEGED VIOLATION OF ARTICLES 11 AND 13 OF THE CONVENTION\n\n48.  The applicant complained that his right to freedom of peaceful assembly had been violated as a result of unlawful and disproportionate interference by the police, namely the dispersal of the assembly at Freedom Square, and that he had had no effective remedy against the breach of that right. He relied on Articles 11 and 13 of the Convention, which in so far as relevant read as follows:\n\n“1.  Everyone has the right to freedom of peaceful assembly...\n\n2.  No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others ...”\n\n“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”\n\nA.  The parties’ submissions\n\nA.  The parties’ submissions\n\n49.  The Government submitted that the applicant had had effective domestic remedies at his disposal in respect of the alleged violation of Article 11 of the Convention, as required by Article 13 of the Convention. In particular, it was open to the applicant to lodge an acknowledgement claim under Article 68 of the CAP contesting the actions of the police, namely the dispersal of the assembly at Freedom Square. They argued that this remedy was effective both in theory and in practice, stating that at the material time there had been cases in which plaintiffs successfully brought proceedings before the Administrative Court concerning rights protected by Article 11 and submitting in support of their argument copies of three judgments rendered by that court between August and October 2008. Having failed to avail himself of this remedy, the applicant failed to exhaust the domestic remedies and his complaint under Article 11 was therefore inadmissible.\n\n50.  The Government further submitted that Article 11 was not applicable to the assembly at Freedom Square because the latter was not of a peaceful nature. Even assuming that Article 11 were applicable, the dispersal of the assembly was justified under Section 14 § 1(4) of the Assemblies, Rallies, Marches and Demonstrations Act, in force at the material time. The police officers had had no intention of terminating the assembly on 1 March 2008 and their sole intention had been to carry out an inspection for weapons, to which the demonstrators had reacted violently. The decision to terminate the assembly was therefore taken spontaneously in response to such violence. Thus, the interference was proportionate and necessary, since no democratic society could tolerate such aggressive behaviour and disorder from a large crowd. Moreover, the authorities had shown a very lenient approach to the assembly at Freedom Square by allowing it to take place from 20 February to 1 March 2008, despite the fact that it had been organised in breach of domestic law, and had thereby ensured the freedom of assembly of its participants.\n\n51.  The applicant did not reply to the Government’s submissions, having failed to submit his observations in due time.\n\nB.  The Court’s assessment\n\n1.  Admissibility\n\n52.  Taking note of the Government’s non-exhaustion claim (see paragraph 49 above), the Court considers that this issue is closely linked to the merits of the applicant’s complaint that he did not have at his disposal an effective remedy regarding the alleged violation of his right to freedom of assembly. Thus, the Court finds it necessary to join the Government’s objection to the merits of the complaint under Article 13 of the Convention (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 70, 10 January 2012).\n\n53.  As regards the Government’s claim of inapplicability of Article 11, the Court reiterates that Article 11 of the Convention only protects the right to “peaceful assembly”, a notion which does not cover a demonstration where the organisers and participants have violent intentions (see Kudrevičius and Others v. Lithuania [GC], no. 37553/05, § 92, ECHR 2015). It notes that it has already examined and dismissed a similar claim by the Government, finding that there was not sufficient and convincing evidence to conclude that the organisers and the participants of the assembly at Freedom Square had had violent intentions and that the assembly in question had not been peaceful (see Mushegh Saghatelyan v. Armenia, no. 23086/08, §§ 229-233, 20 September 2018). The Court therefore rejects this objection.\n\n54.  The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.\n\n2.  Merits\n\n55.  The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged (see Demopoulos and Others v. Turkey (dec.) [GC], nos. 46113/99 et al., ECHR 2010). The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see Paksas v. Lithuania [GC], no. 34932/04, § 75, ECHR 2011 (extracts)). It is incumbent on the Government claiming nonexhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see Kennedy v. the United Kingdom, no. 26839/05, § 109, 18 May 2010). Once this burden of proof has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case (see Selmouni v. France [GC], no. 25803/94, § 76, ECHR 1999V).\n\n56.  Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured. The effect of that provision is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief. The scope of the Contracting States’ obligations under Article 13 varies depending on the nature of the applicant’s complaint. However, as noted above, the remedy required by Article 13 must be “effective” in practice as well as in law. The “effectiveness” of a “remedy” within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant, but it must be capable either of preventing the alleged violation or its continuation, or of providing adequate redress for any violation that has already occurred (see Ananyev and Others, cited above, § 96, and Khlaifia and Others v. Italy [GC], no. 16483/12, § 268, ECHR 2016 (extracts)).\n\n57.  In the present case, the applicant alleged that he had had no effective remedy in respect of the police actions, namely the forcible termination of the assembly at Freedom Square, while the Government claimed that the applicant could have raised that issue before the courts, which he had failed to do and thereby failed to exhaust the domestic remedies. In this connection, the Government relied on Article 68 of the CAP. The Court notes, however, that, while the Government did produce copies of three judgments in support of their argument, nothing suggests that those judgments were rendered by the Administrative Court under the procedure prescribed by Article 68 of the CAP. In fact, it is explicitly stated in one of the judgments that the claim is lodged under Article 65 of the CAP, while the other two judgments are silent on this point. More importantly, all three judgments concern challenges lodged against interfering administrative acts, such as decisions taken by the Yerevan Mayor’s Office prohibiting the holding of a rally, as opposed to any interfering actions taken by law enforcement authorities during a demonstration, including its dispersal or forcible termination. The Government have therefore failed to produce any examples of Article 68 of the CAP ever having been applied in a situation similar to the present case. This is further exacerbated by the fact that the applicability of that Article to situations such as the one at hand is not obvious from its wording either. In particular, while paragraph 3 of that Article does mention the possibility of seeking an acknowledgement of unlawfulness of an interfering administrative action, this applies only to an action which “no longer has legal force” and which an applicant has a legitimate interest to have acknowledged as unlawful depending on certain conditions listed under (a)-(c), none of which would appear to exist in the present case. It is therefore not clear whether Article 68 § 3 could apply to such police actions as the dispersal of an assembly, like in the present case. In view of such lack of clarity and the absence of any examples of domestic practice, the Court considers that the Government have failed to demonstrate – and there are otherwise no reasons to believe – that the applicant had an effective remedy in respect of the interference with his right to freedom of assembly.\n\n58.  In view of the above, the Court dismisses the Government’s objection as to the nonexhaustion of domestic remedies and finds that the applicant did not have at his disposal an effective domestic remedy for his grievances under Article 11, in breach of Article 13 of the Convention.\n\n59.  The Court reiterates that an interference does not need to amount to an outright ban, legal or de facto, but can consist in various other measures taken by the authorities. The term “restrictions” in Article 11 § 2 must be interpreted as including both measures taken before or during an assembly, such as a prior ban, dispersal of the rally or the arrest of participants, and those, such as punitive measures, taken afterwards, including penalties imposed for having taken part in a rally (see Navalnyy and Yashin v. Russia, no. 76204/11, § 51, 4 December 2014, and Kudrevičius and Others, cited above, § 100).\n\n60.  The Court notes at the outset that the Government did not dispute the existence of an interference, other than arguing that the assembly had not been peaceful. It further notes that it has already held that the dispersal of the assembly at Freedom Square had interfered with the right to freedom of assembly of its participants (see Mushegh Saghatelyan, cited above, § 234). This conclusion undoubtedly applies to the applicant, who was the main leader of the demonstrations held at Freedom Square and was, moreover, on site during the dispersal. The Court concludes that there has been an interference with the applicant’s right to freedom of peaceful assembly.\n\n61.  The Court reiterates that an interference will constitute a breach of Article 11 unless it is “prescribed by law”, pursues one or more legitimate aims under paragraph 2 and is “necessary in a democratic society” for the achievement of those aims (see Galstyan v. Armenia, no. 26986/03, § 103, 15 November 2007).\n\n62.  In the present case, the Court does not consider it necessary to decide whether the interference was prescribed by law and pursued a legitimate aim having regard to its conclusions set out below, regarding the necessity of the interference (see, mutatis mutandis, Christian Democratic People’s Party v. Moldova, no. 28793/02, §§ 49-54, ECHR 2006II, and Mushegh Saghatelyan, cited above, § 237).\n\n62.  In the present case, the Court does not consider it necessary to decide whether the interference was prescribed by law and pursued a legitimate aim having regard to its conclusions set out below, regarding the necessity of the interference (see, mutatis mutandis, Christian Democratic People’s Party v. Moldova, no. 28793/02, §§ 49-54, ECHR 2006II, and Mushegh Saghatelyan, cited above, § 237).\n\n63.  The Court reiterates at the outset that the right to freedom of assembly, one of the foundations of a democratic society, is subject to a number of exceptions which must be narrowly interpreted and the necessity for any restrictions must be convincingly established. When examining whether restrictions on the rights and freedoms guaranteed by the Convention can be considered “necessary in a democratic society” the Contracting States enjoy a certain but not unlimited margin of appreciation. It is, in any event, for the Court to give a final ruling on the restriction’s compatibility with the Convention and this is to be done by assessing the circumstances of a particular case (see Kudrevičius and Others, cited above, § 142).\n\n64.  The Court notes that it has already examined the necessity of the interference with the assembly at Freedom Square and concluded that its dispersal was without sufficient justification and took place under somewhat dubious circumstances, apparently without warnings to disperse and with unjustified and excessive use of force, and that it was a disproportionate measure which went beyond what it was reasonable to expect from the authorities when curtailing freedom of assembly (see Mushegh Saghatelyan, cited above, §§ 240-248). The Court sees no reasons to depart from that conclusion in the present case.\n\n64.  The Court notes that it has already examined the necessity of the interference with the assembly at Freedom Square and concluded that its dispersal was without sufficient justification and took place under somewhat dubious circumstances, apparently without warnings to disperse and with unjustified and excessive use of force, and that it was a disproportionate measure which went beyond what it was reasonable to expect from the authorities when curtailing freedom of assembly (see Mushegh Saghatelyan, cited above, §§ 240-248). The Court sees no reasons to depart from that conclusion in the present case.\n\n65.  There has accordingly been a violation of Article 11 of the Convention.\n\nIII.  ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION\n\n66.  The applicant further complained that his alleged house arrest and the interference with his right to freedom of assembly were motivated by his political opinions and amounted to discrimination. The applicant relied on Article 1 of Protocol No. 12 but the Court considers that this complaint falls to be examined under Article 14 of the Convention, which provides:\n\n“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”\n\n67.  The Government contested that argument.\n\n68.  The Court considers that, as far as the applicant’s allegations of discrimination in connection with his alleged “house arrest” are concerned, this part of the application must similarly be declared inadmissible as manifestly ill-founded pursuant to Article 35 §§ 3 (a) and 4 of the Convention, in view of the Court’s findings under Article 5 § 1 of the Convention and Article 2 of Protocol No. 4 (see paragraph 47 above).\n\n69.  As regards the applicant’s allegations of discrimination in connection with the interference with his right to freedom of assembly, having regard to its findings under Article 11 of the Convention (see paragraphs 63-65 above), the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Article 14 of the Convention in conjunction with Article 11.\n\nIV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n70.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\n71.  The applicant did not duly submit a claim for just satisfaction in accordance with the requirements of Rule 60 of the Rules of Court. Accordingly, the Court considers that there is no call to award him any sum on that account.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\n1.  Decides to join to the merits the Government’s preliminary objection of non-exhaustion of domestic remedies and dismisses it;\n\n2.  Declares the complaints concerning the interference with the applicant’s right to freedom of peaceful assembly and the alleged lack of effective remedies in that regard admissible and the remainder of the application inadmissible;\n\n3.  Holds that there has been a violation of Article 11 of the Convention;\n\n4.  Holds that there has been a violation of Article 13 of the Convention in conjunction with Article 11 of the Convention;\n\n5.  Holds that there is no need to examine the complaint under Article 14 of the Convention in conjunction with Article 11 of the Convention.\n\nDone in English, and notified in writing on 25 April 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_901","text":"PROCEDURE\n\n1.  The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table\n\n2.  The Russian Government (“the Government”) were given notice of the applications.\n\nTHE FACTS\n\n3.  The list of applicants and the relevant details of the applications are set out in the appended table.\n\n4.  The applicants complained of the torture or inhuman or degrading treatment. Some applicants also raised other complaints under the provisions of the Convention.\n\nTHE LAW\n\nJOINDER OF THE APPLICATIONS\n\n5.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.\n\nJURISDICTION\n\n6.  The Court observes that the facts giving rise to the alleged violations of the Convention occurred prior to 16 September 2022, the date on which the Russian Federation ceased to be a party to the Convention. The Court therefore decides that it has jurisdiction to examine the present applications (see Fedotova and Others v. Russia [GC], nos. 40792/10 and 2 others, §§ 6873, 17 January 2023).\n\nALLEGED VIOLATION OF ARTICLE 3 of the Convention\n\n7.  The applicants complained principally of the torture or inhuman or degrading treatment. They relied, expressly or in substance, on Article 3 of the Convention.\n\n8.  The Court has found in Bouyid v. Belgium ([GC], no. 23380/09, §§ 8190 and 114-23, ECHR 2015), that presumptions of fact was in favour of applicants claiming to be victims of a violation of Article 3 of the Convention, if they demonstrate that the alleged ill-treatment was inflicted when they were under the control of the police or a similar authority. Moreover, in the context of detainees, the Court has emphasised that persons in custody are in a vulnerable position and that the authorities are under a duty to protect their physical well-being and that any recourse to physical force which has not been made strictly necessary by the applicants’ own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 of the Convention (see Sheydayev v. Russia, no. 65859/01, § 59, 7 December 2006). The burden of proof rests on the Government to demonstrate that the use of force, which resulted in the applicants’ injuries, was not excessive (see, for example, Dzwonkowski v. Poland, no. 46702/99, § 51, 12 April 2007, and compare with Kursish and Others v. Russia [Committee], nos. 62003/08 and 5 others, § 84, 5 July 2022).\n\n9.  Furthermore, in the cases of Lyapin v. Russia, no. 46956/09, §§ 12840, 24 July 2014, and Samesov v. Russia, no. 57269/14, §§ 54-63, 20 November 2018, as well as in Kuchta and Mętel v. Poland, no. 76813/16, § 88, 2 September 2021, the Court has already found, in particular, that the authorities’ refusal to institute a fully-fledged criminal investigation into the credible allegations of ill-treatment, as well as the lack of assessment of the necessity and proportionality of the use of lawful force by the police were indicative of the State’s failure to comply with its procedural obligation under Article 3 of the Convention.\n\n10.  Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility (including taking into account the threemonth extension introduced by decision of the President of the Court in 2020 as a consequence of the lockdown imposed in France on account of the COVID19 pandemic (see Saakashvili v. Georgia (dec.), nos. 6232/20 and 22394/20, §§ 46-59, 1 March 2022)) and merits of these complaints. The Court therefore finds these complaints admissible and observes that there has been a violation of the substantive and procedural limbs of Article 3 of the Convention in respect of all the applicants.\n\nOTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW\n\n11.  In application no. 54903/18 the applicant submitted other complaints which also raised issues under the Convention, given the relevant wellestablished case-law of the Court (see appended table). These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its findings in Korneyeva v. Russia, no. 72051/17, §§ 34 and 65, 8 October 2019; Tsvetkova and Others v. Russia, nos. 54381/08 and 5 others, §§ 121-22, 10 April 2018; Karelin v. Russia, no. 926/08, § 84, 20 September 2016; and Kasparov v. Russia, no. 53659/07, § 69, 11 October 2016.\n\nREMANINING COMPLAINTS\n\n12.  Some applicants also submitted complaints under Article 13 of the Convention. Having examined all the material before it, the Court concludes that there is no need to examine these complaints separately in view of its findings under Article 3 of the Convention (see Aleksandr Andreyev v. Russia, no. 2281/06, § 71, 23 February 2016, and Leonid Petrov v. Russia, no. 52783/08, § 86, 11 October 2016).\n\nAPPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n13.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\n14.  Regard being had to the documents in its possession and to its case‑law (see, for similar situations, Zagaynov and Others v. Russia [Committee], nos. 5666/07 and 4 others, 15 June 2021, and Dauberkov and Others v. Russia [Committee], nos. 60844/11 and 2 others, § 64, 22 March 2022), the Court considers it reasonable to award the sums indicated in the appended table.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\nDecides to join the applications;\n\nHolds that it has jurisdiction to deal with the applicants’ complaints as they relate to the facts that took place before 16 September 2022;\n\nDeclares the applicants’ complaints about torture or inhuman and degrading treatment at the hands of State officials, and other complaints raised under the well-established case-law of the Court (see appended table) admissible, and finds that it is not necessary to examine separately the applicants’ complaints under Article 13 of the Convention;\n\nHolds that there has been a breach of both the substantive and procedural limbs of Article 3 of the Convention concerning the torture or inhuman or degrading treatment in respect of the applicants;\n\nHolds that there has been a violation of the Convention as regards the other complaints raised the under well-established case-law of the Court (see appended table);\n\nHolds\n\nthat the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;\n\nthat from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.\n\nDone in English, and notified in writing on 28 September 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_369","text":"PROCEDURE\n\n1.  The case originated in an application (no. 27365/07) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Ms Sovman Estamirova (“the applicant”), on 8 June 2007.\n\n2.  The applicant was represented by lawyers from the Stichting Russian Justice Initiative (“SRJI”), an NGO based in the Netherlands with a representative office in . The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the  at the European Court of Human Rights.\n\n3.  Relying on Articles 2, 3 and 13 of the Convention, the applicant alleged, in particular, that her husband had been killed by State servicemen, and that the authorities had failed to carry out an effective investigation into the matter.\n\n4.  On 27 August 2009 the Court decided to apply Rule 41 of the Rules of Court, and to grant priority treatment to the application and to give notice of the application to the Government. Under the provisions of the former Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.\n\n5.  The Government objected to the joint examination of the admissibility and merits of the application. Having considered the Government’s objection, the Court dismissed it.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n6.  The applicant was born in 1959; at the material time she lived in Argun. She currently lives in . The applicant was the wife of Asradiy (also spelled as Asrudi, Asradiyn and Visrudi) Estamirov, who was born in 1957.\n\nA.  Killing of Asradiy Estamirov\n\n1.  The applicant’s account\n\n7.  At about 5 p.m. on 5 January 2001 a convoy of the 70th motorised infantry battalion was moving on the Gudermes-Argun highway through the town of Argun in .\n\n8.  At about 5.30 p.m., when the military was moving in the vicinity of the corner of  and  in Argun, the convoy exchanged intense fire with unidentified persons, who had attempted to attack it. Asradiy Estamirov, who happened to be at the corner of  and  was wounded in the head and subsequently died.\n\n9.  According to Mr R.V., who was at home on 5 January 2001, at about 5 p.m. on that date he heard intensive shooting. Shortly after the firing had come to an end, he was asked to take the wounded Asradiy Estamirov to hospital in his car. He took the applicant’s husband to the Argun town hospital.\n\n10.  On 6 February 2001 the Argun town registration office issued an official certificate confirming the death of Asradiy Estamirov. The document stated that he had died on 6 January 2001.\n\n11.  On 16 May 2001 the Argun town hospital issued a medical statement concerning the death of Asradiy Estamirov. According to the document, the cause of his death had been a “...blunt penetrating wound of the left frontal region of the head... received during the shooting by the federal military forces...”\n\n12.  On an unspecified date a doctor of the Argun town hospital issued an information statement concerning the cause of Asradiy Estamirov’s death. According to the document, “...the corpse arrived at the trauma ward of the Argun town hospital at 5.20 p.m. on 5 January 2001; [Asradiy Estamirov] was killed during the fire [opened by] the federal forces... diagnosis: blunt penetrating wound of the left frontal region of the head, fatal injury...”\n\n13.  In support of her statement the applicant enclosed the following documents: a statement by Mr R.V. dated 18 November 2004; a statement by Mr T.E. dated 18 November 2004; a copy of two medical statements, undated and dated 16 May 2001, respectively; and a copy of Asradiy Estamirov’s death certificate dated 6 February 2001.\n\n2.  Information submitted by the Government\n\n14.  The Government did not challenge the matter as presented by the applicant. They submitted that the applicant’s husband had been killed on 5 January 2001 during an exchange of fire between the military convoy and unidentified individuals.\n\nB.  The investigation into the killing\n\n15.  On 5 January 2001 three residents of Argun, Ms Kh.E., Ms Ya.D. and Ms S.E., provided their statements to the applicant to the effect that on 5 January 2001 they had seen a convoy of Russian federal forces driving on the Gudermes-Argun motorway; the convoy had been firing at unknown targets. According to the document, none of the three residents had witnessed the shooting of the applicant’s husband or had been able to notice the registration numbers or any distinctive features of the military vehicles.\n\n16.  On 5 or 6 January 2001 an officer from the Argun Department of the Interior (the Argun VOVD) informed his superiors that at about 6 p.m. on 5 January 2001 Asradiy Estamirov had been taken to the hospital by Mr R.V. who had found him wounded in  earlier the same day.\n\n17.  On 6 January 2001 the Argun town hospital no. 1 informed the Argun VOVD that on 5 January 2001 they had received the body of Asradiy Estamirov with a gunshot wound on his forehead.\n\n18.  On 6 January 2001 the Argun Inter-District Prosecutor’s Office (the Prosecutor’s Office) instituted an investigation into the killing of Asradiy Estamirov under Article 109 § 1 of the Criminal Code (negligent infliction of death). The case file was given the number 45003.\n\n19.  On 6 January 2001 the investigators examined the crime scene and collected four bullet cartridges left after the shooting.\n\n20.  On the same date, 6 January 2001, the investigators questioned Mr M.B. who stated that he had been the duty doctor at the Argun town hospital no. 1 when at about 5 p.m. on 5 January 2001 Asradiy Estamirov had been taken there. Upon arrival at the hospital the applicant’s husband had been dead.\n\n21.  On 6 January 2001 the investigators also questioned Mr T.-A.E., who stated that on 5 January 2001 he had been at home in  when he had heard automatic gunfire which had lasted a few minutes. The witness had stayed at home and had gone out when the gunfire had stopped. On the ground he had found Asradiy Estamirov, who had been alive but with a gunshot wound on his forehead. The witness decided to take Asradiy Estamirov to the hospital; he had asked his neighbour Mr R.V. (also known as Mr A.V.) to assist him, and the two men had taken Asradiy to the hospital where it had been established that the applicant’s husband had died.\n\n22.  On 6 January 2001 (in the documents submitted the date was also cited as 6 December 2001) the investigators questioned Mr R.V. who stated, amongst other things, that on 5 January 2001 he had been told that a man had been wounded as a result of gunfire in his neighbourhood. The witness had taken this man, Asradiy Estamirov, to the hospital, but the latter had died.\n\n23.  On 7 January 2001 the Prosecutor’s Office ordered a ballistic expert examination of the cartridge cases found at the crime scene.\n\n24.  On 8 January 2001 the Prosecutor’s Office ordered an expert forensic examination of a blood-like substance found at the crime scene.\n\n25.  On 9 January 2001 the expert examinations department of the Argun VOVD carried out a ballistic expert examination of four cartridge cases collected from the crime scene. According to the report:\n\n26.  On 8 January 2001 (in the submitted documents the date is mistakenly cited as 9 January 2000) the Prosecutor’s Office ordered an expert forensic examination of Asradiy Estamirov’s body.\n\n27.  On 9 January 2001 the Chechnya Forensics Examinations Bureau issued its report, according to which the death of Asradiy Estamirov had been caused by a blunt perforating gunshot wound to the forehead.\n\n28.  On 11 January 2001 an investigator from the Prosecutor’s Office issued an information statement concerning the criminal case, according to which on 5 January 2001 five military units had gone through the town of , and the last one had been military convoy no. 7001, which had consisted of thirty-six servicemen under the command of Lieutenant Colonel Shv.\n\n29.  On 12 January 2001 the investigators forwarded a request to the Military Prosecutor’s Office of military unit no. 20102, asking them to take the following steps: to identify which convoy had passed through Argun on 5 January 2001 at about 5 p.m.; to question the head of the convoy and the senior drivers about the circumstances of Asradiy Estamirov’s killing and to collect at the military unit all the documents pertaining to the shooting.\n\n30.  On 27 January 2001 the investigators questioned the mother of Asradiy Estamirov, Ms S.E., who stated, amongst other things, that she had not witnessed the events, but had learnt from neighbours that her son had been accidently killed during an exchange of gunfire between a military convoy and unidentified persons.\n\n31.  On the same date the investigators questioned Asradiy Estamirov’s sister, Ms Kh.G., whose statement about the events was similar to the one given by her mother, Ms S.E.\n\n32.  On 22 February 2001 the investigators requested that the Argun VOVD take operational-search measures to establish the circumstances of Asradiy Estamirov’s death.\n\n33.  On 6 March 2001 the applicant was granted victim status in the criminal case.\n\n34.  On the same date, 6 March 2001, the Prosecutor’s Office suspended the investigation in the criminal case for failure to identify the perpetrators.\n\n35.  On 18 May 2001 the applicant wrote to the Argun prosecutor and requested the authorities to identify the perpetrators of her husband’s killing. In his reply of 6 June 2001 the Argun prosecutor informed the applicant that all measures envisaged under the domestic law were being taken to identify the culprits.\n\n36.  On 17 July 2001 the applicant requested that the  prosecutor provided her with information on the progress of the investigation and the reasons for its suspension. No reply was given to this request.\n\n37.  On 14 December 2001 the Argun Department of the Federal Security Service (the Argun FSB) informed the investigators that they had no information concerning the stationing of the 70th military unit of military convoy no. 7001.\n\n38.  On 14 October 2004 the deputy Argun prosecutor overruled the decision of 6 March 2001 to suspend the investigation as unlawful and resumed the proceedings. The prosecutor pointed out that the investigators had failed to take a number of necessary steps. The decision stated, inter alia, the following:\n\n39.  On 15 October 2004 the deputy Argun prosecutor informed the applicant’s representatives that the decision to suspend the investigation had been overruled and that on 6 March 2001 the applicant had been granted victim status in the criminal case, but she had not yet been questioned by the investigators.\n\n40.  On 18 October 2004 the investigators requested that the Military Prosecutor’s Office of military unit no. 20102 inform them about the stationing of the 70th motorised infantry battalion of military convoy no. 7001 and provide them with the list of servicemen who had served in this military convoy on 5 January 2001.\n\n41.  On or after 12 November 2004 the supervisory prosecutor criticised the investigators for their failure to carry out previously given orders stating, inter alia, the following:\n\n42.  On 18 November 2004 the investigators again questioned Mr T.-A. E. who reiterated his statement of 6 January 2001 (see paragraph 21 above).\n\n43.  On 19 November 2004 the investigators questioned Ms T.A., Asradiy Estamirov’s sister, who stated that on 5 January 2001 she had been at home in Gudermesskaya Street when she had heard an exchange of gunfire lasting about twenty minutes. On the following day she had learnt from the neighbours that this shooting had taken place between a Russian military convoy and members of illegal armed groups.\n\n44.  On the same date, 19 November 2004, the investigators again questioned Mr R.V., who reiterated his statement of 6 January 2001 (see paragraph 22 above).\n\n45.  On 22 November 2004 the investigators showed the applicant a copy of the decision granting her victim status in the criminal case and questioned her.  She stated that she had not witnessed the events on 5 January 2001 as she had not been at home. From her relatives she had learnt that her husband Asradiy Estamirov had been shot at about 5.30 p.m. on 5 January 2001 during an exchange of gunfire between a Russian military convoy and unidentified persons. The applicant further stated that her husband’s death had been an accident.\n\n46.  On 29 November 2004 the investigators questioned the applicant’s son, Mr I.E., whose statement concerning the events was similar to the one given by the applicant on 22 November 2004.\n\n47.  On 7 December 2004 the investigators requested that the Stavropol Expert Examinations Bureau provide them with the results of the forensic expert examination ordered in 2001. On 28 December 2004 the Bureau replied that they had neither received the investigators’ order nor the evidence for examination.\n\n48.  On 8 December 2004 the investigators requested that the Argun FSB, the Argun town Department of the Interior (the Argun GOVD) and the Argun Military Department of the United Group Alignment inform them about the current location of the 70th motorised infantry battalion and provide them with the names of the servicemen who had served in military convoy no. 7001 on 5 January 2001.\n\n49.  On 10 December 2004 the Military Prosecutor’s Office of military unit no. 20102 informed the investigators that the 70th motorised infantry battalion was stationed in Shali, Chechnya and that it was impossible to identify the servicemen who had served in military convoy no. 7001 on 5 January 2001 as the Military Prosecutor’s Office was not supposed to take operational-search measures.\n\n50.  On 13 December 2004 the Argun GOVD informed the investigators that it was impossible to establish where the 70th motorised infantry battalion was currently stationed.\n\n51.  On 14 December 2004 the Argun FSB replied to the investigators, stating that owing to departmental subordination, they had been unable to establish the current stationing of the 70th motorised infantry battalion and suggested that such information could be obtained from the military.\n\n52.  On 14 December 2004 (in the documents submitted the date is also cited as 15 December 2004) the investigators suspended the investigation in the criminal case for failure to identify the perpetrators and informed the applicant accordingly.\n\n53.  On 15 December 2004 the investigators requested the Argun GOVD to take operational measures to identify the perpetrators of Asradiy Estamirov’s killing.\n\n54.  On 16 December 2004 an operational-search officer from the Argun GOVD informed his superiors that it was impossible to find witnesses to Asradiy Estamirov’s killing.\n\n55.  On 24 January 2005 the Military Prosecutor’s Office of military unit no. 20116 requested that military unit no. 23132 provide information about their servicemen who had participated in military convoy no. 7001 on 5 January 2001.\n\n56.  On 18 March 2005 the applicant’s representatives requested that the Argun Prosecutor’s Office inform them of the progress in the investigation and whether the applicant and other witnesses had been questioned by the investigators. They also requested that the applicant be provided with copies of documents from the case file. On 22 April 2005 the Argun Prosecutor’s Office replied to the request, stating that the applicant had been granted victim status in the criminal case and questioned.\n\n57.  On 14 January 2006 the applicant complained to the Argun Prosecutor’s Office that the investigation into her husband’s killing had been ineffective, and requested to be provided with detailed information concerning the progress in the proceedings. In their reply of 8 February 2006 the Argun Prosecutor’s Office stated that the investigation had taken all necessary steps in the criminal case and that the applicant’s allegations of its ineffectiveness were unsubstantiated. On the same date the applicant was provided with copies of a few procedural documents from the case file.\n\n58.  On 8 February 2006 the investigators replied to the applicant, stating that they had taken all possible measures to solve the crime, that she had been granted victim status in the criminal case and had been informed about it on 22 November 2004, and that she was entitled to the procedural rights of a victim according to the law.\n\n59.  On 13 February 2006 the applicant requested the investigators to grant her access to the investigation file. Her request was granted on the same date and she was shown the contents of the investigation file in the Prosecutor’s Office.\n\n60.  On 15 February 2006 the applicant complained to the Argun Prosecutor that the investigation into her husband’s killing had been ineffective, and requested that the authorities provide her with the results of the ballistic and forensic expert examinations of evidence and the results of the information requests concerning the servicemen of military convoy no. 7001. She also asked to be provided with access to the investigation file. On 2 March 2006 the Argun Prosecutor’s Office replied to the applicant, stating that she had already been provided with copies of procedural documents to which she was entitled under the domestic law, and that access to the other documents in the case file would be possible only upon completion of the investigation.\n\n61.  On 2 March 2006 the investigators replied to the applicant that by law she was entitled to have access to the entire contents of the investigation file only upon completion of the investigation.\n\n62.  On 29 March 2006 the investigators allowed the applicant’s lawyer access to the investigation file.\n\n63.  On 21 October 2009 the investigators resumed the investigation in the criminal case, stating that it was incomplete and that a number of steps, including the following, should be taken:\n\n64.  On 12 November 2009 the Argun town Prosecutor’s Office informed the investigators that their office had no information concerning the four bullet cartridges collected from the crime scene.\n\n65.  On 21 November 2009 the investigation in the criminal case was again suspended for failure to identify the perpetrators. The applicant was informed accordingly on the same date.\n\n66.  On 25 November 2009 the Southern Federal Department of the Russian Ministry of the Interior informed the investigators that they had no information concerning the possible involvement of Asradiy Estamirov in illegal armed groups.\n\n67.  According to the Government, the investigation has so far failed to identify the perpetrators of Asradiy Estamirov’s killing, but it is still in progress. The investigative authorities are taking all possible measures to have the crime resolved.\n\n68.  Upon the Court’s request the Government submitted a copy of the investigation file in criminal case no. 45003, which is 119 pages long.\n\nC.  Civil proceedings initiated by the applicant\n\n69.  On an unspecified date the applicant brought proceedings against the Russian Government, demanding compensation for the damage caused by her husband’s death.\n\n70.  On 14 May 2002 the Presnenskiy District Court of Moscow rejected her claim. The decision stated that as the criminal investigation into the killing had not yet been completed and the perpetrators had not been prosecuted, the applicant’s allegations that Asradiy Estamirov had been killed by Russian servicemen were unsubstantiated. On 26 August 2002 the Moscow City Court upheld that decision on appeal.\n\n71.  According to the applicant, in May 2005 she lodged three claims for damages with the Moscow City Court and the Presnenskiy District Court of Moscow, but her requests went unanswered.\n\nII.  RELEVANT DOMESTIC LAW\n\n72.  For a summary of the relevant domestic law see Khatsiyeva and Others v. Russia (no. 5108/02, §§ 105-107, 17 January 2008).\n\nTHE LAW\n\nI.  ISSUE CONCERNING THE EXHAUSTION OF DOMESTIC REMEDIES\n\nA.  The parties’ submissions\n\n73.  The Government submitted that the investigation into the killing of Asradiy Estamirov had not yet been completed. They further argued, in relation to the complaint under Article 13 of the Convention, that it had been open to the applicant to lodge court complaints about any acts or omissions on the part of the investigating authorities. Moreover, she could have claimed damages.\n\n74.  The applicant contested the Government’s submission. She stated that the only available remedy, the criminal investigation, had proved to be ineffective.\n\nB.  The Court’s assessment\n\n75.  The Court will examine the arguments of the parties in the light of the provisions of the Convention and its relevant practice (for a relevant summary, see Estamirov and Others v. Russia, no. 60272/00, §§ 73 and 74, 12 October 2006).\n\n76.  The Court notes that the Russian legal system provides, in principle, two avenues of recourse for the victims of illegal and criminal acts attributable to the State or its agents, namely civil and criminal remedies.\n\n77.  As regards a civil action to obtain redress for damage sustained through the alleged illegal acts or unlawful conduct of State agents, the Court has already found in a number of similar cases that this procedure alone cannot be regarded as an effective remedy in the context of claims brought under Article 2 of the Convention (see Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, §§ 119-21, 24 February 2005, and Estamirov and Others, cited above, § 77). In the light of the above and the conclusion of the Presnenskiy District Court of Moscow in respect of the applicant’s claim for damages, the Court confirms that the applicant was not obliged to further pursue civil remedies. The Government’s objection in this regard is thus dismissed.\n\n78.  As regards criminal-law remedies, the Court observes that the applicant complained to the law-enforcement authorities after the killing of Asradiy Estamirov, and that an investigation has been pending since 6 January 2001. The applicant and the Government dispute the effectiveness of the criminal investigation.\n\n79.  The Court considers that the Government’s objection raises issues concerning the effectiveness of the investigation which are closely linked to the merits of the applicant’s complaints. Thus, it decides to join this objection to the merits of the case and considers that the issue falls to be examined below.\n\nII.  ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION\n\n80.  The applicant complained under Article 2 of the Convention that her husband had been deprived of his life by Russian servicemen and that the domestic authorities had failed to carry out an effective investigation into the matter. Article 2 reads as follows:\n\n“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.\n\n2.  Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:\n\n(a)  in defence of any person from unlawful violence;\n\n(b)  in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;\n\n(c)  in action lawfully taken for the purpose of quelling a riot or insurrection.”\n\nA.  The parties’ submissions\n\n81.  The applicant maintained that it was beyond reasonable doubt that Asradiy Estamirov had been killed by State agents, submitting that the State’s responsibility for her husband’s death had been confirmed by medical statements issued by the local hospital (see paragraphs 11 and 12 above). She further contended that the authorities had failed to carry out an effective investigation into the incident. For instance, the authorities had failed to take basic investigative steps such as the identification of the persons in the military convoy who had opened fire on 5 January 2001; the questioning of the head of the military convoy and the senior drivers despite the supervising prosecutor’s direct orders to this end; and the questioning of the servicemen from the 70th motorised infantry battalion who had participated in the military convoy, despite information that the battalion had been stationed in Shali in 2004. The applicant stressed that the investigation, which had been protracted by unlawful decisions to suspend the proceedings, had been pending for more than nine years without producing any tangible results.\n\n82.  The Government submitted that unidentified men had killed Asradiy Estamirov. They stressed that it had been impossible to identify the perpetrators as there had been no direct witnesses to the exchange of gunfire between the military servicemen and the unidentified persons. They argued that the medical statements submitted by the applicant could not serve as proof of the State’s responsibility for his death in the absence of the results of the pending criminal investigation, which was being conducted in full compliance with the requirements of the Convention and domestic law.\n\nB.  The Court’s assessment\n\n1.  Admissibility\n\n83.  The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. Furthermore, the Court has already found that the Government’s objection concerning the alleged non-exhaustion of criminal domestic remedies should be joined to the merits of the complaint (see paragraph 79 above). The complaint under Article 2 of the Convention must therefore be declared admissible.\n\n2.  Merits\n\n(a)  The alleged violation of the right to life of Asradiy Estamirov\n\n84.  It was not disputed by the parties that Asradiy Estamirov had died as a result of a gunshot wound to the head. The question to decide in the present case is whether the State authorities were responsible for the death of the applicant’s husband, as she alleged.\n\n85.  The Court is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see, for example, McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000). Nevertheless, since Article 2, which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, from which no derogation is permitted, the Court must subject deprivation of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances (see, among other authorities, McCann and Others v. the United Kingdom, 27 September 1995, §§ 146-47, Series A no. 324, and Avşar v. Turkey, no. 25657/94, § 391, ECHR 2001-VII).\n\n86.  The Court points out that a number of principles have been developed in its case-law as regards cases where it is faced with the task of establishing facts. As to the facts that are in dispute, the Court reiterates its jurisprudence requiring the standard of proof “beyond reasonable doubt” in its assessment of evidence (see Avşar, cited above, § 282). Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. In this context, the conduct of the parties when evidence is being obtained has to be taken into account. In particular when, as in the instant case, the respondent Government have exclusive access to information able to corroborate or refute the applicant’s allegations, any lack of cooperation by the Government without a satisfactory explanation may give rise to the drawing of inferences as to the well-foundedness of the applicant’s allegations (see Taniş and Others v. Turkey, no. 65899/01, § 160, ECHR 2005-VIII).\n\n87.  Turning to the circumstances of the present case, the Court notes that the Government cooperated with the Court and furnished the Court with a copy of the official investigation file. From the documents submitted it follows that the applicant’s husband had been shot as a result of the fire exchange between unidentified persons and the military convoy and that there had been neither direct witnesses to the incident nor material evidence proving whether the bullet which caused Asradiy Estamirov’s death was fired from a weapon belonging to the military or to unidentified persons. In these circumstances the Court does not find it possible to come to the conclusion that the applicant’s husband was shot by Russian federal forces.\n\n88.  Thus, the Court considers that the present case does not disclose such evidence in support of the applicant’s allegations that the military forces were responsible for her husband’s death and that the burden of proof should be shifted to the Government. For that reason, and as it has not been established to the required standard of proof “beyond reasonable doubt” that State authorities were responsible for the death of Asradiy Estamirov, the Court finds no violation of the substantive limb of Article 2 of the Convention.\n\n(b)  The alleged inadequacy of the investigation into the incident\n\n89.  The Court has on many occasions stated that the obligation to protect the right to life under Article 2 of the Convention also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force. It has developed a number of guiding principles to be followed for an investigation to comply with the Convention’s requirements (for a summary of these principles see Bazorkina v. Russia, no. 69481/01, §§ 117-19, 27 July 2006).\n\n90.  In the present case, the death of Asradiy Estamirov was investigated. The Court must assess whether that investigation met the requirements of Article 2 of the Convention.\n\n91.  From the outset the Court notes that the investigation into the applicant’s husband’s death has been suspended on three occasions and that each time the decision to suspend was overruled by the supervising prosecutors as unsubstantiated and premature. The prosecutors have pointed out flaws in the criminal proceedings and ordered remedial measures which were not complied with by the investigative authorities. From these orders it transpires that the investigators failed to take such basic steps as the questioning of the head of the military convoy and its senior drivers about the circumstances of the events as well as the questioning of the servicemen from the 70th motorised infantry battalion who had participated in the military convoy despite information that the battalion was stationed in Shali in 2004. It is clear that such measures should have been taken either as soon as the investigation commenced or shortly after receipt of the relevant information. From the documents submitted it is clear that a number of important steps, such as the ballistic expert examination and the identification of the firearms used by the perpetrators, had not been taken as late as October 2009, and that the investigators themselves were aware of the investigation’s shortcomings (see paragraph 63 above).\n\n92.  The Court also notes that even though the applicant was granted victim status in the investigation concerning her husband’s killing, she was only informed of the suspension and resumption of the proceedings, and not of any other significant developments. Accordingly, the investigators failed to ensure that the investigation received the required level of public scrutiny, or to safeguard the interests of the next-of-kin in the proceedings.\n\n93.  Finally, the Court notes that as the investigation was suspended and resumed several times, there were lengthy periods of inactivity during which no proceedings were pending.\n\n94.  The Government argued that the applicant could have sought judicial review of the decisions of the investigating authorities in the context of the exhaustion of domestic remedies. The Court observes that the applicant, having limited access to the case file and not being properly informed of the progress of the investigation, could not have effectively challenged acts or omissions of the investigating authorities before a court. Furthermore, the Court emphasises in this regard that while the suspension or resumption of proceedings is not in itself a sign that the proceedings are ineffective, in the present case the decisions to suspend were taken without the necessary investigative steps being taken, which led to unnecessary protraction. Moreover, owing to the time that had elapsed since the events complained of, certain investigative measures that ought to have been carried out much earlier could no longer usefully be conducted. Therefore, it is highly doubtful that the remedy relied on would have had any prospects of success. Accordingly, the Court finds that the remedy cited by the Government was ineffective in the circumstances and dismisses their objection as regards the applicant’s failure to exhaust domestic remedies within the context of the criminal investigation.\n\n95.  In the light of the foregoing, the Court holds that the authorities failed to carry out an effective criminal investigation into the circumstances surrounding the killing of Asradiy Estamirov, in breach of Article 2 in its procedural aspect.\n\nIII.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION\n\n96.  The applicant relied on Article 3 of the Convention, submitting that as a result of her husband’s death and the State’s reaction thereto, she had endured psychological suffering in breach of Article 3 of the Convention. Article 3 reads as follows:\n\n“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”\n\n97.  Turning to the circumstances of the present case, the Court notes that the applicant is the wife of Asradiy Estamirov. Accordingly, it has no doubt that she has indeed suffered from serious emotional distress following the death of her husband. However, in the absence of a finding of State responsibility for the killing of Asradiy Estamirov, the Court is not persuaded that the investigating authorities’ conduct, albeit negligent to the extent that it has breached Article 2 in its procedural aspect, could have in itself caused the applicant mental distress in excess of the minimum level of severity which is necessary in order to consider treatment as falling within the scope of Article 3 (see, for a similar situation, Khumaydov and Khumaydov v. Russia, no. 13862/05, §§ 130-31, 28 May 2009, and Zakriyeva and Others v. , no. 20583/04, §§ 97-98, 8 January 2009).\n\n98.  It follows that this part of the application should be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.\n\nIV.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION\n\n99.  The applicant complained that she had been deprived of effective remedies in respect of the alleged violation of Article 2 contrary to Article 13 of the Convention, which provides:\n\n“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”\n\nA.  The parties’ submissions\n\n100.  The Government contended that the applicant had had effective remedies at her disposal as required by Article 13 of the Convention and that the authorities had not prevented her from using those remedies. The applicant had had an opportunity to challenge the acts or omissions of the investigating authorities in court. In sum, the Government submitted that there had been no violation of Article 13.\n\n101.  The applicant maintained the complaint.\n\nB.  The Court’s assessment\n\n1.  Admissibility\n\n102.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\n2.  Merits\n\n103.  The Court reiterates that in circumstances where, as in the present case, a criminal investigation into a murder has been ineffective and the effectiveness of any other remedy that might have existed has consequently been undermined, the State has failed in its obligations under Article 13 of the Convention (see Zubayrayev v. , no. 67797/01, § 106, 10 January 2008).\n\n104.  Consequently, there has been a violation of Article 13 in conjunction with Article 2 of the Convention.\n\nV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n105.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n106.  The applicant did not submit any claims for pecuniary damage. As regards non-pecuniary damage, she claimed 10,000,000 euros (EUR) for the suffering she had endured as a result of the loss of her husband, the indifference shown by the authorities towards her and their failure to effectively investigate his death.\n\n107.  The Government found the amounts claimed excessive.\n\n108.  The Court has found a violation of the procedural aspect of Article 2 and a violation of Article 13 of the Convention on account of the authorities’ failure to carry out an effective investigation into Asradiy Estamirov’s death. The Court thus accepts that she has suffered non-pecuniary damage which cannot be compensated for solely by the finding of the violation. It awards to the applicant EUR 30,000, plus any tax that may be chargeable thereon.\n\nB.  Costs and expenses\n\n109.  The applicant was represented by the SRJI. They submitted an itemised schedule of costs and expenses that included research and interviews, at a rate of EUR 50 per hour for the work in the area of exhausting domestic remedies, and of EUR 150 per hour for the drafting of submissions to the Court. The aggregate claim in respect of costs and expenses related to the applicant’s legal representation amounted to EUR 5,872.\n\n110.  The Government disputed the reasonableness of the amounts claimed under this heading. In particular, they stressed that the case was rather simple and that preparation and research had not been necessary to the extent claimed by the applicant’s representatives.\n\n111.  The Court has to establish first whether the costs and expenses indicated by the applicant’s representatives were actually incurred and, second, whether they were necessary (see McCann and Others, cited above, § 220).\n\n112.  Having regard to the details of the information and legal representation contracts submitted by the applicant, the Court is satisfied that these rates are reasonable and reflect the expenses actually incurred by the applicant’s representatives.\n\n113.  As to whether the costs and expenses were necessary, the Court notes that this case required a certain amount of research and preparation. It notes at the same time, that owing to the application of Article 29 § 3 in the present case, the applicant’s representatives submitted their observations on admissibility and merits in one set of documents. The Court thus doubts that research was necessary to the extent claimed by the representatives.\n\n114.  Having regard to the details of the claims submitted by the applicant, the Court awards them the amount of EUR 2,500, together with any value-added tax that may be chargeable to the applicant, the net award to be paid into the representatives’ bank account in the Netherlands, as identified by the applicant.\n\nC.  The applicant’s request for an investigation\n\n115.  The applicant also requested, referring to Article 41 of the Convention, that an independent investigation in compliance with the requirements of the Convention be conducted into the killing of Asradiy Estamirov.\n\n116.  The Court notes that in Kukayev v. Russia, (no. 29361/02, §§ 13134, 15 November 2007) and Medova v. Russia, (no. 25385/04, §§ 142-43, ECHR 2009-...), the Court decided that it was most appropriate to leave it to the respondent Government to choose the means to be used in the domestic legal order in order to discharge their legal obligation under Article 46 of the Convention. The Court does not see any exceptional circumstances which would lead it to reach a different conclusion in the present case.\n\nD.  Default interest\n\n117.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Decides to join to the merits the Government’s objection as to nonexhaustion of criminal domestic remedies and rejects it;\n\n2.  Declares the complaints under Articles 2 and 13 of the Convention admissible and the remainder of the application inadmissible;\n\n3.  Holds that there has been no violation of Article 2 of the Convention in its substantive limb in respect of Asradiy Estamirov;\n\n4.  Holds that there has been a violation of Article 2 of the Convention in respect of the failure to conduct an effective investigation into the circumstances in which Asradiy Estamirov died;\n\n5.  Holds that there has been a violation of Article 13 of the Convention in conjunction with Article 2 of the Convention;\n\n6.  Holds\n\n(a)  that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Russian roubles at the date of settlement, save in the case of the payment in respect of costs and expenses:\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n7.  Dismisses the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 17 April 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_466","text":"PROCEDURE\n\n1.  The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table.\n\n2.  The Russian Government (“the Government”) were given notice of the applications.\n\nTHE FACTS\n\n3.  The details of the applications are set out in the appended table.\n\n4.  The applicant complained of the excessive length of his pre-trial detention. He also raised other complaints under the provisions of the Convention.\n\nTHE LAW\n\nJOINDER OF THE APPLICATIONS\n\n5.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.\n\nALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION\n\n6.  The applicant complained principally that his pre-trial detention had been unreasonably long. He relied on Article 5 § 3 of the Convention, which reads as follows:\n\nArticle 5 § 3\n\n“3.  Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”\n\n7.  The Court observes that the general principles regarding the right to trial within a reasonable time or to release pending trial, as guaranteed by Article 5 § 3 of the Convention, have been stated in a number of its previous judgments (see, among many other authorities, Kudła v. Poland [GC], no. 30210/96, § 110, ECHR 2000XI, and McKay v. the United Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006X, with further references).\n\n8.  In the leading case of Dirdizov v. Russia, no. 41461/10, 27 November 2012, the Court already found a violation in respect of issues similar to those in the present case.\n\n9.  Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the applicant’s pre-trial detention was excessive.\n\n10.  These complaints are therefore admissible and disclose a breach of Article 5 § 3 of the Convention.\n\nOTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW\n\n11.  The applicant submitted other complaints which also raised issues under the Convention, given the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its findings in Idalov v. Russia [GC], no. 5826/03, §§ 154‑58, 22 May 2012, as regards lengthy review of detention matters, and Alekhin v. Russia, no. 10638/08, §§ 146-55, 30 July 2009, as regards absence of an enforceable right to compensation for a violation of a right to trial within a reasonable time and a right to have the lawfulness of detention examined speedily.\n\nREMAINING COMPLAINTS\n\n12.  The applicant also raised other complaints under various Articles of the Convention.\n\n13.  The Court has examined the applications listed in the appended table and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.\n\nIt follows that this part of the applications must be rejected in accordance with Article 35 § 4 of the Convention.\n\nAPPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n14.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\n15.  Regard being had to the documents in its possession and to its caselaw (see, in particular, Pastukhov and Yelagin v. Russia, no. 55299/07, 19 December 2013), the Court considers it reasonable to award the sum indicated in the appended table.\n\n16.  The Court further considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\nDecides to join the applications;\n\nDeclares the complaints concerning the excessive length of the pre-trial detention and the other complaints under well-established case-law of the Court, as set out in the appended table, admissible and the remainder of the applications inadmissible;\n\nHolds that these complaints disclose a breach of Article 5 § 3 of the Convention concerning the excessive length of the pre-trial detention;\n\nHolds that there has been a violation of the Convention as regards the other complaints raised under well-established case-law of the Court (see appended table);\n\nHolds\n\nthat the respondent State is to pay the applicant, within three months, the amount indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;\n\nthat from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.\n\nDone in English, and notified in writing on 13 October 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_171","text":"PROCEDURE\n\n1.  The case originated in an application (no. 25715/02) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Piotr Jaworski (“the applicant”), on 26 June 2002.\n\n2.  The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, of the Ministry of Foreign Affairs.\n\n3.  On 4 May 2004 the Court decided to communicate the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n4.  The applicant was born in 1977 and lives in .\n\n5.  On 19 December 1999 the applicant was arrested by the police on suspicion of kidnapping a certain J.M. On 21 December 1999 the Zielona Góra District Court (Sąd Rejonowy) ordered that the applicant be remanded in custody until 19 March 2000 in view of the reasonable suspicion that he had committed the offence in question and the fear that, given the severity of the anticipated penalty, he might go into hiding or otherwise obstruct the proceedings against him.\n\n6.  On 1 February 2000 the Zielona Góra Regional Prosecutor (Prokurator Okręgowy) refused the applicant’s counsel’s request to release him under police supervision. The Prosecutor reasoned that there was the risk that the applicant would induce other suspects to give false testimony or attempt to disclose the anonymous witnesses. The Poznań Appellate Prosecutor (Prokurator Apelacyjny) upheld that decision on 16 February 2000.\n\n7.  On 9 March 2000 the Krosno Odrzańskie District Court prolonged the applicant’s detention until 19 June 2000. The court repeated the reasons previously given for the applicant’s detention.\n\n8.  Later, the applicant was charged relating to the homicide of J.M.\n\n9.  On 13 June 2000 the Poznań Court of Appeal (Sąd Apelacyjny), on an application from the Zielona Góra Regional Prosecutor (Prokurator Okręgowy) prolonged the applicant’s detention pending the investigation until 19 September 2000. It fully upheld the reasons originally given for his detention.\n\n10.  The applicant repeatedly – but unsuccessfully – asked for release, arguing that the charges against him had no factual basis.\n\n11.  On 6 September 2000 the  (Sąd Okręgowy) prolonged the applicant’s detention until 19 December 2000, finding that the grounds originally given for keeping him in custody were still valid.\n\n12.  On 23 February 2001 the Prosecutor filed the bill of indictment with the homicide of J.M.\n\n13.  The  subsequently extended the applicant’s detention until 8 June 2001. The relevant decisions were given on 12 December 2000 and 12 March 2001 respectively. The court reiterated the original grounds for his detention and added that the suspicion against the applicant was confirmed by evidence given by 2 anonymous witnesses and that, given that 2 of his 3 accomplices were still being searched for by an international “wanted” notice, the risk that he might obstruct justice was considerable.\n\n14.  Between March 2002 and the end of December 2003 the  Court of Appeal prolonged the applicant’s detention on 6 occasions. Those decisions were given on the following dates: 12 March, 6 June and 14 November 2002 and 26 March, 27 June and 29 December 2003. On the last of those dates, his detention was extended until 30 June 2004.\n\n15.  In all those decisions, the Court of Appeal reiterated that there was a reasonable suspicion that the applicant had committed the serious offences with which he had been charged. It considered that, given the severity of the anticipated sentence and the risk that the applicant might tamper with evidence, keeping him in detention was necessary to secure the proper conduct of the proceedings. It also found that there were no special grounds, as specified in Article 259 of the Code of Criminal Procedure, that would justify lifting the detention and imposing less severe measures.\n\n16.  Throughout the trial the applicant made several unsuccessful applications for release and appealed, likewise unsuccessfully, against the decisions extending his detention.\n\n17.  In the decision given on 29 December 2003, the Court of Appeal also stressed that keeping the applicant in custody was necessary in view of the fact that the Regional Court had – due to certain procedural flaws – to restart the trial and to rehear all evidence that had so far been taken. It further considered that his detention had to be prolonged because the Regional Court needed more time to hear fresh evidence suggested by the accused. The date for the restart of the trial was set for 26 January 2004.\n\n18.  The applicant’s detention was further extended by the Poznań Court of Appeal on 29 June and 28 September 2004, 23 March, 23 August and 23 November 2005.\n\n19.  The applicant is still in detention pending trial.\n\nII.  RELEVANT DOMESTIC LAW\n\n20.  The Code of Criminal Procedure of 1997, which entered into force on 1 September 1998, defines detention on remand as one of the so-called “preventive measures” (środki zapobiegawcze). The other measures are bail (poręczenie majątkowe), police supervision (dozór policji), guarantee by a responsible person (poręczenie osoby godnej zaufania), guarantee by a social entity (poręczenie społeczne), temporary ban on engaging in a given activity (zawieszenie oskarżonego w określonej działalności) and prohibition to leave the country (zakaz opuszczania kraju).\n\n21.  Article 249 § 1 sets out the general grounds for imposition of the preventive measures. That provision reads:\n\n“Preventive measures may be imposed in order to ensure the proper conduct of proceedings and, exceptionally, also in order to prevent an accused’s committing another, serious offence; they may be imposed only if evidence gathered shows a significant probability that an accused has committed an offence.”\n\n22.  Article 258 lists grounds for detention on remand. It provides, in so far as relevant:\n\n“1.  Detention on remand may be imposed if:\n\n(1)  there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or when he has no permanent abode [in Poland];\n\n(2)  there is a justified fear that an accused will attempt to induce [witnesses or co-defendants] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means;\n\n2.  If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of at least 8 years’ imprisonment, or if a court of first instance has sentenced him to at least 3 years’ imprisonment, the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed.”\n\n23.  The Code sets out the margin of discretion as to the continuation of a specific preventive measure. Article 257 reads, in so far as relevant:\n\n“1.  Detention on remand shall not be imposed if another preventive measure is sufficient.”\n\n24.  Article 259, in its relevant part, reads:\n\n“1.  If there are no special reasons to the contrary, detention on remand shall be lifted, in particular if depriving an accused of his liberty would:\n\n(1)  seriously jeopardise his life or health; or\n\n(2)  entail excessively harsh consequences for the accused or his family.”\n\n25.  The 1997 Code not only sets out maximum statutory time-limits for detention on remand but also, in Article 252 § 2, lays down that the relevant court – within those time-limits – must in each detention decision determine the exact time for which detention shall continue.\n\n26.  Article 263 sets out time-limits for detention. In the version applicable up to 20 July 2000 it provided:\n\n“1.  Imposing detention in the course of an investigation, the court shall determine its term for a period not exceeding 3 months.\n\n2.  If, due to the particular circumstances of the case, an investigation cannot be terminated within the term referred to in paragraph 1, the court of first instance competent to deal with the case may – if need be and on the application made by the [relevant] prosecutor – prolong detention for a period [or periods] which as a whole may not exceed 12 months.\n\n3.  The whole period of detention on remand until the date on which the first conviction at first instance is imposed may not exceed 2 years.\n\n4.  Only the Supreme Court may, on application made by the court before which the case is pending or, at the investigation stage, on application made by the Prosecutor General, prolong detention on remand for a further fixed period exceeding the periods referred to in paragraphs 2 and 3, when it is necessary in connection with a stay of the proceedings, a prolonged psychiatric observation of the accused, a prolonged preparation of an expert report, when evidence needs to be obtained in a particularly complex case or from abroad, when the accused has deliberately prolonged the proceedings, as well as on account of other significant obstacles that could not be overcome.”\n\n27.  On 20 July 2000 paragraph 4 was amended and since then the competence to prolong detention beyond the time-limits set out in paragraphs 2 and 3 has been vested in the court of appeal within whose jurisdiction the offence in question has been committed.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION\n\n28.  The applicant complained under Articles 5 §§ 3 and 5 and under Article 3 of the Convention that the length of his pre-trial detention was excessive. The Court considers that this complaint falls to be examined under Article 5 § 3 of the Convention, which reads as follows:\n\n“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”\n\nA.  Admissibility\n\n29.  The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.   Merits\n\n1.  Period to be taken into consideration\n\n30.  The Court observes that the applicant was arrested on and remanded in custody on 19 December 1999. He is still in custody. Accordingly, the total period of his detention amounts to over 6 years and 2 months to date.\n\n2.  The reasonableness of the length of detention\n\n(a)  The parties’ arguments\n\n31.  The Government maintained that the length of the applicant’s detention was not excessive and that it was duly justified during the entire period he spent in custody. They stated that there were relevant and sufficient grounds for justifying his detention. It was necessary to ensure the proper course of the proceedings, especially in view of the gravity of the charges and severe penalty. There was also a serious risk of the applicant’s absconding or tampering with the evidence.\n\n32.  The Government underlined that the domestic authorities showed due diligence when dealing with the case, both during the investigation and the trial. They stressed that all the applicant’s requests for release and appeals against decisions prolonging his detention were examined by the competent courts thoroughly and with respect for the applican’ts rights guaranteed under Article 5 § 3.\n\n33.  The applicant contested these arguments. He submitted that his detention had been inordinately lengthy.\n\n34.  In the applicant’s opinion, his appeals against prolongation of his detention and applications for release had never been duly examined by the courts. Their decisions concerning his custody referred mainly to the reasonable suspicion that he had committed the impugned offence, which had not been based on any concrete, true circumstance.\n\n35.  The applicant stressed that his case was not very complex and that he had never attempted to obstruct the proceedings. He argued that, contrary to the Government’s submissions, his case was not treated with due diligence by the trial court.\n\n(b)  The Court’s assessment\n\n36.  The Court reiterates that the question whether a period of detention is reasonable cannot be assessed in the abstract but must be considered in each case according to its special features. Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty laid down in Article 5 of the Convention (see, among other authorities, Kudła v. Poland [GC], no. 30210/96, §§ 110-111, ECHR 2000-X).\n\n37.  Under Article 5 § 3 the national judicial authorities must ensure that the pre-trial detention of an accused person does not exceed a reasonable time. To this end they must, paying due regard to the principle of the presumption of innocence, examine all the facts arguing for a departure from the rule in Article 5 and must set them out in their decisions on the applications for release.\n\n38.  The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. The Court must then establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also be satisfied that the national authorities displayed “special diligence” in the conduct of the proceedings (see, for instance, Jabłoński v. Poland, no. 33492/96, § 80, 21 December 2000).\n\n39.  The Court observes that in their decisions concerning the judicial authorities relied on three principal grounds, namely the reasonable suspicion that the applicant had committed the offence with which he had been charged, the serious nature of that offence and the need to ensure the proper conduct of the proceedings. They repeated those grounds in nearly all the decisions concerning the applicant’s detention (see paragraphs 9-15 above). Later, as the trial proceeded, the courts based their decisions on the risk that the applicant, if released, might obstruct the proper conduct of the trial, especially as some of his accomplices were being searched for by an international “wanted” notice (see paragraph 13 above) .\n\n40.  The Court agrees that the strong suspicion against the applicant of having committed the serious offence could have initially warranted his detention. However, it does not consider that those grounds can suffice to justify the applicant’s being kept in custody for the entire period in question, as, with the passage of time, they inevitably became less relevant.\n\n41.  It should be noted that during the entire period of the applicant’s detention, the authorities did not envisage the possibility of imposing on the applicant other measures – such as bail or police supervision – expressly foreseen by Polish law to secure the proper conduct of criminal proceedings.\n\n42.  The Court would emphasise that under Article 5 § 3 the authorities, when deciding whether a person should be released or detained, are obliged to consider alternative measures of ensuring his appearance at trial. Indeed, that provision proclaims not only the right to “trial within a reasonable time or to release pending trial” but also lays down that “release may be conditioned by guarantees to appear for trial” (see the Jabłoński judgment cited above, § 83).\n\n43.  Moreover, it does not emerge from the relevant decisions why the authorities considered that those other measures would not have warranted the applicant’s appearance before the court. The Court is not persuaded by the argument that the applicant might attempt to obstruct justice, as his accomplices were being still searched for, since the courts did not indicate any concrete circumstance showing that the anticipated risk went beyond a merely theoretical possibility.\n\n44.  Lastly, the Court cannot but note that the proceedings against the applicant are still pending before the first-instance court and that he still remains in custody.\n\n45.  In the circumstances, the Court finds that the grounds given for the applicant’s pre-trial detention were not “relevant” and “sufficient” to justify holding him in custody for the whole of an extremely long period of over 6 years.\n\n46.  There has accordingly been a violation of Article 5 § 3 of the Convention.\n\nII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n47.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n48.  The applicant claimed 42,034 Polish zlotys (PLN) in respect of pecuniary and PLN 200,000 in respect of non-pecuniary damage.\n\n49.  The Government contended that the sum claimed was excessive. They requested the Court to rule that the finding of a violation would constitute in itself sufficient just satisfaction. In the alternative, they invited the Court to make an award of just satisfaction on the basis of its case-law in similar cases and national economic circumstances.\n\n50.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it considers that the applicant has suffered non-pecuniary damage – such as distress resulting from the excessive length of his detention – which is not sufficiently compensated by the finding of a violation of the Convention and awards the applicant EUR 4,000 in respect of non-pecuniary damage.\n\nB.  Costs and expenses\n\n51.  The applicant also claimed PLN 12,000 for the costs and expenses incurred before the domestic courts and in the Court.\n\n52.  The Government asked the Court to make an award only in so far as the costs and expenses claimed were actually and necessarily incurred and were reasonable as to quantum.\n\n53.  The Court reiterates that only legal costs and expenses found to have been actually and necessarily incurred and which are reasonable as to quantum are recoverable under Article 41 of the Convention (see, among other authorities, Nikolova v. Bulgaria [GC], no. 31195/96, § 79, ECHR 1999-II). In the present case, the Court finds that the applicant has not produced any evidence supporting his claim as required by Rule 60 § 2 of the Rules of Court. Accordingly, it makes no award under this head.\n\nC.  Default interest\n\n54.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Declares the application admissible;\n\n2.  Holds that there has been a violation of Article 5 § 3 of the Convention;\n\n3.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 4,000 (four thousand euros) in respect of non-pecuniary damage, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n4.  Dismisses the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 28 March 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_984","text":"PROCEDURE\n\n1.  The case originated in an application (no. 38350/02) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovenian national, Mr Bogomir Tomažič (“the applicant”), on 14 October 2002.\n\n2.  The Slovenian Government (“the Government”) were represented by their Agent, Mr L. Bembič, the State Attorney-General.\n\n3.  The applicant alleged, inter alia, that the length of the proceedings he had instituted before the domestic courts was in breach of Article 6 § 1 of the Convention. In substance, he also complained about the lack of an effective domestic remedy in respect of the excessive length of the proceedings (Article 13 of the Convention).\n\n4.  On 28 September 2006 the Court decided to give notice of the application to the Government. Applying Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.\n\n5.  On 2 May 2007 the Court decided to invite the Government to submit further written observations on the admissibility of the application.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n6.  The applicant was born in 1946 and lives in .\n\n7.  On 10 May 1993 the applicant instituted civil proceedings against a company, SCT, and the Ministry of Transport and Communications (“the MTC”) in the  (Temeljno sodišče v Mariboru) seeking compensation and restitutio in integrum in respect of damage caused by the construction of a motorway near real estate he owned.\n\n8.  On 28 June 1994 the Convention entered into force in respect of . Thereafter, the (renamed) Maribor District Court (Okrožno sodišče v Mariboru) held four hearings in the case. The hearing held on 18 September 1995 was adjourned sine die in order for the applicant to submit further submissions. The next hearing scheduled for 27 January 1997 was called off at the applicant’s request due to a change in his legal representation. Subsequently, the hearing held on 9 April 1997 was adjourned sine die since the parties were given sixty days to reach an out-of-court settlement. On 20 October 1997 the applicant informed the court that the settlement had not been reached. The next hearing, held on 23 September 1998, was adjourned until 11 November 1998 (see paragraph 11 below) in order for the applicant to reply to the MTC’s late submissions. However, due to another change in his legal representation, the applicant failed to submit his reply.\n\n9.  During the proceedings, the court appointed three experts in construction science. The first expert, appointed on 10 August 1994, withdrew on 23 August 1994. The following day, the court appointed the second expert, who submitted a report on 22 December 1994. The third expert was appointed on 22 January 1998 and submitted a report on 23 May 1998.\n\n9.  During the proceedings, the court appointed three experts in construction science. The first expert, appointed on 10 August 1994, withdrew on 23 August 1994. The following day, the court appointed the second expert, who submitted a report on 22 December 1994. The third expert was appointed on 22 January 1998 and submitted a report on 23 May 1998.\n\n9.  During the proceedings, the court appointed three experts in construction science. The first expert, appointed on 10 August 1994, withdrew on 23 August 1994. The following day, the court appointed the second expert, who submitted a report on 22 December 1994. The third expert was appointed on 22 January 1998 and submitted a report on 23 May 1998.\n\n10.  Between 22 January 1997 and 29 September 1998 the applicant submitted four preliminary written submissions.\n\n10.  Between 22 January 1997 and 29 September 1998 the applicant submitted four preliminary written submissions.\n\n10.  Between 22 January 1997 and 29 September 1998 the applicant submitted four preliminary written submissions.\n\n11.  At the hearing held on 11 November 1998 the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 7 January 1999.\n\n12.  On 20 January 1999 the applicant appealed to the  (Višje sodišče v Mariboru). In his appeal, the applicant referred, inter alia, to the building permits obtained by the MTC in 1990 and 1991, which allegedly obliged the MTC to compensate the damage caused as a result of the construction work on the motorway.\n\nOn 5 June 2001 the court allowed the applicant’s appeal in part and remitted the respective part of the case to the first-instance court for re-examination.\n\n13.  On 24 August 2001 the applicant lodged a constitutional appeal against the second-instance judgment. The appeal was dismissed by the  on 25 April 2002 due to non-exhaustion.\n\n14.  Meanwhile, in the remitted part of the proceedings, the applicant lodged, between 2 October 2001 and 11 May 2004, six preliminary written submissions and adduced evidence.\n\n15.  On 15 October 2001 the court held the first hearing in the remitted proceedings, which was then adjourned sine die. Although the reasons for the adjournment were not stated in the records of the hearing, it appears that the applicant asked the court to allow him a sixty-day time-limit to prepare his answer to the MTC’s preliminary written submissions of 11 October 2001 which he had received only at the hearing. He further asked the court to adjourn the hearing until the  had decided on his constitutional appeal (paragraph 13 above). At the same time he also made a request for the withdrawal of the sitting judge. That request was rejected on 7 December 2001.\n\n16.  On 27 May 2003 the court forwarded a document concerning an assessment of certain plots of the relevant real estate to the parties. They submitted their pleadings in reply by 9 July 2003.\n\n17.  On 21 October 2003 the court appointed another expert in construction science and an agricultural expert. The experts submitted their reports on 24 February and 25 March 2004 respectively.\n\n18.  The court held hearings on 1 June and 20 September 2004.\n\n19.  At the hearing held on 20 September 2004 the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on him on 21 October 2004.\n\n20.  On 3 November 2004 the applicant appealed to the .\n\nOn 14 June 2005 the court dismissed the applicant’s appeal.\n\n21.  On 5 September 2005 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče).\n\nOn 13 July 2006 the latter dismissed the appeal as unfounded in so far as the compensation was concerned and as inadmissible in respect of the remainder.\n\n22.  On 7 November 2006 the applicant lodged a constitutional appeal. The proceedings are currently pending before the .\n\nII.  RELEVANT DOMESTIC LAW\n\n23.  The Act on the protection of the right to a trial without undue delay (Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja, Official Gazette, no. 49/2006 – “the 2006 Act”) became operational on 1 January 2007. It provides for two remedies to expedite pending proceedings – a supervisory appeal (nadzorstvena pritožba) and a motion for a deadline (rokovni predlog) – and, under certain conditions, for a claim for just satisfaction in respect of damage sustained because of the undue delay (zahteva za pravično zadoščenje). The relevant provisions read as follows:\n\nSection 5 - Supervisory appeal\n\n“(1) If a party considers that the court is unduly protracting the decision-making, he or she may lodge a supervisory appeal in writing before the court hearing the case; the decision thereon is taken by the ... president of the court\n\n...”\n\nSection 8 - Motion for a deadline\n\n“(1) If, under section 6(1) or (5) of this Act, the president of the court dismisses the supervisory appeal or fails to respond to the party within two months or fails to send the notification referred to in section 6(4) of this Act within the said time-limit or if appropriate procedural acts have not been performed within the time-limit set in the notification or ruling of the president of the court, the party may lodge a motion for a deadline under section 5(1) of this Act with the court hearing the case.\n\n...”\n\nSection 9 - Competence for decision-making\n\n“(1) The president of the higher court in the judicial area covering the local court, district court or other court of first instance, shall be competent to decide on the motion for a deadline concerning cases heard by the local court, district court or other court of first instance.\n\n(2) The president of the Supreme Court of the  shall have the competence to decide on the motion for a deadline concerning cases heard by a higher court or a court having the status of higher court.\n\n(3) The president of the Supreme Court of the Republic of Slovenia shall have the competence to decide on the motion for a deadline concerning cases heard by the Supreme Court of the .\n\n...”\n\nSection 10 - Decision on the motion for a deadline\n\n“The president of the court hearing the case shall forthwith refer the motion for a deadline together with the case file and the supervisory appeal file to the president of the court competent to decide on the motion for a deadline.”\n\nSection 15 - Just satisfaction\n\n“(1) If the supervisory appeal lodged by the party was granted or if a motion for a deadline has been lodged, the party may claim just satisfaction under the present Act.\n\n...”\n\nSection 19 - Proceedings before the State Attorney’s Office\n\n“(1) Proceedings to enforce a claim for just satisfaction, provided that the condition referred to in section 15(1) of this Act is met, shall be instituted by a party by means of a motion for settlement lodged with the State Attorney’s Office with a view to reaching an agreement on the type or amount of just satisfaction. The party may lodge such motion within nine months of the final resolution of the case. The State Attorney’s Office shall rule on the motion of the party within a period of three months if it establishes that the just satisfaction claim is substantiated. Until the expiry of the above-mentioned period, the party may not assert any claim for monetary compensation by way of just satisfaction by bringing an action before the competent court.\n\n(2) If, in accordance with paragraph 1 of this section, the agreement has been reached with the party, the State Attorney’s Office shall enter into an out-of-court settlement with the party.”\n\nSection 20 - Proceedings in a court\n\n“(1) If no agreement under section 19 of this Act is reached upon the motion for settlement, or the State Attorney’s Office and the party fail to negotiate an agreement within three months of the date of the motion being lodged, the party may bring an action for damages.\n\n(2) An action for damages against the  shall be brought not later than eighteen months after the final resolution of the party’s case.\n\n...”\n\nSection 25 - Just satisfaction for damage sustained prior to implementation of this Act\n\n“(1) In cases where a violation of the right to a trial without undue delay has already ceased to exist and the party had filed a claim for just satisfaction with the international court before the date of implementation of this Act, the State Attorney’s Office shall offer the party a settlement on the amount of just satisfaction within four months of the date of receipt of the case referred by the international court for the settlement procedure. The party shall submit a settlement proposal to the State Attorney’s Office within two months of the date of receipt of the proposal of the State Attorney’s Office. The State Attorney’s Office shall decide on the proposal as soon as possible and within a period of four months at the latest. ...\n\n(2) If the proposal for settlement referred to in paragraph 1 of this section is not acceded to or the State Attorney’s Office and the party fail to negotiate an agreement within four months of the date on which the party filed its proposal, the party may bring an action before the competent court under this Act. The party may bring an action within six months of receiving notification from the State Attorney’s Office that the party’s proposal referred to in the previous paragraph was not acceded to, or after the expiry of the period fixed in the previous paragraph for the State Attorney’s Office to decide to proceed with settlement. Irrespective of the type or amount of the claim, the provisions of the Civil Procedure Act concerning small claims shall apply in proceedings before a court.”\n\n24.  The relevant provisions of the Civil Procedure Act (Zakon o pravdnem postopku, Official Gazette, no. 83/2001) provide:\n\nSection 319\n\n“A judgment, against which an appeal can no longer be lodged, shall become final (pravnomočen), in so far as the party’s claim or counter-claim has been decided therein.\n\n...”\n\nSection 333\n\n“The parties may lodge an appeal against a judgment delivered at first instance within thirty days from the service of its written grounds...\n\nAn appeal, lodged on time, precludes the judgment from becoming final in the part which has been challenged in the appeal.”\n\nSection 367\n\n“The parties may lodge an appeal on points of law against a final judgment, delivered at second instance, within thirty days from the service of its written grounds.”\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLES 6 § 1 (length) AND 13 OF THE CONVENTION\n\n25.  The applicant complained about the excessive length of the proceedings. He relied on Article 6 § 1 of the Convention, which reads as follows:\n\n“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”\n\n26.  In substance, the applicant further complained that the remedies available for excessively long proceedings in  were ineffective. Article 13 of the Convention reads as follows:\n\n“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”\n\nA.  Admissibility\n\n1.  The parties’ submissions\n\n27.  In their observations, the Government argued that the applicant had failed to exhaust domestic remedies in that he had not availed himself of the remedies available prior to the implementation of the 2006 Act, in particular, a motion for the preliminary settlement of a dispute under section 14 of the Public Attorney Act and a compensation claim under section 26 of the Slovenian Constitution. They also informed the Court that, further to its judgment in Lukenda v. Slovenia (no. 23032/02, 6 October 2005) binding the Slovenian State to adopt appropriate legal measures and administrative practices in order to secure the right to a trial within reasonable time, the 2006 Act had been enacted and had become operational on 1 January 2007. The 2006 Act had established effective remedies in respect of length-of-proceedings complaints.\n\n28.  Following the implementation of the 2006 Act, the Court invited the Government to explain the relevance of the new legislation to the issue of exhaustion of domestic remedies in the present case, particularly in the light of the fact that the respective proceedings had been “finally resolved” before 1 January 2007 and subsequently continued before the .\n\n29.  The Government submitted in reply that, according to section 19 of the 2006 Act, a just satisfaction claim can only be awarded in respect of excessive delays which occurred in first or second-instance proceedings.\n\n30.  As to the acceleratory remedies, the Government submitted that, under sections 9 and 10 of the 2006 Act, an aggrieved party can also use the acceleratory remedies in proceedings before the Supreme Court. In this connection it is irrelevant whether the case had been “finally resolved” before or after 1 January 2007. Moreover, referring to the Court’s judgments in Kudła v. Poland ([GC], no. 30210/96, ECHR 2000XI) and Scordino v.  (no. 1) ([GC], no. 36813/97, ECHR 2006...), the Government argued that the State should enjoy a certain margin of appreciation as to the manner of providing a domestic remedy in respect of the “reasonable time” requirement. The Government also referred to the Court’s opinion that by choosing to introduce only a compensatory remedy for length-of-proceedings complaints the State would still comply with the requirements of Article 13. In the Government’s view, there was no reason why the same conclusion should not apply to the reverse situation where the domestic law provided only for remedies designed to expedite proceedings, especially when this possibility was open in respect of proceedings before the Supreme Court.\n\n31.  In addition, while acknowledging that the 2006 Act did not cover the proceedings before the , the Government submitted that amendments to the Constitutional Court Act (Official Gazette, no. 51/07) were introduced in July 2007 with the aim of simplifying and shortening the procedure before that court. These changes were expected to have an effect in practice at the end of 2008.\n\n32.  Finally, the Government submitted that section 25 of the 2006 Act concerned only proceedings where the violation has fully ceased to exist.\n\n33.  The applicant argued that the 2006 Act became operational only on 1 January 2007.\n\n2.  The Court’s assessment\n\n(a) Relevant principles deriving from the Court’s case-law\n\n34.  The Court reiterates, firstly, that by virtue of Article 1 of the Convention, the primary responsibility for implementing and enforcing the guaranteed rights and freedoms is laid on the national authorities. The machinery of complaint to the Court is thus subsidiary to national systems safeguarding human rights. This subsidiary character is reflected in Articles 13 and 35 § 1 of the Convention.\n\n35.  The purpose of Article 35 § 1, which sets out the rule on exhaustion of domestic remedies, is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V, and Kudła, cited above, § 152). The rule in Article 35 § 1 is based on the assumption, reflected in Article 13 (with which it has a close affinity), that there is an effective domestic remedy available in respect of the alleged breach of an individual’s Convention rights (ibid.).\n\n36.  Under Article 35, normal recourse should be had by an applicant to remedies that are available and sufficient to afford redress in respect of the breaches alleged. The existence of such remedies must be sufficiently certain, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied (see, among many other authorities, Vernillo v. France, judgment of 20 February 1991, Series A no. 198, p. 11, § 27).\n\n37.  The Court reiterates that remedies available to a litigant at domestic level for raising a complaint about the length of proceedings are “effective” within the meaning of Article 13 of the Convention if they “[prevent] the alleged violation or its continuation, or [provide] adequate redress for any violation that [has] already occurred” (see Kudła, cited above, § 158). Article 13 therefore offers an alternative: a remedy is “effective” if it can be used either to expedite a decision by the courts dealing with the case, or to provide the litigant with adequate redress for delays that have already occurred (ibid., § 159). The same is necessarily true of the concept of “effective” remedy within the meaning of Article 35 § 1 (see Mifsud v. France (dec.) [GC], no. 57220/00, ECHR 2002-VIII). However, for countries where length-of-proceedings violations already exist, a remedy designed to expedite the proceedings – although desirable for the future – may not be adequate to redress a situation in which the proceedings have clearly already been excessively long (Scordino (no. 1), cited above, § 185).\n\n38.  Finally, the Court has already had occasion to reiterate that, subject to compliance with the requirements of the Convention, the Contracting States are afforded some discretion as to the manner in which they provide individuals with the relief required by Article 13 and conform to their Convention obligation under that provision (Scordino (no. 1), cited above, §188).\n\n(b) The Court’s findings in the Grzinčič judgment and Korenjak decision\n\n39.  On 3 May 2007 the Court delivered a judgment in the case of Grzinčič v. Slovenia (no. 26867/02, 3 May 2007) followed by the decision in Korenjak v. Slovenia ((dec.) no. 463/03, § 62, 15 May 2007) in which the applicants complained, inter alia, about the length of proceedings which were pending at second instance. Further to its assessement of the 2006 Act, the Court was satisfied that the aggregate of remedies provided by the new legislation in cases of excessively long proceedings pending at first and second instance were effective in the sense that the remedies were in principle capable of both preventing the continuation of the alleged violation of the right to a hearing without undue delay and of providing adequate redress for any violation that had already occurred (see Grzinčič, cited above, § 98). The Court therefore concluded that the applicants should have exhausted the new remedies in order to comply with Article 35 § 1 of the Convention. The Court further found that this conclusion was valid not only for those applications lodged after the date on which the 2006 Act became operational, but also for those concerning domestic proceedings pending at first and second instance which were already on the Court’s list of cases by that date (see Grzinčič, cited above, § 102).\n\n(c) Application to the present case\n\n40.  It should first be observed that the  dismissed the applicant’s appeal against the first-instance judgment on 14 June 2005 (see paragraph 20 above). At that point the proceedings became “finally resolved” (see paragraph 24 above), that is, no further ordinary appeal lay against the judgment. Subsequently, the applicant availed himself of an appeal on points of law. The Supreme Court decided on his appeal on points of law on 13 July 2006. On 7 November 2006 the applicant lodged a constitutional appeal and the proceedings have since then been pending before the  (paragraphs 21 and 22 above). Having regard to these circumstances, the Court notes that the present case is significantly different from the Grzinčič (cited above, §§ 77-111) and Korenjak (cited above) cases, which concerned proceedings that were pending at second instance on the date the 2006 Act became operational (paragraph 39 above).\n\n41.  The Court takes note of the Government’s statement that under the 2006 Act just satisfaction can be claimed in respect of first and second-instance proceedings (paragraph 29 above). The Court however observes that, pursuant to section 15 of the 2006 Act, for the claim to be admitted, a party must successfully avail himself of a supervisory appeal or lodge a motion for a deadline as provided by the 2006 Act. Moreover, the request for just satisfaction in respect of non-pecuniary damage – initially in the form of a motion for a settlement – must be lodged within nine months of the final resolution of the proceedings (see section 19 – paragraph 23 above), which in the present case was the Maribor Higher Court’s decision of 14 June 2005. The Court therefore finds that the applicant could not have used the just satisfaction claim under section 15 taken in conjunction with sections 19 and 20 of the 2006 Act, which became operational only on 1 January 2007, that is to say about a year and a half after the final resolution of the case. Moreover, there is nothing in the 2006 Act to warrant an assumption of retroactive application.\n\n42.  With regard to the Government’s argument that the 2006 Act established acceleratory remedies which can also be used in proceedings before the Supreme Court (paragraph 30 above), the Court notes that in the present case the proceedings before the Supreme Court ended on 13 July 2006 (paragraph 21 above) which was before the date on which the new legislation became operational.\n\n43.  The Court also notes that, as the Government acknowledged, the 2006 Act does not provide any remedies in respect of proceedings before the . The new amendments to the Constitutional Court Act, which should bear fruit in practice only at the end of 2008 (paragraph 31 above), cannot, in the Court’s view, be regarded as redressing the situation in the present case.\n\n44.  The Court observes that the 2006 Act includes a special provision under section 25 addressing cases lodged with the Court before 1 January 2007 in which the violation of the “reasonable time” requirement had already ceased to exist. Pursuant to that provision the State Attorney’s Office shall offer the applicant a settlement in respect of just satisfaction within four months of communication of the application to the Government. Once this condition has been satisfied and if no settlement has been reached, it is open to the applicant to lodge a just satisfaction claim with the domestic courts. The Court further observes that the notion of “a violation of the right to a trial without undue delay has already ceased” refers to terminated proceedings (see Grzinčič, cited above, § 66).\n\nIn the instant case, the Court finds that the applicant had no possibility of obtaining relief under section 25 of the 2006 Act. The Court notes in this connection that the impugned proceedings have continued after 28 September 2006, the day the application was communicated to the Slovenian Government, and that the State Attorney’s Office has made no proposal to the applicant for a settlement under section 25 of the 2006 Act (mutatis mutandis, Grzinčič, § 66).\n\n45.  In conclusion, the Court finds that the Government have failed to demonstrate that the applicant could obtain relief – either preventive or compensatory – by having recourse to the new remedies available under the 2006 Act. The Court therefore notes that the only remedies at the applicant’s disposal were the remedies available prior to the implementation of the 2006 Act (paragraph 27 above). These remedies were considered ineffective by the Court in its earlier judgment in Lukenda (cited above, §§ 66-71). There is nothing in the present case which would lead the Court to reach a different conclusion from the one in that judgment (see, mutatis mutandis, Grzinčič, cited above, § 68).\n\n46.  The Government’s objection must therefore be dismissed.  The Court further notes that the applicant’s complaint relating to the length of the proceedings is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n1.  Article 6 § 1\n\n(a) The parties’ submissions\n\n47.  The Government argued that the proceedings before the  should not be taken into account when calculating the length of the proceedings in the present case. They submitted that the constitutional appeal of 24 August 2001 had been dismissed due to non-exhaustion of legal remedies and that the applicant’s constitutional appeal of 7 November 2006 had no prospects of success.\n\n48.  The Government further maintained that the case was a complex one. The courts had dealt with it diligently and as promptly as possible. Referring to Wiesinger v. Austria (judgment of 30 October 1991, Series A no. 213, § 57), the Government argued that the applicant had availed himself of numerous procedural means and remedies, which had prolonged the proceedings. Although the applicant had a right under the national law to use these avenues, their use should constitute at least an objective fact not capable of being attributed to the State. Furthermore, the Government argued that the domestic courts should not, as in the judgment of Deželak v. Slovenia (no. 1438/02, 6 April 2006), be blamed for remitting the case for re-examination. Relying on Bock v. Germany (judgment of 29 March 1989, Series A no. 150, § 43-44), the Government averred that the national courts were in the best position to judge whether the case should be remitted for re-examination.\n\n49.  In addition, the Government submitted that the hearings had been adjourned on many occasions because of the applicant or because of the attempts to reach a settlement between the parties. In the Government’s view, the applicant had not shown the required diligence in the proceedings and his contribution to the length of the proceedings had been very high, if not exclusive.\n\n50.  The applicant argued that the domestic courts were to be blamed for the delays in the proceedings. He furthermore stressed that the decision as to whether a hearing should proceed or should be adjourned is made by the judges and not by the parties to proceedings.\n\n(b) The Court’s assessment\n\n51.  The period to be taken into consideration began on 28 June 1994, the date the Convention entered into force with respect to .\n\n52.  As far as the end of the period is concerned, the “time” whose reasonableness is to be reviewed covers in principle the entirety of the litigation, including the appeal proceedings (Deumeland v. Germany, judgment of 29 May 1986, Series A no. 100, § 77). The proceedings further to the second constitutional appeal are to be taken into account in this connection since they are, in principle, able to influence the outcome of the proceedings before the lower courts (see Tričković v. Slovenia, no. 39914/98, §§ 27-29 and 36-41, 12 June 2001, Šubinski v. Slovenia, no. 19611/04, § 69, 18 January 2007, and Antolič v. Slovenia, no. 71476/01, § 17, 1 June 2006). The Court notes in this connection that the Government did not claim that the applicant’s second constitutional appeal was wholly inadmissible on procedural grounds. As regards the substance of the applicant’s complaints submitted to the , the Court is not in a position to speculate about the outcome of those proceedings.\n\nAs regards the first – premature – constitutional appeal, the Court notes that the Government have failed to explain why it should have interrupted the proceedings which were at that time pending before the first-instance court (see paragraphs 12 to 15 above).\n\n53.  Accordingly, the period to be considered has not yet ended and has therefore lasted more than thirteen years for four levels of jurisdiction, and due to the remittal the case has been considered at six instances.\n\n54.  As to the reasonableness of the length of the proceedings, the Court reiterates that it must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).\n\n55.  As regards the nature of the case, the Court notes that the domestic courts obtained fresh expert reports four times (see paragraphs 9 and 17 above). It could therefore be accepted that the case was of a certain, though limited, complexity.\n\n56.  Concerning the applicant’s behaviour, the Court notes that the applicant took some steps that slowed the progress of the proceedings, particularly as regards the first examination of the case before the first-instance court. Three hearings held within that period were adjourned at the applicant’s request. In addition, the hearing held on 9 April 1997 was adjourned so as to give the parties sixty days to negotiate a settlement, but the applicant informed the court that the settlement had not been reached only in October 1997 (paragraph 8). Likewise, the applicant requested the adjournment of the hearing held on 15 October 2001, during the re-examination proceedings (paragraph 15 above). The Court agrees with the Government (paragraph 49 above) that some of these adjournments and the resulting delays could have been avoided had the applicant acted more diligently. It must, however, add that the decision to adjourn the hearing sine die was taken by a judge whose responsibility it was to schedule a new hearing (see, mutatis mutandis, Lesar v. Slovenia, no. 66824/01, § 31, 30 November 2006).\n\n57.  The Court further notes that while it could be accepted that the applicant could have avoided lodging his premature constitutional appeal (see paragraph 13 above), it has, however, not been explained by the Government why this fact could have affected the progress of the main proceedings in any significant way (paragraph 47 above).\n\n58.  As regards the fact that the applicant made use of all available appeals with a view to challenging the outcome of the proceedings, it is noted that he succeeded with his first appeal to the  and, as a result, the case was remitted for re-examination. His remaining appeals have, however, so far been unsuccessful. As the Government agreed, it cannot be said that the applicant abused his procedural rights in this respect (paragraph 48). However, as the Court has held on many occasions, the applicant’s use of remedies should be considered as constituting an objective fact not capable of being attributed to the respondent State, and this is to be taken into account when determining whether or not the proceedings lasted longer than the reasonable time referred to in Article 6 § 1 (see, for example, Lesar, cited above, §§ 28-30).\n\n59.  With respect to the conduct of the domestic courts, the Court considers that both at first instance and in the appeal proceedings there were substantial delays. It notes at least four periods of lack of activity, for which the State was essentially responsible.\n\nFirstly, there was a period of more than one year and four months between the hearings scheduled for 18 September 1995 and 27 January 1997.\n\nSecondly, it took almost a year for the court to schedule a new hearing following the adjournment of the hearing of 9 April 1997 and the applicant’s letter informing the court that no settlement had been reached (see paragraph 8 above).\n\nThirdly, in the first set of appeal proceedings before the , it took more than two years and four months for the second-instance court merely to decide on the applicant’s appeal (paragraph 12 above).\n\nFinally, further to the remittal of the case for re-examination, the case was dormant for more than one year and five months (between 7 December 2001 and 27 May 2003 – see paragraphs 15 and 16 above) and, as a result, two years and seven months had passed between the first and second hearings (paragraphs 15 and 18 above).\n\n60.  In all, the proceedings at issue have extended over more than thirteen years. Although the applicant should have been more diligent in pursuing his case and despite the fact that the rescheduling of several hearings can, at least in part, be attributed to him, the Court notes that a number of delays can be attributed to the courts, particularly as regards the first-instance proceedings and the first set of appeal proceedings before the Maribor Higher Court.\n\n61.  In view of the foregoing and having regard to its case-law on the subject, the Court finds that there has been a breach of Article 6 § 1.\n\n2.  Article 13\n\n62.  The Government submitted that under the Slovenian law an individual has at his disposal various legal remedies in respect of alleged breaches of the “reasonable time” requirement (see paragraphs 27 to 32 above).\n\n63.  The applicant submitted that the new legislation aimed at providing remedies in respect of excessive delays – the 2006 Act – became operational only on 1 January 2007 (paragraph 33 above).\n\n64.  The Court reiterates that the standards of Article 13 require a party to the Convention to guarantee a domestic remedy allowing the competent domestic authority to address the substance of the relevant Convention complaint and to award appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision (see Chahal v. the United Kingdom, judgment of 15 November 1996, Reports of Judgments and Decisions 1996V, § 145). The Court also recalls that the rule of exhaustion of domestic remedies referred to in Article 35 of the Convention is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in respect of the alleged breach in the domestic system (see paragraph 35 above).\n\n65.  In the present case the Government have failed to show that the applicant can use any of the new remedies available under the 2006 Act (see paragraphs 40 to 45 above). As regards the remedies available prior to the implementation of the 2006 Act, the Government have also failed to submit anything that would lead the Court to a different conclusion from the one reached in earlier cases in which these remedies were considered ineffective (see paragraph 45 above and Lukenda, cited above, §§ 84 to 88)\n\n66.  Accordingly, the Court considers that in the present case there has been a violation of Article 13 on account of the lack of a remedy under domestic law whereby the applicant could have obtained a ruling upholding his right to have his case heard within a reasonable time, as set forth in Article 6 § 1.\n\nII.  ALLEGED VIOLATION OF ARTICLE 6 § 1 (fairness) OF THE CONVENTION\n\n67.  The applicant complained that the outcome of the proceedings had not been fair, submitting that the courts had ignored the building permits obtained by the MTC in 1990 and 1991 (see paragraph 12 above).\n\nThe relevant part of Article 6 § 1 of the Convention reads as follows:\n\n“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”\n\n68.  The Court observes that the applicant was able to raise the allegations concerning the alleged unfairness of the proceedings in his appeals following the first-instance court’s judgments. However, the proceedings are still pending before the  (see paragraph 22). It follows that these complaints are premature and must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.\n\nIII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n69.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n70.  The applicant claimed 32,259 euros (EUR) in respect of pecuniary damage sustained as a result of the construction of a motorway near real estate he owned.\n\n71.  The applicant further claimed EUR 20,864 in respect of non-pecuniary damage sustained as a result of the excessive delays and allegedly unfair proceedings.\n\n72.  The Government argued that the applicant’s claim in respect of pecuniary damage was totally unfounded. As regards the non-pecuniary damage claimed in respect of the alleged violation of the “reasonable time” requirement, the Government averred that this claim was not substantiated by sufficient evidence. They further submitted that the finding of a violation should represent sufficient just satisfaction in respect of the complaint concerning the length of the proceedings. Alternatively, the Court should determine the appropriate amount on the basis of its case-law.\n\n73.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it considers that the applicant must have sustained non-pecuniary damage in respect of the excessive length of the proceedings and of the lack of an effective remedy. Ruling on an equitable basis and taking into account the applicant’s contribution to the length of the proceedings (paragraphs 54 to 60 above), it awards him EUR 3,500 under that head.\n\nB.  Costs and expenses\n\n74.  The applicant also claimed EUR 8,013 for costs and expenses incurred before the domestic courts. In addition, he claimed the reimbursement of the costs and expenses incurred before the Court, but did not specify an amount.\n\n75.  The Government submitted that the expenses incurred before the domestic courts were not related to the applicant’s complaints before the Court. As to the claim for expenses incurred before the Court, the Government submitted that an amount had not been specified. It asked the Court to decide on this claim on the basis of its case-law.\n\n76.  Under the Court’s case-law, an applicant is entitled to the reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings and considers that the applicant, who was not represented by a lawyer, must have had to bear expenses in connection with the proceedings before the Court. The Court considers it reasonable to award him the sum of EUR 150 in that connection (see, for example, Bauer v. , no. 75402/01, § 26, 9 March 2006, and Vidic v. , no. 54836/00, § 31, 3 August 2006).\n\nC.  Default interest\n\n77.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Declares the complaints concerning the length of the proceedings and the effectiveness of the remedies available in that respect admissible and the remainder of the application inadmissible;\n\n2.  Holds that there has been a violation of Article 6 § 1 of the Convention in respect of the length of the proceedings;\n\n3.  Holds that there has been a violation of Article 13 of the Convention;\n\n4.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 3,500 (three thousand five hundred euros) in respect of non-pecuniary damage and EUR 150 (one hundred and fifty euros) in respect of costs and expenses, plus any tax that may be chargeable;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n5.  Dismisses the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 13 December 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_75","text":"PROCEDURE\n\n1.  The case originated in an application (no. 61131/12) against the Kingdom of Spain lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Spanish national, Mr Antonio Carlos Blesa Rodríguez (“the applicant”), on 7 September 2012.\n\n2.  The applicant was represented by Mr J. Gómez de Liaño Botella, a lawyer practising in Madrid. The Spanish Government (“the Government”) were represented by their Agent, Mr F.A. Sanz Gandasegui, State Attorney.\n\n3.  The applicant alleged that his case had not been heard by an impartial tribunal in breach of Article 6 § 1 of the Convention.\n\n4.  On 18 December 2012 the application was communicated to the Government.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n5.  The applicant was born in 1931 in Huercal-Overa, Almería and lives in La Laguna, Tenerife.\n\n6.  On 27 May 2003 La Laguna University lodged a criminal complaint against the applicant, a professor at the university’s Faculty of Pharmacy, accusing him of committing forgery. The university claimed that the applicant had presented a falsified curriculum vitae in the framework of a public tender for the allocation of pharmaceutical establishment licences.\n\n7.  On 6 February 2004, La Laguna investigating judge no. 1 ordered the suspension of the criminal investigation, considering that there were no objective reasons to believe that the crime had been committed.\n\n8.  The university submitted an appeal to the Santa Cruz de Tenerife Audiencia Provincial. In a decision (auto) of 19 May 2006, the Audiencia Provincial allowed the appeal and quashed the investigating judge’s decision declaring the suspension of the criminal investigation, holding that additional investigation proceedings were necessary. The Audiencia Provincial’s chamber was composed of judges A. (president), S. and C.\n\n9.  On 19 January 2008, La Laguna investigating judge no. 1 issued a decision (auto de transformación en procedimiento abreviado) confirming the conclusion of the investigatory stage and the continuation of the proceedings, and ordering the parties to submit their provisional pleadings. The applicant lodged an appeal against the decision. On 21 June 2008 an Audiencia Provincial chamber composed of judges S. (president), Sa., and C. declared the appeal inadmissible.\n\n10.  On 8 June 2010 the Audiencia Provincial issued an order (providencia) that the applicant’s case be sent for trial. It was also indicated in the order that the bench of the Audiencia Provincial that would try the applicant would be composed of judges A. (president), S. and G.\n\n11.  On 1 July 2010 the Audiencia Provincial held a preliminary hearing for the examination of evidence prior to trial. Contrary to what had been indicated in the Audiencia Provincial’s order of 8 June 2010, the trial bench was composed of A. (president), G. and Sa., the latter acting as substitute judge. The defence lawyer was informed at the beginning of the preliminary hearing that the composition of the Audiencia Provincial bench had been modified. The applicant claimed that he had not, however, been personally given the names of the judges sitting on the modified bench.\n\n12.  On 15 and 20 July the trial hearing was held before the Audiencia Provincial’s bench. The judges sitting on it remained the same as in the preliminary hearing.\n\n13.  On 27 July 2010 the same Audiencia Provincial bench found the applicant guilty of the offence as charged and sentenced him to three years and six months’ imprisonment, a suspension from office for the same period of time, and a fine of 25 euros (EUR) per day for eight months.\n\n14.  The applicant appealed on points of law to the Supreme Court complaining, inter alia, of lack of impartiality on the part of two of the judges sitting on the Audiencial Provincial bench. The applicant claimed that Judge A., president of the chamber, had previously sat on the bench that had heard the appeal introduced by the private prosecutor against the suspension of the criminal investigation (see paragraph 8 above). The applicant further claimed that Judge Sa. had participated as a substitute judge in the proceedings brought by La Laguna University, while being at the same time an associate professor and an employee with administrative duties at that university. According to the applicant, his post at the university was incompatible with his role as a judge in the proceedings.\n\n15.  On 20 May 2011 the Supreme Court ruled in the following terms. As regards Judge A., the Supreme Court found in particular that the applicant had failed to challenge the judge, even though he had had an opportunity to do so, having been informed of the composition of the bench when it was constituted on 8 June 2010. The Supreme Court pointed out that section 223(1) of the Organic Law on the Judiciary laid down the condition that the disqualification of a judge must be applied for as soon as the grounds for removal were known, failing which the application would be inadmissible.\n\nThe Supreme Court stated a fortiori that the decision of 19 May 2006 requesting additional investigation proceedings could not be perceived as a measure likely to undermine the objective impartiality of the trial court inasmuch as the Audiencia Provincial had confined itself to holding that the investigation had not been complete and that the proceedings had been closed by means of a unreasoned and hasty decision.\n\nAs regards Judge Sa., the Supreme Court noted that the defence lawyer had been informed for the first time about the new composition of the Audiencia Provincial bench at the beginning of the preliminary hearing of 1 July 2010, without any reasonable justification for such a belated communication. As to the substance of the complaint, the Supreme Court held that the circumstances alleged by the applicant did not fall within any of the grounds for challenging the composition of the trial bench prescribed by section 219 (9) (10) (16) of the Organic Law on the Judiciary, nor did they fall within the incompatibility grounds prescribed by section 389 of the Organic Law on the Judiciary. In particular, the Supreme Court found that the applicant had failed to demonstrate that Judge Sa. had any interest in the outcome of the proceedings. The fact that the judge was an associate professor at the university was not sufficient in that regard. The Supreme Court found that there was no indication that Judge Sa.’s relationship with the university had any connection or link with the substance of the criminal proceedings brought against the applicant.\n\n16.  The Supreme Court however reduced the sentence imposed on the applicant by the Audiencia Provincial to one year and six months’ imprisonment (with suspension from office) and a fine of EUR 25 per day for four months, in view of the damage suffered by the applicant as a result of the excessive and unjustified duration of the criminal proceedings, which had lasted for more than seven years.\n\n17.  The applicant filed an amparo appeal with the Constitutional Court complaining, inter alia, of a breach of his right to a fair hearing by an independent and impartial tribunal under article 24 §§ 1 and 2 of the Spanish Constitution. By an order (providencia) of 7 March 2012, the Constitutional Court declared the applicant’s amparo appeal inadmissible. The Constitutional Court found, in particular, that the applicant had failed to raise his complaints of lack of impartiality in the previous judicial proceedings (non-exhaustion of previous judicial remedies). The inadmissibility order was served on the applicant on 13 March 2012.\n\nII.  RELEVANT DOMESTIC LAW\n\n18.  The relevant provision of the Spanish Constitution reads as follows:\n\n“1. Everyone has the right to effective protection by judges and the courts in the exercise of his rights and legitimate interests and in no circumstances may he be denied the possibility of defending himself.\n\n2. Likewise, everyone has the right to be heard by a court established by law, the right to defence and to the assistance of a lawyer, the right to be informed of any charges brought against him, the right to a public trial without undue delay and with full guarantees, the right to make use of evidence relevant to his defence, the right not to incriminate himself and not to confess his guilt, and the right to be presumed innocent.”\n\n.  The relevant provisions of Organic Law 6/1985 on the Judiciary read as follows:\n\n“Judges and magistrates must withdraw and may, where appropriate, be challenged on the grounds prescribed by law.”\n\n“Grounds for withdrawal or, where appropriate, a challenge include:\n\n...\n\n9. Friendship or self-evident enmity between the juror and any of the parties.\n\n10. The fact of having a direct or indirect interest in the dispute.\n\n11. Having participated in the investigation stage of the proceedings or having rendered a decision on the merits in a previous instance.\n\n16. Having held public office or an administrative post where he or she previously could have known about the dispute and form an opinion likely to undermine his or her due impartiality.\n\n...”\n\n“A judge or magistrate who believes that he falls within the scope of one of the grounds set out in the preceding sections shall withdraw from the case without waiting to be challenged.\n\n...”\n\n“A party wishing to challenge a judge must do so as soon as he becomes aware that a ground for challenge exists. If that party was aware of the ground for challenge prior to the dispute, he shall lodge his application at the start of the proceedings, failing which it shall be inadmissible.”\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION\n\n20.  The applicant complained that two out of the three judges on the Audiencia Provincial bench that had convicted him lacked subjective and objective impartiality. Firstly, the applicant stated that Judge A., who had presided over the Audiencia Provincial’s chamber, had already had to make a ruling in the case when he allowed the appeal lodged by the private prosecutor against the suspension of the criminal investigation. Secondly, the applicant claimed that Judge Sa. had participated as a substitute judge in the proceedings brought by La Laguna University, while being also an associate professor and employed to carry out administrative duties at that university. The applicant claimed that the relationship of professional and financial dependency that Judge Sa. had with that university was incompatible with his role as a substitute judge in the proceedings brought against the applicant. The applicant relied on Article 6 § 1 of the Convention.\n\n21.  The relevant passage of that provision is worded as follows:\n\n“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”\n\n22.  The Government contested that argument.\n\nA.  Admissibility\n\n23.  The Government claimed that the applicant had not exhausted domestic remedies as regards his complaints of impartiality in respect of both Judge A. and Judge Sa.\n\n1.  As regards Judge A.\n\n24.  The Government contended that the applicant had been informed that Judge A. was to sit on the Audiencia Provincial bench on 8 June 2010. Consequently, as found by the Supreme Court, the applicant could have challenged the impartiality of Judge A. before the trial began, which he did not. The applicant had therefore failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention and consequently his complaint should be declared inadmissible.\n\n25.  The Government added that that conclusion could not be displaced by the fact that the Supreme Court had a fortiori stated in its judgment that the previous participation of Judge A. in the proceedings did not imply that the judge lacked impartiality. That remark had been made by the Supreme Court merely “for the sake of completeness”, without making any further analysis of the merits of the case.\n\n.  The applicant admitted that he had not challenged Judge A. in the proceedings. However, he argued that judges were obliged to withdraw on the grounds prescribed by section 217 of the Organic Law on the Judiciary. Thus, the onus to withdraw had been on Judge A. and he could not escape that obligation on the pretext that the applicant had not challenged him.\n\n.  The Court notes that both the Supreme Court and the Constitutional Court rejected the applicant’s complaint for not having first used available remedies. Furthermore, the Court shares the Government’s opinion that the Supreme Court’s a fortiori statement concerning the participation of Judge A. at the investigation stage of the proceedings was a mere observation.\n\n.  The applicant has not therefore exhausted domestic remedies in respect of his complaint of impartiality on the part of Judge A. This part of the application must therefore be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.\n\n2.  As regards Judge Sa.\n\n29.  The Government admitted that the Supreme Court had examined the applicant’s complaint on its merits. However, they claimed that, in view of the Constitutional Court’s order of 7 March 2012 rejecting the applicant’s amparo appeal (see paragraph 17), it must be considered that the applicant had not exhausted domestic remedies. In this regard, the Government added that the applicant had not applied for the disqualification of Judge Sa. after learning about the new composition of the trial bench on 1 July 2010.\n\n30.  The applicant said that he could not be criticised for not challenging Sa. before the trial. He argued that the composition of the Audiencia Provincial bench had been modified without his having been informed about the identity of the three judges who were to sit on it. Indeed, he had only found out about their identities when he had read the Audiencia Provincial’s judgment.\n\n31.  The Court observes that the applicant did not challenge Judge Sa. during the proceedings conducted by the Audiencia Provincial. He first raised his complaint of lack of impartiality after the judge in question had already taken part in the proceedings. However, the Court does not share the Government’s opinion that the aforementioned fact constitutes grounds for declaring the applicant’s complaint inadmissible. Notwithstanding the Constitutional Court’s order of 7 March 2012, the Court considers that the applicant raised his complaint as soon as he had become aware of the identity and the relevant circumstances of Judge Sa. Having regard to the difficulties the applicant encountered in finding out the identity and relevant circumstances of Judge Sa., the applicant cannot be reproached for the fact that he did not apply for the disqualification of Judge Sa. before the trial.\n\n32.  The Court has also taken into account the following elements. Firstly, as stated by the Supreme Court, the defence lawyer (not even the applicant) was not advised of the new composition of the Audiencia Provincial bench until the beginning of the preliminary hearing of 1 July 2010, without any reasonable justification for such a belated communication.\n\n33.  Secondly, as ascertained by the Court in the case of Pescador Valero v. Spain, no. 62435/00, ECHR 2003VII, the reasoning of which may be applied, mutatis mutandis, to the present case, the fact that the applicant and Judge Sa. had been working at the same university must not be construed as a presumption that the applicant knew or ought to have known Judge Sa. in his capacity as an associate professor prior to the trial. In this regard, the Court found that requiring the applicant to prove that he did not know the judge before the start of the proceedings would have subjected him to an excessive burden of proof (ibid., § 26). The Court also noted in that case that the Organic Law on the Judiciary obliged a judge falling within the scope of one of the grounds for withdrawal or challenge to withdraw from the case without waiting to be challenged (ibid., § 24).\n\n34.  In view of the aforementioned considerations, and contrary to what was suggested by the Government, it must be considered that the applicant raised the complaint of lack of impartiality as soon as he was able to do so, namely by lodging his appeal on points of law before the Supreme Court. This conclusion is confirmed by the way the Supreme Court itself approached the matter fully examining the substance of the applicant’s complaint of lack of impartiality.\n\n.  It follows that the Government’s objection as regards Judge Sa. must be dismissed.\n\n36.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n37.  The applicant claimed that the professional and financial relations between Judge Sa. and the university that had brought the criminal proceedings against him had infringed his right to an independent and impartial tribunal. He argued that Judge Sa. was an associate professor at the Faculty of Law and the Faculty of Philosophy and that, in that capacity, he was functionally dependent on the rector of the university. Besides his teaching activities as an associate professor, Judge Sa. also directed the Tomás y Valiente Chair (Cátedra) of La Laguna University; he was Secretary of the Law Sciences department and a member of the committee of the Erasmus scholarship programme of the Canary Islands Government.\n\n38.  The Government considered that the applicant’s submission that the professional relationship that Judge Sa. had with the private prosecutor was incompatible with his role as substitute judge was groundless. The Supreme Court’s finding was that the above-mentioned circumstances, which had been already alleged by the applicant in the domestic proceedings, did not fall within any of the grounds for a judge withdrawing or being challenged prescribed by section 219 (9), (10) and (16) of the Organic Law on the Judiciary, nor did they fall within the incompatibility grounds prescribed by section 389 of that Law. The Government argued that it was for the domestic courts to interpret domestic legislation and that the State must be given a margin of appreciation in that respect.\n\n39.  The Government also argued that the Supreme Court had concluded that the fact that Judge Sa. was an associate professor at the university did not suffice to demonstrate the existence of any interest on his part in the outcome of the proceedings.\n\nJudge Sa. performed teaching and academic duties at the university on a part-time and non-exclusive contract. Those activities were in no way whatsoever connected with those constituting the dispute between the applicant and the university. Thus, it could not be assumed that the judge had an interest in the dispute. Otherwise, judges would have to refrain from participating in any dispute involving a university where they performed any teaching activity, which would constitute a disproportionate restriction.\n\n40.  The Government contended that the Court’s findings in the case of Pescador Valero, cited above, were not applicable to the present case. In that case, the Court understood that there was a dependency relationship between the judge and the applicant, since the latter was director of administrative and service personnel at the university, a circumstance which was absent in the present case. The Government accordingly submitted that there had been no violation of Article 6 § 1 of the Convention.\n\n41.  The Court reiterates that impartiality must be assessed both by means of a subjective test, which consists of seeking to determine the personal conviction of a particular judge in a given case, and by means of an objective test, which consists of ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (see, among other authorities, Morice v. France [GC], no. 29369/10, §§ 73-78, 23 April 2015; Pescador Valero v. Spain, cited above, § 21; and Thomann v. Switzerland, 10 June 1996, § 30, Reports of Judgments and Decisions 1996III).\n\n.  As regards the subjective aspect of impartiality, the Court notes that nothing in the present case indicated any actual prejudice or bias on the part of Judge Sa.\n\n.  There thus remains the objective test. Here, what must be determined is whether, quite apart from the judge’s conduct, there are ascertainable facts which may raise doubts as to his impartiality. In this respect, even appearances may be of some importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public (see Castillo Algar v. Spain, judgment of 28 October 1998, Reports 1998-VIII, p. 3116, § 45). This implies that in deciding whether in a given case there is a legitimate reason to fear that a particular judge lacks impartiality, the standpoint of the applicant is important but not decisive. What is decisive is whether this fear can be held to be objectively justified (see Pescador Valero, cited above, § 23; Ferrantelli and Santangelo v. Italy, 7 August 1996, pp. 951-52, § 58; Reports 1996-III, and Wettstein v. Switzerland, no. 33958/96, § 44, ECHR 2000-XII).\n\n44.  The Court must determine whether the applicant’s fears about the judge’s impartiality were legitimate, given the professional relations between the judge and the university that had brought the proceedings against the applicant, and whether those relations cast doubt on his objective impartiality. The judge was an associate professor and performed administrative duties for which he received income from the university. On these grounds, it must be deemed that the judge had had regular, close and remunerated professional relations with the university while performing his duties as a judge of Santa Cruz de Tenerife Audiencia Provincial. In the Court’s view, these circumstances serve objectively to justify the applicant’s apprehension that Judge Sa. lacked the requisite impartiality (see Pescador Valero, cited above, §§ 27-28).\n\n45.  There has accordingly been a violation of Article 6 § 1 of the Convention as regards the requirements of an impartial tribunal.\n\nII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n46.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n47.  The applicant sought an award for non-pecuniary damage in the application form, without claiming a specific sum and leaving the matter to the Court’s discretion. The Government submitted that it should be understood that the applicant had waived his right to obtain an award for just satisfaction, and asked the Court to make no award under this head.\n\n.  Having regard to all the circumstances of the case and on the basis of equity, as required by Article 41, the Court awards the applicant 4,000 euros (EUR) in respect of non-pecuniary damage.\n\nB.  Costs and expenses\n\n49.  The applicant has failed to submit a specific claim for costs and expenses in accordance with Rule 60 of the Rules of Court.\n\n50.  Accordingly, the Court considers that no award should be made under this head.\n\nC.  Default interest\n\n51.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank plus three percentage points.\n\nFOR THESE REASONS, THE COURT,\n\n1.  Declares, by a majority, the complaint under Article 6 § 1 of the Convention relating to Judge A. inadmissible;\n\n2.  Declares, unanimously, the complaint under Article 6 § 1 of the Convention relating to Judge Sa. admissible;\n\n3.  Holds, unanimously, that there has been a violation of Article 6 § 1 of the Convention as regards the complaint under Article 6 § 1 of the Convention relating to Judge Sa;\n\n4.  Holds, unanimously,\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final, in accordance with Article 44 § 2 of the Convention, EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.\n\nDone in English, and notified in writing on 1 December 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.\n\nIn accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Dedov is annexed to this judgment.\n\nPARTLY DISSENTING OPINION OF JUDGE DEDOV\n\nI regret that I could not agree with the majority on one small issue (admissibility of complaint relating to impartiality of judge A.) which may, however, lead to serious consequences as regards access to the courts at domestic and international levels.\n\nDomestic remedies and the absolute character of impartiality\n\nNeedless to say, the impartial court is a fundamental value for the maintaining of democracy and the rule of law. A violation of the right to a fair trial by an impartial court should normally lead to the annulment of the verdict on procedural grounds and the consequent rehearing of the case. Therefore, such a complaint should survive throughout the domestic proceedings.\n\nIn the present case, the applicant appealed to the Supreme Court and the Constitutional Court complaining of a lack of impartiality on the part of judges A. and Sa. Both supreme courts found that the applicant had failed to exhaust previous domestic remedies under section 223 of the Organic Law on the Judiciary, as he had not sought the judges’ withdrawal at the start of the proceedings.\n\nThere is too much inconsistency in the Chamber’s reaction to those developments. The Supreme Court stated that the decision by judge A. requesting additional investigation and the relationship with a university of judge Sa. could not have undermined the objective impartiality of those judges during the trial. However, the Chamber decided differently as to the admissibility of the applicant’s complaints in respect of each judge.\n\nI believe that the absolute nature of the right to an impartial court requires examination of such a complaint at any stage of judicial supervision, because (i) a failure to challenge a judge’s presence in the trial court of first instance should not prevent the applicant from appealing on impartiality as a point of law before the national supreme courts, and (ii) because the national supreme courts continue to provide effective domestic remedies for the purposes of the proceedings before this Court. Therefore, the applicant has exhausted domestic remedies in respect of judge A.\n\nConsistency with the case-law\n\nThere are some examples as to how impartiality could be examined on the merits without any barriers.\n\nIn Marguš v. Croatia ([GC], no. 4455/10, 27 May 2014) the Court (Chamber and Grand Chamber) examined the complaint on the merits and reiterated that the mere fact that a trial judge had made previous decisions concerning the same offence could not be found, in itself, to justify fears as to a lack of impartiality in respect of the pre-trial decisions. Moreover, in that case the applicant had used the domestic remedies only at the level of the Supreme Court (see paragraphs 24 and 84-89 of the Marguš judgment).\n\nParagraph 85 of the Marguš judgment refers, inter alia, to the decision of the Court in the case of Romero Martin v. Spain ((dec.), no. 32045/03, 12 June 2006) where the circumstances were similar to those of the present case (the applicant had not sought the withdrawal of judges in the lower courts), but where, by contrast, the national supreme courts and this Court examined the merits of the complaint on the basis of both subjective and objective criteria and found it unsubstantiated.\n\nLastly, in the Pinochet case (In Re Pinochet [1999] UKHL 52), the impartiality of one of the judges in the United Kingdom’s House of Lords was successfully challenged in spite of the fact that information about links between a participant and the judge was publicly available from the outset.\n\nPrinciple\n\nIn the present case, I believe that participation in pre-trial decisions should not prevent the examination of the merits by the same judge, and I agree with the conclusion of the Supreme Court, which I cannot consider a “mere observation” as proposed by the majority in paragraph 27 of the judgment. However, the application of the same admissibility approach in another case could entail the risk that a violation of the right to a fair trial might never be found, even if the circumstances are evident.\n\nIt is clear from section 223 of the Organic Law on the Judiciary that the challenging of a judge’s participation can only be used as a procedural instrument within the proceedings in the trial court. After the decision is issued, the withdrawal of the judge from the trial is technically impossible. However, consequently, the applicant should not be prevented from using another procedural instrument, namely, an appeal on impartiality as a point of law.\n\nAs was stressed in the decision of the House of Lords, Pinochet’s “claim was based on the requirement that justice should be seen to be done as well as actually being done”. Justice is two-fold in this context: if there is a risk that the judge is biased, the applicant’s obligation to challenge the judge is balanced by the judge’s responsibility to withdraw from the case before the trial starts. But the protection of justice must not be forgotten afterwards, within the judicial supervisory review process.\n\nAs was stressed in the decision of the House of Lords, Pinochet’s “claim was based on the requirement that justice should be seen to be done as well as actually being done”. Justice is two-fold in this context: if there is a risk that the judge is biased, the applicant’s obligation to challenge the judge is balanced by the judge’s responsibility to withdraw from the case before the trial starts. But the protection of justice must not be forgotten afterwards, within the judicial supervisory review process.","title":""}
{"_id":"passage_970","text":"PROCEDURE\n\n1.  The case originated in an application (no. 39757/15) against the Republic of Iceland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Icelandic nationals, Mr Sigurður Einarsson, Mr Hreiðar Már Sigurðsson, Mr Ólafur Ólafsson and Mr Magnús Guðmundsson (“the applicants”), on 10 August 2015.\n\n2.  The applicants were represented by Mr E. Werlauff, a lawyer practising in Herning, Denmark. The Icelandic Government (“the Government”) were represented by their Agent, Mrs Ragnhildur Hjaltadóttir.\n\n3.  The applicants alleged, in particular, that in the criminal proceedings against them they had been denied full access to the file held by the prosecution, that insufficient efforts had been made to summon two key witnesses and that the Supreme Court had not been impartial on account of the positions held by family members of one of its judges. They relied on Article 6 §§ 1 and 3(b) and (d) of the Convention in that respect. In addition, the applicants complained that conversations with their defence lawyers had been intercepted and recorded in breach of domestic law. They relied on Article 8 of the Convention in that respect.\n\n4.  On 15 June 2016 notice of the above-mentioned complaints was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.\n\n5.  Mr Robert Spano, the judge elected in respect of Iceland, withdrew from the case (Rule 28 of the Rules of Court). Accordingly, Ms Ragnhildur Helgadóttir was appointed to sit as an ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1).\n\nTHE FACTS\n\nTHE CIRCUMSTANCES OF THE CASE\n\n6.  The applicant Sigurður Einarsson was born in 1960 and lives in Reykjavík. The applicant Hreiðar Már Sigurðsson was born in 1970 and lives in Luxembourg. The applicant Ólafur Ólafsson was born in 1957 and lives in Pully, Switzerland. The applicant Magnús Guðmundsson was born in 1970 and lives in Luxembourg.\n\nBackground to the case\n\n7.  In the autumn of 2008 a crisis hit the Icelandic financial sector resulting, among other things, in the collapse of one of Iceland’s largest banks, Kaupþing banki hf. (hereafter “Kaupþing”). On 9 October 2008 the Financial Supervisory Authority (hereafter “the FME”) exercised its authority to take over the powers invested in a shareholders’ meeting and to take over the management of Kaupþing immediately, dismissing the Board of Directors and appointing a Resolution Committee to direct the bank. In December 2008 the Office of the Special Prosecutor was established to investigate potential criminal conduct in connection with the financial crisis and, where appropriate, to prosecute those concerned. The Special Prosecutor had police authority to investigate criminal cases as well as prosecutorial authority.\n\nThe criminal proceedings against the applicants\n\n8.  At the relevant time, the applicants held the following positions: Sigurður Einarsson was Chairman of the Board of Kaupþing and Chairman of the Board Credit Committee; Hreiðar Már Sigurðsson was Chief Executive Officer of Kaupþing and a member of the Board Credit Committee; Ólafur Ólafsson was majority owner of a company which indirectly owned another company which was at the time the second largest shareholder in Kaupþing, with 9.88% of its shares; Magnús Guðmundsson was Chief Executive Officer of Kaupþing’s subsidiary, Kaupþing Bank Luxembourg S.A. (hereafter “KBL”).\n\n9.  On 22 September 2008 Kaupþing issued a press release stating that Q, a company owned indirectly by Sheik Mohammed bin Khalifa Al Thani (hereafter “Al Thani”), a member of Qatar’s royal family and a wealthy businessman, had bought 5.01% of the share capital of Kaupþing for 25,599,000,000 Iceland krónur (ISK). An investigation revealed that Kaupþing had provided a loan for the entire purchase price of the shares, which the bank itself had owned prior to their sale: two companies in the British Virgin Islands, ST and GA, the former of which was owned by Al Thani and the latter by the applicant Ólafur Ólafsson, had each obtained a loan from Kaupþing amounting to half the purchase price, which they had then lent to a Cypriot company, CS, itself owned by the two said companies. CS had then provided a loan to Q for the purchase price. The loan transactions and the payment for the shares had all been made on 29 September 2008. Shortly before, Kaupþing had also provided BT, another company owned indirectly by Al Thani, with a loan in the amount of 50,000,000 US dollars (USD), which had been disbursed on 19 September into BT’s account with Kaupþing’s subsidiary, KBL. Neither the loan to GA nor the loan to BT had had the necessarily approval of Kaupþing’s Board Credit Committee, and no or insufficient securities had been provided for them.\n\n10.  On 9 December 2008 the FME was informed of possible suspicious transactions in Kaupþing’s operations shortly before the bank collapsed. Having made inquiries, the FME submitted a complaint to the Special Prosecutor on 13 March 2009. The Special Prosecutor then conducted a criminal investigation which lasted almost three years and led to an extensive collection of data (see paragraphs 14-25 below). Moreover, the applicants and ten other individuals had their telephone conversations intercepted.\n\n11.  On 16 February 2012, the Special Prosecutor issued an indictment charging Hreiðar Már Sigurðsson and Sigurður Einarsson with breach of trust under Article 249 of the Criminal Code, and the other two applicants with participation in certain of those offences. These charges related essentially to the provision of unsecured loans without the appropriate authorisations. In addition, all the applicants were charged with market manipulation under section 117 of Act No. 108/2007 on Securities Transactions for giving a misleading picture of the transactions in question.\n\n12.  The case was submitted to the Reykjavík District Court on 7 March 2012 and the main hearing took place from 4 to 14 November 2013. Forty witnesses gave evidence, including the applicants. On 12 December 2013 the District Court rendered its judgment, convicting the applicants as charged and sentencing them to between three years’ and five years six months’ imprisonment.\n\n13.  The applicants appealed to the Supreme Court which, in a judgment of 12 February 2015, found the applicant Ólafur Ólafsson guilty of market manipulation and the other three applicants guilty of breach of trust and market manipulation. Hreiðar Már Sigurðsson was sentenced to five years and six months’ imprisonment, Sigurður Einarsson was sentenced to four years’ imprisonment and the other two applicants were sentenced to four years and six months’ imprisonment.\n\n14.  Three of the applicants lodged petitions with the Committee on Reopening of Judicial Proceedings (Endurupptökunefnd), seeking to have the proceedings before the Supreme Court reopened. Their petitions were based inter alia on the ground that there had been significant defects in the procedure, as one of the Supreme Court judges, Á.K., had been disqualified from sitting in the case on account of his wife’s and his son’s connection to the case (see paragraphs 33-35 below). On 26 January 2016 the petitions were rejected. Magnús Guðmundsson did not lodge a petition for reopening.\n\nThe procedural issues raised during and after the proceedings\n\nAccess to documents\n\n15.  During the investigation, the Special Prosecutor, on the basis of court warranted searches, seized large amounts of documents and electronic data, including from Kaupþing and KBL. The Government identified three different categories of data: “full collection of data” (heildarsafn gagna) referred to all the data seized and held by the Special Prosecutor, regardless of whether it had relevance to the case or not; “investigation documents” (rannsóknargögn) referred to the data, documents and other materials extracted from the full collection of data which had been defined by the Special Prosecutor as relevant to the case and which were marked as part of the “investigation file”; “evidence in the case” referred to the documents and other materials that were submitted in court by the prosecution or the defence and were part of the “case file” in the court proceedings.\n\n16.  In order to conduct a search of the electronic data, the Special Prosecutor used an e-Discovery system named “Clearwell”. Certain keywords were entered into the programme, which then gave a collection of documents containing those words. Three separate Clearwell searches were carried out to sort out roughly the documents that might have relevance to the case, and after the searches new Clearwell case folders were created containing these “tagged” documents (which the applicants regard as a separate category). These folders were given the following names:\n\n-  ESS KAU Q Iceland, containing 8,956 documents, derived from Kaupþing’s computer systems, where e-mails and personal drives of 62 employees were searched through, and from other items seized in searches at three companies related to the applicants and at a law firm, as well as from items handed over by the FME;\n\n-  ESS KAU Q Iceland 2, containing 54,468 documents, from Kaupþing’s computer systems and from KBL; the e-mails of 11 employees of these companies in the period from 1 September to 31 October 2008 were searched;\n\n-  KAU KBLUC, containing 712,378 documents, derived from KBL’s computer systems after searching through all e-mails of 13 employees from December 2006.\n\nThe documents in these Clearwell folders were subsequently reviewed by the investigators by making further searches using the Clearwell system and by reviewing them manually. Those documents that were regarded as having a connection with the case were then tagged and exported and made into “investigation documents”.\n\n17.  During the course of the investigation, the applicants’ lawyers were regularly provided with copies of the “investigation documents”. However, they were denied copies of dvd recordings of statements by witnesses and the accused, on the ground that the requested material did not constitute a “document” within the meaning of section 37 § 1 of the Criminal Procedures Act (Law No. 88/2008: see paragraph 36 below); instead, they were invited to access these recordings in the premises of the Special Prosecutor, a procedure which was validated by the Supreme Court in decisions of 21 September 2009 by which it rejected the applicants’ requests to obtain copies. However, transcripts of all recorded depositions were made and handed over to the applicants, albeit with some delay on account of the volume of the material.\n\n18.  When the case was submitted to the District Court, the defence received a copy of all the evidence submitted to the court by the prosecution, except for the aforementioned dvd recordings, of which transcripts were however provided. Moreover, the prosecution also submitted a list of all “investigation documents”, as well as those that it had decided not to submit as evidence. Included in the submitted evidence were files on all seized items in the case, along with rough overviews of what the items contained and which evidence, if any, had been collected from each seized item.\n\n19.  The applicants and their lawyers repeatedly complained to the Special Prosecutor that their right of access to documents had been breached. At preliminary court sessions on 29 March and 27 April 2012 the applicants requested that the Special Prosecutor be required to hand over “a copy of the register of events (log-register) about connections between telephone calls or any other data which may have been created during the investigation of the case at the Office of the Special Prosecutor and which contains an overview of telephone calls which were tapped on the basis of rulings on tappings in the case”, as well as copies of all e-mails which had passed through their e-mail addresses and had been seized by the Special Prosecutor during the investigation. On 4 May 2012 the District Court dismissed the request, noting that the prosecution had stated that the data in question was accessible in the premises of the Special Prosecutor, where the defence could review it and, if appropriate, request that documents be submitted to the court as evidence. Following an appeal, the Supreme Court instructed the District Court to take a substantive position on the request. In a ruling of 29 May 2012 the District Court reiterated that the documentation was accessible to the accused. It further observed that while the prosecution should be considered generally to be under an obligation to grant the defence access to data acquired by the police during an investigation but not submitted to the court, the police and prosecution were not obliged to hand over copies of such data to the defence. On 8 June 2012 the Supreme Court upheld the District Court’s decision. Subsequently, the Special Prosecutor granted access to the data in question upon request.\n\n20.  On 20 November 2012 the District Court dismissed the applicants’ request for dismissal of the case on account of the alleged breach of their right of access to documents. The indictment was partly dismissed on other grounds but that decision was overturned by the Supreme Court on 10 December 2012.\n\n21.  In January 2013 the Special Prosecutor informed the defence that only documents and data marked by the investigators as relevant were considered to constitute “investigation documents” and that access did not extend to the “full collection of data” or to the collection of documents which had been identified in the Clearwell rough searches. However, the applicants would have access to their own e-mails, as well as to recordings of their own tapped telephone conversations, in so far as these were still stored at the relevant time. The defence was also informed that a complete list of recorded telephone conversations did not exist.\n\n22.  The defence disputed that the above limitations were in compliance with domestic law and the Convention. The Special Prosecutor replied on 22 January 2013, referring to the obligation of the police to consider equally evidence against and in favour of the accused. He noted that an indictment was not accompanied by all investigative documents but only those on which the prosecution based its case, and that all investigation documents were nevertheless listed in the main document file, so that it was clear which documents had not been submitted. Those investigation documents could be reviewed in the premises of the prosecution after the case had been submitted to the court.\n\n23.  At a court session on 24 January 2013 the prosecution submitted a large part of the documents requested by the applicant Hreiðar Már Sigurðsson, as well as transcripts of certain phone calls which had been unknown to the prosecution until after the court proceedings began. On 7 March 2013 the prosecution submitted further evidence requested by the defence, as well as further transcripts of phone calls which it had received after submitting the case to the court.\n\n24.  At a preliminary court session on 21 March 2013 the applicants requested “a summary of all documents and other materials which have been acquired by the police and have not been submitted in the case” or, alternatively, a summary of all documents which had been acquired during the investigation by the police, that had been identified in a Clearwell search programme, and had been given the names “ESS KAU Q Iceland”, “ESS KAU Q Iceland 2” and “KAU KBLUC” and had not been submitted in the case. As a further alternative, they requested a summary of all documents which had been acquired during the investigation, identified using the Clearwell programme and given the aforementioned names, which could be found using 15 specified search words or connections. The prosecution opposed those requests on the ground that such documents did not exist. The District Court, in a ruling of 26 March 2013, dismissed the applicants’ requests on the ground that section 37 § 1 of the Criminal Procedures Act applied only to data which had come into being and were still available but did not oblige the police or the prosecution to prepare documents at the request of the defence. On 4 April 2013 the Supreme Court dismissed an appeal on the ground that the ruling in question could not be appealed against.\n\n25.  In the context of the applicants’ appeal against their conviction, they requested dismissal of the case inter alia on the ground that their right to have access to documentation, guaranteed by Article 70 § 1 of the Constitution and Article 6 of the Convention, had been violated. In its judgment, the Supreme Court noted that the applicants had been invited to access the “aggregate collections of data”. It then observed in relation to the request dismissed by the District Court on 29 May 2012 that it could not be overlooked that the collection of data seized by the police was enormous in scope and that among the data were e-mail communications that by their nature had to concern the financial affairs of a great many customers of Kaupþing and which had to be kept confidential, as well as personal messages concerning the private lives of employees. It further noted that the requests dismissed by the District Court on 26 March 2013 had related to the preparation of specific documents for the applicants rather than access to them. In neither of the District Court’s rulings had the applicants been denied access to specific documents; rather, they had been refused copies of an extensive collection of documents, which they had however been invited to access on the police premises. Thus, the rejection of the requests had not restricted the applicants’ right to access documents.\n\n26.  The Supreme Court finally noted that the applicants had not made any other requests to the District Court for access to documents. It observed that “when an assessment is made as to whether the right of an accused man to access to documents has been restricted ..., the basic condition must be satisfied that a demand concerning that matter has been referred to the courts.” Consequently, it held that there were no grounds for dismissal of the case on the basis of a violation of the right of access to documents.\n\nHearing of witnesses\n\n27.   Shortly after the investigation began, the Special Prosecutor contacted Mr S.S., a British lawyer who had represented Al Thani and his relative and adviser, Sheik Sultan (hereafter “Sultan”), in their dealings with Kaupþing. Representatives of the Special Prosecutor met with Sultan in London in October 2009 and with Al Thani in October 2011, to obtain information about the case. The defence was not notified of these interviews or given an opportunity to participate. In the view of the Special Prosecutor, the interviews did not constitute formal depositions within the meaning of chapter VIII of the Criminal Procedures Act but rather informal questioning within the meaning of section 60 § 2 of the Criminal Procedures Act. The interviews were recorded and the audio recordings as well as written transcripts were included in the evidence submitted by the prosecution to the trial court.\n\n28.  When the case was submitted to the District Court, the prosecution submitted a list of witnesses which it wished to have summoned to testify, including Al Thani and Sultan. On 10 February 2013 the prosecution contacted S.S. by e-mail and asked him to inform his clients of the prosecution’s decision and the court’s wish to hear both of them in person during a hearing in April. S.S. was also informed that his clients could, if they preferred, give evidence by telephone. On 21 February 2013 S.S.’s law firm informed the prosecution that Al Thani and Sultan were prepared to provide short statements confirming what they had previously said during their interviews but that they did not otherwise wish to participate in the proceedings in Iceland. At a court hearing on 7 March 2013, the prosecution informed the District Court that Al Thani and Sultan had refused to testify in court. No further attempts were made by the prosecution or the court to have them testify. The records of the hearing do not indicate that the defence at that point or before the main hearing commented on the witnesses not testifying or made any claims or requests that further attempts be made to summon them.\n\n29.  In their appeals to the Supreme Court against their convictions, the applicants submitted that insufficient attempts had been made to have Al Thani and Sultan testify in court. The Supreme Court considered, however, that the District Court judgment could only be quashed on that basis “if it were shown that [their] testimony ... might have had a significant impact on the conclusion regarding some issue in the case”. It also emphasised that the prosecution would have to bear the adverse consequences of the lack of that evidence.\n\nTelephone tapping\n\n30.  In connection with the investigation of the case, and of other cases involving the applicants which were being investigated at the same time, the Vesturland District Court granted the Special Prosecutor several warrants to tap all phone calls made to and from all phone numbers registered to or being used by the applicants. The applicants’ phones were tapped in the period from 9 to 27 March 2010. The Special Prosecutor informed the applicants by letter of 28 December 2011 that the tapping had taken place and informed them that the records from the phone tapping would be deleted in accordance with section 85 § 1 of the of Criminal Procedures Act.\n\n31.  During the period from February to April 2013, the applicants examined their tapped telephone conversations which were stored by the Special Prosecutor and discovered that among the phone calls were four calls between Hreiðar Már Sigurðsson and his lawyer and one call between Magnús Guðmundsson and his lawyer. Those applicants’ lawyers each wrote to the Special Prosecutor in this connection and also submitted a complaint to the State Prosecutor against the employees at the Office of the Special Prosecutor. The Special Prosecutor replied to Hreiðar Már Sigurðsson’s lawyer, stating that a mistake had been made as the phone calls in question had not been deleted immediately pursuant to section 85 of the Criminal Procedures Act, but that they had since been deleted. He described the phone tapping process as follows. The calls had been recorded with help from the Computer Forensics Division of the Rejkjavík Metropolitan Police; they had been scanned by the investigators, who had at the same time made brief notes about what they regarded as relevant to the investigation of the case; the investigators had been instructed to stop listening to phone calls when it became clear that a defendant was speaking to his defence lawyer and not to record what had been revealed in the conversation up until that point. However, an employee responsible for documenting the phone calls had made the mistake of not mentioning the phone calls in question when writing a memorandum, and as a result they had been omitted from a list of phone calls that should be deleted. The Special Prosecutor emphasised that the phone calls had not been listened to and that confidentiality had been respected.\n\n32.  The State Prosecutor, by letters of 24 April 2013 and 14 February 2014, decided to suspend the investigations into the complaints which had been lodged. In the letter to Hreiðar Már Sigurðsson, it was considered that the explanations provided by the Special Prosecutor were satisfactory; in the letter to Magnús Guðmundsson, it was noted that the tapping had been carried out in accordance with the Criminal Procedures Act, which was based on the premise that it was unavoidable that conversations between defendants and their lawyers would be recorded along with other conversations. It was added that nothing seemed to indicate that the applicant’s conversations had been listened to or used for the purposes of the investigation or in the submission of evidence. It therefore had to be considered that it had been a mistake or accident, and could not be considered to constitute gross negligence or intent.\n\n33.  In their appeals to the Supreme Court against their convictions, the applicants in question referred to the recording of telephone conversations between them and their lawyers. The Supreme Court emphasised that there were no transcripts of any such recorded conversations in the case file, so that it was clear that they had not been used as evidence before the court. It further noted that it was not apparent how the police could arrange their procedures for tapping a defendant’s telephone in any other way, since it could not be known in advance whether the conversation would be with a defence lawyer. Moreover, as to the applicants’ suggestion that parties other than police employees could have ascertained the nature of the conversations, the Supreme Court observed that the police had no authority to assign this task, which involved intrusion into private life, to others. Finally, the Supreme Court noted that no arguments had been presented to the effect that any such recordings had actually affected the investigation of the case or that there could have been a realistic danger of that.\n\nImpartiality\n\n34.  On 8 December 2014 the Supreme Court informed the parties that Á.K., a former Supreme Court judge, would be sitting as an ad hoc judge in the appeal. The Supreme Court received no comments in that respect, but the defence commented on the possible lack of impartiality of another Supreme Court judge, who subsequently withdrew. By e-mail of 19 December 2014, the Supreme Court informed the parties that Á.K.’s wife, Mrs S., had been a member of the Board of the FME until January 2009 and invited them to submit their observations on the matter. Upon a request from one of the defence lawyers, further information on the exact day Mrs S. had left the FME Board was sent to the parties. By 23 December 2014 the Supreme Court had received answers from all the parties, stating that no objections were made as to the participation of Á.K. in the proceedings.\n\n35.  The Government informed the Court in their observations that they had received a statement from Á.K. dated 19 September 2016 in which he stated that his wife, Mrs S., had been appointed Vice-Chair of the Board of the FME on 1 January 2007 and that she had resigned on 25 January 2009. She had confirmed that between 9 December 2008, when the transactions at issue had been sent to the FME, and the date of her resignation, the transactions had been discussed once in a Board meeting, on 19 January 2009, when the director of the FME had announced that a specialist had been appointed to make further inquiries into them; the specialist had handed his report to the FME on 6 March 2009 and the FME had submitted its complaint to the Special Prosecutor on 13 March 2009. Consequently, the matter had never been discussed while Mrs S. had been on the Board. Á.K. further stated that he had not regarded himself as being disqualified from sitting but that he had not wished to sit unless it was clear that the defence had no reservations, and he had therefore requested that the defence be informed of the connection.\n\n36.  The Government had also received a statement from Á.K.’s son, Mr K., dated 19 September 2016, confirmed by a former member of the Winding-Up Committee of Kaupþing, according to which Mr K. had worked in Kaupþing’s legal department from November 2007 until the bank collapsed in October 2008. Shortly after the appointment of the Resolution Committee, Mr K. had started working for the Committee and he had been head of its legal department from December 2008. After the Resolution Committee had been discontinued at the end of 2011 and a Winding-Up Committee had been appointed, Mr K. had taken up the position as head of the legal department of the latter committee, a post which he had held until August 2013. Mr K. noted in his statement that when he had taken the position of head of the legal department of the Resolution Committee, it had been decided that cases concerning criminal investigations and actions for damages against former employees would not form part of the work of the legal division of the Resolution Committee, because he had been an employee of Kaupþing before its collapse; the same applied after the Winding-Up Committee was appointed. These cases were entrusted to other employees who reported directly to the Resolution and Winding-Up Committees. Mr K. thus stated that he had not been involved in any way in the case against the applicants or civil actions against them. He added that there had never been any contracts between him and the said committees with an incentive tied to the recovery of Kaupþing’s assets. Following his resignation in 2013, he had acted as a consultant to the Winding-Up Board but the consultancy agreement had not related to the present case and had not included performance-related payments. Finally, with regard to the applicants’ assertion that the defence had not been notified that he had been head of Kaupþing’s legal department, Mr K. observed that he was personally acquainted with all of the defence lawyers in the case and had worked with three of them. Moreover, he had been in contact with two of them while head of the legal department.\n\nRELEVANT DOMESTIC LAW\n\n37.  The relevant provisions of the Criminal Procedures Act (Law no. 88/2008) are as follows:\n\nSection 6\n\n“1. A judge, including an associate judge, is disqualified from conducting a case if:\n\n...\n\ng. there are other conditions or circumstances which are likely to cast reasonable doubt on his impartiality.”\n\nSection 7\n\n“1. A judge shall be responsible for ensuring his own eligibility to hear a case. Parties may, however, require a judge to recuse himself. In the same manner, the presiding chief judge shall ensure the eligibility of expert associate judges.”\n\nSection 37\n\n“1. The defence attorney must, as soon as possible, obtain a copy of all case documents relating to his client, as well as facilities to examine other materials in the case. The police, however, can deny a defence attorney access to individual documents or other data for up to three weeks after they were created or came into their custody if it is believed that such access would damage the investigation of the case. The police may deny the defence attorney copies of individual documents while the case is being investigated for the same reason. Denial of access may be referred to a judge.\n\n...\n\n3. In addition, the police may deny the defence attorney access to individual documents and other data during the investigation of the case if the interests of the State or the public are at stake, or if the urgent interests of individuals other than his client are at stake, or if communications with authorities in other countries prevent such access. Such denial of access may be referred to a judge.\n\n...\n\n5. The police must give the defence attorney the opportunity to follow the progress of the investigation in so far as possible. The police are to take into account any suggestions the defence attorney may submit as regards individual investigative actions, unless the police consider such suggestions prohibited or irrelevant.”\n\nSection 116\n\n“1. Anybody aged fifteen or older who is subject to Icelandic jurisdiction and is not the defendant or his representative must appear before the court as a witness to respond verbally to questions asked of them about the facts of the case ...\n\n...\n\n4. If the witness is located far from the court or if attending the court would otherwise cause him significant inconvenience, the judge may decide that testimony is to be given during the court session by telephone ot other telecommunications methods, provided that the testimony is given in such a manner that everyone present during the session is able to hear the testimony. This authorisation cannot be applied if the testimony of the witness may be expected to be of substance in the resolution of the case.”\n\nSection 120\n\n“1. The prosecutor shall be responsible for summoning witnesses to the court. The defendant may, however, summon witnesses to the court if he so chooses. ...\n\n2. If necessary, the judge shall summon a witness to the court by means of a written summons issued on his own initiative or at the request of either party. The summons shall state the name and address of the witness, the main reasons for the summons, the name of the court, where and when the testimony is to be given and what the consequences may be if the witness does not attend or comply with his duty in other respects. The prosecutor shall be responsible for the issuance of the summons and such issuance shall be conducted in the same manner as the issuance of the charges, ...”\n\nSection 121\n\n“1. If a witness does not attend the court according to a legitimately issued summons and has not provided a legitimate reason for not doing so, the prosecutor may instruct the police to fetch the witness or to bring the witness before the court at a later date. The police are under an obligation to comply with such instructions from the prosecutor.\n\n...”\n\n38.  According to the Criminal Procedures Act, judicial proceedings can be reopened under certain conditions. Section 228 of the Act states that when a District Court judgment has not been appealed or the time limit to appeal has passed, the Committee on Reopening of Judicial Proceedings can approve a request of a person who considers that he or she has been wrongly convicted or convicted of a more serious offence than he or she committed to reopen the judicial proceedings before the District Court, if certain conditions are fulfilled. The conditions are, inter alia, that there were serious defects in the processing of the case which affected its conclusion (item d). The State Prosecutor can request a reopening to the advantage of the convicted person if he considers that the conditions in paragraph 1 of section 228 of the Act are fulfilled. In accordance with section 229 of the Act, the request for reopening shall be in writing and sent to the Committee on Reopening of Judicial Proceedings. It shall include detailed reasoning on how the conditions for reopening are considered to be fulfilled. According to section 231 of the Act, the Committee on Reopening of Judicial Proceedings decides whether proceedings will be reopened. If a request for reopening is approved the first judgment remains in force until a new judgment is delivered in the case. Section 232 of the Act states that the Committee on Reopening of Judicial Proceedings can accept a request for the reopening of a case which has been finally decided by the Court of Appeal or the Supreme Court and a new judgment will be delivered if the conditions of section 228 are fulfilled.\n\nTHE LAW\n\nALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION\n\n39.  The applicants complained that the Supreme Court had not been independent and impartial, in that (i) the wife of one of its judges had been Vice-Chair of the Board of the FME while it was conducting its investigation into Kaupþing, and (ii) the son of the same judge had had a strong professional affiliation with the bank, in particular having been employed as head of the legal department of Kaupþing after its collapse and in that capacity having brought large civil claims against two of the applicants. The applicants relied on Article 6 § 1 of the Convention, which in so far as relevant reads as follows:\n\n“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ...”\n\n40.  The Government contested that argument.\n\nAdmissibility\n\nThe parties’ arguments\n\n41.  The Government maintained that the applicants had failed to exhaust domestic remedies as they had not challenged Á.K. prior to the delivery of the Supreme Court’s judgment. While acknowledging that under section 7 § 1 of the Criminal Procedures Act, a judge should on his own initiative evaluate the existence of reasons warranting his withdrawal, so that disqualification was not primarily the responsibility of the parties, the Government pointed out that the applicants had been made aware before the main hearing that the judge in question would sit and that his wife had been a member of the Board of the FME until 25 January 2009. They further maintained that information relating to Á.K.’s son’s former position as head of Kaupþing’s legal department had been available and could easily have been obtained by the time the case was heard by the Supreme Court. In that connection, the Government pointed out that the son, Mr K., had been an employee of Kaupþing at the same time as two of the applicants were directors of the bank and that, according to his statement of 16 September 2016, he was personally acquainted with all of the defence lawyers, having studied with three of them and worked with two of them. On that basis, and taking into account the small size of Iceland’s legal community, the Government considered that Mr K.’s connection with Kaupþing should have been known to the defence. The Government accepted, however, that the applicants had not been aware of Mr K.’s consultancy agreement with the bank from 2013.\n\n42.  In the Government’s view the applicants had failed to exhaust domestic remedies, as they had not raised these issues before or during the main hearing. The Government maintained that had a request for withdrawal been made, the Supreme Court would have given it due consideration and decided on the matter. They noted in this respect that one of the other judges initially appointed had withdrawn after an observation from the defence. In their view, the explanation provided by the applicants for not objecting to Á.K. was not consistent with the defence’s comment on that other judge and they also noted that one of the defence lawyers had inquired further about the date of Á.K.’s wife’s resignation before stating that no observations would be made. The Government concluded that the applicants could not reasonably have assumed that an objection would be in vain or detrimental to their case. While considering that a failure to challenge judges may not in general be regarded as a waiver of the right to an impartial tribunal, the Government maintained that such a failure, without justifiable reasons, constituted non-exhaustion of domestic remedies. Finally, the Government submitted that the use of the extraordinary measure of requesting reopening of the case could not be regarded as exhaustion of domestic remedies.\n\n43.  The applicants considered that they had exhausted domestic remedies. They acknowledged that they had not objected to the judge in question despite having been informed of his wife’s position but claimed that they had feared a negative bias if they objected after the judge and his colleagues had not raised and decided on the issue on their own initiative. The applicants pointed out that once they had no longer been dependent on those specific judges, they had filed a petition for extraordinary reopening of the case, inter alia on the ground of Á.K.’s lack of impartiality. They further noted that in the cases of Pfeifer and Plankl v. Austria (no. 10802/84, 25 February 1992, Series A no. 227), and Oberschlick v. Austria (no. 11662/85, 23 May 1991, Series A no. 204), the Court had not considered a failure to object to judges on the ground of their lack of impartiality to constitute a waiver of the right to an impartial tribunal.\n\nThe Court’s assessment\n\n44.  The Court considers at the outset that a distinction must be drawn between the two branches of the applicants’ allegations, and it will accordingly deal with them separately.\n\nLack of impartiality of Á.K. on account of his wife’s membership of the FME Board\n\n45.  The Court does not consider it necessary to decide whether an objection to a judge’s participation in a trial on account of his alleged lack of impartiality constitutes an effective remedy to be exhausted for the purposes of Article 35 § 1 of the Convention, as it considers that this complaint is in any event inadmissible for the reasons given below.\n\n46.  The Court does not consider either that the matter should be regarded as one of waiver of rights in the classic sense of that term as used in its case-law, although it acknowledges that in certain cases similar situations have been examined in the light of the principles relating to waiver (notably Pfeifer and Plankl and Oberschlick, both cited above). Rather, the issue in the present case is whether the applicants, when faced with a situation in which it was arguable that a judge should be disqualified, but he was not unequivocally excluded by law, by not objecting to his participation can be said to have accepted that there were no legitimate reasons to doubt the impartiality of the court (see Smailagić v. Croatia (dec.), no. 77707/13, §§ 34 and 36, 10 November 2015).\n\n47.  In that connection, the Court recalls that in the case of Zahirović v. Croatia (no. 58590/11, §§ 31-37, 25 April 2013) it held in similar circumstances to those of the present case that due to the applicant’s failure to use the opportunity to submit his complaints about, inter alia, a specific judge’s alleged lack of impartiality at the trial stage of the proceedings, it could not conclude that the alleged procedural defect complained of had interfered with the applicant’s right to a fair trial. It consequently declared the applicant’s complaint inadmissible as manifestly ill-founded. It stated in that respect that “when the domestic law offers a possibility of eliminating the causes for concerns regarding the impartiality of the court or a judge, it would be expected (and in terms of the national law required) of an applicant who truly believes that there are arguable concerns on that account to raise them at the first opportunity”. A similar situation arose in Smailagić, cited above, where the Court concluded that, “given the failure of the applicant to use the opportunity to eliminate the concerns as to the lack of impartiality ... at the relevant time ..., and thus to ensure that his rights were respected, without invoking any relevant reason for such an omission, it cannot be considered that he had legitimate reasons to doubt the impartiality of the court.” The Court was therefore prevented from concluding that the alleged procedural defect complained of had interfered with the applicant’s right to a fair trial.\n\n48.  The Court notes that in the present case the applicants do not dispute that under Icelandic law it was possible for them to challenge Á.K.’s participation on the ground at issue – and indeed, they were given an express opportunity to do so – but that they explicitly stated that they had no objection in that respect. Rather, they submit that they had reservations about making an objection as they feared that this might have negative repercussions, given that neither Á.K. himself nor the Supreme Court bench as a whole had considered it necessary for him to withdraw. However, the Court finds that argument speculative and unconvincing. First, it sees no concrete grounds for fearing that the Supreme Court and Á.K. in particular would have adopted a negative attitude towards the applicants merely on account of an objection to Á.K. Second, it agrees with the Government that the argument is seriously weakened by the fact that a query from the defence led to another judge withdrawing.\n\n49.  In the present case, it is clear that the applicants’ lawyers, in full knowledge of the circumstances and the implications, explicitly stated that they had no objection to Á.K.’s participation. In these circumstances, the Court considers that their acceptance of that participation when they were given an express opportunity to challenge it constituted an unequivocal indication that they did not at that time consider Á.K.’s participation to be problematic from the point of view of his impartiality on account of his wife’s former position in the FME. Consequently, the complaint must be declared inadmissible as manifestly ill-founded pursuant to Article 35 §§ 3(a) and 4 of the Convention.\n\nLack of impartiality of Á.K. on account of his son’s role as head of the bank’s legal department\n\n50.  The Court notes that the defense was at no point officially notified of the fact that Á.K.’s son, Mr. K., had held various positions within the legal departments of the bank or of his subsequent role as a consultant. It takes note of the information submitted by the Government that Mr. K. was personally acquainted with all of the defense lawyers in the case and that two of the applicants had been directors of the bank while he was working in its legal department. The Court further takes note of the Government’s submission that in the context of a small legal community there is little doubt that Mr. K.’s position was known to the defense. Nevertheless, the Court is unable to accept that such presumed general knowledge is sufficiently certain to put the defense on notice of a potential issue of lack of impartiality of a judge and it cannot therefore agree that the applicants should have objected to Á.K.’s participation on this ground in order to exhaust domestic remedies, even assuming that such an objection constituted an effective remedy to be exhausted for the purposes of Article 35 § 1 of the Convention. It therefore concludes that the complaint cannot be dismissed for non-exhaustion of domestic remedies. Moreover, it is clear that, contrary to the situation relating to Á.K.’s wife, the defense at no time expressly stated that it had no objection to Á.K.’s participation despite his relationship to Mr. K. The Court therefore considers that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. Moreover, it is not inadmissible on any other ground and it must therefore be declared admissible.\n\nMerits\n\nThe parties’ arguments\n\n51.  The applicants made no allegations of personal bias on the part of Á.K. However, they maintained that Á.K.’s objective impartiality was compromised on account of his son’s role in three specific situations. First, in their initial submissions the applicants pointed out that the Winding-Up Committee had in January 2013 initiated proceedings in the District Court against Hreiðar Már Sigurðsson and Ólafur Ólafsson for damages on account of their participation in the “Al Thani transaction” and maintained that it could not be denied that the outcome of the criminal case might have a substantial influence on the outcome of those proceedings. Second, the applicants submitted that following his resignation in 2013, Mr K. had been engaged as a consultant by Kaupþing’s Winding-Up Committee until mid-2015, as a consequence of which he had been financially dependent on Kaupþing or at least receiving payment of substantial amounts from the bank, which was the alleged “victim” in the criminal proceedings against the applicants, when the case was heard by the Supreme Court and when its judgment was delivered. The defence had been unaware of the consultancy agreement and in the applicants’ view the connection could not be regarded as “remote” as claimed by the Government. Third, the applicants submitted that the fact that Mr K. had been an employee of the bank was a sensitive matter when he was carrying out his duties as head of the legal department following the collapse, and this was underlined by the fact that he had absented himself from meetings of a committee he chaired when cases against former employees were being considered. The applicants accepted that there was no reason to doubt that Mr K. had had nothing to do with the case against them in his capacity as head of Kaupþing’s legal department but stressed that the crucial point was how Á.K. must have appeared. In that respect, referring to the case of Pétur Thór Sigurđsson v. Iceland (no. 39731/98, 10 April 2003), the applicants submitted that it was obvious that an effective defence of former managers or board members of a collapsed bank had to be ready to include whether certain practices had been tolerated and also whether or not the bank’s legal department had participated in or accepted certain practices. Such a defence became extremely difficult, if not impossible, when one of the judges was closely connected to a senior employee in the bank’s legal department in the years leading up to its collapse and when the offences charged were committed.\n\n52.  The Government asserted firstly that there was no question of any lack of subjective impartiality on the part of Á.K. and that it was only necessary to determine whether the circumstances were such that serious doubts arose as to his objective impartiality. As to the applicants’ concerns regarding Mr. K., the Government noted that these related to the claim that as head of Kaupþing’s legal department from 2008 to August 2013 he had been responsible for managing a sizeable lawsuit against two of the applicants. They considered that Mr K.’s previous position did not constitute a connection that would in itself disqualify Á.K. from sitting; in the Government’s view, in order for fear of lack of impartiality to be objectively justified, it would have to be shown that Mr K. was involved in or had some financial or other ties to the case and that it would have been reasonable to assume that the outcome mattered to him personally. According to the Government, it was not clear how much interest Kaupþing had in the outcome of the case, if any, and even if it might be regarded as having some interest, that interest did not automatically extend to Mr K. as an employee; he was neither the owner nor the main representative of Kaupþing. Moreover, he had resigned from his position around 16 months before the case was heard by the Supreme Court, and his agreement to continue to work as an adviser to the Winding-Up Committee in a specific matter unrelated to the case or other cases against the applicants was a remote connection. The Government referred to the statement from Mr K. which they had submitted and which they regarded as evidence that he had at no point been involved in any cases against the applicants, criminal or civil. Moreover, the outcome of the criminal case could not have affected him financially or otherwise. In conclusion, the Government maintained that the applicants could not entertain legitimate doubts as to Á.K.’s impartiality on this account. They referred in that respect to Walston v. Norway ((dec.), no. 37372/97, 11 December 2001).\n\n53.  The Government acknowledged that appearances may be of a certain importance when assessing objective impartiality but pointed out that the only evidence cited by the applicants as to Mr K.’s substantial connection to the case was an announcement of his resignation from Kaupþing and a press article about supposed fixed payments that several current and former employees of Kaupþing would receive if the bank were to reach a composition agreement. In the Government’s view, this information alone could not be regarded as sufficient to raise questions in the minds of the applicants as to a lack of impartiality on the part of Á.K.\n\n54.  The Government added that they did not agree with the applicants’ assertion that Mr K.’s consultancy agreement with Kaupþing had made him “financially dependent” on it and that he was to receive “substantial amounts” and maintained that there was no evidence of that. At the time the case was heard by the Supreme Court, Mr K. held a position in an organisation unrelated to Kaupþing and the consultancy agreement had nothing to do with the case or the applicants and the payments to be made had no relation with the outcome of the case. There was no indication that the connection had been capable of putting financial pressure on Á.K. Finally, the Government submitted that nothing in the case file indicated that the defence strategies referred to by the applicants were an option.\n\nThe Court’s assessment\n\nThe general principles\n\n55.  For the general principles relating to the impartiality of a tribunal, the Court refers to the judgment in the case of Denisov v. Ukraine [GC] (no. 76639/11, §§ 61-63, 25 September 2018; see also Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13, 57728/13 and 74041/13, §§ 145-49, 6 November 2018, and in the criminal context, Kyprianou v. Cyprus [GC], no. 73797/01, §§ 118-21, 15 December 2005):\n\n“61. As a rule, impartiality denotes the absence of prejudice or bias. According to the Court’s settled case-law, the existence of impartiality for the purposes of Article 6 § 1 must be determined according to (i) a subjective test, where regard must be had to the personal conviction and behaviour of a particular judge – that is, whether the judge held any personal prejudice or bias in a given case; and (ii) an objective test, that is to say, by ascertaining whether, quite apart from the personal conduct of any of its members, the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality (see, among other authorities, Micallef v. Malta [GC], no. 17056/06, § 93, ECHR 2009, with further references).\n\n62. However, there is no watertight division between subjective and objective impartiality, as the conduct of a judge may not only prompt objectively held misgivings as to the tribunal’s impartiality from the point of view of the external observer (the objective test) but may also go to the issue of the judges’ personal conviction (the subjective test) (see Kyprianou v. Cyprus [GC], no. 73797/01, § 119, ECHR 2005XIII). Thus, in some cases where it may be difficult to procure evidence with which to rebut the presumption of the judge’s subjective impartiality, the requirement of objective impartiality provides a further important guarantee (see Pullar v. the United Kingdom, 10 June 1996, § 32, Reports of Judgments and Decisions 1996III).\n\n63. In this respect, even appearances may be of a certain importance, or in other words, “justice must not only be done, it must also be seen to be done”. What is at stake is the confidence which the courts in a democratic society must inspire in the public (see Morice v. France [GC], no. 29369/10, § 78, ECHR 2015).”\n\n56.  As to the subjective test, the personal impartiality of a judge must be presumed until there is proof to the contrary (Dorozhko and Pozharskiy v. Estonia, nos. 14659/04 and 16855/04, § 51, 24 April 2008; see also Kyprianou, cited above, § 119, with further references). As concerns the objective test, it must be determined whether, quite apart from the judge’s conduct, there are ascertainable facts which may raise justified doubts as to his or her impartiality. This implies that, in deciding whether in a given case there is a legitimate reason to fear that a particular judge lacks impartiality, the standpoint of the person concerned is important but not decisive. What is decisive is whether this fear can be held to be objectively justified (Dorozhko and Pozharskiy, cited above, § 52, referring to Micallef, cited above, § 74; see also Ferrantelli and Santangelo v. Italy, 7 August 1996, § 58, Reports 1996-III, and Wettstein v. Switzerland, no. 33958/96, § 44, ECHR 2000XII).\n\n57.  The objective test has been applied in numerous cases where a judge had either been involved in the same proceedings in a different capacity or had exercised dual functions in separate proceedings involving one of the parties or had links with third parties who had been or were connected in some way with the proceedings.\n\n58.  Thus, in the case of Wettstein, cited above, the Court held that there had been a violation of Article 6 § 1 of the Convention in circumstances where the judge in question had acted in separate appeal proceedings as representative of the party’s opponent. It laid emphasis on the fact that the proceedings, although there was no material link between them, had been pending simultaneously, so that there was an overlap in time. Conversely, in the case of Puolitaival and Pirttiaho v. Finland (no. 54857/00, 23 November 2004), the Court held that there had been no violation where the (part-time) appeal court judge in question was a partner in the firm which had represented the appellant’s opponent in separate proceedings. The Court distinguished the case from Wettstein essentially on the basis that the dual functions of judge/representative had not overlapped in time and although the two sets of proceedings had been contemporaneous for a year and had been pending simultaneously before the Court of Appeal for two or three months, the judge’s role as a representative during that time had been limited to drafting and signing the notice of appeal in the first set of proceedings, the case having been otherwise handled by another lawyer. In Steck-Risch v. Liechtenstein (no. 63151/00, 19 May 2005), the Court considered that the fact that a Constitutional Court judge’s partner in a law firm had been the presiding judge when the case was examined by the Administrative Court did not constitute grounds to justify objective fears as to lack of impartiality, taking into account in particular that neither of them had exercised dual functions, that their relationship was purely professional without any interdependence and that there was no indication that they had shared any substantial information about the applicant’s case. Finally, in Mežnarić v. Croatia (no. 71615/01, 15 July 2005), M.V., one member of a panel of five judges of the Constitutional Court which had dismissed the applicant’s constitutional complaint in December 2000 had represented the other party at an early stage of the same proceedings, some nine years before, his participation being however limited to lodging one set of submissions, responding to the applicant’s arguments; he had subsequently been replaced by his daughter, who had acted for the other party until 1996. The Court concluded that there had been a violation of Article 6 of the Convention. While it recognised that M.V.’s previous involvement had been both minor and remote in time, and that his dual function had in fact related to different legal issues, it placed decisive weight on the fact that M.V. had acted in both capacities in the course of the same proceedings. This, reinforced by the involvement of his daughter, had created a situation which was capable of raising legitimate doubts about his impartiality.\n\n59.  With regard to the specific issue of a judge’s relative being connected in one way or another to the proceedings with which the judge is dealing, the Court recalls that in the case of Dorozhko and Pozharskiy, cited above, it found that there had been a violation of Article 6 § 1 of the Convention on account of the lack of objective impartiality of a judge whose husband had headed the criminal investigation leading to the trial over which she had presided, notwithstanding the Government’s assertion that his role had been of a formal nature. Similarly, in Huseyn and Others v. Azerbaijan (nos. 35485/05, 45553/05, 35680/05 and 36085/05, 26 July 2011), a violation was found on account of the fact that a judge’s brother had initially been a member of the investigation team working on the applicants’ criminal case and that they had therefore been de facto involved in the same criminal case concerning the same defendants and the same criminal charges, notwithstanding any regrouping of defendants into separate sets of proceedings and formal reassignment of case numbers that had taken place in the meantime; it was also taken into account that the majority, if not all, of the main incriminating evidence subsequently used against the applicants at the trial had been collected by the investigation team prior to the date on which the brother had left the investigation. Moreover, the fact that the son of another judge had been an employee of the State Prosecutor’s Office and directly subordinate to the prosecutor who had served as a head of the investigation team in the applicants’ case, despite never having been assigned to work on the case, and however insignificant and remote the link of the judge with the prosecution might have been considered if viewed separately, in the specific context of the case at least compounded the justified fears as to lack of impartiality arising from the situation of the first judge. Finally, in the case of Pétur Thór Sigurðsson, cited above, the Court found a violation of Article 6 § 1 on the ground that, irrespective of whether the Supreme Court judge in question or her husband had any direct interest in the outcome of the case between the applicant and the National Bank, “there was at least the appearance of a link between the steps taken by [the judge] in favour of her husband and the advantages he obtained from the National Bank”, so that “the judge’s involvement in the debt settlement [concerning her husband], the favours received by her husband and his links to the National Bank were of such a nature and amplitude and were so close in time to the Supreme Court’s examination of the case that the applicant could entertain reasonable fears that it lacked the requisite impartiality.”\n\nApplication of those principles to the present case\n\n60.  The Court observes firstly that neither Á.K. nor Mr K. exercised dual functions in the same proceedings and secondly that neither of them was directly involved in both sets of proceedings. Thus, unlike in the cases referred to above, Mr K. did not participate in any capacity in the criminal proceedings in which his father sat as a Supreme Court judge. Nevertheless, Mr K., in his role as head of the bank’s legal department, had a connection with the civil proceedings brought by the bank against two of the applicants. Even if he had no direct involvement in those proceedings, which according to his letter submitted by the Government were dealt with outside the legal department, and even if he had no personal or financial interest in the outcome of the proceedings, his position as a senior legal adviser within the bank meant that he could at least have appeared to retain a certain formal responsibility for the proceedings. Moreover, such a perception could have been compounded by the fact that he was chairman of the committee set up to deal with, inter alia, damages claims against former directors of the bank, notwithstanding his efforts to distance himself from them by absenting himself from meetings where cases against former staff members were to be discussed. In the Court’s view, the internal measures taken within the bank to avoid any direct involvement of Mr K. in civil proceedings arising out of the bank’s collapse were not sufficient to make up for the fact that, for the purposes of appearances, he was formally responsible for the legal affairs of the bank at a time when it was pursuing a civil action against two of the applicants. On that basis, the applicants could legitimately have regarded him as a representative of their “opponent” – the bank – in the civil proceedings. While the bank was not a party to the criminal proceedings and the proceedings were not materially related, the charges clearly concerned acts of which the bank was a victim and the two sets of proceedings had their origins in the same events (see, in that connection, Indra v. Slovakia, no. 46845/09, 1 February 2005, in which the Court found that there had been a violation of Article 6 § 1 on account of the fact that the judge in question had previously sat in related proceedings, considering that it was necessary to take into account that both proceedings referred to the same set of facts). Indeed, from the applicants’ standpoint they were defendants in two sets of parallel proceedings in which their respective criminal and civil responsibility for the essentially same conduct was at issue.\n\n61.  It is true that Mr K. no longer held any position in the bank when the case was before the Supreme Court, of which his father was a judge (cf. Walston, cited above, where the judge in question had left the employment of the bank which was a party to the proceedings before him five years earlier). Nevertheless, Mr K worked at the legal department of the bank from 2007 and was subsequently head of the legal departments of its Resolution Committee and Winding-Up Committee, from 2008 until 2013, and thus during the time of the criminal investigation and the trial before the District Court, as well as during the civil proceedings, and he continued in the role of consultant to the bank while the case was before the Supreme Court. In these circumstances, the Court considers that the family link between Mr K. and Á.K. was sufficient to create objectively justified fears as to Á.K.’s impartiality as a judge in the criminal appeal proceedings against the applicants. Á.K. was acting as a judge in a criminal case concerning transactions which had taken place within a bank with which his son had had close connections as a senior employee both before and after its collapse and which had been the opposing party in civil proceedings brought against two of the applicants while he was head of its legal department. Moreover, the fact that Mr K. was in receipt of payments as a consultant for the bank after having left its employment is an additional element which must be taken into account, especially in view of the fact that the consultancy was contemporaneous with the Supreme Court proceedings. Finally, the Court considers that all of the applicants could legitimately harbour doubts as to Á.K.’s objective impartiality, although the civil proceedings in question were brought against only two of them.\n\n62.  It follows that there has been a violation of Article 6 § 1 of the Convention in this respect.\n\nALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3(b) OF THE CONVENTION\n\n63.  The applicants complained that they had not been allowed adequate time and facilities for the preparation of their defence and that they had not had a fair hearing because they had not had access to all the evidence in the case against them. They submitted in particular that they had been denied access to the documents of the case as well as to a list of documents, during both the investigation and the trial at both instances. They maintained that no one had reviewed the prosecution’s cherry-picking of the documents submitted to the court and that they had been denied the possibility of searching using the electronic system applied. In their view, the principle of equality of arms required that they should have had the same opportunities as the prosecution to access and select evidence from the collection of documents gathered by the police during the investigation. They relied on Article 6 §§ 1 and 3(b) of the Convention, which is so far as relevant read as follows:\n\n“1.  In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing ... by [a] ... tribunal ...\n\n...\n\n3.  Everyone charged with a criminal offence has the following minimum rights:\n\n...\n\n(b)  to have adequate time and facilities for the preparation of his defence ...”\n\n64.  The Government contested that argument.\n\nAdmissibility\n\n65.  The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3(a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nMerits\n\nThe arguments of the parties\n\n66.  The applicants submitted that the prosecution had applied advanced search facilities, using the Clearwell software, to identify evidence from the “full collection of data” – which was “enormous in scope” – which it wished to examine more closely in order to choose which parts it would submit to the court. The applicants and their lawyers, by contrast, had not been allowed to conduct their own searches, although this would have been possible with very limited effort, the software being easy and fast to apply. Moreover, access to lists of the documents “tagged” as a result of the prosecution’s search had also been refused. As a result, the defence had been denied the right of access to evidence and the principle of equality of arms had been violated. The defence had been entirely dependent on access being granted by the prosecution, as it had had no other way of obtaining access to any of the transaction documents or indeed any other Kaupþing documents.\n\n67.  The applicants further maintained that the evaluation of the evidence identified through the Clearwell search had been made by the prosecution alone, the defence being excluded from this “filtering” process. According to them, the defence was “to some extent invited in” once this assessment had taken place, lists of the “investigation documents” having been provided to the defence. However, while this had enabled the defence to identify evidence which it wished to be submitted to the court, since the prosecution had already selected evidence to be submitted there was practically nothing further for the defence to request. In the applicants’ view, although they had access to the “investigation documents”, it was far too late and insufficient at that stage to invite the defence to examine evidence; in the earlier search and selection process evidence that might have been of importance to the defence had been left in the dark and had never been known to or assessed by the defence.\n\n68.  In the applicants’ view, a de facto monopoly of the prosecution in using advanced digital search facilities, excluding the defence from searching with keywords or combinations of potential importance to the defence, would undermine the fundamental rights of the accused. For the applicants, if the prosecution feared that the data contained sensitive personal information or matters involving public interests, it would have to filter such data and the defence would have to have an opportunity to contest the filtering. It was utterly disproportionate to deny the defence any access at all on account of such fears. The applicants maintained that in the present day the defence was very often dependent on the cooperation of the police, as it could only to a very limited extent conduct its own investigations and had to request the police to hear witnesses, conduct technical inspections and go through vast quantities of documents not accessible to the defence. The applicants submitted that the practice of the Icelandic police and courts could lead to substantially wrong decisions in serious criminal cases, and referred in that connection to another case arising out of the financial crisis, in which the incorrectness of the prosecution’s claim that a loan had been granted without security had only been discovered after the defence had finally been allowed to search in certain e-mails.\n\n69.  In conclusion, the applicants maintained that they had been denied access to the “full collection of data” (including the data “tagged” using the Clearwell searches but not included in the investigation file), and that there had been no proper judicial review of the scope, necessity and proportionality of the limitation.\n\n70.  The Government maintained that the applicants had had access to all evidence submitted in court by the prosecution and that at no stage of the trial had the prosecution referred to any evidence which the applicants had not had a chance to review. Furthermore, given the length of the proceedings, the applicants had had adequate time to review and assess that evidence before the main hearing. In addition, the applicants had been afforded access to all the “investigation documents”, that is the materials which were regarded by the Special Prosecutor as relevant during the investigation and which were marked as part of the investigation file. The applicants had also been granted access to all seized e-mails that had passed through their own accounts and their recorded phone calls that were still stored by the Special Prosecutor. Finally, the applicants’ requests during the proceedings before the District Court for submission of certain specified documents had been met to the extent that they were held by the Special Prosecutor or were easily available. There was nothing to indicate that the prosecution had withheld material evidence in its possession, and the applicants had not specified any such evidence, which distinguished the case from Natunen v. Finland (no. 21022/04, 31 March 2009) and Rowe and Davis v. the United Kingdom ([GC], no. 28901/05, 16 February 2000).\n\n71.  The Government accepted that the applicants had not been given access to the “full collection of data”, that is all data gathered during the investigation and held by the Special Prosecutor. In that connection, they submitted that the Special Prosecutor had gathered masses of data, including by the use of intrusive measures. The collection of data had been exceptionally extensive, as the Special Prosecutor had at the time been investigating more than one case relating to Kaupþing. The Government emphasised that included in the Clearwell folders were a multitude of documents unrelated to the case, and among the seized items were hard drives containing e-mails, personal drives and records of phone conversations of numerous Kaupþing and KBL employees, as well as the personal laptops of several individuals. The data in question were by their nature likely to contain sensitive personal information, such as financial information, and giving access would have violated the privacy of other individuals. The greater part of the “full collection of data” had not been regarded as relevant to the case by the investigators: thus, the prosecution had submitted some 6,300 pages to the District Court, whereas the e-mails were estimated to number around 20 million.\n\n72.  In the Government’s view, data irrelevant to a case could not be automatically defined as evidence, despite having been gathered by the police during an investigation. In any investigation the police could obtain access to all sorts of data and some kind of assessment had to take place before data became part of an investigation file; it was normal that the initial assessment of what constituted potential evidence was made by the investigating or prosecuting authorities. The Government observed that in the light of the legal obligations resting on those authorities to take into consideration facts both for and against a suspect, that assessment was already up to a certain point entrusted to them. The Government also considered that the need for such an assessment was even stronger when intrusive measures had been used, in particular when seized items such as electronic devices had to be searched further for information but were likely to contain data unrelated to the case.\n\n73.  The Government likened the situation to a search of premises of a third party. In their view, had the Special Prosecutor gone to the premises of Kaupþing or KBL and carried out the necessary searches in their computer systems there, there would have been no question that the applicants would only have had access to those documents extracted and defined as investigation documents. Thus, although the searches had taken place in the premises of the Special Prosecutor, the information obtained could not be regarded as part of the investigation file and accessible to the applicants without limitation. Allowing the defence to conduct a search independently would have equated to giving it investigative authority which by law was restricted to the police. During the investigation the defence could have requested that the Special Prosecutor search for specific information related to the case and such a request would have had to be considered pursuant to section 37 § 5 of the Criminal Procedures Act.\n\n74.  The Government noted that, as established in the Court’s case-law, the right to access evidence is not absolute and in certain circumstances limitations can be necessary, such as withholding evidence to preserve the fundamental rights of another individual or to safeguard important public interests. While the Government did not consider that evidence had been withheld in the present case, they submitted that the Special Prosecutor’s decision to deny access to the “full collection of data” was based on similar considerations, in particular the protection of the rights of other individuals.\n\n75.  The Government considered that for the Special Prosecutor to be able to determine whether access should be allowed to data outside the investigation file, the applicants would have had to specify further which data they wanted access to and give reasons for that access. However, it appeared that the only specific requests made by the defence which had been denied were to access the collections of e-mails and tapped telephone calls of individuals other than the applicants which had not been put in the investigation file. It was thus unclear whether the Special Prosecutor would, or would not, have allowed access to other specified data.\n\n76.  The Government referred to the safeguards incorporated in section 37 §§ 1 and 3 of the Criminal Procedures Act, providing that the refusal of the investigating authorities of a request for copies of case documents or facilities to examine other materials can be referred to a judge. In that respect, the Government noted that the defence could at any stage of the proceedings have asked the District Court to rule on the denial of access to the “full collection of data” or to any other specific data to which they had not been granted access. However, they had failed to do so, as a result of which no assessment of the limitation of their right of access had ever been made by the judicial authorities. The Government recognised that the defence had on at least three occasions made requests to the court to obtain copies of certain other documents and materials, all of which had been rejected. As to other limitations on access, the Supreme Court had stated that “the basic condition must be satisfied that a demand concerning [access to documents] has been referred to the courts”. This possibility of obtaining a judicial assessment of the matter distinguished the case from Natunen, cited above, and Fitt v. the United Kingdom ([GC], no. 29777/96, ECHR 2000II). Furthermore, according to the Government the case file did not indicate that before the Supreme Court or at any stage of the proceedings the applicants had pointed to any specific evidence which they believed was being withheld and that could have led to their exoneration.\n\n77.  As to the courts’ rejection of the defence requests for copies of certain documents, the Government submitted that this had not restricted the applicants’ rights under Article 6, as this “aggregate collection of data” had been accessible to the defence in the premises of the Special Prosecutor and the defence had had the opportunity to ask for it to be submitted as evidence after reviewing it. It was on this basis that the District Court had rejected the applicants’ request on 29 May 2012.\n\n78.  The Government objected to the applicants’ contention that the Special Prosecutor had made any statements about allowing access to all gathered data, maintaining that his statement and the District Court’s ruling were clear that the offered access related to the specified data indicated by the defence. That access had indeed been granted. Moreover, the District Court’s ruling rejecting the request for copies of certain data could not be regarded as ordering the Special Prosecutor to allow access to the “full collection of data”. While the court had made a statement about the general obligation of the prosecution to grant the defence access to data gathered by the police, that statement had clearly been made in connection with the defence’s requests for copies of certain data.\n\n79.  In its ruling of 26 March 2013 the District Court had rejected the defence’s request for copies of specified summary lists of seized data on the ground that such summaries did not exist and the defence’s right to obtain copies of documents in a case did not extend to the police being obliged to prepare documents at the request of the defence. While the Supreme Court had held that the ruling could not be appealed against, it had nonetheless examined whether the refusal of the police had constituted a breach of the applicants’ rights and had concluded that it had not. In the Government’s submission, the refusal to provide specified summaries did not constitute a denial of access to evidence held by the police; furthermore, it was in fact impossible to make or review the requested summary list, as a summary list of only the e-mails would have constituted around 400,000 pages, and a summary list of documents in the Clearwell folders would have totalled around 15,000 pages. Allowing a new search would have meant conducting a part of the investigation again.\n\n80.  In the Government’s view, the detailed files on the seized items which were among the evidence submitted to the court gave a sufficient overview of the data collected by the police and their rough content, and by reviewing them, with the knowledge the defence had of the case, the defence could easily have formed more specific claims for access to certain data.\n\n81.  The Government disputed the applicants’ statement that the lack of access to the collected documents had been repeatedly brought to the courts’ attention without them being heard on the matter, pointing out that the courts had examined the issue when it had been brought before them by the proper means. The applicants could not have expected the courts to order the Special Prosecutor to allow access to the “full collection of data” without such a request being brought before them. Moreover, the applicants had not pointed to specific data, documents or materials being held from them, contrary to the situation in Leas v. Estonia (no. 59577/08, 6 March 2012). Instead, the defence had insisted on access to the “full collection of data”, which was impossible to comply with.\n\n82.  As to whether the lack of access to the “full collection of data” was sufficiently counter-balanced by the procedures followed by the judicial authorities, the Government reiterated that the applicants had had the chance to review and comment on all the evidence adduced by the prosecution and that there had never been any refusal by the courts to order disclosure of certain evidence. The defence had had an opportunity equal to that of the prosecution to submit evidence and its requests to the prosecution to submit certain evidence had been satisfied when possible. The applicants had not pointed to any documents that the Special Prosecutor had failed to provide that would have affected the outcome of the case. In addition to the submitted evidence, the defence had been provided with a detailed list of other investigative documents which were available on request and among the submitted evidence had been overviews of seized items and their rough content, giving the applicants an opportunity to at least delimit their claims for access to more specific data.\n\n83.  The Government submitted that the principle of equality of arms did not entail that the defence should be given the same powers as the police to investigate criminal cases. The point was not how easy a given investigation method was but rather how far the accused should be afforded the same authorities and devices as the police and prosecution to search in collections of sensitive and unrelated data belonging to and regarding other individuals. Furthermore, the Government noted that there was nothing to indicate that the applicants had requested or been repeatedly denied the right to conduct their own search using Clearwell, but were in any event of the opinion that the Special Prosecutor could not have acceded to such a request, at least not without a court order. To compensate for the defence’s lack of investigative authority, section 37 § 5 of the Criminal Procedures Act provided defence lawyers with the possibility of making suggestions as to investigative actions, and the applicants’ lawyers could thus have requested that the seized data be searched for certain information or using specific keywords. A refusal could have been brought before the District Court. However, the case file did not disclose any such request. The defence had requested, inter alia, copies of lists of documents that would be found by using a certain keyword search but in order to comply with that request the Special Prosecutor would have had to import all data in the Clearwell folders into the system again and run a fresh search from which a list could be generated. The defence’s request for such lists had been rejected by the District Court. In the absence of arguments from the defence specifying what evidence could be found in the lists, the Government did not consider that that rejection amounted to a denial of access to evidence.\n\n84.  The Government denied that summary lists of the documents in the three folders existed; such lists had not been made at the time of the searches and the data were no longer in the Clearwell system when the defence requested lists. The Government were unable to elaborate on the case referred to by the applicants, as it was pending on appeal before the Supreme Court but in their view the crucial point in that case was that the defence had asked for access to specific e-mail accounts. With regard to the applicants’ suggestion that the prosecution should filter data if there were fears it contained personal information, the Government noted that this was in fact what had happened in the present case. The defence could have contested that filtering before the District Court. In conclusion, the Government maintained that to regard all seized electronic data automatically as evidence would be highly impractical, as the police would be unable to search collections of data without the entire collection becoming available to the accused.\n\nThe Court’s assessment\n\nThe general principles\n\n85.  The principles relating to the right of the defence to have access to evidence in the possession of the prosecution were reiterated in the judgment of Van Wesenbeeck v. Belgium (nos. 67496/10 and 52936/12, §§ 67-68, 23 May 2017), as follows:\n\n“67. In this context the Court reiterates that it is a fundamental aspect of the right to a fair trial that criminal proceedings, including the elements of such proceedings which relate to procedure, should be adversarial and that there should be equality of arms between the prosecution and the defence. The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and to comment on the observations filed and the evidence adduced by the other party (see Jasper v. the United Kingdom [GC], no. 27052/95, § 51, 16 February 2000; Rowe and Davis v. the United Kingdom [GC], no. 28901/95, § 60, ECHR 2000II; Fitt v. the United Kingdom [GC], no. 29777/96, § 44, ECHR 2000II; Edwards and Lewis v. the United Kingdom [GC], nos. 39647/98 and 40461/98, §§ 46 and 48, ECHR 2004X; and Öcalan v. Turkey [GC], no. 46221/99, § 146, ECHR 2005IV). In addition Article 6 § 1 requires that the prosecution authorities should disclose to the defence all material evidence in their possession for or against the accused (see Jasper, Rowe and Davis, Fitt, and Edwards and Lewis, cited above).\n\n68. That having been said, the entitlement to disclosure of relevant evidence is not an absolute right. In any criminal proceedings there may be competing interests, such as national security or the need to protect witnesses at risk of reprisals or keep secret police methods of investigation of crime, which must be weighed against the rights of the accused. In some cases it may be necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest. However, only such measures restricting the rights of the defence which are strictly necessary are permissible under Article 6 § 1. Moreover, in order to ensure that the accused receives a fair trial, any difficulties caused to the defence by a limitation on its rights must be sufficiently counterbalanced by the procedures followed by the judicial authorities (see Jasper, cited above, § 52; Rowe and Davis, cited above, § 61; Fitt, cited above, § 45; and Edwards and Lewis, cited above, §§ 46 and 48; see also AlKhawaja and Tahery, cited above, § 145).”\n\n86.  The Court further specified in Natunen, cited above (§§ 42-43) that:\n\n“42. ... Article 6 § 3 (b) guarantees the accused “adequate time and facilities for the preparation of his defence” and therefore implies that the substantive defence activity on his behalf may comprise everything which is “necessary” to prepare the main trial. The accused must have the opportunity to organise his defence in an appropriate way and without restriction as to the possibility to put all relevant defence arguments before the trial court and thus to influence the outcome of the proceedings (see Can v. Austria, no. 9300/81, § 53, Commission’s report of 12 July 1984, Series A no. 96, and Moiseyev v. Russia, no. 62936/00, § 220, 9 October 2008). Furthermore, the facilities which should be enjoyed by everyone charged with a criminal offence include the opportunity to acquaint himself, for the purposes of preparing his defence, with the results of investigations carried out throughout the proceedings (see C.G.P. v. the Netherlands (dec.), no. 29835/96, 15 January 1997, and Galstyan v. Armenia, no. 26986/03, § 84, 15 November 2007).\n\n43. Failure to disclose to the defence material evidence, which contains such particulars which could enable the accused to exonerate himself or have his sentence reduced would constitute a refusal of facilities necessary for the preparation of the defence, and therefore a violation of the right guaranteed in Article 6 § 3 (b) of the Convention (see C.G.P., cited above). The accused may, however, be expected to give specific reasons for his request (see Bendenoun v. France, 24 February 1994, § 52, Series A no. 284) and the domestic courts are entitled to examine the validity of these reasons (see C.G.P., cited above).”\n\nApplication of those principles to the present case\n\n87.  As the requirements of Article 6 § 3 are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 § 1 of the Convention, the Court will examine the complaint from the point of view of these two provisions taken together (see Murtazaliyeva v. Russia [GC], no. 36658/05, § 90, 18 December 2018).\n\n88.  The Court notes that there were several collections of documents/data: the “full collection of data” which encompassed all the material obtained by the prosecution (and included as a sub-category data “tagged” as a result of the Clearwell searches using specified keywords but not subsequently included in the investigation file); the “investigation documents”, identified from that material by means of further searches and manual review as potentially relevant to the case; and the “evidence in the case”, that is the material selected from the “investigation documents” and actually presented to the District Court by the prosecution. It is undisputed that the defence was provided with the “evidence in the case” and thus no issue arises of use of evidence by the prosecution which was not disclosed to the defence. It is also undisputed that the defence was given an opportunity to consult the “investigation file” containing material which had not been submitted to the court, a list of which was submitted in the District Court proceedings; while the Special Prosecutor had refused to provide copies of some of that material, the Supreme Court confirmed that it was sufficient that the defence had access to it in his premises. The Court therefore considers that no issues of denial of access to evidence arise in this respect.\n\n89.   The applicants’ complaint focuses rather on the fact that the defence did not have access to the “full collection of data”. While the Government do not consider that data to constitute “evidence” for the purposes of the case, the applicants maintain that it may have contained evidence in their favour and that the denial of access to it breached the principle of equality of arms, in particular as the prosecution selected the material it considered relevant to the case without being subject to any control. They maintain moreover that there were no technical obstacles to allowing them to conduct their own search of the “full collection of data” using the Clearwell technology. The Government, on the other hand, refer to the mass of data involved and to the confidential nature of certain information, as well as to the failure of the applicants to specify what evidence might have been relevant to their defence. The issue in the case is thus whether the defence had a right to obtain access, on the one hand, to the mass of information collected indiscriminately by the prosecution and not included in the investigation file, and on the other hand to the “tagged” data obtained by Clearwell searches, in order to identify potentially disculpatory evidence.\n\n90.  The Court accepts that by its nature the “full collection of data” inevitably included a mass of data which was not prima facie relevant to the case. Moreover, it can accept that when the prosecution is in possession of a vast volume of unprocessed material it may be legitimate for it to sift the information in order to identify what is likely to be relevant and thus reduce the file to manageable proportions. It considers nevertheless that in principle an important safeguard in such a process would be to ensure that the defence is provided with an opportunity to be involved in the definition of the criteria for determining what may be relevant. In the present case, however, the applicants did not point to any specific issue which they suggested could have been clarified by further searches, and in the absence of such specification – which was open to them under section 37 § 5 of the Criminal Procedures Act – the Court has difficulty in accepting that a “fishing expedition” of this kind would have been justified. In that respect, the data in question were more akin to any other evidence which might have existed but had not been collected by the prosecution at all than to evidence of which the prosecution had knowledge but which it refused to disclose to the defence. Thus, while the Court reiterates that the prosecution authorities should disclose to the defence all material evidence in their possession for or against the accused, and indeed the prosecution in the present case had a duty under domestic law to take into consideration facts both for and against a suspect – in line with the Court’s own case-law –, the prosecution was not in fact aware of what the contents of the mass of data were, and to that extent it did not hold any advantage over the defence. In other words, it was not a situation of withholding evidence or “non-disclosure” in the classic sense.\n\n91.  The situation is different with regard to the data “tagged” as a result of the initial Clearwell searches. These data were reviewed by the investigators, both manually and by means of further Clearwell searches, in order to determine which material should be included in the investigation file. While here again the excluded material was a priori not relevant to the case, this selection was made by the prosecution alone, without the defence being involved and without any judicial supervision of the process. In that connection, the Court recalls that “a procedure, whereby the prosecution itself attempts to assess the importance of concealed information to the defence and weigh this against the public interest in keeping the information secret, cannot comply with the above-mentioned requirements of Article 6 § 1” (Rowe and Davis, cited above, § 63). Moreover, the defence was denied lists of the documents – and in particular the “tagged” documents – on the ground that they did not exist and that there was no obligation to create such documents, and reference was also made to the technical obstacles to remigrating the data and conducting new searches, given the volume in question. As to the denial of lists, the Court has no reason to question the finding of the Supreme Court that under domestic law there was no obligation on the prosecution to create documents which did not already exist. It notes, however, that it appears that further searches in the data would have been technically rather straightforward and it considers that in principle it would been appropriate for the defence to have been afforded the possibility of conducting – or having conducted – a search for potentially disculpatory evidence. While it is sensitive to the privacy issues raised by the Government, the Court does not consider that there were insurmountable obstacles in that respect. It thus finds that any refusal to allow the defence to have further searches of the “tagged” documents carried out would in principle raise an issue under Article 6 § 3(b) with regard to the provision of adequate facilities for the preparation of the defence.\n\n92.  That said, the Court finds that despite frequent complaints to the prosecution about lack of access to documents, the applicants do not appear at any stage to have formally sought a court order under section 37 § 3 of the Criminal Procedures Act for access to the “full collection of data” or for further searches to be carried out, nor do they appear to have suggested further investigative measures – such as a fresh search using keywords suggested by them – under section 37 § 5 of the same Act. Thus, the Supreme Court, in its judgment, dismissed the applicants’ claims in this respect, referring to the requirement that “the basic condition must be satisfied that a demand concerning [access to documents] has been referred to the courts”. This possibility of review by a court was, however, an important safeguard in determining whether access to data should be ensured. The Court takes note in this connection of the Government’s submission that among the evidence submitted to the District Court were overviews of the seized items and their rough content. In these circumstances, and bearing in mind that the applicants did not provide any specification of the type of evidence they were seeking, the Court is satisfied that the lack of access to the data in question was not such that the applicants were denied a fair trial overall.\n\n93.  The Court therefore concludes that there has been no violation of Article 6 §§ 1 and 3(b).\n\nALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3(d) OF THE CONVENTION\n\n94.  The applicants complained that neither the District Court nor the Supreme Court had heard Al Thani or Sultan as witnesses and that insufficient efforts had been made to summon them or to obtain their testimony via video or telephone. They also complained that the statements taken from those individuals during the investigation had been totally disregarded. They relied on Article 6 §§ 1 and 3(d) of the Convention, which in so far as relevant read as follows:\n\n“1.  In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing ... by [a] ... tribunal...\n\n...\n\n3.  Everyone charged with a criminal offence has the following minimum rights:\n\n...\n\n(d)  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him ...”\n\n95.  The Government contested those assertions.\n\nAdmissibility\n\n96.  The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3(a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nMerits\n\nThe arguments of the parties\n\n97.  The applicants maintained that the witnesses Al Thani and Sultan were key defence witnesses who could have demonstrated that the former had invested in Kaupþing for legal and proper business purposes. Al Thani had been a key player in the transactions at issue and the precise role of each participant could not be understood without his testimony, while Sultan, as his close adviser, had also played an important role in the transactions. In particular, it was likely that they would have confirmed that the company owned by Al Thani was the sole owner of the shares in Kaupþing, contrary to the prosecution’s allegation that Ólafur Ólafsson was a co-investor. However, neither of them had been effectively heard in that connection. The applicants had never been given an opportunity to question them during the trial, and according to the applicants the attempts to hear them as witnesses had been half-hearted and insufficient. Moreover, the defence had not been invited to participate in the interviews with Al Thani and Sultan in London but had only learned of them later. In the applicants’ view, the police had failed to ask them crucial questions about the nature of Al Thani’s interest in Kaupþing and the purpose of his investment.\n\n98.  The applicants emphasised that after Al Thani and Sultan had declined the invitation to testify – sent by e-mail to his lawyer in London – no further attempts had been made to have them examined. The applicants maintained that the defence had pushed very hard and consistently on this matter, raising the question of these witnesses several times. In their view, it could have been arranged for the two witnesses to be questioned by the prosecution and the defence at Al Thani’s home in London or at an Embassy. Alternatively, the prosecution could have requested the District Court to summon the witnesses under section 120 § 2 of the Criminal Procedures Act, or the court could have summoned them on its own initiative. Although this would not have had any legal effect outside Icelandic jurisdiction, it would have highlighted the importance of their presence, much more so than an informal e-mail. In sum, the Icelandic authorities had not made all reasonable efforts to secure the attendance of the two witnesses. The applicants referred in this respect to the Court’s findings in the cases of Schatschaschwili v. Germany ([GC], no. 9154/10, 15 December 2015), Mirilashvili v. Russia (no. 6293/04, 11 December 2008), and Klimentyev v. Russia (no. 46503/99, 16 November 2006), in which the Court had found the efforts made to be reasonable.\n\n99.  In conclusion, the applicants stressed that the complaint related not to the use of statements of absent witnesses but rather to the absence of two witnesses whom the defence wished to examine and who could possibly have been persuaded to testify in an alternative way than appearing before the court.\n\n100.  The Government maintained that the criminal proceedings against the applicants had complied with Article 6 §§ 1 and 3(d) of the Convention despite the fact that the defence had not had an opportunity to question the witnesses Al Thani and Sultan during the trial. The Government accepted that the principles established in the cases of Schatschaschwili, cited above, and Al-Khawaja and Tahery v. the United Kingdom ([GC], nos. 26766/05 and 22228/06, 15 December 2011), were applicable but considered that the case differed in fundamental aspects from those cases. In particular, the applicants did not complain that the statements of the absent witnesses had been used as evidence against them – and there was no indication that their conviction was based on those statements, even in part – but rather that the witnesses could have given evidence leading to their exoneration, so that the statements should have been taken into consideration. In that respect, the Government maintained that the witnesses were not only prosecution witnesses and that the applicants could have called them as defence witnesses.\n\n101.  Proceeding on the basis of the three-step test laid down in AlKhawaja, the Government firstly maintained that there was a good reason for the non-attendance of the two witnesses and that the prosecution had made all reasonable efforts to have them testify before the District Court. Pursuant to section 120 of the Criminal Procedures Act, the prosecutor was responsible for summoning witnesses to court but the defendant could also do so. Moreover, a judge could summon a witness by means of a written summons issued on his or her own initiative or at the request of either of the parties.\n\n102.  The Government recalled that the Special Prosecutor had summoned the two witnesses by an e-mail sent to their lawyer in the United Kingdom, and maintained that this was in accordance with domestic law and standard practice. The Special Prosecutor had moreover made it clear to Sultan that the informal statements would have very little evidential value and had emphasized the importance of the witnesses giving testimony before the court. In addition, the witnesses had been informed of the possibility of giving evidence by telephone. Nevertheless, they had not wished to take part in the proceedings. The Government maintained that in the light of that position, there had been no further reasonable means for the prosecution or the court to enable the applicants to examine the witnesses, both Qatari citizens living in Qatar, and enjoying diplomatic status, in court. In particular, a summons from the court would not have had any legal effects outside Icelandic jurisdiction and there were no international treaties or other mechanisms to which the prosecution or the court could have resorted for legal assistance.\n\n103.  The Government added that the applicants had not made any comments or demands in connection with the absence of the witnesses when it was announced at the hearing on 7 March 2013 that the witnesses had declined to attend, nor had the matter been brought up before the main hearing in November 2013. Indeed, at no stage had the applicants made any formal requests regarding the witnesses. As the applicants submitted that the testimony of those witnesses was material for the defence, they could have requested that further attempts be made or that the judge issue a written summons, or they could have summoned the witnesses themselves. Moreover, even at the appeal stage, they had not asked that witness statements be taken by the District Court, as they could have done by virtue of section 203 of the Criminal Procedures Act.\n\n104.  As to whether the evidence in question was the sole or decisive basis for the applicants’ conviction, or whether it could have led to their acquittal, the Government reiterated that there was no indication in the court judgments that the applicants’ convictions were in any part based on the statements of Al Thani and Sultan; on the contrary, the applicants complained that the courts had not relied on those statements. In the Government’s view, the two witnesses were not key witnesses as to the offences of which the applicants had been convicted. As to breach of trust, the conduct of which the applicants had been found guilty related to failure to follow proper procedures within the bank concerning specific loans and it was highly unlikely that either of the witnesses could have given any evidence in that respect; indeed, they had not indicated in their statements that they had any knowledge of how the loans had been handled inside the bank. As to market manipulation, the Government disagreed with the applicants’ understanding of Sultan’s statement concerning Ólafur Ólafsson’s role but regardless of how that statement was to be interpreted or of how the witnesses would have testified in that connection, they considered that the outcome would not have changed. Moreover, the applicants had not referred to any other specific statements made by either witness that could have led to their exoneration.\n\n105.  As to whether there were sufficient counter-balancing factors, the Government pointed out that the applicants had had an opportunity to give their own version and to cast doubt on or support the statements of the two witnesses. Furthermore, the Supreme Court had explicitly stated that the prosecution would have to bear the burden of the witnesses not appearing, which the Government interpreted as a clear indication that the Supreme Court was of the opinion that the statements would not be used against the applicants. The Government considered that the Supreme Court had indeed reviewed the statements and concluded that nothing in them could affect the outcome of the case. Finally, in the Government’s view there was a multitude of other incriminating evidence. When the proceedings were viewed as a whole, the evidence in question had had no bearing on the outcome.\n\n106.  As to the applicants’ complaint that they had not been able to participate in the interviews with the two witnesses, the Government pointed out that it was not normal practice to invite the defence to attend such pre-trial questioning, and considered that there had been no reason to do so in the present case, since it had been the intention to have the witnesses give evidence at the trial.\n\nThe Court’s assessment\n\nThe general principles\n\n107.  The Court observes at the outset that the applicants do not complain about the absence of any possibility to question witnesses whose previous statements were used in evidence in their conviction but rather about the absence of any opportunity to question witnesses whose evidence they consider would have supported their defence, due to the failure of the authorities to make sufficient efforts to ensure the presence of those witnesses or to make alternative arrangements for their questioning by the defence. The Court notes in this respect that the prosecution did initially wish to call the witnesses to give evidence before the court but that ultimately the witnesses did not appear. However, the statements which they had given during their earlier interviews were not used in the applicants’ conviction; on the contrary, the applicants claim that those statements should have been used in evidence, as they were favourable to the defence. In that light, the Court considers that the complaint relates to the right “to obtain the attendance and examination of witnesses on [the accused’s] behalf”, set out in the second part of sub-paragraph (d) of Article 6 § 3, rather than to the right “to examine or have examined witnesses against [the accused]”. Consequently, the principles set out in the judgments of Schatschaschwili, Al-Khawaja and Tahery, both cited above, and more recently Ibrahim and Others v. the United Kingdom ([GC], nos. 50541/08, 50571/08, 50573/08 and 40351/09, 13 September 2016), are not directly relevant in this case. The Court will therefore rely rather on the principles set out in the recent Grand Chamber judgment of Murtazaliyeva (cited above, §§ 150-168), which clarified the case-law established in Perna v. Italy ([GC], no. 48898/99, ECHR 2003V). In Murtazaliyeva, the Grand Chamber formulated the following three-pronged test:\n\nwhether the request to examine a witness was sufficiently reasoned and relevant to the subject matter of the accusation;\n\nwhether the domestic courts considered the relevance of that testimony and provided sufficient reasons for their decision not to examine a witness at trial;\n\nwhether the domestic courts’ decision not to examine a witness undermined the overall fairness of the proceedings.\n\nApplication of those principles to the present case\n\n108.  The Court will examine the present case in the light of the three elements specified above, while bearing in mind the practical obstacles faced by the Icelandic courts in securing the attendance of the witnesses in question.\n\n109.  The Court observes that the prosecution had made some efforts to secure the attendance of the two witnesses but did not pursue these efforts once it had been informed that they did not wish to participate, considering that since they were foreign diplomats living abroad there were no means of obliging them to attend. The Court notes that the applicants maintain that they raised the issue of the absent witnesses on several occasions, whereas according to the Government the records do not indicate that the matter was raised at the hearing on 7 March 2013 and that it was only at the main hearing in November 2013 that reference was made to this, although even then no formal request was made. The Court further notes the Government’s argument that the defence never requested the court or the prosecution to summon the witnesses and that it could in any event have summoned them itself. Finally, it notes the Government’s position that the applicants could have requested at the appeal stage that evidence be taken by the District Court for use in the appeal proceedings.\n\n110.  Although it appears from the case file that the defence raised the issue of the absence of the witnesses in exchanges with the prosecution, the Court is satisfied that no formal request for the witnesses to be summoned was made in the proceedings before the District Court after the prosecution had informed the court on 7 March 2013 that the witnesses had declined to appear. In any event, it finds that it not decisive whether the applicants raised the issue before the District Court and whether that court failed, as claimed, to give an answer, as three of the applicants (Magnús Guðmundsson did not specifically raise this issue in his appeal) did raise the issue of the witnesses in their appeals to the Supreme Court, which gave reasons for dismissing their claims (cf. Murtazaliyeva, cited above, §§ 17274).\n\n111.  In his appeal to the Supreme Court, Hreiðar Már Sigurðsson referred to the insufficient efforts to summon Al Thani and Sultan, whom he decribed as having played a “key role” in the transactions at issue; he stressed the importance of having these witnesses heard “in order to obtain a clearer view of the events leading up to the transaction”, adding that Al Thani would have been able to say whether “he had been a participant in a play of deception and artifice ... or whether this had been a case of a normal transaction.” Sigurður Einarsson in his appeal referred to Al Thani and Sultan as “key witnesses” whom the prosecution had made insufficient attempts to summon, and submitted that the testimony of the “main spokesman for the buyers of the shares and his assistant” was missing. Ólafur Ólafsson’s appeal also raised the matter of those witnesses not having been summoned despite repeated requests. Referring to them as “key players”, he maintained that their testimony could have “thrown a much clearer light on the events ... supplied information on the purposes of the transaction from their point of view”; Al Thani, as the owner of Q, had attended meetings where the transactions were discussed and had entered into agreements with Kaupþing and could therefore testify as to the precise role of each individual concerned, while Sultan had also “played an important role” in the transactions, having represented Al Thani and taken care of the details. In particular, Al Thani could have “cleared up many things that were important for the evaluation of proof in the case”, such as whether it had been the intention that the appellant would share in the profits, whether Al Thani considered the price of the transaction to be fair and what his intentions and those of the appellant and Sultan had been in establishing an investment fund.\n\n112.  On the basis of the foregoing, the Court does not consider that the applicants submitted a sufficiently reasoned request for examination of the witnesses in question. In particular, they did not, in the proceedings before the domestic courts, elaborate on the purpose of such an examination. In their submissions to the Supreme Court, the applicants merely maintained in a rather general manner that the witnesses could shed light on the background to the transactions and clarify their purpose, and in particular that it had not been the intention that Ólafur Ólafsson should profit from them. While it is indisputable that Al Thani and Sultan played a key role in the transactions, the evidence which it was proposed they would provide was not in the Court’s view such as to put in question the charges against the applicants. The fact that Al Thani might have maintained that his intentions were bona fide was of no direct relevance to the way in which the loans had been set up within the bank, something of which neither he nor Sultan could be expected to have any knowledge. In these circumstances, the Court concludes that the request for the witnesses to be examined remained vague and unsubstantiated.\n\n113.  The Court notes at the outset that under Icelandic law it was open to the defence to call the witnesses directly but that no attempt was made by the defence to secure their attendance, although they were regarded as key witnesses for the defence. However, the Court recognises that a summons issued by the court itself could have had greater authority than a summons by the defence, especially given that the witnesses in question were foreign nationals living abroad (and furthermore enjoying diplomatic status), and that primary responsibility for securing the attendance of witnesses lay with the prosecution. It therefore considers it appropriate to examine whether the Supreme Court responded adequately to the defence’s request that those witnesses be heard.\n\n114.  The Court notes that the Supreme Court considered that the District Court judgment could only be quashed if it could be established that the evidence of the two witnesses, or the absence thereof, might have had a significant impact on the outcome of the case. It also emphasised that the prosecution would have to bear the adverse consequences of the lack of that evidence. Given the limited and vague scope of the applicants’ request, the Court is satisfied that this was an adequate response to that request. Moreover, the Court bears in mind that the witnesses were not within Icelandic jurisdiction and could not be compelled to attend, and that they had made it clear that they did not wish to participate in the proceedings, despite having been informed informally by the Special Prosecutor that the prosecution and the court itself wished to hear them and that they could give evidence by telephone. In these circumstances, it appears unlikely that further efforts to secure their participation would have met with any success.\n\n115.  The Court notes firstly that a considerable volume of evidence was taken into account in the applicants’ conviction: forty witnesses were heard by the District Court, which also relied on large amounts of data, including many e-mail exchanges, and the results of phone tappings. The Supreme Court also conducted a thorough review of the evidence in the case. Moreover, the evidence which the absent witnesses could have provided did not go to the core of the charges against the applicants: even if they could have testified that for them it was a bona fide transaction, their subjective perception of the purpose of the transactions was not directly relevant to the establishment of how the loans themselves were processed or whether the wrong impression was given regarding demand for shares in the bank.\n\n116.  Finally, in so far as the applicants complain that the statements given by the two witnesses were not relied on by the courts, the Court refers to De Tommaso v. Italy [GC], no. 43395/09, § 170, 23 February 2017:\n\n“While Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way in which evidence should be assessed, these being primarily matters for regulation by national law and the national courts. In principle, issues such as the weight attached by the national courts to particular items of evidence or to findings or assessments submitted to them for consideration are not for the Court to review. The Court should not act as a fourth-instance body and will therefore not question under Article 6 § 1 the national courts’ assessment, unless their findings can be regarded as arbitrary or manifestly unreasonable (see, for example, Dulaurans v. France, no. 34553/97, §§ 33-34 and 38, 21 March 2000; Khamidov v. Russia, no. 72118/01, § 170, 15 November 2007; Anđelković v. Serbia, no. 1401/08, § 24, 9 April 2013; and Bochan v. Ukraine (no. 2) [GC], no. 22251/08, §§ 64-65, ECHR 2015).”\n\nIn the present case, the Court sees nothing arbitrary or manifestly unreasonable in the decision not to rely on those statements as evidence in the case, firstly as they had been obtained in informal interviews and secondly as there was no opportunity to have the evidence tested in court. Furthermore, the Supreme Court made it clear that the prosecution would have to bear the consequences of the absence of that evidence.\n\n117.  In the light of the foregoing, the Court concludes that there has been no violation of Article 6 §§ 1 and 3(d) of the Convention.\n\nALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION\n\n118.  The applicants complained that the prosecution had tapped and listened to telephone conversations between them and their respective lawyers, in violation of Article 8 of the Convention, which reads as follows:\n\n“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.\n\n2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”\n\n119.  The Government contested that argument.\n\nThe arguments of the parties\n\n120.  The Government submitted that the applicants had not exhausted domestic remedies with regard to their complaint under Article 8 of the Convention. In the first place, they had not raised that complaint in substance before the domestic courts; while the applicant Hreiðar Már Sigurðsson had made a passing reference to Article 8 in his appeal to the Supreme Court, the applicants had in their written pleadings relied principally on Article 6 of the Convention. The Supreme Court’s judgment did not indicate that it had addressed directly the question whether the phone tapping had infringed Article 8 and the summary of the applicants’ oral pleadings did not mention that this had been argued at the main hearing. Furthermore, the applicants had not brought any other proceedings, such as a civil action against the State seeking damages for the violation of their rights under Article 8. In their submissions in reply to the applicants’ observations, the Government indicated that the applicant Hreiðar Már Sigurðsson had lodged a civil action against the State in the District Court on 15 November 2016. They subsequently informed the Court that in a judgment of 30 April 2018 the District Court had awarded him ISK 300,000 in respect of telephone tapping which had taken place after the applicant had been told that he was a suspect but had rejected his claim as regards conversations with his lawyer on the ground that they had not been listened to beyond for the purpose of identifying who was speaking.\n\n121.  The applicants maintained that domestic remedies had been exhausted as the question of the recording of privileged conversations had been brought before both the District Court and the Supreme Court, and the latter had seen no problem in the way in which the tapping had been handled. The applicants did not comment specifically on the question of a civil action.\n\nThe Court’s assessment\n\n122.  The Court observes firstly that although all four of the applicants complained in this respect, only Hreiðar Már Sigurðsson and Magnús Guðmundsson mentioned specific incidents which had been acknowledged by the Special Prosecutor; the other two applicants did not refer to any concrete incidents and did not raise this issue in their appeals to the Supreme Court. In view of the Special Prosecutor’s explanation that the incidents in respect of Hreiðar Már Sigurðsson and Magnús Guðmundsson had been errors and in the absence of any evidence to suggest otherwise, the Court finds that the complaints by Sigurður Einarsson and Ólafur Ólafsson in this respect are unsubstantiated and must be declared inadmissible as manifestly ill-founded pursuant to Article 35 §§ 3(a) and 4 of the Convention.\n\n123.  The Court notes that Magnús Guðmundsson made no mention of Article 8 of the Convention or of his right to respect for private life or correspondence in his appeal to the Supreme Court, but specifically referred to the Criminal Procedures Act and Article 6 § 3(c) of the Convention. Consequently, it cannot be held that he raised a complaint under Article 8 in substance. Conversely, Hreiðar Már Sigurðsson made specific reference to Article 8 in his appeal to the Supreme Court, maintaining that his right to privacy had been violated, and to that extent it may be accepted that he raised his complaint under that provision explicitly, albeit without further elaboration. However, the Court observes that while the Supreme Court could undoubtedly have declared the telephone tapping in question to be unlawful and/or unjustified, it is less clear whether it was open to the Supreme Court, in the context of criminal proceedings, to deal with the substance of the Convention complaint that the interference with the applicant’s right to respect for his private life was not “in accordance with the law” or not “necessary in a democratic society” and to grant appropriate relief in that respect (see Akhlyustin v. Russia, no. 21200/05, § 24, 7 November 2017, and Zubkov and Others v. Russia, nos. 29431/05, 7070/06 and 5402/07, § 88, 7 November 2017, and Konstantin Moskalev v. Russia, no. 59589/10, § 22, 7 November 2017; see also, in connection with the existence of an effective remedy under Article 13 of the Convention, Khan v. the United Kingdom, no. 35394/97, § 44, ECHR 2000V, P.G. and J.H. v. the United Kingdom, no. 44787/98, § 86, ECHR 2001IX, Goranova-Karaeneva v. Bulgaria, no. 12739/05, § 59, 8 March 2011 (where the question of exhaustion was joined to the merits of the Article 13 complaint), and İrfan Güzel v. Turkey, no. 35285/08, §§ 106107, 7 February 2017; and, by contrast, Dragojević v. Croatia, no. 68955/11, §§ 35, 42, 47 and 72, 15 January 2015; Šantare and Labazņikovs v. Latvia, no. 34148/07, §§ 25 and 40-46, 31 March 2016; and Radzhab Magomedov v. Russia, no. 20933/08, §§ 20 and 77-79, 20 December 2016). Indeed, the Supreme Court did not address the issue of private life in its judgment, referring rather to the fact that the recordings had not been used in evidence and the absence of any argument to the effect that they might have affected the investigation. While the Government do not explicitly maintain that this remedy was ineffective (nonetheless qualifying the notion of an examination of the Article 8 complaint by the Supreme Court as “unconventional”), the Court finds in the light of its aforementioned case-law that an appeal to the Supreme Court in the context of criminal proceedings did not constitute an effective remedy in respect of a complaint of a violation of the right to private life under Article 8 of the Convention.\n\n124.  The question remains whether the applicants should, as suggested by the Government, have made use of a civil action for damages against the State. The Court has no reason to doubt that in the context of civil proceedings the domestic courts would be able to examine the lawfulness and necessity of the measure in question and, if appropriate, award compensation. The applicants have not contested the Government’s submission in that respect. As to the applicant Magnús Guðmundsson, the Court notes that he has not brought a civil action against the State; as to the applicant Hreiðar Már Sigurðsson, it notes that he lodged a civil action in November 2016 and that the District Court gave judgment on 30 April 2018, inter alia rejecting his claim as regards conversations with his lawyer. The Court has not been informed whether the applicant has lodged an appeal against that judgment. In these circumstances, the applicants’ complaints under Article 8 of the Convention must be rejected for non-exhaustion of domestic remedies in accordance with Article 35 §§ 1 and 4 of the Convention.\n\nAPPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n125.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nDamage\n\n126.  Each applicant claimed 100,000 euros (EUR) in respect of nonpecuniary damage. The applicants did not claim an award for pecuniary damage.\n\n127.  The Government submitted that the finding of a violation would in itself constitute just satisfaction for any non-pecuniary damage. They also maintained that the claim for non-pecuniary damage was excessively high.\n\n128.  Taking account of the particular circumstances of the present case, the Court agrees with the Government that the finding of a violation of Article 6 § 1 of the Convention constitutes in itself sufficient just satisfaction in respect of any non-pecuniary damage. The Court further notes that it is for the respondent State to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the violation or violations found by the Court and to redress as far as possible the effects. In this regard, the Court observes that Articles 228 and 232 of the Criminal Procedures Act provide that the Committee on Reopening of Judicial Proceedings can, when certain conditions are fulfilled, order the reopening of criminal proceedings that have been terminated by a final judgment rendered in the Court of Appeal or the Supreme Court (see, mutatis mutandis, Ibrahim and Others, cited above, § 315, and Ramos Nunes de Carvalho e SÁ, cited above, § 222). In this regard, the Court emphasises the importance of ensuring that domestic procedures are in place whereby a case may be re-examined in the light of a finding that Article 6 of the Convention has been violated. As the Court has previously stressed, such procedures may be regarded as an important aspect of the execution of its judgments and their availability demonstrates a Contracting State’s commitment to the Convention and to the Court’s case-law (Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, § 99, 11 July 2017).\n\nCosts and expenses\n\n129.  The applicants submitted the following claims in respect of the costs and expenses incurred before the domestic courts and before the Court:\n\nHreiðar Már Sigurðsson: ISK 58,526,931 for the domestic proceedings and EUR 13,500 plus ISK 2,600,000 for the proceedings before the Court;\n\nSigurður Einarsson: ISK 28,758,883 for the domestic proceedings and EUR 13,500 plus ISK 2,600,000 for the proceedings before the Court;\n\nÓlafur Ólafsson: ISK 33,492,706 for the domestic proceedings and EUR 13,500 plus ISK 3,375,000 for the proceedings before the Court;\n\nMagnús Guðmunsson: ISK 40,729,681 for the domestic proceedings and EUR 13,500 plus ISK 1,338,624 for the proceedings before the Court.\n\nThe applicants submitted invoices totalling EUR 54,000 in respect of the proceedings before the Court.\n\n130.  The Government submitted that not all the costs incurred could be attributed to preventing the alleged violations or obtaining redress, since the applicants’ defence had also been based on other grounds. However, the Government were unable, in the absence of a clear breakdown of the costs, to define which costs related to the alleged violations. They further observed that any violations in connection with the Supreme Court proceedings would not entail reimbursement of the costs incurred in the District Court proceedings. Finally, they noted that there was no evidence of the costs expressed in Icelandic krónur for the proceedings before the Court.\n\n131.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, and in particular taking into account that a violation has been found in respect of only one of the complaints submitted by the applicants, relating to an issue of impartiality of the Supreme Court which only came to light after the domestic proceedings had ended, the Court dismisses the claim in respect of the costs of the domestic proceedings. On the other hand, it considers it reasonable to award each of the applicants the sum of EUR 2,000 in respect of the costs of the proceedings before the Court, taking into account that the observations submitted by the applicants’ representative were common to all four applicants.\n\nDefault interest\n\n132.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT\n\nDeclares, unanimously, the complaints concerning the alleged lack of impartiality of Á.K. on account of the positions held by his son, the alleged denial of access to data and the alleged failure to summon witnesses admissible, and the remainder of the application inadmissible;\n\nHolds, unanimously, that there has been a violation of Article 6 § 1 of the Convention on account of Á.K.’s lack of impartiality;\n\nHolds, by six votes to one that there has been no violation of Article 6 §§ 1 and 3(b) of the Convention in respect of the alleged denial of access to data;\n\nHolds, unanimously, that there has been no violation of Article 6 §§ 1 and 3(d) of the Convention in respect of the alleged failure to summon witnesses;\n\nHolds, unanimously, that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicants;\n\nHolds, unanimously,\n\nthat the respondent State is to pay to each of the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;\n\nthat from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\nDismisses, unanimously, the remainder of the applicants’ claim for just satisfaction.\n\nDone in English, and notified in writing on 4 June 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.\n\nIn accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Pavli is annexed to this judgment.\n\n1.  I have voted with the majority in all respects but one. I regret that I cannot agree with their finding that there has been no violation of Article 6 in respect of the alleged denial of access to investigative data. My disagreement concerns both the general approach followed by the majority under this heading and its specific findings on the merits.\n\nThe relevant test under Article 6 § 3(b)\n\n2.  The relevant principles regarding the rights of the accused, under Article 6 §§ 1 and 3(b) of the Convention, to obtain access to the investigative materials of the case against them, including any exculpatory evidence contained therein, were summarised in the Van Wesenbeeck v. Belgium (nos. 67496/10 and 52936/12, 23 May 2017) and Natunen v. Finland (no. 21022/04, 31 March 2009) cases, as described in paragraphs 85 and 86 of the current judgment. The defence rights of access to and disclosure of prosecution evidence are not absolute; however, any restrictions must be “strictly necessary” in view of the central role of equality of arms in the Article 6 architecture governing criminal due process (see Van Wesenbeeck, § 68).\n\n3.  The majority opinion concedes that denying the applicants access with respect to at least one of the evidentiary data sets (the “tagged” documents) “raises an issue under Article 6 § 3(b)” (see paragraph 91). However, at no time is a proper review carried out as to whether the restrictions meet the test of strict necessity. Instead, the relevant part of the judgment moves to the conclusion that, in view of certain supposed procedural failures by the defence and the availability of judicial review at national level, the applicants were not “denied a fair trial overall.”\n\n4.  I find the majority’s approach on this issue, which presents significant novelties for our Article 6 jurisprudence, problematic for a number of reasons. First, it fails to grant sufficient weight, in my view, to the serious disclosure issues raised by the applicants in the context of a highly complex criminal trial. By choosing to bypass the Van Wesenbeeck test in favour of a global finding that the overall fairness of the trial was not affected, the judgment does a disservice to the clarity and consistency of our case law, and misses an opportunity to weigh in on the complicated questions at the intersection of new technologies and high-volume evidentiary issues. On the merits, I find the reasons relied on by the majority to dismiss the applicants’ claims as partly inadmissible and partly insufficient.\n\nWhether the access rights of the defence were restricted\n\n5.  The current case involves an unusually complex financial crimes prosecution, with multiple defendants and a very high volume of electronic material seized or otherwise obtained by the prosecution. This included at least four data sets of decreasing size: the “full collection of data” resulting from the investigation; the “tagged” data set of potentially relevant evidence, which the prosecution selected from the full data using advanced search technologies; the “investigation documents” resulting from further filtering of the tagged data set; and the actual evidence submitted in court, which included a subset of the investigation documents.\n\n6.  To recap, the applicants claim that they were denied adequate access to the first and second data sets. In particular, they were not allowed to conduct their own searches of the first data set, using the same software that had been extensively used by the prosecution. In addition, the prosecution - and the courts on at least three occasions - refused to grant them access to the list of documents “tagged” (as relevant or potentially relevant evidence) as a result of the prosecution’s searches, to summary lists of seized data, and to other investigative materials. The prosecution also denied the defence teams’ specific requests for access to “collections of emails and tapped telephone calls of individuals other than the applicants which had not been put in the investigation file” (see paragraph 75 of the judgment). This had given the prosecution a de facto monopoly on the use of advanced digital search facilities, without proper judicial review in the early stages of the process.\n\n7.  The majority’s choice to steer straight into a global fairness review means that there are no clear conclusions as to whether the access rights of the defence were restricted and, if so, to what extent. But some indirect conclusions can be drawn.\n\n8.  The judgment draws a distinction between the first and second data sets. With respect to the former, it finds in effect that electronic searches by the defence would amount to a “fishing expedition” in the absence of any specification as to “what could have been clarified by further searches” (see paragraph 90). In this context, involving millions of documents, this argument seems akin to a requirement to specify the precise location of a needle within a haystack. It also tends to turn on its head the prosecutorial duty to disclose any exculpatory evidence (more on this point below). The defence searches would have been no more of a fishing expedition than that carried out by the prosecution.\n\n9.  With the respect to the “tagged” data, the majority concedes that, under our case-law, the prosecution cannot exclude the defence from the process of assessing the importance of non-disclosed information; and that further searches of the tagged data set would have been technically “rather straightforward” (see paragraph 91). It is satisfied, however, with the Government’s argument that there was no prosecutorial duty under national law to create documents (specifically, lists of seized data) that did not already exist. There is no discussion of the implications of this national legislative choice for the purposes of Article 6 of the Convention.\n\n10.  It is worth recalling at this point that what is at stake in this case is a fundamental tenet of criminal due process, namely equality of arms. In the light of this cardinal principle, the majority’s overall approach seems insufficiently attuned to the complexities of electronic disclosure in criminal (or for that matter, civil) proceedings involving high-volume data; to the use of modern technological tools in this context; and to their combined implications for equality of arms. The assumption that standard rules of disclosure ought to apply unchanged in this context is one that, at the very least, needs to be tested.\n\n11.  A basic review of comparative law in jurisdictions with relevant experience in this field – a more extensive version of which would have been helpful in the novel context of this case – suggests that the prosecution is required to provide the defence with the fullest possible access to electronic investigative materials, including the ability to conduct their own searches, in terms and with capacities comparable to those of the prosecution. This is considered the minimum or baseline safeguard required in complex cases by the principle of equality of arms.\n\n12.  Furthermore, in order to meet its duty of disclosing any exculpatory material in its possession, as both our case-law and Icelandic law require, the prosecution may also be required to show its good faith through additional proactive steps, for example by indexing the documents, providing files in a searchable format, and specifying any known exculpatory evidence. A finding, on the other hand, that the prosecution has engaged in a malicious “data dump,” in order to make it harder for the defence to analyse the data may lead to a conclusion of suppression of evidence.\n\n13.  The above approach recognises that, even where the defence benefits from substantial access, the prosecution still holds distinct advantages: it will normally have had a longer period of time to analyse the evidence, generally greater analytical resources, and more intimate knowledge of the material, including in relation to any exculpatory elements. In view of these considerations, the current majority’s conclusion that the prosecution “did not hold any advantage over the defence” in the circumstances of the current case (see paragraph 90) seems rather far-fetched.\n\n14.  Secondly, it is a logical consequence of the preceding argument that full electronic disclosure in high-volume criminal investigations must be provided by default, that is, as a matter of standard prosecutorial practice and without the need for the defence to initiate and litigate a litany of procedural requests. Judicial oversight should, in principle, be exercised at this preliminary stage, when the terms of disclosure and searchability of data ought to be agreed and approved, whenever possible, by a judicial officer.\n\n15.  Emerging practice in the Council of Europe area is in line with this general approach. Thus, courts in at least two jurisdictions (the United Kingdom and Ireland) have approved in recent years the use of technology-assisted review, employing a form of artificial intelligence known as predictive coding, for the purposes of electronic disclosure in high-stakes civil litigation. The rationale would apply with equal force in criminal cases of comparable complexity. Again, the underlying premise for the use of such advanced technology is, of course, that both sides are granted the fullest possible access to begin with. And, secondly, that criminal-law frameworks and investigative practices are organised in such a way as to facilitate adequate access for the defence at the appropriate (that is, early) stage of proceedings.\n\n16.  On the facts of the current case, I would conclude that the applicants’ access rights were significantly restricted by virtue of the national authorities’ refusal to grant their defence teams meaningful and equitable access to the data sets at issue, and in particular the tagged data.\n\n17.  In addition, as a structural matter – and even allowing some margin for the specificities of each national system – the relevant Icelandic laws and prosecutorial practices do not appear to be organised in a way capable of ensuring adequate compliance with the disclosure rights of defendants in high-volume criminal cases. This is obvious from the Government’s explanations, whether of a legal or technical nature, as to why access to most of the additional data requested by the defence teams was not possible or warranted (see below for specifics). Equally, it is fair to say that the complex nature of the criminal investigation in the current case ought to have been apparent to the national authorities virtually from the outset.\n\n18.  This structural flaw would be a sufficient basis, in my view, for finding a violation of the overall fairness of proceedings under Article 6 § 1 of the Convention.\n\nC.Whether the restrictions on access were justified\n\n19.  For the sake of argument, let me nevertheless address the specific justifications offered for the restrictions on the applicants’ access rights and whether they were “strictly necessary” under our case law.\n\n20.  While the Government puts forward a long list of arguments as to why the restrictions were justified, the majority appears to single out two main lines of justification, in paragraph 92. First, it places great emphasis on the fact that the applicants did not seek a formal court order “for access to the ‘full collection of data’ or for further [database] searches to be carried out” (see paragraph 92). This line of reasoning is objectionable on at least three grounds. To begin with, the Government’s argument under this heading is in the nature of a non-exhaustion claim; not having raised such an argument at the admissibility stage, the Government is normally estopped from relying on it on the merits. In second place, it does not appear to be entirely correct factually: the applicants did file, for example, requests for lists of documents that would be found by using a certain keyword, which were rejected by the domestic courts on unspecified grounds (see paragraph 83). But finally and most importantly, this line of reasoning is inconsistent with the duty of the prosecution to provide extensive disclosure by default in cases involving large volumes of electronic investigative data, as the only way to begin to ensure genuine equality of arms.\n\n21.  The same would apply to the second justification put forward by the majority, namely that the defence failed to specify what kind of additional evidence they were seeking, relying for example on “overviews of the seized items and their rough content” (see paragraph 92 in fine). With respect, this argument severely underestimates, in my view, the complexities of analysing large and interconnected amounts of investigative data, whether one is equipped with “merely” human intelligence or aided by artificial intelligence.\n\n22.  When one parses through the multiple lines of justification offered by the Government under this heading, it seems clear that concerns about a supposedly excessive effort played a significant role: the high volume of material that would have to be produced to meet the defence requests (see paragraph 79) or the need to re-import data into a certain software (see paragraph 83). One would hope that this is not what is meant by “strictly necessary” restrictions: it would be a sad day for Article 6 if mere convenience were to trump fundamental fair-trial rights.\n\n23.  This is not to say that extensive electronic disclosure of the kind envisaged in this opinion does not raise other thorny issues, including matters related to the protection of the basic rights and interests of third parties. The majority notes these concerns, but finds that they did not present “insurmountable obstacles”, a conclusion that I share on the grounds, inter alia, that the Government failed to show that it had properly and genuinely considered ways to reconcile disclosure to the defence with minimisation of the potential risks to third-party rights. In any event, one would hope that these will be the kinds of issues that will preoccupy our future case-law in this area.\n\n24.  As a general matter, the reluctance to engage directly with the applicants’ claims under Article 6 § 3 of the Convention, with its various fundamental guarantees of criminal due process, has consequences – and not only of a theoretical nature. In the first place, it tends to water down the protections guaranteed by the five sub-headings of that provision, as if they were not capable of being violated on their own terms. Secondly, it constitutes a missed opportunity to provide clear and coherent guidance to national courts and other authorities on how these intricate Convention guarantees are to be interpreted and applied at the national level. This, in my view, is one of the central functions of this Court, which tends to be undermined if all competing considerations are reflexively force-fed into a less-than-transparent meat grinder labelled “the overall fairness of proceedings.”\n\n25.  To be clear, an ultimate ruling on overall fairness under Article 6 § 1 in no way precludes or replaces the need to carry out a proper review of claims made under the various limbs of Article 6 § 3. A cursory look at recent Grand Chamber judgments would confirm this: e.g. in Ibrahim and Others v. the United Kingdom ([GC], nos. 50541/08 and 3 others, 13 September 2016), a case involving denial of access to counsel and related rights, the Court proceeded, in a clear and systematic fashion, to review, first, whether the applicants’ rights under Article 6 § 3(c) had been restricted, and, secondly, whether the restrictions were justified under the relevant tests. Having addressed those two questions, the Grand Chamber went on to consider the impact of the restrictions on the overall fairness of proceedings for each of the four applicants.\n\n26.  The majority relies on Murtazaliyeva v. Russia ([GC], no. 36658/05, 18 December 2018) in opting to review the applicants’ claims from the point of view of Article 6 §§ 1 and 3(d) “taken together” (see paragraph 87). However, even in Murtazaliyeva, a case involving a failure to hear witnesses proposed by the defence, the Grand Chamber identified an (updated) three-step test, with the impact on the overall fairness of proceedings constituting only the final prong. The majority follows this same approach in assessing the current applicants’ claims under Article 6 § 3(d) (starting at paragraph 94), in contrast to the method chosen under paragraph 3(b) of the same article.\n\n27.  To put it another way, “taken together” is not the same as mashed together. A rigorous analysis of the complaints made under the various limbs of Article 6 § 3 has the added, and not insignificant, benefit of attenuating the inherently subjective nature of the global fairness review, thus enhancing the legitimacy of the final outcome.\n\n28.  Finally, had the majority chosen to engage more meaningfully with the challenges of complex criminal investigations in our high-tech age, it could have provided an incentive to the Icelandic authorities, and perhaps others, to do the same. That will have to wait for another day.\n\n28.  Finally, had the majority chosen to engage more meaningfully with the challenges of complex criminal investigations in our high-tech age, it could have provided an incentive to the Icelandic authorities, and perhaps others, to do the same. That will have to wait for another day.","title":""}
{"_id":"passage_227","text":"PROCEDURE\n\n1.  The case originated in an application (no. 29464/03) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Vitaliy Alekseyevich Arefyev (“the applicant”), on 1 August 2003.\n\n2.  The applicant was represented by Mr R. Shkryuba, a lawyer practising in . The Russian Government (“the Government”) were represented by Mrs V. Milinchuk, former Representative of the  at the European Court of Human Rights.\n\n3.  The applicant alleged, in particular, that the conditions of his detention in temporary detention facility in Ivanovo had been inhuman and degrading, that his detention had been unlawful and that the proceedings by which he had sought to challenge the lawfulness of his pre-trial detention had not complied with the requirements of Article 5 § 4 of the Convention.\n\n4.  On 24 October 2007 the President of the First Section decided to give notice of the application to the Government.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n5.  The applicant was born in 1981 and lived until his arrest in the town of  in Ivanovo Region.\n\nA.  Applicant's arrest and release on a written undertaking\n\n6.  On 6 April 2003 the applicant was arrested on suspicion of aggravated extortion. Two days later an investigator asked the  to remand him in custody. On the same day the  adjourned consideration of the investigator's request for seventy-two hours. The applicant did not appeal.\n\n7.  On 9 April 2003 the investigator ordered the applicant's release on a written undertaking not to leave the town, reasoning as follows:\n\n“The present criminal case was opened on 6 April 2003, at 5 p.m. On the same day at 5.15 p.m. an investigator, Ms S., arrested [the applicant] in compliance with Article 91 of the Russian Code of Criminal Procedure. On 8 April 2003, at 3.15 p.m., the applicant was charged under Article 163 § 2 of the Russian Criminal Code and a decision on bringing a request to a court for authorisation of [the applicant's] detention was issued. That request was examined by the court and by virtue of Article 108 § 3 (7) of the Russian Code of Criminal Procedure [the court] adjourned the examination of the request until 2 p.m. on 11 April 2003. In his decision the judge did not mention that [the applicant's] detention had been extended.\n\nDue to the fact that [the applicant's] detention has expired, he should be released.”\n\nB.  Applicant's placement in custody. Detention order of 11 April 2003\n\nB.  Applicant's placement in custody. Detention order of 11 April 2003\n\n8.  On 11 April 2003 the  resumed consideration of the investigator's request of 8 April 2003 and authorised the applicant's placement in custody, finding that he had been charged with a serious criminal offence, had a criminal record, was a danger to society, was unemployed and did not have a permanent source of income. The court concluded that the applicant was liable to abscond and interfere with the course of justice.\n\n9.  On the same day the applicant appealed against the decision of 11 April 2003, arguing that there were no grounds for his placement in custody. He had a permanent place of residence, had started working and had no intention of absconding.\n\n10.  On 15 April 2003 the  upheld the decision of 11 April 2003, endorsing the 's reasoning.\n\nC.  Detention order of 9 June 2003\n\n11.  A transcript of a telephone conversation produced by the Government reveals that on 5 June 2003 an investigator of the Teykovo town police department informed the applicant's lawyer, Mr Shkryuba, that a request for extension of the applicant's detention was to be sent to the  on the following day. The investigator asked for confirmation of the lawyer's availability for the court hearing. Mr Skhryuba replied that he would not be able to attend as he had to take part in a seminar starting on 9 June 2003.\n\n11.  A transcript of a telephone conversation produced by the Government reveals that on 5 June 2003 an investigator of the Teykovo town police department informed the applicant's lawyer, Mr Shkryuba, that a request for extension of the applicant's detention was to be sent to the  on the following day. The investigator asked for confirmation of the lawyer's availability for the court hearing. Mr Skhryuba replied that he would not be able to attend as he had to take part in a seminar starting on 9 June 2003.\n\n12.  On 9 June 2003 the Teykovo Town Court extended the applicant's detention for twenty-six days, until 6 July 2003, finding that he had been charged with a serious criminal offence and had a previous conviction, also that he was unemployed and did not have a permanent source of income and thus, if released, he was liable to pervert the course of justice and abscond. The  noted that by 6 July 2003 the total period of the applicant's detention would amount to two months and twenty-six days. The applicant's lawyer did not attend the hearing on 9 June 2003. The record of that hearing provided to the Court by the Government shows that the Town Court read in open court thirty-two pages of material presented to it by the investigator and attached to the case file. The materials comprised records of various investigative actions, including the previous decisions on the applicant's arrest and detention. A court registrar made an entry in the record stating that the parties had no objections or amendments.\n\n12.  On 9 June 2003 the Teykovo Town Court extended the applicant's detention for twenty-six days, until 6 July 2003, finding that he had been charged with a serious criminal offence and had a previous conviction, also that he was unemployed and did not have a permanent source of income and thus, if released, he was liable to pervert the course of justice and abscond. The  noted that by 6 July 2003 the total period of the applicant's detention would amount to two months and twenty-six days. The applicant's lawyer did not attend the hearing on 9 June 2003. The record of that hearing provided to the Court by the Government shows that the Town Court read in open court thirty-two pages of material presented to it by the investigator and attached to the case file. The materials comprised records of various investigative actions, including the previous decisions on the applicant's arrest and detention. A court registrar made an entry in the record stating that the parties had no objections or amendments.\n\n13.  The applicant appealed. He complained that the decision of 9 June 2003 had been taken in the absence of his lawyer, who had not been summoned to the hearing, and that he had not been provided with copies of the case file materials attached to the investigator's application for the extension of the detention. A letter of 21 June 2003 from the President of the Ivanovo Town Bar Association was enclosed. The President informed the Regional Court that the applicant's lawyer, Mr Shkryuba, had not been summoned to the hearing of 9 June 2003 as the summons had arrived at the Bar Association only hours before the hearing, by which time Mr Shkryuba had departed on an official mission and therefore it had been impossible to notify him promptly of the hearing.\n\nThe applicant further argued that the maximum authorised two-month period of his detention had expired on 8 June 2003, taking into account that he had remained in custody during the three days after his arrest in April 2003. Thus, his detention from 8 to 9 June had had no legal basis.\n\n14.  On 3 July 2003 the  held an appeal hearing. The applicant's lawyer attended. At the end of the hearing the  issued a decision upholding the extension order of 9 June 2003. The relevant part of the appeal decision read as follows:\n\n“It follows from the case file materials that the criminal case requires a certain amount of investigative actions for which additional time is needed.\n\nAt the same time there are no grounds for change or cancellation of the measure of restraint which was applied to [the applicant]. [The applicant] is charged with a criminal offence which belongs to the category of serious [offences]; [he] has previous convictions [and has had] a suspended sentence; [he] does not have any source of income [and], if released, [he] could pervert the course of justice and abscond.\n\nOn the basis of the aforementioned, the court correctly concluded [that it was] possible to extend [the applicant's] detention.\n\nIt also follows from the case materials that in the course of the pre-trial investigation [the applicant] concluded an agreement with counsel, Mr R. Shkryuba, who had been duly notified about the examination of the present case, which is confirmed by the case file materials. [He] did not attend the hearing, his failure to attend being due to his participation in a seminar, in which Mr R. Shkryuba took part merely as a member of the audience, cannot be considered a valid reason.\n\nAccording to a court record, [the applicant]'s rights prescribed by Article 47 of the Russian Code of Criminal Procedure were explained to him; he did not submit any requests.\n\nIn such circumstances the fact that the case was examined in the absence of counsel Mr R. Shkryuba cannot be considered a violation of [the applicant's] right to defence.”\n\nD.  Detention order of 3 July 2003\n\nD.  Detention order of 3 July 2003\n\n15.  On 3 July 2003 the  authorised an extension of the applicant's detention for an additional twenty-nine days, that is until 4 August 2003. The  found no grounds for changing the measure of restraint, holding that the applicant had been charged with several serious offences, he had no “official” place of employment, and had a previous conviction, having received a suspended sentence. The  noted that all those facts attested to the “criminal orientation” of the applicant's personality and that if released he was liable to reoffend, pervert the course of justice and abscond. As regards the applicant's argument that his detention from 8 to 9 June 2003 had been unlawful, the  held as follows:\n\n“By virtue of Article 109 § 10 of the Russian Code of Criminal Procedure [the court] accepts the arguments by the defence that the three days of [the applicant's] detention in the capacity of a suspect (from 6 to 9 April 2003) should be included in the period of his detention. Thus, the aforementioned three days should be included in the total period of [the applicant's] detention.”\n\n16.  On 15 July 2003 the  upheld the detention order of 3 July 2003, supporting the reasoning of the . The , however, excluded the remarks about the applicant's personality from that detention order.\n\nE.  Further extensions of detention\n\n17.  It appears from the parties' submissions that after 4 August 2003 the applicant's detention was regularly extended in view of his alleged liability to abscond, pervert the course of justice and reoffend.\n\nF.  Conviction\n\n18.  On 31 October 2003 the  found the applicant guilty of several counts of aggravated robbery and sentenced him to four years' imprisonment. On 9 December 2003 the  upheld the conviction.\n\nG.  Conditions of the applicant's pre-trial detention\n\n19.  From 14 April to 29 December 2003 the applicant was detained in temporary detention facility no. 1 in the town of  (hereinafter “facility no. IZ-37/1” or “the detention facility”).\n\n20.  The Government, relying on a certificate issued on 10 December 2007 by the director of facility no. IZ-37/1, submitted that during the period in question the applicant had been detained in three different cells. Cell no. 135, where he was detained on 14 and 15 April 2003, measured 30.8 square metres and housed three other detainees. From 15 April to 14 October 2003 the applicant was kept in cell no. 93, measuring 21.8 square metres and accommodating twenty-two detainees. From 14 October 2003 until his release the applicant was detained in cell no. 61. Seventeen other inmates shared 25.3 square metres of that cell with the applicant. The Government noted that the applicant, having been provided with a complete set of bedding, had an individual sleeping place at all times. However, as it follows from the above-mentioned certificate provided by the director, the number of inmates indicated by the facility for each cell in which the applicant had been detained was an average one.\n\n21.  Citing the information provided by the director of the facility, the Government further submitted that the cells received natural light and ventilation through a large window 1.2 metres long and 0.9 metres wide. The cells had ventilation shafts and were equipped with lights which functioned day and night. Each cell was equipped with a lavatory pan, a sink and a tap for running water. The pan was separated from the living area by a partition one metre and eighty centimetres high. Inmates were allowed to take a shower once a week for forty minutes. Clean bedding was also provided once a week. The cells were disinfected. Inmates were afforded an hour of outdoor recreation per day in small yards equipped with wooden benches and covered by a shed roof against rain and snow. The Government, relying on the information provided by the director of the facility, further stated that the applicant was given food “in accordance with the established norms”. According to the Government, detainees including the applicant were provided with medical assistance. The Government furnished a copy of the applicant's medical record.\n\n22.  The applicant did not contest the cell measurements. However, he insisted that the cells had been severely overcrowded and that he had had less than two square metres of living space. He stressed that cell no. 93, where he had spent the major part of his detention in facility no. IZ-37/1, had ten sleeping places and had usually housed twenty-eight to thirty-six inmates. Cell no. 61, equipped with twelve bunks, had also been overcrowded. Inmates had to take turns to sleep. They were not provided with bedding. The applicant further submitted that the sanitary conditions had been appalling. The cells were infested with insects but the management did not provide any insecticide. There was no artificial ventilation in the cells. It was impossible to take a shower, as a large number of inmates had to take a shower simultaneously during a very short period of time. Inmates had to wash and dry their laundry indoors, creating excessive humidity in the cells. The lavatory pan was separated from the living area by a small partition. At no time did inmates have complete privacy. No toiletries were provided. The food was of poor quality and in short supply. Everyday outdoor exercise usually lasted less than an hour. Recreation yards were no more than small boxes measuring ten square metres, separated from each other with concrete walls and covered with a metal net. The applicant further argued that medical assistance was unavailable.\n\nH.  Alleged beatings in the detention facility\n\n23.  According to the applicant, in April 2003 a group of officers of a special-purpose squad arrived at the detention facility for the purpose of rendering practical assistance in maintaining the detention regime. Their method of assistance was as follows: they gave detainees ten seconds to leave a cell. Those who failed to comply were severely beaten up. The applicant alleged that he too had been beaten up. However, no serious injuries were caused.\n\nII.  RELEVANT DOMESTIC LAW\n\nA.  Conditions of detention\n\n24.  Section 22 of the Detention of Suspects Act (Federal Law no. 103FZ of 15 July 1995) provides that detainees should be given free food sufficient to maintain them in good health according to standards established by the Government of the . Section 23 provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell.\n\nB.  Placement in custody and detention\n\n25.  Until 1 July 2002 criminal law matters were governed by the Code of Criminal Procedure of the  (Law of 27 October 1960, “the old CCrP”). From 1 July 2002 the old CCrP was replaced by the Code of Criminal Procedure of the  (Law no. 174-FZ of 18 December 2001, “the new CCrP”).\n\n1.  Preventive measures.\n\n1.  Preventive measures.\n\n1.  Preventive measures.\n\n26.  “Preventive measures” or “measures of restraint” include an undertaking not to leave a town or region, a personal guarantee, bail and remand in custody (Article 89 of the old CCrP, Article 98 of the new CCrP).\n\n2.  Authorities ordering detention\n\n2.  Authorities ordering detention\n\n2.  Authorities ordering detention\n\n2.  Authorities ordering detention\n\n27.  The Russian Constitution of 12 December 1993 provides that a judicial decision is required before a defendant can be detained or his or her detention extended (Article 22).\n\nUnder the old CCrP, a decision ordering detention could be taken by a prosecutor or a court (Articles 11, 89 and 96).\n\nThe new CCrP requires a judicial decision by a district or town court on a reasoned request by a prosecutor, supported by appropriate evidence (Article 108 §§ 1, 3-6).\n\n3.  Grounds for remand in custody\n\n28.  When deciding whether to remand an accused in custody, the competent authority is required to consider whether there are “sufficient grounds to believe” that he or she would abscond during the investigation or trial or obstruct the establishment of the truth or reoffend (Article 89 of the old CCrP). It must also take into account the gravity of the charge and information on the accused's character, his or her profession, age, state of health, family status and other circumstances (Article 91 of the old CCrP, Article 99 of the new CCrP).\n\n28.  When deciding whether to remand an accused in custody, the competent authority is required to consider whether there are “sufficient grounds to believe” that he or she would abscond during the investigation or trial or obstruct the establishment of the truth or reoffend (Article 89 of the old CCrP). It must also take into account the gravity of the charge and information on the accused's character, his or her profession, age, state of health, family status and other circumstances (Article 91 of the old CCrP, Article 99 of the new CCrP).\n\n28.  When deciding whether to remand an accused in custody, the competent authority is required to consider whether there are “sufficient grounds to believe” that he or she would abscond during the investigation or trial or obstruct the establishment of the truth or reoffend (Article 89 of the old CCrP). It must also take into account the gravity of the charge and information on the accused's character, his or her profession, age, state of health, family status and other circumstances (Article 91 of the old CCrP, Article 99 of the new CCrP).\n\n28.  When deciding whether to remand an accused in custody, the competent authority is required to consider whether there are “sufficient grounds to believe” that he or she would abscond during the investigation or trial or obstruct the establishment of the truth or reoffend (Article 89 of the old CCrP). It must also take into account the gravity of the charge and information on the accused's character, his or her profession, age, state of health, family status and other circumstances (Article 91 of the old CCrP, Article 99 of the new CCrP).\n\n29.  Before 14 March 2001, remand in custody was authorised if the accused was charged with a criminal offence carrying a sentence of at least one year's imprisonment or if there were “exceptional circumstances” in the case (Article 96). On 14 March 2001 the old CCrP was amended to permit defendants to be remanded in custody if the charge carried a sentence of at least two years' imprisonment, if they had previously defaulted, had no permanent residence in Russia or if their identity could not be ascertained. The amendments of 14 March 2001 also repealed the provision that permitted defendants to be remanded in custody on the sole ground of the dangerous nature of the criminal offence they had allegedly committed. The new CCrP reproduced the amended provisions (Articles 97 § 1 and 108 § 1) and added that a defendant should not be remanded in custody if a less severe preventive measure was available.\n\n4.  Arrest and release following the arrest\n\n30.  Article 94 of the new CCrP prescribes that on expiration of fortyeight hours following arrest an accused should be released if a decision authorising his detention has not been issued or if a court has adjourned consideration of the detention issue. If a decision authorising an accused's placement in custody or extension of his detention has not been issued within forty-eight hours of the arrest the head of a detention facility should release the accused after notifying investigating authorities or a prosecutor of the release.\n\n5.  Time-limits for detention\n\n(a)  Two types of remand in custody\n\n31.  The Codes make a distinction between two types of remand in custody: the first being “during investigation”, that is while a competent agency – the police or a prosecutor's office – is investigating the case, and the second being “before the court” (or “during judicial proceedings”), at the judicial stage. Although there is no difference in practice between them (the detainee is held in the same detention facility), the calculation of the time-limits is different.\n\n(b)  Time-limits for detention “during investigation”\n\n(b)  Time-limits for detention “during investigation”\n\n(b)  Time-limits for detention “during investigation”\n\n(b)  Time-limits for detention “during investigation”\n\n32.  After arrest the suspect is placed in custody “during investigation”. The maximum permitted period of detention “during investigation” is two months, but this can be extended for up to eighteen months in “exceptional circumstances”. Under the old CCrP, extensions were authorised by prosecutors of ascending hierarchical levels but they must now be authorised by judicial decisions taken by courts of ascending levels (under the new CCrP). No extension of detention “during investigation” beyond eighteen months is possible (Article 97 of the old CCrP, Article 109 § 4 of the new CCrP).\n\n32.  After arrest the suspect is placed in custody “during investigation”. The maximum permitted period of detention “during investigation” is two months, but this can be extended for up to eighteen months in “exceptional circumstances”. Under the old CCrP, extensions were authorised by prosecutors of ascending hierarchical levels but they must now be authorised by judicial decisions taken by courts of ascending levels (under the new CCrP). No extension of detention “during investigation” beyond eighteen months is possible (Article 97 of the old CCrP, Article 109 § 4 of the new CCrP).\n\n33.  The period of detention “during investigation” is calculated up to the date on which the prosecutor sends the case to the trial court (Article 97 of the old CCrP, Article 109 § 9 of the new CCrP).\n\n33.  The period of detention “during investigation” is calculated up to the date on which the prosecutor sends the case to the trial court (Article 97 of the old CCrP, Article 109 § 9 of the new CCrP).\n\n33.  The period of detention “during investigation” is calculated up to the date on which the prosecutor sends the case to the trial court (Article 97 of the old CCrP, Article 109 § 9 of the new CCrP).\n\n33.  The period of detention “during investigation” is calculated up to the date on which the prosecutor sends the case to the trial court (Article 97 of the old CCrP, Article 109 § 9 of the new CCrP).\n\n34.  Access to the materials in the file is to be granted no later than one month before the expiry of the authorised detention period (Article 97 of the old CCrP, Article 109 § 5 of the new CCrP). If the defendant needs more time to study the case file, a judge, on a request by a prosecutor, may grant an extension of the detention until such time as the file has been read in full and the case sent for trial (Article 97 of the old CCrP, Article 109 § 8 (1) of the new CCrP). Under the old CCrP, such an extension could not be granted for longer than six months.\n\n34.  Access to the materials in the file is to be granted no later than one month before the expiry of the authorised detention period (Article 97 of the old CCrP, Article 109 § 5 of the new CCrP). If the defendant needs more time to study the case file, a judge, on a request by a prosecutor, may grant an extension of the detention until such time as the file has been read in full and the case sent for trial (Article 97 of the old CCrP, Article 109 § 8 (1) of the new CCrP). Under the old CCrP, such an extension could not be granted for longer than six months.\n\n34.  Access to the materials in the file is to be granted no later than one month before the expiry of the authorised detention period (Article 97 of the old CCrP, Article 109 § 5 of the new CCrP). If the defendant needs more time to study the case file, a judge, on a request by a prosecutor, may grant an extension of the detention until such time as the file has been read in full and the case sent for trial (Article 97 of the old CCrP, Article 109 § 8 (1) of the new CCrP). Under the old CCrP, such an extension could not be granted for longer than six months.\n\n35.  Under the old CCrP, the trial court was entitled to refer the case back for “additional investigation” if it found procedural defects that could not be remedied at the trial. In such cases the defendant's detention was again classified as “during investigation” and the relevant time-limit continued to apply. If, however, the case was remitted for additional investigation but the investigators had already used up all the time authorised for detention “during investigation”, a supervising prosecutor could nevertheless extend the detention period for one additional month, starting from the date on which he or she received the case. Subsequent extensions could only be granted if the detention “during investigation” had not exceeded eighteen months (Article 97).\n\n(c)  Time-limits for detention “before the court”/”during judicial proceedings”\n\n36.  From the date the prosecutor refers the case to the trial court the defendant's detention is classified as “before the court” (or “during judicial proceedings”).\n\n36.  From the date the prosecutor refers the case to the trial court the defendant's detention is classified as “before the court” (or “during judicial proceedings”).\n\n36.  From the date the prosecutor refers the case to the trial court the defendant's detention is classified as “before the court” (or “during judicial proceedings”).\n\n36.  From the date the prosecutor refers the case to the trial court the defendant's detention is classified as “before the court” (or “during judicial proceedings”).\n\n37.  Before 15 June 2001 the old CCrP set no time-limit for detention “during judicial proceedings”. On 15 June 2001 a new Article, 239-1, entered into force which established that the period of detention “during judicial proceedings” could not generally exceed six months from the date the court received the file. However, if there was evidence to show that the defendant's release might impede a thorough, complete and objective examination of the case, a court could – of its own motion or at the request of a prosecutor – extend the detention by no longer than three months. These provisions did not apply to defendants charged with particularly serious criminal offences.\n\n37.  Before 15 June 2001 the old CCrP set no time-limit for detention “during judicial proceedings”. On 15 June 2001 a new Article, 239-1, entered into force which established that the period of detention “during judicial proceedings” could not generally exceed six months from the date the court received the file. However, if there was evidence to show that the defendant's release might impede a thorough, complete and objective examination of the case, a court could – of its own motion or at the request of a prosecutor – extend the detention by no longer than three months. These provisions did not apply to defendants charged with particularly serious criminal offences.\n\n37.  Before 15 June 2001 the old CCrP set no time-limit for detention “during judicial proceedings”. On 15 June 2001 a new Article, 239-1, entered into force which established that the period of detention “during judicial proceedings” could not generally exceed six months from the date the court received the file. However, if there was evidence to show that the defendant's release might impede a thorough, complete and objective examination of the case, a court could – of its own motion or at the request of a prosecutor – extend the detention by no longer than three months. These provisions did not apply to defendants charged with particularly serious criminal offences.\n\n37.  Before 15 June 2001 the old CCrP set no time-limit for detention “during judicial proceedings”. On 15 June 2001 a new Article, 239-1, entered into force which established that the period of detention “during judicial proceedings” could not generally exceed six months from the date the court received the file. However, if there was evidence to show that the defendant's release might impede a thorough, complete and objective examination of the case, a court could – of its own motion or at the request of a prosecutor – extend the detention by no longer than three months. These provisions did not apply to defendants charged with particularly serious criminal offences.\n\n38.  The new CCrP provides that the term of detention “during judicial proceedings” is calculated from the date the court receives the file to the date on which judgment is given. The period of detention “during judicial proceedings” may not normally exceed six months, but if the case concerns serious or particularly serious criminal offences, the trial court may approve one or more extensions of no longer than three months each (Article 255 §§ 2 and 3).\n\n6.  Proceedings to examine the lawfulness of detention\n\n(a)  Detention “during investigation”\n\n39.  Under the old CCrP, the detainee or his or her counsel or representative could challenge a detention order issued by a prosecutor, and any subsequent extension order, before a court. The judge was required to review the lawfulness of and justification for a detention or extension order no later than three days after receipt of the relevant papers. The review was to be conducted in camera in the presence of a prosecutor and the detainee's counsel or representative. The detainee was to be summoned and a review in his absence was only permissible in exceptional circumstances, if the detainee waived his right to be present of his own free will. The judge could either dismiss the challenge or revoke the pre-trial detention and order the detainee's release (Article 220-1). An appeal to a higher court lay against the judge's decision. It had to be examined within the same time-limit as appeals against a judgment on the merits (see paragraph 96 below) (Article 331 in fine).\n\n40.  Under the new CCrP, an appeal against a judicial decision ordering or extending detention may be lodged with a higher court within three days. The appeal court must rule on the appeal within three days of its receipt (Article 108 § 10).\n\n(b)  During judicial proceedings\n\n(b)  During judicial proceedings\n\n(b)  During judicial proceedings\n\n41.  Upon receipt of the case file, the judge must determine, in particular, whether the defendant should be held in custody or released pending the trial hearings (Article 222 § 5 and Article 230 of the old CCrP, Article 228 (3) and Article 231 § 2 (6) of the new CCrP) and rule on any application by the defendant for release (Article 223 of the old CCrP).\n\n42.  At any time during the judicial proceedings the court may order, vary or revoke any preventive measure, including remand in custody (Article 260 of the old CCrP, Article 255 § 1 of the new CCrP). Any such decision must be given in the deliberation room and signed by all the judges on the bench (Article 261 of the old CCrP, Article 256 of the new CCrP).\n\n43.  An appeal against such a decision lies to a higher court. It must be lodged within ten days and examined within the same time-limit as an appeal against the judgment on the merits (Article 331 of the old CCrP, Article 255 § 4 of the new CCrP – see paragraph 96 below).\n\n7.  Time-limits for trial proceedings\n\n7.  Time-limits for trial proceedings\n\n7.  Time-limits for trial proceedings\n\n7.  Time-limits for trial proceedings\n\n44.  Under the old CCrP, within fourteen days of receipt of the case file (if the defendant was in custody), the judge was required either: (1) to fix a date for the trial; (2) to refer the case back for further investigation; (3) to stay or discontinue the proceedings; or (4) to refer the case to a court having jurisdiction to hear it (Article 221). The new CCrP empowers the judge, within the same time-limit, (1) to refer the case to a competent court; (2) to fix a date for a preliminary hearing; or (3) to fix a trial date (Article 227). In the latter case, the trial proceedings must begin no later than fourteen days after the judge has fixed the trial date (Article 239 of the old CCrP, Article 233 § 1 of the new CCrP). There are no restrictions on fixing the date of a preliminary hearing.\n\n45.  The duration of the entire trial proceedings is not limited in time.\n\n45.  The duration of the entire trial proceedings is not limited in time.\n\n45.  The duration of the entire trial proceedings is not limited in time.\n\n46.  Under the old CCrP, the appeal court was required to examine an appeal against the first-instance judgment within ten days after it was lodged. In exceptional circumstances or in complex cases or in proceedings before the Supreme Court this period could be extended by up to two months (Article 333). No further extensions were possible.\n\nThe new CCrP provides that the appeal court must start the examination of the appeal no later than one month after it is lodged (Article 374).\n\nC.  Relation between a period of pre-trial detention and duration of a sentence\n\nC.  Relation between a period of pre-trial detention and duration of a sentence\n\n47.   Article 72 §§ 3 and 4 of the Russian Criminal Code of 1996 provides that the time spent by the accused person in pre-trial detention and detention pending trial is included in the duration of the deprivation of liberty pursuant to the conviction.\n\nIII.  RELEVANT INTERNATIONAL DOCUMENTS\n\nGeneral conditions of detention\n\n48.  The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) visited the  from 2 to 17 December 2001. The section of its Report to the Russian Government (CPT/Inf (2003) 30) dealing with the conditions of detention in temporary holding facilities and remand establishments and the complaints procedure read as follows:\n\n“b.  temporary holding facilities for criminal suspects (IVS)\n\n26.  According to the 1996 Regulations establishing the internal rules of Internal Affairs temporary holding facilities for suspects and accused persons, the living space per person should be 4 m². It is also provided in these regulations that detained persons should be supplied with mattresses and bedding, soap, toilet paper, newspapers, games, food, etc. Further, the regulations make provision for outdoor exercise of at least one hour per day.\n\nThe actual conditions of detention in the IVS establishments visited in 2001 varied considerably.\n\n...\n\n45.  It should be stressed at the outset that the CPT was pleased to note the progress being made on an issue of great concern for the Russian penitentiary system: overcrowding.\n\nWhen the CPT first visited the  in November 1998, overcrowding was identified as the most important and urgent challenge facing the prison system. At the beginning of the 2001 visit, the delegation was informed that the remand prison population had decreased by 30,000 since 1 January 2000. An example of that trend was SIZO No 1 in , which had registered a 30% decrease in the remand prison population over a period of three years.\n\n...\n\nThe CPT welcomes the measures taken in recent years by the Russian authorities to address the problem of overcrowding, including instructions issued by the Prosecutor General's Office, aimed at a more selective use of the preventive measure of remand in custody. Nevertheless, the information gathered by the Committee's delegation shows that much remains to be done. In particular, overcrowding is still rampant and regime activities are underdeveloped. In this respect, the CPT reiterates the recommendations made in its previous reports (cf. paragraphs 25 and 30 of the report on the 1998 visit, CPT (99) 26; paragraphs 48 and 50 of the report on the 1999 visit, CPT (2000) 7; paragraph 52 of the report on the 2000 visit, CPT (2001) 2).\n\n...\n\n125.  As during previous visits, many prisoners expressed scepticism about the operation of the complaints procedure. In particular, the view was expressed that it was not possible to complain in a confidential manner to an outside authority. In fact, all complaints, regardless of the addressee, were registered by staff in a special book which also contained references to the nature of the complaint. At Colony No 8, the supervising prosecutor indicated that, during his inspections, he was usually accompanied by senior staff members and prisoners would normally not request to meet him in private “because they know that all complaints usually pass through the colony's administration”.\n\nIn the light of the above, the CPT reiterates its recommendation that the Russian authorities review the application of complaints procedures, with a view to ensuring that they are operating effectively. If necessary, the existing arrangements should be modified in order to guarantee that prisoners can make complaints to outside bodies on a truly confidential basis.”\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE CONDITIONS OF THE APPLICANT'S DETENTION IN FACILITY NO. IZ-37/1\n\n49.  The applicant complained that the conditions of his detention in facility no. IZ-37/1 in  had been in breach of Article 3 of the Convention, which reads as follows:\n\n“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”\n\nA.  Submissions by the parties\n\n50.  In their observations lodged with the Court on 23 January 2008 the Government firstly submitted that in view of the applicant's failure to raise his grievances before any competent Russian authority the present complaint should be dismissed for failure to exhaust domestic remedies. In particular, they argued that the applicant could have improved his situation by lodging complaints with the administration of the detention facility or bringing an action in tort. The Government stressed that there exists an effective judicial practice of tort actions in the  by which detainees are able to obtain compensation for damage resulting from their detention in unsatisfactory conditions. The Government cited a case of a Mr D., who had been awarded 25,000 Russian roubles (RUB) against the Federal Service for Execution of Sentences in compensation for damage which had caused him to be infected with scabies in a remand prison.\n\n50.  In their observations lodged with the Court on 23 January 2008 the Government firstly submitted that in view of the applicant's failure to raise his grievances before any competent Russian authority the present complaint should be dismissed for failure to exhaust domestic remedies. In particular, they argued that the applicant could have improved his situation by lodging complaints with the administration of the detention facility or bringing an action in tort. The Government stressed that there exists an effective judicial practice of tort actions in the  by which detainees are able to obtain compensation for damage resulting from their detention in unsatisfactory conditions. The Government cited a case of a Mr D., who had been awarded 25,000 Russian roubles (RUB) against the Federal Service for Execution of Sentences in compensation for damage which had caused him to be infected with scabies in a remand prison.\n\n51.  In another line of argument the Government, while alleging that the applicant's complaint was manifestly ill-founded, acknowledged that the domestic sanitary norm of four square metres of personal space per inmate had not always been respected in detention facility no. IZ-37/1. However, they stressed that failure to respect such a sanitary norm should not immediately lead to a finding a violation of Article 3 of the Convention, as the Court should take into account the remaining features of the conditions of the applicant's decision (lighting, sanitary conditions, privacy, etc.) which complied with domestic legal requirements and the guarantees of Article 3 of the Convention.\n\n51.  In another line of argument the Government, while alleging that the applicant's complaint was manifestly ill-founded, acknowledged that the domestic sanitary norm of four square metres of personal space per inmate had not always been respected in detention facility no. IZ-37/1. However, they stressed that failure to respect such a sanitary norm should not immediately lead to a finding a violation of Article 3 of the Convention, as the Court should take into account the remaining features of the conditions of the applicant's decision (lighting, sanitary conditions, privacy, etc.) which complied with domestic legal requirements and the guarantees of Article 3 of the Convention.\n\n52.  In their further observations lodged with the Court on 8 May 2008 the Government submitted that an internal inquiry into the applicant's complaints concerning the conditions of his detention had been carried out. The inquiry confirmed that the applicant had been detained in overcrowded cells. As a result of the inquiry a decision had been taken to institute disciplinary proceedings against officials of the facility responsible for admitting an excessive number of inmates to the facility. However, in view of the fact that the officials responsible no longer worked in the detention facility, the proceedings were discontinued.\n\n53.  The applicant insisted that the conditions of his detention had been inhuman and degrading. He pointed to the Government's failure to correctly cite the certificate issued by the facility director in respect of the number of detainees. The applicant noted that the director had merely indicated an average number of inmates and had failed to produce original records listing the exact number of inmates in the cells on different dates or to indicate the maximum number of inmates detained together with the applicant.\n\nB.  The Court's assessment\n\n1.  Admissibility\n\n54.  As to the Government's objection about the applicant's failure to exhaust domestic remedies, the Court has already rejected identical objections by the Russian Government in a number of cases regarding the conditions of detention, having found that neither a complaint to the administration of a detention facility (see Benediktov v. , no. 106/02, § 29, 10 May 2007, with further references) nor a tort action (see, for example, Aleksandr Makarov v. Russia, no. 15217/07, §§ 82-91, 12 March 2009, and, most recently, Artyomov v. Russia, no. 14146/02, § 112, 27 May 2010) could be regarded as an effective remedy for the purpose of Article 35 § 1 of the Convention. Moreover, in the case of Nazarov v.  (no. 13591/05, § 77, 26 November 2009) the Court has dealt with the Government's argument on the basis of the reference to the award made by the Russian courts in favour of a Mr D. The Court noted that the problems arising from the conditions of the applicant's detention had apparently been of a structural nature, for which no effective domestic remedy had been shown to exist, and that the case to which the Government had referred did not concern detention in overcrowded cells but rather a detainee's infection with scabies. The Court finds no reason to depart from its previous findings in the present case. Accordingly, it dismisses the Government's objection as to non-exhaustion of domestic remedies.\n\n55.  The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\n2.  Merits\n\n56.  The Court observes that the parties have disputed certain aspects of the conditions of the applicant's detention in facility no. IZ-37/1 in . However, there is no need for the Court to establish the veracity of each and every allegation, because it finds a violation of Article 3 on the basis of the facts which have been presented to it and which the respondent Government did not refute.\n\n57.  The focal point for the Court's assessment is the living space afforded to the applicant in the detention facility. The main characteristic which the parties did agree upon was the size of the cells in which the applicant had been detained. The applicant claimed that the number of detainees in the cells had considerably exceeded their design capacity. Although in their final observations to the Court the Government no longer disputed the overcrowding in the cells, the Court still considers it necessary to address the evidence presented to it by the Government in support of their description of the conditions of the applicant's detention.\n\n58.  The Court notes that in their initial observations the Government, relying on certificates issued by the director of the detention facility four years after the applicant's detention in that facility had come to an end, submitted that the applicant had had an individual sleeping place at all times. At the same time they did not refer to any original source of information on the basis of which their assertion could be verified. In this connection the Court notes that on several previous occasions when the Government have failed to submit original records it has held that documents prepared after a considerable period of time cannot be viewed as sufficiently reliable, given the length of time that has elapsed (see, among recent authorities, Novinskiy v. Russia, no. 11982/02, § 105, 10 February 2009, and Shilbergs v. Russia, no. 20075/03, § 91, 7 December 2009). The Court is of the view that these considerations hold true in the present case. The certificates prepared by the Russian authorities four years after the events in question cannot be regarded as sufficiently reliable sources of data.\n\n59.  Accordingly, having regard to the Government's admission made in their final observations (see paragraph 52 above), the Court finds it established that the cells in facility no. IZ-37/1 were overcrowded. The Court also accepts the applicant's submissions that, owing to the overpopulation in the cells and the resulting lack of sleeping places, he had to take turns with other inmates to rest. Given the size of the cells and number of detainees detained in them at the same time, the Court entertains doubt that there was sufficient floor space even to pace out the cell.\n\n60.  Irrespective of the reasons for the overcrowding, the Court reiterates that it is incumbent on the respondent Government to organise its penitentiary system in such a way as to ensure respect for the dignity of detainees, regardless of financial or logistical difficulties (see Mamedova v. Russia, no. 7064/05, § 63, 1 June 2006).\n\n61.  The Court has frequently found a violation of Article 3 of the Convention on account of lack of personal space afforded to detainees (see Khudoyorov v. Russia, no. 6847/02, §§ 104 et seq., ECHR 2005-... (extracts); Labzov v. Russia, no. 62208/00, §§ 44 et seq., 16 June 2005; Novoselov v. Russia, no. 66460/01, §§ 41 et seq., 2 June 2005; Mayzit v. Russia, no. 63378/00, §§ 39 et seq., 20 January 2005; Kalashnikov v. Russia, no. 47095/99, §§ 97 et seq., ECHR 2002-VI; and Peers v. , no. 28524/95, §§ 69 et seq., ECHR 2001-III). More specifically, the Court reiterates that it has already found a violation of Article 3 on account of detention of applicants in overcrowded conditions in detention facility no. IZ-37/1 (see Korobov and Others v. , no. 67086/01, §§ 22-30, 27 March 2008).\n\n62.  Having regard to its case-law on the subject and the material submitted by the parties, the Court notes that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Although in the present case there is no indication that there was a positive intention to humiliate or debase the applicant, the Court finds that the fact that the applicant was obliged to live, sleep and use the toilet in the same cell as so many other inmates for almost a year was itself sufficient to cause distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention, and to arouse in him feelings of fear, anguish and inferiority capable of humiliating and debasing him.\n\n63.  The Court finds, accordingly, that there has been a violation of Article 3 of the Convention because the applicant was subjected to inhuman and degrading treatment on account of the conditions of his detention in facility no. IZ-37/1 in .\n\nII.  ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION\n\n64.  The applicant complained under Article 5 § 1 (c) of the Convention that his detention from 8 to 9 June 2003 had been unlawful. The relevant parts of Article 5 provide:\n\n“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:\n\n...\n\n(c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so...”\n\nA.  Submissions by the parties\n\n65.  In their observations lodged with the Court on 23 January 2008 the Government first submitted that by virtue of Article 109 of the new Russian CCrP the initial period of a suspect's detention may not exceed two months. They further acknowledged that in violation of Article 109 § 10 (1) of the new CCrP the Teykovo Town Court had not included the three days of the applicant's detention in April 2003 in the two-month period of his detention authorised on 11 April 2003. However, the Government stressed that the applicant's complaint was inadmissible because he had failed to exhaust domestic remedies. Neither in the hearing on 11 April 2003 nor in his grounds of appeal against the decision of 11 April 2003 did the applicant dispute the lawfulness of his detention from 8 to 9 June 2003. It was not until 3 July 2003 that the matter was addressed by the . The Government pointed out that the  had immediately accepted the applicant's arguments and had added the period from 8 to 9 June 2003 to the entire period of the applicant's detention on remand. In the alternative, the Government submitted that the applicant was no longer a victim of the alleged violation as, having acknowledged the mistake, the domestic courts had corrected it by deducting the period from the applicant's sentence.\n\n66.  In their further observations lodged with the Court on 8 May 2008 the Government stressed that the entire period of the applicant's detention, including the period from 8 to 9 June 2003, had been lawful, particularly so because the time spent by the applicant in pre-trial detention had been included in the term of his sentence.\n\n67.  The applicant maintained his complaints, arguing that his detention from 8 to 9 June 2003 had been unlawful. He had raised the complaint before the domestic courts on a number of occasions. However, they had been to no avail. In particular, on 3 July 2003 the  had completely disregarded his arguments pertaining to that period of his detention. The applicant accepted the Government's assertion that on 3 July 2003 the  had acknowledged the mistake. However, no redress for the violation of his right had been offered. The applicant further submitted that the post factum authorisation of that period of his detention could not legitimise it. In addition, the inclusion of that period in the sentence was not “appropriate redress” in the circumstances of the case.\n\nThe Court's assessment\n\n1.  Admissibility\n\n(a)  Exhaustion issue\n\n68.  The Court notes the Government's submission that the applicant had failed to complain to the  at the hearing on 11 April 2003, or to the  in his grounds of appeal against the decision of 11 April 2003, that his detention from 8 to 9 June 2003 had been unlawful.\n\n69.   In this connection, the Court reiterates that on 11 April 2003 the  authorised the applicant's placement in custody. The decision did not indicate the date on which the authorised period of the detention was to expire. It also did not contain any indication as to the method of the calculation of the authorised period of the applicant's detention (see paragraph 8 above). However, it follows from the parties' interpretation of the relevant legal provisions of the Russian Code of Criminal Procedure, that the initial period of the applicant's detention was to last no more than two months and was to include the three days of his detention in April 2003. In these circumstances, the Court is of the opinion that in the absence of any indication that on 11 April 2003 the Town Court had erred in application of the domestic law and had incorrectly calculated the two-month period by failing to include the three days of the applicant's detention in April 2003, it was not until 8 June 2003, when, as the parties confirmed, the two-month period of the detention had expired and no further detention order had been issued, that the applicant had learnt about the alleged violation of his right. It is therefore not surprising that he only raised his grievances before the domestic courts for the first time in June 2003, while arguing against a further extension of his detention. It follows that the applicant must be considered to have exhausted the domestic remedies and that the Government's objection as to non-exhaustion of domestic remedies should be dismissed.\n\n(b)  Victim status\n\n70.  Further, the Government argued that the applicant had been deprived of his victim status when the  had deducted the time spent by the applicant in pre-trial detention from his sentence.\n\n71.  The Court observes that it has already addressed the same argument by the Russian Government in the case of Lebedev v. Russia (no. 4493/04, §§ 43-48, 25 October 2007). In particular, having found that by virtue of Article 72 of the Russian Criminal Code the time spent in custody is automatically deducted from the final sentence, irrespective of whether or not it was irregular (see paragraph 47 above), and that the inclusion of the time spent in custody in the overall time to be served by the applicant had therefore not been in any way connected to the alleged violation of Article 5 § 1 of the Convention, the Court concluded that the applicant could not be said to have lost his victim status within the meaning of Article 34 of the Convention.\n\n72.  The Court sees no reason to depart from that finding in the present case. The Government's objection should therefore be dismissed.\n\n(c)  Conclusion\n\n73.  To sum up, the Court notes that this complaint is not manifestly illfounded within the meaning of Article 35 § 3 of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\n2.  Merits\n\n(a)  General principles\n\n(a)  General principles\n\n74.  The Court reiterates that the expressions “lawful” and “in accordance with a procedure prescribed by law” in Article 5 § 1 essentially refer back to national law and state the obligation to conform to the substantive and procedural rules thereof. However, the “lawfulness” of detention under domestic law is not always the decisive element. The Court must in addition be satisfied that detention during the period under consideration was compatible with the purpose of Article 5 § 1 of the Convention, which is to prevent persons from being deprived of their liberty in an arbitrary fashion.\n\n75.  The Court must moreover ascertain whether domestic law itself is in conformity with the Convention, including the general principles expressed or implied therein. On this last point, the Court stresses that where deprivation of liberty is concerned it is particularly important that the general principle of legal certainty be satisfied. It is therefore essential that the conditions for deprivation of liberty under domestic law be clearly defined and that the law itself be foreseeable in its application, so that it meets the standard of “lawfulness” set by the Convention, a standard which requires that all law be sufficiently precise to allow the person – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see Ječius v. Lithuania, no. 34578/97, § 56, ECHR 2000-IX, and Baranowski v. Poland, no. 28358/95, §§ 50-52, ECHR 2000-III).\n\n(b)  Application of the general principles to the present case\n\n76.  The Court once again reiterates that the applicant's placement in custody was authorised by the  on 11 April 2003. It follows from the Government's submissions that the  was in violation of domestic legal norms by not including the applicant's detention in April 2003 in the calculation of the initial two-month period of his detention. As a consequence of that omission, despite the fact that (this was not disputed by the parties) the initial two-month period of the applicant's detention had expired on 8 June 2003, taking into account the time spent by him in detention in April 2003, it was not until 9 June 2003 that the Town Court authorised a further extension of his detention.\n\n77.  The Court reiterates that for detention to be “lawful” within the meaning of Article 5 § 1, it has to conform to both the substantive and procedural rules of the domestic law (see paragraph 74 above). The authorised period of the applicant's detention expired on 8 June 2003. It was only on the following day that the  issued the subsequent detention order. In this connection, the Court observes that the Government did not point to any legal provision which permitted an accused to continue to be held once the authorised detention period had expired. The Russian Constitution and rules of criminal procedure vested the power to order or extend detention in courts (see paragraph 27 above). No exceptions to that rule were permitted or provided for, no matter how short the duration of the detention.\n\n78.  The Court further observes that even though the Town Court decision of 3 July 2003 purported to cover, to some extent, the applicant's detention from 8 to 9 June 2003, it could not have constituted a “lawful” basis for his detention in the period preceding the date of its issue (see Belov v. Russia, no. 22053/02, § 82, 3 July 2008, with further references). The  emphasised that Russian law did not contain “any provisions permitting the court to take a decision extending the defendant's detention [some time] after the previously authorised time-limit ha[d] expired, in which case the person [would be] detained for a period without a judicial decision” (as cited in the Khudoyorov judgment, cited below, § 56). As the Court has already held in a number of cases, any ex post factum authorisation of detention is incompatible with the “right to security of person” as it is necessarily tainted with arbitrariness (see, for example, Khudoyorov v. Russia, no. 6847/02, § 142, ECHR 2005X (extracts); Solovyev v. Russia, no. 2708/02, § 99, 24 May 2007; and Shukhardin v. Russia, no. 65734/01, § 69, 28 June 2007). The Court sees no reason to reach a different conclusion in the present case. It follows that the applicant's detention, in so far as it had been addressed by the decision of 3 July 2003 in respect of the preceding period, was not “lawful” under domestic law.\n\n78.  The Court further observes that even though the Town Court decision of 3 July 2003 purported to cover, to some extent, the applicant's detention from 8 to 9 June 2003, it could not have constituted a “lawful” basis for his detention in the period preceding the date of its issue (see Belov v. Russia, no. 22053/02, § 82, 3 July 2008, with further references). The  emphasised that Russian law did not contain “any provisions permitting the court to take a decision extending the defendant's detention [some time] after the previously authorised time-limit ha[d] expired, in which case the person [would be] detained for a period without a judicial decision” (as cited in the Khudoyorov judgment, cited below, § 56). As the Court has already held in a number of cases, any ex post factum authorisation of detention is incompatible with the “right to security of person” as it is necessarily tainted with arbitrariness (see, for example, Khudoyorov v. Russia, no. 6847/02, § 142, ECHR 2005X (extracts); Solovyev v. Russia, no. 2708/02, § 99, 24 May 2007; and Shukhardin v. Russia, no. 65734/01, § 69, 28 June 2007). The Court sees no reason to reach a different conclusion in the present case. It follows that the applicant's detention, in so far as it had been addressed by the decision of 3 July 2003 in respect of the preceding period, was not “lawful” under domestic law.\n\n79.  The Court thus concludes that from 8 to 9 June 2003 there was no formal decision authorising the applicant's detention. The applicant was in a legal vacuum that was not covered by any domestic legal provision (see Shukhardin, cited above, § 85). In the absence of any decision that could have served as a “lawful” basis for the applicant's detention in the impugned period, the Court finds that there has been a violation of Article 5 § 1 (c) of the Convention on account of the applicant's detention from 8 to 9 June 2003.\n\nIII.  ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION\n\n80.  The applicant complained about the procedure relating to the extension of his pre-trial detention, in particular that his lawyer had not been able to attend the hearing on 9 June 2003 and that he had not been served with the materials presented by the investigator to the Town Court in support of his request for the extension of the applicant's detention after 9 June 2003. The Court will examine this complaint under Article 5 § 4 of the Convention, which reads as follows:\n\n“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”\n\nA.  Submissions by the parties\n\n81.  The Government, relying on the transcript of the telephone conversation between the investigator and the applicant's lawyer, argued that despite the fact that the written summons had reached the Bar Association hours before the hearing on 9 June 2003, the lawyer had been notified of the hearing on 5 June 2003 and immediately made clear that he was unable to attend. Having been aware of his lawyer's inability to appear at the hearing, the applicant did not take any steps to retain new counsel. The Government stressed that the lawyer had been duly summoned to the hearing and that his failure to attend because he wished to take part in a seminar could not justify his absence.\n\n82.  The Government further submitted that the applicant had attended the hearing, had been given ample opportunity to state his position and could have asked the  to ensure his legal representation by another lawyer. However, the applicant did not make use of that right.\n\n83.  As regards access to the documents, the Government stressed that Russian law does not impose an obligation on investigating authorities to provide a suspect with copies of materials sent to a court in support of a request for an extension of the suspect's detention. However, by virtue of Article 45 of the Russian Constitution the applicant had a right to study those materials at the court hearing. The documents had been examined at the hearing in the presence of the applicant, who could have commented on them freely, could have raised arguments in his defence, and so on. The applicant did not request additional access to the file. Furthermore, those documents were also the subject of the examination at the appeal hearing before the , when both the applicant and his lawyer attended and could have raised objections.\n\n84.  The applicant, without disputing the fact that on 5 June 2003 his lawyer had been informed about the hearing on 9 June 2003, argued that the telephone conversation could not be considered “an official notification” as it had been done by the investigator by telephone and in the absence of an official authorisation from the presiding judge. The official summons reached the Bar Association on 9 June 2003 when the lawyer was no longer able to attend, having left for a seminar in another town. As regards the inability to study the investigator's materials attached to the request for the extension of the detention, the applicant noted that he had not been served with the documents which could have enabled him to prepare his defence in advance, and that not all the materials presented by the prosecution to the Town Court had been read out at the hearing.\n\nB.  The Court's assessment\n\n1.  The alleged refusal of access to the materials\n\n85.  The Court reiterates that arrested or detained persons are entitled to a review bearing upon the procedural and substantive conditions which are essential for the “lawfulness”, in the sense of the Convention, of their deprivation of liberty. This means that the competent court has to examine “not only compliance with the procedural requirements set out in domestic law but also the reasonableness of the suspicion grounding the arrest and the legitimacy of the purpose pursued by the arrest and the ensuing detention”. A court examining the lawfulness of detention must provide guarantees of a judicial procedure. The proceedings must be adversarial and must always ensure “equality of arms” between the parties, the prosecutor and the detained person. Equality of arms is not ensured if counsel is denied access to those documents in the investigation file which are essential in order effectively to challenge the lawfulness of his client's detention (see Nikolova v. Bulgaria [GC], no. 31195/96, § 58, ECHR 1999-II, and Lamy v. Belgium, 30 March 1989, § 29, Series A no. 151). While national law may satisfy the requirement of “equality of arms” in various ways, whatever method is chosen should ensure that the other party is aware that observations have been submitted and that he or she will have a real opportunity to comment thereon (see Garcia Alva v. Germany, no. 23541/94, § 39, 13 February 2001).\n\n86.  The Court observes that there is no indication in the present case that the applicant did not receive a copy of the investigator's request for extension. The applicant also did not claim that he had been denied an opportunity to comment on it. The thrust of his complaint was directed against the investigator's alleged refusal to grant him access to the materials which formed the basis for the extension request. The Court is, however, not convinced by the applicant's allegation.\n\n87.  Firstly, the Court reiterates the Government's argument that it was the duty on the  to act fairly, as required under Russian law, which entailed an entitlement to full disclosure of the adverse material in the 's possession. As follows from the minutes of the court hearing of 9 June 2003, the  read out in open court the documents attached to the investigator's request for extension. The applicant did not submit any evidence in support of his allegation that the content of certain documents had remained unknown to him. In fact, he was unable to indicate any document to which he had not been granted access. There is no indication that the investigator relied on any documents which the applicant had been unable to inspect.\n\n88.  The Court also does not lose sight of the Government's argument that it was open to the applicant to ask the  for additional time to study the materials to amend the line of his defence, taking into account the content of the documents. In this respect the Court reiterates its finding in the case of Shops v. Germany (no. 25116/94, § 46, ECHR 2001I) that an accused complaining of denial of access to investigation files must in principle have duly applied for such access in compliance with the national law. The Court is of the opinion that the principle is fully applicable to the circumstances of the present case. It therefore finds it significant that following the reading out of the documents the applicant, when questioned by the judge, stated clearly that he had no requests, amendments or objections.\n\n89.  In conclusion, although the Court is concerned that, as the Government pointed, the applicable provisions of the Russian Code of Criminal Procedure do not require that the prosecution's submissions in support of a defendant's detention be communicated either to him or to his lawyer prior to a court hearing, which, in certain cases, may strip the defendant of an opportunity to effectively challenge the lawfulness of his detention (see Shops, cited above, §§ 51-55), it is satisfied that in the circumstances of the present case the applicant was able to consult the documents, to comment on the investigator's request for extension and to effectively challenge the statements or views which the prosecution based on these documents (see, for similar reasoning, Sorokin v. Russia, no. 7739/06, §§ 75-77, 30 July 2009, and, by contrast, Nikolova, cited above, § 63, and Garcia Alva, cited above, §§ 40 to 43). Accordingly, he had an effective opportunity to challenge the reasons for his detention.\n\n90.  It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.\n\n2.  Lawyer's absence from the hearing\n\n91.  The Court notes that from the evidence submitted by the Government, the authenticity of which was not disputed by the applicant, it appears that four days prior to the hearing on 9 June 2003 the investigator informed the applicant's lawyer that a detention hearing would be scheduled and asked him to confirm his availability. The lawyer stressed that he would not be able to attend in view of his participation in a seminar starting on 9 June 2003. Furthermore, the  sent a summons to the lawyer, which reached his office several hours before the hearing. However, the lawyer had already left for the seminar and the summons could not be served on him in person. The hearing of 9 June 2003 was held in the applicant's lawyer's absence.\n\n92.  Although the parties disputed whether the telephone conversation could, in fact, constitute official and sufficiently clear notification of the hearing on 9 June 2003 and whether the applicant's lawyer had waived his right to attend the hearing by departing to the seminar, the Court does not need to settle these differences of opinion. Having acknowledged that the scope of the obligation under Article 5 § 4 is not identical in all circumstances or for every kind of deprivation of liberty, the Court has already held on a number of occasions that it is the nature of the proceedings and the capabilities of an applicant which determine whether legal representation is required by Article 5 § 4 of the Convention in an oral hearing in the context of an adversarial procedure (see Waite v. the United Kingdom, no. 53236/99, § 59, 10 December 2002, and Bouamar v. Belgium, 29 February 1988, § 57, Series A no. 129, with further references). For instance, in the case of Bouamar (cited above) the Court found it to be essential that a lawyer be present at the hearing where the applicant, a juvenile, had been remanded in custody in prison, otherwise an essential safeguard would be denied. The same findings were made by the Court in the case of Megyeri v. Germany (12 May 1992, Series A no. 237A), concerning a person detained on the ground of mental illness, and the case of Sanchez-Reisse v. Switzerland (21 October 1986, § 47, Series A no. 107) pertaining to the detention of a foreigner unfamiliar with the State's legal system. In addition, in the case of Woukam Moudefo v. France no. 10868/84, Commission decision of 8 July 1987), where the appeal concerned complex questions of law, it was found that the applicant had been unable without a lawyer to present his case properly and satisfactorily.\n\n93.  Turning to the circumstances of the present case, the Court notes that the issues discussed during the hearing of 9 June 2003 concerned only the gravity of the charges against the applicant and the risk that he might pervert the course of justice or abscond. That risk was formulated by the prosecutor and the court in general terms and its existence was inferred from the nature and gravity of the charges and the assessment of the applicant's character and personal situation (his employment status and sources of income). Given that the hearing did not involve any discussion of complex legal or factual issues, the Court is satisfied that the applicant's presence was sufficient to ensure that the proceedings were adversarial and the principle of equality of arms was respected. The applicant did not argue that he had been unable to effectively follow the proceedings or to respond to the prosecution's arguments. The same issues had been previously discussed on two other occasions in the applicant's and his counsel's presence and the applicant had had an opportunity to familiarise himself with the position of the prosecution and the arguments advanced by his lawyer in favour of his release. There is no evidence that the applicant's circumstances had materially changed since the previous hearings or that any new arguments were put forward by the prosecution in support of the applicant's continued detention. The fact that the applicant appeared in person before the court, in the circumstances of the case, afforded him the necessary safeguards.\n\n94.  Finally, the Court attributes particular weight to the fact that the applicant did not object to the hearing being held in his counsel's absence (see, for similar reasons, F.W. v. the Netherlands, no. 15519/89, Commission decision of 6 December 1991).\n\n95.  Taking into account that no new issues were examined during the hearing, that the prosecutor did not put forward any new argument, and that the basis for remand in custody was not amended, the Court is of the opinion that the proceedings in which the extension of his detention was examined satisfied the requirements of Article 5 § 4 (see Duda v. Poland, no. 67016/01, §§ 51-52, 19 December 2006).\n\n96.  It follows that this complaint must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.\n\nIV.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION\n\n97.  The Court has examined the other complaints submitted by the applicant. However, having regard to all the material in its possession, and in so far as these complaints fall within the Court's competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.\n\nV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n98.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n99.  The applicant claimed 25,000 euros (EUR) in respect of non-pecuniary damage.\n\n100.  The Government did not comment.\n\n101.  The Court observes that it has found a combination of violations in the present case. The Court accepts that the applicant suffered humiliation and distress on account of the inhuman and degrading conditions of his detention and the absence of a legal basis for his detention from 8 to 9 June 2003. In these circumstances, it considers that the applicant's suffering and frustration cannot be compensated for by a mere finding of a violation. Making its assessment on an equitable basis, and taking into account in particular, the length of the applicant's detention in the inhuman and degrading conditions, it awards him 10,000 euros (EUR) in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.\n\nB.  Costs and expenses\n\n102.  The applicant did not make any claims for costs and expenses incurred before the domestic courts and the Court.\n\n103.  Accordingly, the Court does not award anything under this head.\n\nC.  Default interest\n\n104.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Declares the complaint concerning the conditions of the applicant's detention in facility no. IZ-37/1 in  and the unlawfulness of his detention from 8 to 9 June 2003 admissible and the remainder of the application inadmissible;\n\n2.  Holds that there has been a violation of Article 3 of the Convention;\n\n3.  Holds that there has been a violation of Article 5 § 1 (c) the Convention;\n\n4.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 10,000 (ten thousand euros) in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable on the date of the settlement, plus any tax that may be chargeable;\n\n(b)  that from the expiry of the above-mentioned three months until settlement, simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;\n\n5.  Dismisses the remainder of the applicant's claim for just satisfaction.\n\nDone in English, and notified in writing on 4 November 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_426","text":"PROCEDURE\n\n1.  The case originated in an application (no. 35939/10) against the Republic of Latvia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a permanently resident non-citizen of the , Mr Genadijs Mihailovs (“the applicant”), on 29 June 2010.\n\n2.  The applicant, who had been granted legal aid, was represented by Mr A. Zvejsalnieks, a lawyer practising in . The Latvian Government (“the Government”) were represented by their Agent at the time, Mrs I. Reine and subsequently by Mrs K. Līce.\n\n3.  The applicant alleged, among other things, that he had been held against his will in a State social care institution for more than ten years, that he could not obtain release, and that he had been fully dependent on his wife, who had been his guardian, had not represented his interests, and had opposed all attempts by him to defend his rights.\n\n4.  On 29 August 2011 the above-mentioned complaints were communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). In addition, third-party comments were received from the European Disability Forum, the International Disability Alliance and the World Network of Users and Survivors of Psychiatry (“the third parties”), which had been given leave to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3). The respondent Government replied to those comments (Rule 44 § 6).\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n5.  The applicant was born in 1947 and currently lives in a State social care institution in Lielbērze, Auru parish.\n\n6.  Since 1994 the applicant has been recognised as Category 2 disabled. He suffers from epilepsy.\n\nA.  The applicant’s admission to psychiatric hospitals\n\n7.  On 13 March 2000 the applicant was admitted to a psychiatric hospital in .\n\n7.  On 13 March 2000 the applicant was admitted to a psychiatric hospital in .\n\n8.  Following an inpatient forensic psychiatric examination (stacionārā tiesu psihiatriskā ekspertīze) of the applicant ordered in connection with the incapacitation proceedings the experts concluded on 19 April 2000 that he was not suffering from a mental illness. However, he was suffering from epilepsy, which was described as organic in nature with psychotic syndromes and symptoms (organiskas dabas psihosindroma un simptomātiska epilepsija). This conclusion was reached on the basis of the fact that he had had encephalitis, often had small (absence/petit mal) and big (generalised tonic-clonic/grand mal) seizures, obsessive thinking, mood changes with dysphoria, sullenness, vindictiveness, reduced reasoning and some other psychological findings. It was recommended that he be declared legally incapable (rīcībnespējīgs); the experts also noted that owing to his mental state the applicant was not fit to participate in the hearings or to provide adequate explanations.\n\n9.  The applicant was discharged from that hospital on 30 January 2002.\n\n10.  On unspecified dates in 2002 and 2006 the applicant was admitted to another psychiatric hospital, Ģintermuiža, in Jelgava (Jelgavas psihoneiroloģiskā slimnīca “Ģintermuiža”).\n\n11.  From 24 May to 3 June 2011 the applicant was a patient in  in Jelgava.\n\nB.  Incapacitation proceedings and appointment of a guardian\n\n12.  On an unspecified date the applicant’s wife initiated proceedings to have the applicant divested of his legal capacity. For the purposes of those proceedings the Rīga City Ziemeļu District Court (Rīgas pilsētas Ziemeļu rajona tiesa) ordered a forensic psychiatric examination of the applicant.\n\n13.  On 17 May 2000 the city court, in the applicant’s absence, ruled that he was not legally capable. That ruling took effect on 7 June 2000.\n\n14.  On 18 July 2000 the custodial court (Bāriņtiesa) appointed his wife as his guardian (aizgādnis) and explained that a report should be made every year on the fulfilment of guardianship duties.\n\n15.  These reports stated that his wife had visited the applicant in the social care institution once a month in 2004, 2007 and 2008. In other reports she mentioned that she had regularly visited the applicant, without specifying the exact frequency. In two of these reports, dated 1 February 2006 and 29 December 2010, the applicant’s wife noted that his state of health had deteriorated, but she did not give further details.\n\nC.  Referral of the applicant to a social care institution\n\n16.  On 20 November 2000 the applicant’s wife requested that the applicant be placed in a specialised state social care institution. The request contained no information about his state of health; nor were any reasons given. It was a form that was filled in and signed by the applicant’s wife as his guardian.\n\n17.  On 28 November 2000 the Social Assistance Authority (Sociālās palīdzības fonds) attached to the Ministry of Welfare reviewed that request on the basis of the following evaluation that had been made by a social worker: “Category 2 disability. Constant supervision and care. The family has approached 3 PD. On the basis of the psychiatrist’s conclusion [the applicant] should be placed in an institution for people with mental disorders”. The decision was worded as follows: “to put [the applicant] on the waiting list for a referral to a social care institution for people with mental disorders”.\n\n17.  On 28 November 2000 the Social Assistance Authority (Sociālās palīdzības fonds) attached to the Ministry of Welfare reviewed that request on the basis of the following evaluation that had been made by a social worker: “Category 2 disability. Constant supervision and care. The family has approached 3 PD. On the basis of the psychiatrist’s conclusion [the applicant] should be placed in an institution for people with mental disorders”. The decision was worded as follows: “to put [the applicant] on the waiting list for a referral to a social care institution for people with mental disorders”.\n\n18.  On 17 January 2002 the psychiatric hospital where the applicant was a patient at that time issued a medical certificate recommending that he be placed in a social care institution. It was a one-page completed form. It was mentioned that the applicant had Category 2 disability, and that he did not have allergic reactions or infectious diseases. The following tests and analyses were noted: on 24 July 2001 a lung scan, on 9 October 2001 a blood test, on 13 September 2001 an electrocardiology test that established initial diffuse changes in myocardium (Ekg iniciālās difūzas izmaiņas miokardā). It did not contain his diagnosis – the relevant field contained a note that “under section 50 of the Law on Medical Treatment confidential information about the patient will not be provided”. The conclusion was that “owing to his mental state [the applicant] is eligible to be admitted to an institution for persons with mental disorders”.\n\n19.  On 21 January 2002 the Social Assistance Authority issued a referral for the applicant to receive social care services in the  Social and Psychological Rehabilitation Centre which was located 20 km from Dobele in Īle parish (the “Īle Centre”).\n\n20.  On 30 January 2002 the applicant was admitted to the Īle Centre. Individuals could move around freely within the centre, but needed to inform the management if they wished to leave it. Individuals who had been divested of legal capacity and wished to leave had to have that request agreed by their guardians. Having regard to the applicant’s state of health, he was included in a risk group “patients with epilepsy” and was permitted to leave the premises only if accompanied by a staff member or another patient.\n\n21.  On 17 August 2007 the applicant’s wife asked the Īle Centre not to allow the applicant to meet a certain Mr Petrovs, since after his visits the applicant’s state of health allegedly worsened. On 17 December 2009 his wife instructed the Īle Centre to refuse any visits for the applicant without her written permission.\n\n22.  On 16 September 2008 the applicant’s wife issued a power of attorney for a social worker of the Īle Centre to receive letters on behalf of the applicant.\n\n23.  On 1 January 2010, following a State-wide reform of social care institutions, the Īle Centre became a branch of the Zemgale State Social Care Centre.\n\n23.  On 1 January 2010, following a State-wide reform of social care institutions, the Īle Centre became a branch of the Zemgale State Social Care Centre.\n\n24.  On 1 April 2010 the Īle Centre was relocated to other premises in Lielbērze, Auru parish, some 4 km from Dobele and some 80 km from .\n\n25.  In response to a query from the above-mentioned Mr Petrovs about visiting rights, the Īle Centre on 14 May 2010 explained that the applicant’s wife was informed of every occasion when Mr Petrovs had met the applicant since she had expressly asked not to allow visits by him. It was stated that visitors could meet the applicant only on the premises of the Īle Centre, in view of his legal incapacity and state of health. It appears that this statement did not apply to visits by guardians.\n\n25.  In response to a query from the above-mentioned Mr Petrovs about visiting rights, the Īle Centre on 14 May 2010 explained that the applicant’s wife was informed of every occasion when Mr Petrovs had met the applicant since she had expressly asked not to allow visits by him. It was stated that visitors could meet the applicant only on the premises of the Īle Centre, in view of his legal incapacity and state of health. It appears that this statement did not apply to visits by guardians.\n\n26.  The Government submitted that at the request of his wife on 29 October 2010 a referral was issued for the applicant to receive social care services in another branch of the Zemgale State Social Care Centre in Iecava municipality (the “Iecava branch”), located some 45 km from . On an unknown date in November or December, the applicant refused to move to the Iecava branch, since he felt well in the Īle Centre and did not want to move to another institution.\n\nD.  The applicant’s state of health\n\nD.  The applicant’s state of health\n\n27.  On 3 September 2007 the Īle Centre sent a letter to the custodial court reporting on the applicant’s state of health. It was noted that the applicant had been a resident of the centre since 30 January 2002. He had been admitted with a diagnosis of epileptic dementia (F02.8), and focal symptomatic epilepsy with secondarily generalised seizures (G40.2) (simptomātiski fokāla epilepsija ar sekundāri ģeneralizētām lēkmēm). The applicant had been treated in a psychiatric hospital in Jelgava in 2002 and 2006 for episodes of dystrophia, agitation and aggressive behaviour. The applicant’s illness was described as stable, irreversible and progressive in time.\n\n28.  On 4 February 2010 the Īle Centre explained to the custodial court again that the applicant had been a resident and had been receiving treatment in the centre since 30 January 2002, with a diagnosis of epileptic dementia F02.8+G40.0. He received medication once a month. His psychic condition was unstable: he had periodic symptoms of delirium, dysphoria and aggression, as a result of which it was not advisable for him to live at home without supervision. His illness and its symptoms were stable and irreversible.\n\n29.  On 19 May 2011 the applicant received a visit from the Ombudsman and an external psychiatrist. According to the Government, they did not identify any violations of the applicant’s rights. There is no further information in this regard.\n\n30.  On 10 August 2011 the psychiatrist of the Īle Centre informed the custodial court that the applicant’s state of health had not improved, that he had been placed in a hospital from 24 May to 3 June 2011, and that he needed to take regular medication and to be supervised.\n\n30.  On 10 August 2011 the psychiatrist of the Īle Centre informed the custodial court that the applicant’s state of health had not improved, that he had been placed in a hospital from 24 May to 3 June 2011, and that he needed to take regular medication and to be supervised.\n\n31.  On 6 September 2011 the Ģintermuiža hospital informed the custodial court that the applicant had been treated there. His diagnosis had been epileptic dementia; epilepsy with rare extensive seizures and dysphoric conditions. It was also stated that with the passage of time the illness might produce more profound personality changes and increased dementia.\n\nE.  Applications for release\n\nE.  Applications for release\n\n32.  On 3 August 2007 the applicant applied to the custodial court with a view to making an application to a court to have him declared legally capable. He explained that in April 2000 he had been ill and had not been feeling well, which had been the reason for his inability to provide arguments against his wife’s application to have him divested of legal capacity. The custodial court informed the applicant on 16 August 2007 that under section 33 of the Law on Custodial Courts it was for a custodial court to decide whether to institute court proceedings aimed at reinstating legal capacity if a person had recovered; it also informed him that it had requested the Īle Centre to report on the applicant’s state of health. On 3 September 2007 the Īle Centre provided an answer to the custodial court (see paragraph 27 above).\n\n33.  On 25 October 2009 the applicant was visited in the Īle Centre by Mr Petrovs and by a member of a non-governmental organisation, Mr Braginskis.\n\n33.  On 25 October 2009 the applicant was visited in the Īle Centre by Mr Petrovs and by a member of a non-governmental organisation, Mr Braginskis.\n\n34.  On 1 December 2009 the applicant contacted the head of the Īle Centre and the Ministry of Welfare, seeking release in accordance with the domestic law (see paragraph 75 below). He wrote that he had been placed there against his will and on the orders of his wife. He considered that there was no need for a psychiatrist’s assessment for his release under the domestic law.\n\n35.  In response to an inquiry from Mr Braginskis, the Ministry of Welfare on 22 December 2009 explained that social care services could be terminated only upon an application from the applicant’s guardian. In another letter, of 25 January 2010, they repeatedly stated that all issues relating to the applicant were to be dealt with by his guardian.\n\n36.  On 26 January 2010 the Īle Centre, in response to an inquiry by Mr Braginskis, stated that there were no grounds to terminate social care services as the applicant’s guardian had failed to submit any such requests.\n\nF.  Proceedings on appointment of another guardian\n\n37.  On 8 July 2009 the applicant’s wife initiated proceedings for divorce. On 1 December 2009 a hearing took place, at which the applicant was present. During the hearing his wife withdrew her petition. The divorce proceedings were thus terminated. It appears that during the hearing the applicant’s wife learned of the applicant’s wish to have another guardian appointed, namely Mr Braginskis.\n\n37.  On 8 July 2009 the applicant’s wife initiated proceedings for divorce. On 1 December 2009 a hearing took place, at which the applicant was present. During the hearing his wife withdrew her petition. The divorce proceedings were thus terminated. It appears that during the hearing the applicant’s wife learned of the applicant’s wish to have another guardian appointed, namely Mr Braginskis.\n\n38.  On 22 November 2009 the applicant asked the custodial court to terminate his wife’s guardianship of him, as she had not carried out her duties, had placed him in the Īle Centre, had not visited him and had not allowed him to attend his father’s funeral. On 1 December 2009 the applicant asked for Mr Braginskis to be appointed as his guardian, because he would take steps to ensure that the applicant could leave the Īle Centre and for his legal capacity to be reinstated. On 21 December 2009 and 7 January 2010 the custodial court replied to the applicant that these issues would be resolved in a hearing before it on 16 February 2010.\n\n39. In the meantime, Mr Braginskis applied to various domestic authorities for the applicant’s wife’s guardianship to be terminated and for himself to be appointed guardian.\n\n40.  The first set of proceedings was opened by the custodial court with a view to examining the suitability of the applicant’s wife as guardian. On 16 February 2010 the custodial court, following a hearing in the applicant’s absence, decided that she was an appropriate guardian for the applicant.\n\n41.  On the same date the custodial court rejected the request by Mr Braginskis to be appointed as the applicant’s guardian.\n\n42.  In the second set of proceedings the custodial court on 26 August 2010, following a hearing in the applicant’s presence, decided to appoint the applicant’s son as his co-guardian along with his wife.\n\n43.  On the same date the custodial court rejected the request by Mr Braginskis to be appointed as the applicant’s guardian.\n\n43.  On the same date the custodial court rejected the request by Mr Braginskis to be appointed as the applicant’s guardian.\n\n44.  In a third set of proceedings, on 22 September 2011, the custodial court examined the suitability of the applicant’s wife and son as his guardians, following a complaint by the applicant. Following a hearing in the applicant’s presence, it was decided that they were not appropriate guardians and the court terminated their guardianship of the applicant. The reasons for this were, among other things, that they had never taken him outside the Īle Centre to stay at their home, to visit his parents’ grave or to church, which had been long-standing requests from him. In addition, they had not ensured that the applicant visited the Iecava branch before they considered relocating him there.\n\n44.  In a third set of proceedings, on 22 September 2011, the custodial court examined the suitability of the applicant’s wife and son as his guardians, following a complaint by the applicant. Following a hearing in the applicant’s presence, it was decided that they were not appropriate guardians and the court terminated their guardianship of the applicant. The reasons for this were, among other things, that they had never taken him outside the Īle Centre to stay at their home, to visit his parents’ grave or to church, which had been long-standing requests from him. In addition, they had not ensured that the applicant visited the Iecava branch before they considered relocating him there.\n\n45.  On the same date, following a hearing in the applicant’s presence, Mr Petrovs was appointed as the applicant’s guardian in accordance with the wishes of the applicant.\n\nG.  Subsequent events\n\n1.  The applicant’s state of health\n\n1.  The applicant’s state of health\n\n46.  After the present application was communicated to the Government, on 27 November 2011, a psychiatrist from the Īle Centre prepared a psychiatric opinion regarding the absence of special (psychiatric) contra-indications and the most appropriate type of social assistance for a person with mental disorders. In fact this was a form, approved by the Cabinet of Ministers, which she had filled in. She noted that there were no particular (psychiatric) contraindications to the applicant being placed in a long-term social care and social rehabilitation institution. The psychiatrist had ticked the following boxes in the form to describe the applicant’s state of health: inpatient neuropsychological treatment; outpatient treatment with a psychiatrist; unable to organise daily routine independently; orientates in time; is capable of being outside the house alone in a known environment or route; unclear, inadequate speech; frequent mood swings; inadequate emotions; no perception disorders; unstable and restricted attention and concetration abilities; difficulties in switching attention; “other” (unspecified) reasoning disorders; noticably deteriorated memory; adequate behaviour; non-critical attitude towards his illness; smoking addiction; no comprehension regarding the need for the use of medication; behaviour dependent on the regular use of medication; assistance necessary for the use of medication; assistance necessary to perform household tasks, to use medication, to move outside the house, to perform operations with money; periodic surveillance necessary. She concluded with a recommendation that the applicant needed to live in a social care institution for people with serious mental disorders.\n\n47.  The Government stated that this was a reiterated opinion, although in fact they had not submitted any prior opinions or information in this connection.\n\n2.  Admission to a psychiatric hospital\n\n2.  Admission to a psychiatric hospital\n\n48.  On 2 January 2012 a psychiatrist and a general practitioner from the Īle Centre prepared an extract from the applicant’s medical record for him to receive treatment in a psychiatric hospital in . It contained the following:\n\n“The patient was treated in [the psychiatric hospital in ] from 11 March 2000 to 30 January 2002, [in total for] 690 bed days, where a diagnosis of epileptic dementia was established, and [he] was declared legally incapable. Since 30 January 2002 the patient has been resident in the Īle Centre. Since the patient’s guardian was changed complaints have been lodged with the Health Inspectorate and the Ombudsman concerning erroneous diagnosis and treatment.\n\nThe patient has recently been hostile, aggressive and dysphoric, has refused to take medication, and has hit other patients. ...\n\n[He] has perceptual and behavioural disturbances, but in the last nine months has had no major seizures.\n\n[I] ask inpatient treatment with a view to confirming [his] diagnosis and determining further treatment.”\n\n49.  On 3 January 2012 the Īle Centre sent a letter to the applicant’s guardian, Mr Petrovs, seeking his consent for the applicant to receive inpatient treatment. An extract from the applicant’s medical report was attached.\n\n49.  On 3 January 2012 the Īle Centre sent a letter to the applicant’s guardian, Mr Petrovs, seeking his consent for the applicant to receive inpatient treatment. An extract from the applicant’s medical report was attached.\n\n50.  On 2 February 2012 Mr Petrovs replied, stating that the applicant’s state of health during the last year had been satisfactory, as he had not had any seizures for the last ten months; he had been well and had not complained about his health. Other patients reported that he had good relations with them and that he had looked after weaker patients. He had a good memory – he remembered the birthdays and phone numbers of his relatives and friends, and did not forget to send them good wishes. He respected his parents, he joked, and showed interest in the news and what was happening to his acquaintances. Mr Petrovs considered that the applicant’s diagnosis – epileptic dementia – was most probably erroneous. He further considered that treatment in a psychiatric hospital would have a negative impact on any normal person and, therefore, he did not agree that the applicant should be referred for inpatient treatment in a psychiatric hospital. Finally, he considered that the existing medication (no psychotropic substances) and treatment for the applicant could remain unchanged.\n\n3.  Application to the administrative courts\n\n3.  Application to the administrative courts\n\n51.  On 4 January 2012 Mr Braginskis, acting as a representative of the applicant’s guardian, Mr Petrovs, applied to the  seeking that the Ministry of Welfare be obliged to adopt a decision whereby the applicant could leave the Īle Centre.\n\n52.  On 11 January 2012 a judge adopted a decision not to proceed with the case. She referred to the applicable domestic law (see paragraph 75 below) and noted that the applicant’s social care services could be terminated at the request of his guardian, Mr Petrovs. There was no evidence that he had requested that termination. The judge therefore stayed the proceedings and required Mr Braginskis and the Īle Centre to submit pertinent documents.\n\n53.  Referring to these proceedings, on 24 January 2011 the Īle Centre wrote to Mr Petrovs asking him to submit a request for termination of services and for the relevant municipality to confirm that it could provide housing for the applicant.\n\n53.  Referring to these proceedings, on 24 January 2011 the Īle Centre wrote to Mr Petrovs asking him to submit a request for termination of services and for the relevant municipality to confirm that it could provide housing for the applicant.\n\n54.  There is no further information concerning these proceedings.\n\n4.  Reopening of incapacitation proceedings\n\n4.  Reopening of incapacitation proceedings\n\n55.  On 15 February 2012 Mr Braginskis, acting as a representative of the applicant’s guardian, Mr Petrovs, applied to the  for the applicant’s incapacitation proceedings to be reopened in the light of unspecified newly discovered circumstances.\n\n56.  On 13 March 2012 a judge, taking into account that the final ruling in that case had taken effect on 7 June 2000, rejected the request for reopening of proceedings due to the expiry of the ten-year time-limit for bringing such claims.\n\n56.  On 13 March 2012 a judge, taking into account that the final ruling in that case had taken effect on 7 June 2000, rejected the request for reopening of proceedings due to the expiry of the ten-year time-limit for bringing such claims.\n\n57.  Mr Braginskis lodged an ancillary complaint against that decision; there is no information about the outcome of these proceedings.\n\n5.  The applicant’s views\n\n5.  The applicant’s views\n\n58.  On 26 March 2012 a lawyer from the custodial court called the head of the Īle Centre. The written record of that conversation stipulated that the applicant received weekly visits from his guardian, Mr Petrovs. He also received occasional visits from his wife and son and rare visits from Mr Braginskis. The applicant sometimes called his wife and son. His state of health was stable if he was taking his medication. Mr Petrovs and Mr Braginskis, however, sometimes told the applicant that he did not need to use the medication, whereupon he stopped taking it for a while and his state of health deteriorated. It was also mentioned that the applicant sometimes visited Mr Petrovs and stayed at his place overnight. The applicant himself had not expressed a wish to reside outside the Īle Centre.\n\n58.  On 26 March 2012 a lawyer from the custodial court called the head of the Īle Centre. The written record of that conversation stipulated that the applicant received weekly visits from his guardian, Mr Petrovs. He also received occasional visits from his wife and son and rare visits from Mr Braginskis. The applicant sometimes called his wife and son. His state of health was stable if he was taking his medication. Mr Petrovs and Mr Braginskis, however, sometimes told the applicant that he did not need to use the medication, whereupon he stopped taking it for a while and his state of health deteriorated. It was also mentioned that the applicant sometimes visited Mr Petrovs and stayed at his place overnight. The applicant himself had not expressed a wish to reside outside the Īle Centre.\n\n59.  It appears that the Īle Centre subsequently called Mr Petrovs with a view to finding out his views concerning the termination of the applicant’s social care. Mr Petrovs had orally requested them to continue providing social care services to the applicant.\n\nII.  RELEVANT INTERNATIONAL AND DOMESTIC LAW AND PRACTICE\n\nA.  The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment\n\n60.  The relevant parts of the reports issued by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (the “CPT”) have been quoted elsewhere (see L.M. v. , no. 26000/02, §§ 34-36, 19 July 2011). In short, after its second periodic visit in 2002, the CPT noted that the Latvian legislation did not provide for regular reviews of placement in a psychiatric hospital/social welfare institution.\n\n61.  After its third periodic visit in 2007, it found that a number of important amendments had been made to the Law on Medical Treatment, introducing, among other things, judicial review in the context of involuntary hospitalisation. Among other things, it noted as follows.\n\n“134. Specific reference should be made to the situation of patients/residents deprived of their legal capacity. Such persons could be admitted to a psychiatric hospital/social welfare institution solely with the written consent of the guardian. However, they were considered to be voluntary patients/residents, even when they opposed such a placement, and their placement was therefore carried out without any judicial intervention. In the CPT’s view, placing incapacitated persons in a psychiatric/social welfare establishment which they cannot leave at will, based solely on the consent of the guardian, entails a risk that such persons will be deprived of essential safeguards.”\n\nB.  Convention on the Rights of Persons with Disabilities, adopted by the United Nations General Assembly on 13 December 2006 (Resolution A/RES/61/106)\n\n62.  This Convention entered into force on 3 May 2008, was signed by  on 18 July 2009 and ratified on 1 March 2010. The relevant parts of this Convention provide:\n\nArticle 12\nEqual recognition before the law\n\n“1.  States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.\n\n2.  States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.\n\n3.  States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.\n\n4.  States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests.\n\n5.  Subject to the provisions of this article, States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property.”\n\nArticle 14\n and security of person\n\n“1.  States Parties shall ensure that persons with disabilities, on an equal basis with others:\n\n(a)  Enjoy the right to liberty and security of person;\n\n(b)  Are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty.\n\n2.  States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of the present Convention, including by provision of reasonable accommodation.”\n\nC.  Recommendation No. R(99)4 of the Committee of Ministers of the Council of Europe on principles concerning the legal protection of incapable adults (adopted on 23 February 1999)\n\n63.  The relevant parts of this Recommendation read as follows:\n\nPrinciple 2 – Flexibility in legal response\n\n“1.  The measures of protection and other legal arrangements available for the protection of the personal and economic interests of incapable adults should be sufficient, in scope or flexibility, to enable suitable legal response to be made to different degrees of incapacity and various situations.\n\n...\n\n4.  The range of measures of protection should include, in appropriate cases, those which do not restrict the legal capacity of the person concerned.”\n\nPrinciple 3 – Maximum reservation of capacity\n\n“1.  The legislative framework should, so far as possible, recognise that different degrees of incapacity may exist and that incapacity may vary from time to time. Accordingly, a measure of protection should not result automatically in a complete removal of legal capacity. However, a restriction of legal capacity should be possible where it is shown to be necessary for the protection of the person concerned.\n\n2.  In particular, a measure of protection should not automatically deprive the person concerned of the right to vote, or to make a will, or to consent or refuse consent to any intervention in the health field, or to make other decisions of a personal character at any time when his or her capacity permits him or her to do so. ...”\n\nPrinciple 6 – Proportionality\n\n“1.  Where a measure of protection is necessary it should be proportional to the degree of capacity of the person concerned and tailored to the individual circumstances and needs of the person concerned.\n\n2.  The measure of protection should interfere with the legal capacity, rights and freedoms of the person concerned to the minimum extent which is consistent with achieving the purpose of the intervention. ...”\n\nPrinciple 9 – Respect for wishes and feelings of the person concerned\n\n“1.  In establishing or implementing a measure of protection for an incapable adult the past and present wishes and feelings of the adult should be ascertained so far as possible, and should be taken into account and given due respect.\n\n2.  This principle implies, in particular, that the wishes of the adult as to the choice of any person to represent or assist him or her should be taken into account and, as far as possible, given due respect.\n\n3.  It also implies that a person representing or assisting an incapable adult should give him or her adequate information, whenever this is possible and appropriate, in particular concerning any major decision affecting him or her, so that he or she may express a view.”\n\nPrinciple 13 – Right to be heard in person\n\n“The person concerned should have the right to be heard in person in any proceedings which could affect his or her legal capacity.”\n\nPrinciple 14 – Duration, review and appeal\n\n“1.  Measures of protection should, whenever possible and appropriate, be of limited duration. Consideration should be given to the institution of periodical reviews.\n\n2.  Measures of protections should be reviewed on a change of circumstances and, in particular, on a change of an adult’s condition. They should be terminated if the conditions for them are no longer fulfilled.\n\n3.  There should be adequate rights of appeal.”\n\nPrinciple 16 – Adequate control\n\n“There should be adequate control of the operation of measures of protection and of the acts and decisions of representatives.”\n\nD.  Recommendation No. Rec(2004)10 of the Committee of Ministers of the Council of Europe concerning the protection of the human rights and dignity of persons with mental disorder (adopted on 22 September 2004)\n\n64.  The relevant part of this Recommendation reads as follows:\n\nArticle 17 – Criteria for involuntary placement\n\n“1. A person may be subject to involuntary placement only if all the following conditions are met:\n\ni. the person has a mental disorder;\n\nii. the person’s condition represents a significant risk of serious harm to his or her health or to other persons;\n\niii. the placement includes a therapeutic purpose;\n\niv. no less restrictive means of providing appropriate care are available;\n\nv. the opinion of the person concerned has been taken into consideration.\n\n2. The law may provide that exceptionally a person may be subject to involuntary placement, in accordance with the provisions of this chapter, for the minimum period necessary in order to determine whether he or she has a mental disorder that represents a significant risk of serious harm to his or her health or to others if:\n\ni. his or her behaviour is strongly suggestive of such a disorder;\n\nii. his or her condition appears to represent such a risk;\n\niii. there is no appropriate, less restrictive means of making this determination; and\n\niv. the opinion of the person concerned has been taken into consideration.”\n\nE.  Domestic law and practice\n\n1.  Legislation relating to individuals divested of legal capacity\n\n(a)  Civil Law\n\n(a)  Civil Law\n\n65.  Section 358 of the Civil Law (Civillikums), effective at the material time and until 1 January 2012, provided that any mentally ill person who lacks mental capacity entirely or in large part must be acknowledged as lacking the capacity to act and as legally incapable of representing themselves, administering their property and making decisions, for which reasons guardianship (aizgādnība) may be instituted. When a court divested a person of legal capacity it had to inform a custodial court, which then appointed one or more guardians, if necessary (section 360). Section 355 of the same law provides that in the first instance a spouse or other close relative must be appointed guardian. A person who has been divested of legal capacity does not have legal responsibility for their actions (section 361): they must act through their guardians.\n\n66.  Section 364 of the Civil Law, effective at the material time and until 1 January 2012, provided that a court had to direct a custodial court to remove a guardian from that role if it found that a mentally ill person had recovered, that is, that he or she had become legally capable, after the guardian had submitted a settlement of accounts and had transferred the property which had been under his or her administration to the person who had recovered his or her health.\n\n67.  With effect from 1 January 2012 sections 358 and 364 of the Civil Law are null and void (see paragraph 79 below).\n\n68.  An application to a court for reinstatement of legal capacity could not, until 13 February 2012 (see paragraph 69 below), be submitted by the person concerned; it could only be lodged by the custodial court (see paragraph 72 below) or by his or her guardian (see paragraph 65 above).\n\n68.  An application to a court for reinstatement of legal capacity could not, until 13 February 2012 (see paragraph 69 below), be submitted by the person concerned; it could only be lodged by the custodial court (see paragraph 72 below) or by his or her guardian (see paragraph 65 above).\n\n69.  On 2 February 2012 the following amendments to the Law on the Time and Procedure for the Entry into Force of the Re-enacted 1937 Civil Law of the , Family Law Chapter (Likums “Par atjaunotā Latvijas Republikas 1937. gada Civillikuma ģimenes tiesību daļas spēkā stāšanās laiku un kārtību”) were adopted. These amendments took effect on 13 February 2012 and were applicable until 1 January 2013. The purpose of these amendments was to comply with the Constitutional Court’s judgment in case no. 2010-38-01 (see paragraph 79 below) and to establish a temporary legal regulation for divesting a person of legal capacity and reinstating it until such time as more extensive legislative amendments were adopted.\n\nSection 21\n\n“From 13 February 2012 until the day of entry into force of the amendments to the Civil Law, the Law of Civil Procedure and the Law on Custodial Courts regarding restrictions of a person’s legal capacity and establishment of guardianship due to mental illness (“the relevant amendments”), the court: ...\n\n3) shall suspend the proceedings or shall make a judgement declaring the person legally capable and terminating the guardianship, while taking into account the provisions of section 26 of this law.\n\nUntil the entry into force of the relevant amendments, the provisions of the Civil Law, the Law of Civil Procedure and the Law on Custodial Courts on declaring a person legally incapable and on establishing guardianship, as well as on declaring a person legally capable and on terminating guardianship, shall be applied in so far as they do not contradict the provisions of sections 22-26 of this Law.”\n\nSection 26\n\n“(1) An application to declare a person legally capable and to terminate guardianship may be submitted to the court by a prosecutor, by the custodial court, or by the person him/herself.\n\n(2) The court shall suspend proceedings declaring a person legally capable and terminating guardianship until the entry into force of the relevant amendments, except in situations envisaged in paragraphs 3 of this section.\n\n(3) If, on the basis of evidence, the court finds that a person understands the meaning of his or her actions, is capable of independently exercising his/her rights and obligations and is capable of protecting his or her interests, the court shall make a judgement declaring the person legally capable and shall terminate guardianship.\n\nThe court shall then forward the judgement for execution in accordance with the procedure set out in section 270, paragraphs 3 and 4 of the Civil Law ...”\n\n70.  On 29 November 2012 legislative amendments were made to the Civil Law and the Law of Civil Procedure (Civilprocesa likums). Persons divested of their legal capacity can from now on submit applications to the courts to review those decisions. These amendments took effect on 1 January 2013.\n\n(b)  The custodial courts\n\n71.  The Law on Custodial and Parish Courts (Likums “Par bāriņtiesām un pagasttiesām”), effective from 7 December 1995 to 1 January 2007, provided that a custodial court shall appoint a guardian for individuals divested of legal capacity, shall supervise the activities of guardians and, in certain circumstances, shall authorise guardians to enter into agreements on behalf of individuals divested of legal capacity, and shall terminate guardianship when it expires (section 18, paragraphs 2, 3 and 4).\n\n71.  The Law on Custodial and Parish Courts (Likums “Par bāriņtiesām un pagasttiesām”), effective from 7 December 1995 to 1 January 2007, provided that a custodial court shall appoint a guardian for individuals divested of legal capacity, shall supervise the activities of guardians and, in certain circumstances, shall authorise guardians to enter into agreements on behalf of individuals divested of legal capacity, and shall terminate guardianship when it expires (section 18, paragraphs 2, 3 and 4).\n\n72.  Under the new Custodial Courts Law (Bāriņtiesu likums), effective since 1 January 2007, custodial courts have, inter alia, the authority to lodge claims and complaints in a court on behalf of individuals divested of legal capacity (section 16, paragraph 1, part 5), as well as to provide assistance to legally incapable persons who request it (section 17, paragraph 1, part 7). These courts also decide on instituting court proceedings aimed at reinstating legal capacity for individuals divested of it who have recovered (section 44).\n\n2.  Legislation relating to social assistance\n\n73.  Section 3 of the Law on Social Assistance (Likums “Par sociālo palīdzību”), effective at the material time and until 1 January 2003, provided that a person who could not provide for himself or herself or who could not overcome a particular hardship in life and who did not receive adequate assistance from anyone else, had a right to receive personal and material assistance. The main forms of social assistance were to be social care, material help and social rehabilitation. Under section 6, paragraph 1, part 5 the State had a duty to establish and maintain, among other things, social care institutions (pansionāts) for persons with mental disorders and other specialised centres.\n\n74.  Regulations of the Cabinet of Ministers no. 314 (2000), effective at the material time and until 1 January 2003, laid down the procedures for receiving social services from the State. A person, their legal representative or proxy had to submit an application and the relevant documents, for example, a certificate of disability, and a doctor’s report on their state of health. A social worker prepared an evaluation and the Social Assistance Authority made a decision on social care, and referred the person either to a social care institution for persons with mental disorders or to another specialised centre.\n\n74.  Regulations of the Cabinet of Ministers no. 314 (2000), effective at the material time and until 1 January 2003, laid down the procedures for receiving social services from the State. A person, their legal representative or proxy had to submit an application and the relevant documents, for example, a certificate of disability, and a doctor’s report on their state of health. A social worker prepared an evaluation and the Social Assistance Authority made a decision on social care, and referred the person either to a social care institution for persons with mental disorders or to another specialised centre.\n\n75.  In accordance with the Law on Social Services and Assistance (Sociālo pakalpojumu un sociālās palīdzības likums), effective from 1 January 2003, long-term social care is available for individuals with severe mental impairment who do not need to be admitted to a specialised medical institution and whose state of health does not endanger other people (section 28, paragraph 1, part 4). An individual has a right to lodge complaints about the quality of social services and breaches of his or her rights (section 6, paragraph 1, part 7). Social care is provided on a voluntary basis; the amendments that took effect on 28 June 2006 expressly provide that a person can ask for his or her social care to be terminated (section 28, paragraph 2, part 3). The head of the social care institution adopts a decision to terminate long-term social care (section 28, paragraph 3). Since 28 June 2006 there has been a requirement on the relevant municipality to confirm that it can provide housing for that person (section 28, paragraph 3). Since 1 December 2009 it is provided that social care may be terminated if a person has been missing for longer than two months from the day he or she was reported missing to the police (section 28, paragraph 4).\n\n75.  In accordance with the Law on Social Services and Assistance (Sociālo pakalpojumu un sociālās palīdzības likums), effective from 1 January 2003, long-term social care is available for individuals with severe mental impairment who do not need to be admitted to a specialised medical institution and whose state of health does not endanger other people (section 28, paragraph 1, part 4). An individual has a right to lodge complaints about the quality of social services and breaches of his or her rights (section 6, paragraph 1, part 7). Social care is provided on a voluntary basis; the amendments that took effect on 28 June 2006 expressly provide that a person can ask for his or her social care to be terminated (section 28, paragraph 2, part 3). The head of the social care institution adopts a decision to terminate long-term social care (section 28, paragraph 3). Since 28 June 2006 there has been a requirement on the relevant municipality to confirm that it can provide housing for that person (section 28, paragraph 3). Since 1 December 2009 it is provided that social care may be terminated if a person has been missing for longer than two months from the day he or she was reported missing to the police (section 28, paragraph 4).\n\n76.  No special provisions are made in respect of the wishes of those divested of their legal capacity. Their confinement to a long-term state social care institution therefore depends on the wishes of their guardian (see paragraph 65 above). In accordance with section 31, paragraph 1 of the above-mentioned law the head of the long-term social care institution or other authorised person may take a decision regarding the necessity to restrict the freedom of movement of an individual placed in that institution in order to prevent the leaving of that individual without supervision and to protect the rights and freedoms of others.\n\n3.  Constitutional proceedings and case-law\n\n3.  Constitutional proceedings and case-law\n\n77.  The relevant provisions of the Law on the  (Satversmes tiesas likums) and its case-law have been quoted elsewhere (see Grišankova and Grišankovs v. Latvia (dec.), no. 36117/02, ECHR 2003II (extracts)). The most relevant provision for the purposes of the present case reads as follows:\n\nSection 192 – Constitutional Complaint (an application)\n\n“1. Any person who considers that a legal provision which is not in compliance with a provision having superior legal force has infringed his or her fundamental rights under the Constitution may lodge a constitutional complaint with the .”\n\n78.  In addition, it ought to be noted that under this law the interpretation of a legal provision provided by the Constitutional Court (Satversmes tiesa) in a judgment (section 32, paragraph 2) or in a decision to terminate proceedings (section 29, paragraph 21, effective from 14 March 2008) is binding on all domestic authorities, including the courts.\n\n78.  In addition, it ought to be noted that under this law the interpretation of a legal provision provided by the Constitutional Court (Satversmes tiesa) in a judgment (section 32, paragraph 2) or in a decision to terminate proceedings (section 29, paragraph 21, effective from 14 March 2008) is binding on all domestic authorities, including the courts.\n\n79.  On 27 December 2010 the  delivered its judgment in case no. 2010-38-01 on the compliance of sections 358 and 364 of the Civil Law with the Constitution (Satversme), in particular with the right to private life. The case had been brought before the  by J.F., an individual who had been divested of legal capacity. The  ruled that sections 358 and 364 of the Civil Law were unconstitutional and void from 1 January 2012. In essence, the ruling was based on the fact that the domestic law did not provide any latitude in matters of legal incapacitation – a person could only be divested of legal capacity in full and could have it restored only after a full recovery.\n\nTHE LAW\n\nI.  APPLICATION OF ARTICLE 37 § 1 (b) OF THE CONVENTION\n\nA.  The parties’ submissions\n\n80.  The Government invited the Court to strike the case out of its list of cases, in accordance with Article 37 § 1 (b) of the Convention. The Government relied in this connection on two facts. First, they referred to the request from Mr Braginskis for the reopening of incapacitation proceedings (see paragraph 55 above). Second, they informed the Court about the legislative amendments that had taken effect on 13 February 2012, under which the applicant himself could seek restoration of his legal capacity before the domestic courts (see paragraph 69 above). The Government considered that this remedy was capable of resolving all matters raised in the applicant’s complaints, since these complaints alleged that the violations of Article 5 §§ 1 and 4 and Article 8 of the Convention had resulted from his inability to decide for himself whether to stay in the Īle Centre and his inability to represent his interests and defend his rights.\n\n81.  Furthermore, the Government informed the Court that since 13 February 2012 three requests had been made to the domestic courts to reinstate legal capacity on the basis of the above-mentioned legislation. They referred to one particular example (decision of 5 March 2012, case no. 3-11/...), where a judge had accepted that an incapacitated person had the capacity to submit such an application to the civil courts (civilprocesuālā rīcīspēja).\n\n82.  The applicant objected to the Government’s request to strike out the application. He admitted that, at present, in certain circumstances it was possible for an individual to apply for reinstatement of his own legal capacity. This, however, did not change the situation; the violations had taken place in 2000 and they had not been remedied so far. The situation could not be fixed now. Any proceedings before a domestic court could not overturn the decision previously adopted; the latter had taken effect. The essence of his complaints to the Court had been related to his long-term placement in the Īle Centre; he had asked the Court to evaluate the actions taken back in 2000, when his freedom was restricted. The only possible impact of any legal proceedings that might take place now could be on his future life and could not remedy the violations in the past.\n\nB.  The Court’s assessment\n\nB.  The Court’s assessment\n\n83.  In order to ascertain whether the Government’s request under Article 37 § 1 (b) can be accepted in the present case, the Court must answer two questions in turn: firstly, whether the circumstances complained of directly by the applicant still obtain and, secondly, whether the effects of a possible violation of the Convention on account of those circumstances have been redressed (see Sisojeva and Others v.  (striking out) [GC], no. 60654/00, § 97, ECHR 2007I, and, more recently, Melnītis v. , no. 30779/05, § 33, 28 February 2012).\n\n84.  The Court notes that in the present case the applicant has made two specific complaints. First of all, the applicant complained that he had been held against his will in an institution with people who were mentally ill for more than ten years and that he could not obtain release. Second, he complained that he had been fully dependent on his wife who, as his guardian, had not represented his interests and had opposed any attempts by him to defend his rights (see paragraph 3 above).\n\n85.  The Court does not agree with the Government that all of the applicant’s complaints related to his inability to decide for himself whether to stay in the Īle Centre and his inability to represent his interests and rights. It considers that the applicant’s complaint, in essence under Article 5 §§ 1 and 4 of the Convention, relates to his continued confinement in the Īle Centre and that his complaint under Article 8 of the Convention relates to his continued incapacitation and his wife being his guardian.\n\n86.  As concerns the first complaint, the applicable test (see paragraph 83 above) entails establishing whether the applicant’s confinement in the Īle Centre persists. Then the Court must consider whether the measures taken by the authorities constitute redress for the applicant’s complaint. In this connection the Court has to determine if the domestic authorities have adequately and sufficiently redressed the situation complained of (see Sisojeva and Others, cited above, § 102, and El Majjaoui and Stichting Touba Moskee v. the  (striking out) [GC], no. 25525/03, § 33, 20 December 2007).\n\n87.  The Court notes that it is clear that the situation complained of has not ceased to exist. While the Court considers that the change in circumstances, in particular, that on 1 April 2010 the Īle Centre was moved to other premises in Lielbērze (see paragraph 24 above), might be relevant for establishing the applicability of Article 5 of the Convention for the subsequent period, it holds that the change of premises as such has no incidence on the application of Article 37 § 1 (b) of the Convention, as it was not intended to bring the applicant’s situation to an end.\n\n88.  Furthermore, the Court observes that the legislative amendments which took effect on 13 February 2012 were adopted in order to comply, at least temporarily, with the Constitutional Court’s ruling of 27 December 2010 and it cannot be said that these measures are capable of offering any redress at all, let alone adequate and sufficient redress, for the effects of possible violations of Article 5 §§ 1 and 4 of the Convention to the present applicant.\n\n89.  It follows that the requisite conditions have not been met and that the application, in so far as it relates to Articles 5 §§ 1 and 4 of the Convention, cannot be struck out of the Court’s list of cases in application of Article 37 § 1 (b) of the Convention.\n\n90.  In respect of the second complaint, the Court observes that the situation complained of by the applicant under Article 8 of the Convention has not ceased to exist either. Although as of 22 September 2011 the applicant’s interests are no longer represented by his wife, he is still under guardianship. The applicant remains fully dependent on his guardian, now Mr Petrovs. The Court therefore holds that the appointment of another guardian has no incidence on the application of Article 37 § 1 (b) of the Convention.\n\n91.  While the Court is ready to accept that since the entry into force of the legislative amendments on 13 February 2012, there is a possibility in the Latvian legal system for incapacitated individuals in certain cases to lodge applications on their own behalf with the civil courts for reinstatement of their legal capacity, it does not consider that these amendments can be considered as constituting redress for the applicant’s complaint under Article 8 of the Convention. The Court notes that the applicant’s complaint relates to his continued incapacitation since 17 May 2000. The Court considers that the legislative amendments adopted almost twelve years later, which confer a right to restore one’s legal capacity in future, cannot offer sufficient and adequate redress for the effects of a possible violation of Article 8 of the Convention for the situation that the applicant endured throughout these years, the more so in the circumstances of the present case, where the legislative amendments have been introduced in the transitional period pending the adoption of more comprehensive legislation in line with the Constitutional Court’s ruling of 27 December 2010 and Convention requirements.\n\n92.  It follows that the conditions for Article 37 § 1 (b) of the Convention, in so far the complaint under Article 8 of the Convention is concerned, have not been met either.\n\n93.  Accordingly, the Court dismisses the Government’s request to strike the application out of its list of cases.\n\nII.  ALLEGED ABUSE OF THE RIGHT OF INDIVIDUAL APPLICATION\n\nA.  The parties’ submissions\n\n94.  The Government in their observations on admissibility and merits of the case requested the Court to declare the application inadmissible under Article 35 § 3 of the Convention as an abuse of the right of application, on the ground that the applicant had failed to inform the Court about several important events that had taken place after the present application had been communicated to the Government. In this connection, the Government referred to subsequent events concerning his admission to a psychiatric hospital (see paragraphs 48-50 above), the application to the administrative courts (see paragraphs 51-54 above) and the applicant’s wishes (see paragraphs 58-59 above). They also noted that the proceedings concerning the reopening of incapacitation proceedings were pending (see paragraphs 55-57 above) and that the applicant had not informed the Court of this. In support of this argument the Government made a reference to the Court’s decision in the case of Vasilevskiy v.  ((dec.), no. 73485/01, 10 January 2012).\n\n95.  The Government were also of the opinion that some of the applicant’s allegations were insulting, threatening and intolerable to a level which exceeded the bounds of normal criticism and, referring to the case of Apinis v. Latvia ((dec.), no. 46549/06, 20 September 2011), requested the Court to conclude that such conduct by the applicant was to be considered an abuse of the right of individual application within the meaning of Article 35 § 3 (a) of the Convention.\n\n96.  The applicant’s representative, for his part, explained that he had not had access to the information concerning the pending proceedings in the domestic courts in . He had contacted the applicant’s guardian, Mr Petrovs in this regard, who had stated that all documents in his possession had been forwarded to the Court.\n\nB.  The Court’s assessment\n\n97.  The Court reiterates that if new, important developments occur during the proceedings before the Court and if, despite the express obligation on him or her under Rule 47 § 6 of the Rules of the Court, the applicant fails to disclose that information to the Court, thereby preventing it from ruling on the case in full knowledge of the facts, his or her application may be rejected as an abuse of application (see Miroļubovs and Others v. , no. 798/05, § 63, 15 September 2009, with further references). Likewise, the use of particularly vexatious, insulting, threatening or provocative language by the applicant – whether this is directed against the respondent State or the Court itself – may be considered an abuse of the right of individual application within the meaning of Article 35 § 3 (a) of the Convention (ibid., § 64).\n\n98.  The Court notes that the information that the applicant in the Vasilevskiy case had failed to provide to the Court related to the very subject matter of that application, namely that he not only had the right to receive an old-age pension from Russia in relation to his previous employment in Uzbekistan, China and Latvia, but that he had also been receiving it since 2004 (see Vasilevskiy, cited above, § 25). Unlike in Vasilevskiy, the present applicant’s representative has provided sufficient explanation and the Court cannot therefore find that the applicant intended to mislead the Court. In reaching this conclusion, the Court also takes into account the applicant’s state of health and the fact that his interests appear to be represented by different people at the domestic level and before the Court.\n\n99.  Furthermore, the Court considers that the Government’s reference to the case of Apinis v. Latvia is misconceived. There can be no comparison between the language used by the applicant in that case and the language used by the present applicant. The language used by the latter, in the Court’s view, although it might be considered inappropriate at times, does not exceed the bounds of normal criticism.\n\n100.  In view of the foregoing considerations, the Court rejects the Government’s request for the application to be declared inadmissible under Article 35 § 3 of the Convention as abuse of the right of application.\n\nIII.  ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION\n\n101.  The applicant complained that he had been held against his will in an institution with people who were mentally ill for more than ten years and that he could not obtain release. He submitted that his freedom of movement had been constrained. The Court will examine this complaint under Article 5 §§ 1 and 4 of the Convention (and not under Article 2 of Protocol No. 4 to the Convention, see Stanev v. Bulgaria [GC], no. 36760/06, § 115, ECHR 2012) which reads as follows:\n\n“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ...\n\n(e)  the lawful detention of persons ... of unsound mind ...;\n\n4.  Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. ...”\n\n102.  The Government contested that argument.\n\nA.  Admissibility\n\n1.  The parties’ submissions\n\n103.  The Government raised several preliminary objections. They argued first that the applicant’s complaints did not fall within the scope of Article 5, since he had not been deprived of his liberty in the Īle Centre. Second, they submitted that the applicant had failed to use the remedies established by the Law on the .\n\n104.  As regards the first argument, the Government emphasised that the applicant had been held in an institution which was not a place of deprivation of liberty, and relied on H.M. v. Switzerland (no. 39187/98, §§ 40-48, ECHR 2002II). They submitted that the Īle Centre was an open-type State social care and social rehabilitation institution. Its grounds were not fenced, and patients could move around freely inside and outside its premises, without asking permission; they could also receive guests. Taking into account their state of health, they had the opportunity to leave the grounds of the Īle Centre. The Government pointed out that: “given the applicant’s serious state of health, he was only permitted to leave the grounds of the Īle Centre accompanied by its staff or by other clients”. According to the Government, during his stay at the Īle Centre the applicant had requested permission to leave only once and that that request had been granted. They did not refer to a particular date in this regard.\n\n105.  The Government argued that, as in the above-cited case of H.M. v. Switzerland, the present applicant “was in obvious need of medical care; his state of health required constant attention and supervision and therefore the authorities had acted responsibly in the applicant’s best interests”. Further, they noted that “he could freely move around inside and outside the Īle Centre, and could socialise and receive guests”. Finally, the Government stressed that “the applicant could leave the Īle Centre in order to take care of his private issues (such as to meet friends and so on)”. In this connection they referred to the fact that during his stay he had once received permission to leave the centre. The Government therefore considered the applicant’s complaints incompatible ratione materiae with the provisions on the Convention.\n\n106.  As regards the exhaustion of domestic remedies, the Government argued that the applicant should have lodged a complaint with the Constitutional Court if he had considered that his continued stay in the Īle Centre and his inability to challenge its lawfulness was the result of the actual wording of legal provisions, in particular section 28, paragraph 2, part 3, and section 28, paragraphs 3 and 4 of the Law on Social Services and Social Assistance, section 358 of the Civil Law and section 40 of the Law on Custodial Courts, about the compliance of these legal provisions with provisions of superior legal force. The Government relied on the Court’s decision in the case of Grišankova and Grišankovs, in which the Court had accepted that recourse to the  was an effective remedy. The Government stressed that the Constitutional Court’s interpretation of a legal provision was binding on the domestic authorities.\n\n107.  The applicant disagreed, and considered that he had been deprived of his liberty in the sense of Article 5 § 1 of the Convention. He pointed out that the Īle Centre in Īle parish was in fact a closed-type social care institution. He had not been able either to move about freely within the centre or to leave its territory. The management had reported to the police every occasion when a patient had left the centre without permission, and he or she was then forcibly taken back to the Īle Centre. Moreover, the applicant submitted that the Īle Centre had limited space and was surrounded by a stone wall, which was topped with barbed wire. He provided some photographs, taken in 2012, that corroborated this submission. It could be seen from these photographs that the premises, although no longer in use, indeed were surrounded by a stone wall. The Īle Centre had been located on a hill in the middle of a forest, and was completely inaccessible by car in winter, autumn and spring. As of 1 April 2010, however, the Īle Centre had been moved to Lielbērze to an open-type social care institution in unfenced grounds. According to the applicant, his freedom continued to be restricted there as well since the applicant was unable to leave its territory unless the administration had granted permission.\n\n108.  The applicant provided no comment on the Government’s preliminary objection concerning the exhaustion of domestic remedies before the .\n\n2.  The Court’s assessment\n\n109.  The Court considers that the question whether there was a “deprivation of liberty” within the meaning of Article 5 § 1 in the present case is closely linked to the merits of the complaint under that provision. The issue of applicability should therefore be joined to the merits of this complaint (see Stanev, cited above, § 100).\n\n110.  Furthermore, the Court considers that in the present case the question whether the applicant exhausted domestic remedies to challenge the lawfulness of his continued confinement in the Īle Centre is closely linked to his allegations under Article 5 § 4 that it should be joined to the merits under that provision (ibid., § 99).\n\n111.  The Court notes that this part of the application is not manifestly illfounded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds, subject to the questions joined to the merits. It must therefore be declared admissible.\n\nB.  Merits\n\n1.  The applicant’s submissions\n\n112.  The applicant, referring to the case of Shtukaturov v. Russia (no. 44009/05, ECHR 2008), alleged that the Latvian authorities had failed to abide by the principles established therein.\n\n113.  Furthermore, relying on the judgment in the case of Winterwerp v. the Netherlands (24 October 1979, Series A no. 33), the applicant noted that the Convention does not state what is to be understood by the words “persons of unsound mind”. This term is not one that can be given a definitive interpretation; it is a term whose meaning is continually evolving as research in psychiatry progresses, as increasing flexibility in treatment is developing and society’s attitude to mental illness changes, in particular so that a greater understanding of the problems of mental patients is becoming more widespread (ibid., § 37).\n\n114.  The applicant maintained that the Īle Centre in Īle parish had been a closed-type social care institution. He reiterated that he had spent several years in that facility against his will, together with seriously mentally ill people, and that his freedom of movement had been restricted. He pointed out that from 1 April 2010 the Īle Centre had been moved to Lielbērze and that it had been an open type social care institution providing services for people with severe mental disorders and Category I and II disabilities. He could not nonetheless leave its territory without permission.\n\n115.  Both facilities provided accommodation for people with a wide variety of mental disorders, including severe physical and psychological conditions. The applicant’s illness did not involve a permanently impaired mental state; although epileptic seizures could occur, he stated that for the past year he had not experienced a single seizure. He had been fully conscious for the rest of the time and had been fully capable of reacting appropriately. For him, the very fact of being situated in a closed-type facility together with people with mental disorders had been excruciating.\n\n116.  The applicant’s submission was that his placement in the Īle Centre together with people with mental disorders did not fall within any of the grounds on which deprivation of liberty could be justified under Article 5 of the Convention. The domestic authorities had based their decisions to place the applicant in the Īle Centre solely on the fact that his family were not prepared to take care of him and that he needed social assistance. The authorities had not examined whether the necessary assistance could be provided through alternative measures that were less restrictive of his personal liberty.\n\n2.  The Government’s submissions\n\n2.  The Government’s submissions\n\n117.  The Government argued that the applicant’s complaints should be assessed from the perspective of his health, and that regard must be had to contradictions in his complaints. They submitted that, on the one hand, the applicant was unhappy about being placed in the Īle Centre, but, on the other hand, they argued that he had refused to leave it. In this connection they referred to the applicant’s alleged refusal to move to the Iecava branch in 2010 (see paragraph 26 above). They drew a distinction between the applicant’s grievances and possible disagreements with his wife and “the objective necessity to ensure that he received the medical treatment required by his state of health”.\n\n118.  The Government reiterated their previous submission that the Īle Centre had been an open type institution and stressed that he could move around freely inside and outside it, as well as socialise and receive guests.\n\n118.  The Government reiterated their previous submission that the Īle Centre had been an open type institution and stressed that he could move around freely inside and outside it, as well as socialise and receive guests.\n\n119.  They also submitted that the applicant’s state of health had been regularly examined. According to the Government: “the results of the examinations performed established that he suffered from epileptic dementia and that his mental health was deteriorating, as he had periodic episodes of delirium, dysphoria and aggressive episodes. In all the medical reports it was concluded that the applicant could not live alone without constant supervision.” In this connection they referred to the information provided by the Īle Centre, the psychologist and the Ģintermuiža hospital that dated from 2007 to 2011 (see paragraphs 27-31, 46 above). They concluded that the applicant had been in obvious need of medical care and alleged that the applicant had not disputed this.\n\n120.  The Government emphasised that the applicant himself had refused to be moved to the Iecava branch in 2010.\n\n120.  The Government emphasised that the applicant himself had refused to be moved to the Iecava branch in 2010.\n\n121.  Referring to the telephone conversation of 26 March 2012, the Government pointed out that on several occasions the applicant had left the Īle Centre with his guardian, Mr Petrovs, and that he had stayed at Mr Petrov’s home overnight (see paragraph 58 above). That led the Government to the conclusion that the Īle Centre could not be considered as a place of deprivation of liberty. They stressed that the applicant had not objected to Mr Petrov’s decision not to terminate the provision of social care services to the applicant and argued that this supported their position that the essence of the applicant’s complaints to the Court had been about his relationship with his wife. The Government maintained that the applicant had tacitly accepted his stay in the Īle Centre and that it had not been involuntary.\n\n122.  Finally, the Government submitted that the facts of the present case were fundamentally different from those of the above-cited Stanev case, in that the present applicant could and did leave the Īle Centre, and that he had tacitly agreed to his stay there. They held the firm view that there had been no deprivation of liberty in the present case.\n\n3.  The third parties’ intervention\n\n123.  The third parties in their joint submissions set forth the latest standards of international human rights law concerning people with disabilities. They endorsed a dynamic interpretation of the Convention and, stressed, in particular, the importance of the United Nations Convention on the Rights of Persons with Disabilities (the CRPD) in that connection.\n\n124.  The third parties noted that the Committee on the Rights of Persons with Disabilities and the Special Rapporteur on Torture have interpreted any denial of liberty where disability is a factor to be a deprivation of the right to liberty and thus in conflict with Article 14 of the CRPD.\n\n125.  They submitted that the Court considered the objective as well as the subjective aspects of an alleged deprivation of liberty in order to determine if the breach had in fact happened. The inextricable connection between the objective and subjective factors needed to be particularly emphasised when determining the rights to liberty of people with disabilities. For example, a person with a disability should be judged to have been deprived of the right to liberty even if he or she had consented to live in degrading, unhygienic, restricted living conditions. Similarly, the compulsory housing of people with disabilities in hygienic, comfortable premises would still constitute a loss of liberty if it was forced and without consent.\n\n126.  The right to liberty of all people with disabilities, and particularly in respect of people with psychosocial and intellectual disabilities, was a crucial concern because it had repeatedly been found that forced treatment was almost always accompanied by a loss of liberty. In recognition of this consequence, the Committee on the Rights of Persons with Disabilities had required in several of its Concluding Observations that States Parties ensure that health care services, including all mental health care services, be based on the informed consent of the person concerned. The Special Rapporteur on Torture had pointed out that “arbitrary or unlawful deprivation of liberty based on the existence of a disability might also inflict severe pain or suffering on the individual, thus falling under the scope of the Convention against Torture”. These links between loss of liberty and forced treatment and torture necessitated rigorous scrutiny of any deprivation of liberty of persons with disabilities.\n\n127.  Lastly, this scrutiny is also compelled by the fact that people in these situations, more than others, required the succour of human rights protection. Their extreme disempowerment required that the right to liberty and freedom from coercive treatment become operative rights and facts.\n\n4.  The Court’s assessment\n\n(a)  Whether the applicant’s was deprived of his liberty within the meaning of Article 5 § 1 of the Convention\n\n128.  The Court reiterates that in order to determine whether someone has been “deprived of his liberty” within the meaning of Article 5, the starting point must be his actual situation, and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question (see, for a recent authority, the above-cited Stanev case, § 115). The Court further observes that the notion of deprivation of liberty within the meaning of Article 5 § 1 does not only comprise the objective element of a person’s confinement in a particular restricted space for a length of time which is more than negligible. A person can only be considered to have been deprived of his liberty if, as an additional subjective element, he has not validly consented to the confinement in question (see Storck v. Germany, no. 61603/00, § 74, ECHR 2005V).\n\n129.  In the context of deprivation of liberty on mental-health grounds, the Court refers to the general principles recently reiterated in the above-mentioned Stanev case (ibid., §§ 116-120). In particular, it reiterates that it has found that there has been a deprivation of liberty in circumstances such as the following: (a) where the applicant, who had been declared legally incapable and admitted to a psychiatric hospital at his legal representative’s request, had unsuccessfully attempted to leave the hospital (see Shtukaturov, cited above, § 108); (b) where the applicant had initially consented to be admitted to a clinic but had subsequently attempted to escape (see Storck, cited above, § 76); (c) where the applicant was an adult incapable of giving his consent to admission to a psychiatric institution which, nonetheless, he had never attempted to leave (see H.L. v. the , no. 45508/99, §§ 89-94, ECHR 2004IX); and (d) where the applicant, a mentally incapacitated individual, who had been placed in a social care home in a block which he was able to leave, was nevertheless under constant supervision and was not free to leave the home without permission whenever he wished so (see Stanev, cited above, §§ 124-130).\n\n130.  Turning to the facts of the present case the Court notes, first of all, that in actual fact the applicant was successively placed in two state social care institutions – from 30 January 2002 to 1 April 2010 in the Īle Centre in Īle parish and from 1 April 2010 to the present in the Īle Centre in Lielbērze. Having regard to the parties’ factual submissions as concerns these institutions, the Court will first examine whether the applicant’s placement in the Īle Centre in Īle parish amounted to deprivation of liberty in the meaning of Article 5 § 1 of the Convention, and then the situation as concerns the Īle Centre in Lielbērze.\n\n131.  The Court observes that the applicant’s factual situation or the objective element of his confinement in the Īle Centre in Īle parish is disputed between the parties, who are in disagreement as to whether this institution was an open or a closed one. The Court emphasises nevertheless that this question is not determinative of the issue. In this regard, the Court notes its case-law to the effect that a person could be considered to have been “detained” for the purposes of Article 5 § 1 even during a period when he or she was in an open ward with regular unescorted access to unsecured hospital grounds and the possibility of unescorted leave outside the hospital (see H.L. v. the United Kingdom, cited above, § 92). The key factor in determining whether Article 5 § 1 applies to the applicant’s situation in the Īle Centre is whether its management exercised complete and effective control over his treatment, care, residence and movement from 30 January 2002, when he was admitted to that institution, to 1 April 2010, when he was transferred to Lielbērze (ibid., § 91; D.D. v. , no. 13469/06, § 146, 14 February 2012; and Kędzior v. , no. 45026/07, § 57, 16 October 2012 (not final)).\n\n132.  The parties’ submissions indicate that the applicant could not leave the institution without its management’s permission. Permission appeared to be conditional on the applicant’s state of health and was provided only if he was accompanied by staff of the institution or by another patient. There is no information at the Court’s disposal that the applicant had ever received permission to leave the centre with a staff member or another patient, or whether he had actually left it at any time between 30 January 2002 and 1 April 2010. The Government’s reference to permission that had been granted to the applicant to leave the centre appears to be related to the period of his stay in the Īle Centre in Lielbērze and not while he was in the Īle Centre in Īle parish. Moreover, the Court notes that the custodial court established that the applicant’s guardians at the material time, his wife and subsequently his son, had never taken him outside the Īle Centre. It sees no reason to question this finding. Moreover, it appears that his wife also limited the applicant’s social contacts by at one point prohibiting the applicant from receiving other visitors without her; this is contrary to the Government’s submission that he could freely meet other people. The Court further takes note of the applicant’s submission, which remained uncontested by the Government, that whenever patients left the institution without permission they were taken back there by the police. This situation resembles that of Mr Stanev (see Stanev, cited-above, §§ 28 and 127, who had overstayed a leave of absence and the staff returned him to the home without regard to his wishes) and Ms D.D. (see D.D. v. Lithuania, cited above, §§ 30 and 146, who had left the institution on her own and then was brought back by the police). These factors lead the Court to consider, contrary to the Government’s position, that the applicant was under constant supervision and was not free to leave the institution without permission whenever he wished.\n\n133.  As regards the duration of the measure, the Court observes that it had not been specified and that the applicant had lived in the Īle Centre in Īle parish for more than eight years. This period is sufficiently long for him to have felt the full adverse effects of the restrictions imposed on him.\n\n133.  As regards the duration of the measure, the Court observes that it had not been specified and that the applicant had lived in the Īle Centre in Īle parish for more than eight years. This period is sufficiently long for him to have felt the full adverse effects of the restrictions imposed on him.\n\n134.  The Court next turns to the “subjective” element, which is also disputed between the parties. The Court reiterates that the fact that the applicant lacked de jure legal capacity to decide matters for himself does not necessarily mean that he was de facto unable to understand his situation (see Shtukaturov, cited above, § 108). Whilst accepting that there are situations where the wishes of a person with impaired mental faculties may validly be replaced by those of another person acting in the context of a protective measure, and that it is sometimes difficult to ascertain the true wishes or preferences of the person concerned (see Stanev, cited above, § 130), the Court finds that this was not the applicant’s case. The documents presented to the Court indicate that the applicant subjectively perceived his compulsory admission to the Īle Centre as a deprivation of liberty. Contrary to what the Government suggested, he has never regarded his admission to the institution as consensual, and has objected to it during his stay there. On a number of occasions the applicant applied to the custodial courts with a view to having his legal capacity reinstated (see paragraphs 32 and 38 above), submitting that this would allow him to leave the centre. In his further applications to the State authorities he explicitly stated that he had been placed in the Īle Centre against his will (see paragraph 34 above) and that he wished to have another guardian who would carry out his wish to be allowed to leave (see paragraph 38 above). The Court takes note of the Government’s argument relating to the applicant’s alleged refusal to move to another social care institution located in Iecava municipality in November or December 2010 (see paragraphs 26 and 117 above). However the Court considers that this refusal did not relate to his possible release from the Īle Centre in Īle parish, but rather his possible release from the Īle Centre in Lielbērze, where he was placed on 1 April 2010. By the same token the Court considers that the Government’s reference to the telephone conversation of 26 March 2012 (see paragraphs 58 and 121 above) is misconceived, since it did not attest to his wishes to reside in the Īle Centre in Īle parish but rather in Lielbērze.\n\n135.  These factors set the circumstances in the Īle Centre in Īle parish apart from those of the nursing home where the applicant in H.M. v. Switzerland was moved. In that case the Court found that there had been no deprivation of liberty as the applicant had been placed in the nursing home purely in her own interests and, after her arrival there, had agreed to stay. In that connection the Government have not shown that in the present case, on arrival at the Īle Centre in Īle parish or at any later date, the applicant agreed to stay there. That being so, the Court is not convinced that the applicant consented to the placement or accepted it tacitly at a later stage and throughout his stay there.\n\n136.  Lastly, the Court notes that although the applicant’s admission was requested by the applicant’s guardian, a private individual, it was implemented by a State-run institution, the State social care centre. Therefore, the responsibility of the authorities for the situation complained of was engaged (see the above-cited Shtukaturov, § 110; D.D. v. Lithuania, § 151; and Kędzior, § 59).\n\n137.  In the light of the foregoing the Court concludes that the applicant was “deprived of his liberty” within the meaning of Article 5 § 1 of the Convention from 30 January 2002 to 1 April 2010 in the Īle Centre in Īle parish. The Court therefore rejects the Government’s objection in this regard.\n\n138.  The Court observes that the objective and subjective elements of the applicant’s confinement in the Īle Centre in Lielbērze from 1 April 2010 onwards are also disputed between the parties. Having due regard to the parties’ submissions and to the facts of the case, the Court has doubts whether the applicant could be considered as having been deprived of his liberty in the Īle Centre in Lielbērze. In this connection, the Court refers to the fact that the applicant acknowledged that the Īle Centre in Lielbērze had been an open institution. It further notes that he himself had refused to move to another care centre, namely to the Iecava branch, by pointing out that he was satisfied with his stay in the Īle Centre in Lielbērze (see paragraph 26 above). The applicant did not contest this before the Court. It is also important in this connection to note that the applicant did, in fact, leave the Īle Centre in Lielbērze on several occasions to spend some time outside after Mr Petrovs had been appointed his guardian (see paragraph 58 above). Finally, the Court notes that the applicant did not approach any domestic authority with a view to his release from the Īle Centre in Lielbērze, contrary to his express opposition to his confinement in the Īle Centre in Īle parish (see paragraph 134 above). In this connection, the Court notes that under the applicable law (see paragraph 75 above) the applicant could complain about any breaches of his rights. The Court observes that there is no indication in the case material that the applicant approached any domestic authority to allege a breach of his rights in the Īle Centre in Lielbērze, for example, as concerns arbitrary or indeed any deprivation of his liberty. The Court cannot but note that he did exercise this right while residing in the Īle Centre in Īle parish.\n\n139.  These factors, in contrast to those examined under the previous sub-heading, are sufficient for the Court to consider that the Government have shown that the applicant had tacitly agreed to stay in the Īle Centre in Lielbērze. The Court would add, in this respect, that it is not without importance that the applicant’s representative conceded that the applicant’s complaints related to the events in the past, thereby implicitly confirming that he did not have any objections to the current state of affairs in the Īle Centre in Lielbērze.\n\n140.  Therefore, the Court accepts the Government’s objection that the applicant was not “deprived of his liberty” within the meaning of Article 5 § 1 of the Convention from 1 April 2010 onwards in the Īle Centre in Lielbērze. Accordingly, Article 5 § 1 of the Convention is not applicable to the applicant’s stay in Lielbērze and there has been no violation of that provision in this respect.\n\n(b)  Whether the applicant’s placement in the Īle Centre in Īle parish was compatible with Article 5 § 1\n\n141.  The Court observes that the applicant argued that the restrictions imposed on him amounted to a deprivation of liberty which had not been warranted by any of the exceptions provided for in sub-paragraphs (a) to (f) of Article 5 § 1 to the rule of personal liberty. The Government contended that the applicant’s placement in the Īle Centre had been in his best interests as he had been in obvious need of medical care. Referring to the Government’s submissions as concerns the applicant’s mental state of health and the allegation that he was incapable of living alone without constant supervision, the Court considers that the Government may be understood as arguing that the measure in question should be held to comply with sub-paragraph (e) of Article 5 § 1 of the Convention and that the applicant had been admitted to the Īle Centre lawfully.\n\n142.  It appears that the only condition for the applicant’s detention was the consent of his official guardian, his wife, who was also the person who sought the applicant’s placement in the social care centre (see Shtukaturov, cited above, § 112). In this connection, the Court accepts that there was some legal basis for the applicant’s placement in the social care centre.\n\n143.  However, the Court reiterates that the notion of “lawfulness” in the context of Article 5 § 1 has also a broader meaning. The notion underlying the term “procedure prescribed by law” is one of fair and proper procedure, namely that any measure depriving a person of his liberty should issue from, and be executed by, an appropriate authority and should not be arbitrary (see Winterwerp, cited above, § 45, and, more recently, X v. Finland, no. 34806/04, § 148, ECHR 2012 (extracts)). In other words, the detention cannot be considered “lawful” within the meaning of Article 5 § 1 if the domestic procedure does not provide sufficient guarantees against arbitrariness.\n\n144.  In its abovementioned Winterwerp judgment, the Court set out three minimum conditions which have to be satisfied in order for there to be “the lawful detention of a person of unsound mind” within the meaning of Article 5 § 1 (e): except in emergency cases, the individual concerned must be reliably shown to be of unsound mind, that is to say the existence of a true mental disorder must be established by a competent authority on the basis of objective medical opinion; the mental disorder must be of a kind or degree warranting compulsory confinement; and the validity of continued confinement depends upon the persistence of such a disorder (ibid., § 39). In this connection, the Court reiterates that in deciding whether an individual should be detained as a “person of unsound mind”, the national authorities are to be recognised as having a certain discretion, since it is in the first place for them to evaluate the evidence adduced before them in a particular case; the Court’s task is to review under the Convention the decisions of those authorities (ibid., § 40; and, more recently, Stanev, cited above, § 155). It is not the Court’s task to reassess various medical opinions, which would fall primarily within the competence of national courts; however, it must ascertain for itself whether the domestic courts, when taking the contested decision, had at their disposal sufficient evidence to justify the detention (see Herz v. Germany, no. 44672/98, § 51, 12 June 2003, and, more recently, Plesó v. , no. 41242/08, § 61, 2 October 2012 (not final)).\n\n145.  The Court has already noted that in certain circumstances the welfare of a person with mental disorders might be a further factor to take into account, in addition to medical evidence, in assessing whether it is necessary to place the person in an institution. However, the objective need for accommodation and social assistance must not automatically lead to the imposition of measures involving deprivation of liberty. The Court considers that any protective measure should reflect as far as possible the wishes of individuals capable of expressing their will. Failure to seek their opinion could give rise to situations of abuse and hamper the exercise of the rights of vulnerable persons. Therefore, any measure taken without prior consultation of the interested person will as a rule require careful scrutiny (see Stanev, cited above, § 153).\n\n146.  In the instant case, the first question is whether the applicant was reliably shown to be suffering from a mental disorder. On this point, the Court observes that the expert medical report produced in the context of the proceedings for the applicant’s legal incapacitation established that he was suffering from epilepsy, which was described as organic in nature with psychotic syndromes and symptoms, but expressly noted that he did not suffer from “a mental illness” (see paragraph 8 above). In any event, the Court reiterates that the mental condition of a person must be established at the time he is deprived of liberty (see O.H. v. Germany, no. 4646/08, § 78, 24 November 2011) and, in the present case, the experts examined the applicant on 19 April 2000 in the course of the incapacitation proceedings, while the decision to place him in the Īle Centre was taken almost two years later, on 21 January 2002. Similarly, the scarcely-reasoned decision by the Social Assistance Authority to include the applicant in the list of people waiting for a referral to a social care institution was adopted on 28 November 2000, therefore any examination of the applicant’s state of health carried out for the purposes of that decision cannot be considered as an “objective medical opinion” for deprivation of liberty taking place more than one year later, let alone an examination that did not establish the existence of “a mental illness”.\n\n147.  Having found that the reports issued in 2000 did not reliably show that the applicant was suffering from a mental disorder at the relevant time, the Court will now examine the medical certificate of 17 January 2002, which was prepared a few weeks before the applicant was placed in the Īle Centre (see paragraph 18 above). It is true that it contained a conclusion that in view of the applicant’s state of mental health he could be placed in an institution for people with mental disorders. However, the Court considers that such a conclusion is not sufficient. For the purposes of the Winterwerp test it has to be reliably shown that the applicant was suffering from a “true” mental disorder at the time he was placed in the institution. In the medical certificate of 17 January 2002 there was no mention that the applicant was suffering from any illness, let alone that he suffered from any mental disorder at all.\n\n148.  The documents submitted to the Court indicate that the applicant’s diagnosis at the time of his placement had been “epileptic dementia” and “focal symptomatic epilepsy with secondarily generalised seizures” (see paragraphs 27, 28, 31 and 48 above), but in the absence of the parties’ observations or indeed any further information on this issue, the Court cannot speculate as to when, where or who had established this diagnosis. Therefore it considers that the Government have not proved the existence of the “objective medical opinion” capable of justifying the applicant’s detention. In the Court’s view, the lack of proper medical assessment alone would be sufficient to conclude that the applicant’s placement in the centre was not lawful for the purposes of Article 5 § 1 (e) of the Convention.\n\n149.  The Court observes that the other requirements of Article 5 § 1 (e) were not satisfied in the present case either. As regards the need to justify the placement by the severity of the disorder, the Court notes that it has not been established that at the material time the applicant posed any danger to himself or to others, for example because of his psychiatric condition (see, for a similar consideration, Plesó, cited above, §§ 65 and 67). Indeed, there is no information as concerns his behaviour before he was placed in the Īle Centre; the mere fact that prior to his placement in the social care home he had been admitted to the psychiatric hospital is insufficient in this regard. The Court considers that the Government’s reference to the information which related to later events, namely from 2007 to 2011 (see paragraph 119 above), is also not sufficient to prove that the severity of the applicant’s disorder warranted his confinement in 2002. Moreover, there was no evidence that he would not submit to treatment voluntarily (see and contrast, Sabeva v. , no. 44290/07, § 59, 10 June 2010). Nor was any consideration given to a possibility of treating the applicant as an outpatient (ibid., § 60) or to other less restrictive means of social assistance and care. In the Court’s view the domestic authorities should have taken a more careful approach in assessing whether or not the applicant’s condition warranted his placement in the Īle Centre in 2002, given that any encroachment in the Convention rights of persons belonging to particularly vulnerable groups such as those with disabilities can be justified only by “very weighty reasons” (see, mutatis mutandis, Z.H. v. Hungary, no. 28973/11, § 29, 8 November 2012 (not final)).\n\n150.  The Court further notes deficiencies in the assessment of whether the alleged disorders warranting the applicant’s confinement persisted over time. Although he appears to have been under the supervision of the psychiatrist in the institution, the aim of that supervision was not to provide an assessment at regular intervals of whether he still needed to be kept in the Īle Centre for the purposes of Article 5 § 1 (e). Indeed, no provision was made for such an assessment under the relevant legislation.\n\n150.  The Court further notes deficiencies in the assessment of whether the alleged disorders warranting the applicant’s confinement persisted over time. Although he appears to have been under the supervision of the psychiatrist in the institution, the aim of that supervision was not to provide an assessment at regular intervals of whether he still needed to be kept in the Īle Centre for the purposes of Article 5 § 1 (e). Indeed, no provision was made for such an assessment under the relevant legislation.\n\n151.  In view of the above considerations, the Court finds that the regulatory framework for placing in social care centres individuals who, like the applicant, have been totally deprived of legal capacity, did not provide the necessary safeguards at the material time. The Court will return to this matter in the context of the applicant’s complaint under Article 5 § 4 of the Convention.\n\n152.  Having regard to the foregoing, and in particular to the lack of proper medical assessment of his placement in the centre and to the lack of regular assessment of the applicant’s disorder, the Court observes that the applicant’s placement in the Īle Centre in Īle parish was not ordered “in accordance with a procedure prescribed by law” and that his deprivation of liberty was not justified by subparagraph (e) of Article 5 § 1 of the Convention.\n\n153.  Furthermore, the Government have not indicated any of the other grounds listed in sub-paragraphs (a) to (f) which might have justified deprivation of liberty in issue in the present case.\n\nThere has therefore been a violation of Article 5 § 1 in this respect.\n\n(c)  Article 5 § 4 of the Convention as concerns the Īle Centre in Īle parish\n\n154.  Among the principles emerging from the Court’s case-law under Article 5 § 4 concerning “persons of unsound mind” are the following:\n\n(a) a person detained for an indefinite or lengthy period is in principle entitled, at any rate where there is no automatic periodic review of a judicial character, to take proceedings “at reasonable intervals” before a court to put in issue the “lawfulness” – within the meaning of the Convention – of his detention;\n\n(b) Article 5 § 4 requires the procedure followed to have a judicial character and to afford the individual concerned guarantees appropriate to the kind of deprivation of liberty in question; in order to determine whether proceedings provide adequate guarantees, regard must be had to the particular nature of the circumstances in which they take place;\n\n(c) the judicial proceedings referred to in Article 5 § 4 need not always be attended by the same guarantees as those required under Article 6 § 1 for civil or criminal litigation. Nonetheless, it is essential that the person concerned should have access to court and the opportunity to be heard either in person or, where necessary, through some form of representation (see, for a recent authority, Stanev, cited above, § 171).\n\n155.  This is so in cases where the original detention was initially authorised by a judicial authority (see X v. the United Kingdom, 5 November 1981, § 52, Series A no. 46), and it is all the more true in the circumstances of the present case where the applicant’s placement in the Īle Centre was initiated by a private individual, namely the applicant’s guardian, and decided upon by the municipal and social care authorities without any involvement of the courts (see D.D. v. Lithuania, cited above, § 164, and Kędzior, cited above, § 76).\n\n156.  The Court accepts that the forms of judicial review may vary from one domain to another and may depend on the type of deprivation of liberty at issue. It is not within the province of the Court to inquire into what would be the best or most appropriate system of judicial review in this sphere (ibid., § 77). However, in the present case the courts were not involved in deciding on the applicant’s placement at any time or in any way. It appears that in situations such as the applicant’s Latvian law does not provide for automatic judicial review of the lawfulness of admitting a person to and keeping him in an institution like the Īle Centre. In addition, a review cannot be initiated by the person concerned if that person has been deprived of his legal capacity. In sum, the applicant was prevented from independently pursuing any legal remedy of a judicial character to challenge his continued involuntary institutionalisation. This again confirms a lack of an effective regulatory framework in this area (see paragraph 151 above).\n\n157.  The Government claimed that the applicant could initiate proceedings before the  to challenge the compliance of specific legal provisions contained in the Law on Social Services and Social Assistance, the Civil Law and the Law on  with provisions of superior force. The Court, being mindful of the Constitutional Court’s ruling of 27 December 2010, notes however that the present applicant’s complaint under Article 5 § 4 of the Convention relates to his inability to obtain release from the Īle Centre and not to the issue of his legal capacity. In this connection, the Court reiterates that the Constitutional Court in Latvia is empowered to repeal legal provisions which it finds unconstitutional, but not to adopt new legal procedures or to close an alleged legislative gap (see Liepājnieks v. Latvia (dec.), no. 37586/06, §§ 73 and 75, 2 November 2010). This conclusion is further supported by the  ruling of 27 December 2010, whereby some legal provisions of the Latvian Civil Law relating to the legal capacity of individuals were declared null and void with effect from 1 January 2012. Parliament therefore had to come up with a legislative solution to comply with the Constitutional Court’s ruling and to establish a system of partial legal capacity for individuals in . This was done two years after the Constitutional Court’s ruling and the new regulation is applicable from 1 January 2013. In such circumstances the Court fails to see how the present applicant’s recourse to the  would enable him “to take proceedings at reasonable intervals” to determine the lawfulness of his continued deprivation of liberty. The Government did not suggest that there were any other venues available to the applicant to obtain a review of the lawfulness of his detention in the institution.\n\n158.  In the light of the above, the Court dismisses the Government’s objection of failure to exhaust domestic remedies and finds that there has also been a violation of Article 5 § 4 of the Convention as concerns the Īle Centre in Īle parish.\n\n159.  On the other hand, taking into account that the applicant was not deprived of his liberty from 1 April 2010 onwards in the Īle Centre in Lielbērze, Article 5 § 4 of the Convention is not applicable and there has been no violation of that provision in this respect.\n\nIV.  ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION\n\n160.  The applicant complained of a breach of Article 8 of the Convention on account of the fact that he had been fully dependent on his wife, who had been his guardian, had not represented his interests and had opposed all attempts by him to defend his rights.\n\n161.  Article 8 of the Convention provides:\n\n“1. Everyone has the right to respect for his private and family life, his home and his correspondence.\n\n2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”\n\nA.  Admissibility\n\n1.  The parties’ submissions\n\n162.  The Government reiterated their submission (see paragraph 121 above) that the essence of the applicant’s complaints had been his relationship with his wife and not “his continued incapacitation”. He could not therefore claim to be a victim within the meaning of Article 34 of the Convention. Furthermore, he had failed to lodge an appeal against the 17 May 2000 judgment or to ask for a restoration of the time-limit for the appeal. The Government considered that these remedies were still available to the applicant.\n\n163.  The applicant maintained that there has been a violation of his right to respect for his private life on account of his continued legal incapacitation.\n\n2.  The Court’s assessment\n\n164.  In view of the applicant’s submission that he did, in fact, complain about his continued legal incapacitation under Article 8 of the Convention, the Court rejects the Government’s preliminary objection as concerns the incompatibility ratione personae of this complaint with the provisions of the Convention.\n\n165.  As concerns the second preliminary objection, the Court observes that the applicant’s complaint under this provision relates to his continued legal incapacitation, at least until 13 February 2012 when the legislation changed to allow persons such as the applicant to request, in their own name, reinstatement of their legal capacity (see paragraph 69 above), and not merely to the 17 May 2000 judgment. It accordingly rejects the Government’s plea of non-exhaustion. The Court further observes that the Government have not argued that any other remedy was available to the present applicant in respect of his complaint under Article 8 of the Convention.\n\n166.  The Court notes that this part of the application is not manifestly illfounded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n167.  Having regard to its conclusions under Article 5 §§ 1 and 4 of the Convention above, the Court considers that no separate issue arises under Article 8 of the Convention (see Stanev, cited above, § 252). It is therefore unnecessary to examine this complaint.\n\nV.  OTHER ALLEGED VIOLATION OF THE CONVENTION\n\n168.  The applicant further complained under Articles 2 and 3 of the Convention that narcotic substances had been administered to him against his will between 13 March 2000 and 30 January 2002. He also complained, citing Article 5 of the Convention, about his compulsory admission to the psychiatric hospital in  during this period. He further alleged a breach of Article 7 of the Convention on account of the facts which have been examined above under Article 5 §§ 1 and 4. The applicant complained, and referred in this regard to Article 6 of the Convention, that the 17 May 2000 decision had been adopted in his absence and alleged that he had never received a copy of that decision. Lastly, the applicant alleged breaches of Articles 13, 14 and 17 of the Convention, as well as breaches of various Articles of the Protocols to the Convention.\n\n169.  However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.\n\n170.  It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.\n\nVI.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n171.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n172.  The applicant claimed 500,000 euros (EUR) in respect of non-pecuniary damage. He submitted that he had spent more than eleven years in different closed-type mental institutions, his movements had been restricted to their territories and he had to spend time with other patients. The applicant described his situation as worse than in a prison, because in a prison one at least had a term to serve. Finally, he compared his eleven years spent in various institutions to a partly-closed prison.\n\n173.  The Government disagreed. They pointed out that the applicant had not indicated whether or how he had suffered from mental anguish or distress as a result of the alleged violations. In their opinion, the finding of a violation in itself would constitute adequate compensation in the present case. Alternatively, they considered that the amount requested was unjustified, excessive and exorbitant. They referred to other cases examined by the Court under Article 5 (Beiere v. , no. 30954/05, § 58, 29 November 2011 and L.M. v. , no. 26000/02, § 64, 19 July 2011) and noted that the sum of the non-pecuniary compensation in these cases had been EUR 9,000. Finally, they pointed out that in these cases the applicants had been placed in psychiatric hospitals, whereas the present case concerned an open institution.\n\n174.  The Court observes that it has found a violation of Article 5 § 1 as well as a violation of Article 5 § 4 in the present case in so far as it concerns the applicant’s deprivation of liberty in the Īle Centre in Īle parish from 30 January 2002 to 1 April 2010, that is, for more than eight years. It considers that the applicant must have endured suffering as a result of being placed in the centre and his inability to secure a judicial review of that measure. This suffering undoubtedly aroused in him a feeling of helplessness and anxiety. Ruling on an equitable basis, as required by Article 41 of the Convention, the Court considers that the applicant should be awarded an aggregate sum of EUR 15,000 in respect of non-pecuniary damage.\n\nB.  Costs and expenses\n\n175.  The applicant did not lodge any claim under this head.\n\nC.  Default interest\n\n176.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Dismisses the Government’s request to strike the application out of its list of cases;\n\n2.  Joins to the merits the Government’s preliminary objections that the applicant’s complaints under Article 5 §§ 1 and 4 of the Convention are incompatible ratione materiae with the provisions of the Convention and that the applicant had failed to exhaust domestic remedies;\n\n3.  Declares the complaints under Article 5 §§ 1 and 4 and Article 8 of the Convention admissible and the remainder of the application inadmissible;\n\n4.  Holds that there has been a violation of Article 5 § 1 of the Convention on account of the applicant’s stay in the Īle Centre in Īle parish from 30 January 2002 to 1 April 2010 and dismisses the Government’s preliminary objection as concerns the applicability of Article 5 § 1 of the Convention in this respect;\n\n5.  Holds that there has been no violation of Article 5 § 1 of the Convention on account of the applicant’s stay in the Īle Centre in Lielbērze from 1 April 2010 onwards and upholds the Government’s preliminary objection as concerns the applicability of Article 5 § 1 of the Convention in this respect;\n\n6.  Holds that there has been a violation of Article 5 § 4 of the Convention on account of the applicant’s inability to obtain a review of the lawfulness of his placement in the Īle Centre in Īle parish from 30 January 2002 to 1 April 2010 and dismisses the Government’s preliminary objection as concerns the non-exhaustion of domestic remedies in this respect;\n\n7.  Holds that there has been no violation of Article 5 § 4 of the Convention on account of the applicant’s inability to review of the lawfulness of his placement in the Īle Centre in Lielbērze from 1 April 2010 onwards and upholds the Government’s preliminary objection as concerns the applicability of Article 5 § 1 of the Convention in this respect;\n\n8.  Holds that it is not necessary to examine whether there has been a violation of Article 8 of the Convention;\n\n9.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 15,000 (fifteen thousand euros) in respect of non-pecuniary damage plus any tax that may be chargeable, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n10.  Dismisses the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 22 January 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_265","text":"PROCEDURE\n\n1.  The case originated in an application against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 20 November 2020.\n\n2.  The applicant was represented by Mr A.V. Pustyntsev, a lawyer practising in the city of Dnipro, Ukraine.\n\n3.  The Ukrainian Government (“the Government”) were given notice of the application.\n\nTHE FACTS\n\n4.  The applicant’s details and information relevant to the application are set out in the appended table.\n\n5.  The applicant complained of the inadequate conditions of his detention and of the lack of any effective remedy in domestic law. He also raised other complaints under the provisions of the Convention.\n\nTHE LAW\n\nALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION\n\n6.  The applicant complained principally of the inadequate conditions of his detention and that he had no effective remedy in this connection. He relied on Articles 3 and 13 of the Convention, which read as follows:\n\nArticle 3\n\n“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”\n\nArticle 13\n\n“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority ...”\n\n7.  The Court notes that the applicant was kept in detention in poor conditions. The details of the applicant’s detention are indicated in the appended table. The Court refers to the principles established in its caselaw regarding inadequate conditions of detention (see, for instance, Muršić v. Croatia [GC], no. 7334/13, §§ 96101, ECHR 2016). It reiterates in particular that a serious lack of space in a prison cell weighs heavily as a factor to be taken into account for the purpose of establishing whether the detention conditions described are “degrading” from the point of view of Article 3 and may disclose a violation, both alone or taken together with other shortcomings (see Muršić, cited above, §§ 122 41, and Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 14959, 10 January 2012).\n\n8.  In the leading cases of Melnik v. Ukraine (no. 72286/01, 28 March 2006) and Sukachov v. Ukraine (no. 14057/17, 30 January 2020) the Court already found a violation in respect of issues similar to those in the present case.\n\n9.  Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the applicant’s conditions of detention were inadequate.\n\n10.  The Court further notes that the applicant did not have at his disposal an effective remedy in respect of these complaints.\n\n11.  These complaints are therefore admissible and disclose a breach of Articles 3 and 13 of the Convention.\n\nOTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW\n\n12.  The applicant submitted other complaints which also raised issues under the Convention, given the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its findings in Merit v. Ukraine (no. 66561/01, §§ 72-76, 30 March 2004), Kharchenko v. Ukraine (no. 40107/02, §§ 79-81, 10 February 2011), Tymoshenko v. Ukraine (no. 49872/11, §§ 286-87, 30 April 2013), Ignatov v. Ukraine (no. 40583/15, §§ 40-42, 15 December 2016) and Kotiy v. Ukraine (no. 28718/09, § 55, 5 March 2015).\n\nAPPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n13.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\n14.  Regard being had to the documents in its possession and to its caselaw (see, in particular, Sukachov, cited above, §§ 165 and 167), the Court considers it reasonable to award the sums indicated in the appended table.\n\n15.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\nDeclares the application admissible;\n\nHolds that this application discloses a breach of Articles 3 and 13 of the Convention concerning the inadequate conditions of detention and the lack of any effective remedy in domestic law;\n\nHolds that there has been a violation of the Convention as regards the other complaints raised under well-established case-law of the Court (see appended table);\n\nHolds\n\nthat the respondent State is to pay the applicant, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;\n\nthat from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.\n\nDone in English, and notified in writing on 18 November 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_903","text":"PROCEDURE\n\n1.  The case originated in an application (no. 25381/12) against the Republic of Serbia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Serbian national, Mr Nenad Grujović (“the applicant”), on 18 April 2012.\n\n2.  The applicant was represented by Ms Z. Dobričanin-Nikodinović, a lawyer practising in Belgrade. The Serbian Government (“the Government”) were represented by their Agent, Ms V. Rodić.\n\n3.  The applicant alleged, in particular, that his pre-trial detention and the criminal proceedings against him had been excessively long. He also maintained that the Serbian authorities had hindered his right to individual petition to the Court.\n\n4.  The application was initially allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court).\n\n5.  On 5 June 2013 the complaints concerning the length of pre-trial detention and the length of the criminal proceedings were communicated to the Government and the remainder of the application was declared inadmissible, pursuant to Rule 54 § 3 of the Rules of Court.\n\n6.  On 1 February 2014 the Court changed the composition of its Sections (Rule 25 § 1). This case was thus assigned to the newly composed Third Section (Rule 52 § 1).\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n7.  The applicant was born in 1977. He is currently being detained in the Belgrade Central Prison.\n\nIt would appear that the applicant’s criminal record predates the events complained of, and that he was arrested pursuant to an international arrest warrant in the Netherlands in 2003 for crimes other than those at issue in the present case.\n\nA.  The criminal proceedings\n\n.  On 5 December 2006 the applicant was arrested and placed in custody in Austria, pursuant to an international arrest warrant.\n\n.  On 5 December 2006 the applicant was arrested and placed in custody in Austria, pursuant to an international arrest warrant.\n\n9.  On 20 December 2006 the Ministry of Justice of the Republic of Serbia (Министарство правде Републике Србије; “the Ministry of Justice”) requested the applicant’s extradition for the purpose of conducting several sets of criminal proceedings against him unrelated to the present case.\n\n9.  On 20 December 2006 the Ministry of Justice of the Republic of Serbia (Министарство правде Републике Србије; “the Ministry of Justice”) requested the applicant’s extradition for the purpose of conducting several sets of criminal proceedings against him unrelated to the present case.\n\n10.  On 11 January 2007 the investigating judge of the Belgrade District Court (“the District Court”) opened an investigation against the applicant, who was suspected of having participated in aggravated murder with unauthorised use of another person’s vehicle and forgery. The offences had allegedly been committed on 24 March 2006.\n\n.  On 29 January 2007 the Ministry of Justice extended its extradition request to include the above-mentioned criminal proceedings (see paragraph 10 above), which are the subject of the present case.\n\n.  On 29 January 2007 the Ministry of Justice extended its extradition request to include the above-mentioned criminal proceedings (see paragraph 10 above), which are the subject of the present case.\n\n12.  In the meantime, on 16 April 2007 the competent court in Austria found the applicant guilty of possession of an unlicensed firearm, which had been found on him at the time of his arrest, and sentenced him to seven months’ imprisonment.\n\n12.  In the meantime, on 16 April 2007 the competent court in Austria found the applicant guilty of possession of an unlicensed firearm, which had been found on him at the time of his arrest, and sentenced him to seven months’ imprisonment.\n\n13.  On 6 July 2007 the applicant was extradited to Serbia.\n\n13.  On 6 July 2007 the applicant was extradited to Serbia.\n\n14.  On 31 December 2007 the public prosecutor issued an indictment against the applicant and two other persons, V.S. and B.A, who were at large.\n\n14.  On 31 December 2007 the public prosecutor issued an indictment against the applicant and two other persons, V.S. and B.A, who were at large.\n\n15.  On 7 May 2008 the first hearing was held before the District Court. It was decided that V.S. and B.A. would be tried in absentia.\n\n15.  On 7 May 2008 the first hearing was held before the District Court. It was decided that V.S. and B.A. would be tried in absentia.\n\n16.  Subsequently, forty-one hearings were scheduled, of which nineteen were adjourned: four at the request of the applicant’s defence counsel and fifteen for various procedural reasons, such as the absence of the co-accused’s defence counsel, the absence of duly summoned witnesses and/or experts, erroneous delivery of summons, and delays concerning experts’ opinions. Furthermore, the trial had to start anew six times because the presiding judge and/or the composition of the trial chamber changed. From March 2010, following a reform of the domestic judicial system, the Belgrade High Court (“the High Court”) took over the case.\n\n16.  Subsequently, forty-one hearings were scheduled, of which nineteen were adjourned: four at the request of the applicant’s defence counsel and fifteen for various procedural reasons, such as the absence of the co-accused’s defence counsel, the absence of duly summoned witnesses and/or experts, erroneous delivery of summons, and delays concerning experts’ opinions. Furthermore, the trial had to start anew six times because the presiding judge and/or the composition of the trial chamber changed. From March 2010, following a reform of the domestic judicial system, the Belgrade High Court (“the High Court”) took over the case.\n\n17.  On 1 April 2014 the High Court found the applicant guilty of complicity in aggravated murder, unauthorised use of another person’s vehicle and forgery. It sentenced him to twenty years’ imprisonment.\n\n17.  On 1 April 2014 the High Court found the applicant guilty of complicity in aggravated murder, unauthorised use of another person’s vehicle and forgery. It sentenced him to twenty years’ imprisonment.\n\n18.  On 4 and 17 July 2014, respectively, the applicant and the public prosecutor appealed against the High Court judgment.\n\n18.  On 4 and 17 July 2014, respectively, the applicant and the public prosecutor appealed against the High Court judgment.\n\n19.  On 31 October 2014 the Belgrade Court of Appeal (“the Court of Appeal”), quashed the High Court judgment of 1 April 2014 and remitted the case for a re-trial.\n\nB.  The applicant’s detention\n\nB.  The applicant’s detention\n\n20.  On 11 January 2007 the investigating judge issued a detention order against the applicant in his absence, on the following grounds: (1) the risk of absconding; (2) the risk of obstructing the course of justice by exerting pressure on witnesses and his co-accused; (3) the risk of reoffending; and (4) the gravity of the criminal offences of which he was accused and the sentence that might be imposed on him. The one-month period of detention was to be calculated from the date of the applicant’s arrest. The relevant part of the decision reads as follows:\n\n“After committing the alleged criminal offences [and when preliminary criminal proceedings were initiated] the accused was at large. He was not available to the law-enforcement authorities until recently ... which justifies the fear that if released he would abscond.\n\nA number of witnesses are to be heard in the investigation, including the two co-accused ... this indicates that, if released, the accused would obstruct the course of justice by influencing the witnesses ...\n\nThe accused had previously been convicted ... and committed several criminal acts within a short period of time ... the court considers that these facts represent special circumstances which justify the fear that, if released, he would reoffend.\n\nThe accused has been charged with criminal offences punishable by imprisonment for more than ten years, and in view of the manner in which the offences were committed and the severity of their consequences, it is justified to order his detention also ... on the basis of the nature of the offences alleged and the severity of the penalty that could be imposed.”\n\n.  After his extradition to Serbia on 6 July 2007, the applicant was detained pursuant to the above order.\n\n.  On 6 August and 4 October 2007, respectively, the District Court and the Supreme Court of Serbia (“the Supreme Court”) further extended the applicant’s detention, relying on the same grounds as before. They noted in particular that he had already been in hiding and had been arrested pursuant to an international warrant.\n\n.  Thereafter, the applicant’s detention was regularly examined and extended every two months by the District Court, the Supreme Court and, following a reform of the domestic judicial system, by the High Court and the Court of Appeal. In addition to those automatic reviews, the applicant repeatedly challenged his detention.\n\n.  Thereafter, the applicant’s detention was regularly examined and extended every two months by the District Court, the Supreme Court and, following a reform of the domestic judicial system, by the High Court and the Court of Appeal. In addition to those automatic reviews, the applicant repeatedly challenged his detention.\n\n24.  After issuing the indictment (see paragraph 14 above), the courts held that the second ground for detention, the risk of the applicant influencing the witnesses, had ceased to exist. Thus, from 4 January 2008 onwards his detention was extended on the following three grounds: (1) the risk of absconding; (2) the risk of reoffending; and (3) the gravity of the criminal offences of which he was accused and the sentence that might be imposed on him.\n\n24.  After issuing the indictment (see paragraph 14 above), the courts held that the second ground for detention, the risk of the applicant influencing the witnesses, had ceased to exist. Thus, from 4 January 2008 onwards his detention was extended on the following three grounds: (1) the risk of absconding; (2) the risk of reoffending; and (3) the gravity of the criminal offences of which he was accused and the sentence that might be imposed on him.\n\n25.  On 15 October 2013, although it rejected the applicant’s appeal, the Court of Appeal accepted his argument concerning the third ground for detention and decided that it had ceased to exist. Hence, the applicant’s detention was further extended only on the grounds that he might abscond and reoffend. The court held in particular:\n\n“... for this legal ground [for detention to be satisfied] the cumulative existence of two conditions is necessary: that the criminal offence in question is punishable by a sentence of more than ten years’ imprisonment and [that there are] particularly aggravating circumstances. The conclusion of the first-instance court that the first condition exists is justified. However, this court considers that in the present case the second condition does not exist... [T]he reasons given in the contested order, which had previously justified the accused’s detention on this ground, have now, more than seven years after the alleged offences were committed, ceased to exist ... [I]n the absence of other relevant elements, they do not in themselves justify detention on this ground, because these facts are contained in the factual description of the criminal acts in question and represent the [constituent] elements of those criminal acts.\n\nTherefore, the Court of Appeal holds that the reasons given in the contested order do not justify the extension of detention under Article 142 § 2 (5) of the Code of Criminal Procedure ...”\n\nTherefore, the Court of Appeal holds that the reasons given in the contested order do not justify the extension of detention under Article 142 § 2 (5) of the Code of Criminal Procedure ...”\n\n26.  On 31 October 2014, in a decision by which it quashed the High Court’s judgment of 1 April 2014 and remitted the case for a re-trial (see paragraph 19 above), the Court of Appeal ordered the applicant’s detention on the grounds that he might abscond and reoffend.\n\nC.  Proceedings before the Constitutional Court\n\n.  On 29 December 2011 the applicant lodged a constitutional appeal, complaining that his pre-trial detention was unlawful and its length had become excessive. He also complained about the length of the criminal proceedings and alleged that his right to be presumed innocent had been violated.\n\n.  On 29 December 2011 the applicant lodged a constitutional appeal, complaining that his pre-trial detention was unlawful and its length had become excessive. He also complained about the length of the criminal proceedings and alleged that his right to be presumed innocent had been violated.\n\n.  On 29 December 2011 the applicant lodged a constitutional appeal, complaining that his pre-trial detention was unlawful and its length had become excessive. He also complained about the length of the criminal proceedings and alleged that his right to be presumed innocent had been violated.\n\n28.  On 26 September 2012 the Constitutional Court rejected the applicant’s appeal. As regards the lawfulness of his detention, the court held that the domestic courts had referred to the specific facts of the case and the applicant’s personal circumstances, and had not used general or abstract arguments to justify his continued detention. There was a reasonable suspicion, from the documents in the file, that the applicant had committed the criminal offences imputed to him. The court held in particular:\n\n“The conclusion [of the lower domestic courts] that the ground for detention provided for by Article 142 § 1(1) [the risk of absconding] of the Code of Criminal Procedure still exists, is justified in view of the fact that ... the accused was arrested in Austria and extradited to Serbia on 6 July 2007... the above circumstances justify the fear that if released he would abscond ...\n\nThe conclusion [of the lower domestic courts] that the ground for detention provided for by Article 142 § 1(3) [the risk of reoffending] of the Code of Criminal Procedure still exists is justified in view of the fact that the accused had already been convicted for criminal offences involving physical force [robbery] ... and bearing in mind the nature and number of criminal offences imputed to him [in the present case] which were committed in a short period of time ... [the court considers that] these facts represent special circumstances which justify the fear that, if released, he would reoffend.\n\nThe conclusion [of the lower domestic courts] that the ground for detention provided for by Article 142 § 1(5) [the serious nature of the offences with which he had been charged and the severity of the penalty which could be imposed on him if found guilty] of the Code of Criminal Procedure still exists is justified in view of the fact that he had been charged with ... criminal offences punishable by more than ten years’ imprisonment, and in view of the manner in which the offences were committed ... in particular, according to the indictment, the accused had shown singular brutality and determination towards the victim.”\n\nAs regards the length of detention, the Constitutional Court concluded that it had been reasonable in view of the complexity of the case: it concerned three co-accused, several criminal offences and complex legal and factual issues.\n\nAs regards the complaint about the length of the criminal proceedings, the Constitutional Court noted that the case at issue was a complex one; the case file contained more than one thousand pages and extensive photographic documentation. Furthermore, the court proceedings had had to start anew several times because of changes of presiding judge. Many procedural steps had been taken, numerous witnesses had been heard and a few expert testimonies had been taken.\n\nLastly, the  rejected the applicant’s complaint concerning the presumption of innocence as unsubstantiated.\n\nLastly, the  rejected the applicant’s complaint concerning the presumption of innocence as unsubstantiated.\n\n29.  The applicant’s subsequent constitutional appeals, containing the same complaints, were rejected on 26 and 27 September, and 10 October 2012 and 20 November 2013 for the same reasons as before.\n\nII.  RELEVANT DOMESTIC LAW\n\nA.  Constitution of the Republic of Serbia (Ustav Republike Srbije; published in the Official Gazette of the Republic of Serbia – OG RS – no. 98/06)\n\n30.  Article 27 of the Constitution provides, inter alia:\n\n“[e]veryone has the right to personal freedom and security. Deprivation of liberty shall be allowed only on the grounds and in a procedure prescribed by law... Any person deprived of liberty shall have the right to initiate proceedings in which the court shall review the lawfulness of the arrest or detention and order the release if the arrest or detention was against the law.”\n\n31.  Article 31 §§ 2 and 3 provide that “[t]he court shall reduce the duration of detention after the bringing of charges to the shortest possible period, in accordance with the law” and that “the [d]etainee shall be granted pre-trial release as soon as grounds for detention cease to exist”.\n\n32.  Article 32 § 1 provides, inter alia, for the right to a hearing within a reasonable time.\n\nB.  Code of Criminal Procedure 2001 (Zakonik o krivičnom postupku, Official Gazette of the Federal Republic of Yugoslavia nos. 70/01 and 68/02; and OG RS nos. 58/04, 85/05, 115/05, 46/06, 49/07, 122/08, 20/09, 72/09 and 76/10)\n\n33.  Article 16 of the Code of Criminal Procedure 2001 provides that a suspect has the right to be brought promptly before a judge and to be tried without undue delay. The competent criminal court must conduct proceedings without undue delays and prevent any abuse of process by the parties.\n\n.  Article 141 of the Code provides that detention must be ordered for the shortest time necessary and that all the authorities involved in the criminal proceedings must act with particular diligence if a suspect is in detention.\n\n.  The grounds for detention are set out in Article 142 of the Code. Detention will be ordered if there is a reasonable suspicion that the accused has committed the criminal offence in question and if, inter alia, there is a risk that he or she might abscond (Article 142 § 2(1)), obstruct the course of justice (destroy evidence, influence witnesses or obstruct the course of justice in some other way) (Article 142 § 2(2)), reoffend (Article 142 § 2(3)), or if the criminal offence in question is punishable by a sentence of more than ten years’ imprisonment and the manner in which the offence was committed, or other aggravating circumstances, justify the accused’s detention (Article 142 § 2(5)).\n\nC.  Code of Criminal Procedure 2011 (Zakonik o krivičnom postupku, OG RS nos. 72/11, 101/11, 121/12, 32/13, 45/13 and 55/14)\n\n36.  The Code of Criminal Procedure 2011 entered into force on 6 October 2011, but its application was postponed until 1 October 2013. With effect from the latter date, the Code of Criminal Procedure 2001 was repealed.\n\n37.  As regards the grounds for detention relevant to the present case, the new Code contains the same provisions as the old one (see Article 211 of the Code of Criminal Procedure 2011).\n\n38.  Article 216 § 6 provides that pre-trial detention can last until the detainee begins to serve his prison sentence, but that it cannot in any case be longer than a prison sentence imposed by a first-instance judgment.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION\n\n39.  The applicant complained about the length of his pre-trial detention. He relied on Article 5 § 3 of the Convention, which, in so far as relevant, reads as follows:\n\n“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”\n\nA.  Admissibility\n\n40.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n1.  The parties’ submissions\n\n41.  The applicant submitted that the length of his detention pending trial could not be regarded as justified for the purposes of Article 5 § 3 of the Convention. He argued that the reasons given for his detention had been arbitrary and unsupported by the facts. He further argued that the proceedings had not been conducted diligently.\n\n42.  The Government maintained that the applicant’s detention had been proportionate to the legitimate aim of ensuring his presence at trial and thus conducting the criminal proceedings. There had been no doubt that he might abscond, given that he had fled before and had twice been arrested pursuant to an international arrest warrant (in 2003 in the Netherlands and in 2006 in Austria). Furthermore, the applicant had twice attempted to cross the border illegally.\n\n43.  The applicant’s detention was also duly re-examined at reasonable intervals and the courts’ decisions to extend it were reasonable and in accordance with the law, given that there were still relevant and sufficient reasons to restrict his freedom for the protection of the public interest, which prevailed over the presumption of innocence in favour of the applicant.\n\n43.  The applicant’s detention was also duly re-examined at reasonable intervals and the courts’ decisions to extend it were reasonable and in accordance with the law, given that there were still relevant and sufficient reasons to restrict his freedom for the protection of the public interest, which prevailed over the presumption of innocence in favour of the applicant.\n\n44.  Lastly, the Government argued that the domestic courts had been diligent in conducting the proceedings. The case was a complex one and the fact that the applicant was a member of an organised criminal group had further contributed to its complexity.\n\n2.  The Court’s assessment\n\n.  The Court reiterates that under its constant case-law the issue of whether a period of detention is reasonable cannot be assessed in abstracto. Whether it is reasonable for an accused to remain in detention must be assessed in each case. Continued detention can be justified only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty (see, among many other authorities Kudła v. Poland [GC], no. 30210/96, § 110 et seq, ECHR 2000XI, and McKay v. the United Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006-X, with further references).\n\n46.  The presumption is in favour of release. The second limb of Article 5 § 3 does not give judicial authorities a choice between either bringing an accused to trial within a reasonable time or granting him provisional release pending trial. Until his conviction, the accused must be presumed innocent, and the purpose of the provision under consideration is essentially to require him to be released provisionally once his continuing detention ceases to be reasonable (see Margaretić v. Croatia, no. 16115/13, § 88, 5 June 2014, with further references).\n\n47.  It falls in the first place to the national judicial authorities to ensure that in a given case the pre-trial detention of an accused person does not exceed a reasonable time. To this end, they must examine all the evidence for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty, and must set them out in their decisions dismissing the applications for release. It is essentially on the basis of the reasons given in these decisions and the facts cited by the applicant in his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 of the Convention (see Labita v. Italy [GC], no. 26772/95, § 152, ECHR 2000IV).\n\n48.  The arguments for and against release must not be “general and abstract” (see Smirnova v. Russia, nos. 46133/99 and 48183/99, § 63, ECHR 2003-IX). Where the law provides for a presumption in respect of factors relevant to the grounds for continued detention, the existence of the specific facts outweighing the rule of respect for individual liberty must be convincingly demonstrated (see Ilijkov v. Bulgaria, no. 33977/96, § 84 in fine, 26 July 2001).\n\n49.  The persistence of a reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see, amongst many others, Toth v. Austria, 12 December 1991, § 67, Series A no. 224; B. v. Austria, 28 March 1990, § 42, Series A no. 175; Contrada v. Italy, 24 August 1998, § 54, Reports of Judgments and Decisions 1998-V; and I.A. v. France, 23 September 1998, § 102, Reports 1998-VII).\n\n.  The period to be taken into consideration under Article 5 § 3 started with the applicant’s transfer to Serbia on 6 July 2007 (see Nedyalkov v. Bulgaria, no. 44241/98, § 61, 3 November 2005, and Chraidi v. Germany, no. 65655/01, § 33, ECHR 2006XII) and ended on 1 April 2014 with his conviction by the High Court (see paragraph 17 above). From that date until 31 October 2014, when the Court of Appeal quashed the first-instance judgment of the High Court (see paragraph 19 above), he was detained “after conviction by a competent court”, within the meaning of Article 5 § 1 (a) and therefore that period of his detention falls outside the scope of Article 5 § 3 (see Kudła, cited above, §§ 104-105). From 31 October 2014 until the present day, the applicant is again in pre-trial detention for the purposes of Article 5 § 3 of the Convention (see Solmaz v. Turkey, no. 27561/02, § 34, 16 January 2007). The applicant’s remand in custody has thus so far lasted seven years and almost five months.\n\n.  The Court observes that in their orders to remand the applicant in custody the judicial authorities initially relied on the following grounds: (1) the risk of absconding; (2) the risk of obstructing the course of justice by exerting pressure on witnesses and his co-accused; (3) the risk of reoffending; and (4) the gravity of the criminal offences of which he was accused and the sentence that might be imposed on him (see paragraph 20 above).\n\n.  The subsequent decisions extending the detention evolved so as to reflect the developing situation and to verify whether those grounds remained valid at the later stages of the proceedings. Thus, on 4 January 2008 the domestic court held that the second ground for detention, the risk of the applicant influencing the witnesses, had ceased to exist (see paragraph 24 above). Furthermore, on 15 October 2013 the Court of Appeal held that the fourth ground for detention, the gravity of the criminal offences of which the applicant was accused and the sentence that might be imposed on him, had also ceased to exist (see paragraph 25 above).\n\n.  The Court considers that the reasons advanced by the domestic authorities were certainly relevant. However, in the specific circumstances of the case, it does not consider it necessary to examine whether they were also sufficient or whether the domestic authorities should have considered in addition alternative measures to secure the applicant’s presence at trial, as in any event the criminal proceedings in question were not conducted with the expedition required by Article 5 § 3 (see Herczegfalvy v. Austria, 24 September 1992, § 71, Series A no. 244). The domestic courts scheduled in total forty-two hearings, of which nineteen were adjourned, mainly for different procedural reasons that were not imputable to the applicant (see paragraph 16 above). Moreover, the trial had to start anew six times because the presiding judge and/or the composition of the trial chamber changed. The Government did not offer any explanation for those changes.\n\n54.  In view of the material in the case file, the Court is hesitant to accept the Government’s argument that the complexity of the case justified its excessive length (see also the findings of the Constitutional Court in paragraph 28 above). Moreover, the Government submitted that the present case concerned organised crime (see paragraph 44 above), which by definition presents more difficulties for the investigating authorities and, later, for the courts in determining the facts and the degree of responsibility of each member of the group. However, the Court notes that the applicant had not been charged with organising a criminal group or participating in organised crime which is further evident from the fact that the investigation in the present case had not been conducted by the Office of the Special Public Prosecutor for Organised Crime (compare Luković v. Serbia, no. 43808/07, §§ 46 and 55, 26 March 2013). Accordingly, as there were no exceptional circumstances in the present case that could justify such lengthy proceedings (compare and contrast to Chraidi v. Germany, cited above, §§ 43-45, and Luković, cited above, §§ 47 and 55), the Court considers that the applicant’s detention exceeding seven years was extended beyond a reasonable time (see I.A. v. France, cited above, §§ 98 and 112; Khudoyorov v. Russia, no. 6847/02, §§ 175 and 189, ECHR 2005X (extracts); and Korchuganova v. Russia, no. 75039/01, §§ 71 in limine and 77, 8 June 2006).\n\n55.  There has accordingly been a violation of Article 5 § 3 of the Convention.\n\nII.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION\n\n56.  The applicant also complained that the length of the criminal proceedings against him had exceeded the “reasonable time” requirement of Article 6 § 1 of the Convention, the relevant part of which reads as follows:\n\n“In the determination ... of any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”\n\nA.  Admissibility\n\n57.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n1.  The parties’ submissions\n\n58.  The applicant argued that the proceedings, which had not involved complex legal or factual issues, had not been conducted diligently: they had had to start anew six times and nineteen hearings had been adjourned mainly for procedural reasons.\n\n59.  The Government maintained that the competent courts had been diligent in conducting the proceedings. However, the complexity of the case as well as the applicant’s own behaviour, as well as the fact that he belonged to an organised criminal group, had contributed to the length of the proceedings. He had been at large when the investigation had been opened against him and had not been extradited until 6 July 2007 (see paragraph 13 above). Some delays had also been caused by the absence of lawyers, witnesses and experts.\n\n2.  The Court’s assessment\n\n.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Sürmeli v. Germany [GC], no. 75529/01, § 128, ECHR 2006VII). Article 6 is, in criminal matters, designed to ensure that a person charged does not remain too long in a state of uncertainty about his fate (see Nakhmanovich v. Russia, no. 55669/00, § 89, 2 March 2006, and Veliyev v. Russia, no. 24202/05, § 173, 24 June 2010). The Court considers that much was at stake for the applicant in the present case, bearing in mind that he risked imprisonment, that he was detained throughout the trial proceedings and that he is still detained pending re-trial proceedings.\n\n.  The Court observes that the period under consideration in the present case began on 6 July 2007 when the applicant was extradited to Serbia (see Nedyalkov, cited above, § 86, and Berhani v. Albania, no. 847/05, § 65, 27 May 2010). The trial proceedings began on 7 May 2008 and ended on 1 April 2014. They were followed by the appeal proceedings which ended on 31 October 2014 when the Court of Appeal remitted a case for a re-trial. From the information available it would appear that the proceedings are still pending before the trial court. It follows that the criminal proceedings against the applicant have so far lasted for almost eight years for two levels of jurisdiction.\n\n62.  As the Court has already noted in the preceding paragraphs concerning Article 5 § 3, the present case did not involve complex legal or factual issues which would justify such an excessive length, nor did it concern organised crime.\n\n.  As to the applicant’s conduct, the Court reiterates that an applicant cannot be required to co-operate actively with the judicial authorities, nor can he be criticised for having made full use of the remedies available under the domestic law in the defence of his interests (see, among other authorities, Rokhlina v. Russia, no. 54071/00, § 88, 7 April 2005).\n\n.  As to the conduct of the relevant authorities, the Court has already noted that the trial court scheduled in total forty-two hearings, of which nineteen were adjourned, mainly for different procedural reasons that were not imputable to the applicant (see paragraph 16 above). Moreover, the trial had to start anew six times because the presiding judge and/or the composition of the trial chamber changed. The Government did not offer any explanation for those changes.\n\n65.  The applicant remained in custody throughout the proceedings and is still detained. In this connection, the Court recalls that persons kept in detention pending trial are entitled to “special diligence” on the part of the authorities. Consequently, in cases where a person is detained pending the determination of a criminal charge against him, the fact of his detention is itself a factor to be considered in assessing whether the requirement of a decision on the merits within a reasonable time has been met (see, for example, Abdoella v. the Netherlands, 25 November 1992, § 24, Series A no. 248A; Jabłoński v. Poland, no. 33492/96, § 102, 21 December 2000; Mõtsnik v. Estonia, no. 50533/99, § 40, 29 April 2003; and Bąk v. Poland, no. 7870/04, § 81, 16 January 2007).\n\n.  The domestic authorities were required to organise the trial efficiently and ensure that the Convention guarantees were fully respected in the proceedings. However, in the circumstances of the case, the Court is not satisfied that the conduct of the authorities was consistent with the fair balance which has to be struck between the various aspects of this fundamental requirement.\n\n.  Having regard to all the circumstances of the case and the overall length of the proceedings, the Court considers that the “reasonable time” requirement of Article 6 § 1 of the Convention has not been respected. Consequently, there has been a violation of this provision.\n\nIII.  ALLEGED INTERFERENCE WITH THE RIGHT TO INDIVIDUAL PETITION UNDER ARTICLE 34 OF THE CONVENTION\n\n68.  In his observations, the applicant complained, relying on Article 34 of the Convention, that he had received correspondence from the Court with delay and, further, that the envelope itself had already been opened by others.\n\n69.  The Government submitted that there had been no hindrance to the applicant’s right of individual petition, as he had not been pressured, directly or indirectly, by the State in order to be dissuaded from pursuing his application before the Court. The correspondence between the applicant and the Court had never been obstructed by the authorities.\n\n.  Article 34 of the Convention provides as follows:\n\n“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”\n\n71.  The Court reiterates that it is of the utmost importance for the effective operation of the system of individual petition instituted by Article 34 that applicants or potential applicants should be able to communicate freely with the Court without being subjected to any form of pressure from the authorities to withdraw or modify their complaints (see, among other authorities, Akdivar and Others v. Turkey, 16 September 1996, § 105, Reports 1996IV, and Aksoy v. Turkey, 18 December 1996, § 105, Reports 1996-VI).\n\n.  The voluminous correspondence which the applicant sent in the present case confirms that he was able to submit all his complaints to the Court by ordinary mail, and there is no indication that the correspondence between the Court and the applicant was unduly delayed or tampered with. In these circumstances, the Court finds that there is an insufficient factual basis for it to conclude that the authorities of the respondent State have interfered in any way with the applicant’s exercise of his right of individual petition (see Juhas Đurić v. Serbia, no. 48155/06, § 75, 7 June 2011).\n\n.  In view of the foregoing, the Court finds that the respondent Sate has not failed to comply with its obligations under Article 34 of the Convention.\n\nIV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n74.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n75.  In respect of non-pecuniary damage the applicant claimed 10,000 euros (EUR) and EUR 1,000 per month spent in detention.\n\n76.  The Government considered the amounts claimed to be excessive.\n\n77.  The Court considers that the applicant has certainly suffered some non-pecuniary damage - such as distress and frustration resulting from the protracted length of his detention and trial. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant EUR 4,500 in respect of non-pecuniary damage.\n\nB.  Costs and expenses\n\n78.  The applicant also claimed approximately EUR 100,000 for the costs and expenses incurred before the domestic courts and for those incurred before the Court.\n\n79.  The Government considered the amount claimed to be excessive.\n\n80.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum (see, for example, Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000XI). In the present case, regard being had to the documents in its possession and to the above criteria, the Court considers it reasonable to award the sum of EUR 1,500 covering costs under all heads, plus any tax that may be chargeable on that amount to the applicant.\n\nC.  Default interest\n\n81.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\n1.  Declares the application admissible;\n\n2.  Holds that there has been a violation of Article 5 § 3 of the Convention;\n\n3.  Holds that there has been a violation of Article 6 § 1 of the Convention;\n\n4.  Holds that the respondent State has not failed to comply with its obligations under Article 34 of the Convention;\n\n5.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into domestic currency at the rate applicable at the date of settlement:\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n6.  Dismisses the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 21 July 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_951","text":"PROCEDURE\n\n1.  The case originated in an application (no. 33014/05) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the editorial board of the newspaper Pravoye Delo (“the first applicant”) and a Ukrainian national Mr Leonid Isaakovich Shtekel (“the second applicant”) on 22 August 2005.\n\n2.  The applicants were represented before the Court by Ms L. V. Opryshko, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, of the Ministry of Justice.\n\n3.  On 13 October 2009 the President of the Fifth Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 1).\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n4.  The first applicant is the editorial board of Pravoye Delo, a newspaper officially registered in Odessa in May 2000. The second applicant is the editor-in-chief of Pravoye Delo. He lives in .\n\n5.  At the material time Pravoye Delo was a local newspaper published three times a week with a circulation of 3,000 copies. It published reports and material on political and social matters in  and, in particular, the Odessa Region. Due to lack of funds, the newspaper often reprinted articles and other material obtained from various public sources, including the Internet.\n\n6.  On 19 September 2003 Pravoye Delo published an anonymous letter, allegedly written by an employee of the Security Service of Ukraine, which the second applicant’s colleague, Ms I., had downloaded from a news website. The letter contained allegations that senior officials of the Odessa Regional Department of the Security Service had been engaging in unlawful and corrupt activities, and in particular that they had connections with members of organised criminal groups. One of the paragraphs of the letter read as follows:\n\n“... The Deputy Head of [the Odessa Regional Department of the Security Service] [I. T.], a close friend and assistant of the Head of the Department P., established ‘business’ contacts with [the organised criminal group] of [A. A.] ... A member of [the organised criminal group] G. T., an agent of [A. A.], who is in charge of the main areas of activities of the gang [is] a coordinator and sponsor of murders, [he] meets with [I. T.] and resolves financial issues for the top officials of the Department of [the Security Service] in the Odessa Region ...”\n\n7.  The letter was followed by these comments, prepared by Ms I. on behalf of the editorial board:\n\n“When publishing this letter without the knowledge and consent of the editor-inchief, I understand that I may not only face trouble ... but I may also create problems for the newspaper. Because, if this letter is [misinformation], then [the media], in which it appears may be endangered. On the other hand, if this letter is genuine, then its author faces a higher risk. Besides, given that this anonimka [anonymous letter] has already been published on the  website Vlasti.net (to which we refer, in accordance with their requirement), we have the blessing of God [to publish it]. We are proceeding on the understanding that, in accordance with the Act on Democratic Civil Control over the Military Organisation and Law-Enforcement Organs of the State, we are carrying out civil control and, under section 29 of the Act, we would like to receive open information concerning the facts described in this letter from the relevant authorities. Moreover, [it is to be noted] that the Department [of the Security Service] in the Odessa Region did not react to an analogous publication in the Top Secret [newspaper] ... I remind [you] that the [Pravoye Delo] newspaper ... is wide open for letters in reply and comments from all interested agencies.”\n\n8.  In October 2003 G. T., who lived in  at the time and was the President of the Ukraine National Thai Boxing Federation, brought defamation proceedings in the Prymorskiy District Court of Odessa against the applicants. G. T. alleged that the information in the 19 September 2003 issue of Pravoye Delo concerned him, and that it was untrue and had damaged his dignity and reputation. He asked the court to order the applicants to publish a retraction and an apology and to pay him compensation for non-pecuniary damage in the amount of 200,000 Ukrainian hryvnias (UAH).\n\n9.  The applicants first argued before the court that they were not responsible for the accuracy of the information contained in the material that they had published, as they had reproduced material published elsewhere without making any modifications. The publication contained a reference to the source of the material and was followed by comments explaining the editors’ position regarding the material and inviting comments from the persons and bodies concerned. The applicants also submitted that if the court were to award G. T. the amount of compensation he had claimed, the newspaper would become insolvent and would have to close.\n\n10.  Subsequently, at a hearing on 24 April 2004, the second applicant stated that the article was not about the claimant and that its wording did not necessarily establish that it was a particular “G. T.” who was being referred to.\n\n11.  On 7 May 2004 the court ruled against the applicants. It found that the information at issue did concern the claimant, who was a public figure involved in public activities in the Odessa Region and had represented  at sports events abroad in his capacity as President of the Ukraine National Thai Boxing Federation. In that context, the court noted that this had not been contested by the applicants in their initial submissions and that the publication was about the activities of the Security Service in the Odessa Region. The court further held that the content was defamatory and that the applicants had failed to prove that it was true. It found no grounds on which to exempt the applicants from civil liability under section 42 of the Press Act, as the Internet site to which they had referred was not printed media registered pursuant to section 32 of the Press Act.\n\n12.  The court ordered the first applicant to publish a retraction of the following content of the publication:\n\n“... A member of [the organised criminal group], G. T., an agent of [A. A.], who is in charge of the main areas of activities of the gang [is] a coordinator and sponsor of murders, [he] meets with [I. T.] and resolves financial issues for the top officials of the Department [of the Security Service] in the Odessa Region ...”\n\n13.  The court further ordered the second applicant to publish an official apology in the newspaper.\n\n14.  In determining the amount of compensation to be paid to the claimant, the court considered the submissions of the latter and the information concerning the financial situation of the newspaper. It noted that its gross annual income was about UAH 22,000 and found it reasonable to order the applicants jointly to pay G. T. UAH 15,000 for nonpecuniary damage. The applicants were also ordered to pay to the State Budget UAH 750 in court fees.\n\n15.  The applicants appealed. They maintained the submissions they had made before the first-instance court and also contended that the editorial board had not been registered as a legal entity pursuant to the relevant regulations on registration of the media and that the second applicant had not been appointed as editor-in-chief in accordance with the law. Thus, in their view, they could not take part in the proceedings.\n\n16.  The applicants further argued that invoking their civil liability was contrary to section 41 of the Press Act and section 17 of the Act on State Support of Mass Media and Social Protection of Journalists, stating that they had not intended to defame G. T. and that, by publishing the material, they had wished to promote public discussion of the issues raised in that material which were of significant public interest. According to them, it was their duty to disseminate the material and the public had a right to receive it.\n\n17.  The second applicant also submitted that he had not authorised the publication of the material at issue and that the legislation did not provide for an obligation to apologise as a sanction for defamation.\n\n18.  On 14 September 2004 and 24 February 2005, respectively, the Odessa Regional Court of Appeal and the Supreme Court rejected the applicants’ appeals and upheld the judgment of the first-instance court.\n\n19.  On 3 July 2006 the applicants and G. T. concluded a friendly-settlement agreement, pursuant to which the latter waived any claim in respect of the amount of compensation awarded in the judgment of 7 May 2004. The applicants, for their part, undertook to cover all the costs and expenses relating to the court proceedings and to publish in Pravoye Delo promotional and informational materials at G. T.’s request, the volume of which was limited to the amount of compensation under the judgment.\n\n20.  In 2008 the applicants discontinued publishing Pravoye Delo.\n\nII.  RELEVANT DOMESTIC LAW AND PRACTICE\n\nA.  Constitution of  of 28 June 1996\n\n21.  Relevant extracts from the Constitution read as follows:\n\nArticle 32\n\n“... Everyone is guaranteed judicial protection of the right to rectify incorrect information about himself or herself and members of his or her family, and of the right to demand that any type of information be rectified, and also the right to compensation for pecuniary and non-pecuniary damage inflicted by the collection, storage, use and dissemination of such incorrect information.”\n\nArticle 34\n\n“Everyone is guaranteed the right to freedom of thought and speech, and to the free expression of his or her views and beliefs.\n\nEveryone has the right to freely collect, store, use and disseminate information by oral, written or other means of his or her choice.\n\nThe exercise of these rights may be restricted by law in the interests of national security, territorial indivisibility or public order, with the purpose of preventing disturbances or crime, protecting the health of the population, the reputation or rights of other persons, preventing the publication of information received confidentially, or maintaining the authority and impartiality of justice.”\n\nB.  Civil Code of 1963 (repealed with effect from 1 January 2004)\n\n22.  Relevant extracts from the Civil Code read as follows:\n\nArticle 7. Protection of honour, dignity and reputation\n\n“A citizen or an organisation shall be entitled to demand in a court of law that material be retracted if it is not true or is set out untruthfully, degrades their honour and dignity or reputation, or causes damage to their interests, unless the person who disseminated the information proves that it is true ...\n\nA citizen or an organisation concerning whom material has been disseminated that is untrue and damages their interests, honour, dignity or reputation shall be entitled to request compensation for pecuniary and non-pecuniary damage as well as a retraction of such information ...”\n\nC.  Civil Code of 2003 (in force from 1 January 2004)\n\n23.  The provisions of the Civil Code of 2003 pertinent to the case read as follows:\n\nArticle 16\nJudicial protection of civil rights and interests\n\n1.  Everyone has the right to apply to a court of law for the protection of his or her ... rights and interests.\n\n2.  The means of protection of civil rights and interests may include:\n\n1)  recognition of the right;\n\n2)  declaration of nullity of an act;\n\n3)  cessation of actions violating the right;\n\n4)  restoration of the situation which existed prior to the violation;\n\n5)  specific performance of an obligation;\n\n6)  modification of legal relations;\n\n7)  discontinuance of legal relations;\n\n8)  compensation for [pecuniary] damage ...;\n\n9)  compensation for [non-pecuniary] damage;\n\n10)  declaration of unlawfulness of a decision or action or of inactivity of a State body;\n\n...\n\nThe court may give protection to the civil right or interest by other means envisaged by a contract or law.\n\n...”\n\nArticle 277\nRetraction of untrue information\n\n“1.  A physical person whose non-pecuniary rights have been infringed as a result of dissemination of untrue information about him or her and/or members of his or her family shall have the right to reply and [the right to] the retraction of that information.\n\n...\n\n3.  Negative information disseminated about a person shall be considered untrue if the person who disseminated it does not prove the contrary.\n\n4.  Untrue information shall be retracted by the person who disseminated it ...\n\n5.  If the untrue information is contained in a document which has been accepted (issued) by a legal entity, that document shall be recalled.\n\n6.  A physical person whose non-pecuniary rights have been infringed in printed or other mass media shall have the right to reply and also [the right to] the retraction of the untrue information in the same mass media, in the manner envisaged by law ...\n\nUntrue information shall be retracted irrespective of whether or not the person who disseminated it is guilty.\n\n7.  Untrue information shall be retracted in the same manner as it was disseminated.”\n\nD.  Information Act of 2 October 1992\n\nSection 20. Mass media\n\n“Printed mass media are periodical prints (press) – newspapers, magazines, bulletins – and occasional prints with a set circulation.\n\nAudiovisual mass media are radio, television, cinema, audio, video recordings and so on.\n\nThe procedure of establishing ... of particular media shall be determined by the laws concerning such media.”\n\nSection 47. Liability for infringement of the legislation on information\n\n“...\n\nLiability for infringement of the legislation on information shall be borne by persons responsible for the following infringements:\n\n...\n\ndissemination of untrue information that defames the honour and dignity of a person ...”\n\nSection 49. Compensation for pecuniary and non-pecuniary damage\n\n“If physical or legal persons have suffered pecuniary or non-pecuniary damage caused by an offence committed by an entity engaged in informational activities, those responsible [for the offence] shall compensate [for the damage] voluntarily or pursuant to a court decision ...”\n\nE.  Printed Mass Media (Press) Act of 16 November 1992\n\nSection 1. Printed mass media (press) in\n\n“Printed mass media (press) in Ukraine, as referred to in this Act, are [defined as] periodical and continuing publications issued under a permanent name [at least] once a year pursuant to a certificate of State registration ...”\n\nSection 7. Entities engaged in printed mass media activities\n\n“Entities engaged in printed mass media activities shall include [their] founders (or co-founders), editors (or editors-in-chief), editorial boards ...”\n\nSection 21. Editorial board of the printed mass media\n\n“The editorial board ... shall prepare and issue printed mass media under the instructions of its founder (or co-founders).\n\nThe editorial board shall act on the basis of its organisational charter and shall implement the programme of the printed mass media approved by its founder (or cofounders).\n\nThe editorial board ... shall acquire the status of a legal entity from the day of State registration, which shall be carried out in accordance with the legislation of .”\n\nSection 21. Editor (editor-in-chief) of the printed mass media\n\n“The editor (or editor-in-chief) ... shall be the head of the editorial board, authorised by the founder (or co-founders).\n\nThe editor (or editor-in-chief) ... shall manage the editorial board’s activities within his competence, as envisaged by its organisational charter, shall represent the editorial board in its relations with the founder (or co-founders), the publisher, authors, State organs, associations of citizens, and individual citizens, as well as before the courts and arbitration tribunals and shall be responsible for compliance with the [legislative] requirements as to the activities of the printed media, its editorial board ...”\n\nSection 26. State registration of the printed mass media\n\n“... All printed mass media in  shall be subject to State registration, irrespective of the area of its dissemination, circulation and the manner of its creation ...”\n\nSection 32. Publishing data\n\n“Every issue of printed mass media shall contain the following publishing data:\n\n(1) name of publication ...\n\nDistribution of [publications] without publishing data shall be prohibited.”\n\nSection 37. Retraction of information\n\n“Citizens, legal entities and State organs, and their legal representatives shall have the right to demand that the editorial board of the printed mass media publish a retraction of information disseminated about them which is untrue or defames their honour and dignity.\n\nIf the editorial board does not have any evidence that the content published by it is true, it must, if requested by the claimant, publish a retraction of such information in the next issue of the printed mass media in question or publish the retraction on its own initiative ...”\n\nSection 41. Grounds for liability\n\n“Editorial boards, founders, publishers, distributors, State organs, organisations and associations of citizens shall be liable for infringements of the legislation on the printed mass media.\n\nInfringements of Ukrainian legislation on the printed mass media are:\n\n1)  violations envisaged by section 47 of the Information Act ...\n\nFor such an infringement the guilty party shall incur disciplinary, civil, administrative or criminal liability in accordance with the current legislation of .\n\nThe journalist ... editor (or editor-in-chief) or other persons with whose permission the material which violates this Act has been published shall bear the same liability for abuse of the freedom of the printed mass media as the authors of that material.”\n\nSection 42. Exemption from liability\n\n“The editorial board and journalists are not liable for the publication of material that is untrue, defames the honour and dignity of citizens and organisations, infringes the rights and lawful interests of citizens, or constitutes abuse of the freedom of the printed mass media and the rights of journalists if\n\n1)  the information has been received from news agencies or from the founder (cofounders) [of the media source];\n\n2)  the information is contained in a reply given in accordance with the Information Act to a request for access to official documents and to a request for written or oral information;\n\n3)  the information is a verbatim reproduction of official speeches of the officials of State organs, organisations and associations of citizens;\n\n4)  the information is a verbatim reproduction of material published by other printed mass media and contains a reference to [the latter];\n\n5)  the information contains secrets that are specifically protected by law, where the journalist has not obtained this information unlawfully.”\n\nF.  State Support of Mass Media and Social Protection of Journalists Act of 23 September 1997\n\n26.  Relevant extracts from the Act provide:\n\nSection 17. Liability for trespass or other actions against the life and health of a journalist and a journalist’s liability for non-pecuniary damage caused by him\n\n“... In the process of consideration by a court of a dispute concerning non-pecuniary damage between a journalist or mass media, as a defendant party, and a political party, electoral bloc, [or] an office holder (or office holders), as a claimant, the court may award compensation in respect of non-pecuniary damage only if the journalist or officials of the media [acted] intentionally. The court shall take into account the outcome of the use by the claimant of extrajudicial, in particular pre-trial, opportunities for retraction of untrue material, defending his honour and dignity and reputation, and settlement of the entire dispute. Having regard to the circumstances, the court may refuse compensation in respect of non-pecuniary damage.\n\nThe intention of the journalist and/or official of the media means his or their stance with regard to dissemination of information where the journalist and/or official of the media are aware that the information is untrue and have anticipated its socially injurious consequences.\n\nThe journalist and/or the mass media shall not incur liability for dissemination of untrue information if the court establishes that the journalist acted in good faith and checked the information.”\n\nG.  Resolution of the Plenary Supreme Court of Ukraine of 27 February 2009 on judicial practice in cases concerning the protection of the honour and dignity of a physical person, and of the reputation of a physical person and legal entity\n\n27.  The relevant extracts from the Resolution of the Plenary Supreme Court read as follows:\n\n“26. Under Article 19 of the Constitution of Ukraine, the legal order in Ukraine is based on [the principle] according to which no one shall be forced to do what is not envisaged by the legislation. In turn, Article 34, paragraph 1, of the Constitution of Ukraine guarantees everyone the right to freedom of thought and speech, and to the free expression of his or her views and beliefs.\n\nA court has no power to oblige a respondent to apologise to a claimant ... as a forced apology is not envisaged by Articles 16 [and] 277 [of the Civil Code of 2003] as a means of judicial protection of honour, dignity, [and] business reputation [in case of] dissemination of untrue information.”\n\nH.  Judicial practice of the Supreme Court in cases concerning the application of Articles 16 and 277 of the Civil Code of 2003\n\n28.  The Supreme Court confirmed the Plenary’s approach in a defamation case, having quashed the lower courts’ decisions by which a respondent was ordered, inter alia, to apologise as legally unfounded. In particular, the relevant extract of the Supreme Court’s judgment (dated 17 June 2009) reads as follows:\n\n“...\n\nThe court[s] are not entitled to oblige a respondent to apologise to a claimant in one form or another, as Articles 16 [and] 277 [of the Civil Code of 2003] do not provide for a forced apology as a means of judicial protection of honour, dignity, [and] business reputation [in case of] dissemination of untrue information; compulsion of a person to change his/her beliefs is an interference with the freedom of speech and expression guaranteed by the Constitution of Ukraine and Article 10 of the Convention ...”\n\nII.  Relevant COUNCIL OF EUROPE AND international material\n\nA.  Recommendation CM/Rec(2007)16 of the Committee of Ministers to member states on measures to promote the public service value of the Internet\n\n29.  At their 1010th meeting on 7 November 2007 the Ministers’ Deputies considered essential aspects of the use of new information and communication technologies and services, in particular the Internet, in the context of protection and promotion of human rights and fundamental freedoms. They acknowledged the increasingly important role the Internet was playing in providing diverse sources of information to the public and people’s significant reliance on the Internet as a tool for communication.\n\n30.  It was noted however that the Internet could, on the one hand, significantly enhance the exercise of human rights and fundamental freedoms, such as the right to freedom of expression, while, on the other hand, the Internet might adversely affect other rights, freedoms and values, such as the respect for private life and secrecy of correspondence and for the dignity of human beings.\n\n31.  The Ministers’ Deputies adopted recommendations to the Council of Europe’s member states with regard to the governance of the Internet. These included recommendation to elaborate a clear legal framework delineating the boundaries of the roles and responsibilities of all key stakeholders in the field of new information and communication technologies and to encourage the private sector to develop open and transparent self- and co-regulation on the basis of which key actors in this field could be held accountable.\n\nB.  Joint Declaration by the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression, adopted on 21 December 2005\n\n32.  The growing importance of the Internet as a vehicle for facilitating in practice the free flow of information and ideas was also recognised in the Joint Declaration issued by Mr A. Ligabo, Mr M. Haraszti and Mr E. Bertoni. They stressed the need for strict application of international guarantees of freedom of expression to the Internet. In that context, it was stated that no one should be liable for content on the Internet of which they were not the author, unless they had either adopted that content as their own or refused to obey a court order to remove that content.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION\n\n33.  The applicants complained that their right to freedom of expression had been violated in that the courts had allowed G. T.’s claim concerning content published in Pravoye Delo on 19 September 2003. They stated that the interference had neither been in accordance with the law nor necessary in a democratic society. The applicants relied on Article 10 of the Convention, which reads as follows:\n\n“1.  Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.\n\n2.  The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”\n\nA.  Admissibility\n\n34.  The Government submitted that the applicants could not claim to be victims of a violation of Article 10 of the Convention, as the interference with their right to freedom of expression had been based on the decisions of the domestic courts. The applicants did not complain under Article 6 § 1 of the Convention that the impugned court proceedings had been unfair, and there had been no irregularities in those proceedings and the Court had limited jurisdiction regarding the assessment of facts and the application of law by domestic courts. On these grounds, they invited the Court to declare the application incompatible ratione personae with the provisions of the Convention.\n\n35.  The applicants disagreed.\n\n36.  The Court considers that the Government’s objection is closely linked to the substance of the applicants’ complaints under Article 10 of the Convention and that it must therefore be joined to the merits.\n\n37.  The Court further notes that the application is not manifestly illfounded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n1.  Submissions of the parties\n\n38.  The applicants argued that the domestic legislation concerning the liability of the press for defamation lacked clarity and foreseeability and that the domestic courts had disregarded the relevant legislative guarantees against punishment for unverified statements made by journalists. They submitted that the courts had not taken into account the fact that they had not disseminated information about G. T., that the second applicant had not given his permission for the publication of the material, that they had sufficiently distanced themselves from the publication, and that G. T. had not used the opportunity of asking the editorial board for a retraction before bringing defamation proceedings in the courts.\n\n39.  The second applicant also contended that Ukrainian law did not provide for an obligation to apologise as a sanction for defamation.\n\n40.  The applicants further submitted that they had disseminated the material, which had already been published on the Internet, with a view to promoting further discussion of the important political issues raised in the material. They stated that the amount of compensation which they had been required to pay had been too high given the annual income of the newspaper, and had placed a disproportionate burden on them. In this context, they stated that they had had to discontinue publishing Pravoye Delo.\n\n41.  The Government submitted that the interference with the applicants’ right to freedom of expression had been lawful in that it had been based on the clear, accessible and foreseeable provisions of the domestic law, namely, on Article 7 of the Civil Code of 1963, section 47 of the Information Act of 2 October 1992, and sections 1, 32 and 42 of the Printed Mass Media (Press) Act of 16 November 1992, as applied by the national courts in the applicants’ case.\n\n42.  The Government further submitted that the interference had been aimed at protecting the honour, dignity and business reputation of a private person whose rights had been prejudiced by the publication at issue. According to them, this had been a legitimate aim within the meaning of Article 10 § 2 of the Convention, which the applicants did not deny.\n\n43.  The Government argued that the publication had contained serious factual allegations directed against a prominent public figure who had contributed to the development of sports in . The applicants had failed to prove those allegations. The fact that they had reproduced the material obtained from a website had not been sufficient to relieve them of that obligation, as the legal status of information derived from the Internet had not been determined under the domestic law. Therefore, the Government stated that the interference had been necessary in the present case.\n\n44.  They also submitted that the applicants had not actually been required to pay the compensation awarded by the courts to the claimant, as they had settled the matter at the stage of enforcement of the judgment of 7 May 2004. According to the Government, it had not been proved by the applicants that they had discontinued publishing their newspaper because of the interference at issue.\n\n45.  Relying on the Court’s decision on admissibility in the case of Vitrenko and Others v. Ukraine ((dec.), no. 23510/02, 16 December 2008), the Government contended that the court’s order to apologise had not been contrary to the principles embodied in Article 10 of the Convention.\n\n46.  On the above grounds, the Government stated that the impugned interference had not been disproportionate.\n\n2.  The Court’s assessment\n\n(a)  Whether there was an interference with the right to freedom of expression\n\n47.  The Court observes that the publication at issue involved defamatory statements of fact. According to the findings of the civil courts, it was stated that a public figure, the President of the Ukraine National Thai Boxing Federation, was a member of an organised criminal group and “a coordinator and sponsor of murders”. The applicants had failed to show that those statements were true and the courts ordered them to publish a retraction and apology and to compensate the person concerned for the nonpecuniary damage caused by the publication.\n\n48.  The Court considers that the courts’ decisions constituted an interference with the applicants’ right to freedom of expression.\n\n49.  The Court reiterates that its task in exercising its supervisory function under Article 10 of the Convention is to look at the interference complained of in the light of the case as a whole and, in particular, to determine whether the reasons adduced by the national authorities to justify it are relevant and sufficient (see, among many other authorities, Fressoz and Roire v. France [GC], no. 29183/95, § 45, ECHR 1999-I). This inevitably entails a review of the decisions taken by the courts at the domestic level, irrespective of whether any complaints have been raised concerning the courts’ compliance with the procedural guarantees under Article 6 of the Convention. Therefore, the Court dismisses the Government’s objection as to the applicants’ victim status.\n\n50.  The Court will now examine whether the interference was justified under Article 10 § 2 of the Convention.\n\n(b)  Whether the interference was prescribed by law\n\n51.  The Court notes that the first and most important requirement of Article 10 of the Convention is that any interference by a public authority with the exercise of the freedom of expression should be lawful: the first sentence of the second paragraph essentially envisages that any restriction on expression must be “prescribed by law”. In order to comply with this requirement, interference does not merely have to have a basis in domestic law. The law itself must correspond to certain requirements of “quality”. In particular, a norm cannot be regarded as a “law” unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see, for example, Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 41, ECHR 2007XI).\n\n52.  The degree of precision depends to a considerable extent on the content of the instrument at issue, the field it is designed to cover, and the number and status of those to whom it is addressed (see Groppera Radio AG and Others v. Switzerland, 28 March 1990, § 68, Series A no. 173). The notion of foreseeability applies not only to a course of conduct, of which an applicant should be reasonably able to foresee the consequences, but also to “formalities, conditions, restrictions or penalties”, which may be attached to such conduct, if found to be in breach of the national laws (see, mutatis mutandis, Kafkaris v. Cyprus [GC], no. 21906/04, § 140, ECHR 2008...).\n\n53.  Turning to the circumstances of the present case, the Court observes that the applicants’ submissions regarding the question of the lawfulness of the interference essentially concern two specific issues, namely, the alleged lack of clarity and foreseeability of the relevant legislative provisions concerning journalists’ specific safeguards and the alleged absence of legal grounds for an obligation to apologise in cases of defamation.\n\n54.  As regards the latter issue, the Court observes that Ukrainian law provides that, in cases of defamation, injured parties are entitled to demand a retraction of untrue and defamatory statements and compensation for damage. Both measures were applied in the applicants’ case. However, in addition to those measures, the courts ordered the second applicant to publish an official apology in the newspaper. The Court observes that such a measure was not specifically provided for in the domestic law.\n\n55.  The Court has already dealt with a similar situation in a case against . In that case it was prepared to accept that the interpretation by the domestic courts of the notions of retraction or rectification under the relevant legislation as possibly including an apology was not such as to render the impugned interference unlawful within the meaning of the Convention (see Kazakov v. Russia, no. 1758/02, § 24, 18 December 2008).\n\n56.  However, in contrast to the aforementioned case, the present case contains no evidence or, at the least, a persuasive argument that Ukrainian courts were inclined to give such a broad interpretation to the legal provisions concerning the measures applicable in cases of defamation or that that was their general approach in such cases.\n\n57.  The Court further observes that, despite the second applicant’s specific and pertinent complaints in that connection, the domestic courts failed to give any explanation for the obvious departure from the relevant domestic rules (see paragraph 17 above). The Government’s submissions in that regard did not clarify the issue either.\n\n58.  As can be seen from the relevant domestic judicial practice, though subsequent to the events at issue, imposition of an obligation to apologise in defamation cases may run counter to the constitutional guarantee of freedom of expression (see paragraphs 27-28 above).\n\n59.  In these circumstances, the Court finds that the court’s order to the second applicant to apologise was not prescribed by law and that accordingly there has been a violation of Article 10 of the Convention in that regard.\n\n60.  The Court observes that the publication at issue was a verbatim reproduction of material downloaded from a publicly accessible internet newspaper. It contained a reference to the source of the material and comments by the editorial board, in which they formally distanced themselves from the content of the material.\n\n61.  Ukrainian law – specifically the Press Act – exempts journalists from civil liability for verbatim reproduction of material published in the press (see paragraph 25 above). The Court notes that this provision generally conforms to its approach to journalists’ freedom to disseminate statements made by others (see, for instance, Jersild v. , 23 September 1994, § 35, Series A no. 298, and Thoma v. Luxembourg, no. 38432/97, § 62, ECHR 2001III).\n\n62.  However, according to the domestic courts, no such immunity existed for journalists reproducing material from internet sources not registered pursuant to the Press Act. In this connection, the Court observes that there existed no domestic regulations on State registration of internet media and that, according to the Government, the Press Act and other normative acts regulating media relations in  did not contain any provisions on the status of internet-based media or the use of information obtained from the Internet.\n\n63.  It is true that the Internet is an information and communication tool particularly distinct from the printed media, especially as regards the capacity to store and transmit information. The electronic network, serving billions of users worldwide, is not and potentially will never be subject to the same regulations and control. The risk of harm posed by content and communications on the Internet to the exercise and enjoyment of human rights and freedoms, particularly the right to respect for private life, is certainly higher than that posed by the press. Therefore, the policies governing reproduction of material from the printed media and the Internet may differ. The latter undeniably have to be adjusted according to the technology’s specific features in order to secure the protection and promotion of the rights and freedoms concerned.\n\n64.  Nevertheless, having regard to the role the Internet plays in the context of professional media activities (see paragraphs 29-32 above) and its importance for the exercise of the right to freedom of expression generally (see Times Newspapers Ltd v.  (nos. 1 and 2), no. 3002/03 and 23676/03, § 27, 10 March 2009), the Court considers that the absence of a sufficient legal framework at the domestic level allowing journalists to use information obtained from the Internet without fear of incurring sanctions seriously hinders the exercise of the vital function of the press as a “public watchdog” (see, mutatis mutandis, Observer and Guardian v. the United Kingdom, 26 November 1991, § 59, Series A no. 216). In the Court’s view, the complete exclusion of such information from the field of application of the legislative guarantees of journalists’ freedom may itself give rise to an unjustified interference with press freedom under Article 10 of the Convention.\n\n65.  The Court further observes that under Ukrainian law journalists cannot be required to pay compensation in defamation cases if they did not disseminate the untrue information intentionally, acted in good faith and verified the information, or if the injured party failed to use the available possibilities to settle the dispute before going to court (see paragraph 26 above). In the domestic proceedings, the applicants explicitly raised the defence of qualified privilege under the relevant legal provision. In particular, they argued that they had not acted with malicious intent to defame the claimant by publishing the material in question and that the public had an interest in receiving the information. Furthermore, they argued that by reproducing the material previously published on the Internet, their intention had been to promote debate and discussion on political matters of significant public interest. They also argued that the claimant had not taken any steps to settle the dispute with them despite the fact that in the same publication they had invited any person concerned to comment. Their plea was entirely ignored by the courts, however.\n\n66.  The Court therefore finds that, given the lack of adequate safeguards in the domestic law for journalists using information obtained from the Internet, the applicants could not foresee to the appropriate degree the consequences which the impugned publication might entail. This enables the Court to conclude that the requirement of lawfulness contained in the second paragraph of Article 10 of the Convention was not met.\n\n67.  In these circumstances, the Court does not consider it necessary to deal with the parties’ remaining submissions concerning this provision or to examine the proportionality of the interference at issue.\n\n68.  Accordingly, there has been a violation of Article 10 of the Convention as regards this aspect of the case.\n\nII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n69.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Submissions of the first applicant\n\n70.  The first applicant submitted that the appropriate just satisfaction in this case would be a finding of a violation of Article 10 of the Convention and an indication of general measures to be adopted by Ukraine to bring its legislation and judicial practice into compliance with “European standards of freedom of expression” as regards the use of “socially important information, available on the Internet, the credibility of which is open to question.”\n\n71.  The Government did not comment on this aspect of the case.\n\n72.  Having regard to the circumstances of the present case and the conclusions the Court has reached under Article 10 of the Convention (see paragraphs 64-68 above), it does not consider it necessary to examine this case under Article 46 of the Convention with a view to indicating specific measures that might be taken in order to put an end to a violation found in the case (see, mutatis mutandis, Broniowski v. Poland [GC], no. 31443/96, § 194, ECHR 2004-V). The Court also notes that there is no call to award the first applicant any sum for just satisfaction.\n\nB.  Submissions of the second applicant\n\n1.  Damage\n\n73.  The second applicant claimed 7,000 euros (EUR) for non-pecuniary damage.\n\n74.  The Government contested the second applicant’s claim.\n\n75.  The Court considers that the second applicant suffered some distress and anxiety on account of the violations of his right to freedom of expression. Ruling on an equitable basis, as required by Article 41 of the Convention, it awards him EUR 6,000 in this connection.\n\n2.  Costs and expenses\n\n76.  The second applicant made no claim in respect of costs and expenses. Therefore, the Court makes no award under this head.\n\n3.  Default interest\n\n77.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Decides to join to the merits the Government’s objection concerning the applicants’ victim status and rejects it;\n\n2.  Declares the application admissible;\n\n3.  Holds that there has been a violation of Article 10 of the Convention on account of the domestic courts’ order to the second applicant to publish an official apology;\n\n4.  Holds that there has been a violation of Article 10 of the Convention on account of the applicants’ punishment for the impugned publication;\n\n5.  Holds\n\n(a)  that the respondent State is to pay the second applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.\n\n6.  Dismisses the remainder of the second applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 5 May 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_275","text":"PROCEDURE\n\n1.  The case originated in an application (no. 58428/10) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Ms Veronika Viktorovna Matytsina (“the applicant”), on 22 September 2010.\n\n2.  The applicant was represented by Ms Ye. Karpova, a lawyer practising in Khabarovsk. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights.\n\n3.  The applicant alleged, in particular, that her criminal conviction resulted from an unpredictable interpretation of the criminal law and that her trial was unfair.\n\n4.  On 14 December 2011 the application was communicated to the Government.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\nA.  The incident involving Ms S.D. (April – June 2002)\n\n5.  The applicant was born in 1971 and lives in Khabarovsk.\n\n6.  In 1997 the Department of Justice of the Irkutsk Region registered a non-profit non-governmental association, “The Art of Living” (hereinafter “the association”). The goals the association set out in its charter included the “promotion of social adaptation”, the popularisation of a healthy lifestyle, helping people in stressful situations and improving social and family relations. In practical terms the activity of the association consisted of training sessions, lectures, personal consultations and the like. Participation in the “programmes” of the association was offered to anyone interested and was free of charge, although participants were encouraged to make voluntary contributions to support the activities of the association. The association also issued a number of brochures containing information about its goals and basic principles. The brochures explained that the association was inspired by the teachings of SriSri Ravi Shankar, a modern Indian spiritual leader. According to one of the brochures, participation in the programmes of the association would help its participants to fight insomnia and depression, strengthen their cardio-vascular systems, control their emotions and boost their natural defence mechanisms.\n\n7.  The association operated without a licence. On 2 February 2001 the association applied to the Committee on Sport and Recreation of the Administration of the Khabarovsk Region for a licence. On an unspecified date in February the Committee confirmed to the association that it did not require a licence to run its programmes, stating the following:\n\n“... Your type of activity, [namely] yoga seminars with application of the postures (asana) of Hatha Yoga, Bhakti Yoga, and Kriya Yoga (practising kriya pranayama, i.e. rhythmical breathing at different speeds) does not belong to the category of sports activities or health-improving gymnastics and is not listed in the Unified Russian Register of Sports Activities”.\n\n8.  In the spring of 2002 Ms S.D., who was at the time a third-year student at the Institute of Pedagogy in Irkutsk (hereinafter – “the university”), enrolled in the basic programme of the association, “The Healing Breath Workshop”. She enrolled together with her twin sister, Ms N.D. The applicant was one of the “instructors” of the association responsible for that programme. The course included elements of yoga, special breathing techniques, mantra singing, meditation, listening to music, aromatherapy and other similar practices. Participants were recommended to follow a certain diet and do exercises at home. The applicant claimed that she had been doing the exercises regularly herself since 1994.\n\n9.  In April 2002 Ms S.D. and her sister started to attend daily training sessions on the premises of the association. Ms S.D. contributed 700 roubles (about 20 euros) to the association as a gift. Upon completion of the course Ms S.D. was encouraged to enrol in an advanced course called “Eternity”, which was run by a different instructor, Ms M.S.\n\n10.  At a certain point Ms S.D. started experiencing serious psychological problems. Her mother called the association and blamed the instructors for having turned Ms S.D. “into a zombie”. According to the applicant, Ms S.D.’s mother was a fervent Orthodox Christian and did not approve of her daughters’ interest in a group which the mother described as a “sect”.\n\n11.  According to Ms S.D.’s mother, after the training sessions Ms S.D. started having hallucinations and delusions, lost contact with her family, skipped classes at the university, and almost completely stopped eating. On 27 June 2002 Ms S.D.’s mother called the emergency psychiatric services for her daughter; a doctor administered an injection, which did not help. Shortly thereafter Ms S.D. fainted and was hospitalised.\n\n12.  In the following months Ms S.D. was hospitalised several times. The diagnosis initially made was “reactive psychosis”. Later the doctors described her mental condition as a “stress-related schizoid disorder”. The parties disagreed as to whether the disorder of Ms S.D. was serious enough to be characterised as “schizophrenia” according to the classifications of mental illness in use in Russia; subsequent expert opinions were not unanimous on that point.\n\n13.  According to the doctors at the clinic where Ms S.D. was treated, her mental condition was related to her participation in the programmes of the association, which was referred to in the medical record of 2 July 2002 as a “sect”. Later entries in her medical record also mentioned the “religious” character of her delusions. Following the admission of Ms S.D. to the clinic, an internal inquiry was conducted, which concluded that her medical condition was of a “religious and occult nature” and had been caused by her participation in the programmes of the association.\n\n14.  In 2003 the association ceased its activities due to lack of funds.\n\n15.  In the years that followed, the diagnosis of Ms S.D. was\nre-formulated several times; in 2009 the doctors concluded that she was suffering from schizophrenia.\n\nB.  Criminal investigation; expert opinions obtained by the parties\n\n1.  Psychiatric examination of Ms S.D. (25 July 2003, report no. 1170) and opening of criminal proceedings\n\n16.  On 24 July 2003 an investigator from the Khabarovsk Region police force questioned Ms S.D. in connection with the events of April-June 2002. According to her testimony, the association received payment from the participants of the programme; the programme consisted of breathing techniques, listening to audio-recordings of the voice of the guru, and other similar practices which Ms S.D. characterised as brainwashing. Ms S.D. testified that she had almost stopped eating completely during the period she was attending the courses because the teachers had told her that food was poison. She had also dropped out of her course at the university. At some point she had lost track of the events and had returned to her normal self only in the clinic.\n\n17.  On an unspecified date in the first half of 2003 the police investigator ordered an expert examination of the alleged victim, Ms S.D.\n\n18.  On 25 July 2003 Ms S.D. was examined by a group of psychiatrists, including Dr Gul., Dr N., and Dr Ig. Dr Ig. acted as the “rapporteur” for the group of experts. In report no. 1170, the group concluded that Ms S.D. had developed an “acute schizoid psychotic disorder” which was related to her participation in the programmes of the association. The experts concluded that after 5 September 2002 Ms S.D. had regained her mental health and, at the time of examination, was capable of participating in the proceedings and giving accurate testimony to the investigator and before the court.\n\n18.  On 25 July 2003 Ms S.D. was examined by a group of psychiatrists, including Dr Gul., Dr N., and Dr Ig. Dr Ig. acted as the “rapporteur” for the group of experts. In report no. 1170, the group concluded that Ms S.D. had developed an “acute schizoid psychotic disorder” which was related to her participation in the programmes of the association. The experts concluded that after 5 September 2002 Ms S.D. had regained her mental health and, at the time of examination, was capable of participating in the proceedings and giving accurate testimony to the investigator and before the court.\n\n19.  On 30 July 2003 an investigator from the Khabarovsk Region police department opened a criminal investigation under Article 235 of the Criminal Code (“Illegal medical practice”). The investigative authorities suspected that members of the association had been involved in quackery and had dispensed medical services to Ms S.D. (“the alleged victim”) without the necessary licences and training. However, the investigative authorities did not charge anybody with that crime when opening the case.\n\n2.  First expert examination by the Medical Forensic Bureau (19 November 2003, report no. 197)\n\n2.  First expert examination by the Medical Forensic Bureau (19 November 2003, report no. 197)\n\n20.  On 11 August 2003 the investigator ordered an expert examination of the activities of the association. In particular, the investigator sought to establish whether the association had been dispensing medical services to the participants of the programmes, and whether the alleged victim had suffered any damage to her health as a result of participating in those programmes. The examination was entrusted to the Medical Forensic Bureau (MFB) of the regional Public Health Department. An expert team was put together which consisted of Dr Chern. (the president), Dr Makh., Dr Bes., and Dr Ch.\n\n21.  On 17 September 2003 the investigative authorities searched the applicant’s house and seized documents and literature related to the activities of the association.\n\n22.  On 19 November 2003 the MFB delivered the first report. The report was based on an examination of the materials in the criminal case file. The report noted that the techniques used by the association in its programmes were known both in conventional (scientific) and alternative (“folk”) medicine circles. However, it did not answer the question as to whether those techniques were medical. It also concluded that the medical condition of the alleged victim was “most probably” related to her participation in the programmes of the association.\n\n3.  Second expert examination by the Medical Forensic Bureau (9 April 2004, no. 36)\n\n3.  Second expert examination by the Medical Forensic Bureau (9 April 2004, no. 36)\n\n23.  On 10 December 2003 the investigator asked the MFB to carry out an “additional” (dopolnitelnaya) expert examination of the activities of the association. The MFB expert team was composed of Dr Chern. (the president), Dr Makh. and Dr Ch. Again, the experts did not examine Ms S.D. in person and based their conclusions on the written materials contained in the case file.\n\n24.  On 9 April 2004 the MFB delivered a second report as requested by the investigator (no. 36). The MFB again did not give a definite answer to the question of whether the association had been dispensing medical services. It noted that the charter of incorporation and other documents pertaining to the association did not contain any indication as to the medical nature of its programmes. In the opinion of the experts, it was important to distinguish between the “Eternity” programme and the other programmes of the association.\n\n25.  The experts also concluded that in the particular case of the alleged victim the techniques used by the association were at the origin of her mental disorder. The basic programme, referred to by the experts as “The Art of Living”, had weakened the alleged victim physically. Her subsequent involvement in the “Eternity” programme had aggravated her somatic condition with a psychiatric disorder.\n\n4.  Position of the Ministry of Health\n\n26.  In April 2004 the investigator in charge of the case requested the opinion of the Ministry of Health of the Khabarovsk Region concerning the activities of the association. On 22 April 2004 the Acting Minister of Health replied in the following terms:\n\n“The practising of folk medicine ... is subject to the licensing requirement laid down in the Federal Law of 8 August 2001 “On the licensing of certain types of activities”, Governmental Decree no. 499 of 4 July 2002 “On the licensing of medical activities”, and Order of the Federal Ministry of Health no. 238 of 26 July 2002 “On the organisation of the licensing of medical activities”, as well as on the basis of the “Basic Principles of the Legislation of the Russian Federation on Public Health” adopted on 22 July 1991.\n\nOrder of the Ministry of Health no. 142 of 29 April 1998 ... is no longer in force. At present the list of medical services ... is set out in Order no. 238 of 26 July 2002.\n\nBreathing techniques and other methods listed in the list of medical services, as well as hypnotic infusion, belong to the category of ‘medical activities’ and must be licensed under the head ‘psychotherapy’ on the basis of:\n\n(1)  Order of the Ministry of Health no. 438 of 16 September 2003 “On psychotherapeutic treatment”;\n\n(2)  Methodological recommendations ... which are annexed to Order no. 438;\n\n(3)  Psychotherapeutic Encyclopaedia by B. Karvasarskiy (2002).\n\nThe use of trancelike states as a part of Eriksonean psychotherapy is considered as a medical practice. However, that technique is not used in the ‘Art of Living’ programme; [the programme is based on the use of] relaxation on the basis of traditional meditation within the framework of spiritual practices, which do not require a license.\n\nPhysical exercises on the basis of yoga asanas [(postures)] are not medical activities and are not liable to the licensing requirement.\n\nThe term ‘private medical practice’ includes both medical services and services of folk medicine, so those notions are different.”\n\n5.  Expert examination by Dr A. (5 May 2004)\n\n5.  Expert examination by Dr A. (5 May 2004)\n\n27.  On 22 April 2004 the investigator questioned Ms S.D. again. She largely confirmed her earlier testimony. She also explained that as a part of her participation in the “programme” she had had an obligation to practise special breathing techniques every evening for forty days in a row, and that she had not been allowed to eat meat or fish in any form. She described in detail the “Eternity” programme, which was conducted by the applicant’s co-accused, Ms M.S., and described the effects that programme had had on her physical condition.\n\n28.  On 23 April 2004 the investigator ordered a new expert examination of the activities of the association. The examination was entrusted to Dr A., chief psychotherapist of the Khabarovsk Health Department.\n\n29.  The report was prepared on 5 May 2004. A copy of that report was submitted to the Court by the Government but is only partially legible.\n\n30.  The first question put to the expert concerned the licensing requirements for folk medicine. The expert replied that the licensing of folk medicine was regulated by Governmental Decree no. 238 of 26 July 2002.\n\n31.  The investigator further asked whether certain practices (such as “breath gymnastics”, “hypnotic infusion“, “physical exercises on the basis of yoga postures”, and “entrancement”) belonged to the methods of folk medicine and required a medical licence. As to “yoga postures”, the expert concluded that they were not “medical activities” and did not require a licence. Concerning “breath gymnastics” and “hypnotic infusion”, the expert confirmed that these were well-known psychotherapeutic methods, but they had not been used by the association. Elements of those programmes could be used by medical doctors as supplementary methods of psychotherapeutic treatment; however, the “Art of Living” programmes, according to the expert, did not have any medical purpose, were not aimed at curing ailments and, therefore, were not “medical”.\n\n6.  First expert examination by Dr Iv. (23 November 2004)\n\n32.  On 12 August 2004 the investigator ordered a “forensic and legal examination” of the activities of the association. It was entrusted to the Ministry of Public Health of the Khabarovsk Region.\n\n32.  On 12 August 2004 the investigator ordered a “forensic and legal examination” of the activities of the association. It was entrusted to the Ministry of Public Health of the Khabarovsk Region.\n\n33.  On 23 November 2004 Dr Iv., a doctor in psychiatry and the chief psychiatrist of the Health Department of the Jewish Autonomous Region, drew up a report in which he concluded that the activities of the association had been “medical” in nature and had thus required a licence.\n\n7.  Charging of the applicant and expert examination by the State Medical Academy of Krasnoyarsk\n\n7.  Charging of the applicant and expert examination by the State Medical Academy of Krasnoyarsk\n\n34.  On 26 November 2004 the applicant was formally charged. She pleaded not guilty as from the first questioning.\n\n35.  On 16 December 2004 the defence obtained an expert opinion by four doctors from the State Medical Academy of Krasnoyarsk (including one professor of medicine). The expert team examined 118 people who had participated in the “Art of Living” programmes for at least three months. The team concluded that most of the people in the test group had observed various positive effects of the programmes, including easing of their chronic diseases, restoration of psychological balance and increased efficiency at work. The report emphasised that “moderate and consistent practice of yoga within the ‘Art of Living’ programme is not incompatible with chronic diseases or old age and can be recommended for rehabilitation after traumas, surgical operations and diseases”. It is unclear whether that written opinion was added to the case file.\n\n36.  On 27 December 2004 the applicant’s lawyer asked the investigator to carry out an additional forensic examination. From the materials in the case file it is unclear whether that examination was supposed to cover the activities of the association, the state of health of Ms S.D. or another issue. On 28 December 2004 the investigator replied that all the necessary expert examinations had already been carried out, that the applicant’s guilt had been established, and that there was no need to carry out any new examinations.\n\n8.  Second expert examination by Dr Iv. (1 April 2005)\n\n8.  Second expert examination by Dr Iv. (1 April 2005)\n\n37.  On 5 March 2005 the investigator commissioned a new expert examination on the activities of the association, which was again entrusted to Dr Iv. On 12 March 2005 the defence was handed a copy of the investigator’s decision to order an expert examination.\n\n38.  The report was produced on 1 April 2005. It was based on the written materials of the case file. Dr Iv. started by analysing the applicable legislation. Section 57 of the Public Health Act of 1993 provided that the practising of alternative medicine (also referred to in the law as “folk medicine”, “traditional medicine” or “healing”) required a “healer’s diploma”. Section 56 of the Public Health Act required a private practitioner to have a doctor’s or paramedic’s degree, a “specialist certificate” and a licence (for example, for practising “alternative medicine”). Decree no. 142 of the Ministry of Health of 29 April 1998 provided that folk medicine was subject to the licensing requirement.\n\n39.  The Licensing Act of 8 August 2001 (no. 128-FZ) and Government Decree no. 135 of 11 February 2002 included folk medicine in the list of activities subject to the licensing requirement.\n\n40.   Order of the Ministry of Public Health no. 113 of 10 April 2001 contained a glossary of “simple medical services”, which included, amongst other activities, items nos. 13.30.005 (“psychotherapy”) and 13.30.006 (“hypnotherapy”). The expert concluded that such services were covered by the licensing requirement and should be provided by specialists in the relevant fields.\n\n41.  Furthermore, referring to Government Decree no. 499 of 4 April 2002 on the licensing of medical services, the expert indicated that a person providing medical services was required by law to have, in addition to a special degree or training, a certain amount of work experience in their specific field of medicine. Decree of the Ministry of Public Health no. 238 of 26 July 2002 set out a list of what constituted “medical services”, which included a section on folk medicine. The Decree stipulated that a licence was required to practise folk medicine. On 14 November 2003 the First Deputy Minister for Public Health issued a “Methodological Directive on the Licensing of Folk Medicine”, which described certain activities as falling within the ambit of folk medicine; the list included “traditional systems of invigoration”.\n\n42.   The expert also studied specialised medical literature. He concluded that the applicant had used psychotherapeutic methods which were described in the medical literature, such as “trance inducement”, “breath control” and “therapeutic gymnastics”. The latter, according to the Ministry of Public Health’s recommendation no. 2001/13 of 14 March 2001, could include elements of yoga. The expert concluded that the use of such methods placed the applicant’s activity within the scope of “private medical practice”, which needed a licence under the heads of “psychotherapy” and “therapeutic gymnastics”.\n\n43.  The expert referred to the Methodical Directive of the Ministry of Health of 26 February 2002, which characterised yoga as a “traditional method of healing”. The same Directive noted that “traditional methods of healing”, including yoga, were not officially recommended by the Ministry of Health for application in medical practice, and, therefore, were not covered by a licensing regime. From that, the expert inferred that in Russia “official application of traditional methods of healing” was not allowed. The expert further referred to the Decree of the Ministry of Health of 13 June 1996 which warned against the use of “occult practices” and other non-recommended healing techniques.\n\n44.  The expert noted that the charter of incorporation of the association did not mention that it had been created to dispense medical services. However, the brochures issued by the association described the effects of its “programmes” in medical terms, for example: “a complex of detoxicating dynamic exercises”, “improved functioning of all internal organs”, “harmonisation of all levels of the personality”, “controlled meditation and certain other techniques which guarantee deep relaxation, appeasement of emotions, and help to overcome stress”, and so on. The brochures referred to cases of seriously ill individuals suffering from, inter alia, insomnia and depression, having been cured following completion of the association’s programmes. The techniques used in the programmes were described as a “synthesis of old wisdom and modern science”. On 10 May 2003 SriSri Ravi Shankar obtained patent no. 2203645 “on the breathing technique” which specified that this technique could be used for medical purposes.\n\n45.  The expert further studied witness evidence from former participants of the programmes of the association. According to some of the participants, the instructors told them that they had medical diplomas and that the programmes were supposed to have healing effects. The participants were required by the instructors to fill in forms which contained questions about their health. The expert also analysed their description of the techniques used in the programmes, such as relaxation techniques, physical exercises, breathing techniques, meditation and so on.\n\n46.  To describe the activities of the association its brochures used terms such as “psychological adaptation”, “autogenic training” and “relaxation” which could be found in specialised medical literature and were in fact techniques of psychotherapy and psychiatric treatment. The expert compared the techniques used by the instructors of the association with “holotropic therapy”, which is a method used in psychotherapy, and pointed out a number of similarities.\n\n47.  On the strength of that evidence the expert concluded that the activities of the association could be characterised as “folk medicine”, which required a license. The activities of the association, in the opinion of the expert, were medical in nature.\n\n9.  The attempts of the defence to have certain witnesses questioned\n\n9.  The attempts of the defence to have certain witnesses questioned\n\n48.  On an unspecified date in April 2005 the defence asked the investigator to question a number of witnesses in order to decide whether there was a need for a further psychiatric examination of the victim. On 29 April 2005 the investigator replied in the negative, stating that the personality of the victim had already been thoroughly examined and that the investigator had obtained an expert report and questioned one of the members of the expert team, Dr Ig.\n\n10.  Expert opinion of Prof. Z. from the Far East State Medical University (1 July 2007)\n\n10.  Expert opinion of Prof. Z. from the Far East State Medical University (1 July 2007)\n\n49.  On 1 July 2007 Prof. Z. from the Far East State Medical University situated in Khabarovsk delivered an expert opinion at the request of the applicant’s lawyer. Prof. Z. criticised the earlier expert assessments, which had characterised the activities of the association as “medical”. Prof. Z. asserted that elements of the programmes of the association could be found in many traditional practices, such as yoga, qigong and various martial arts. He also cast doubt on the conclusions of the earlier expert reports that the mental condition of Ms S.D. had been caused by her participation in the association’s programmes. He supposed that her interest in the activities and ideas practised within the association could have been caused by her mental condition.\n\n11.  Expert opinion by the Independent Association of Russian Psychiatrists\n\n50.  On an unspecified date the applicant’s lawyer solicited the opinion of the Moscow-based Independent Association of Russian Psychiatrists (IAPR) in respect of the expert opinion of 25 July 2003. The applicant’s lawyer provided the IAPR with copies of certain materials from the criminal case file, in particular, reports nos. 197 and 36 and the witness testimony of Dr Ig.\n\n50.  On an unspecified date the applicant’s lawyer solicited the opinion of the Moscow-based Independent Association of Russian Psychiatrists (IAPR) in respect of the expert opinion of 25 July 2003. The applicant’s lawyer provided the IAPR with copies of certain materials from the criminal case file, in particular, reports nos. 197 and 36 and the witness testimony of Dr Ig.\n\n51.  On 17 January 2006 a group of experts from the IAPR, composed of two psychiatrists, Dr Sp. and Dr Sav., and one psychologist, Dr Vin., delivered a written opinion. Their report criticised the methods used to carry out the expert examination of 25 July 2003 which resulted in report no. 1170 (see paragraphs 16 et seq.), and condemned the report as unreliable and incomplete.\n\nC.  Trial\n\n1.  First round of court proceedings\n\n52.  The applicant’s case was heard by Judge Sh. of the Tsentralniy District Court of Khabarovsk.\n\n53.  At the trial the applicant and her co-defendant, Ms M.S., pleaded not guilty. They acknowledged that neither they nor the other instructors at the association had medical degrees. They also acknowledged that the alleged victim had been their apprentice and that she had had health problems after completing the two programmes. However, they denied having caused any harm to the alleged victim and insisted that her mental disorder was related to a pre-existing condition or other life circumstances.\n\n54.  In particular, they claimed that both the alleged victim and her sister had been born and raised in a very religious family, that they had both had problems fitting in at school, and that they had a difficult relationship with their mother. Several members of the alleged victim’s family had a history of mental disorders, so her own problems could have been explained by a hereditary predisposition. She had started attending the programmes of the association because of her social and psychological problems.\n\n55.  Further, the applicant asserted that the “programmes” of the association could not be described as “medical treatment”. Since its creation the association had been inspected several times by the Department of Justice, which had not detected anything illegal in its activities.\n\n56.  The defence also claimed that the programmes of the association were not “medical” in nature, and thus did not require any special education or licence. Their purpose was to help people to attain social and psychological harmony, discover the true meaning of life, and so on. The instructors did not receive any remuneration of their work and their participation in the programmes was voluntary.\n\n57.  In the first round of the proceedings the court questioned several witnesses. They gave evidence about the mental and physical condition of the alleged victim before, during and after her participation in the programmes of the association. They all associated Ms S.D.’s health problems with her participation in the programmes.\n\n58.  From the materials and explanations produced by the Government it appears that neither Ms S.D. herself (the alleged victim) nor her twin sister, Ms N.D., appeared in court. Thus, at the hearing of 27 March 2007 Judge Sh. stated that according to the medical certificates of 19 January 2006 and 22 March 2007 the doctors did not recommend that Ms S.D take part in the trial as it could cause a relapse. Both medical certificates were issued at the request of Ms S.D. and contained no further information about her state of health or any examination conducted in that connection.\n\n59.  The court heard several other witnesses called at the request of the prosecution, namely, Ms O.L., the president of the association, Ms L.P., a member of the association and a former teacher of Ms S.D. at university, Ms E.B., a member of the association who had attended the programme together with Ms S.D. (the alleged victim), Ms S.Ch. and Ms V.Z. The testimonies of those witnesses were generally consonant with the case of the defence.\n\n59.  The court heard several other witnesses called at the request of the prosecution, namely, Ms O.L., the president of the association, Ms L.P., a member of the association and a former teacher of Ms S.D. at university, Ms E.B., a member of the association who had attended the programme together with Ms S.D. (the alleged victim), Ms S.Ch. and Ms V.Z. The testimonies of those witnesses were generally consonant with the case of the defence.\n\n59.  The court heard several other witnesses called at the request of the prosecution, namely, Ms O.L., the president of the association, Ms L.P., a member of the association and a former teacher of Ms S.D. at university, Ms E.B., a member of the association who had attended the programme together with Ms S.D. (the alleged victim), Ms S.Ch. and Ms V.Z. The testimonies of those witnesses were generally consonant with the case of the defence.\n\n59.  The court heard several other witnesses called at the request of the prosecution, namely, Ms O.L., the president of the association, Ms L.P., a member of the association and a former teacher of Ms S.D. at university, Ms E.B., a member of the association who had attended the programme together with Ms S.D. (the alleged victim), Ms S.Ch. and Ms V.Z. The testimonies of those witnesses were generally consonant with the case of the defence.\n\n60.  The court heard an expert for the prosecution, Dr N., who had participated in the expert teams which had earlier assessed the materials of the case. Dr N. was not categorical in her conclusions and testified that she had not been given information or materials about the alleged victim’s character, social and family life or medical history, and that her conclusion about the link between the programme and the ailments of Ms S.D. had been assumptive.\n\n60.  The court heard an expert for the prosecution, Dr N., who had participated in the expert teams which had earlier assessed the materials of the case. Dr N. was not categorical in her conclusions and testified that she had not been given information or materials about the alleged victim’s character, social and family life or medical history, and that her conclusion about the link between the programme and the ailments of Ms S.D. had been assumptive.\n\n61.  Dr Ig., who had participated in the preparation of report no. 1170, was summoned but failed to appear. The judge tried to secure her attendance for 27 March 2007 through the regional hospital where she worked. However, according to a letter from the hospital, Dr Ig. was on leave until 29 March 2007; after that date her contract with the hospital would be terminated since she planned to move abroad. At the hearing of 27 March 2007 the court, at the request of the prosecution, decided to read out Dr Ig.’s previous testimony. In her testimony Dr Ig. had asserted that the mental condition of Ms S.D. was directly linked to her participation in the programmes of the association.\n\n62.  The court examined written evidence from the case file submitted by the prosecution, in particular, records of the questioning of Ms I.G., a former teacher who had been Ms S.D.’s class tutor at school, other documentary evidence and official correspondence. The court examined a letter of 17 June 2003 from the acting chief of the Public Health Department of Khabarovsk. In that letter Ms S.D.’s problems were associated with the activities of the association, which was characterised as a “sect”. The court examined search records and items seized during the searches, including brochures, books and audio-cassettes released by the association for its members. The court examined Ms S.D.’s medical history, the expert report by the MFB of 19 November 2003, the expert report of 23 November 2004 and the expert report by Dr Iv. of 1 April 2005.\n\n63.  The court also heard other witnesses, who gave circumstantial evidence about the case.\n\n64.  The court questioned a number of witnesses proposed by the defence, namely, Ms D., a former member of the association and an acquaintance of Ms S.D., Ms K., the association’s lawyer, and Dr L., who had been contacted by Ms S.D.’s mother in connection with the mental condition of the former. They all testified that the mental condition of Ms S.D. had been caused by pre-existing factors.\n\n65.  A similar statement was made by Dr A., who had prepared a written expert report on Ms S.D.’s case on 5 May 2004. Dr A. was questioned in the capacity of “specialist”.\n\n66.  The court also examined the written opinion of Prof. Z.\n\n67.  On 23 July 2007 the Tsentralniy District Court of Khabarovsk acquitted the applicant and Ms M.S. In particular, the court concluded that the applicant and Ms M.S. had not realised that their activities might fall within the ambit of medical practice or that they could have been harmful to the health of others. The court also found that the programmes of the association did not amount to medical practice.\n\n68.  The court excluded from evidence the expert reports of 25 July 2003, 19 November 2003, 9 April 2004 and 1 April 2005 as incomplete, self-contradictory and unreliable. The court also detected various irregularities in the way the expert examinations had been ordered and conducted. As to the expert opinion by Dr Iv. (reports of 23 November 2011 and 1 April 2005) the court noted, inter alia, that it had been based on legislation which had entered into force after the events imputed to the applicant and to Ms M.S.\n\n69.  The court also refused to admit the report by Prof. Z. in evidence as it had been obtained in breach of the domestic law, notably because Prof. Z. had not been informed by the investigator or the president of the court about criminal liability for false statement.\n\n70.  The prosecution appealed.\n\n71.  On 20 December 2007 the acquittal was quashed by the Regional Court and the case was referred back to the trial court. The Regional Court disagreed with the assessment of evidence by the trial court, and with its decision to declare some evidence, namely, expert reports, inadmissible. The Regional Court also pointed to various procedural shortcomings in the trial proceedings. The Regional Court noted that Dr A. should not have been questioned, since he had participated in the proceedings earlier in his capacity as an expert. Amongst other things, the Regional Court recommended that the trial court conduct new psychiatric examinations of Ms S.D., the alleged victim.\n\n2.  Second round of proceedings\n\n72.  In the second round of the trial proceedings the case was heard by the District Court in a single-judge formation: first by Judge Z. and subsequently by Judge M.\n\n73.  At the trial both the prosecution and the defence submitted their evidence to the court. The prosecution submitted written expert opinions and witness statements, items of documentary evidence and exhibits obtained at the previous trial or at the investigation stage. The prosecution also submitted medical certificates of 19 January 2006 and 22 March 2007 whereby the doctors recommended that the alleged victim refrain from attending court hearings in order to avoid a relapse.\n\n74.  The alleged victim (Ms S.D.) did not appear in court. As follows from the materials submitted by the Government, her name was on the list of prosecution witnesses to be called. Instead, Ms S.D. sent to the court a written declaration asking the court to discontinue the criminal prosecution of the applicant and her co-accused due to their “reconciliation”. She also informed the court that she did not wish to participate in the proceedings.\n\n75.  The District Court heard Ms Z.D. (the mother of the victim) and several other witnesses. Expert Dr Ig. did not appear; according to the court, the summons had not been handed to her and had returned by post. The defence insisted that Dr Ig. be contacted through her employer.\n\n76.  On 29 July 2008 the judge sent a request to the town psychiatric hospital concerning the state of health of Ms S.D., the victim. The hospital replied that they had lost contact with Ms S.D. in September 2007, and that Ms S.D. had refused to continue to receive out-patient treatment by the doctors of that hospital. The hospital also informed the judge that Ms S.D.’s brother (Mr Ye.D.) and sister (Ms N.D.) had previously been treated in the hospital in connection with certain mental disorders.\n\n76.  On 29 July 2008 the judge sent a request to the town psychiatric hospital concerning the state of health of Ms S.D., the victim. The hospital replied that they had lost contact with Ms S.D. in September 2007, and that Ms S.D. had refused to continue to receive out-patient treatment by the doctors of that hospital. The hospital also informed the judge that Ms S.D.’s brother (Mr Ye.D.) and sister (Ms N.D.) had previously been treated in the hospital in connection with certain mental disorders.\n\n77.  According to the hearing records, the prosecution asked permission to read out the testimony Ms S.D. had given at the investigation stage. The defence did not object to her testimony being read out. According to the applicant, the defence sought to question those witnesses in person. The court decided to read out the records of the questioning of Ms S.D., as well as the statements her mother, brother, and sister had made during the first round of the proceedings and before the investigative authorities.\n\n78.  Witness for the defence Ms E.K. testified in person before the court. The court also heard several other witnesses for the defence, namely, Ms E.D. and Ms E.Iv. They gave testimony consonant with the position of the defence.\n\n79.  The court questioned expert Dr N., who had participated in the expert examination of 25 July 2003 (no. 1170). The court also questioned expert Dr Ch., who had participated in the expert examinations of 19 November 2003 and 9 April 2004 (nos. 197 and 36). They confirmed the conclusions of the expert reports and provided further information on the case.\n\n80.  The defence sought to exclude the expert opinions produced by the prosecution on the ground that Ms M.S. (the co-defendant) had not been aware of the decision of the investigator to conduct the expert examination. However, the court refused to exclude those opinions on the ground that the defence had had the opportunity to challenge the experts and their conclusions after the completion of the reports or to seek additional expert examinations in the course of the court proceedings.\n\n81.  On 1 October 2008 the lawyer representing Ms M.S. (the applicant’s co-defendant) asked the court to conduct an additional expert examination of the state of health of Ms S.D (the victim). It appears that a request in similar terms was lodged by the applicant’s lawyer as well.\n\n81.  On 1 October 2008 the lawyer representing Ms M.S. (the applicant’s co-defendant) asked the court to conduct an additional expert examination of the state of health of Ms S.D (the victim). It appears that a request in similar terms was lodged by the applicant’s lawyer as well.\n\n82.  On 31 October 2008 the prosecutor asked the court to order another expert examination of the materials of the case in order to clarify whether the “programmes” of the association included medical services. The defence asked the judge to entrust the examination to a State institution in Moscow, but the judge refused and entrusted the examination to a local forensic centre in Khabarovsk. However, the court agreed to include an expert proposed by the defence on the team. The materials of the case were forwarded to the competent expert institution for examination.\n\n83.  On 14 April 2009 those materials were returned to the court without examination. The expert institution replied that it was impossible to reply to the questions as they had been formulated by the judge in overly broad terms, and that additional experts were needed to carry out that kind of examination.\n\n84.  In the first half of 2009 Judge Z. withdrew from sitting in the case for reasons which remain unknown. He was replaced by Judge M. The trial was resumed on 3 June 2009. It appears that due to the change of judge the case was heard again from the beginning (see Article 242 of the Code of Criminal Procedure in the “Relevant Domestic Law” part below).\n\n85.   At the hearing of 3 June 2009 the prosecution declared that they would agree to the discontinuation of the case on the ground that the statutory time-limits for prosecuting the defendants had expired. However, the applicant and Ms M.S. insisted on the continuation of the trial, stressing that they wished to prove their innocence.\n\n86.  Having examined the list of witnesses summoned to the hearing, Judge M. noted that Dr Ig. had been summoned but that the court had “received no information about her proper notification”.\n\n87.  The prosecution again asked to read out the testimony of Ms S.D. and Ms N. D. obtained at the pre-trial investigation stage but the defence objected. They asked the judge to request information about the ability of those witnesses to testify in court in person.\n\n87.  The prosecution again asked to read out the testimony of Ms S.D. and Ms N. D. obtained at the pre-trial investigation stage but the defence objected. They asked the judge to request information about the ability of those witnesses to testify in court in person.\n\n87.  The prosecution again asked to read out the testimony of Ms S.D. and Ms N. D. obtained at the pre-trial investigation stage but the defence objected. They asked the judge to request information about the ability of those witnesses to testify in court in person.\n\n88.  On 2 July 2009 Judge M. decided to read out the testimony Ms S.D. had given at the pre-trial investigation stage. On the basis of the materials in the case-file and “information received”, the judge ruled that the state of health of Ms S.D. prevented her from participating in the trial.\n\n89.  The judge also noted that it was impossible to hear expert witness Dr Ig., without, however, explaining why, and ordered the reading out of her testimony obtained by the investigator.\n\n89.  The judge also noted that it was impossible to hear expert witness Dr Ig., without, however, explaining why, and ordered the reading out of her testimony obtained by the investigator.\n\n90.  On 4 July 2009 Judge M. requested the opinion of the regional psychiatric hospital as to whether the state of health of Ms S.D. and Ms N.D. permitted them to take part in the proceedings. On 11 July 2009 the hospital replied that since Ms S.D. and Ms N.D. had not been treated in that hospital, it was impossible to say whether they were fit to attend the trial.\n\n91.  Subsequently the judge read out testimony by several other witnesses who had been questioned at the earlier stages of the proceedings, including Ms Z.D. (the mother of the victim) and Mr Ye. D. (the brother of the victim).\n\n92.  It appears that at the subsequent hearings the judge heard oral evidence from several witnesses, namely, Ms Ye. Iv. and Ms D. However, the Government did not produce copies of the records of the relevant hearings.\n\n93.  On 7 December 2009 Judge M. heard two experts – Dr Ch. (who had participated in drafting expert opinions nos. 197 and 36) and Dr N. (who had participated in the drafting of expert opinion no. 1170). During his questioning Dr Ch. stated, inter alia, that lacunas in the previous expert examinations could have been filled by carrying out a new psychiatric examination of Ms S.D. Dr N. was of the same opinion.\n\n94.  The defence asked the judge to read out the testimony of expert Dr A., who had drafted the report of 5 May 2004 and who had been questioned at the first trial. The judge agreed and Dr A.’s recorded testimony was examined.\n\n95.  On the same day the defence requested the court to order an additional expert examination of the causes of the mental disorder of Ms S.D. and its relation to her participation in the programmes of the association. The defence stated that the expert examinations obtained earlier were inconsistent and did not address certain important issues.\n\n96.  That request was refused: the judge concluded that the previously obtained expert opinions were sufficient to reach a conclusion on the merits of the case. The examination of evidence was closed and the judge ordered the parties to proceed to the final pleadings.\n\n97.  On 25 December 2009 the Central District Court of Khabarovsk found the applicant and Ms M.S. guilty under Article 235 § 1 of the Criminal Code.\n\n98.  The District Court found that between 24 April and 23 June 2002, in the guise of “programmes” and “training courses”, the applicant and Ms M.S. had dispensed to Ms S.D. the following medical services: “psychological adaptation”; “autogenic training”, “dietetic therapy”, “medicinal gymnastics”, and “psychotherapeutic treatment”. All those activities belonged to various fields of medicine (such as psychotherapy, psychiatry and narcology). The nature of the activities of the accused was in itself indicative of the deliberate and conscious nature of their actions. To dispense such services a special education and a licence were required. The defendants had operated without any licence and did not have any medical training. There was a direct causal link between Ms S.D.’s participation in the programme and her health problems in 2003. Thus, the unlawful and careless behaviour of the applicant and Ms M.S. had caused Ms S.D. moderately serious health damage.\n\n99.  In support of its conclusions the court referred to the following evidence: the testimony of Ms S.D. given on 24 March 2003 and 22 April 2004, the testimony of Ms N.D., the sister of the alleged victim, given during the pre-trial investigation on 9 September 2003, and the testimonies of Ms Z.D. (the mother of the alleged victim), and Mr E. D. (the brother) given at the trial.\n\n100.  The court further referred to expert opinions, namely, the expert reports of 25 July 2003 (no. 1170), the reports of 19 November 2003 (no. 197) and 9 April 2004 (no. 36), the expert report by Dr Iv. of 1 April 2005, and the record of expert Dr Ig.’s questioning by the investigator. The court also referred to the oral testimony of experts Dr N. and Dr Ch. given at the trial.\n\n101.  The court also referred to other evidence, namely, the records of the testimonies of Ms E. K., Ms O.L., Ms E.B., Ms I.G. and others, given either to the investigator during the investigation stage of the proceedings or at the first trial. The court also relied on documentary evidence, including the medical history of Ms S.D., the charter of incorporation of the association and brochures and leaflets published by it.\n\n102.  The court dismissed as inconclusive witness statements by Ms K. (defence witness) and Ms D. (defence witness), and did not analyse the testimony of Dr L. The court also discarded the testimonies of those witnesses who had themselves participated in the programmes of the association on the ground that their opinion about the nature and effects of those programmes was “subjective”.\n\n103.  Expert opinions proposed by the defence were declared inadmissible in evidence. In particular, the District Court held that the expert opinions of Prof. Z. and the IAPR were inadmissible on the ground that they had been obtained in breach of Articles 58, 251 and 270 of the CCrP. The court explained that under the law “a party cannot, on its own initiative and outside of the court hearing, solicit and obtain the opinion of a specialist” (page 25-26 of the judgment).\n\n104.  The written testimony of Dr A. was excluded on the ground that Dr A. had earlier produced an expert report on the case. Consequently, under the Article 72 § 2 of the CCrP he was precluded from being questioned in his capacity as a “specialist”.\n\n105.  As to the references in the report of Dr Iv. of 1 April 2005 to the legal acts adopted after the events imputed to the applicant, the court noted that these references did not contradict the conclusions of Dr Iv. but only strengthened them, and that Dr Iv. had also referred to the legal acts in force at the time of the events at issue (page 27 of the judgment).\n\n106.  In the concluding paragraphs of the judgment the court noted as follows:\n\n“The court considers that the evidence [submitted by the parties] is admissible, relevant and reliable to the extent that it does not contradict the factual circumstances of the case, as established by the court”.\n\nThe District Court sentenced the applicant to two years of imprisonment; however, she was relieved from serving the sentence owing to the expiry of the relevant statutory time-limit. Mr M.S. was sentenced to one year and six months of imprisonment.\n\n107.  The defence appealed. They complained, in particular, that judge M. had based the judgment on the testimony of witnesses he had not heard in person. They also complained about the refusal of the trial court to admit expert opinions submitted by the defence in evidence and obtain a new expert examination of the condition of Ms S.D. On 25 March 2010 the Khabarovsk Regional Court upheld the conviction. The court of appeal did not find any breach of the domestic substantive or procedural law in the proceedings before the trial court. The Regional Court ruled, inter alia, that the defence had conceded to the reading out of the previous testimony of the alleged victim and her relatives. The Regional Court noted that the record of Ms S.D.’s questioning by the investigator was a reliable source of information because when she had given that evidence she had not been suffering from a mental condition.\n\nII.  RELEVANT DOMESTIC LAW\n\nA.  Liability for quackery\n\n108.  Article 235 of the Criminal Code, as it stood at the relevant time, established liability for unlawful private medical or pharmaceutical practice. It was formulated as follows:\n\n109.  Article 15 of the Public Health Act of 1993 (Federal Law No. 5487-I), as in force at the material time, established licencing requirement for medical activities, procedure and basic criteria for obtaining such a licence. The Government’s decree of 21 May 2001 (in force until 4 July 2002) established further rules and guidance on the procedure for obtaining a medical licence. In addition, it contained a list of “medical activities” which included inter alia remedial gymnastics, psychotherapy, and nutritional science. Article 57 of the 1993 Public Health Act defined “folk medicine” as “methods of health improvement, prophylactic, diagnostic, and healing methods based on the experience of many generations of people and enrooted in the folk traditions and not registered in accordance with the law”. That Article provided that to start practicing as a “healer” one needed a special diploma delivered by the official public health bodies at the regional level. According to the last paragraph of Article 57, “unlawful practicing of folk medicine” was criminally punishable.\n\nB.  Expert evidence and documentary evidence\n\n110.  Article 74 of the CCrP contains a comprehensive list of sources of information which can be used as evidence in a criminal trial. That list mentions, inter alia, expert reports and expert testimony, as well as “other documents” (Article 74 §§ 2 and 6). Article 84 § 1 of the CCrP provides that “other documents” can be admitted as evidence if they contain information which may be important for establishing the facts which need to be established within the criminal proceedings.\n\n110.  Article 74 of the CCrP contains a comprehensive list of sources of information which can be used as evidence in a criminal trial. That list mentions, inter alia, expert reports and expert testimony, as well as “other documents” (Article 74 §§ 2 and 6). Article 84 § 1 of the CCrP provides that “other documents” can be admitted as evidence if they contain information which may be important for establishing the facts which need to be established within the criminal proceedings.\n\n111.  The CCrP (Articles 57 and 58) distinguishes between two types of expert witnesses: “experts” proprio sensu [experty] and “specialists” [spetsialisty]. Their role in the proceedings is sometimes similar, albeit not identical. Whereas the “experts” are often engaged in carrying out complex forensic examinations prior to the trial (for example, dactyloscopic examinations or post-mortem examinations), a “specialist” is summoned to help the prosecution or court in handling technical equipment, examining an item of material evidence, understanding the results of “expert examinations”, assessing the methods employed by the “experts”, their qualifications, and so on. Both can submit written reports to the court and/or testify in person (Article 80 of the CCrP). Under Article 57 of the CCrP (with further references) the right to order an expert examination belongs to the investigator or to the trial court. The court may order an expert examination on its own initiative or at the request of the parties.\n\n112.  Article 58 § 1 of the CCrP defines the functions of a “specialist” (in so far as relevant to the present case) as follows:\n\n“A specialist is a person possessing special knowledge, who is brought in to take part in the procedural actions ..., to assist in locating, securing and seizing items of evidence ..., in the use of technical equipment ..., to put questions to the expert and also to explain to the parties and to the court matters which come within his professional competence”.\n\n113.  Article 58 § 2 of the CCrP stipulates that the summoning of a specialist and his participation in the trial proceedings is governed by Articles 168 and 270 of the Code (see below).\n\n114.  Article 58 § 4 of the CCrP states that a specialist summoned by the investigator, prosecutor or the court cannot refuse to appear before them.\n\n115.  Article 168 of the CCrP deals with the participation of a specialist in investigative actions at the pre-trial investigation stage at the request of the investigator. It stipulates, with reference to Article 164 § 5, that the investigator must notify the specialist about his rights and responsibilities, verify his professional qualifications and check his affiliation with the parties.\n\n116.  According to Article 251 of the CCrP a specialist summoned to the court must take part in the trial in accordance with Articles 58 and 270 of the CCrP.\n\n117.  Article 270 of the CCrP provides that the presiding judge at the trial should inform the specialist of his rights and responsibilities before questioning.\n\n118.  Under Article 75 of the CCrP, evidence obtained in breach of the provisions of the Code is inadmissible. By virtue of Article 50 § 2 of the Russian Constitution, in the administration of justice evidence obtained in violation of the federal law cannot be used.\n\n119.  Article 286 of the CCrP provides that the court may add documents produced by the parties to the case file.\n\nC.  Expert reports obtained by the investigation\n\nC.  Expert reports obtained by the investigation\n\n120.  Chapter 27 of the CCrP regulates obtaining expert opinions at the investigation stage (i.e. before the trial). Article 195 § 2 provides that the “judicial expert examination” (that is, for use in court) must be carried out by “State forensic experts or other experts who have specialist knowledge”. Article 193 § 3 stipulates that the investigator must notify the criminal defendant about the decision to order an expert examination. Pursuant to Article 198, the defendant has the right to challenge the expert, ask to entrust the examination to another expert institution, ask the investigator to put additional questions to the expert, and, with the approval of the investigator, participate in the examination and provide comments to the expert involved.\n\nD.  Collection of evidence by the defence\n\nD.  Collection of evidence by the defence\n\n121.  The old CCrP (in force before 2002) provided that the duty to obtain evidence fell to the investigative bodies. The new CCrP (applicable to the case) recognises the defence’s right to collect evidence, albeit with important limitations. Thus, Article 53 § 2 of the Code provides that the defence lawyer has a right “to collect and submit evidence necessary for providing legal assistance, in accordance with Article 86 § 3 of the Code”. Amongst the other powers of the defence lawyer Article 53 § 3 mentions “engaging [the services of] a specialist in accordance with Article 58 of the Code”. However, it does not allow the defence to commission and produce “expert reports”.\n\n122.  Article 86 of the new CCrP formulates the rules on collecting evidence as follows:\n\n“1.  In the course of the criminal proceedings evidence shall be collected by ... the investigator, the prosecutor and the court by means of investigative measures and other procedural actions provided by the present Code.\n\n2.  [An accused] ... and his representatives may collect and produce written documents ... to be added to the case file as evidence.\n\n3.  The defence lawyer may collect evidence by:\n\n(1)  obtaining objects, documents and other information;\n\n(2)  questioning individuals with their consent; or\n\n(3)  requesting ... documents from the authorities ... and other organisations which are obliged to produce such documents or copies of them.”\n\n(3)  requesting ... documents from the authorities ... and other organisations which are obliged to produce such documents or copies of them.”\n\n123.  The defence lawyer’s right to obtain expert evidence is defined in section 6 § 3 (4) of Federal Law no. 63-FZ of 2002 “on advocacy”:\n\n“... 3.  The advocate can ... (4) engage specialists on a freelance basis in order to obtain explanations on the issues relevant to [his task of providing] legal assistance”.\n\n“... 3.  The advocate can ... (4) engage specialists on a freelance basis in order to obtain explanations on the issues relevant to [his task of providing] legal assistance”.\n\n124.  Article 271 § 4 of the CCrP stipulates that the court cannot refuse to hear a witness or a “specialist” who has come to court at the request of one of the parties.\n\nE.  Position of the Supreme Court on expert evidence\n\n125.  On 21 December 2010 the Plenary Supreme Court of the Russian Federation issued Decree no. 28 “On court expert examinations in criminal proceedings”. That Decree replaced a very old Decree issued by the Supreme Court of the USSR in 1971, which was based on the old Soviet Code of Criminal Proceedings.\n\n126.  According to point 1 of the Decree, where the judge needs special scientific, technical, artistic, etc. knowledge, he must seek an “expert examination” of the matter (sudebnaya ekspertisa). Where an expert examination is not needed, the court may seek the opinion of a “specialist” (spetsialsit). The court may seek the assistance of non-governmental expert institutions or individual experts but the Decree establishes additional conditions for such expert examinations. Under point 6 of the Decree, certificates, acts, written conclusions and other similar documents issued by expert institutions at the request of the investigative authority and the courts are not regarded as “expert examinations”.\n\n127.  Under point 19 of the Decree, the court, of its own motion or at the request of a party, may employ a “specialist” to assist the court in interpreting a written expert report or questioning the expert. The “specialist” may deliver his opinion orally or in writing. Under point 20 the opinions of “specialists” and “experts” can be used as evidence; however, the Supreme Court emphasised that specialists “cannot conduct a direct examination of physical evidence” and “cannot formulate conclusions but only express an opinion on the questions put to him by the parties”. The Supreme Court concludes that where there is a need for “examination” of a matter, the court must order an examination by “experts”.\n\n128.  Under point 22 of the Decree, the courts must hear a “specialist” who appears in court on the initiative of one of the parties. However, the court may refuse to hear that person if his professional competencies are insufficient to answer the questions which the party seeks to address to him.\n\nF.  Reading out of witness testimony in court\n\nF.  Reading out of witness testimony in court\n\n129.  Article 281 of the CCrP (“Reading out of the testimony of the victim and of the witness) reads, in so far as relevant, as follows:\n\n“2.  If the victim or the witness did not appear in court, the court shall be entitled at the request of a party or on its own initiative to decide to read out the testimony previously given by them, in the event of:\n\n1)  the death of the victim or witness,\n\n2)  their very poor health, impeding their appearance in court,\n\n3)  the refusal of a victim or witness who is a foreign citizen to appear in court\n\nwhen summoned,\n\n4)  a natural disaster and other extraordinary circumstances impeding their appearance in court.\n\n3.  At the request of a party the court may decide to read out the testimony of a witness ... where there are serious discrepancies between his [oral] testimony given to the court and his earlier testimony.”\n\nG.  Replacement of a judge\n\n130.  Article 242 of the CCrP (“Immutability of court composition”) reads as follows:\n\n“1.  The case must be examined by one and the same judge or by a court bench in one and the same composition.\n\n2.  If one of the judges is no longer able to take part in the hearing he or she must be replaced by another judge, and the court hearing must restart from the beginning.”\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION\n\n131.  The applicant complained that the trial in her case was not fair and that the defence was in a disadvantageous position vis-à-vis the prosecution in respect of the taking and examination of evidence. The applicant relied on Article 6 §§ 1 and 3 (d) of the Convention, which reads as follows:\n\n“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ....\n\n...\n\n3.  Everyone charged with a criminal offence has the following minimum rights:\n\n(d)  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him ...”\n\nA.  The parties’ submissions\n\n1.  The Government\n\n132.  The Government contested that argument.\n\n133.  The Government acknowledged that the alleged victim, Ms S.D., had not been heard in person by the trial court or by the court of appeal. When she was questioned by the investigator, the defence was not present. However, the defence did not object to the prosecution reading out the record of Ms S.D.’s previous testimony during the trial. Furthermore, the court decided not to call her as a witness because the doctors had concluded that her participation in the trial might have had a traumatising effect on her. Ms S.D. had been informed about the time and the venue of the hearing before the court of appeal; however, she failed to appear for reasons unknown. The Government maintained that the defence had not sought the questioning of Ms S.D. in person at the hearing before the court of appeal.\n\n134.  The mother and brother of the victim (Ms Z.D. and Mr E.D.) testified in person before the trial court in the first round of court proceedings. Therefore, the defence had an opportunity to question them. When the court, in the second round of the trial, decided to read out the record of questionings of those witnesses, the defence did not object.\n\n135.  As to the expert examinations ordered by the investigator, the Government observed that they had been conducted on 25 July 2003 (report no. 1170), from 1 to 19 November 2003 (no. 197), from 10 January to 9 April 2004 (no. 36), and on 1 April 2005. The applicant was charged on 26 November 2004; as a result, she took active part only in the last examination, that of 1 April 2005.\n\n136.  However, in the course of the trial the defence had the opportunity to question two experts, Mr Ch., who had participated in drafting reports nos. 197 and 36, and Ms N., who co-authored report no. 1170 (see paragraphs 18, 20 and 23 above).\n\n137.  The Government indicated that under the Russian law the defence and the prosecution are equal before the court. However, that did not mean that the defence had an unrestricted choice of means to present their case: thus, the CCrP defined the forms in which the defence could seek the presentation of expert evidence at the trial. Articles 197-207 and 283 of the CCrP and Articles 19-25 of the Federal Law “On State expert examinations” provided that an expert examination in a State expert institution had to be carried out at the request of the investigative bodies, the prosecution or the court. The defence had no power to seek an expert opinion from those institutions.\n\n138.  The law provided certain procedural guarantees which secured the participation of the defence in expert examinations: thus, the defence could ask the investigator to order an expert examination. Once the examination was ordered, the defence could obtain a copy of the investigator’s decision, ask for the expert institution or individual experts in charge of the examination to be changed, ask for additional questions to be put to the experts, and so on. The defence could also challenge the actions or omissions of the investigator before the court. Where the original expert report was unclear or controversial, the defence could seek an additional examination or full re-examination of the issue by another expert body. The Government argued that the defence had enjoyed all those rights in the proceedings.\n\n139.  More generally, the Government argued that the defence were able to present their evidence at the trial. Thus, the court heard two witnesses for the defence: Ms K. and Ms D. The domestic court (at the first trial) relied on evidence given by those witnesses in its judgment.\n\n140.  As to the written opinions of Prof. Z. and the IAPR, which criticised the conclusions of the report of 25 July 2003 (no. 1170), the Government indicated that they were not admissible in evidence pursuant to Article 75 § 2 point 3 of the CCrP. Those “specialists” were invited to give their opinion in breach of the procedure provided for by Articles 58, 251 and 270 of the CCrP.\n\n141.  On 7 December 2009 the court refused to conduct an additional expert examination, referring to Articles 283 and 207 of the CCrP. At the hearing before the court of appeal the defence did not try to adduce any new material or reports by “specialists”.\n\n142.  The Government concluded that the applicant’s trial was “fair” within the meaning of Article 6 of the Convention.\n\n2.  The applicant\n\n143.   The applicant confirmed that the victim, Ms S.D., had not testified in person before the court at the trial or in the appeal proceedings. The defence had been unable to question her before the court or at the investigation stage of the proceedings.\n\n144.  There was no evidence that any serious illness prevented Ms S.D. from appearing in court throughout the duration of the proceedings. Under Article 196 of the CCrP the judge had been obliged to order a special psychiatric examination of the state of health of Ms S.D. in order to decide whether she was fit to testify orally, but this had not been done. It was unclear why Ms S.D. and her relatives failed to appear before the court of appeal.\n\n145.  Although the defence had agreed to the reading out of the written testimony of certain witnesses, that could not be interpreted as a waiver of the right to examine those witnesses in person. The defence had been able to question Ms Z.D. and Mr Ye.D. in the previous round of court proceedings, but this had been insufficient, since the judge who convicted the applicant did not assess their testimony directly. Furthermore, in the first round of court proceedings the defence had not been aware that the brother and the sister of the applicant suffered from certain mental disorders.\n\n146.  The defence had not been able to participate in the preparation of the expert opinions at the investigation stage of the proceedings. All the defence’s requests for additional expert examinations to be carried out had been dismissed by the investigator.\n\n147.  The applicant also gave their own interpretation of the provisions of the CCrP which regulated the collection of evidence by the parties and the status of such evidence. The applicant stressed that the Government had conceded that while the defence had no power to obtain an expert opinion, the investigator and the court had such powers. When the defence had tried to introduce an expert opinion by Prof. Z., the court had refused to admit it in evidence. Furthermore, on 7 December 2009 the court had refused to commission an additional expert opinion. In its judgment the court had failed to consider the expert opinion of Dr A.\n\n148.  The applicant further argued that the worsening mental health of Ms S.D. in 2002 was related to pre-existing circumstances and not to her participation in the programmes of the association. The applicant further criticised the court for not distinguishing between her acts and the acts of her co-defendant, Ms M.S., who was the sole person responsible for the programme “Eternity”, which immediately preceded the deterioration of Ms S.D.’s mental condition.\n\n149.  The applicant concluded that the proceedings in her case had been unfair and insisted on the reopening of the case.\n\nB.  Admissibility\n\n150.  The Court notes that the Government did not put forward any formal objections to the admissibility of this complaint. The Court further observes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nC.  Merits\n\n1.  Absence of Ms S.D. from the trial\n\n151.  The Court reiterates that it is a fundamental aspect of the right to a fair trial that criminal proceedings should be adversarial and that there should be equality of arms between the prosecution and the defence, which means that both the prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party (see Dowsett v. the United Kingdom, no. 39482/98, § 41, ECHR 2003VII, and Belziuk v. Poland, 25 March 1998, § 37, Reports of Judgments and Decisions 1998-II).\n\n152.  Article 6 § 3 (d) enshrines the principle that, before an accused can be convicted, all evidence against him must normally be produced in his presence at a public hearing with a view to adversarial argument. Exceptions to this principle are possible but must not infringe the rights of the defence, which, as a rule, require that the accused should be given an adequate and proper opportunity to challenge and question a witness against him, either when that witness makes his statement or at a later stage of the proceedings (see Lucà v. Italy, no. 33354/96, § 39, ECHR 2001II; and Solakov v. “the former Yugoslav Republic of Macedonia”, no. 47023/99, § 57, ECHR 2001X; Al-Khawaja and Tahery, [GC], nos. 26766/05 and 22228/06, § 118, ECHR 2011). In the context of absent witnesses, the Grand Chamber of the Court set out two considerations in determining whether the admission of statements was compatible with the right to a fair trial. First, it had to be established that there was a good reason for the non-attendance of the witness. Second, even where there was a good reason, where a conviction was based solely or to a decisive extent on statements made by a person whom the accused had had no opportunity to examine, the rights of the defence might be restricted to an extent incompatible with the guarantees of Article 6. Accordingly, when the evidence of an absent witness was the sole or decisive basis for a conviction, sufficient counterbalancing factors were required, including the existence of strong procedural safeguards, which permitted a fair and proper assessment of the reliability of that evidence to take place (see Al-Khawaja and Tahery, cited above, §§ 119 and 147).\n\n153.  The Court further reiterates that the right of the defence to examine witnesses and test other evidence introduced by the prosecution should be read in the light of the more general guarantee of adversarial proceedings enshrined in the concept of a fair trial under Article 6 § 1 (see, among many other authorities, F.C.B. v. Italy, 28 August 1991, § 29, Series A no. 208 B; and Poitrimol v. France, judgment of 23 November 1993, § 29, Series A no. 277 A; Al-Khawaja and Tahery, cited above, § 118). Even where the defence was able to cross-examine a witness or an expert at the stage of the police investigation, it cannot replace cross-examination of that witness or expert at the trial before the judges. It is an important element of fair criminal proceedings that the accused is confronted with the witness “in the presence of the judge who ultimately decides the case” in order for that judge to hear the witness directly, to observe his demeanour and to form an opinion about his credibility (see P.K. v. Finland (dec.), no. 37442/97, 9 July 2002; see also, mutatis mutandis, Milan v. Italy (dec.), no. 32219/02, 4 December 2003 and Pitkänen v. Finland, no. 30508/96, §§ 62-65, 9 March 2004; see also Pichugin v. Russia, no. 38623/03, § 199, 23 October 2012, and, mutatis mutandis, Valeriy Lopata v. Russia, no. 19936/04, § 128, 30 October 2012).\n\n154.  It is not disputed by the parties that Ms S.D. did not testify in court, and that she was not examined by the defence. Instead, the District Court used her testimony obtained in the course of the police investigation.\n\n155.  The Government claimed that the applicant’s agreement to the use of the record of Ms S.D.’s testimony in the proceedings before Judge M. (see paragraph 77 above) was tantamount to a waiver of her right to obtain Ms S.D.’s examination in court.\n\n156.  The Court reiterates that Article 6 does not rule out a tacit waiver of one of the guarantees of a fair trial (see Talat Tunç v. Turkey, no. 32432/96, § 59, 27 March 2007). However, such a waiver must be, inter alia, established “unequivocally” (see Sejdovic v. Italy [GC], no. 56581/00, § 86, ECHR 2006-II).\n\n157.  A witness’s testimony may be introduced at the trial in one of two forms: as a recorded speech (written, audio- or video-recorded) or directly, by means of the oral questioning of that witness by the parties before the court. As follows from the text of Article 6 § 3 (d), the Convention attaches particular importance to the direct adversarial examination of a witness before the judges. However, it does not exclude that the parties may also use records of that witness’s earlier statements and testimony in evidence, for example, to uncover inconsistencies in his oral evidence or cast doubt on his trustworthiness (see Saïdi v. France, 20 September 1993, § 43, Series A no. 261‑C). From this point of view, the use of statements previously made by a witness is not inconsistent with Article 6 § 3 (d), at least not by itself.\n\n158.  Therefore, it is conceivable that a written record of testimony by a witness could be presented at the trial along with his oral examination. The CCrP stipulates that the testimony of a witness may be read out at the trial where that witness has failed to appear in person, but it does not rule out the questioning of that witness in person (see Article 281 § 3 of the CCrP, cited in paragraph 129 above). A witness may be absent on a particular day of the trial, but attend a later hearing. Similarly, oral questioning of a witness at the trial may be followed by reading out of his earlier testimony.\n\n159.  The facts of the present case show that the judge still considered the option of summoning Ms S.D. to the court despite the fact that her testimony had already been read out (her testimony was read out on 2 July 2009, whereas on 4 July 2009 the judge asked the opinion of the doctors as to whether Ms S.D. was fit to testify in person (see paragraphs 88 et seq. above)). Furthermore, the prosecution included Ms S.D. in the list of witnesses to be called. In such circumstances it is clear that the decision of the defence not to object to the reading out of Ms S.D.’s previous testimony in the proceedings conducted by Judge Z. cannot be interpreted as an unequivocal waiver of their right to examine her in person under Article 6 § 3 (d).\n\n160.  More importantly, the Court notes that at the hearing before Judge M. (that of 2 July 2009) the defence objected to the reading out of Ms S.D.’s statements obtained at the investigation stage (see paragraph 87 above). Judge M. started the hearing of the case anew, and it was Judge M. who rendered the impugned judgment. Therefore, it is not crucial that in earlier proceedings before Judge Z. the defence conceded to the reading out of Ms S.D.’s previous testimony.\n\n161.  The Government did not refer to any other episode in the proceedings when the defence waived their right to examine Ms S.D. The Court concludes that the defense did not waive their right to obtain the examination of Ms S.D. in person at the trial.\n\n162.  The Court reiterates that the trial judge only had the written records of the evidence given by Ms S.D at his disposal. That testimony had been obtained by the police without the defence’s participation.\n\n163.  According to Judge M., who examined the case and rendered the contested judgment, Ms S.D.’s fragile mental condition prevented her from participating in the trial. The Court observes that, indeed, Ms S.D. suffered from a mental disorder which was allegedly related to the actions of the applicant and Ms M.S. The Court accepts that the interests of a witness, and in particular the physical and mental integrity of the alleged victim of the crime, are important factors which may sometimes call for the limitation of the rights of the defence under Article 6 § 3 (d). The decision of the national judges not to call Ms S.D. to testify was based on two medical certificates issued in January 2006 and March 2007, which stated that her appearance in court was not recommended since it might cause a relapse (see paragraphs 58 and 88 above). Thus, the judge’s decision not to call Ms S.D. to testify in person was based on the known facts of the case and supported by the doctors’ opinion. The Court is prepared to accept that the decision at issue was not arbitrary (cf. Vronchenko v. Estonia, no. 59632/09, §§ 62 and 63, 18 July 2013, in the context of the questioning of a minor victim of sexual abuse).\n\n164.  More importantly, the Court considers that Ms S.D.’s evidence yielded no conclusive evidence against the applicant. Thus, the defence did not deny that Ms S.D. had participated in the programmes, as she described, and that she had had health problems afterwards. They also accepted Ms S.D.’s account of the activities and practices in which she had been involved. It thus appears that the defence did not try to refute the essential elements of Ms S.D.’s testimony. Their case was built upon other arguments which pertained to the examination of medical issues (namely, the existence of a causal link between Ms S.D.’s mental disorder and her participation in the programme) and legal issues (determination of the “medical” nature of the practices used by the associations). It is unlikely that Ms S.D., as a lay person, would have been able to elucidate on either of those points. Accordingly, the Court does not find that the testimony of Ms S.D. was “sole and decisive” evidence against the applicant (see Al-Khawaja and Tahery, § 152, and compare to Vronchenko, § 59, both cited above).\n\n165.  In the circumstances, and in particular given the low level of importance of Ms S.D.’s testimony as a witness, the Court is prepared to conclude that her absence from the trial did not prejudice the interests of the defence in any significant manner and was outweighed by genuine concern for her well-being. Thus, there was no violation of Article 6 § 3 (d) of the Convention on that account.\n\n2.  Handling of expert evidence\n\n166.  The applicant also complained about the taking and examination of “expert evidence” by the trial court. She claimed that the reports by the prosecution experts had been accepted for examination by the District Court, whereas reports and opinions by the experts suggested by the defence had been rejected as inadmissible. She also complained that the defence had been unable to participate in the preparation of the expert reports.\n\n167.  In addressing those complaints the Court will concentrate on “expert evidence” in the broad meaning of the term, that is, sources of information which do not describe the particular facts of a case but instead provide a scientific, technical, or other similar analysis of those facts (which can also be defined as “opinion testimony”). At the same time, the Court will not lose sight of a distinction which is made in the Russian law between two forms of expert evidence: opinions by “experts” and opinions by “specialists”, both oral and written (see the “Relevant domestic law” part above, paragraph 111).\n\n168.  The Court reiterates that witnesses and experts play a different role in proceedings and have a different status. The latter cannot be fully associated with “witnesses”, at least not for all purposes (see Khodorkovskiy and Lebedev v. Russia, nos. 11082/06 and 13772/05, § 711, 25 July 2013). In analysing whether the personal appearance of an expert at the trial was necessary, the Court will therefore be primarily guided by the principles enshrined in the concept of a “fair trial” under Article 6 § 1 of the Convention, and in particular by the guarantees of “adversarial proceedings” and “equality of arms”. That being said, some of the Court’s approaches to the personal examination of “witnesses” under Article 6 § 3 (d) are no doubt relevant in the context of examination of expert evidence and may be applied mutatis mutandis, with due regard to the difference in their status and role (see Bönisch v. Austria, 6 May 1985, § 29, Series A no. 92, with further references).\n\n169.  It is primarily for the national courts to decide whether a particular piece of evidence is formally admissible (see Garcia Ruiz v. Spain [GC] no. 30544/96, ECHR 1999-I, § 28). Similarly, under Article 6 it is normally not the Court’s role to determine whether a particular expert report available to the domestic judge was reliable or not (see Khodorkovskiy and Lebedev, cited above, § 700). Subject to some exceptions, the general rule is that the domestic judge has a wide discretion in choosing amongst conflicting expert opinions and picking one which he or she deems consistent and credible. However, the rules on admissibility of evidence may sometimes run counter to the principles of equality of arms and adversarial proceedings, or affect the fairness of the proceedings otherwise (see, for example, Tamminen v. Finland, no. 40847/98, §§ 40-41, 15 June 2004). In the context of expert evidence, the rules on its admissibility must not deprive the defence of the opportunity to challenge it effectively, in particular by introducing or obtaining alternative opinions and reports. In certain circumstances the refusal to allow an alternative expert examination of material evidence may be regarded as a breach of Article 6 § 1 (see Stoimenov v. the former Yugoslav Republic of Macedonia, no. 17995/02, §§ 38 et seq., 5 April 2007).\n\n170.  Turning to the present case, the Court notes that the second judgment, that is, the judgment of the District Court whereby the applicant was found guilty, referred to several expert reports, namely, the report of 27 July 2003 (no. 1170), the report of 19 November 2003 (no. 197), the report of 9 April 2004 (no. 36), and the second report by Dr Iv. of 1 April 2005. In its conclusions the court also relied on the records of Dr Ig.’s questioning by the investigator.\n\n171.  In addition, it relied on the oral testimony of experts Mr Ch. and Ms N., as well as on the medical history of Ms S.D.\n\n172.  Expert evidence submitted by the prosecution to the court sought to address the two key questions of the case, namely (1) whether Ms S.D. suffered any physical or mental harm as a result of her participation in the programmes of the association, and (2) whether those programmes were “medical” in nature.  Report no. 1170 of 25 July 2003 was supposed to address the first question; reports nos. 197 and 36 (of 19 November 2003 and 9 April 2004 accordingly) concerned both aspects of the case. Other reports obtained by the investigator mostly covered question no. 2.\n\n173.  The Court observes that all expert reports relied on in the judgment had been obtained by the investigator at the stage of pre-trial investigation. Where an investigator orders an expert examination, Article 198 of the CCrP confers on the defence a right to participate in its preparation by suggesting experts and putting questions to them, and so on. The fact that the defence may play certain role in the preparation of the report at this early stage constitutes an important procedural safeguard (see paragraph 120 above). However, that option was not available to the defence, since expert opinions had been obtained before the applicant was given the status of a defendant in those proceedings (see 19 and 34 above). By the time the applicant had formally acquired the status of defendant the investigator had already obtained several expert reports – namely, reports nos. 1170, 197, and 36, referred to in the final judgment, plus two reports which were not mentioned in the judgment: the report of Dr A. (of 5 May 2004) and the first report of Dr Iv. (of 23 November 2004).\n\n174.  The Court observes that the defence tried to obtain an additional expert examination of the victim (see paragraph 48 above). However, in this occasion the investigator replied, in a summary manner, that there was no need for further examinations.\n\n175.  In sum, when the trial started the court had before it only expert reports obtained by the prosecution without any participation of the defence. As such, this is not contrary to the Convention, provided that in the trial proceedings the defence had sufficient procedural tools to examine that evidence and effectively challenge it before the court.\n\n176.  The Court reiterates that Ms S.D.’s mental health was examined in report no. 1170. It was the only report based on a personal examination of the alleged victim, all subsequent examinations being based on the documents of the file only. Therefore, the evidentiary value of report no. 1170 was particularly high.\n\n177.  The Court accepts that the defence had sufficient knowledge of the content of the report and was able, therefore, to criticise its conclusions at the trial. However, the rights of the defence did not stop there. It is the Court’s well-established case-law that the defence must have the right to study and challenge not only an expert report as such, but also the credibility of those who prepared it, by direct questioning (see, amongst other authorities, Brandstetter v. Austria, 28 August 1991, § 42, Series A no. 211; Doorson v. the Netherlands, 26 March 1996, §§ 81-82, Reports of Judgments and Decisions 1996II; and Mirilashvili v. Russia, no. 6293/04, § 158, 11 December 2008).\n\n178.  Report no. 1170 was prepared by three experts. One of them, namely, Dr Gul., never testified before the court, for reasons which remain unknown. Another member of the expert team, Dr N., did testify in person before Judge M. However, as follows from his oral testimony at the trial, he believed that the expert team had had incomplete information about the character and medical history of Ms S.D., and that the conclusions of report no. 1170 had been based on assumption. At the second trial she expressed the opinion that another psychiatric examination of Ms S.D. was needed to fill the lacunas in the original report (see paragraphs 60 and 93 above). The Court concludes that the oral testimony of Dr N. did not provide sufficient support for the prosecution case and even went in the opposite direction.\n\n179.  In these circumstances it was of crucial importance for the defence to hear in person Dr Ig. – the only expert who, while being questioned by the investigator, firmly asserted that, in her opinion, there had been a direct causal link between the mental disorder of Ms S.D. and her participation in the programmes of the association (see paragraph 61 above). In addition, the Court stresses that Dr Ig. acted as rapporteur in the expert team which prepared report no. 1170. Therefore, questioning her in person was important for the interpretation of the conclusions of that report.\n\n180.  The Court observes that Dr Ig. did not appear before the court in the second round of the proceedings (see paragraphs 61 and 89 above). As follows from the trial record, the defence insisted that Dr Ig. be questioned in person; however, for reasons which are unclear from the trial record, the courts considered that “impossible”. In the absence of further explanations from the Government on this point, and in view of the brevity of the entry in the trial record, the Court concludes that Judge M. failed to verify what the reason for the absence of Dr Ig. was, and whether it was possible to secure her attendance and questioning. The Court further notes that Dr Ig. was not questioned in the first round of the trial proceedings either. This was explained by the fact that she was about to move to another country (see paragraph 61 above). However, Dr Ig. was available for cross-examination at least until 29 March 2007. When the court decided to read out her previous statement (on 27 March 2007) she was still in the country. Thus, it had been possible to examine that witness at the first trial, but the authorities missed that opportunity. Finally, the Court observes that the defence was not able to question Dr Ig. at the stage of the preliminary investigation – again, for reasons which remain unknown.\n\n181.  In these circumstances the Court considers that the absence of Dr Ig. from the trial proceedings constituted a serious handicap for the defence.\n\n182.  The Court observes that cross-examination of experts at the trial was not the only tool available to the defence for challenging report no. 1170. Another course of action open to the defence was to obtain a new expert examination of Ms S.D. through the court. The defence made such an attempt on 7 December 2009 (see paragraphs 95 et seq.). In support of their request they referred to the opinions of Dr N. and Dr Ch., who had testified before the court earlier on that day and who had suggested that another psychiatric examination of the alleged victim would be advisable (see paragraph 93 above). However, the court refused to order a new expert examination.\n\n183.  The Court accepts that where the defence asks the court to have a certain issue or item re-examined by an expert, or where the defence tries to introduce a second opinion on certain matters, it remains primarily for the national court to judge whether it would serve any useful purpose (see H. v. France, 24 October 1989, §§ 60-61, Series A no. 162-A). On the other hand, the Court retains supervisory power in this field: in exceptional circumstances the need to obtain a second expert opinion on an important aspect of the case may be self-evident and the failure of the court to obtain expert evidence sought by the defence may make the trial unfair (see, for example, G.B. v. France, no. 44069/98, § 69, ECHR 2001-X).\n\n184.  The Court considers that in the circumstances of the present case, where the defence had not participated in the preparation of the original expert report, where the key expert for the prosecution had never been questioned by the defence (in an open court or otherwise), and where two other experts in the field who had testified orally had recommended a further psychiatric examination of Ms S.D., the domestic court’s refusal to order such an examination is questionable. This conclusion is strengthened by the fact that in the first round of the domestic proceedings, which ended with the applicant’s acquittal, the court refused to consider the impugned report which was used against the applicant in the second round of the proceedings. Even though the judge in the second trial was not bound by the decision of his predecessor, the unqualified reliance on that report in the second trial, without additional verification recommended by two experts, appears unjustified.\n\n185.  Finally, the Court observes that the defence had yet another option to counter the findings of report no. 1170, namely, to introduce an opinion by their own experts (as opposed to experts chosen by the prosecution or by the court).\n\n186.  The Court observes that in 2006 the defence requested an expert opinion from the IAPR and submitted it to the court as a “written opinion by specialists” (see paragraph 51 above). The report by the IAPR criticised the conclusions of report no. 1170 and was therefore relevant to the question of whether Ms S.D.’s mental disorder had been caused by her participation in the programme of the association. However, the district court refused to consider the opinion of the IAPR (see paragraph 103) on the ground that it had allegedly been obtained in breach of Articles 58, 251 and 270 of the Code of Criminal Proceedings. The court explained that under the law “a party cannot, on its own initiative and outside of the court proceedings, solicit and obtain the opinion of a specialist”.\n\n187.  In this regard the Court agrees with the Government that the “equality of arms” principle enshrined in Article 6 § 1 does not require that the defence should have exactly the same powers as the prosecution when it comes to collecting evidence. The ways in which the defence and the prosecution may participate in the collection of evidence are often different (see Mirilashvili v. Russia, cited above, § 225). However, what is important is that those differences do not place the defence at a net disadvantage vis-à-vis the prosecution. The rules on taking evidence and producing it at the trial should not make it impossible for the defence to exercise the rights guaranteed by Article 6 of the Convention. In Khodorkovskiy and Lebedev v. Russia (no. 2), cited above, § 731, the Court stressed as follows:\n\n“[I]t may be hard to challenge a report by an expert without the assistance of another expert in the relevant field. Thus, the mere right of the defence to ask the court to commission another expert examination does not suffice. To realise that right effectively the defence must have the same opportunity to introduce their own ‘expert evidence’.”\n\n188.  The Court observes that under the Russian law the defence does not have the same rights as the prosecution insofar as obtaining expert opinions is concerned. A proper “expert examination” may be obtained either through an investigator (who is the main procedural opponent of the defence) or through the court (see Article 57 of the CCrP, summarised in paragraph 111 above). The defence only has the right to ask for an expert examination and to suggest experts and questions to them (see paragraph 120 above). The power to order an expert examination, to choose the experts, to provide them with the authentic materials and physical evidence, and to formulate questions belongs to the investigator or to the judge. As is demonstrated by the facts of the present case, the prosecution or the court may dismiss a request for further expert examination of a person or an item without much explanation, because, in their view, the case is clear as it is (see, in particular, the answer of the investigator to such a request quoted in paragraph 36 above).\n\n189.  Alternatively, the defence have the right to seek the assistance of “specialists” (see paragraphs 121 and 122 above). However, it is clear that the status of a “specialist” in Russian law is different from that of an “expert”. Although a specialist may “explain to the parties and to the court matters which come within his or her professional competence”, his primary role is to assist the court and the parties in carrying out investigative actions which require special skills or knowledge. The difference between the “expert” stricto sensu and the “specialist” is well illustrated by Decree no. 28 of the Supreme Court, summarised in paragraphs 125 et seq. above. Although that Decree was adopted several months after the end of the applicant’s trial, it interpreted the same legal provision which had been applied in the applicant’s case and reflects how the Supreme Court understood the status of “specialists” under the CCrP. Thus, the opinion of a “specialist” cannot replace a full-scale examination of the matter by an expert (see point 1 of the Decree). The specialist cannot examine physical evidence directly; he may only give an “opinion”, whereas the expert delivers “conclusions” (see point 20 of the Decree). Where an examination of a complex technical or scientific matter is needed, the court must appoint an “expert”, not a “specialist”. In sum, although opinions by “specialists” and “experts” can be used in evidence, and both may be professionals in a particular field, the role of a specialist and the weight of his opinion is not, in the opinion of the Supreme Court, identical to that of an “expert”.\n\n190.  Finally, even assuming that an “expert report” produced by the prosecution can be counter-balanced by the opinion of a “specialist”, it is unclear whether the defence, in the circumstances of the present case, was capable of introducing such evidence in the proceedings. As to the oral examination of the “specialists”, the Court notes that the IAPR was a Moscow-based expert institution, whereas the trial took place in Khabarovsk, over six thousand kilometres away. Therefore, it would have been difficult and onerous for the defence to ensure the personal attendance of their “specialists” at the trial. In addition, a specialist must appear at the request of the investigator or the court (see paragraph 114 above), whereas he has no such obligation where the defence seeks his questioning.\n\n191.  The remaining option was to introduce the written report by the IAPR in order to challenge the “expert reports” produced by the prosecution. However, the trial court refused to accept the report by the IAPR on the ground that it had allegedly been obtained in breach of the applicable procedural rules. In support of that conclusion Judge M. referred to three provisions of the CCrP: Articles 58, 251 and 270 (see paragraph 103 above). Judge M. did not explain how those provisions had been breached. The Court, for its part, does not see why they should have prevented the court from adding the written opinion of the IAPR to the case file. Thus, Article 58 does not prohibit the defence from seeking and obtaining written opinions by “specialists”, at least not in explicit terms. Articles 251 and 270 are not directly applicable since they concern the questioning of a specialist in person, and not the examination of his written opinion.\n\n192.  On the other hand, the Court notes that Judge M. held that “a party cannot, on its own initiative and outside of the court hearing, solicit and obtain an opinion of a specialist”. Indeed, Article 53 § 3 of the CCrP refers to Article 58, which, in turn, refers to Articles 168 and 270 of the CCrP, which regulate the participation of specialists at the request of the prosecution or the court. It is difficult to see how Article 58 of the CCrP can be reconciled with its Articles 53 § 3 and 86 and with section 6 § 3 (4) of the Advocacy Act of 2002 (see paragraphs 122 and 123 above), which provide that the defence may engage the services of a specialist within criminal proceedings. Be that as it may, it is not the Court’s task to explain how the domestic law should be read in abstracto. It appears that Judge M. interpreted the CCrP as prohibiting the defence from obtaining written opinions of specialists otherwise than through the prosecution or the court. Thus, the defence was unable to obtain and produce written opinions by “specialists” to challenge the written opinions of the “experts” collected and presented by the prosecution.\n\n193.  The Court stresses that the distinction between the procedural status of a “specialist” and an “expert” in the Russian law would not lead to a violation of Article 6 § 1 automatically in all cases. Moreover, as a matter of principle it is legitimate for the national legislator to set certain rules on how the defence may collect and introduce their own expert evidence at the trial.\n\n194.  However, in the present case this distinction, in combination with other handicaps which the defence experienced throughout the proceedings in connection with expert evidence, put it at a net disadvantage vis-à-vis the prosecution. The Court reiterates that expert evidence, and in particular report no. 1170, played a central role in the case of the prosecution. The key expert for the prosecution, Dr. Ig., was never questioned by the defence. The defence did not participate in the process of obtaining expert reports at the investigation stage. The prosecutor and the court refused, in a summary manner, to conduct additional examinations, contrary to the opinion of two professionals examined at the trial and to the position of the court in the first round of the proceedings. And, lastly, the defence had virtually no possibility of challenging those reports with their own counter-evidence. The defence could only seek the assistance of “specialists”, whose status was lower than that of “experts”, and, in addition, the defence was not allowed to introduce written opinions by “specialists” at the trial, whereas the prosecution and the court relied on the written opinions of the “experts” collected by the investigator at the pre-trial investigation stage.\n\n195.  The Court concludes that, in so far as the handling of expert evidence concerning the mental condition of Ms S.D. was concerned, the defence was in a such a disadvantageous position vis-à-vis the prosecution that it cannot be reconciled with the requirements of the principle of equality of arms under Article 6 § 1 of the Convention.\n\n196.  The Court will now turn to the expert evidence which addressed the second question in the present case, namely, whether or not the activities of the association were “medical” in nature.\n\n197.  The Court notes that the handling of that group of expert evidence was tainted with the some of the defects examined above. Thus, the first four examinations of the programmes of the association (reports nos. 197, no. 36, the first report by Dr Iv., and the report of Dr A.) were conducted without the involvement or even knowledge of the defence. That being said, the defence was in a somehow better situation as regards the second group of evidence, and that is for the following reasons.\n\n198.  First, the Court notes that the defence was informed about the last expert examination by Dr Iv., which resulted in the report of 1 April 2005 (see paragraph 37 above). The defence was therefore able to exercise its rights provided by Article 198 of the CCrP. Even though respect for those rights depended on the investigator, the defence might have at least tried asking the investigator to put additional questions to the expert or appoint another expert.\n\n199.  Second, the Court observes that in the second round of the proceedings judge M. heard oral evidence from only one of the four experts who had participated in the preparation of reports nos. 197 and 36, relied on in the judgment. Furthermore, Dr Iv., who prepared the expert report of 1 April 2005, was not examined in person. However, from the materials of the case it is unclear whether the defence solicited the examination of the absent experts in person (cf. to the situation pertaining to Dr Ig., the rapporteur of the group who had prepared report no. 1170, whose presence was sought by the defence). In the circumstances, it appears that their presence was not regarded by the defence as necessary.\n\n200.  Still, the Court is not persuaded that the principle of equality of arms has been respected in relation to the second group of expert evidence. Thus, the defence was unable to challenge the conclusions of Dr Iv. by submitting an alternative report by Prof. Z. (which defined the notion of “medical activities” and thus related to question no. 2). The court refused to admit his report in evidence for the very same reason it did not accept the report by the IAPR (see paragraphs 49 and 103 above). Thus, the defence did not have an option of an “active defence”: they were unable to introduce written opinions of their own “specialists” and, in any event, any opinion of a “specialist” would be of a lesser weight than that of the “expert”.\n\n201.  Lastly, what is particular about the second group of expert evidence is how the prosecution and the courts dealt with the expert opinion by Dr A. (see paragraph 29 above). The Court observes that the expert opinion of Dr A. was obtained at the pre-trial investigation stage on the initiative of the investigator. The report by Dr A. was clearly favourable to the defence. However, there is no reference to that expert report in either of the two judgments rendered in the present case. It appears that either the report of Dr A. was never produced in court, or it was produced but the courts disregarded it. The Court considers that in either scenario the authorities breached the fundamental principles of a fair trial. The Court’s case-law states that the prosecution must disclose to the defence “all material evidence in their possession for or against the accused” (see, amongst many other authorities, Edwards v. the United Kingdom, 16 December 1992, § 36, Series A no. 247B). Certain exceptions to that rule are permissible, but the Government did not refer to them. A fortiori, the rule of disclosure of exculpatory evidence requires the prosecution to submit such evidence to the court for consideration. However, that rule would make no sense if the courts were allowed to leave such evidence without any consideration and not even mention it in their judgments.\n\n202.  The Court further observes that the defence tried to introduce the expert opinion of Dr A. in another form: thus, at the first trial (which ended with the applicant’s acquittal) he was questioned as a “specialist”. However, in subsequent proceedings the oral submissions of Dr A. were excluded from the body of evidence on the ground that Dr A. had already participated in the trial in the capacity of an “expert” (see paragraph 104 above).\n\n203.  The exclusionary rule applied by the domestic courts in the circumstances meant that by employing a person as an “expert”, the prosecution were capable of neutralising him as a prospective “specialist” for the defence. And if the prosecution did not like the opinion of their “expert”, they were free not to refer to it at the trial. As a result, Dr A.’s opinion was excluded from examination at the trial, in any form, and that was to the detriment of the defence.\n\n204.  The exclusion of Dr A.’s opinion from the body of evidence appears especially inopportune in the light of the courts’ inconsistent approach to expert evidence. The Court notes that Judge Z., who received the case from the court of appeal, considered that a new expert examination of the question concerning the “medical” nature of the activities of the association was necessary (see paragraph 82). However, Judge M., who stepped into the proceedings after the withdrawal of Judge Z., proceeded without having obtained the report requested earlier by Judge M. (see paragraphs 83 et seq.).\n\n205.  Again, the Court is not well placed to indicate to the national judge the best course of action. Judge M. had several options: for example, he could have obtained a fresh expert examination of the matter, could have allowed the defence to submit a written opinion by one of their “specialists”, or could have examined Dr A.’s written report or his oral submissions. Instead, Judge M. contented himself with relying on the same written opinions by the prosecution’s experts which had earlier been rejected by another judge as inadmissible, unreliable and inconclusive, that is, without any meaningful verification of their credibility.\n\n206.  In sum, the Court concludes that, insofar as the handling of expert evidence concerning the nature of the activities of the association was concerned, the defence was placed in a disadvantageous position vis-à-vis the prosecution and the proceedings were not truly adversarial. That situation is contrary to the requirements of Article 6 § 1 of the Convention.\n\n207.  The Court is mindful of the fact that Judge M. heard a number of witnesses for the defence, examined several expert opinions and studied various documents. However, the question of whether or not the defence enjoyed “equality of arms” with the prosecution and whether the trial was “adversarial” cannot be addressed solely in quantitative terms. In the present case it was very difficult for the defence to effectively challenge the expert evidence submitted to the court by the prosecution. The Court stresses that the case against the applicant was built upon that expert evidence. In those circumstances, the way in which expert evidence was handled made the applicant’s trial unfair. Therefore, the Court does not need to address the other procedural violations alleged by the applicant.\n\n208.  On the strength of the above the Court concludes that there has been a violation of Article 6 § 1 of the Convention.\n\nII.  ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION\n\n209.  The applicant complained that her conviction had been unforeseeable and had been based on legal acts adopted after the events at the heart of the case. She relied on Article 7 of the Convention, which reads as follows:\n\n“1.  No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.\n\n2.  This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”\n\n210.  The Government contested that argument. They claimed that criminal liability for illegal medical practice was established in the Criminal Code with sufficient clarity. The domestic courts, in convicting the applicant, had relied on provisions of Russian legislation on public health which pre-existed the events which led to the applicant’s conviction.\n\n211.  The applicant maintained her complaints.\n\n212.  The Government did not put forward any formal objection to the admissibility of this complaint. The Court further observes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\n213.  Turning to the merits, the Court considers that in order to decide whether or not the acts imputed to the applicant could be characterized as “illegal medical practice” – a crime punishable under Article 235 of the Criminal Code – the courts needed to address certain questions of fact, in particular those related to the nature of the activities of the association in the light of the applicable legal norms. As demonstrated above, the procedure in which the court examined those questions, which required the help of the professionals in this field, was deficient. The applicant’s conviction was therefore unsafe. In these circumstances, and in view of its findings under Article 6, the Court considers that it is not necessary to examine separately whether there has been a violation of Article 7 of the Convention on account of the applicant’s conviction.\n\nIII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n214.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n215.  The applicant claimed 30,000 euros (EUR) in respect of non-pecuniary damage.\n\n216.  The Government claimed that a finding of a violation would constitute sufficient just satisfaction “since, in such case, the applicant’s sentence would be quashed pursuant to the procedure established by the Criminal Procedure Code of the Russian Federation within the Court’s judgment execution proceedings”.\n\n217.  The Court considers that the re-opening of the case would be the most appropriate measure to restore the applicant’s rights under Article 6 of the Convention and notes that this possibility is available to the applicant under the domestic law. However, it does not consider that a re-opening constitutes, by itself, sufficient compensation in the circumstances, given the duration of the criminal proceedings and the seriousness of the procedural violations found in the present case. On the other hand, the Court considers that the amount sought by the applicant is excessive. In light of the materials in its possession and on an equitable basis the Court awards the applicant EUR 4,000 in respect of non-pecuniary damage, plus any tax that may be charged on this amount.\n\nB.  Costs and expenses\n\n218.  The applicant also claimed 500,000 Russian roubles (RUB; approximately EUR 11,350) for legal costs incurred before the Court. She submitted to the Court an agreement between her and her lawyer, Ms Karpova, dated 1 August 2010, which stipulated that a part of that amount (RUB 90,000) was payable within six months after the communication of the case to the Government, whereas the remaining amount was payable within two years after the Court’s decision on admissibility. Under that agreement the applicant also had to cover the lawyer’s travel expenses, postal expenses and translation costs separately. The applicant produced payment slips confirming receipt of RUB 90,000 by her lawyer and RUB 12,500 by her translator. She also submitted a calculation of the travel expenses of her lawyer covering a three-day trip from Khabarovsk to Strasbourg.\n\n219.  The Government claimed that the applicants failed to produce documents showing that the amounts claimed had been incurred. As to the costs related to the applicant’s lawyer’s trip to Strasbourg, those costs had not “actually and necessarily” been incurred.\n\n220.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the Court rejects the claim for travel expenses, as the lawyer’s trip to Strasbourg was not necessary. Furthermore, the Court observes that the applicant’s lawyer did not indicate her hourly/daily rate and did not produce a detailed description of the work done in this case and the time spent on it. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 4,000 covering costs under all heads plus any tax that may be chargeable to the applicant on that amount.\n\nC.  Default interest\n\n221.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT\n\n1.  Declares, unanimously, the application admissible;\n\n2.  Holds, unanimously, that there has been a violation of Article 6 § 1 of the Convention on account of unfair handling of expert evidence in the proceedings;\n\n3.  Holds, by six votes to one, that there has been no violation of Article 6 § 3 (d) of the Convention on account of absence of Ms S.D. from the trial;\n\n4.  Holds, by five votes to two, that there is no need to examine the complaint under Article 7 of the Convention;\n\n5.  Holds, unanimously,\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the Russian roubles at the rate applicable at the date of settlement:\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n6.  Dismisses, unanimously, the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 27 March 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.\n\nIn accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:\n\n(a)  Joint partly dissenting opinion of Judges Pinto de Albuquerque\n\nand Turković;\n\n(b)  Partly dissenting opinion of Judge Pinto de Albuquerque.\n\nWe regret that the majority did not deal with the most important substantive issues of the Matytsina case, namely the unforeseeable and retroactive application of a blanket criminal provision and the waiver of the statute of limitations in criminal law. The novelty and gravity of these two issues should have merited the attention of the Chamber.\n\nThe applicant was convicted of the criminal offence of quackery provided for in Article 235 (“Engaging in Illegal Private Medical Practice or Private Pharmaceutical Activity”) of the Russian Criminal Code and sentenced to two years’ imprisonment. She did not serve the sentence since the prosecution was time-barred. The facts of the case occurred during a period of three months, from April 2002 to June 2002.\n\nThe legal framework at the material time was extremely confusing, so confusing that seventeen experts engaged during the domestic proceedings could not agree whether the practices imputed to the association constituted “medical services,” “scientific medicine” or “folk medicine” or something else. In fact, the following reports were produced before the domestic authorities: (1) report no. 1170 of 25 July 2003, which concluded that the alleged victim had developed an “acute schizoid psychotic disorder” related to the alleged victim’s participation in the programmes of the association, without expressing a view on the nature of these programmes; (2) report no. 197, of 19 November 2003, based on written material in the file, which did not answer the question as to whether the techniques of the association were medical; (3) report no. 36, of 9 April 2004, based on written material in the file, which did not give an answer to that question either; (4) the opinion of 22 April 2004, which considered that techniques used by the association such as relaxation and yoga postures, did not require licensing; (5) the report of 5 May 2004, which concluded that the techniques of the association were not “medical”; (6) the report of 16 December 2004, which did not express an opinion on the nature of the association’s practice; (7) the report of 17 January 2006, which criticised the methods of report no. 1170 of 25 July 2003; and finally, (8) the report of 1 July 2007, which concluded that the association’s activities were not “medical” and that no clear link could be established between the alleged victim’s mental condition and the association’s programmes.\n\nEven more strange is the fact that only one expert, Dr Iv., affirmed that the association’s activities could be characterised as “folk medicine”, which required a licence, and that the activities of the association were medical in nature. She stated this opinion in her two reports of 23 November 2004 and 1 April 2005, but never appeared in court to be questioned and cross-examined as to her conclusions. Moreover, she expressed her opinion only on the basis of written material, without ever examining the alleged victim or questioning the defendant. Worse still, her opinion referred to various laws and regulations which entered into force after the relevant events, such as the decree of the Ministry of Public Health no. 238 of 26 July 2002, and the Minister of Public Health’s directive of 14 November 2003.\n\nIt is indeed incomprehensible that the domestic courts accepted this sole expert’s opinion as convincing evidence and found the respondent guilty as charged. The total unpredictability of the domestic courts’ interpretation of the legal framework is compounded by the fact that the most important commentaries on the Russian Criminal Code do not refer to any previous cases regarding the application of its Article 235.\n\nAbove all, the case raises an issue of principle. The criminal provision of Article 235 of the Russian Criminal Code is a blanket legal norm, which makes the punishability of the criminal offence of quackery dependent on non-criminal laws and regulations. In the case at hand, both the experts and the courts referred to several administrative laws and regulations that allegedly defined and circumscribed “medical practice”. While the compatibility of blanket criminal provisions with the principle of legality (nullum crimen sine lege praevia, certa et stricta) has been a subject of heated discussions, it is nonetheless generally accepted that these provisions are, in principle, necessary in certain fields of criminal law, namely where complex technical details of the constitutive elements of the offence are provided for by other non-criminal laws and regulations. Thus, the blanket criminal provision is applied in conjunction with the supplementing non-criminal provisions. In any case, these non-criminal laws and regulations which supplement the constitutive elements of the offence missing in the blanket criminal provision must themselves comply with the requirements of the principle of legality. An individual must know from the wording of the criminal provision, interpreted in conjunction with the relevant non-criminal provisions and, if need be, with the assistance of a third person’s legal expertise, what acts and omissions will make him or her criminally liable and what penalty will be imposed for his or her acts or omissions. Thus, the non-criminal laws and regulations which supplement the blanket criminal provision must comply with the requirements of lex praevia, certa et stricta. Otherwise the State could punish conduct that no one could have foreseen as criminal at the material time.\n\nThat was exactly the case here. The administrative laws and regulations that were supposed to supplement Article 235 of the Russian Criminal Code lacked clarity. In fact, a careful analysis of the legal framework at the time of the facts (i.e., from April 2002 to June 2002) shows that no law, regulation or directive provided for a clear definition of the legal concepts of “medical practice”, “scientific medicine”, “scientific medical procedure” or “folk medicine” for the purposes of the criminal-law provision of Article 235 of the Russian Criminal Code. The laws and regulations in force at the material time only governed the administrative organisation of several health services, without any concrete and detailed reference being made to the specific characteristics of the acts and practices performed within the fields of “scientific medicine” and “folk medicine”.\n\nAdmittedly, in the area of regulation under consideration it may be difficult to couch laws with absolute precision and a certain degree of flexibility may be called for to enable courts to follow scientific developments. Indeed, there is an inevitable element of judicial interpretation of every legal norm, however clearly drafted it may be, but in its interpretation courts may not go beyond what could reasonably have been foreseen in the circumstances. Nonetheless, in the present case, owing to the vagueness of the administrative regulatory framework of “health services”, it was not foreseeable at the material time that the unlicensed practices of the association would constitute a criminal offence. From the wording of the relevant administrative provisions, read in conjunction with the Criminal Code, the defendant could not have known, even with the assistance of expert interpretation, as testified by the conflicting expert’s reports, that the unlicensed association’s practices would make her criminally liable.\n\nMoreover, although it is in the first place for the national authorities to interpret and apply national law, in the present case the wide and overreaching judicial interpretation of the administrative provisions was not even consistent with the essence of the criminal offence of “Engaging in Illegal Private Medical Practice”. The administrative law provisions were arbitrarily construed by the second trial court to the defendant’s detriment, since it labelled practices like yoga, breathing techniques, mantra singing, meditation, aromatherapy and other similar practices as “medical services”.\n\nIn addition, some of the administrative laws, regulations and directives mentioned by the expert Dr Iv. and the domestic courts entered into force only after the material time, thus representing an inadmissible retroactive application of the blanket criminal provision. As the Tsentralny District Court of Khabarovsk rightly pointed out in its decision of 23 July 2007, the expert opinion of Dr Iv. was based on legislation which had entered into force after the events imputed to the applicant. The same happened with other expert’s reports, which also relied on the same ex post facto provisions in coming to their, albeit opposite, conclusions.\n\nThe obvious conclusion is that the administrative provisions existing at the material time were not sufficient to supplement the constitutive elements of the offence, and the second trial court had to refer to ex post facto administrative provisions, which were not only applied retroactively, but were in addition themselves prone to conflicting interpretations. In short, by labelling the practices of the association and the defendant as “medical services” requiring licensing, the courts extended the scope of the existing criminal offence of the Russian Criminal Code to acts which previously had not been criminal offences. For the reasons stated above, the applicant could not reasonably have foreseen that her acts would constitute the criminal offence of “Engaging in Illegal Private Medical Practice or Private Pharmaceutical Activity” under the Criminal Code as supplemented by the administrative provisions in force at the material time. Thus, the finding reached by the first-instance court in its judgment of 27 July 2007 was entirely correct: there was simply no legal basis for the applicant’s conviction.\n\nTo aggravate the lack of clarity of the criminal law framework, the prosecution was time-barred but the applicant was nevertheless convicted and sentenced. Article 27 § 2 of the Russian Code of Criminal Procedure provides that, if the defendant objects to the termination of the proceedings owing to the expiry of the statutory time-limits set out in Article 24 §§ 1-3 of the Code of Criminal Procedure, the proceedings must continue and the court must decide the case on the merits. The legal interpretation of Article 27 § 2, of the Code of Criminal Procedure is unclear as to whether the courts may impose a criminal sentence, besides finding the person guilty. The most important commentaries on the Code of Criminal Procedure are not unanimous on this point: if the person is found guilty of the prescribed offence, some commentators say that courts cannot in any case impose any penalties on the convicted person, whereas others say that the judge has a choice to impose or not to impose a sentence, thereby granting judges unlimited discretion, which is unacceptable under the principle of legality. The case-law in this respect is not uniform either. Owing to the lack of clarity in the law and the unfettered discretion granted to judges in applying such law, the applicant did not have an advance fair warning, as required by the principle of legality, as to what consequences the waiver of the statute of limitations would entail for her and it was thus impossible for her to make a proper informed decision related to a waiver of her right. Although she might have had some understanding of the risk she was taking by waiving the statute of limitations, the degree of risk was completely unforeseeable. The principles of advance notice and limitation of official discretion, as embodied in the principle of legality guaranteed under Article 7 § 1, of the Convention, should be considered the minimum requirement for the rule of law to be upheld.\n\nMoreover, the solution set out in Article 27 § 2 of the Russian Code of Criminal Procedure is in itself censurable from a human rights perspective. The waiver by the defendant of his or her legal right to terminate time-barred criminal proceedings is a voluntary submission to a trial court, which can take place at any time in the future, regardless of the applicable law on the statute of limitations. The practical result is that any person may agree to be tried, and ultimately punished, for any crime, even minor offences, committed a long time ago, where criminal prosecution and conviction no longer serve any legitimate purpose, no penological needs justify punishment and the evidence may have already vanished. In our view, such a waiver is per se incompatible with the Convention, since it defeats both the remedial purpose and the mixed – both substantive and procedural – nature of the statute of limitations.\n\nThe statute of limitations consists in the extinction of an offence which deprives the State of jurisdiction to prosecute, try, convict and sentence the alleged offender. Statutes of limitation in criminal law are not only designed to bar prosecutions based on facts that have become obscured by the passage of time, but also specify a time-limit beyond which an irrebuttable presumption arises that no further danger to society results from the criminal act and a defendant’s right to a fair trial would be prejudiced. Hence, its assessment is a substantive prerequisite of the State’s right to prosecute offenders and punish criminal conduct. This prerequisite goes to the heart of the State’s sovereign power to punish and thus relates to the substance of the case, not merely its admissibility.\n\nThe Court’s initial approach to the issue of the nature of the statute of limitations was hesitant. In Coëme and Others v. Belgium, the question whether Article 7 of the Convention would be breached where a law lengthened a limitation period after it had expired was left open, although the Court did accept the legitimacy of a law that lengthened the limitation period if it entered into force before the limitation period had expired. In Previti v. Italy the Court interpreted this passage of Coëme and Others as if it had stated that the statute of limitations had an exclusively procedural nature and was not under the guarantees of Article 7. But this approach was rightly abandoned in K.-H.W. v. Germany [GC] and Kononov v. Latvia [GC]. The Court’s present approach is clear and unambiguous. It can be summed up as follows: the statute of limitations sits alongside, with equal force, the conditions of the existence of a criminal offence and therefore shares the substantive nature of the constituent elements of the offence, with the logical consequence of the full applicability of Article 7, including the prohibition of the retroactive application of criminal laws with harsher statute of limitations provisions to the detriment of the defendant. Thus, the statute of limitations has, in the light of the Convention, a mixed nature, being both procedural and substantive at the same time.\n\nThe aforementioned understanding of the statute of limitations has various legal consequences. Firstly, courts are empowered, and even obliged, to decide upon the applicability of the statute of limitations of their own motion, in view of the paramount public policy reasons for the enactment of statutes of limitation. Secondly, since the statute of limitations relates to the State’s right to prosecute, try, convict and sentence citizens, the principle of legality fully applies to its regime. The grounds for limitation, suspension or interruption of the effect of the lapse of time, and any exceptions to or extensions of the statute of limitations, are a legislative responsibility, and can neither be determined by courts nor manipulated by the defendant. Thirdly, the statute of limitations cannot be waived: the running of the statute of limitations extinguishes the court’s power to try the case and punish the defendant, and no waiver by the defendant can supply the requisite jurisdiction. In a State governed by the rule of law and human rights, criminal jurisdiction cannot be conferred upon the court by a unilateral act of the defendant. Any punishment for a time-barred act or omission, even when he or she expressed his or her wish to be tried, is not only irrevocably disproportionate, but furthermore contrary to the requirements of the principle of legality. The statute of limitations is not a mere waivable defence, but a substantive guarantee of a rational use of State power to enforce criminal law.\n\nIn sum, we believe that the applicant was not only deprived of her right to contest the expert evidence and was therefore unfairly convicted, but she was also sentenced under an uncertain and retrospective legal framework. Justice would have required laying a stone over this procedure, and not leaving the door open for the continuation of these totally groundless criminal proceedings. Accordingly, we conclude that there has been a flagrant violation of Article 7 of the Convention, and consequently dissent on the decision not to assess this complaint.\n\n1.  In addition to the violation of Article 6 § 1 of the Convention, I find that there has also been a violation of Article 6 § 3 (d) of the European Convention on Human Rights (“the Convention”) owing to the unfair handling of the testimonial evidence in the criminal proceedings in question. The unfairness of the handling of the expert evidence was compounded by the additional lack of cross-examination of the alleged victim during both the first and the second trial.\n\n2.  The alleged victim was never heard by a court, as her testimony was read out in open court in the first and second trials. Since she informed the court before the second trial that she had already been “reconciled” with the accused persons and even withdrew her complaint, no psychological or physical danger could be feared in the event of her being confronted with the defendant during the court hearing. Whilst the two medical certificates issued on 19 January 2006 and 22 March 2007, stating that her appearance in court was not recommended since it might cause a “relapse”, could possibly have justified her absence at the first trial, they could certainly not ground the decision of the court not to call Ms S.D. to testify at the second trial in June 2009, more than two years later, when new relevant information on her state of mind and her relationship with the defendant had been made known to the court. The mention of undetermined sources of information, such as “information received” (paragraph 88) by the trial court is the crowning touch of arbitrariness in a decision already lacking any plausible factual and legal grounds.\n\n3.  Furthermore, the alleged victim’s cross-examination was crucial in view of the fact that the imputed offence referred to a negligent result of harm caused to the victims of illegal private medical practice or private pharmaceutical activity. The trial court had to assess whether the alleged victim had suffered any psychological or physical harm during the material time from April to June 2002 and, if so, whether that harm was caused by the applicant’s practices. Both the criminal harm and the link of causality could and should have been ascertained on the basis of the alleged victim’s direct testimony before the court. Neither the domestic courts nor the sole expert (Dr Iv.), whose report was used by the domestic courts to ground the conviction, ever saw, let alone questioned, the victim or evaluated whether she had suffered any harm caused by the applicant’s practices. Thus, the alleged victim’s testimony was capable of enlightening the court as to essential points of fact which were disputed by the defence.\n\n4.  The decision of the defence not to object to the reading-out of Ms S.D.’s previous testimony in the proceedings conducted before the first trial court cannot be interpreted as an unequivocal waiver of its right to examine her in person. The same applies to the reading-out of the testimony of other witnesses submitted by the prosecution. The irrefutable fact is that, at the hearing before the second trial court on 2 July 2009, the defence objected explicitly to the reading-out of statements from Ms S.D. and from other witnesses for the prosecution that had been obtained during the previous stages of the proceedings. The position of the defence was clear, and moreover justified: they wanted to question the witnesses about the facts of the case in view of the new evidence, such as the history of mental problems among members of the alleged victim’s family, together with the “reconciliation” and the withdrawal of the complaint by the alleged victim. The defence had the right to assess what was in its best interest and its judgment should have been respected by the court for the sake of the fairness of the trial, including the basic right to examine or have examined witnesses for the prosecution. The trial court simply assumed that the defence’s input to the trial was pointless – a form of conduct not much different from the police investigator’s conduct at the investigation stage of the proceedings.\n\n5.  No counter-balancing measures whatsoever were taken by the public prosecutor or the court for the benefit of the defendant when the alleged victim was questioned during the pre-trial stage of the proceedings, in order to allow for some procedural safeguards to ensure the fairness of the proceedings and the reliability of the evidence. For example, the defence lawyer was not allowed to be present at the police questioning of the witness.\n\n6.  The argument that the alleged victim’s testimony was not the sole and decisive evidence against the defendant is not convincing. In addition to the expert opinion of Dr Iv and some documentary evidence, including the medical history of Ms S.D., the charter of incorporation of the association, its brochures and leaflets, the second trial court based its factual findings on the records of the testimony of the alleged victim Ms S.D., given on 24 March 2003 and 22 April 2004, and the testimony of Ms N.D. (the sister of the alleged victim) given on 9 September 2003, all three statements having been taken during the pre-trial investigation by the police, the testimony of Ms Z.D. (the mother of the alleged victim) and Mr E.D. (the brother of the alleged victim) given at the first trial, together with the records of the testimony of Ms E. K., Ms O.L., Ms E.B., Ms I.G. and others, given either to the police investigator during the investigation stage of the proceedings or at the first trial. The whole case against the defendant was based on untested evidence given by the victim, corroborated by one sole expert who had never seen the victim and who was never cross-examined in a court hearing, as well as other witnesses whose testimony was not cross-examined before the second trial court either. In straightforward words, the core of the prosecution’s case was not weak. It simply did not exist. Any court of law would have thrown out the prosecution’s case on the grounds of a lack of reliable evidence. As the first trial court rightly did.\n\n7.  The facts described above call for some reflections of a general nature. The principle of the fair trial and the principle of cross-examination of the evidence require that testimonial evidence be produced before the judge who is responsible for returning the verdict. The assessment of the reliability of that evidence depends on the judge’s immediate perception of it. The immediacy of the relationship between the judge and the testimony (or the Unmittelbarkeitsprinzip, as the German doctrine calls it) is a constituent element of the adversarial proceedings inherent in the concept of fair trial. Thus, as a matter of principle, the trial court may not base a criminal conviction on testimonial evidence produced prior to the trial, even where the evidence has been produced in a previous trial before the same or other court and its judgment has subsequently been quashed and the case remitted for a fresh trial, and regardless of whether or not the composition of the first and second trial courts is different. A fortiori, this conclusion applies also to testimonial evidence that was produced at the pre-trial stage of the criminal proceedings. The obvious consequence of this principle is that only exceptionally may the testimonial evidence produced at the pre-trial stage of criminal proceedings or at the trial stage, in the event of remittal for a fresh trial, be considered admissible and used as a ground in the judgment.\n\n8.  In order to comply fully with the principle of a fair trial and the principle of cross-examination of the evidence, there must be an exhaustive legal catalogue of grounds for the reading-out of an absent witness’s testimony in open court, such as death, physical or mental incapability, disappearance, travel abroad and need to protect the life, safety or health of the witness. Furthermore, the catalogue of these grounds must distinguish between the evidence produced before the judge, the public prosecutor or the police. For the purposes of an adversarial and fair examination of the evidence, the evidence produced before the police or the prosecutor cannot be equated with the evidence produced before the judge at the pre-trial stage. The catalogue of the grounds for reading out the absent witness’s testimony in open court must be more expansive when a judicial authority collects the evidence and less expansive when it is collected by a non-judicial authority. For the same purposes, when deciding whether the absent witness’s testimony should be read out, courts must take into consideration the presence or absence of the defence lawyer at the witness’s hearing. Experience shows that the intervention of the defence lawyer at a later stage is often too late, and may not suffice to remedy the shortcomings of a previous non-adversarial hearing of the witness. The catalogue of the grounds for reading out the absent witness’s testimony in open court must be more expansive when the defence lawyer participated, or had the opportunity to participate, in the pre-trial hearing of the witness, and less expansive when he or she did not have such opportunity.\n\n9.  Accordingly, the legal standard of the Court, which was set out most recently in Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, ECHR 2011, must be further refined, based on the joint assessment of the following criteria: (1) the nature of the ground hindering the witness’s presence at the trial hearing; (2) the kind of public authority before which the witness’s prior testimony was given; (3) the presence or absence of the defence lawyer at that specific hearing; (4) the existence of other mechanisms to safeguard the defence’s right to impugn the fairness of the gathering of testimony, the credibility of the witness and the reliability of his or her testimony; (5) the weight of the read-out testimony of the non-cross-examined witness in the trial court’s judgment; and (6) the waiving of the right to cross-examine the absent witness.\n\n10.  To sum up, by repeatedly denying the defence any possibility of challenging the prosecution evidence and subsequently relying on the reading-out of testimonial and expert evidence gathered at the pre-trial stage of the proceedings or during the first trial, in spite of the firm opposition of the defence, the second trial court emptied the principle of cross-examination of any practical meaning and ultimately turned the judgment into a farce, where the defendant’s conviction seemed from the very start of the trial like a self-fulfilling prophecy, confirmed by each new interim decision taken against the interests of the defence and the final predictable conviction of the defendant. No remedy for this blatant unfairness was provided by the appellate court.\n\n10.  To sum up, by repeatedly denying the defence any possibility of challenging the prosecution evidence and subsequently relying on the reading-out of testimonial and expert evidence gathered at the pre-trial stage of the proceedings or during the first trial, in spite of the firm opposition of the defence, the second trial court emptied the principle of cross-examination of any practical meaning and ultimately turned the judgment into a farce, where the defendant’s conviction seemed from the very start of the trial like a self-fulfilling prophecy, confirmed by each new interim decision taken against the interests of the defence and the final predictable conviction of the defendant. No remedy for this blatant unfairness was provided by the appellate court.","title":""}
{"_id":"passage_255","text":"PROCEDURE\n\n1.  The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table.\n\n2.  The applications were communicated to the Russian Government (“the Government”).\n\nTHE FACTS\n\n3.  The list of applicants and the relevant details of the applications are set out in the appended table.\n\n4.  The applicants complained of the excessive length of their pre-trial detention. Some applicants also raised other complaints under the provisions of the Convention.\n\nTHE LAW\n\nI.  JOINDER OF THE APPLICATIONS\n\n5.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.\n\nII.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION\n\n6.  The applicants complained principally that their pre-trial detention had been unreasonably long. They relied on Article 5 § 3 of the Convention, which read as follows:\n\n“3.  Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”\n\n7.  The Court observes that the general principles regarding the right to trial within a reasonable time or to release pending trial, as guaranteed by Article 5 § 3 of the Convention, have been stated in a number of its previous judgments (see, among many other authorities, Kudła v. Poland [GC], no. 30210/96, § 110, ECHR 2000XI, and McKay v. the United Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006X, with further references).\n\n8.  In the leading case of Dirdizov v. Russia, no. 41461/10, 27 November 2012, the Court already found a violation in respect of issues similar to those in the present case.\n\n9.  Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the applicants’ pre-trial detention was excessive.\n\n10.  These complaints are therefore admissible and disclose a breach of Article 5 § 3 of the Convention.\n\nIII.  OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW\n\n11.  Some applicants submitted other complaints which also raised issues under the Convention, in accordance with the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its findings in Idalov v. Russia [GC] (no. 5826/03, §§ 154-55, 22 May 2012, with further references) and Nakhmanovich v. Russia, (no.  55669/00, §§ 87-98, 2 March 2006).\n\nIV.  REMAINING COMPLAINTS\n\n12.  In application no. 46871/07, the applicant also raised other complaints under various Articles of the Convention.\n\n13.  The Court has examined these complaints and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, they either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.\n\nIt follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.\n\nV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n14.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\n15.  Regard being had to the documents in its possession and to its caselaw (see, in particular, Pastukhov and Yelagin v. Russia, no. 55299/07, 19 December 2013), the Court considers it reasonable to award the sums indicated in the appended table.\n\n16.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\n1.  Decides to join the applications;\n\n2.  Declares the complaints concerning the excessive length of pre-trial detention and the other complaints under well-established case-law of the Court, as set out in the appended table, admissible and the remainder of the application no. 46871/07 inadmissible;\n\n3.  Holds that these complaints disclose a breach of Article 5 § 3 of the Convention concerning the excessive length of pre-trial detention;\n\n4.  Holds that there has been a violation as regards the other complaints raised under well-established case-law of the Court (see appended table);\n\n5.  Holds\n\n(a)  that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.\n\nDone in English, and notified in writing on 22 September 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_769","text":"INTRODUCTION\n\n1.  The case concerns the death of the applicants’ partner and father, shortly after release from prison. It concerns the alleged lack of adequate medical care in prison and the issue of the lack of diligence in the conduct of domestic proceedings instituted by the applicants in that regard.\n\nTHE FACTS\n\n2.  The applicants, a mother and two daughters, were born in 1981, 2005 and 2006 respectively and live in Warsaw. They had been granted legal aid and were represented by Ms M. Gąsiorowska, a lawyer practising in Warsaw.\n\n3.  The Government were represented by their Agent, Mrs J. Chrzanowska, and subsequently by Mr J. Sobczak, of the Ministry of Foreign Affairs.\n\n4.  The facts of the case, as submitted by the parties, may be summarised as follows.\n\nBackground to the case\n\n5.  The first applicant, her partner J.F. and the second and third applicants lived in Spain and only occasionally returned to Poland. One such occasion was in December 2008.\n\n5.  The first applicant, her partner J.F. and the second and third applicants lived in Spain and only occasionally returned to Poland. One such occasion was in December 2008.\n\n6.  On 7 January 2009 J.F. went to the local police station in relation to a summons that he had received. On the same date he was detained pursuant to a wanted notice issued by the Warsaw District Court in order to serve a fortyday prison sentence for failing to pay a fine imposed on him (zastępcza kara pozbawienia wolności). J.F. signed a record of the arrest in which it was stated that he was healthy and had no visible injuries. He was placed in Warsaw-Grochów Remand Centre, where he remained until 15 January 2009.\n\nMedical care provided to J.F. in detention\n\nMedical care provided to J.F. in detention\n\n7.  On 7 January 2009 J.F. began serving a forty-day prison sentence in Warsaw-Grochów Remand Centre. On his arrival he confirmed that he had been a cocaine user and was a heavy drinker. He also stated that he had high blood pressure but had not recently received treatment for it. It was further noted that he was 175cm tall and weighing 140kg.\n\n7.  On 7 January 2009 J.F. began serving a forty-day prison sentence in Warsaw-Grochów Remand Centre. On his arrival he confirmed that he had been a cocaine user and was a heavy drinker. He also stated that he had high blood pressure but had not recently received treatment for it. It was further noted that he was 175cm tall and weighing 140kg.\n\n8.  During a medical examination carried out on the same day, he confirmed that he had received treatment for diabetes, and had had two heart attacks. The prison doctor noted in his medical records: “no ailments; drug addiction since ten years; was not beaten; does not report any surgeries; treats hypertension with Prestarium; obesity; no significant changes during a [medical] examination”. He further prescribed him medicine in order to lower his blood pressure and ordered a consultation with a specialist in internal medicine.\n\n8.  During a medical examination carried out on the same day, he confirmed that he had received treatment for diabetes, and had had two heart attacks. The prison doctor noted in his medical records: “no ailments; drug addiction since ten years; was not beaten; does not report any surgeries; treats hypertension with Prestarium; obesity; no significant changes during a [medical] examination”. He further prescribed him medicine in order to lower his blood pressure and ordered a consultation with a specialist in internal medicine.\n\n9.  On 12 January 2009 J.F. had a chest X-ray, which showed that his heart was enlarged and that he had pulmonary hypertension and symptoms of venous stasis. The radiologist who performed the chest X-ray recommended that J.F. consult a specialist in internal medicine.\n\n10.  On 13 January 2009, during a consultation with a psychologist, J.F. said that he was sleeping and eating reasonably well.\n\n10.  On 13 January 2009, during a consultation with a psychologist, J.F. said that he was sleeping and eating reasonably well.\n\n11.  On 14 January 2009 J.F. informed the nurse that he had sleeping problems and slept during the day. On the same day he was examined by the prison doctor, who noted that his breathing and circulation were fine. His blood pressure was 145/80 and he had a heart rate of 70.\n\n11.  On 14 January 2009 J.F. informed the nurse that he had sleeping problems and slept during the day. On the same day he was examined by the prison doctor, who noted that his breathing and circulation were fine. His blood pressure was 145/80 and he had a heart rate of 70.\n\n12.  On 15 January 2009 the nurse informed the prison doctor of J.F.’s worsening state of health. On the same day he was taken to the emergency department of the Central Clinical Hospital of the Ministry of the Interior and Administration in Warsaw (Oddział Ratunkowy Centralnego Szpitala Klinicznego MSWiA) (“the Clinical Hospital”), where examinations were carried out; he was then transferred to the Institute of Cardiology in Anin. An aneurysm was found in his thoracic aorta. On the same day he urgently underwent surgery.\n\n12.  On 15 January 2009 the nurse informed the prison doctor of J.F.’s worsening state of health. On the same day he was taken to the emergency department of the Central Clinical Hospital of the Ministry of the Interior and Administration in Warsaw (Oddział Ratunkowy Centralnego Szpitala Klinicznego MSWiA) (“the Clinical Hospital”), where examinations were carried out; he was then transferred to the Institute of Cardiology in Anin. An aneurysm was found in his thoracic aorta. On the same day he urgently underwent surgery.\n\n13.  On 16 January 2009 the Warsaw District Court released J.F. from pre-trial detention on health grounds. On the same date the Warsaw Regional Court granted him leave from serving his sentence (przerwa w odbywaniu kary) and ordered his immediate release. The courts noted that J.F. was in intensive care, on circulatory and respiratory support, and that his medical prognosis was uncertain.\n\n14.  On 17 January 2009 J.F. regained consciousness. As he was suffering from respiratory insufficiency, he was put on a ventilator.\n\n14.  On 17 January 2009 J.F. regained consciousness. As he was suffering from respiratory insufficiency, he was put on a ventilator.\n\n15.  On 22 January 2009 he underwent further surgery. However, he was still suffering from renal and cardiac insufficiency. On 25 January 2009 he died at the Institute of Cardiology.\n\nCivil proceedings for compensation\n\nCivil proceedings for compensation\n\n16.  On 16 December 2009 the applicants lodged a civil action for compensation and an annuity from the State Treasury by bringing a claim against the Director General of the Prison Service. They complained that J.F. had died in custody on 25 January 2009 as a result of inadequate and belated medical assistance and inadequate conditions of detention. They further noted that given his general state of health, he should not have been detained.\n\n16.  On 16 December 2009 the applicants lodged a civil action for compensation and an annuity from the State Treasury by bringing a claim against the Director General of the Prison Service. They complained that J.F. had died in custody on 25 January 2009 as a result of inadequate and belated medical assistance and inadequate conditions of detention. They further noted that given his general state of health, he should not have been detained.\n\n17.  During the proceedings, the Warsaw Regional Court ordered an expert opinion. The expert (a specialist in internal medicine) stated in his opinion of 30 January 2013 that the information on J.F.’s state of health included in his medical records from Warsaw-Grochów Remand Centre was scarce. The records did not contain any information about J.F.’s condition before his arrival at the Remand Centre. There was no medical documentation confirming that he had had two heart attacks and had been diagnosed with diabetes. The expert confirmed that J.F. had clearly been treated for hypertension. In his view, the condition suffered by him – an aneurysm and consequently aortic dissection – could have been caused by many years of inaptly treated chronic hypertension and using cocaine.\n\n17.  During the proceedings, the Warsaw Regional Court ordered an expert opinion. The expert (a specialist in internal medicine) stated in his opinion of 30 January 2013 that the information on J.F.’s state of health included in his medical records from Warsaw-Grochów Remand Centre was scarce. The records did not contain any information about J.F.’s condition before his arrival at the Remand Centre. There was no medical documentation confirming that he had had two heart attacks and had been diagnosed with diabetes. The expert confirmed that J.F. had clearly been treated for hypertension. In his view, the condition suffered by him – an aneurysm and consequently aortic dissection – could have been caused by many years of inaptly treated chronic hypertension and using cocaine.\n\n18.  The expert concluded that it was not possible to assess the quality of the medical care provided to J.F. in prison on the basis of his medical records. There was no information on whether he had received and taken any medication, or about the monitoring of his arterial hypertension. There was no indication if he had reported the deterioration of his state of health or whether his transfer to the emergency department of the Clinical Hospital had resulted from a sudden deterioration in his health or whether it had been a consequence of the chest X-ray conducted on 12 January 2009.\n\n18.  The expert concluded that it was not possible to assess the quality of the medical care provided to J.F. in prison on the basis of his medical records. There was no information on whether he had received and taken any medication, or about the monitoring of his arterial hypertension. There was no indication if he had reported the deterioration of his state of health or whether his transfer to the emergency department of the Clinical Hospital had resulted from a sudden deterioration in his health or whether it had been a consequence of the chest X-ray conducted on 12 January 2009.\n\n19.  On 28 August 2014 the expert submitted a supplementary opinion. On the basis of medical records from Costa Del Sol Hospital in Spain, the expert confirmed that J.F. had been treated for hypertension and dilated cardiomyopathy, a condition most often caused by excessive drinking. The expert also reiterated that it was impossible to determine J.F.’s state of health during the first days of his detention, given the scarce prison medical records. Most probably, J.F. had not consulted the prison doctor as he had not complained of any specific health issues.\n\n19.  On 28 August 2014 the expert submitted a supplementary opinion. On the basis of medical records from Costa Del Sol Hospital in Spain, the expert confirmed that J.F. had been treated for hypertension and dilated cardiomyopathy, a condition most often caused by excessive drinking. The expert also reiterated that it was impossible to determine J.F.’s state of health during the first days of his detention, given the scarce prison medical records. Most probably, J.F. had not consulted the prison doctor as he had not complained of any specific health issues.\n\n20.  The Warsaw Regional Court also heard evidence from a number of witnesses, including J.M., who had been J.F.’s cellmate. He stated that J.F.’s health had steadily worsened and that he had probably only been given vitamins. He also stated that there had been overcrowding and inadequate living conditions in Warsaw-Grochów Remand Centre. However, according to the court, the credibility of the statements given by J.M. was not supported by any other evidence.\n\n20.  The Warsaw Regional Court also heard evidence from a number of witnesses, including J.M., who had been J.F.’s cellmate. He stated that J.F.’s health had steadily worsened and that he had probably only been given vitamins. He also stated that there had been overcrowding and inadequate living conditions in Warsaw-Grochów Remand Centre. However, according to the court, the credibility of the statements given by J.M. was not supported by any other evidence.\n\n21.  On 30 March 2015 the Warsaw Regional Court gave judgment and dismissed the applicants’ claim. The court found that there had been no medical negligence in the case concerned. It held, referring to the expert’s opinion that, J.F.’s heart had been damaged as a consequence of his lifestyle and inaptly treated diabetes and hypertension. As confirmed by the medical records from the Spanish hospital, J.F. had taken his medication irregularly, had been a heavy drinker and a smoker. In the expert’s opinion, J.F.’s death could have happened outside the prison facility as the aortic aneurysm had occurred suddenly. Previous heart examinations had not disclosed this condition. In any event, given the patient’s obesity, diagnostic had been very difficult.\n\n22.  The court dismissed the applicants’ claim under Article 445 of the Civil Code (for the protection of J.F.’s personal rights) on the grounds that they had no legal standing. Under that provision, a claim for compensation passed to the heirs only if it had been acknowledged in writing or if the court action was brought when the party was still alive. The court noted that, under Article 446 § 3 of the Civil Code, relatives of a deceased could be awarded appropriate compensation if their situation had significantly deteriorated as a result of the person’s death. However, in the present case, as the State Treasury could not be held responsible for J.F.’s death, compensation could not be awarded.\n\n23.  The court established that J.F. had received adequate medical care in the Remand Centre. He had been examined by a doctor on his arrival, and shortly afterwards had undergone an X-ray examination. Every day a nurse had come to give him medication for his hypertension. Moreover, at the time of his arrival J.F. had not informed the prison authorities of any pains or other health issues which would have been incompatible with his detention. He had not had any medication or medical documentation on him. The court considered that J.F.’s illness had not been caused by the conditions of his detention. There was therefore no causal link between his death and the conditions of detention.\n\n24.  The applicants appealed against this judgment. In their appeal, they submitted that the first-instance court had not justified why it had disregarded the statements given by J.M. They also claimed that the Regional Court had not analysed the actions taken by WarsawGrochów Remand Centre in detail and had considered uncritically that the checkups done in the prison facility had been appropriate. Lastly, they were of the view that the first-instance court had violated the provisions of the Convention by finding that the State Treasury could not be held responsible for J.F.’s death.\n\n24.  The applicants appealed against this judgment. In their appeal, they submitted that the first-instance court had not justified why it had disregarded the statements given by J.M. They also claimed that the Regional Court had not analysed the actions taken by WarsawGrochów Remand Centre in detail and had considered uncritically that the checkups done in the prison facility had been appropriate. Lastly, they were of the view that the first-instance court had violated the provisions of the Convention by finding that the State Treasury could not be held responsible for J.F.’s death.\n\n25.  On 7 October 2016 the Warsaw Court of Appeal dismissed the applicants’ appeal. The court agreed in principle with the Regional Court’s findings of fact and conclusions. It further held that the acts of the medical staff in the prison facility fell under the State’s liability in tort. Nevertheless, in the case concerned those acts had been conducted in accordance with the law and the applicants had not proven a causal link between them and J.F.’s death. In particular, as established by the expert, there had been no irregularities in the course of his medical diagnosis and treatment. It had not been shown that an earlier chest X-ray would have enabled detection of the aneurysm. The judgment was final as a cassation appeal was not available.\n\nCriminal proceedings\n\nCriminal proceedings\n\n26.  On 21 October 2009 the applicants lodged a criminal complaint with the Minister of the Interior complaining about J.F’s arrest on 7 January 2009. They submitted that since J.F. had been of poor health, had suffered from a serious heart condition and had had two heart attacks, he should not have been detained and sent to prison on that date.\n\n26.  On 21 October 2009 the applicants lodged a criminal complaint with the Minister of the Interior complaining about J.F’s arrest on 7 January 2009. They submitted that since J.F. had been of poor health, had suffered from a serious heart condition and had had two heart attacks, he should not have been detained and sent to prison on that date.\n\n27.  On 11 December 2019 the Warsaw District Prosecutor refused to open an investigation. The prosecutor noted that at the time of his arrest J.F. had not complained of any health problems or had any injuries. Moreover, the arrest had been ordered in accordance with the law. On the date of his arrest J.F. had been transferred to the Remand Centre. According to the record of the arrest drawn on the same day J.F. had not informed the police officers of any health issues.\n\n28.  This decision was served on the applicants on 21 December 2009. They did not lodge an appeal within the prescribed timelimit of seven days.\n\nRELEVANT LEGAL FRAMEWORK AND PRACTICE\n\nCivil Code\n\n29.  Articles 415 et seq. of the Civil Code provide for liability in tort. Under these provisions, whoever by his or her fault causes damage to another person is obliged to redress it.\n\n30.  Article 444 provides that, in cases of bodily injury or harm to health, a perpetrator will be liable to cover all pecuniary damage resulting from such acts.\n\n31.  Article 445 § 1, which is applicable in the event that a person suffers a physical injury or health disorder as a result of an unlawful act or omission on the part of a State agent, reads as follows:\n\n“... the court may award the injured person an adequate sum in pecuniary compensation for the damage suffered.”\n\n32.  Under Article 446 § 3, a civil court may award an appropriate level of compensation to relatives of a deceased if their situation has significantly deteriorated as a result of the person’s death.\n\nMedical care in prison\n\n33.  The provisions pertaining to medical care in detention facilities and the relevant domestic law and practice are set out in the Court’s judgments in the cases of Sławomir Musial v. Poland (no. 28300/06, §§ 4861, 20 January 2009) and Kaprykowski v. Poland (no. 23052/05, §§ 3639, 3 February 2009). In particular, Article 115 of the Code of Execution of Criminal Sentences (Kodeks karny wykonawczy) (“the Code”) provides:\n\n“1.  A sentenced person shall receive medical care, medication and sanitary items free of charge.\n\n...\n\n4.  Medical care is provided, primarily, by healthcare establishments for persons serving prison sentences.\n\n5.  Healthcare establishments outside the prison system shall cooperate with the prison medical services in providing medical care to sentenced persons if necessary, in particular:\n\n(1)  to provide immediate medical care because of a risk to the life or health of a sentenced person;\n\n(2)  to provide specialist medical examinations, treatment or rehabilitation to a sentenced person;\n\n(3)  to provide medical services to a sentenced person who has been granted prison leave or a temporary break in ... the sentence ...”\n\n34.  At the material time, specific rules relating to the provision of medical services to detainees were set out in the Ordinance of 31 October 2003 on the detailed rules, scope and procedure relating to the provision of medical services to persons in confinement by healthcare establishments for persons deprived of liberty, issued by the Minister of Justice (Rozporządzenie Ministra Sprawiedliwości w sprawie szczegółowych zasad, zakresu i trybu udzielania świadczeń zdrowotnych osobom pozbawionym wolności przez zakłady opieki zdrowotnej dla osób pozbawionych wolności).\n\n34.  At the material time, specific rules relating to the provision of medical services to detainees were set out in the Ordinance of 31 October 2003 on the detailed rules, scope and procedure relating to the provision of medical services to persons in confinement by healthcare establishments for persons deprived of liberty, issued by the Minister of Justice (Rozporządzenie Ministra Sprawiedliwości w sprawie szczegółowych zasad, zakresu i trybu udzielania świadczeń zdrowotnych osobom pozbawionym wolności przez zakłady opieki zdrowotnej dla osób pozbawionych wolności).\n\n35.  A person deprived of his or her liberty was subjected to preliminary and periodic medical examinations and check-ups (section 2), and had to undergo preliminary medical examinations, such as a review of his or her medical history and a physical examination as soon as he or she arrived at a detention facility (section 3). Moreover, within fourteen days of arrival a person deprived of his or her liberty had to have a chest Xray and a dental examination.\n\nTHE LAW\n\nALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION\n\nALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION\n\n36.  The applicants complained under Article 2 of the Convention that the authorities had failed to provide J.F., their partner and father, with adequate medical care while in detention. They also complained, under the same provision, that the judicial proceedings instituted by them in that regard, had not been effective. The relevant part of Article 2 of the Convention provides as follows:\n\n“1.  Everyone’s right to life shall be protected by law...”\n\nAdmissibility\n\nExhaustion of domestic remedies\n\n37.  The Government submitted firstly that the applicants had failed to exhaust the available domestic remedies. In particular, they had not lodged a criminal complaint against the prison medical staff involved in J.F.’s treatment, alleging inadequate medical care. The complaint lodged with the Minister of the Interior had only concerned his arrest and, in any event, they had not appealed against the prosecutor’s decision refusing to open an investigation.\n\n38.  The applicants argued that they had availed themselves of the opportunity to seek redress under the relevant provisions of the Civil Code. In their view, a civil action for damages had been an appropriate remedy as it had covered all issues relating to the alleged lack of adequate medical care in prison in their case.\n\n39.  The Court observes that the Polish legal system provides, in principle, two avenues of recourse for victims alleging illegal acts attributable to the State or its agents, namely civil proceedings and a request to the prosecutor to open a criminal investigation. The applicants initially lodged a criminal complaint relating to the alleged irregularities at the time of J.F.’s arrest but eventually chose to bring a civil action for compensation (see paragraphs 16 and 26 above).\n\n40.  The Court notes that the decision to institute civil proceedings in the present case does not appear unreasonable. J.F. died ten days after his release from detention (see paragraphs 13 and 15 above). Therefore, at the time of his death he was not in custody and the authorities were under no obligation to open, of their own motion, an official probe in order to establish whether medical negligence might have been at stake (see, conversely, Makharadze and Sikharulidze v. Georgia, no. 35254/07, 87, 22 November 2011).\n\n41.  The civil proceedings instituted by the applicants, if successful, could have led to the establishment of the extent of liability for the death of the applicants’ partner and father and the award of appropriate redress (compare Kudra v. Croatia, no. 13904/07, § 95, 18 December 2012). In these circumstances, the fact that the applicants did not lodge a criminal complaint relating to the allegedly inadequate medical care provided to J.F. in prison cannot be held against them when assessing whether they exhausted domestic remedies. The Court reiterates in this connection that in the event of there being a number of domestic remedies which can be pursued, the person concerned is entitled to choose, in order to satisfy the requirement of exhaustion of domestic remedies, a remedy which addresses his or her essential grievance. In other words, when one remedy has been pursued, the use of another remedy which has essentially the same objective is not required (see Nicolae Virgiliu Tănase v. Romania [GC], no. 41720/13, § 177, 25 June 2019).\n\n42.  In the light of the above considerations, the Court holds that the Government’s objection on the grounds of non-exhaustion of domestic remedies must be dismissed.\n\nAbuse of the right of application\n\n43.  The Government secondly argued that the application was inadmissible for abuse of the right of application. They submitted that the applicants had attempted to mislead the Court by claiming that no criminal proceedings had been instituted in the present case. The Government stressed that the applicants’ representative stated in her letter to the Court of 20 February 2017 that “the [first] applicant [had] not instituted criminal proceedings as civil proceedings [had been] an adequate remedy in her and her daughters’ situation”.\n\n44.  The Court reiterates in that regard that an application may only be rejected as an abuse of process in extraordinary circumstances, in particular, when it is knowingly based on untrue facts, or when incomplete and thus misleading information concerning the very core of the case has been submitted to the Court (see Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014).\n\n45.  The Court finds that it would have been appropriate for the applicants to inform it of their criminal complaint as pointed out by the Government. However, those proceedings do not concern the core issue of the instant case, namely the failure of the domestic authorities to provide J.F. with adequate medical care while in detention and the lack of diligence in the conduct of the domestic proceedings (see paragraph 36 above). The applicants’ criminal complaint related only to J.F’s arrest on 7 January 2009 and the irregularities which had allegedly occurred on that day (see paragraph 26 above).\n\n46.  Having regard to its case-law and the above considerations, the Court finds that the fact that in the present case the applicants did not submit information about their criminal complaint cannot be considered to constitute an abuse of the right of application within the meaning of Article 35 § 3 (a) of the Convention.\n\n47.  It follows that the Government’s objection as to the alleged abuse of the right of petition must be dismissed.\n\nConclusion\n\n48.  It follows that the application is neither manifestly illfounded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.\n\nMerits\n\nThe substantive aspect\n\nThe parties’ submissions\n\nThe parties’ submissions\n\n49.  The applicants argued that the domestic authorities had not provided J.F. with adequate medical care in prison. They stressed that it was undisputable that he had been a cocaine user and a heavy drinker, and that prior to his detention he had had two heart attacks. Despite the fact that he had been ill, he had been sent to prison in order to serve a fortyday sentence. They noted that he had not undergone a chest X-ray until several days later. In the applicants’ view, given J.F.’s general state of health, this examination should have been carried out immediately after his arrest.\n\n50.  Moreover, they stressed that on 15 January 2009, when his condition had worsened, J.F. had been transferred between hospitals – from the Remand Centre to the Clinical Hospital and eventually to the Institute of Cardiology, which had had a further serious impact on his health.\n\n51.  Lastly, the applicants stressed that the medical records relating to J.F.’s treatment in prison were scarce and lacked important information. In that regard, they referred to the expert’s opinion of 30 January 2013 and the conclusions reached therein. In particular, they noted that it was unclear whether J.F. had received any medication in prison and whether his blood pressure had been regularly monitored.\n\n52.  The Government submitted that the domestic authorities had taken all available measures in order to protect J.F.’s life and provide him with adequate healthcare during the whole period of his imprisonment. Immediately after his arrest he had been consulted by a doctor, had had a chest Xray and had been prescribed blood pressure medication. He had been visited by a nurse every day. After complaining of not being able to sleep at night, he had been urgently examined by a prison doctor, outside the doctor’s working hours.\n\n53.  They further stressed that J.F.’s death had not been the result of the actions or negligence of the prison staff or prison medical staff but had occurred suddenly on account of his generally poor state of health (obesity and untreated hypertension). Moreover, as soon as J.F.’s health had deteriorated he had been immediately provided with medical assistance and had had two operations at one of the best cardiology hospitals in Poland  the Institute of Cardiology in Anin.\n\n53.  They further stressed that J.F.’s death had not been the result of the actions or negligence of the prison staff or prison medical staff but had occurred suddenly on account of his generally poor state of health (obesity and untreated hypertension). Moreover, as soon as J.F.’s health had deteriorated he had been immediately provided with medical assistance and had had two operations at one of the best cardiology hospitals in Poland  the Institute of Cardiology in Anin.\n\n54.  Lastly, the Government stressed that at the time of his death on 25 January 2009, J.F. had not been in detention, it having been revoked on 16 January 2009. Consequently, the responsibility of the State authorities could not be engaged in this regard.\n\nThe Court’s assessment\n\n55.  The Court reiterates that the first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports of Judgments and Decisions 1998-III, and Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, § 29, 19 December 2017).\n\n56.  Those principles apply in the public-health sphere too. The aforementioned positive obligations therefore require States to make regulations compelling hospitals, whether public or private, to adopt appropriate measures for the protection of their patients’ lives. They also require an effective independent judicial system to be set up so that the cause of death of patients in the care of the medical profession, whether in the public or the private sector, can be determined and those responsible made accountable (see Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 49, ECHR 2002I with further references, and Fernandes de Oliveira v. Portugal [GC], no. 78103/14, § 105, 31 January 2019).\n\n57.  In the context of prisoners, the Court has had previous occasion to emphasise that persons in custody are in a vulnerable position and the authorities are under a duty to protect their health and wellbeing (see Naumenko v. Ukraine, no. 42023/98, § 112, 10 February 2004, and Dzieciak v. Poland, no. 77766/01, § 91, 9 December 2008). This implies an obligation on the authorities to provide detainees with the medical care necessary to safeguard their life (see Taïs v. France, no. 39922/03, § 98, 1 June 2006, and Huylu v. Turkey, no. 52955/99, § 58, 16 November 2006). A sharp deterioration in a person’s state of health in detention facilities inevitably raises serious doubts as to the adequacy of medical treatment there. Thus, where a detainee dies as a result of a health problem, the State must offer a reasonable explanation as to the cause of death and the treatment administered to the person concerned prior to his or her death (see Makharadze and Sikharulidze, cited above §§ 71-72, and the cases cited therein).\n\n58.  The Court notes that from his arrest on 7 January 2009 until his release on 16 January 2009 (shortly before his death) J.F. was in the custody of the authorities, and in circumstances that could engage their responsibility. In this regard the Government submitted that since J.F. had died after his detention had been revoked the responsibility of State could not be engaged (see paragraph 54 above). The Court observes that at the time of his admission to prison J.F. was in a generally good condition (see paragraph 8 above). However, on his release he was in intensive care, on circulatory and respiratory support and his medical prognosis was uncertain (see paragraph 13 above). He died several days later and the applicants alleged that absence of proper medical care in detention had led to his death (see paragraph 49 above). Moreover, while the domestic authorities found that the applicants had not proven a causal link between the allegedly inadequate medical care in detention and J.F.’s death they confirmed that the acts of medical staff in prison had fallen under the State’s liability in tort (see paragraph 25 above).\n\n59.  It is further not disputed that J.F. suffered from hypertension, was significantly overweight and that prior to his detention had two heart attacks (see paragraphs 8 and 49 above). The Government did not deny that the authorities had been aware of these facts. In order to establish whether or not the respondent State complied with its obligation to protect J.F’s life under Article 2 of the Convention, the Court must examine whether the relevant domestic authorities did everything that could have been required of them, in good faith and in a timely manner, to try to avert a fatal outcome (see Makharadze and Sikharulidze, cited above, § 74 and Rudevits v. Latvia (dec.), no. 47590/06, §48, 26 June 2012).The Court will thus examine whether the medical treatment received in detention by the applicants’ relative was timely and adequate (see Tarariyeva v. Russia, no. 4353/03, §§ 77-89, ECHR 2006XV (extracts) and compare Salakhov and Islyamova v. Ukraine, no. 28005/08, § 166, 14 March 2013).\n\n60.  The Court observes that at the time of his arrival at WarsawGrochów Remand Centre J.F. informed the authorities that he suffered from hypertension, was a heavy drinker, had been a cocaine user, had received treatment for diabetes and had had two heart attacks (see paragraphs 7 and 8 above).\n\n61.  The Court further notes that on 12 January 2009, within several days of his arrival, J.F. underwent an X-ray examination (see paragraph 9 above). The applicants argued that given his poor state of health, this examination had been carried out too late. However, the Court does not consider the waiting period of five days for an X-ray examination to be exceptionally long. It notes in that regard that, under the relevant domestic provisions, a detainee should undergo an X-ray examination within fourteen days of arriving at prison (see paragraph 35 above). There is no information in the medical records to suggest that J.F. had submitted any complaints about his health before the date of his examination. Consequently, in the circumstances of the present case, it does not appear that the Xray examination should have been carried out earlier. Moreover, as established by the domestic courts it had not been demonstrated that an earlier Xray examination would have enabled detection of the aneurysm (see paragraph 25 above).\n\n62.  As regards the question whether J.F.’s transfer to a civilian hospital was sufficiently prompt, the Court observes that on 12 January 2009 it was recommended that he consult a specialist in internal medicine. Subsequently, on 14 January 2009 he was examined by a prison doctor, who noted that his condition had not changed (see paragraphs 9 and 11 above). However, the following day, when J.F.’s condition worsened, he was immediately transferred, firstly to the emergency department of the Clinical Hospital in order to undergo examinations and then to a specialist hospital  the Institute of Cardiology in Anin (see paragraph 12 above). The material in the case file contains nothing to indicate that J.F. himself asked for his transfer to be expedited, or that there were any objective reasons to do so. There is no basis to conclude that the doctors misjudged or disregarded the extent of the deterioration in his health. In his opinion of 30 January 2013, the expert concluded that, given the incomplete medical records, it was not possible to establish whether J.F.’s transfer to the emergency department had resulted from a sudden deterioration of his health or from the analysis of the chest X-ray carried out on 12 January 2009 (see paragraph 18 above). In view of the above, the Court cannot speculate as to whether an earlier transfer to a civilian hospital would have prevented J.F.’s death.\n\n63.  Having regard to the above considerations, the Court does not find any manifest omission on the part of the domestic authorities allowing a finding that J.F. was not provided with adequate medical care in prison.\n\n64.  Accordingly, there has been no violation of Article 2 of the Convention in its substantive aspect.\n\nThe procedural aspect\n\nThe parties’ submissions\n\n65.  The applicants submitted that the civil proceedings instituted by them concerning the lack of adequate medical care provided to J.F. had not been effective. They confirmed that they had not pursued the criminal proceedings resulting from their complaint concerning the irregularities at the time of J.F.’s arrest. In their view, civil proceedings had been an appropriate remedy in the circumstances of their case.\n\n66.  The Government contended that the civil proceedings in the present case, as well as the criminal proceedings, had been effective within the meaning of Article 2 of the Convention. They had been adequate, thorough, impartial, independent and prompt and there had been a sufficient element of public scrutiny. All facts concerning the medical care provided to J.F. had been examined and an expert opinion had been obtained. Consequently, there had been no violation of Article 2 of the Convention in its procedural aspect.\n\nThe Court’s assessment\n\n67.  The Court has held on many occasions that where lives have been lost in circumstances potentially engaging the responsibility of the State, Article 2 entails a duty for the State to ensure, by all means at its disposal, an adequate investigative response, judicial or otherwise. The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability (see Calvelli and Ciglio, cited above, § 49 and Öneryıldız v. Turkey [GC], no. , § 91, ECHR 2004XII).\n\n68.  The Court, however, reiterates that in cases where the infringement of the right to life or to personal integrity was not caused intentionally, the procedural obligation imposed by the Convention to set up an effective and independent judicial system does not necessarily require the provision of a criminal law remedy. The choice of means for ensuring the positive obligations under the Convention is in principle a matter that falls within the Contracting State’s margin of appreciation. There are different avenues for ensuring Convention rights, and even if the State has failed to apply one particular measure provided by domestic law, it may still fulfil its positive duty by other means. However, for this obligation to be satisfied, such proceedings must not only exist in theory but also operate effectively in practice (see, Calvelli and Ciglio, cited above, § 51; Byrzykowski v. Poland, no. 11562/05, § 105, 27 June 2006, and Lopes de Sousa Fernandes, cited above, §§ 21216 with further references).\n\n69.  A requirement of promptness and reasonable expedition is implicit in the context of the effectiveness of the domestic proceedings set up to elucidate the circumstances of the patient’s death. Even where there may be obstacles or difficulties which prevent progress in an investigation or a trial in a particular situation, a prompt response by the authorities is vital in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in, or tolerance of, unlawful acts (see Kudra v. Croatia, no. 13904/07, § 105, 18 December 2012).\n\n70.  The Court notes that the present case concerns the death of the applicants’ partner and father, nine days after his release from detention. It further observes that J.F’s health seriously deteriorated in detention and the applicants alleged that his death had resulted from the lack of prompt and adequate medical care provided to him in prison. The Government did not challenge the applicability of Article 2 of the Convention in the present case.\n\n71.  In such circumstances, given the fundamental importance of the right to life guaranteed under Article 2 of the Convention and the particular weight the Court has attached to the procedural requirement under this provision, it must determine whether the domestic system provided an appropriate remedy which satisfied all of the guarantees required by the Convention (see Powell v. the United Kingdom (dec.), no. 45305/99, 4 May 2000).\n\n72.  In that connection, the Court firstly notes that J.F. died in January 2009 and that the applicants lodged their civil action concerning his death on 16 December 2009. On 30 March 2015 the Warsaw Regional Court dismissed their claim. The proceedings came to an end on 7 October 2016 when the Warsaw Court of Appeal adopted its judgment.\n\n73.  During the proceedings, the prison medical staff who had been involved in treating J.F. were heard. Statements were taken from J.F.’s fellow inmates and prison staff. The courts also obtained J.F.’s medical records and an expert opinion was prepared (see paragraphs 17, 19 and 20 above).\n\n74.  The Court observes that the applicants did not challenge the independence and impartiality of the domestic authorities. The first applicant had the opportunity to participate in the proceedings and availed herself of her procedural rights. It remains to be ascertained whether the proceedings were effective in terms of being thorough and concluded within a reasonable time (see Lopes de Sousa Fernandes, cited above § 226).\n\n75.  The Court notes that in the present case the civil proceedings lasted a total of nearly seven years (see paragraphs 16, 21 and 25 above). It took the first-instance court more than five years to deliver a judgment on the merits and the court of second instance another fifteen months to examine the applicants’ appeal. Admittedly, the determination of the question whether J.F. received adequate medical care in the Remand Centre required special knowledge in the field of medicine. At the same time no explanation has been given why the expert’s opinion was submitted to the Regional Court three years after the institution of the proceedings (see paragraphs 16 and 17 above). Furthermore, a supplementary expert opinion was only submitted a year and seven months later (see paragraph 18 above).\n\n76.  The Court reiterates in that connection that in Article 2 cases concerning proceedings instituted to elucidate the circumstances of an individual’s death, delays such as these are a strong indication that the proceedings were defective to the point of constituting a violation of the respondent State’s positive obligations under the Convention, unless the State has provided highly convincing and plausible reasons to justify such a course of proceedings (see Kudra, cited above, § 113; Bilbija and Blažević v. Croatia, no. 62870/13, § 107, 12 January 2016, and Lopes de Sousa Fernandes, cited above, § 219). However, in the present case, the Government merely stated that the proceedings had been prompt, but failed to specify any details in that regard and did not provide any convincing and plausible reasons justifying their overall length.\n\n77.  In these circumstances, the Court finds that the relevant mechanisms of the domestic legal system, taken as a whole, did not secure in practice an effective and prompt response on the part of the authorities consistent with the State’s obligations under Article 2 of the Convention.\n\n78.  There has therefore been a violation of Article 2 of the Convention under its procedural limb.\n\nAPPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n79.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nDamage\n\n80.  The applicants claimed 150,000 Polish zlotys (PLN) (approximately 35,000 Euros) in respect of non-pecuniary damage.\n\n81.  The Government argued that the claim was exorbitant and asked the Court to assess the issue of compensation on the basis of its recent caselaw in respect of similar cases.\n\n82.  Taking into account all the circumstances of the present case, the Court accepts that the applicants have suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicants jointly EUR 10,000 in respect of nonpecuniary damage.\n\nCosts and expenses\n\n83.  The applicants, who received legal aid from the Court, did not claim any additional amount for the costs and expenses incurred before the Court.\n\nDefault interest\n\n84.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\nDeclares the application admissible;\n\nHolds that there has been no violation of Article 2 of the Convention in respect of its substantive limb;\n\nHolds that there has been a violation of Article 2 of the Convention in respect of its procedural limb;\n\nHolds\n\nthat the respondent State is to pay the applicants jointly, within three months, EUR 10,000 (ten thousand euros) to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable, in respect of nonpecuniary damage;\n\nthat from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\nDismisses the remainder of the applicants’ claim for just satisfaction.\n\nDone in English, and notified in writing on 3 September 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_555","text":"PROCEDURE\n\n1.  The case originated in an application (no. 60654/00) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four persons of Russian origin, Mrs Svetlana Sisojeva, Mr Arkady Sisojev, Mrs Tatjana Vizule and Miss Aksana Sisojeva (“the applicants”), on 29 August 2000.\n\n2.  The applicants, who had been granted legal aid, were represented by Mr V. Portnov, a lawyer practising in . On 28 November 2006 the latter informed the Court that he would no longer be representing the applicants. The Latvian Government (“the Government”) were represented by their Agent, Mrs I. Reine. The Russian Government, who had exercised their right to intervene under Article 36 § 1 of the Convention, were represented by Mr P. Laptev, representative of the  at the Court.\n\n3.  The applicants alleged, in particular, that the refusal of the Latvian authorities to regularise their stay in Latvia despite their long period of residence in the country amounted to a violation of their right to respect for their private and family life under Article 8 of the Convention.\n\n4.  The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court).\n\nOn 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed First Section (Rule 52 § 1). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.\n\n5.  By a decision of 28 February 2002, the Chamber declared the application admissible with regard to Mrs Svetlana Sisojeva, Mr Arkady Sisojev and Miss Aksana Sisojeva. It rejected Mrs Tatjana Vizule’s complaints as manifestly ill-founded.\n\n6.  By a letter of 11 April 2002, the applicants informed the Court that the first applicant had been questioned by the police on the subject of their application to the Court. The applicants therefore requested the Court to indicate interim measures to the Government under Rule 39. On 30 May 2002 the Chamber decided not to apply Rule 39, but to request the Government to submit their observations as to whether there had been a breach of the last sentence of Article 34 of the Convention.\n\n7.  The applicants and the Government each filed observations on the merits (Rule 59 § 1). The parties replied in writing to each other’s observations. In addition, observations were received from the Russian Government, who had exercised their right to intervene (Article 36 § 1 of the Convention and Rule 44).\n\n8.  A hearing on the merits took place in public in the Human Rights Building, , on 19 September 2002 (Rule 59 § 3). On the same day, the Chamber declared admissible the applicants’ additional complaint based in substance on the last sentence of Article 34 of the Convention.\n\n9.  As the seat of the judge elected in respect of Latvia was vacant, the President of the Chamber invited the Government on 7 October 2004 to indicate whether they wished to appoint to sit as judge either another elected judge or an ad hoc judge who possessed the qualifications required by Article 21 § 1 of the Convention. By a letter of 8 November 2004, the Government appointed Jautrite Briede as ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1).\n\n10.  On 29 March 2005 the President of the Chamber informed the Government of the Court’s decision not to include in the case file the additional observations submitted by fax on 22 March 2005, on the ground that the Government had submitted them to the Court outside the timelimit for submission of written pleadings (Rule 38 § 1).\n\n11.  On 16 June 2005 a Chamber of the First Section, composed of Christos Rozakis, President, Françoise Tulkens, Nina Vajić, Anatoly Kovler, Vladimiro Zagrebelsky and Elisabeth Steiner, judges, Jautrite Briede, ad hoc judge, and Søren Nielsen, Section Registrar, delivered a judgment in which it held as follows: by five votes to two, that the applicants could claim to be “victims” for the purposes of Article 34 of the Convention; by five votes to two, that there had been a violation of Article 8 of the Convention; and by six votes to one, that the respondent Government had not failed to comply with their obligations under Article 34 of the Convention. The Chamber also decided, by five votes to two, to award each of the three applicants 5,000 euros in respect of non-pecuniary damage. The partly dissenting opinion of Judge Kovler and the joint dissenting opinion of Judges Vajić and Briede were annexed to the judgment.\n\n12.  On 16 September 2005 the Government requested that the case be referred to the Grand Chamber under Article 43 of the Convention. On 30 November 2005 a panel of the Grand Chamber granted the request.\n\n13.  The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24. On 3 May 2006 Ireneu Cabral Barreto, substitute judge, replaced Christos Rozakis, who was unable to take part in the further consideration of the case (Rule 24 § 3). In the same manner, on 4 October 2006, Matti Pellonpää, substitute judge, replaced Lucius Caflisch.\n\n14.  A hearing took place in public in the Human Rights Building, , on 24 May 2006 (Rule 59 § 3).\n\nThere appeared before the Court:\n\nThe Court heard addresses by Mr Portnov, Mrs Nilus, Mrs Reine and Mr Laptev.\n\n15.  On 15 June and 4 July 2006 respectively the Latvian Government and the applicants provided written replies to the additional questions asked by some of the judges at the hearing.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n16.  The applicants are a married couple, Svetlana Sisojeva (“the first applicant”) and Arkady Sisojev (“the second applicant”), and their daughter, Aksana Sisojeva (“the third applicant”). They were born in 1949, 1946 and 1978 respectively. The second and third applicants have Russian nationality, while the first applicant has no nationality. All three live in Alūksne ().\n\n17.  The first two applicants entered Latvian territory in 1969 and 1968 respectively, when the territory formed part of the Soviet Union. The second applicant, who was a member of the Soviet armed forces at the time, was stationed in  and remained there until he finished his military service in November 1989. The third applicant and her elder sister, Mrs Tatjana Vizule, were born in Latvian territory.\n\n18.  Following the break-up of the Soviet Union and the restoration of Latvian independence in 1991, the applicants, who had previously been Soviet nationals, became stateless.\n\nIn August 1993 Tatjana married a Latvian national. She is mother to two minor children who have Latvian nationality.\n\nA.  The first set of proceedings, relating to regularisation of the applicants’ stay in\n\n19.  In 1993 the first and second applicants applied to the Latvian Ministry of the Interior’s Nationality and Immigration Department (Iekšlietu ministrijas Pilsonības un imigrācijas departaments – “the Department”) to obtain permanent-resident status and to be entered in the register of residents of the Republic of Latvia (Latvijas Republikas Iedzīvotāju reģistrs). However, on 19 June 1993 the Department issued them with temporary residence permits only.\n\n20.  The first and second applicants then lodged an application with the Alūksne District Court of First Instance, requesting it to direct the Department to enter them in the register of residents as permanent residents. In a judgment delivered on 28 October 2003, which was upheld on 8 December 1993 following an appeal on points of law, the court allowed their application. It considered that under the legislation in force the situation of the second applicant, who had left the army before 4 May 1990 – the date on which  had declared its independence – could not be equated with that of a non-Latvian serviceman temporarily present on Latvian soil, who would be entitled to a temporary residence permit only. The Department subsequently entered all the applicants in the register of residents.\n\nB.  The second set of proceedings, relating to withdrawal of the applicants’ residence permits\n\n21.  In the meantime, in January 1992, the first two applicants had each obtained two former Soviet passports and had therefore been able to have their place of residence registered in Izhevsk (Russia) despite already having a registered place of residence in Latvia (pieraksts or dzīvesvietas reģistrācija). The Department only discovered this fact in 1995.\n\n22.  In two decisions dated 3 November and 1 December 1995, the Alūksne police decided not to institute criminal proceedings against the applicants for using false identity papers. However, the Department imposed an administrative penalty of 25 lati (LVL) (approximately 40 euros (EUR)) on them for breach of the passport regulations. The Department also applied to the Alūksne District Court of First Instance to have the proceedings reopened to consider new facts, alleging fraudulent behaviour on the part of the first two applicants. The Department also noted that the third applicant had followed the example of her parents and sister in 1995, obtaining two passports and having her place of residence registered in both Russia and .\n\n23.  By an order of 28 May 1996, the Alūksne District Court of First Instance, ruling on the application for the proceedings to be reopened, allowed the Department’s application, quashed its own judgment of 28 October 1993 and ordered the removal of the applicants’ names from the register of residents. The first two applicants appealed to the Vidzeme Regional Court which, by an order of 3 June 1997, quashed the decision in question and referred the case back to the Alūksne Court of First Instance.\n\n24.  In 1996 the second and third applicants applied for and obtained Russian nationality. On 8 August 1996 the Russian embassy in Latvia issued them with  passports.\n\nIn March 1998 the third applicant, by now an adult, was joined as a party to the proceedings before the Alūksne Court of First Instance.\n\n25.  By a letter of 15 May 1998, the Tripartite Joint Committee for the implementation of the agreement between the governments of Latvia and the Russian Federation on the social welfare of retired military personnel of the Russian Federation and their family members residing on the territory of the Republic of Latvia (“the Russian-Latvian agreement” – see paragraph 53 below) requested the Ministry of the Interior’s Nationality and Migration Directorate (Iekšlietu ministrijas Pilsonības un migrācijas lietu pārvalde – “the Directorate”), which had replaced the Department, to issue the applicants with permanent residence permits, on the ground that they had the right to remain in Latvia under the above agreement. In a second letter sent the same day, the Committee informed the Alūksne Court of First Instance that the first applicant had neither Russian nor any other nationality.\n\n26.  In July 1998 the applicants submitted a further request to the Court of First Instance. In a joint memorial they argued that, as the second and third applicants had Russian nationality, they had the right to obtain permanent residence permits under the Russian-Latvian agreement. The first applicant, who had no nationality, contended that she was entitled to the status of a “permanently resident noncitizen (nepilsonis)” under the Law on the status of former USSR citizens without Latvian or other citizenship (“the Non-Citizens Act” – see paragraph 47 below).\n\n27.  In court, the applicants made no attempt to deny the actions of which they had been accused by the Department and the Directorate, but maintained that those actions had been in breach only of Russian law and therefore had no effect on their rights in .\n\n28.  In a judgment of 28 July 1998, the Alūksne District Court of First Instance allowed the applicants’ request. It noted that the applicants’ place of residence had been legally registered in Alūksne since 1970 and that they had lived there from then onwards. In the court’s view, since the procuring of second passports by the applicants and their registration in Russia were illegal and void acts, they had no impact on the applicants’ legal status in . The court also noted that the second applicant was on the list of former members of the Russian armed forces in receipt of a Russian military pension and entitled to remain in . That list had been drawn up jointly by the two governments in accordance with the Russian-Latvian agreement. Consequently, the court held that the first applicant was entitled to apply for a passport as a “permanently resident non-citizen” and that the second and third applicants were entitled to obtain permanent residence permits.\n\n29.  The Directorate appealed against that judgment to the . In a judgment of 15 June 1999, the  dismissed the appeal, endorsing the findings and reasoning of the firstinstance court.\n\n30.  The Directorate then lodged an appeal on points of law with the Senate of the Supreme Court. In a judgment of 15 September 1999, the Senate quashed the ’s judgment and declared it null and void. The Senate found that secretly obtaining two passports and registering places of residence in two different countries, failing to disclose the second passports, and supplying false information to the authorities when applying for regularisation constituted serious breaches of Latvian immigration law. The Senate also referred to section 1(3), sub-paragraph 5, of the NonCitizens Act, which stated that the status of “permanently resident noncitizen” could not be granted to persons who, on 1 July 1992, had their permanent place of residence registered in a member State of the Commonwealth of Independent States (of which Russia is a member). The Senate considered that the provision in question was fully applicable to the applicants’ case.\n\n31.  The Senate also noted that the judgment of the Alūksne Court of First Instance of 28 October 1993 had been subsequently set aside when the proceedings were reopened, thereby depriving the entry of the applicants in the register of residents of any legal basis. It concluded that the second and third applicants, since they did not satisfy the requirements of the Law on aliens and stateless persons (entry and residence) (“the Aliens Act” – see paragraph 50 below), were also not entitled to obtain permanent residence permits. Consequently, the Senate set aside the judgment of 15 June 1999 and referred the case back to the appellate court.\n\n32.  For procedural reasons, the case was transferred to the  which, in a judgment of 10 January 2000, rejected the applicants’ application, reaffirming the reasons given by the Senate. Unlike the Tripartite Joint Committee, the  considered that the first applicant had Russian nationality under the ’s Nationality Act. With regard to the second applicant, it considered that the fact that an individual was on the list of retired army personnel merely attested to the fact that the person concerned actually resided in Latvia and was in receipt of a Russian military pension; it did not in any sense confer entitlement to a residence permit.\n\n33.  In a judgment of 12 April 2000, the Senate of the Supreme Court dismissed an appeal by the applicants on points of law, endorsing in substance the arguments of the .\n\n34.  In two letters dated 17 May and 26 June 2000, the Directorate reminded the applicants that they were required to leave .\n\nC.  The questioning of the first applicant by the security police\n\n35.  On the morning of 6 March 2002, the first applicant, Svetlana Sisojeva, was summoned to the regional headquarters of the security police (Drošības policija). An officer of the security police asked her a number of questions, some of them relating to her application to the Court and to an interview she had given to journalists from a Russian television channel on the subject. In particular, the police asked the first applicant how the Russian journalists had made contact with her, how she had heard about the possibility of lodging an individual application with the Court, how she had found lawyers to represent her before the Court, and how she had known that certain persons had bribed Directorate officials in order to obtain Latvian residence permits. In addition, the police officer asked her several questions about her professional career and about the members of her family.\n\n36.  The dialogue between the first applicant and the police officer, as reconstructed by the applicant and sent to her lawyers on 4 April 2002, ran as follows:\n\n“Police officer: How did the television channel ORT find you?\n\nApplicant: We had had telephone calls in November [and] December. At the time, we had refused to meet them, but journalists are bloodhounds, they always get what they want.\n\nPolice officer: And then?\n\nApplicant: They telephoned from  and said they wanted to meet us and talk to us. I agreed. They wanted to talk to several [people] who had brought cases before the courts.\n\nPolice officer: When did they phone?\n\nApplicant: It was a Saturday night, about 10 p.m. They came round on the Sunday, at about 3.30 p.m. If you want to come round [too], you’re welcome. Our door is always open.\n\nPolice officer: You said that you’d taken the case all the way to the , didn’t you?\n\nApplicant: Yes, I did. There were fourteen sets of proceedings; we fought and fought [again], and eventually we turned to the , because of the people in charge in the [Directorate]. They saw it as a game to get us deported from the country, while we wanted to prove that we were in the right. [Their] attitude towards us was based on prejudice: we hadn’t broken any laws in .\n\nPolice officer: How and where did you find out that you could apply to the ?\n\nApplicant: The issue of our regularisation was discussed several times by the Tripartite Joint Committee. We had approached the Human Rights Committee. We had lawyers. The representatives of the Ministry of the Interior and the [Directorate] had told us at the last meeting that they had no objections to raise or accusations to make as far as we were concerned, and that everything would be fine. Unfortunately, they haven’t kept their promises so far. The Committee advised us to lodge an application with the  about the length of the proceedings if the case wasn’t resolved.\n\nPolice officer: And how did you find those lawyers?\n\nApplicant: With the help of the lawyers in the social welfare office we were registered with.\n\nPolice officer: Perhaps your lawyers threatened you, saying that if you didn’t give information to ORT they would stop working with you?\n\nApplicant: That’s nonsense. They told us not to give information to anyone without their consent, not even to ORT...\n\nPolice officer: You said that over forty people had lodged applications?\n\nApplicant: Yes, I did. Actually, there are even more people involved: I meant that there were forty families. We’ve all been through the courts: some of us once, some twice, and some even three times. A lot of people solved the problem by paying backhanders.\n\nPolice officer: How do you know that?\n\nApplicant: We were all in the same boat and we helped one another. We used to say to one another that if someone had money, it was better for him to pay, to avoid a trial. [The first applicant then gave the example of two families whose status had been regularised after they had bribed Directorate officials; she named one of the officials concerned.]\n\nPolice officer: And why did you not come to us?\n\nApplicant: We didn’t know you could help us.\n\nPolice officer: How did you come by the information that forty people had lodged applications?\n\nApplicant: Actually, the figure is higher. We’ve all had a lot of problems. [The applicant dwelt in detail on five specific cases concerning the regularisation of persons in a similar situation to her own.]\n\nPolice officer: What does your husband think about the case?\n\nApplicant: He supports [me]: what would you do?\n\n[The police officer then asked the applicant a series of questions about her education, her work, her husband’s work and the family’s financial situation.]\n\nPolice officer: Once more, how did you find out that you could take your case to the ?\n\nApplicant: We read the papers, we watch television; the cases of Podkolzina, Kulakova, Slivenko and several other families were reported in the media. We approached the Human Rights Committee, who gave us advice and even offered to [help us] find a lawyer. Strange, isn’t it? It was very hard for us, having to bring a case against Latvia before the , but all the avenues open to us to try and resolve the problem in  had been exhausted. It’s the fault of the [Directorate and its officials], who flout the law and force people to leave . They’re the ones who bring shame on . We haven’t broken any law.\n\nPolice officer: When is the case going to be examined?\n\nApplicant: We don’t know.\n\nPolice officer: What documents have you sent them?\n\nApplicant: The courts’ decisions.”\n\n37.  The Government contested the accuracy of this record, particularly in view of the length of time that had elapsed between the interview itself and the drafting of the document. The first applicant conceded that the document was probably less than perfect, given that it had been drafted from memory almost a month after the fact; she acknowledged that several other questions (which she could not recall) might have been asked during the interview. However, she contended that her record reflected with sufficient accuracy the content and tone of the interview.\n\nD.  The proposals for regularising the applicants’ stay\n\n38.  On 11 November 2003 the Head of the Directorate sent a letter to each of the applicants explaining the procedure to be followed in order to regularise their stay in . The relevant passages of the letter sent to the first applicant (Svetlana Sisojeva) read as follows:\n\n“... The [Directorate] ... would remind you that, in accordance with the principle of proportionality, no order has hitherto been made for your deportation, and that it is open to you to regularise your stay in the Republic of Latvia in accordance with the [country’s] legislation.\n\nUnder sections 1 and 2 of the Status of Stateless Persons Act, persons who are not considered to be nationals of any State under the laws of that State ... and who are legally resident in , may obtain stateless-person status.\n\nYou satisfy the above requirements ...\n\nIn view of the above, the Directorate is prepared to regularise your stay in Latvia by entering your name in the register of residents as a stateless person [resident] in  and by issuing you with an identity document on that basis.\n\nIn order to complete the necessary formalities, you will need to go in person to the Alūksne district office of the Directorate, bringing with you your identity papers, your birth certificate and two photographs ...”\n\n39.  The letters sent to the other two applicants were similar in content. The letter to the second applicant (Arkady Sisojev) stated in particular:\n\n“... If your wife, Mrs Svetlana Sisojeva, avails herself of the opportunity to regularise her stay in the  in accordance with the provisions in force, you will be entitled, under the Immigration Act, to obtain a residence permit. The Directorate is not aware of any reason which would prevent you from applying for and obtaining a residence permit in .\n\nUnder the terms of section 32 of the Immigration Act, only aliens residing in Latvia on the basis of a residence permit may apply to the Directorate for a residence permit ... In other cases, and where such a move accords with international human rights provisions and the interests of the Latvian State, or on humanitarian grounds, the Head of the Directorate may authorise the person concerned to submit the relevant papers to the Directorate in order to apply for a residence permit. As no order has hitherto been made for your deportation, you may submit the relevant papers ... to the Alūksne district office of the Directorate ...\n\n...\n\nIn view of the above, the Directorate is prepared to issue you with a residence permit at your wife’s place of residence, in accordance with section 26 of the Immigration Act, on condition that S. Sisojeva completes the necessary formalities in order to regularise her stay in Latvia as a stateless person, and that she responds to the invitation from the Alūksne office of the Directorate ...”\n\n40.  Lastly, the letter to the third applicant (Aksana Sisojeva) contained the following passages:\n\n“ ... If your mother, Mrs Svetlana Sisojeva, avails herself of the opportunity offered to her and, after completing the necessary formalities, regularises her stay in the  in accordance with the provisions in force, you will be entitled, under the Immigration Act, to obtain a residence permit. The Directorate is not aware of any reason which would prevent you from applying for and obtaining a residence permit in .\n\n...\n\nThe Directorate would further inform you that, in accordance with section 23(3) of the Immigration Act, in cases not provided for by the Act, a temporary residence permit may be issued by the Minister of the Interior, where such a move is in accordance with the provisions of international law. Consequently, you are also entitled to apply to the Minister of the Interior for a residence permit valid for a period longer than that specified in section 23(1), sub-paragraph 1, of the Immigration Act. Furthermore, after a period of residence of ten years on the basis of a temporary residence permit, you may apply for a permanent residence permit in accordance with section 24(1), sub-paragraph 7, of the Immigration Act ...”\n\n41.  In addition, a letter containing the above information concerning the three applicants was sent to the Government’s Agent. On the same date, 11 November 2003, the Head of the Directorate signed three decisions formally regularising the applicants’ status in . More specifically, he ordered that the first applicant be entered in the register of residents as a “stateless person”, that she be issued with an identity document valid for two years, and that the second and third applicants be issued with temporary residence permits valid for one year and six months respectively. However, regularisation of the status of the second and third applicants was contingent upon that of the first applicant. In other words, in order for Arkady Sisojev and Aksana Sisojeva to obtain residence permits, Svetlana Sisojeva first had to submit the relevant documents to the Directorate.\n\nNone of the applicants complied with the instructions outlined above in order to obtain residence permits.\n\n42.  By Decree no. 15 of 22 March 2005, the Cabinet of Ministers (Ministru kabinets) instructed the Minister of the Interior to issue Arkady Sisojev and Aksana Sisojeva with five-year temporary residence permits, “in accordance with section 23(3) of the Immigration Act”. In a letter sent on the same day, the Government informed the Court of the measure, pointing out that, after the five years had elapsed, the two applicants in question could obtain permanent residence permits\n\n43.  On 15 November 2005 the applicants applied to the Directorate to have their stay regularised on the basis they had requested initially, that is, for the first applicant to be granted the status of “permanently resident noncitizen” and for the other two applicants to be issued with permanent residence permits. The Directorate replied on the following day, 16 November 2005. After outlining the background to the case before the domestic courts and in , the Directorate went on:\n\n“ ... On 11 December 2003 you stated that you would not consider the Directorate’s proposals until after the European Court of Human Rights had delivered its judgment.\n\nIn accordance with ... the Status of Stateless Persons Act ... in force at the time, an order was given for Svetlana Sisojeva to be issued with an identity document for stateless persons, and she was told that the authorities were willing to grant her stateless-person status. It was [therefore] open to Mrs Sisojeva to take advantage of that option, but she failed to do so. However, in accordance with the principle of respect for personal rights and the principle of legitimate expectation, the Directorate has not set aside its decision of 11 November 2003 in respect of Svetlana Sisojeva. Consequently, it remains open to her to regularise her stay in  under section 6(1) of the Stateless Persons Act and paragraph 2 of its transitional provisions. Since Svetlana Sisojeva’s entitlement to stateless-person status ... was recognised before the entry into force of that Act, were she to obtain an identity document for stateless persons she would also be issued with a permanent residence permit ... As for Arkady Sisojev and Aksana Sisojeva, they would be entitled, on the same basis, to obtain temporary residence permits.\n\n...\n\nThe Directorate would further point out that, on 22 March 2005, the Cabinet of Ministers ... instructed the Minister of the Interior to issue Arkady Sisojev and Aksana Sisojeva with five-year temporary residence permits, under section 23(3) of the Immigration Act.\n\nIn view of the above, the Directorate would remind you of the possibility of regularising your stay in the Republic of Latvia, on the following basis: Svetlana Sisojeva may obtain stateless-person status and be issued with a permanent residence permit; Arkady Sisojev and Aksana Sisojeva, meanwhile, may apply for and obtain temporary residence permits, in accordance with section 23(3) of the Immigration Act. ...”\n\nThe remainder of the letter explained in detail to each of the applicants the procedure to be followed and the documents to be submitted in order to have their stay regularised, and the tax rates which applied for that purpose. The applicants did not take the steps indicated by the Directorate.\n\n44.  On 2 and 3 November 2005, the relevant official of the border police questioned the applicants, asking them why they had not regularised their stay. Following that conversation, the Commander of the border police requested details from the Head of the Directorate concerning the applicants’ precise status in . By a letter of 22 November 2005, the latter explained that, since 2000, there had been sufficient legal basis for issuing orders for the applicants’ deportation, but that no such orders had been issued on the grounds of proportionality and in view of the proceedings pending before the European Court of Human Rights.\n\nBy a letter of 16 December 2005, the Directorate reminded the applicants once more that they had the possibility of regularising their stay. No reply was forthcoming.\n\n45.  As matters stand, the applicants are resident in  without valid residence permits. According to the information supplied by the applicants, which has not been disputed by the Government, Svetlana Sisojeva has been unemployed since 1992. Arkady Sisojev works as a technician in a municipal communal heating plant in Alūksne; despite being cautioned repeatedly by the authorities, his employer has consistently refused to dismiss him on the sole ground that he is illegally resident in . Aksana Sisojeva, meanwhile, obtained a law degree from the Baltic Russian Institute (Baltijas Krievu institūts) in July 2004. The applicants contend that, owing to her irregular status, she has to date been unable to find work.\n\nII.  RELEVANT DOMESTIC LAW\n\nA.  Immigration law and the Russian-Latvian agreement of 30 April 1994\n\n1.  General information\n\n46.  Latvian legislation on nationality and immigration distinguishes several categories of persons, each with a specific status:\n\n(a)  Latvian citizens (Latvijas Republikas pilsoņi), whose legal status is governed by the Citizenship Act (Pilsonības likums);\n\n(b)  “permanently resident non-citizens” (nepilsoņi) – that is, citizens of the former USSR who lost their Soviet citizenship following the break-up of the USSR but have not subsequently obtained any other nationality – who are governed by the Law of 12 April 1995 on the status of former USSR citizens without Latvian or other citizenship (Likums “Par to bijušo PSRS pilsoņu statusu, kuriem nav Latvijas vai citas valsts pilsonības” – “the NonCitizens Act”);\n\n(c)  asylum-seekers and refugees, whose status is governed by the Asylum Act of 7 March 2002 (Patvēruma likums);\n\n(d)  “stateless persons” (bezvalstnieki) within the meaning of the 18 February 1999 Status of Stateless Persons Act (Likums “Par bezvalstnieka statusu Latvijas Republikā”), read in conjunction with the Law of 9 June 1992 on aliens and stateless persons (entry and residence) (“the Aliens Act”) and, since 1 May 2003, with the Immigration Act of 31 October 2002 (Imigrācijas likums). On 2 March 2004 the Status of Stateless Persons Act was replaced by a new Stateless Persons Act;\n\n(e)  “aliens” in the broad sense of the term (ārzemnieki), including foreign nationals (ārvalstnieki) and stateless persons (bezvalstnieki) falling solely within the ambit of the Aliens Act (before 1 May 2003), and the Immigration Act (after that date).\n\n2.  “Permanently resident non-citizens”\n\n47.  Section 1 of the Non-Citizens Act formally set forth detailed criteria for obtaining the status of “permanently resident non-citizen”. In the version in force since 25 September 1998, the first paragraph of section 1 reads as follows:\n\n“The persons governed by this Act – ‘non-citizens’ – shall be those citizens of the former USSR, and their children, who are resident in  ... and who satisfy all the following criteria:\n\n1.  on 1 July 1992 they were registered as being resident within the territory of Latvia, regardless of the status of their housing; or their last registered place of residence by 1 July 1992 was in the ; or a court has established that before the above-mentioned date they had been resident within Latvian territory for not less than ten years;\n\n2.  they do not have Latvian citizenship; and\n\n3.  they are not and have not been citizens of any other State.”\n\n3.  Stateless persons\n\n48.  The relevant provisions of the former Status of Stateless Persons Act read as follows.\n\nSection 2\n\n“(1)  The status of stateless person may be granted to persons whose status is not defined either by the Law on the status of former  citizens without Latvian or other citizenship or by the Asylum Act, provided they\n\n...\n\n2.  are legally resident in .\n\n(2)  Stateless persons who have obtained outside Latvia documents attesting to the fact that they are stateless may obtain the status of stateless person in Latvia only if they have obtained a permanent residence permit in .\n\n...”\n\nSection 3(1)\n\n“Stateless persons shall be issued with an identity document for stateless persons, which shall also serve as [a] travel document.”\n\nSection 4\n\n“(1)  Stateless persons in  shall enjoy all the human rights enshrined in the Latvian Constitution [Satversme].\n\n(2)  In addition to the rights referred to in the first paragraph of this section, stateless persons shall be entitled\n\n1.  to leave and return to  freely;\n\n2.  to be joined by their spouse from outside the country, and by their own minor children or those dependent on their spouse, in accordance with the rules laid down by the Aliens and Stateless Persons (Entry and Residence) Act;\n\n3.  to preserve their native language, culture and traditions, provided these are not in breach of the law;\n\n...\n\n(3)  During their stay in , stateless persons shall be bound by [the provisions of] Latvian law.”\n\n49.  On 29 January 2004 Parliament enacted a new Stateless Persons Act (Bezvalstnieku likums), which came into force on 2 March 2004 and replaced the former Status of Stateless Persons Act. The relevant provisions of the new Act read as follows.\n\nSection 2(1)\n\n“In the , an individual may be recognised as a stateless person if no other State has recognised him or her as a national in accordance with its own laws.”\n\nSection 4\n\n“(1)  In order to be recognised as a stateless person, the individual concerned must submit to the [Directorate]:\n\n1.  a [written] application;\n\n2.  an identity document;\n\n3.  a document issued by a competent body in the foreign State, to be determined by the Directorate, certifying that the person concerned is not a national of that State and is not guaranteed nationality of that State, or a document certifying the impossibility of obtaining such a document.\n\n(2)  Where, for reasons beyond his or her control, the individual concerned is unable to produce one of the documents referred to in points 2 or 3 of the first paragraph, an official instructed by the Head of the Directorate shall decide whether or not to grant him or her the status of stateless person. The decision shall be taken on the basis of information available to the Directorate supported by documentary evidence.”\n\nSection 6\n\n“(1)  The stateless person shall reside in the  in accordance with the provisions of the Immigration Act.\n\n(2)  A stateless person legally resident in the  may obtain a travel document in accordance with the statutory arrangements ...”\n\nSection 7(2)\n\n“A stateless person legally resident in the  shall enjoy the rights guaranteed by ... the Convention of 28 September 1954 on the Status of Stateless Persons.”\n\n4.  Aliens\n\n50.  The relevant provisions of the former Aliens Act, in force prior to 1 May 2003, read as follows.\n\nSection 38\n\n“The Head of the Directorate or of the regional office of the Directorate shall issue a deportation order ...\n\n...\n\n(2)  if the alien or stateless person is in the country without a valid visa or residence permit ...”\n\nSection 40\n\n“The individual concerned shall leave the  within seven days after the deportation order has been served on him or her, provided that no appeal is lodged against the order in the manner prescribed in this section.\n\nPersons in respect of whom a deportation order is issued may appeal against it within seven days to the Head of the Directorate, who shall extend the residence permit pending consideration of the appeal.\n\nAn appeal against the decision of the Head of the Directorate shall lie to the court within whose territorial jurisdiction the Directorate’s headquarters are situated, within seven days after the decision has been served.”\n\n51.  Since 1 May 2003 the Aliens Act cited above has no longer been in force; it has been repealed and replaced by the Immigration Act. The relevant provisions of the new Act read as follows.\n\nSection 1\n\n“The present Act uses the following definitions:\n\n(1)  an alien [ārzemnieks] – a person who is neither a Latvian citizen nor a “[permanently resident] non-citizen” of ;\n\n...”\n\nSection 23(3)\n\n“In cases not covered by the present Act, the temporary residence permit shall be granted by the Minister of the Interior, where the relevant decision accords with the provisions of international law or the interests of the , or on humanitarian grounds.”\n\nSection 24\n\n“(1)  In accordance with the arrangements laid down in the present Act, the following persons may apply for a permanent residence permit:\n\n...\n\n...\n\n(2)  In cases not covered by the present Act, the permanent residence permit shall be granted by the Minister of the Interior, where it accords with the interests of the State.\n\n...\n\n(5)  The aliens referred to in paragraph 1, sub-paragraph ... 7, of this section may obtain a permanent residence permit if they have a command of the official language. The level of knowledge of the official language [and] the means of verifying that knowledge shall be determined by the Cabinet of Ministers.\n\n...\n\n(6)  Aliens who do not satisfy the requirements set forth in paragraph 5 of this section shall nevertheless be entitled to continue to reside in  on the basis of a temporary residence permit.”\n\nSection 32(3)\n\n“[By way of exception,] [t]he Head of the Directorate may authorise [the person concerned] to submit an application for a residence permit to the Directorate, where such authorisation accords with the provisions of international law or the interests of the Latvian State, or on humanitarian grounds.”\n\nSection 33(2)\n\n“... When the time-limit set down [for submitting an application for a residence permit] has passed, the Head of the Directorate may authorise [the person concerned] to submit the [relevant] documents, where such authorisation accords with the interests of the Latvian State, or on grounds of force majeure or humanitarian grounds.”\n\nSection 40\n\n“(1)  Where a decision is taken to refuse an application by an alien for a residence permit or to withdraw his or her residence permit, an appeal may be lodged against that decision ... with the Head of the Directorate, within thirty days of the entry into force of the decision.\n\n(2)  Where the Head of the Directorate refuses an application for a residence permit an appeal may be lodged ... with the courts against that decision, in the manner prescribed by law ...”\n\nSection 41\n\n“(1)  The [relevant] official of the Directorate shall issue a deportation order and determine the length of the ban on re-entering Latvian territory, requesting the alien concerned to leave the Republic of Latvia within seven days, where he or she has ... acted in breach of the rules on the entry and residence of aliens in the . ...\n\n(2)  The Head of the Directorate may set aside a deportation order ... or suspend execution thereof on humanitarian grounds.”\n\nSection 42\n\n“(1)  The alien concerned may appeal against the deportation order and the length of the ban on re-entering Latvian territory laid down therein to the Head of the Directorate, within seven days of the order’s entry into force. He or she shall have the right to remain in the  while the appeal is being considered.\n\n(2)  The alien concerned may appeal before the courts against the decision of the Head of the Directorate concerning the deportation order and the length of the ban on reentering Latvian territory laid down therein, within seven days of the decision’s entry into force. The lodging of an appeal with the court shall not suspend execution of the decision.”\n\nSection 47\n\n“(1)  Within ten days of establishment of the facts detailed in the present paragraph, the [relevant] official of the Directorate shall take a forcible expulsion decision in respect of the alien and determine the length of the ban on re-entering Latvian territory ..., where:\n\n1.  the alien has not left the Republic of Latvia within seven days of receiving the deportation order, as required by section 41(1) of the present Act, and has not appealed against the order under section 42;\n\n...\n\n(2)  In the cases referred to in the first sub-paragraph of paragraph 1 of this section, no appeal shall lie against the forcible expulsion decision ...\n\n...\n\n(4)  The Head of the Directorate may set aside a forcible expulsion decision or stay its execution on humanitarian grounds.”\n\n5.  Penalties\n\n52.  At the time of the facts reported by the applicants, the relevant provisions of the Regulatory Offences Code (Administratīvo pārkāpumu kodekss) read as follows.\n\nSection 187\n\n“... Use of a passport which has been replaced by a new passport shall be punishable by a fine of up to 100 lati.”\n\nSection 190-3\n\n“Failure to provide the offices of the Latvian Nationality and Immigration Department with the information to be entered in the register of residents within the time allowed shall be punishable by a fine of between 10 and 25 lati.”\n\n6.  The Russian-Latvian agreement of 30 April 1994\n\n53.  An agreement between Russia and Latvia on the social welfare of retired military personnel of the Russian Federation and their family members residing on the territory of the Republic of Latvia was signed in  on 30 April 1994. It was ratified by  on 24 November 1994 and came into force on 27 February 1995. Under the terms of the second paragraph of Article 2 of the agreement, persons to whom the agreement applied and who were permanently resident in Latvian territory before 28 January 1992 retained the right to reside without hindrance in Latvia if they so wished.\n\nB.  General administrative law\n\n54.  Section 360(4) of the Administrative Procedure Act (Administratīvā procesa likums), in force since 1 February 2004, provides:\n\n“An administrative act may not be executed if more than three years have elapsed since it became enforceable. In calculating the limitation period, any period during which implementation of the administrative act was suspended shall be deducted.”\n\nC.  The legislation on operational investigative measures\n\n55.  The main provisions governing interviews similar to that complained of by the first applicant are contained in the Law of 16 December 1993 on operational measures (Operatīvās darbības likums). The “operational measures” referred to in the Law cover all operations, covert or otherwise, aimed at protecting individuals, the independence and sovereignty of the State, the constitutional system, the country’s economic and scientific potential, and classified information against external or internal threats (section 1). Operational measures are aimed in particular at preventing and detecting criminal offences, tracing the perpetrators of criminal offences and gathering evidence (section 2).\n\n56.  The most straightforward measure is the “intelligence-related operational procedure” (operatīvā izzināšana), designed to “obtain information on events, persons or objects” (section 9(1)). The procedure takes one of the following forms:\n\n(i)  an “operational request for intelligence” (operatīvā aptauja), during which “the persons concerned are asked questions about the facts of interest to the [relevant] authorities” (section 9(2));\n\n(ii)  “operational intelligence gathering” (operatīvā uzziņa), which involves “gathering information relating to specific persons” (section 9(3));\n\n(iii)  “operational clarification of intelligence” (operatīvā noskaidrošana), consisting in obtaining information by covert or indirect means where there is reason to suspect that the informer will be unwilling to supply the information directly (section 9(4)).\n\n57.  All operational measures must be implemented in strict compliance with the law and human rights. In particular, no harm – physical or otherwise – may be caused to the persons concerned, nor may they be subjected to violence or threats (section 4(1) to (3)). Any person who considers that he or she has suffered harm as a result of the actions of a member of the security forces may lodge a complaint with the prosecuting authorities or the relevant court (section 5).\n\n58.  Under section 15 of the 5 May 1994 National Security Establishments Act (Valsts drošības iestāžu likums), the security police come under the supervision of the Ministry of the Interior. They have powers to deploy operational measures in order to combat corruption.\n\nTHE LAW\n\nI.  PRELIMINARY QUESTION CONCERNING THE SCOPE OF THE GRAND CHAMBER’S JURISDICTION\n\n59.  At the hearing the applicants and the Russian Government, referring implicitly to Article 43 of the Convention, requested the Grand Chamber to reverse the decision of the former First Section of 28 February 2002 in so far as the latter had declared the application inadmissible with regard to the Sisojev family’s elder daughter, Mrs Tatjana Vizule.\n\nThe Latvian Government, for their part, said that Mrs Vizule had, in 2005, obtained the permanent residence permit which had long been on offer to her. In any event, they pointed out, Mrs Vizule’s complaints had been declared inadmissible by the Court once and for all.\n\n60.  It is therefore for the Court to determine what should be the scope of its examination of the case following the applicants’ request for referral to the Grand Chamber under Article 43 of the Convention. Article 43 provides:\n\n“1.  Within a period of three months from the date of the judgment of the Chamber, any party to the case may, in exceptional cases, request that the case be referred to the Grand Chamber.\n\n2.  A panel of five judges of the Grand Chamber shall accept the request if the case raises a serious question affecting the interpretation or application of the Convention or the Protocols thereto, or a serious issue of general importance.\n\n3.  If the panel accepts the request, the Grand Chamber shall decide the case by means of a judgment.”\n\n61.  According to the Court’s settled case-law, the “case” referred to the Grand Chamber necessarily embraces all aspects of the application previously examined by the Chamber in its judgment. The content and scope of the “case” referred to the Grand Chamber are therefore delimited by the Chamber’s decision on admissibility (see K. and T. v. Finland [GC], no. 25702/94, §§ 140-41, ECHR 2001VII; Göç v. Turkey [GC], no. 36590/97, §§ 35-37, ECHR 2002V; Perna v. Italy [GC], no. 48898/99, §§ 23-24, ECHR 2003V; and Azinas v. Cyprus [GC], no. 56679/00, § 32, ECHR 2004III). This means that the Grand Chamber may examine the case in its entirety in so far as it has been declared admissible; it cannot, however, examine those parts of the application which have been declared inadmissible by the Chamber. The Court sees no reason to depart from this principle in the present case.\n\n62.  In sum, the Court holds that, in the context of the present case, it no longer has jurisdiction to examine any complaint or complaints raised by Mrs Vizule.\n\nII.  COMPLAINT UNDER ARTICLE 8 OF THE CONVENTION\n\n63.  The applicants claimed to be victims of a violation of their rights under Article 8 of the Convention, the relevant parts of which provide:\n\n“1.  Everyone has the right to respect for his private and family life ...\n\n2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”\n\n64.  During the proceedings before the Chamber the Government had raised an objection, which they maintained before the Grand Chamber. They submitted that, in view of the measures taken by the Latvian authorities to help the applicants regularise their stay in Latvia, the matter had been effectively resolved and the application should be struck out of the Court’s list of cases in accordance with Article 37 § 1 (b) of the Convention. Article 37 § 1 reads:\n\n“The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that\n\n(a)  the applicant does not intend to pursue his application; or\n\n(b)  the matter has been resolved; or\n\n(c)  for any other reason established by the Court, it is no longer justified to continue the examination of the application.\n\nHowever, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”\n\n65.  The applicants and the Russian Government opposed striking the application out of the list.\n\nA.  The Chamber judgment\n\n66.  Following the decision by its President not to include in the case file the Government’s submissions of 22 March 2005 informing the Court of new developments in the case (see paragraphs 10 and 42 above), the Chamber ruled on the basis of the facts as they had stood before the abovementioned date. The relevant part of the Chamber judgment of 16 June 2005 reads:\n\n“53.  In the Court’s view, the issue at stake here is whether the applicants effectively ceased to have ‘victim’ status within the meaning of Article 34 of the Convention as a result of the decisions taken by the Directorate on 11 November 2003. The Court reiterates its settled case-law to the effect that a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a ‘victim’ unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, for example, Amuur v. France, judgment of 25 June 1996, Reports of Judgments and Decisions 1996III, p. 846, § 36; Dalban v.  [GC], no. 28114/95, § 44, ECHR 1999VI; Labita v. Italy [GC], no. 26772/95, § 142, ECHR 2000IV; and Ilaşcu and Others v. Moldova and Russia (dec.) [GC], no. 48787/99, 4 July 2001).\n\n54.  In the present case, the Court notes that the Latvian authorities have not acknowledged, still less afforded redress for, the damage sustained by the applicants. The decision to allow them to regularise their stay is merely a proposal which is subject to strict conditions and does not correspond to the original application they made as far back as 1993 to be granted permanent-resident status and have their names entered on the register of residents of Latvia, an application which the Alūksne District Court of First Instance, moreover, allowed on two occasions. Nor has the decision in question erased the long period of insecurity and legal uncertainty which they have undergone in .\n\n55.  In these circumstances, the Court considers that the applicants can still claim to be victims of a violation of the Convention within the meaning of Article 34 of the Convention.”\n\n67.  As to the merits, the Chamber noted in particular:\n\n“109.  The Court further notes that regularisation of the second and third applicants’ status depends on that of the first applicant ... In other words, if the first applicant does not take advantage of the opportunity offered to her to regularise her stay, the situation of the other two applicants will remain unchanged. The Court considers that, in making the ability of these two applicants to lead a normal private life contingent on circumstances beyond their control, the domestic authorities who, admittedly, enjoy a margin of appreciation, have not taken the measures that could have been reasonably required of them.\n\n110.  Accordingly, taking all the circumstances into account, and in particular the long period of insecurity and legal uncertainty which the applicants have undergone in Latvia, the Court considers that the Latvian authorities exceeded the margin of appreciation enjoyed by the Contracting States in this sphere, and did not strike a fair balance between the legitimate aim of preventing disorder and the applicants’ interest in having their rights under Article 8 protected. It is therefore unable to find that the interference complained of was ‘necessary in a democratic society’.\n\n111.  Having regard to all of the above, the Court finds that there has been a violation of Article 8 of the Convention in the instant case.”\n\nB.  The parties’ submissions\n\n1.  The applicants\n\n68.  The applicants submitted that they could still claim to be “victims” of the alleged violation and that the matter giving rise to the case was far from being resolved. In their view, all the measures taken by the Latvian authorities, whether before or after 22 March 2005, were manifestly inadequate to remedy their complaint under Article 8.\n\n69.  The applicants maintained at the outset that they still ran the risk of being deported from . The Directorate’s letters of 17 May and 26 June 2000, reminding the applicants that they were required to leave the country (see paragraph 34 above), had never been explicitly revoked. The government decree of 22 March 2005 – which the applicants said they had never seen – did not put an end to the risk of deportation, particularly in the case of the second and third applicants. Firstly, the applicants did not have all the documents required by the Directorate in its letter of 16 November 2005. Secondly, even assuming that the government showed itself particularly willing to cooperate and no longer required them to produce the documents, Arkady Sisojev and Aksana Sisojeva would receive only temporary residence permits valid for five years. They had no guarantee that, at the end of the five years, their stay in  would be regularised again.\n\n70.  The applicants then referred to the judgment in Eckle v. Germany (15 July 1982, Series A no. 51), in which the Court had held that a decision or measure favourable to the applicant was not sufficient to deprive him of his status as a “victim” unless the national authorities acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (§ 66). Those two conditions – first acknowledgment of, and then redress for, the violation – had since been reiterated on numerous occasions and were firmly anchored in the Court’s case-law. Neither condition had been met in the instant case.\n\n71.  First of all, the applicants observed that the Latvian authorities had done nothing to acknowledge the existence of a violation of Article 8 of the Convention in their regard. If anything, the attitude of the authorities suggested the opposite: on 2 and 3 November 2005, for instance, Arkady Sisojev and Svetlana Sisojeva had been called in for questioning by the police, who had questioned them about the reasons for their illegal residence in .\n\n72.  Next, the applicants submitted that none of the regularisation measures proposed by the Latvian authorities constituted an adequate remedy for their complaint. In that connection, they reiterated their original request that the first applicant be granted the status of “permanently resident non-citizen” and the other two applicants be issued with permanent residence permits. Those requests were perfectly legitimate and justified. The first applicant was entitled to permanent-resident status in accordance with the relevant statute (see paragraph 47 above): her registration of an address in Russia had clearly been notional and could not give rise to automatic invalidation of her registration in . Accordingly, she had fulfilled the first condition laid down by section 1(1) of the Non-Citizens Act by having her registered place of residence in  on 1 July 1992. As for the other two applicants, the Russian-Latvian agreement of 30 April 1994 (see paragraph 53 above) entitled them to permanent residence in . In short, the applicants were requesting only what was theirs by right under the law and the agreement. In their view, the saying “He who can do more cannot necessarily do less”, applied on occasions by the Court in its case-law, meant that they could not be forced to accept less when they were entitled to more.\n\n73.  The applicants also referred to the arguments they had raised before the Chamber. The proposals made by the authorities, they argued, were unacceptable and humiliating, both in relation to the first and second applicants, who had lived on Latvian territory for over thirty-five years, and in relation to the third applicant, who had been born on Latvian soil and had always lived there. They further submitted that, even after 22 March 2005, the regularisation of the second and third applicants’ stay remained contingent on that of the first applicant. In other words, the fate of Arkady Sisojev and Aksana Sisojeva continued to depend on circumstances beyond their control.\n\n74.  According to the applicants, the measures taken by the Latvian authorities were also inadequate as they did not afford sufficient redress for the applicants’ suffering over a period of many years. In particular, they had endured prolonged uncertainty, anguish and distress throughout the whole period, especially when they had faced a real risk of being deported from . The fact that they had no Latvian identity papers had also caused the applicants a series of practical problems in their day-to-day lives. They were unable, for instance, to leave Latvia secure in the knowledge that they could return; since October 2002, they no longer received a range of social security benefits, in particular sickness-insurance benefits; they could not buy medicines at reduced rates; the third applicant was unable to obtain a driving licence; and, in 2004 and 2005, they had been unable to complete a number of civil-law transactions which required a notarised deed. To sum up, the effects of all these ordeals could not be wiped out by the simple expedient of issuing a residence permit.\n\n2.  The Government\n\n75.  The Government referred first of all to the Court’s settled case-law relating to the deportation or extradition of non-nationals, according to which the regularisation of an applicant’s stay – even if the case was still pending before the Court – was sufficient in principle to remedy a complaint under Article 8 (the Government cited Pančenko v. Latvia (dec.), no. 40772/98, 28 October 1999; Mikheyeva v. Latvia (dec.), no. 50029/99, 12 September 2002; Yang Chun Jin alias Yang Xiaolin v.  (striking out), no. 58073/00, §§ 20-23, 8 March 2001; and, most recently, Fjodorova and Others v. Latvia (dec.), no. 69405/01, 6 April 2006). In the Government’s view, the Chamber had not only failed to follow that caselaw, but had also adopted a judgment which contradicted its own decision of 28 February 2002 in the present case (see paragraph 5 above). In its decision, the Chamber had rejected Mrs Vizule’s complaints on the ground that she had been given the opportunity in the meantime to regularise her stay in .\n\n76.  In any event, the applicants now faced no real risk of being deported from . Admittedly, from a formal standpoint, there was nothing to prevent the Directorate from issuing a deportation order in respect of the applicants, as they were illegally resident in . However, any such order would be subject to appeal before three levels of the administrative courts. In that connection, the Government referred to Vijayanathan and Pusparajah v. France (27 August 1992, §§ 46-47, Series A no. 241B), in which the Court had found that the applicants could not claim to be “victims” of a violation in the absence of a deportation order. The Directorate’s letters of 17 May and 26 June 2000 did not constitute “administrative acts” within the meaning of domestic law; even assuming that they did, they would have long since ceased to be enforceable, in accordance with section 360(4) of the Administrative Procedure Act (see paragraph 54 above).\n\n77.  Moreover, the authorities had, on several occasions, proposed clear, specific and effective regularisation arrangements to the applicants which would enable them to reside without hindrance in . Furthermore, and contrary to the applicants’ assertions, the decree of 22 March 2005 meant that the issuing of residence permits to Arkady Sisojev and Aksana Sisojeva was no longer contingent upon the legal status of Svetlana Sisojeva; they could henceforth regularise their position independently of one another. The applicants had been given notice of the decree (see paragraphs 43-44 above); furthermore, it had been published in the Official Gazette, with the result that the applicants could not claim that they had been unaware of its content.\n\n78.  With regard to the regularisation arrangements requested by the applicants, the Government said that the rights which they sought were not available to them under domestic law. In particular, it was abundantly clear from the Non-Citizens Act that the first applicant did not fall within its scope of application ratione personae. Section 1(1) of the Act stipulated that the status of “permanently resident non-citizen” could be granted only to persons who, on 1 July 1992, had had their officially registered residence in . By registering their residence in Russia in January 1992, both Svetlana Sisojeva and her husband had rendered the registration of their residence in  invalid. The Government were adamant that it was as a result of their own fraudulent conduct that the applicants had lost the possibility of obtaining the legal status they had requested.\n\n79.  That being so, the approach proposed by the authorities remained more than adequate for the purposes of Article 8 of the Convention, which did not guarantee, as such, the right to a particular type of residence permit. It was true that the applicants still needed to meet some formal and technical requirements, in particular by producing certain documents. However, those requirements were legitimate and reasonable; moreover, they had no effect on the decision in principle adopted by the Cabinet of Ministers. If the applicants nevertheless persisted in ignoring the Government’s proposals and recommendations, they did so of their own free will and had to take responsibility for that; no one could be forced to accept a residence permit he did not want. In particular, there was no justification for the applicants’ claim that the Directorate was asking them to produce documents they could not obtain; in that regard, the Government cited the example of Mrs Vizule, whose application had been granted despite the alleged absence of certain documents (see the admissibility decision of 28 February 2002 in the present case).\n\n80.  The Government further contended that the approach proposed by the authorities afforded sufficient redress for the applicants’ past ordeals. They advanced a number of arguments in that regard. Firstly, the Government pointed out that, prior to 1989, Arkady Sisojev had been in active service with the Soviet armed forces stationed on Latvian territory; his entire family would therefore have known that he might be transferred to another posting at any time. When he left the army, the applicants could still legitimately consider themselves to be living in their own country, the , of which they were nationals. However, from August 1991 onwards, they could not overlook the fact that they were henceforth resident in another sovereign State, one whose laws they must observe.\n\n81.  Secondly, and with regard to the uncertainty and distress the applicants claimed to have undergone over a period of years, the Government reiterated that this had been due in large measure to their own conduct. As one-time nationals of the former Soviet Union, they could not have been unaware of the basic rules on the registration of residence which had been in existence since the 1930s, and in particular of the fact that an individual could have only one registered address at a time. Knowing that, they had deliberately broken the law by supplying the authorities with false information; they should therefore have weighed up the consequences of their actions. In the Government’s view the applicants’ fraudulent conduct, considered in the light of their very real personal and family ties in Russia, demonstrated that they had seriously considered returning to that country; in other words, a registered address in Russia had been more important to them than permanent residence in .\n\n82.  Thirdly, the Government argued that the decision to remove the applicants’ names from the register of residents had been lawful and legitimate under both domestic and international law; they referred in that regard to the recent activities of the International Law Commission in particular.\n\n83.  Lastly, the Government disputed the seriousness of the applicants’ situation as they themselves portrayed it. Referring to documents in the case file, they pointed out that, despite the fact that the applicants had been illegally resident in  during the period in question, they had managed to acquire two flats and a garage. In addition, the third applicant had had no difficulty in completing her higher education.\n\n84.  In view of the above, the Government concluded that there had been no “interference” with the applicants’ private or family life. In the alternative, they argued that the applicants could not – or could no longer – claim to be “victims” of a violation of Article 8 of the Convention. In any event, the Government requested the Court to hold that the matter had been resolved and to strike the application out of its list of cases.\n\nC.  The third-party intervener’s submissions\n\n85.  The Russian Government endorsed the applicants’ arguments. They too considered that, despite the steps taken by the Latvian authorities with a view to regularising the applicants’ status, the applicants could still claim to be “victims” of a violation of Article 8 of the Convention.\n\n86.  Firstly, like the applicants, the Russian Government referred to the general principle in the Court’s case-law whereby applicants could be deprived of their victim status only if the alleged violation was acknowledged and redress was afforded. Neither of those conditions had been met in the instant case. With regard to the first condition, the Latvian authorities had at no point acknowledged the existence of a violation; as to the second condition, only monetary compensation could afford redress for the damage sustained by the Sisojev family in the present case.\n\n87.  Secondly, the Russian Government considered that even the most recent measures taken by the respondent Government were inadequate to remedy the applicants’ complaint. In particular, the second and third applicants had been offered only temporary residence permits whereas, under the Russian-Latvian agreement of 30 April 1994 (see paragraph 53 above), they were entitled to permanent permits. In addition, like the applicants, the Russian Government submitted that regularisation of the stay of the second and third applicants continued to depend on that of the first applicant, Svetlana Sisojeva.\n\n88.  The Russian Government further cited the judgment in Slivenko v. Latvia ([GC], no. 48321/99, ECHR 2003X), which they considered to be similar to the present case. In their view, the applicants were the victims of political changes beyond their control, and the ordeals they had endured had to be seen in the wider context of an anti-Russian policy on the part of the Latvian authorities since the country’s return to independence.\n\nD.  The Court’s assessment\n\n89.  The Court notes at the outset that the applicants consider the NonCitizens Act and the Russian-Latvian agreement of 30 April 1994 to have been incorrectly applied to their case. In that connection it reiterates that, in accordance with Article 19 of the Convention, its sole duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court or to substitute its own assessment for that of the national courts or other national authorities unless and in so far as they may have infringed rights and freedoms protected by the Convention (see, for example, García Ruiz v. Spain [GC], no. 30544/96, §§ 28-29, ECHR 1999I). In other words, the Court cannot question the assessment of the domestic authorities unless there is clear evidence of arbitrariness, which there is not in the instant case.\n\n90.  The Court further reiterates that the machinery for the protection of fundamental rights established by the Convention is subsidiary to the national systems safeguarding human rights. The Convention does not lay down for the Contracting States any given manner for ensuring within their internal law the effective implementation of the Convention. The choice as to the most appropriate means of achieving this is in principle a matter for the domestic authorities, who are in continuous contact with the vital forces of their countries and are better placed to assess the possibilities and resources afforded by their respective domestic legal systems (see Swedish Engine Drivers’ Union v. Sweden, 6 February 1976, § 50, Series A no. 20, and Chapman v. the United Kingdom [GC], no. 27238/95, § 91, ECHR 2001I).\n\n91.  This principle applies to immigration matters as well as in other spheres. Hence, as the Court has reaffirmed on several occasions, Article 8 cannot be construed as guaranteeing, as such, the right to a particular type of residence permit. Where the domestic legislation provides for several different types, the Court must analyse the legal and practical implications of issuing a particular permit. If it allows the holder to reside within the territory of the host country and to exercise freely there the right to respect for his or her private and family life, the granting of such a permit represents in principle a sufficient measure to meet the requirements of that provision. In such cases, the Court is not empowered to rule on whether the individual concerned should be granted one particular legal status rather than another, that choice being a matter for the domestic authorities alone (see Aristimuño Mendizabal v. , no. 51431/99, § 66, 17 January 2006; Dremlyuga v. Latvia (dec.), no. 66729/01, 29 April 2003; and Gribenko v. Latvia (dec.), no. 76878/01, 15 May 2003; see also the admissibility decision of 28 February 2002 in the present case).\n\n92.  In the instant case the Government argued that the applicants could not claim the status of “victims”. In that connection, the Court reiterates that the word “victim” in the context of Article 34 of the Convention denotes the person directly affected by the act or omission in issue (see, among many other authorities, Nsona v. the Netherlands, 28 November 1996, § 106, Reports of Judgments and Decisions 1996V, and Brumărescu v.  [GC], no. 28342/95, § 50, ECHR 1999VII). In other words, the person concerned must be directly affected by it or run the risk of being directly affected by it (see, for example, Norris v. Ireland, 26 October 1988, §§ 3031, Series A no. 142, and OttoPremingerInstitut v. Austria, 20 September 1994, § 39, Series A no. 295A). It is not therefore possible to claim to be a “victim” of an act which is deprived, temporarily or permanently, of any legal effect.\n\n93.  In the above-mentioned Eckle judgment, the Court indeed held that a decision or measure favourable to the applicant was not sufficient to deprive him of his status as a “victim” unless the national authorities acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (ibid., § 66; see also Amuur v. France, 25 June 1996, § 36, Reports 1996III; Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999VI; Labita v. Italy [GC], no. 26772/95, § 142, ECHR 2000IV; and Ilaşcu and Others v. Moldova and Russia (dec.) [GC], no. 48787/99, 4 July 2001). However, with more particular reference to the specific category of cases involving the deportation of non-nationals, the Court has consistently held that an applicant cannot claim to be the “victim” of a deportation measure if the measure is not enforceable (see Vijayanathan and Pusparajah, cited above, § 46; see also Pellumbi v. France (dec.), no. 65730/01, 18 January 2005, and Etanji v. France (dec.), no. 60411/00, 1 March 2005). It has adopted the same stance in cases where execution of the deportation order has been stayed indefinitely or otherwise deprived of legal effect and where any decision by the authorities to proceed with deportation can be appealed against before the relevant courts (see Kalantari v.  (striking out), no. 51342/99, §§ 55-56, ECHR 2001X, and Mehemi v.  (no. 2), no. 53470/99, § 54, ECHR 2003IV; see also Andric v. Sweden (dec.), no. 45917/99, 23 February 1999; Benamar and Others v. France (dec.), no. 42216/98, 14 November 2000; A.D. v. Switzerland (dec.), no. 13531/03, 18 January 2005; and Yildiz v. Germany (dec.), no. 40932/02, 13 October 2005).\n\n94.  In the instant case the Court acknowledges that, if not from the time of their removal from the register of residents in May 1996, then at the latest from the time of the final dismissal of their appeal on points of law in April 2000, the members of the Sisojev family experienced a period of insecurity and legal uncertainty in Latvia which lasted until November 2003. However, it does not consider that their situation was substantially more uncertain than that of the applicants in most similar cases (see, in particular, the decisions in Pančenko, Mikheyeva and Fjodorova and Others, cited above). Firstly, the Court notes that, in 1992 and 1995, the applicants in the present case obtained two passports each and registered their residence in both Russia and  without informing the relevant Latvian authorities. In the Court’s view, this demonstrates that returning to  one day was an option they were prepared to consider. What is more, the applicants were undoubtedly aware that their conduct – for which, moreover, they were subsequently ordered to pay a fine – was in breach of the Latvian legislation of the time. Accordingly, it cannot but be said that the problems they experienced following the withdrawal of their initial residence permits stemmed to a large extent from their own actions.\n\n95.  Secondly, the Court observes that the first concrete proposal from the Directorate aimed at regularising the applicants’ stay was made on 11 November 2003. Accordingly, it very much doubts whether the applicants can claim the existence of an “uncertain situation” after that date. Lastly, it is clear from the case file that, despite having long been an illegal resident in , the second applicant has been and continues to be in paid employment; the third applicant, meanwhile, has been able to complete a course of higher education and obtain a degree (see paragraph 45 above).\n\n96.  However, in the instant case, the Court does not consider it necessary either to reach a conclusion on the question whether, at the time they lodged their application, the applicants could claim to be “victims” of a violation of Article 8 of the Convention, or even to determine whether they can claim that status today. In the light of the new facts brought to its attention since 22 March 2005 (see paragraphs 10 and 42 above), the Court considers that there is no objective justification for continuing to examine this complaint, for the reasons set out below.\n\n97.  The Court reiterates that, under Article 37 § 1 (b) of the Convention, it may “... at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that ... the matter has been resolved ...”. In order to ascertain whether that provision applies to the present case, the Court must answer two questions in turn: firstly, whether the circumstances complained of directly by the applicant still obtain and, secondly, whether the effects of a possible violation of the Convention on account of those circumstances have also been redressed (see Pisano v. Italy (striking out) [GC], no. 36732/97, § 42, 24 October 2002). In the present case, that entails first of all establishing whether the risk of the applicants’ being deported persists; after that, the Court must consider whether the measures taken by the authorities constitute sufficient redress for the applicants’ complaint.\n\n98.  The Court must determine whether the regularisation of the applicants’ stay would be sufficient to remedy the possible effects of the situation of which they complained to the Court. With reference first of all to the first applicant, Svetlana Sisojeva, the Court takes note of the Directorate’s letter of 16 November 2005 (see paragraph 43 above), according to which it is still open to the first applicant to regularise her stay in accordance with the procedure described by the Directorate in its letter of 11 November 2003, that is, by obtaining an identity document for stateless persons and, accordingly, a permanent residence permit. She would thus be able to remain in  on a legal and permanent basis and, as a result, live a normal social life and maintain her relationships with her family, including Mrs Vizule and the latter’s two children.\n\n99.  With regard to the other two applicants, Arkady Sisojev and Aksana Sisojeva, the Court observes that, by a decree of 22 March 2005, the Cabinet of Ministers instructed the Minister of the Interior to issue them with five-year temporary residence permits; according to the Government, the applicants may apply for permanent permits when that period has elapsed. Contrary to what the two applicants concerned and the third-party intervener apparently maintained, the Court notes in particular that the regularisation of their status no longer depends on that of Svetlana Sisojeva, with the result that each applicant can regularise his or her stay in Latvia independently of the other two.\n\n100.  In short, as matters stand, the applicants do not face any real and imminent risk of deportation (see, mutatis mutandis, Vijayanathan and Pusparajah, cited above, §§ 46-47, and opinion of the Commission, § 119).\n\n101.  The Court notes that, despite repeated reminders on the part of the Directorate, none of the applicants has so far acted on the latter’s recommendations. In their submissions to the Grand Chamber, the applicants contended that they did not have all the documents required in order to apply for a residence permit, so that any response on their part would have been futile. However, the Court observes that they have hitherto failed to make any attempt, however small, to get in touch with the authorities and try to find a solution to whatever difficulties may arise. Having regard to the case file as a whole as it currently stands, and in the light of the explanations provided by the Government, the Court sees no indication that the latter have acted in bad faith.\n\n102.  In short, the measures indicated by the Government would enable the applicants to remain in Latvia and to exercise freely in that country their right to respect for their private and family life as protected by Article 8 of the Convention and interpreted in the Court’s established case-law (see, mutatis mutandis, Boughanemi v. France, 24 April 1996, § 35, Reports 1996II; C. v. Belgium, 7 August 1996, § 25, Reports 1996III; Boujlifa v. France, 21 October 1997, § 36, Reports 1997VI; and Buscemi v. Italy, no. 29569/95, § 53, ECHR 1999VI). Consequently, and in the light of all the relevant circumstances of the case, the Court considers that the options outlined by the Latvian authorities for regularising the applicants’ situation are adequate and sufficient to remedy their complaint.\n\n103.  Having regard to all of the above, the Court finds that both conditions for the application of Article 37 § 1 (b) of the Convention are met. The matter giving rise to this complaint can therefore now be considered to be “resolved” within the meaning of Article 37 § 1 (b). Finally, no particular reason relating to respect for human rights as defined in the Convention requires the Court to continue its examination of the application under Article 37 § 1 in fine.\n\n104.  Accordingly, the application should be struck out of the Court’s list of cases in so far as it relates to Article 8 of the Convention.\n\nIII.  ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION\n\n105.  The applicants complained that the questioning of the first applicant by the security police on 6 March 2002 constituted interference with the exercise of their right of individual petition, in breach of the last sentence of Article 34 of the Convention. Article 34 reads:\n\n“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”\n\nA.  The Chamber judgment\n\n106.  In its judgment, the Chamber noted at the outset the discrepancy between the applicants’ version of the facts and that of the Government. Being unable to verify the content of the questions put to Svetlana Sisojeva, it based its analysis on the facts on which the two versions concurred. The Chamber accepted the Government’s explanation that the main focus of the interview had been the allegation that Directorate officials had acted in a corrupt manner, rather than the proceedings brought by the applicants in Strasbourg. The Chamber also noted that the police officer in question had asked the first applicant several questions concerning her application, the relevance of which the Chamber failed to discern. Nevertheless, having regard to all the relevant circumstances of the case, and in particular the wider context in which the interview had taken place, the Chamber reached the conclusion that the measure in question had not attained a sufficient level of severity to be considered a form of “pressure”, “intimidation” or “harassment” which might have induced the applicants to withdraw or modify their application or hindered them in any other way in the exercise of their right of individual petition. It therefore held that there had been no violation of Article 34 of the Convention.\n\nB.  The parties’ submissions\n\n1.  The applicants\n\n107.  The applicants submitted at the outset that, in view of their precarious and vulnerable situation in , and given the “image of the security [police]” in society, being summoned by that institution was in itself liable, in their case, to prompt fears of arrest and deportation. Similarly, given the nature of the questions asked of the first applicant by the police officer, the interview in question amounted to an attempt to subject her to pressure and intimidate her psychologically so that she would withdraw her application to the Court. In the applicants’ view, once their complaints had been declared admissible, they should have been considered to be under the Court’s protection. That implied in particular that the domestic authorities must refrain from any activity liable to undermine the principle of equality between the parties before the Court. In asking the first applicant how she had found lawyers and whether those lawyers had threatened her, the security police had been in breach of that principle. Questions of that nature were wholly unrelated to the need to investigate possible cases of corruption, the reason given by the Government.\n\n108.  The applicants argued that the Government’s explanations on this point were unconvincing. Firstly, investigations into corruption offences were normally the task of a different branch of the police (the criminal police rather than the security police). Secondly, the applicants complained of the fact that the first applicant had been questioned without her lawyer being present. Thirdly, they observed that the content of the conversation had not been recorded in any official report.\n\n109.  The applicants had further maintained before the Chamber that they had learned of other coercive measures planned against them by the Latvian authorities, including “arresting them and sending them to prison”. In addition, they had alleged that their telephone calls were constantly being intercepted.\n\n2.  The Government\n\n110.  The Government disputed the applicants’ assertion that the interview in question had been aimed at forcing the first applicant to withdraw her application. In that connection they pointed out that, during her interview with the Russian journalists, the first applicant had stated publicly that several individuals who were without a residence permit and were in a similar situation to her own had managed to regularise their status by bribing certain members of staff of the Directorate. As a result of that statement, the security police had opened a preliminary investigation on the ground that the applicant’s allegations, should they prove to be true, disclosed a serious offence punishable under the Criminal Code. The Government stressed in particular that the interview in issue had been perfectly lawful, as the security police had powers to take such measures.\n\n111.  Hence, the questioning of the applicant had related not to her application before the Court, but solely to the alleged acts of corruption on the part of the officials concerned, which had been discussed during the interview. Since the applicant had been summoned and questioned simply as a witness, the presence of a lawyer was not required; however, had she wished to be accompanied by a lawyer, she could have made a request to that effect.\n\n112.  The Government conceded that some of the questions asked by the police officer had referred explicitly to the proceedings being pursued by the applicants in . However, they considered those questions to have been logical, since the first applicant had stated that she had learned of the existence of corruption during the preparation of her application to the Court. In any event, the content of the questions could not be considered an attempt at intimidation. In support of their arguments, the Government submitted a copy of a letter sent by the Head of the security police to their Agent on 16 July 2002, the relevant passages of which read as follows:\n\n“ ... [W]e wish to inform you that, on 6 March 2002, pursuant to the obligations set forth in section 15 of the Law relating to State security establishments, including those engaged in combating corruption, a conversation was conducted with Mrs Svetlana Sisojeva concerning the cases of corruption known to her.\n\n[That] conversation cannot be regarded as an interview [as] no procedural record was kept on [that] occasion and Mrs Sisojeva refused to provide information on the persons known to her who had allegedly offered bribes to officials ...\n\n...\n\nAt the beginning of the conversation, Mrs Sisojeva was asked whether she had any information about cases of active corruption in State bodies. She replied that she knew several Russian speakers who had given bribes in order to obtain Latvian residence permits and ‘[permanently resident] non-citizen’ passports.\n\nMrs Sisojeva was asked to give the names of those persons, but refused to do so, saying that she was afraid that the persons in question would have their residence permits and ‘non-citizen’ passports confiscated in the course of the corruption inquiry.\n\nDuring the conversation, Mrs Sisojeva was asked what problems had prompted her application to the European Court of Human Rights. She replied that the problems had begun in 1996 with the Head of the regional office ... [of the Department], Mr [S.R.], who had refused to issue her with a Latvian residence permit and a ‘non-citizen’ passport. There had been several sets of proceedings, which had resulted in findings against her; for that reason, she had decided to seek the assistance of the European Court of Human Rights. ...”\n\n113.  In the light of the above, the Government concluded that the interview in issue had not, taken overall, been connected with the first applicant’s application as such, and therefore could not be considered to have interfered with her right of individual petition. Furthermore, the Government considered that the applicants’ other allegations, relating to the risk of their being arrested and the supposed interception of their telephone calls, lacked any factual basis.\n\nC.  The third-party intervener’s submissions\n\n114.  The Russian Government considered that, in view of the content of the questions put by the officer of the security police to the first applicant, the impugned interview constituted clear psychological pressure linked to the present application to the Court, made all the more serious by the fact that the first and second applicants had been called in for questioning in November 2005. They argued that, in view of the particular role played by the State security services in the former Soviet Union, most people who had lived under the Soviet regime had been, and continued to be, particularly fearful of them. Referring in that regard to the judgment in Fedotova v. Russia (no. 73225/01, §§ 48-52, 13 April 2006), the Russian Government argued that the interview in issue had in itself been improper. There was nothing in the case file to bear out the Latvian Government’s claim that the main focus of the conversation had been corruption on the part of some officials; on the contrary, the dialogue reproduced by the first applicant showed clearly that the security police had been trying to intimidate her. As to the content of the dialogue, the Russian Government saw no reason to cast doubt on the accuracy of the applicant’s reconstruction, pointing to the fact that the respondent Government had not provided any official report or record of the impugned conversation.\n\nIn short, the Russian Government were satisfied that the interview had been aimed first and foremost at intimidating the applicants in order to force them to withdraw their application, then pending before the Court, in breach of the last sentence of Article 34 of the Convention.\n\nD.  The Court’s assessment\n\n115.  The Court reiterates that it is of the utmost importance for the effective operation of the system of individual petition instituted by Article 34 of the Convention that applicants or potential applicants are able to communicate freely with the Court without being subjected to any form of pressure from the authorities to withdraw or modify their complaints (see Akdivar and Others v. Turkey, 16 September 1996, § 105, Reports 1996IV; Kurt v. Turkey, 25 May 1998, § 159, Reports 1998III; Ergi v. Turkey, 28 July 1998, § 105, Reports 1998IV; and Salman v. Turkey [GC], no. 21986/93, § 130, ECHR 2000VII).\n\n116.  The word “pressure” must be taken to cover not only direct coercion and flagrant acts of intimidation of applicants or their families or legal representatives but also other improper indirect acts or contact designed to dissuade or discourage them from pursuing a Convention remedy. Whether or not contact between the authorities and an applicant or potential applicant amounts to unacceptable practices from the standpoint of Article 34 must be determined in the light of the particular circumstances in issue. In this respect, regard must be had to the vulnerability of the complainant and his or her susceptibility to influence exerted by the authorities (see, for example, Petra v. Romania, 23 September 1998, § 43, Reports 1998VII; Assenov and Others v. Bulgaria, 28 October 1998, § 170, Reports 1998VIII; and Tanrıkulu v. Turkey [GC], no. 23763/94, § 130, ECHR 1999IV).\n\n117.  In the instant case the parties agreed that on 6 March 2002 the first applicant, Mrs Svetlana Sisojeva, was summoned to the headquarters of the security police, where one of the officers asked her a number of questions relating in particular to her application before the Court. In that connection, the Court does not consider it necessary to examine whether the questioning constituted a formal “interview” for the purposes of domestic law.\n\n118.  As to the exact content of the questions asked by the police officer, the Court notes that no official report was drawn up following the interview. The only document submitted in that connection by the first applicant is a record which she herself drafted from memory about a month after the event and the accuracy of which is disputed by the Government. For their part, the Government supplied a copy of a letter from the Head of the security police outlining briefly the aim of the interview and how it had been conducted. In the absence of more convincing evidence, the Court is unable to verify the content of the questions put to the first applicant; it will, however, take as established those facts on which the two documents concur.\n\n119.  It is clear from both documents that, a few days prior to the interview, the first applicant had given an interview to a Russian television station in which she had mentioned several cases of corruption among Directorate officials. As corruption in the public sector is punishable under criminal law and constitutes a serious offence, the applicant should reasonably have expected the police or the prosecuting authorities to take an interest in the allegations. It appears also that the interview was in accordance with the national legislation, which authorises the security police to investigate corruption offences and to gather information from the individuals concerned (see paragraph 58 above). Accordingly, the Court accepts the Government’s explanation that the main focus of the interview was the allegation that Directorate officials had acted in a corrupt manner, rather than the proceedings being pursued by the applicants before the Court (see, conversely, Fedotova, cited above, §§ 49-50).\n\n120.  However, the fact remains that, in the course of his conversation with the first applicant, the police officer asked her several questions about her application to the Court. Unlike the Government, who argued that the questions were justified by the requirements of the investigation, the Court has serious doubts as to their necessity and relevance, and has difficulty discerning a connection between acts of corruption allegedly committed by unidentified third parties and the present application. In that connection the Court reiterates that, even if a government has reason to believe that in a particular case the right of individual petition is being abused, the appropriate course of action is for that government to alert the Court and inform it of its misgivings (see Tanrıkulu, cited above, § 131, and Orhan v. , no. 25656/94, § 409, 18 June 2002). By questioning the first applicant on her reasons for lodging an application with the Court, the officer of the security police therefore exceeded the remit of the investigation by a considerable margin.\n\n121.  As the Court pointed out above, in determining whether a State has failed in its obligations under Article 34, all the circumstances of the case must be taken into account. In the instant case, the Court notes that the questioning of the first applicant in general and the questions put to her in particular were of an incidental nature. There is nothing in the case file to indicate that the Latvian authorities attempted to summon the applicant a second time (see, conversely, Ergi, cited above, §§ 26-28 and 105). Neither does it appear that the security police forced the first applicant to give evidence, in relation either to her application to the Court or to the alleged acts of corruption which were the main focus of the interview. On the contrary, the applicant’s refusal to disclose the names of the allegedly corrupt officials was respected and did not entail any legal consequences for her. Furthermore, assuming the record of the conversation written by the first applicant to be accurate, the Court observes that the language used by the police officer was polite and did not contain any expressions, references or insinuations of a threatening or even a dissuasive nature (see, conversely, Petra, cited above, § 44).\n\n122.  Likewise, taking an overall view, the Court observes that the questions put by the police officer were not aimed at inducing the applicant to reveal the content of the documents in the applicants’ case file or of their correspondence with the Court, or at casting doubt on the authenticity of their application or their capacity to conduct legal proceedings (see, conversely, Tanrıkulu, cited above, § 131).\n\n123.  Finally, the Court considers that it cannot disregard the wider context in which the impugned interview took place. It is true that, in a number of cases in which the authorities questioned applicants about their applications, the Court has found them to be in breach of their obligations under Article 34 (or former Article 25 § 1) of the Convention (see Akdivar and Others, cited above, § 105; Kurt, cited above, § 160; Tanrıkulu, cited above, § 130; and Orhan, cited above, § 407; see also Bilgin v. Turkey, no. 23819/94, § 133, 16 November 2000; Dulaş v. , no. 25801/94, § 79, 30 January 2001; and Akdeniz and Others v. , no. 23954/94, § 118, 31 May 2001). However, bearing in mind the very specific circumstances of the cases cited above, the Court has found no indication that similar factors exist in the applicants’ case.\n\n124.  In sum, while bearing in mind the reservations expressed in paragraph 120 above and taking into account all the relevant circumstances of the case, the Court considers that there is insufficient evidence to conclude that the questioning of the first applicant by an officer of the security police on 6 March 2002 should be regarded as a form of “pressure”, “intimidation” or “harassment” which might have induced the applicants to withdraw or modify their application or hindered them in any other way in the exercise of their right of individual petition.\n\n125.  Lastly, with regard to the alleged interception of the applicants’ telephone conversations, the Court observes that this is merely an unsubstantiated and unproven assertion (see Cooke v. Austria, no. 25878/94, § 48, 8 February 2000). The same is true of the complaint that the Latvian authorities had intended to send the applicants to prison.\n\n126.  Consequently, the respondent State has not failed to comply with its obligations under the last sentence of Article 34 of the Convention.\n\nIV.  APPLICATION OF ARTICLE 18 OF THE CONVENTION\n\n127.  At the hearing the applicants and the Russian Government requested the Court to raise of its own motion the issue of the application of Article 18 of the Convention and to hold that there had been a violation of that Article, as in Gusinskiy v. Russia (no. 70276/01, §§ 70-78, ECHR 2004IV). Article 18 provides:\n\n“The restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.”\n\n128.  In the applicants’ view, the Latvian authorities had abused the powers of interference available to them under Article 8 § 2 of the Convention, as the interference in issue had not been necessary in order to achieve any of the aims referred to by that provision. The authorities’ true aim – one they had pursued since 1993 and done everything in their power to achieve – had been to deprive the applicants of their right to reside permanently in . The Russian Government endorsed that argument.\n\n129.  Leaving to one side the question whether the applicants and the Russian Government are still entitled to make this request to the Grand Chamber or whether they are estopped from so doing, the Court sees no evidence that the Latvian authorities abused their powers by applying a restriction authorised by the Convention for a purpose other than that for which it was intended. On that point, it sees no similarity between this case and Gusinskiy, cited above, where the applicant’s detention was found to have been motivated in part by reasons other than those provided for in the Convention. In these circumstances, and in view of all its findings set out above, the Court sees no reason to raise of its own motion the issue of the application of Article 18 of the Convention.\n\nV.  COSTS\n\n130.  Rule 43 § 4 of the Rules of Court provides:\n\n“When an application has been struck out, the costs shall be at the discretion of the Court. ...”\n\n131.  The Court reiterates that the striking out of the application which it has just ordered is only partial, since it is confined to the complaint under Article 8 of the Convention (see paragraph 104 above). However, it considers it nevertheless necessary to rule on the application of Rule 43 § 4.\n\n132.  As they had done before the Chamber, the applicants claimed 36,736 lati (LVL) (approximately 55,800 euros (EUR)) in respect of non-pecuniary damage and LVL 2,422.21 (approximately EUR 3,680) for costs and expenses. In that connection, the Court reiterates that Article 41 of the Convention allows it to award just satisfaction to the “injured party” only if it has previously “[found] that there has been a violation of the Convention or the Protocols thereto”, which it has not in this case. Accordingly, under Rule 43 § 4, the Court can award only costs and expenses to the applicants.\n\n133.  The Court reiterates that the general principles governing reimbursement of costs under Rule 43 § 4 are essentially the same as under Article 41 of the Convention (see Pisano, cited above, §§ 53-54). In other words, in order to be reimbursed, the costs must relate to the alleged violation or violations and be reasonable as to quantum. Furthermore, under Rule 60 § 2, itemised particulars of any claim made under Article 41 of the Convention must be submitted, together with the relevant supporting documents or vouchers, failing which the Court may reject the claim in whole or in part (see, for example, Lavents v. Latvia, no. 58442/00, § 154, 28 November 2002). In addition, it is clear from the structure of Rule 43 § 4 that, when the Grand Chamber makes a decision on the award of expenses, it must do so with reference to the entire proceedings before the Court, including the stages prior to referral to the Grand Chamber.\n\n134.  In the instant case the Court observes that, during the proceedings before the Chamber, the applicants were granted legal aid for presenting their case at the hearing, preparing their submissions and additional comments, conducting negotiations with a view to a friendly settlement and for secretarial expenses. It notes that the applicants have not submitted any specific claims for reimbursement of expenses since then, in particular for expenses incurred before the Grand Chamber. Accordingly, and in the absence of any further costs that might be added, it makes no award under this head.\n\nFOR THESE REASONS, THE COURT\n\n1.  Holds by sixteen votes to one that the matter giving rise to the applicants’ complaint under Article 8 of the Convention has been resolved and decides to strike the application out of its list of cases in so far as it relates to that complaint;\n\n2.  Holds unanimously that the respondent Government have not failed to comply with their obligations under Article 34 of the Convention.\n\nDone in English and in French, and notified in writing on 15 January 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.\n\nIn accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the dissenting opinion of Judge Zupančič is annexed to this judgment.\n\nMy reasons for disagreeing as to the applicants’ loss of victim status are, mutatis mutandis, the same as those advanced by the First Section in its judgments in Shevanova v. Latvia (no. 58822/00, §§ 4250) and Kaftailova v. Latvia (no. 59643/00, §§ 45-52), delivered on 15 June and 22 June 2006 respectively.\n\nDue to the obvious disagreement between the Court’s conclusions in Sisojeva and Others and in these two cases, the latter have been admitted for reconsideration by the Grand Chamber. Nevertheless, the arguments in both the First Section’s judgments are, to me, wholly persuasive.\n\nHenceforth, we shall be bound by the outcome in Sisojeva and Others. However, that was not yet the case during the deliberations and the vote in the present case.\n\nAccordingly, I dissent.\n\nAccordingly, I dissent.","title":""}
{"_id":"passage_410","text":"PROCEDURE\n\n1.  The case was referred to the Court on 11 July 1990 by the European Commission of Human Rights (\"the Commission\") and on 31 August 1990 by the Government of Sweden (\"the Government\"), within the three-month period laid down in Article 32 § 1 and Article 47 (art. 32-1, art. 47) of the Convention for the Protection of Human Rights and Fundamental Freedoms (\"the Convention\"). It originated in an application (no. 15576/89 ) against  lodged with the Commission under Article 25 (art. 25) by Mr Hector Cruz Varas, his wife Mrs Magaly Maritza Bustamento Lazo and their son Richard Cruz, Chilean citizens, on 5 October 1989.\n\nThe Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and the declaration whereby  recognised the compulsory jurisdiction of the Court (Article 46) (art. 46) and the Government’s application to Article 48 (art. 48). The object of the request and of the application was to obtain a decision as to whether or not the facts of the case disclosed a breach by the respondent State of its obligations under Articles 3 and 25 § 1 (art. 3, art. 25-1) and also, in the case of the request, Article 8 (art. 8) of the Convention.\n\n2.  In response to the enquiry made in accordance with Rule 33 § 3 (d) of the Rules of Court, the applicants stated that they wished to take part in the proceedings and designated the lawyer who would represent them (Rule 30).\n\n3.  The Chamber to be constituted included ex officio Mrs E. Palm, the elected judge of Swedish nationality (Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21 § 3 (b)). On 27 August 1990 the President drew by lot, in the presence of the Registrar, the names of the seven other members, namely Mr J. Cremona, Mr F. Matscher, Mr L.-E. Pettiti, Mr R. Macdonald, Mr J. De Meyer, Mr N. Valticos and Mr J.M. Morenilla (Article 43 in fine of the Convention and Rule 21 § 4) (art. 43).\n\n4.  Mr Ryssdal assumed the office of President of the Chamber (Rule 21 § 5) and, through the Registrar, consulted the Agent of the Government, the Delegate of the Commission and the representative of the applicants on the need for a written procedure (Rule 37 § 1). In accordance with the order made in consequence, the Registrar received, on 18 September 1990, the Government’s memorial and, on 19 September 1990, the memorial of the applicants. The Delegate of the Commission subsequently informed the Registrar that he would submit his observations at the hearing.\n\n5.  Having consulted, through the Registrar, those who would be appearing before the Court, the President directed on 26 July 1990 that the oral proceedings should open on 22 October 1990 (Rule 38).\n\n6.  On 29 August 1990 the Chamber decided, pursuant to Rule 51, to relinquish jurisdiction forthwith in favour of the plenary Court.\n\n7.  On 25 September 1990 the President invited the Commission to produce to the Court all the written and oral pleadings submitted before the Commission. The Commission made these documents available on 28 September 1990.\n\n8.  On 27 September 1990 the President decided, notwithstanding requests by the Government and the applicants, that it was not necessary to hear any witnesses and that any further written evidence should be filed one week before the hearing. Further evidence was filed by both the Government and the applicants on 15 October 1990.\n\n9.  The hearing took place in public in the , , on the appointed day. The Court had held a preparatory meeting beforehand.\n\nThere appeared before the Court:\n\n- for the Government\n\n- for the Commission\n\n- for the applicants\n\n10. The Court heard addresses by Mr Corell for the Government, by Mr Gaukur Jörundsson for the Commission and by Mr Bergquist and Mr Bratt for the applicants, as well as replies to questions put by the Court and by three of its members individually.\n\n11. Various documents were filed by the applicants on 22 and 31 October 1990 and by the Government on 7 December 1990, including further particulars of the applicants’ claim under Article 50 (art. 50) and the Government’s comments thereon.\n\nAS TO THE FACTS\n\nI.  THE PARTICULAR CIRCUMSTANCES OF THE CASE\n\n12. The applicants are Mr Hector Cruz Varas (the first applicant), his wife Mrs Magaly Maritza Bustamento Lazo (the second applicant) and their son Richard Cruz, born in 1985 (the third applicant). All of the applicants are Chilean citizens.\n\n13. The first applicant came to  on 28 January 1987 and applied the following day for political asylum. He was joined there by the second and third applicants on 5 June 1987.\n\nA. The decision to expel the applicants\n\n14. On 22 June 1987 the first applicant was interrogated by the Police Authority (polismyndigheten) of Växjö as to his reasons for requesting political asylum. As regards his background in  he provided the following information. In 1968 he became a member of the Radical Party’s Youth Federation. He joined the Socialist Party in 1970 and remained a member after the coup d’état in 1973 as a result of which the coalition Government of President Allende was replaced by the regime under the Presidency of General Pinochet. In 1971 he also became a member of the FDR Party (the Revolutionary Workers Front) of which he was the secretary until 1973 and worked to create opposition against the Pinochet régime. In 1976 he was arrested and taken to a military camp where he was detained for two days. He joined the Mormons in 1976. From 1976 to 1982 he remained passive politically. In 1982 he moved to Villa Alemana and became involved in distributing leaflets for the Democratic Front. He participated in many demonstrations and two general strikes (August 1985 and 4 June 1986). He was arrested in 1973 and 1974 for breaking a curfew. He was also arrested in August 1985 by agents of the CNI (Central Nacional de Investigaciones de ) for having entered a prohibited area on a bicycle. He was released after four hours. Apart from these incidents he had been left alone by the Chilean police and military. He gave as his reasons for leaving  the fact that he could not keep his house in Villa Alemana where he lived with his family and his poor financial situation resulting from lengthy periods of unemployment. He was not able to pay his mortgage and chose to sell the house to avoid an enforced sale.\n\n15. In a memorial to the National Immigration Board (statens invandrarverk - \"the Board\") dated 27 July 1987 the first applicant, through his legal counsel, commented upon the above interrogation. He stated that in 1976 he had been arrested with four friends and ill-treated. They were not allowed to sleep and were obliged to stand naked. One of his friends was beaten on this occasion.\n\n16. On 21 April 1988 the Board decided to expel the applicants and prohibited them from returning to  before 1 May 1990 without the Board’s permission. It also rejected the applicants’ requests for declarations of refugee status and travel documents. The Board considered that the applicants had not invoked sufficiently strong political reasons to be considered as refugees under Section 3 of the Aliens Act (utlänningslagen, 1980 : 376) or the 1951 Geneva Convention relating to the Status of Refugees.\n\n17. The applicants appealed to the Government. The first applicant did not invoke any new circumstances. He pointed out that he did not receive all of the letters sent to him from  and could not therefore submit any documents from  in support of the appeal.\n\n18. The appeal was rejected by the Government (Ministry of Labour) on 29 September 1988.\n\n19.The applicants then alleged to the Police Authority of Varberg that there were impediments to the enforcement of the expulsion order and requested that their case be referred to the Board. The first applicant was interrogated by the Police Authority of Varberg on 19 October 1988. He stated that he had new reasons to invoke in support of his application for asylum. He considered that he ran the risk of political persecution, torture and possibly death, if he returned to , because of his continued involvement in  with a political group known as the Frente Patriótico Manuel Rodriguez (FPMR) - a radical organisation that had tried to kill General Pinochet. He had started to work for this group after his arrival in . He feared that his activities in  which began in February 1988 and included the distribution of leaflets to support political prisoners in  would be known to the CNI.\n\n20. The Police Authority of Varberg decided on 21 October 1988 to reject the applicants’ request and to enforce the expulsion decision by sending them by plane to  on 28 October 1988 at 16.00 hours from  in Gothenburg. An appeal against this decision was rejected by the Board on 26 October 1988. On 27 October 1988 the applicants again requested that their case be transferred to the Board. On 28 October 1988 the Police Authority refused this request, and the applicants’ appeal against refusal was rejected by the Board on the same day. In his letter of appeal Mr Cruz Varas, through a new legal counsel, stated that he had contributed signed articles in the FPMR newspaper (El Rodriguista) and had expressed himself critically about the regime in . He also submitted a certificate by Juan Marchant of the Varberg FPMR support group dated 23 October 1988 in which it was said that he and his family were politically active in the group. He further submitted copies of two newspaper articles dated 21 and 24 October 1988 concerning a demonstration in Varberg against the expulsion of the applicants. In these articles it was stated that Mr Cruz Varas had hidden friends sought by the police in his house in  and that he was active for FPMR in .\n\n21. The expulsion decision could not be enforced as planned since the applicants did not appear in time for the scheduled departure.\n\n22. In a letter dated 30 December 1988 to the Police Authority of Varberg the applicants again alleged that there were impediments to the enforcement of the expulsion order. On 13 January 1989 Mr Cruz Varas was interrogated by the Police Authority of Varberg in the presence of a new counsel. The official record of the interrogation contains the following passage (translation from Swedish):\n\n\"Cruz wishes especially to add to his statements the following information with regard to the punishments he has been subjected to in connection with his being held prisoner in . Asked about the times and places of these imprisonments Cruz states that he was imprisoned the first time in  in 1973. He was arrested with all the others who were at the Codelco office (a large mining company) on an occasion soon after the coup. They were taken to a military centre and badly treated. Cruz has not talked about this earlier because he was of the opinion that the police in  co-operate with the Chilean police. He no longer holds this view.\n\nSince the above-mentioned event lies far back in time Cruz was encouraged to begin his account by relating the most recent occasion on which he was subjected to persecution. He then stated that in January 1987 he was stopped when he was walking along a street called Calle Troncal. It was then that two men stepped out of a car and pulled him into a car which then drove to some sort of security building. During the journey he was hit in the ribs. He was taken down a long stairway and into some kind of investigation room. He was photographed after he had removed his clothes. He was hit, mainly on the head. He was hung up by his feet and photographed in this position. He was asked the whereabouts of Luis Herrera but was unable to answer. Luis Herrera was chairman of the free humanist thinkers. Cruz did not wish to relate more about the treatment on this occasion. He did however add that they told him that they were going to shoot him later the same day. He was blindfolded and after that he felt that someone was pressing the barrel of a weapon against his body but no shot was fired. Asked why they did this Cruz said that they gave as a reason that he was a communist, which he has never been. After Cruz had been scared by the incident with the weapon he was released and after that was treated kindly by a man who was also present. The man told Cruz that things would be much better if he co-operated with the police. When asked if they were in a police station Cruz said that they were in a security building. They also mentioned to Cruz the names of the members of his family. At 4 a.m. he was driven away and was released after being held in custody for about 14 hours. Cruz has not mentioned this incident earlier. Asked why he had not done so in spite of a number of police interrogations, numerous contacts with counsel and in spite of the fact that many documents with information about him had been submitted to the authorities, he replied that he had been betrayed many times earlier and he could not therefore trust anyone.\n\nIn August 1986, he was somewhat uncertain about the exact date, Cruz was walking along a street in  after having attended a neighbourhood committee meeting. Cruz was on his way to catch a bus to . Four men came in a car, threatened him with a knife against his throat and apprehended him. They were civilians in a civilian vehicle. They travelled in the direction of . A black blindfold was placed over his eyes and then they took him out of the car and kicked him. Cruz protected himself as well as he could by putting his hands over his head and crotch. They insulted him too. They told him he should give up struggling against the Government. They said they knew of Cruz and that he ought to stop; otherwise this could be the last day of his life. Even his family was threatened. These events took place in a building Cruz was taken to but he knows nothing about it because he was blindfolded. On this occasion he was subjected to torture through electric shocks against his testicles. He was even subjected to shocks by electrodes in the anus and testicles. After having been subjected to the above Cruz was driven a bit along the road between  and  before he was set free on this road. He was also near to being knocked down by a bus in connection with his being released from the car. The whole sequence of events took place within a period of 15 hours. About a month later Cruz found his dog, three years old, dead under such circumstances that he suspected that it was the CNI or ACHA [Accíon Chilena Anticomunista] that lay behind it. The dog had been impaled on a metal fence that surrounded the house where Cruz lived. The conclusion Cruz drew was that he was subjected to this as a result of his activity in youth groups and friendship committees. Cruz had worked for a democratic development of . Every time Cruz was arrested the ‘police’ knew what he had been working for. The interrogation so far has been translated to Cruz who subsequently wished to point out that the committees were neighbourhood committees and not friendship committees and he also wanted to say that the reason why he did not trust anyone was just because the police knew so much about him when they held him in custody.\n\nWithout the presence of the interpreter or counsel, in accordance with Cruz’s wishes, he stated that on the occasion when he was arrested by persons he thought were from the CNI in 1986 he was also subjected to something else that he tried to suppress and which he finds very painful to talk about. After he had been tortured among other ways by electrodes in his anus and testicles, he was placed on a bed lying face down and his hands and feet were tied to bedposts. In this position one or more men attacked him sexually. Cruz was at that point dazed from the previous treatment and cannot therefore say with certainty if there was more than one person. (This section without the presence of the interpreter or counsel. Cruz can make himself understood in Swedish.)\n\nIn addition Cruz has not been able to express the problems he has had as a probable result of the treatment he was subjected to. He has difficulties eating with cutlery made of metal. These problems manifest themselves with pains in his teeth on every occasion that his teeth come in contact with a metal object. This problem has become less intense but has been very intense earlier. It has thus been a question of two different types of complaints. Firstly Cruz has experienced general pain in his teeth and secondly he has had problems with metal objects. Cruz first experienced the problem with his teeth after electric shock torture in 1973. He was subjected to this form of torture on a total of 4 or 5 occasions. After the torture in 1973 Cruz also had many headaches. He has also noticed that since then he has had lapses of memory.\n\nOtherwise Cruz has nothing more that he personally wishes to relate other than the above. When asked if he had anything to add on his political involvement he stated that he had already accounted for it but that he could now present new documents which support the previous statements. Three certificates were handed over. One from Nicolas Reyes Armijo, President of the Cultural Centre for Freedom in Belloto, one from Ricardo Poblete Muñoz, co-ordinator in the organisation of neighbourhood committees, as well as a certificate from the Commission on the Rights of Young People.\n\nThe above was translated to Cruz who thereafter had no wish to refer to further details in the case. He has no objection to the above description ... .\"\n\n23. The first certificate referred to in the record was dated 1 November 1988 and consisted of a statement by the President of the Centro Cultural \"Libertad\" (Cultural Centre for Freedom) in El Belloto. It stated that Mr Cruz Varas took part in the activities of that institution until he left  and that his psychological and physical integrity would be threatened if he were to stay in his home country. It further indicated that he was obliged to leave the country for political reasons. A second certificate of 23 November 1988 by an official of the Comisión de Derechos Poblacionales (Peoples’ Rights Commission) in  stated that he was persecuted by the dictatorship from November 1983 to August 1986. He was active in the socialist youth group where he was the representative and leader of the revolutionary society for Libres Pensadores Humanistas \"Artesanos de las Letras\" (Writers and Humanist Free Thinkers) in Villa Alemana. The certificate also stated that he had been arrested in  in 1973 and twice in La Serena in November 1974 and September 1977; that he was threatened with death in  in 1983; that in 1986 and January 1987 he was arrested by civilians and severely beaten. A third certificate dated 20 November 1988 by the Comisión de Derechos Juveniles (Commission on the Rights of Young People) in Quilpue contained similar statements.\n\n24. On 13 January 1989 the Police Authority referred the question of the enforcement of the expulsion order to the Immigration Board. On the same day the Police Authority decided that Mr Cruz Varas should report to the police twice a week because of the danger that he would evade enforcement of the expulsion. By letter of 2 March 1989 he submitted a medical opinion dated 20 February 1989 to the Board issued by Mr Håkan Ericsson, an assistant researcher at the  at the . Mr Ericsson stated that Mr Cruz Varas had declared that he had been ill-treated in prisons in  and that he had shown a deformation of his upper left collar-bone, a scar on his left upper arm and a scar on the left of his chest.\n\n25. The Board referred the case to the Government on 8 March 1989, expressing the opinion that there was no impediment to the enforcement of the expulsion order. The Board found that Mr Cruz Varas had the opportunity on several occasions to present his case to the Police Authority and to it. However, on these occasions he had given contradictory information and had now radically changed his story. It concluded that even if it took into account the difficulties that a victim might have to describe what he had been subjected to there was no reason to believe his allegations.\n\n26. On 11 August 1989 Mr Cruz Varas submitted a medical report to the Government which had been prepared by a doctor of forensic medicine, Dr Sten W. Jacobsson. The report dated 9 May 1989 stated, inter alia, as follows (translation from Swedish):\n\n\"The patient Cruz Varas Hector born on 9 December 1948 has seen me on account of alleged torture in his home country. He has told a story which has been simultaneously interpreted and which is recorded in Annex I. When examining the patient I have observed marks on the left collar-bone area and on the left upper arm which are referred to in the examination protocol ... .\n\nIn view of the above I make the following statement:\n\nThat the patient has said that he has been assaulted; that he has, as objective evidence, shown, firstly, the marks of a collar-bone fracture following violence with a blunt instrument and, secondly, a typically rounded and colourless burn-mark on the inside of the left upper arm (the wound has, according to forensic medical practice, the typical appearance of a burn caused by a hot pipe); that he has subjective symptoms of troubles following genital torture, anal torture and sexual abuse in the anus; that, when he describes this, he reacts, in my experience, in such a way (crying, shaking) that it has to be assumed that he has experienced this; that, to summarise, nothing has been established which contradicts the assumption that Hector Cruz Varas has been subjected to such torture and sexual abuse as he alleges.\"\n\nAnnex I gave the following information:\n\n\"The patient speaks about himself first and then about his father who was the secretary of the Partido Socialista. They lived in the town of  in . His father was arrested during the military coup in 1973 and was brutally tortured and released after two months. The patient was then 24 years old. He was also arrested and hit but, as he himself states, he was not directly tortured. They moved to the town of . The patient was also a member of the Partido Socialista which is a party prohibited in . The patient was persecuted during the seventies and eighties. His own home was subject to a search in 1981. He was hit by the police and taken to a security building where his eyes were bandaged and he was hit by hands and was burnt on his left arm with a red-hot pipe. He participated in a demonstration against ... a coin which the Government had introduced. He was arrested later and was tortured by electrification. In 1986 he was subjected to such torture on his genitals. He was sodomised with an electrified rod which caused him great pain and one can see on the patient’s face when he speaks of this torture that he was clearly in pain, he is near to tears. He was raped and sodomised several times which caused him to faint. He is very pained by telling this and his upper lip shakes and he perspires profusely. He has never told this to his wife and he now says ‘I cannot take it any more’. The reaction is very typical of self-experienced humiliating sexual torture. Following a question the patient says that he has for a long time after this event had great problems of impotence. He thinks that it has been better in . He takes vitamin E against these problems.\n\nIn November 1987 his dog was found dead, hanged on an iron fence which surrounded his house. There was a note stating that this would happen to all communists. It was signed by ACHA which was the same as if it had been CNI. In 1987 he therefore left . I ask what would happen if he had to return to . The patient is then very upset and says that he cannot return and starts to cry; he is convinced that they will arrest him at the airport and continue persecuting and torturing him.\"\n\n27.  A further medical opinion was produced in evidence prepared by Dr Søndergaard, a specialist in psychiatric diseases at the . That opinion, dated 28 June 1989, stated that, from the manner in which he presented his story and his reactions while telling it, there were strong indications that he suffered from a post-traumatic stress syndrome. Dr Søndergaard found him to be considerably shaken and on the borderline of what he could tolerate.\n\n28. The following description of the political activities of Mr Cruz Varas was given by his lawyer in a letter to the Government of 11 August 1989:\n\n\"The appellant has been politically interested and active in different left-wing organisations ever since the sixties and by the end of the sixties he was involved with MIR (Movimiento de la Izquierda Revolucionaria). During the seventies he was active primarily in the Socialist Party. About 1983 he came into contact with people whom he believes belong to Frente Patriótico Manuel Rodriguez. Together with these persons he has taken part in certain military activities.\n\nAs a result of his political work he was tortured in 1973, 1976, 1981, 1983, 1986 and 1987. The reason why all these details are not found in the police interrogation is that the interrogation concentrated on events during the eighties. However at the end of the interrogation it is mentioned that he had been tortured four or five times.\n\nWhen asked to account for his activity with the ‘Front’ he stated the following: some time during 1983 he made contact by chance with a person who was nicknamed the ‘Gorilla’ because of his heavy build and hair growth. Hector knew the Gorilla from the seventies when both of them were active in MIR. When they met again they had not seen each other for more than a decade but they immediately recognised each other. They met at a parents’ meeting in a school in Villa Alemana which the Gorilla’s daughters attended.\n\n...\n\nAfter a while his acquaintance with the Gorilla led to clear sabotage activities. The Gorilla held a senior post at the town’s Electricity Board. Hector has a knowledge of explosives after having worked in mining. Together they used explosive devices to destroy power lines around the town. They complemented each other well: the Gorilla indicated the targets and planned the operations, Hector acquired the dynamite by travelling to the town of  where he has many childhood friends. He was able to buy dynamite from his friends who work in the mine. The dynamite was smuggled out by the workers. This activity continued until some time in 1986.\n\nAfter this Hector did not participate in any further sabotage operations since he felt he was under too much observation. However he believes that the Gorilla continued the activities since they had a fairly large stock of dynamite. He has also read in the newspapers about power lines being sabotaged after he had discontinued the activity himself.\n\nThe Gorilla has tried in different ways to get him to participate in more advanced military projects. They have often discussed the possibility of trying to arm the populace and start a school for military training. They have drawn up detailed plans of how they would obtain weapons. These plans began as a discussion about ‘how one could do even more ...’. Among other things concrete plans were drawn up on how to attack a carabineer barracks. The purpose of the attack would be to get hold of weapons which could later be used in other kinds of attacks. Nothing came of these plans because Hector was arrested in 1983. During this arrest the police asked a wide range of questions; inter alia, questions were asked about places which were to be meeting points for the participants in the attack. The attack against the carabineer barracks never took place. Hector found out instead that another attack had been carried out against another carabineer barracks.\n\nWhen asked to describe more details about the plan to attack, Hector said that he and the Gorilla were to carry the stolen weapons to the churchyard and bury them there. When the time was right, the weapons were to be fetched from the churchyard by other persons.\n\nThe Gorilla never mentioned Frente Patriótico Manuel Rodriguez by name, but Hector understood that the Gorilla had a relatively central position in the organisation. The Gorilla himself only mentioned that he was now active in the Communist Party. As an example of the Gorilla’s central position Hector mentioned that a short time before the assassination attempt against Pinochet the Gorilla asked Hector if he would consider driving a lorry on a very important occasion. Hector gave a hesitant reply and the suggestion was dropped. In retrospect Hector has realised that it could possibly have been the vehicle that would be used on the occasion of the assassination attempt.\n\nHector has not taken part in any direct military operations. On one occasion however he was instructed to drive a lorry to a particular spot. He was to park the lorry there and then fetch another lorry. He was given no more information on that occasion. However this plan was cancelled for security reasons. Shortly thereafter Hector read in a newspaper that an arms cache had been discovered right next to the place where he was to park the lorry.\n\nA few months after he had met the Gorilla by chance, an old friend turned up with whom he had worked in a resistance cell in 1973-74 in the town of . The friend immediately said that he was in trouble with the police and that he needed a place to hide. Hector offered to give him shelter and they went straight back to Hector’s home. Later in the evening two other friends joined them, all three armed with pistols. Hector also thought he saw sub-machine guns of the kind used by the Chilean police.\n\nHector never found out why the friend was on the run; as he said, ‘it was better not to know anything’. One day, on leaving Hector’s house, the friend was arrested. Hector was informed of the arrest by an acquaintance who had previously seen Hector with the friend who was in hiding. The two other men fled from Hector’s house immediately.\n\nAfter this Hector moved to  and supported himself as a construction worker. He remained in  between roughly September 1984 and December 1985. He rented out his house through a fake owner and was informed that, shortly after, the house was searched and as a result of the search the tenants moved. The fake owner found new tenants to live in the house for the rest of the time. Since no further searches were carried out Hector did not think it was dangerous to move back to Villa Alemana. Thus, in December 1985, he returned there.\n\nWhen asked about the numerous ‘chance’ occasions when he met people who can be assumed to belong to the ‘Front’, Hector replied that he had also wondered about this. With regard to the Gorilla he felt it was pure chance that he met him. Hector is more hesitant about the second friend. Hector said that it could have been a chance encounter but that it could also have been a conscious attempt to bind him more firmly to the activities of the Front. Hector stated himself that because of his knowledge of explosives and as the owner of a remotely situated house he could be of interest to such an organisation as the ‘Front’.\n\nWhen Hector returned to Villa Alemana he felt he was being observed in different ways. He stated that he quite frequently encountered different types of salesmen who got in touch with him.\n\n...\n\nDuring one of our conversations Hector said suddenly ‘there is something I have never talked about and something which I shall never tell’. I insisted that he tell me. A psychological struggle took place which lasted at least an hour. I tried to maintain the initiative all the time and to motivate Hector to tell his secret. Hector defended his position and said ‘I’ll never say it, not even if I am expelled will I tell it. I’ll only say it at the airport’.\n\nFinally Hector said that he had been in a poor state of mind for a long time in  and had taken large amounts of anti-depressants. After the torture of 1986 his nerves have been strained to the point of breaking and because of the internal confession tradition in the Mormon Church he sought out the highest ranking leader in the Mormon Church with the rank of Grand President and told him everything.\n\nHe told him of his contacts with the Gorilla and also about the two other members of the Mormon Church whom he had introduced to the Gorilla. The conversations took place on several occasions. On the first occasion Hector took the initiative and therefore related relatively little, then the Grand President took the initiative and obtained more details.\n\nIn January 1987 Hector was arrested and tortured. When he left the torture chamber he tried to get in contact with the two other members of the Mormon Church but they had both disappeared. He also tried to make contact with the Gorilla but he had also disappeared. Hector is subjectively convinced that all three are dead. He is also convinced that they have been killed as a result of his mistake in talking to the Grand President. Hector believes that the Mormon Church leader used his weak position and informed the Government about him and his friends.\n\nHector cannot say with certainty when the three disappeared but says that the last time he met them was in December 1986. The torture in January 1987 in combination with self-accusation at having caused the death of the Gorilla and the two Mormons was a contributing factor to his leaving  a short while after that.\"\n\n29. Medical reports drawn up by doctors in Varberg hospital dated 21 June 1989 and 5 October 1989 concerning the welfare of Richard Cruz Varas (the third applicant) were also submitted to the Government. These reports stated that Richard had personality problems and would in all probability suffer serious psychological harm if expelled from .\n\n30. The first applicant also submitted a letter from the United Nations High Commissioner for Refugees’ Regional Office for the Nordic Countries dated 16 August 1989 stating, inter alia, that:\n\n\"... a person who has been exposed to torture will in most cases have lasting effects of both a physical and psychological/somatic nature. For this reason, we should operate neither with time limits nor with degrees of torture when assessing a torture victim’s claim for refugee status.\"\n\n31. In a letter of 5 October 1989, the same Office wrote:\n\n\"Therefore we would like to point out that we believe that Mr Hector Cruz Varas ... should be protected against return to his home country; apart from the many mental/traumatic/humanitarian aspects involved, we are of the opinion that not only the 1951 Refugee Convention, but in particular the 1984 Torture Convention should be emphasised.\"\n\n32. On 4 October 1989 Mr Cruz Varas was taken into custody by the Police Authority of Varberg following a decision by the Minister of Labour. The following day the Government (Ministry of Labour) found that there was no impediment under Sections 77 and 80 of the Aliens Act to the enforcement of the expulsion order against the applicants.\n\n33. On 6 October 1989 the Board decided not to stop the expulsion and on the same day Mr Cruz Varas was expelled to . His wife and son, however, went into hiding in . Their present whereabouts is not known to the Court.\n\nB. Political developments in Chile\n\nIn August 1988 the state of emergency was lifted and in September 1988 exiles were allowed to return to . On 5 October 1988 the Chilean people voted in a plebiscite to reject the candidacy of General Pinochet as President of the country. Presidential and congressional elections were then scheduled for December 1989. Following negotiations between the Government and opposition groups a referendum was held on 30 July 1989 resulting in the adoption of various constitutional amendments designed, inter alia, to render the presidential and congressional elections more democratic and reduce the continued influence of the armed forces in civilian life.\n\nThe presidential election took place on 14 December 1989 resulting in the election of Mr Patricio Aylwin, a member of the former opposition Christian Democratic Party and leader of a 17-party alliance entitled \"Coalition of Parties for Democracy\".\n\n35. In April 1989 the International Covenant on Civil and Political Rights (1966) was published in the Diario Oficial, the official gazette, thereby incorporating it into Chilean law. The State also ratified in 1988 the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (1984) and the Inter-American Convention to Prevent and Punish Torture (1985) although with reservations in both cases.\n\nAn Amnesty International report of October 1989, however, provides details of various cases of torture reported to Amnesty which allegedly occurred in 1989.\n\nC. Facts subsequent to the expulsion\n\n36. On 7 October 1989 Mr Cruz Varas arrived at the airport in  (), where he applied unsuccessfully for asylum. He was then put on a plane for  where he arrived on 8 October. He did not have any identity documents and when he came to passport control he was taken aside and photographed. He was required to sign a declaration to the effect that he had been in  for financial reasons and that he promised not to engage in any political activities in .\n\n37. He remained in  from 8 to 29 October 1989 and returned to his home in Villa Alemana. On 26 and 27 October he participated in political meetings, the latter in favour of the presidential candidate, Mr Aylwin. He alleges that on that occasion an unknown person approached him and threatened his family in . During this period he claims that his brother-in-law was attacked in the street and badly injured by unknown persons. Two other brothers-in-law were stopped and searched by officials who asked them questions about him.\n\n38. On 29 October 1989 he left  for  and lived for a time in . On 2 December 1989 and 7 March 1990 the Board rejected requests from Mr Cruz Varas to be allowed to return to . Although he was able to attend the hearing before the Court, his present whereabouts are unknown to it.\n\nD. Dr Jacobsson’s evidence before the Commission\n\n39. The Commission heard Dr Sten W. Jacobsson as a witness on 7 December 1989. His evidence is summarised in detail in paragraphs 49-57 of the Commission’s report. He is an associate professor (docent) of forensic medicine (rättsmedicin) at the Karolinska Institute and also works with the Red Cross assisting torture victims. He has twenty years’ experience in assessing scars and wounds and has been working with allegations of torture from  since 1985.\n\n40. Dr Jacobsson testified that there was a very high probability that the first applicant’s story was true having regard to his wounds (injury to collar bone and burn mark) and his reactions when recounting his story. He spoke with considerable reluctance of the sexual torture he had experienced and sweated profusely. Dr Jacobsson considered that such a reaction indicated that he had really experienced such treatment. He also exhibited great fear at the prospect of returning to . Dr Jacobsson pointed out that victims of sexual torture are often so damaged that they are not prepared to talk about it even to their husbands or wives.\n\nE. Further documentary evidence\n\n41. Following the expulsion of Mr Cruz Varas the Government submitted a memorandum from the Swedish Embassy in Santiago dated 2 January 1990 which contains a report of an inquiry undertaken in accordance with a request from the Ministry of Labour for information regarding possible political activities of Mr Cruz Varas, and any political persecution to which he may have been exposed. The inquiry had been made on 20 December 1989 by Ms Jenny Malmqvist, Second Secretary at the Embassy, during a visit to Villa Alemana, accompanied by, inter alia, the President of the Commission of Human Rights at . The report concludes that, as regards political activities, all the representatives of political parties who had been questioned had said that they do not know Mr Cruz Varas. Neighbours who were questioned know him but were unaware of his involvement in any political activity.\n\nIn support of the above the Government have also submitted affidavits from the Partido Radical, the Partido Socialista and the Partido Comunista.\n\n42. As regards possible political persecution, the Government have submitted an affidavit by the President of the Human Rights Commission in Villa Alemana, Mrs Maria Teresa Ovalle, obtained by the Swedish Embassy in . It appears from the affidavit that Mr Cruz Varas is not known to the Commission and that consequently no persecution directed against him is known. The affidavit further states that the Commission has at its disposal complete registers of those who have disappeared, who have been tortured and who have been imprisoned in the fifth region of Chile since 1982.\n\n43. In the proceedings before the Court the Government submitted a further affidavit from Mrs Ovalle dated 8 October 1990 in which she declared, inter alia, that Mr Cruz Varas has no connections with any political party or with any trade union; that there is no declaration registered at the Human Rights Commission in Villa Alemana regarding the detention of Mr Cruz Varas; that according to everyone who has been asked in the district where he lived he has never been politically active; that in all the inquiries made directly with persons who have participated in clandestine activities, he is not known; nor is he known by persons in prison in Valparaiso for their role in similar activities; that she was not aware of any explosions in Villa Alemana directed at railway lines and electric power lines which occurred in the period 1983-86 as alleged by the first applicant; that, following inquiries, he is not known by the various human rights bodies in Quilpue.\n\nThe Government also submitted an affidavit dated 8 October 1990 by the National Board of the FPMR which declared that Mr Cruz Varas is not a representative of the organisation abroad and is not and never has been a combatant member of FPMR. They further disclaimed all responsibility for any action he may have taken in the name of the FPMR.\n\n44. The applicants have submitted a medical report drawn up by Dr Mariano Castex (Professor of Psychiatry, ) following an examination of the first applicant in February 1990. The report includes the following statement:\n\n\"As a conclusion one may state that Mr Hector Cruz Varas suffers a serious ‘post-traumatic stress disorder’ instilled in him as a consequence of the torture and ill-treatment suffered in  in the past years. The exposure to high insecurity, and the return to his native land, has increased the pathological dimension of his sufferings, and if arrangements are not made for an adequate psychological and psychiatric treatment, he might suffer from a worsening of his mental disorder with unforeseeable consequences not only for him, but for his wife and child, the latter badly needing a father if one reads carefully the report on the child.\"\n\n45. A further psychiatric report dated 9 October 1990 was drawn up by Dr Søndergaard following a detailed examination of the applicant in September 1990. The report stated that the first applicant must have experienced \"a stressful event of catastrophic proportions\". It concluded that he showed the \"obvious stigmata of a post-traumatic stress disorder\".\n\n46. The applicants have also submitted the following documents:\n\n- a report dated 18 January 1990 from a former Professor of Psychology at the University of Chile, Marcello Ferrada-Noli, currently researcher at the Karolinska Institute, Stockholm, which suggested that the first applicant might seek to resolve his problems by committing suicide;\n\n- a letter dated 20 October 1990 from Mr Sergio Bushman (European spokesman for the FPMR) which stated that it was not only the members of the FPMR who risked their lives in Chile but also those who collaborated with the organisation. He further stated that the risk of torture, imprisonment or assassination still existed for FPMR members during the present regime;\n\n- a Chilean newspaper cutting of 17 October 1984 describing an attempt to blow up a power line in a town ten kilometres outside Villa Alemana;\n\n- a letter dated 26 September 1990 from staff at the third applicant’s nursery school expressing the fear that his removal from  may cause him permanent harm.\n\nII. RELEVANT LAW AND PRACTICE\n\nA. Domestic law\n\n47. The Aliens Act of 1980 and Aliens Ordinance were in force until 1 July 1989 when the Aliens Act of 1989 entered into force. A new Aliens Ordinance was made under the 1989 Act.\n\nUnder the 1980 Act, a decision of expulsion by the Board could be appealed to the Government whose decision was not subject to appeal. The Government’s decision was then transferred to a Police Authority for execution. If the alien contended, inter alia, that he would be exposed to political persecution or be sent to a theatre of war, the matter would be referred to the Board (Sections 85 and 86) unless the claims were manifestly ill-founded or did not merit consideration. If the Police Authority decided not to refer this question to the Board, an appeal lay to the Board. If the Board decided against the alien, the decision could be appealed to the Government.\n\n48. Under the 1989 Act the competent authorities have a duty when deciding the question of expulsion to consider at the same time whether there is any impediment to the enforcement of the expulsion order.\n\n49. The 1989 Act contains transitional rules to be applied in cases submitted before 1 July 1989. In such cases the procedures applicable under the 1980 Act still apply. Most of the decisions in the present case have therefore been taken under the 1980 Act.\n\n50. Section 3 of the 1980 Aliens Act reads:\n\n\"A refugee shall not without grave reasons be refused asylum in  when he has need of such protection.\n\nFor the purposes of this Act, a refugee is a person who is outside the country of his nationality owing to a well-founded fear of being persecuted for reasons of race, nationality, membership of a particular social group, or religious or political opinion, and who is unable or, owing to such fear, is unwilling to avail himself of the protection of that country. A stateless person who for the same reason is outside the country of his former habitual residence and who is unable or, owing to such fear, is unwilling to return to that country, shall also be deemed a refugee.\n\nFor the purposes of this Act, persecution is defined as indicated in subsection two of this Section as being directed against the life or liberty of the alien or as being otherwise of a severe nature (political persecution).\"\n\nOther relevant provisions of the 1980 Act provide as follows:\n\nSection 6:\n\n\"An alien who, although not a refugee, is unwilling to return to his home country on account of the political situation there, and is able to plead very strong grounds in support of this reluctance, shall not be refused permission to stay in this country if he is in need of protection here, unless there are special reasons for such denial.\"\n\nSection 38:\n\n\"An alien may be expelled if he is residing here without possessing the passport or permit required for residence in .\n\nExpulsion orders as provided in subsection one are to be issued by the National Immigration Board. If an application for a residence permit is rejected, the National Immigration Board shall at the same time make an expulsion order unless there are very strong grounds to the contrary.\"\n\nSection 77:\n\n\"When a refusal-of-entry order or an expulsion order is put into effect, the alien may not be sent to a country where he risks political persecution. Nor may the alien be sent to a country where he is not safeguarded against being sent on to a country where he risks such persecution.\"\n\nSection 80:\n\n\"An alien referred to in Section 6 and pleading grave reasons for not being sent to his home country, may not in the enforcement of a refusal-of-entry order or an expulsion order be sent to that country or to a country from which he risks being sent on to his home country.\"\n\nSection 33 of the 1980 Aliens Ordinance reads:\n\n\"An alien intending to settle in this country or for any other reason to remain here in excess of the period referred to in Section 30, subsection one, may not enter Sweden until he has obtained a residence permit, unless:\n\nAn alien, who has entered Sweden without a residence permit or with a residence permit for a temporary stay only, may not be granted such a permit as long as he is present in this country or on account of an application made here, except in the cases specified in subsection one, paragraphs 2-4 of this section. The aforesaid notwithstanding, an alien who has entered  as a visitor and has substantial reasons for prolonging his visit may be granted a residence permit for a specified period.\"\n\n51. Since 1973  has received about 30,000 Chilean citizens, a large proportion of whom have been granted asylum. Visas have been required for travellers from  as of 1 January 1989. In view of political developments in  in 1988 and 1989 some refugees have returned voluntarily to take up political activities.\n\nB. The practice of the Commission under Rule 36 of its Rules of Procedure\n\n52. Rule 36 of the Commission’s Rules of Procedure reads:\n\n\"The Commission, or when it is not in session, the President may indicate to the parties any interim measure the adoption of which seems desirable in the interest of the parties or the proper conduct of the proceedings before it.\"\n\n53. An indication under Rule 36 is only given where it appears that irreparable damage would result from the implementation of the measure complained of. This might be the case where expulsion or extradition is imminent and the applicant alleges that he is likely to be treated contrary to Articles 2 and/or 3 (art. 2, art. 3) of the Convention in the receiving State. Normally Rule 36 would only apply to cases involving allegations of this nature. Further there must exist a certain degree of probability that a person would be subjected to treatment in breach of these provisions if sent to the country concerned. Evidence must thus be presented to the Commission which reveals the existence of such a risk.\n\n54. When an application for interim measures is made it is brought immediately before the Commission or the President or Acting President if the Commission is not in session. A Rule 36 indication is always limited in time. If the decision is taken by the President or Acting President, the indication will be limited until the Commission next sits. If it is taken by the Commission, it is normally limited until its next session.\n\n55. When the Commission or the President has applied Rule 36, the Secretary to the Commission will inform all the parties by telephone of the decision and confirm it by post or telefax. At the time of the first applicant’s expulsion the Commission had been seised of 182 requests for interim measures in expulsion (as opposed to extradition) cases. In 31 of these cases an indication under Rule 36 was given and complied with by the Contracting Parties concerned. In several cases concerning extradition the State has failed to comply with a Rule 36 indication.\n\nIII. PROCEEDINGS BEFORE THE COMMISSION\n\nA. The Commission’s indications under Rule 36 in the present case\n\n56. The application to the Commission was introduced on 5 October 1989 and registered on the same day. On 6 October 1989, at 09.00 hours, the Commission decided to apply Rule 36 of its Rules of Procedure in the following terms:\n\n\"The Commission ... decided ... to indicate to the Government of Sweden ... that it was desirable in the interest of the Parties and the proper conduct of the proceedings before the Commission not to deport the applicants to Chile until the Commission had had an opportunity to examine the application during its forthcoming session from 6 to 10 November 1989.\"\n\n57. The Agent of the Government was informed by telephone on the same day, at 09.10 hours, of the Commission’s decision. At 12.00 hours the Commission confirmed the said indication by telefax.\n\n58. Officials at the Ministry of Labour were informed of the Commission’s indication at 09.20 hours on 6 October. The matter was presented to the competent Minister at 12.45 hours. However, according to information given by the Government, the Minister could not take any action since the matter had already been decided by the Government and was pending before the Board.\n\n59. On the same day, following a request from Mr Cruz Varas, the Board decided not to stay the enforcement of the expulsion. At that time the Board was aware of the present application to the Commission and of the Commission’s indication under Rule 36.\n\n60. Mr Cruz Varas was deported to  on 6 October 1989 at 16.40 hours. His wife and their son went into hiding in .\n\n61. On 9 November 1989 the Commission took the following decision under Rule 36 of its Rules of Procedure:\n\n\"Having examined the parties’ submissions the Commission decided to indicate to the Government, in accordance with Rule 36 of its Rules of Procedure, that it is desirable in the interest of the parties and the proper conduct of the proceedings before the Commission not to deport to Chile any of the applicants, who are still in Sweden, until the Commission has had an opportunity to examine the application further during its forthcoming session 4-15 December 1989. In respect of Mr Cruz Varas the Commission, given the failure of the Government to comply with its earlier indication not to deport him to Chile, now indicates that it is desirable in the interest of the parties and the proper conduct of the proceedings before the Commission, that the Government take measures which will enable this applicant’s return to Sweden as soon as possible.\"\n\n62. By letter of 22 November 1989 the Government informed the Commission that a request from the first applicant for permission to enter and remain in  was to be examined by the Board and that the question of the execution of the expulsion order in respect of Mrs Bustamento Lazo and Richard Cruz was pending before it. Consequently, the Government had, on 16 November 1989, decided to communicate the Commission’s indication under Rule 36 to the Board.\n\n63. Following the hearing on 7 December 1989, the Commission decided to maintain its indication under Rule 36 of its Rules of Procedure that it was desirable in the interest of the parties and the proper conduct of the proceedings before the Commission not to deport the second and third applicants to Chile and that the Government take measures which would enable the first applicant to return to Sweden as soon as possible.\n\n64. On 7 June 1990 the Commission decided, following the adoption of its report, not to prolong the Rule 36 indication.\n\nB. The Commission’s examination of the application\n\n65. The applicants complained that the first applicant’s expulsion amounted to a breach of Article 3 (art. 3) because of the risk that he would be tortured by the authorities. They also claimed that the expulsion of the third applicant would be in breach of Article 3 (art. 3). In addition they complained that the separation of the family constituted a breach of Article 8 (art. 8) of the Convention. They further invoked Articles 6 and 13 (art. 6, art. 13) of the Convention.\n\n66. The application was declared admissible on 7 December 1989 as regards the applicants’ complaints under Articles 3 and 8 (art. 3, art. 8) and inadmissible as regards the complaints under Articles 6 and 13 (art. 6, art. 13). The Commission also retained for further examination the issues arising from the Government’s failure to comply with the Rule 36 indications.\n\nIn its report adopted on 7 June 1990 (Article 31) (art. 31) the Commission expressed the opinion that there had been no violation of Article 3 (art. 3) (eight votes to five) or Article 8 (art. 8) (unanimously) but that there had been a failure to comply with Article 25 § 1 (art. 25-1) in fine (twelve votes to one) by not following the Commission’s Rule 36 request not to expel the first applicant. The full text of the Commission’s opinion and of the separate opinions contained in the report is reproduced as an annex to the judgment.\n\nFINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT\n\n67. At the public hearing on 22 October 1990 the Government maintained in substance the concluding submissions set out in their memorial, whereby they invited the Court \"to hold that there has been no violation of the Convention in the present case\".\n\nAS TO THE LAW\n\nI.  THE ALLEGED BREACH OF ARTICLE 3 (art. 3)\n\n68. The applicants alleged that the expulsion of Mr Cruz Varas to  constituted inhuman treatment in breach of Article 3 (art. 3) of the Convention because of the risk that he would be tortured by the Chilean authorities and because of the trauma involved in being sent back to a country where he had previously been tortured. They further claimed that the expulsion of the third applicant (Richard) would give rise to such suffering as to amount to a breach of this provision which reads as follows:\n\n\"No one shall be subjected to torture or to inhuman or degrading treatment or punishment.\"\n\nA. Applicability of Article 3 (art. 3) in expulsion cases\n\n69. In its Soering judgment of 7 July 1989 the Court held that the decision by a Contracting State to extradite a fugitive may give rise to an issue under Article 3 (art. 3), and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country (Series A no. 161, p. 35, § 91).\n\nAlthough the establishment of such responsibility involves an assessment of conditions in the requesting country against the standards of Article 3 (art. 3), there is no question of adjudicating on or establishing the responsibility of the receiving country, whether under general international law, under the Convention or otherwise. In so far as any liability under the Convention is or may be incurred, it is liability incurred by the extraditing Contracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment (ibid., p. 36, § 91).\n\n70. Although the present case concerns expulsion as opposed to a decision to extradite, the Court considers that the above principle also applies to expulsion decisions and a fortiori to cases of actual expulsion.\n\nB. Application of Article 3 (art. 3) in the circumstances of the case\n\n1. Arguments presented by those appearing before the Court\n\n71. The first applicant stated that he had taken part in various clandestine and subversive political activities in  in collaboration with, but not as a representative of, the FPMR. As a result he had been arrested on various occasions and tortured by the Chilean police. He claimed that on account of his previous activities his expulsion exposed him to the risk that he would be arrested and tortured once more on his return to  where torture was still prevalent.\n\nIn addition he maintained that medical evidence substantiated his claims to have been tortured in the past and that he suffers from a post-traumatic stress disorder linked to these experiences. He submitted that in assessing the allegations concerning his political and clandestine activities the Court should take into account the fact that asylum-seekers can rarely provide documentary proof of such matters. Indeed his activities were of such a nature that they could not be supported by documentary evidence. The Court should also have regard to the fact that those who have been tortured may feel apprehensive towards any authorities and be afraid to give a full and accurate account of their case. He contended that against this background he should be entitled to a \"relaxation\" of the burden of proof and given the benefit of the doubt, particularly in view of the medical evidence he had adduced.\n\n72. The Government stated that they were very well informed about the situation in  in view of the large number of Chilean refugees they have had to deal with over the years and their contacts through the Swedish Embassy in  with opposition groups. They pointed out that at the time the expulsion decision was taken there had been important improvements in the political and human rights situation there and many persons who had sought refuge in  were returning to  to take up political activities. Furthermore they had carried out a thorough examination of the first applicant’s allegations and had considered that his version of events was not credible. In this respect they emphasised the fact that he had said nothing to the authorities about having been tortured until his interrogation by the Police Authority on 13 January 1989 (see paragraph 22 above). Moreover, the contents of his story were found to be contradictory and also lacking in credibility in various respects.\n\nThe Government further contended that the evidence they have gathered since his expulsion supports their belief that he had not been politically active or a member of the FPMR or persecuted by the police.\n\nFinally the Government maintained that the medical evidence submitted by the first applicant only shows that he had at some time in the past been subjected to maltreatment. It does not show that he was tortured by the Chilean authorities or by persons for whom the Chilean Government could be held responsible.\n\n73. The Commission, on the other hand, accepted that Mr Cruz Varas had been subjected in the past to treatment contrary to Article 3 (art. 3) by persons for whom the  was responsible. However, in view of the political evolution which had taken place in , the Commission did not consider that there existed a real risk that he would again be exposed to such treatment.\n\n2. The Court’s examination of the issues\n\na. The determination of the facts\n\n74. The Court recalls that under the Convention system, the establishment and verification of the facts is primarily a matter for the Commission (Articles 28 § 1 and 31) (art. 28-1, art. 31). Accordingly it is only in exceptional circumstances that the Court will use its powers in this area. The Court is not, however, bound by the Commission’s findings of fact and remains free to make its own appreciation in the light of all the material before it.\n\n75. In determining whether substantial grounds have been shown for believing in the existence of a real risk of treatment contrary to Article 3 (art. 3) the Court will assess the issue in the light of all the material placed before it or, if necessary, material obtained proprio motu (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 64, § 160).\n\n76. Since the nature of the Contracting States’ responsibility under Article 3 (art. 3) in cases of this kind lies in the act of exposing an individual to the risk of ill-treatment, the existence of the risk must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting State at the time of the expulsion; the Court is not precluded, however, from having regard to information which comes to light subsequent to the expulsion. This may be of value in confirming or refuting the appreciation that has been made by the Contracting Party or the well-foundedness or otherwise of an applicant’s fears.\n\nb. Whether the first applicant’s expulsion exposed him to a real risk of inhuman treatment\n\n77. The Court takes note of the medical evidence submitted by the applicants and, in particular, the evidence of Dr Jacobsson who found that the first applicant’s physical injuries and demeanour while recounting his experiences were consistent with his allegations (see paragraphs 26 and 39-40 above). Having regard to Dr Jacobsson’s experience in examining victims of torture, this evidence supports the view that the applicant has, at some stage in the past, been subjected to inhuman or degrading treatment. According to the Commission the only plausible explanation for this treatment is that it was carried out by persons for whom \"the then Chilean regime\" was responsible. There is no element in the material before the Court, however, apart from the first applicant’s allegations, which provides direct evidence for this conclusion.\n\n78. Moreover, even if allowances are made for the apprehension that asylum-seekers may have towards the authorities and the difficulties of substantiating their claims with documentary evidence, the first applicant’s complete silence as to his alleged clandestine activities and torture by the Chilean police until more than eighteen months after his first interrogation by the Växjö Police Authority casts considerable doubt on his credibility in this respect (see paragraphs 14-22 above).\n\nAs the Government have pointed out, there was no reference to these allegations during the police interrogations that took place in June 1987 and October 1988 and the many written submissions made in the course of the immigration proceedings up to January 1989 (see paragraph 22 above). These doubts are reinforced by the fact that he was legally represented at all stages throughout these proceedings and that he must have been aware of the importance of bringing to the attention of the authorities any element which supported his asylum claim. His credibility is further called into question by the continuous changes in his story following each police interrogation and by the fact that no material has been presented to the Court which substantiates his claims of clandestine political activity on behalf of or in collaboration with members of the FPMR (ibid.). On the contrary the evidence points in the opposite direction (see paragraphs 41-43 above).\n\n79. The Court also notes that in the course of his stay in  subsequent to his expulsion the applicant was apparently unable to locate any witnesses or adduce any other evidence which might have corroborated to some degree his claims of clandestine political activity.\n\n80. In any event, a democratic evolution was in the process of taking place in Chile which had led to improvements in the political situation and, indeed, to the voluntary return of refugees from Sweden and elsewhere (see paragraphs 34 and 51 above).\n\n81. The Court also attaches importance to the fact that the Swedish authorities had particular knowledge and experience in evaluating claims of the present nature by virtue of the large number of Chilean asylum-seekers who had arrived in  since 1973. The final decision to expel the applicant was taken after thorough examinations of his case by the National Immigration Board and by the Government (see paragraphs 14-33 above).\n\n82. In the light of these considerations the Court finds that substantial grounds have not been shown for believing that the first applicant’s expulsion would expose him to a real risk of being subjected to inhuman or degrading treatment on his return to  in October 1989. Accordingly there has been no breach of Article 3 (art. 3) in this respect.\n\nc. Whether the first applicant’s expulsion involved such trauma that it amounted to a breach of Article 3 (art. 3)\n\n83. It is recalled that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 (art. 3). The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the nature and context of the treatment, the manner and method of its execution, its duration, its physical or mental effects and, in some instances, the sex, age and state of health of the victim (see the above-mentioned Soering judgment, Series A no. 161, p. 39, § 100, and the authorities cited therein).\n\n84. In the present case the first applicant was considered to be suffering from a post-traumatic stress disorder prior to his expulsion and his mental health appeared to deteriorate following his return to  (see paragraphs 27 and 44 above). However, it results from the finding in paragraph 82 that no substantial basis has been shown for his fears. Accordingly the Court does not consider that the first applicant’s expulsion exceeded the threshold set by Article 3 (art. 3).\n\nd. Whether the possible expulsion of the third applicant could amount to a breach of Article 3 (art. 3)\n\n85. Before the Court the applicants do not appear to have maintained their complaint that the expulsion of the third applicant would amount to a breach of Article 3 (art. 3). In any event the facts do not reveal a breach in this respect either.\n\nC. Recapitulation\n\n86. In sum, there has been no breach of Article 3 (art. 3).\n\nII. THE ALLEGED BREACH OF ARTICLE 8 (art. 8)\n\n87. All three applicants alleged that the expulsion of the first applicant led to a separation of the family and amounted to a violation of their right to respect for family life contrary to Article 8 (art. 8), which reads:\n\n\"1. Everyone has the right to respect for his private and family life, his home and his correspondence.\n\n2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.\"\n\nIn their view, in assessing whether there had been a breach of Article 8 (art. 8), it should be borne in mind that the Commission had requested the Government under Rule 36 of its Rules of Procedure not to proceed with the expulsion. They contended that the expulsion of the first applicant confronted the other members of his family with the choice of remaining in hiding and exercising the right of petition under Article 25 (art. 25) or returning to  with him.\n\n88. As noted by both the Government and the Commission, the expulsion of all three applicants was ordered by the Swedish Government but the second and third applicants went into hiding and have so remained in order to evade enforcement of the order (see paragraph 33 above). Moreover, the evidence adduced does not show that there were obstacles to establishing family life in their home country (see, mutatis mutandis, the Abdulaziz, Cabales and Balkandali judgment of 28 May 1985, Series A no. 94, p. 34, § 68). The Court refers in this respect to its finding concerning the applicants’ complaints under Article 3 (art. 3) (see paragraph 86 above). In these circumstances responsibility for the resulting separation of the family cannot be imputed to .\n\n89. Accordingly there has been no \"lack of respect\" for the applicants’ family life in breach of Article 8 (art. 8).\n\nIII. THE ALLEGED BREACH OF ARTICLE 25 § 1 (art. 25-1)\n\n90. It remains to be determined whether the failure by the Swedish Government to comply with the Commission’s request under Rule 36 of its Rules of Procedure not to expel the applicants amounted to a breach of their obligation under Article 25 § 1 (art. 25-1) not to hinder the effective exercise of the right of petition. This provision reads:\n\n\"The Commission may receive petitions addressed to the Secretary General of the Council of Europe from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in [the] Convention, provided that the High Contracting Party against which the complaint has been lodged has declared that it recognises the competence of the Commission to receive such petitions. Those of the High Contracting Parties who have made such a declaration undertake not to hinder in any way the effective exercise of this right.\"\n\nRule 36 provides:\n\n\"The Commission, or where it is not in session, the President may indicate to the parties any interim measure the adoption of which seems desirable in the interest of the parties or the proper conduct of the proceedings before it.\"\n\nA. Arguments presented by those appearing before the Court\n\n91. The applicants submitted that the effective exercise of the right of petition presupposed that success in the proceedings before the Convention organs would be meaningful for them. This would not be the case if by the time their claims had been adjudicated the first applicant had already suffered the harm sought to be avoided by the application. In addition they contended that for the exercise of the right of petition to be effective the principles of equality of arms and the right to have adequate time and facilities to prepare their defence - both fundamental principles of a fair trial protected under Article 6 (art. 6) - should be respected in the proceedings. The fact that counsel did not have direct access to the first applicant meant that the applicants were deprived of the possibility of instigating certain inquiries relating to the evidential issues in the case which would have supported their claims under Articles 3 and 8 (art. 3, art. 8). Further the first applicant was prevented from participating in the proceedings before the Commission. Accordingly they did not enjoy a fair procedure on a basis of equality with the respondent Government and were thus hindered in the effective presentation of their case.\n\n92. The Government maintained that no obligation exists under the Convention to comply with a Commission indication under Rule 36. The Commission’s opinion on the merits of a claim was not binding on a Contracting Party and the very language of the request made in the present case confirmed its non-binding character. Furthermore the fact that Rule 36 requests have been complied with in the past could not render them binding under the Convention.\n\nIn the Government’s view had they considered that such requests were binding Sweden could not have ratified the Convention without changing domestic law since, in cases such as the present, compliance was not possible for constitutional reasons.\n\nAs to Article 25 (art. 25) of the Convention, it had so far been interpreted as protecting exclusively the procedural right of making a petition and the facilities for exercising that right. The Commission’s interpretation that it protected applicants from irreparable harm found no support in the wording of the provision or in legal writing. In any event the implementation of the expulsion order did not in fact prevent the first applicant from presenting his case to the Commission.\n\n93. For the Commission the fact that Sweden did not abide by the first indication under Rule 36 constituted a failure to comply with its obligations under Article 25 § 1 (art. 25-1). While the undertaking in this provision did not imply a general duty on Contracting Parties to suspend measures or decisions at the domestic level, there were special circumstances where the enforcement of a decision might conflict with the effective exercise of the right of petition. Such a case arose where serious and irreparable damage was likely to occur to an applicant by enforcing an expulsion decision in circumstances where the Commission had requested a Contracting Party under Rule 36 not to do so. The effectiveness of the petition system would be impaired if Parties were not obliged to follow indications given by the Commission or the Court or refrain from taking steps which could jeopardise the life of an applicant. In the present case the Government had frustrated the examination of the alleged violation and had put into question the practicality and effectiveness of the findings of the Convention organs.\n\nB. The Court’s examination of the issues\n\n1. General considerations\n\n94. As has been noted on previous occasions the Convention must be interpreted in the light of its special character as a treaty for the protection of individual human beings and its safeguards must be construed in a manner which makes them practical and effective (see, inter alia, the above-mentioned Soering judgment, Series A no. 161, p. 34, § 87). While this approach argues in favour of a power of the Commission and Court to order interim measures to preserve the rights of parties in pending proceedings, the Court cannot but note that unlike other international treaties or instruments the Convention does not contain a specific provision with regard to such measures (see, inter alia, Article 41 of the Statute of the International Court of Justice; Article 63 of the 1969 American Convention on Human Rights; Articles 185 and 186 of the 1957 Treaty establishing the European Economic Community).\n\n95. The European Movement, which first proposed the drafting of a European Convention on Human Rights, originally included in a draft Statute of the European Court of Human Rights an interim measures provision (Article 35) based in substance on Article 41 of the Statute of the International Court of Justice (see Collected Edition of the travaux préparatoires, Vol. I, p. 314). The travaux préparatoires of the Convention are, however, silent as to any discussion which may have taken place on this question.\n\n96. The absence of a specific interim measures provision in the Convention gave rise to a Recommendation by the Consultative Assembly of the Council of Europe calling on the Committee of Ministers to draft an additional Protocol to the Convention which would empower the Convention organs to order interim measures in appropriate cases (see Recommendation 623 (1971), Yearbook of the Convention, Vol. 14, pp. 68-71). The Committee of Ministers subsequently decided that the conclusion of such a protocol was not expedient on the ground, inter alia, that the existing practice of the Commission in requesting governments to postpone the measure complained of worked satisfactorily (see Doc. 3325, pp 4-6, Working Papers of Consultative Assembly, 25th Ordinary Session, 25 September - 2 October 1973). The Assembly later recommended that the Committee of Ministers call on member States to \"suspend extradition or expulsion to a non-Contracting State\" where the Commission or the Court was called on to take a decision on, inter alia, allegations under Article 3 (art. 3) (see Recommendation 817 (1977) on Certain Aspects of the Right to Asylum, Yearbook of the Convention, Vol. 20, pp. 82-85). Finally the Committee of Ministers on 27 June 1980 adopted a similar recommendation to governments of member States in cases concerning extradition to a non-Contracting State (see Recommendation No. R (80) 9, Yearbook of the Convention, Vol. 23, pp. 78-79).\n\n2. Can a power to order interim measures be derived from Article 25 § 1 (art. 25-1) or other sources?\n\n97. The question arises for consideration in this case whether, notwithstanding the absence of a specific provision in the Convention, a power for the Commission to order interim measures can nevertheless be derived from Article 25 § 1 (art. 25-1) considered separately or in conjunction with Rule 36 of the Commission’s Rules of Procedure or from other sources.\n\n98. Firstly it must be observed that Rule 36 has only the status of a rule of procedure drawn up by the Commission under Article 36 (art. 36) of the Convention. In the absence of a provision in the Convention for interim measures an indication given under Rule 36 cannot be considered to give rise to a binding obligation on Contracting Parties. Indeed this is reflected in the wording both of Rule 36 itself (\"may indicate any interim measure the adoption of which seems desirable\") and of the indications made under it in the present case (\"to indicate to the Government of Sweden that it was desirable ... not to deport the applicants to Chile\") (see paragraph 56 and similar wording in paragraph 61 above).\n\n99. As to the Contracting Parties’ obligation not to hinder the effective exercise of the right of petition it must first be noted that Article 25 § 1 (art. 25-1) is limited to proceedings before the Commission and to individual applications. It does not apply to inter-State cases where the interest in respecting an indication made under Rule 36 is essentially the same.\n\nIn its ordinary meaning Article 25 § 1 (art. 25-1) imposes an obligation not to interfere with the right of the individual effectively to present and pursue his complaint with the Commission. Such an obligation confers upon an applicant a right of a procedural nature distinguishable from the substantive rights set out under Section I of the Convention or its Protocols. However it flows from the very essence of this procedural right that it must be open to individuals to complain of alleged infringements of it in Convention proceedings. In this respect also the Convention must be interpreted as guaranteeing rights which are practical and effective as opposed to theoretical and illusory (see the above-mentioned Soering judgment, Series A no. 161, p. 34, § 87, and the authorities cited therein).\n\nNevertheless, as seen above, no specific provision in the Convention empowers the Commission to order interim measures. It would strain the language of Article 25 (art. 25) to infer from the words \"undertake not to hinder in any way the effective exercise of this right\" an obligation to comply with a Commission indication under Rule 36. This conclusion is not altered by considering Article 25 § 1 (art. 25-1) in conjunction with Rule 36 or - as submitted by the Delegate of the Commission - in conjunction with Articles 1 and 19 (art. 1, art. 19) of the Convention.\n\n100. The practice of Contracting Parties in this area shows that there has been almost total compliance with Rule 36 indications. Subsequent practice could be taken as establishing the agreement of Contracting States regarding the interpretation of a Convention provision (see, mutatis mutandis, the above-mentioned Soering judgment, Series A no. 161, pp. 40-41, § 103, and Article 31 § 3 (b) of the Vienna Convention of 23 May 1969 on the Law of Treaties) but not to create new rights and obligations which were not included in the Convention at the outset (see, mutatis mutandis, the Johnston and Others judgment of 18 December 1986, Series A no. 112, p. 25, § 53). In any event, as reflected in the various recommendations of the Council of Europe bodies referred to above, the practice of complying with Rule 36 indications cannot have been based on a belief that these indications gave rise to a binding obligation (see paragraph 96 above). It was rather a matter of good faith co-operation with the Commission in cases where this was considered reasonable and practicable.\n\n101. Finally, no assistance can be derived from general principles of international law since, as observed by the Commission, the question whether interim measures indicated by international tribunals are binding is a controversial one and no uniform legal rule exists.\n\n102. Accordingly, the Court considers that the power to order binding interim measures cannot be inferred from either Article 25 § 1 (art. 25-1) in fine, or from other sources. It lies within the appreciation of the Contracting Parties to decide whether it is expedient to remedy this situation by adopting a new provision notwithstanding the wide practice of good faith compliance.\n\n103. In this connection, it must be borne in mind that Rule 36 indications are given by the Commission or its President only in exceptional circumstances. They serve the purpose in expulsion (or extradition) cases of putting the Contracting States on notice that, in the Commission’s view, irreversible harm may be done to the applicant if he is expelled and, further, that there is good reason to believe that his expulsion may give rise to a breach of Article 3 (art. 3) of the Convention. Where the State decides not to comply with the indication it knowingly assumes the risk of being found in breach of Article 3 (art. 3) following adjudication of the dispute by the Convention organs. In the opinion of the Court where the State has had its attention drawn in this way to the dangers of prejudicing the outcome of the issue then pending before the Commission any subsequent breach of Article 3 (art. 3) found by the Convention organs would have to be seen as aggravated by the failure to comply with the indication.\n\n3. Did the expulsion actually hinder the effective exercise of the right of petition?\n\n104. The applicants claimed that the expulsion of the first applicant actually hindered the effective presentation of the application to the Commission.\n\nCompliance with the Rule 36 indication would no doubt have facilitated the presentation of the applicants’ case before the Commission. However, there is no evidence that they were hindered in the exercise of the right of petition to any significant degree. The first applicant remained at liberty following his return to  and was free to leave the country (see paragraphs 36-38 above). Their counsel was in fact able to represent them fully before the Commission notwithstanding the first applicant’s absence during the Commission’s hearing.\n\nNor is it established that his inability to confer with his lawyer hampered the gathering of evidence additional to that already adduced during the lengthy immigration proceedings in  or the countering of the Government’s submissions on questions of fact.\n\n4. Recapitulation\n\n105. In sum, there has been no breach of Article 25 § 1 (art. 25-1) in fine.\n\nFOR THESE REASONS, THE COURT\n\n1.  Holds by eighteen votes to one that there has been no violation of Article 3 (art. 3);\n\n2.  Holds unanimously that there has been no violation of Article 8 (art. 8);\n\n3.  Holds by ten votes to nine that there has been no violation of Article 25 § 1 (art. 25-1) in fine.\n\nDone in English and French, and delivered at a public hearing in the Human Rights Building, , on 20 March 1991.\n\nIn accordance with Article 51 § 2 (art. 51-2) of the Convention and Rule 53 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:\n\n(a) the dissenting opinion of Mr Cremona, Mr Thór Vilhjálmsson, Mr Walsh, Mr Macdonald, Mr Bernhardt, Mr De Meyer, Mr Martens, Mr Foighel and Mr Morenilla;\n\n(b) the separate opinion of Mr De Meyer.\n\nIn our view there has been a violation of Article 25 (art. 25) insofar as the first applicant was expelled to  on 6 October 1989, that is, one day after the application was lodged with the European Commission of Human Rights and a few hours after the Commission had asked the Government \"not to deport the applicants to  ...\"\n\n1.  The present judgment confirms the view expressed in the Soering judgment that extradition and expulsion may contravene the Convention. It cannot be otherwise since the Convention provides for a real and effective protection of human rights for all persons present in the member States; their governments cannot be permitted to expose such persons to serious violations of human rights in other countries. This should be beyond doubt in cases where torture or violations of other basic human rights are to be feared.\n\nThe protection under the Convention would be meaningless if a State had the right to extradite or expel a person without any prior possibility of clarification - as far and as soon as possible - of the consequences of the expulsion. The Court has repeatedly underlined that \"the object and purpose of the Convention as an instrument for the protection of individual human beings require that its provisions be interpreted and applied so as to make its safeguards practical and effective\" (see the Soering judgment of 7 July 1989, Series A no. 161, p. 34, § 87). This basic principle must be kept in mind when we consider the procedural guarantees contained in the Convention.\n\n2.  It is true that Article 25 § 1 (art. 25-1), second sentence, of the Convention seems, according to its wording, to protect only the effective exercise of the right to lodge a complaint. However, this does not imply that States are permitted to make the possible result of an application devoid of any practical relevance. Otherwise States would be obliged to allow a person to lodge a petition with the Commission but would be able to expel him immediately thereafter irrespective of the consequences however serious they might be. We cannot accept such an interpretation. In our view, the procedural guarantee contained in Article 25 (art. 25) presupposes and includes the right of the individual to be afforded, at the least, an opportunity to have the application considered more closely by the Convention organs and to have his basic rights finally protected if need be.\n\n3.  These principles do not lead to the result that every application under Article 25 (art. 25) automatically inhibits extradition or expulsion to another country. The mere fact that a complaint under Article 25 (art. 25) has been lodged concerning a decision to extradite or expel should not restrict the power of governments to consider and to weigh the available evidence and to decide whether the decision should, nevertheless, be enforced. In reaching this decision they can take into account that applications are often obviously unfounded. Considerations of State security and public policy and other facts (including the length of the procedure before the Convention organs) may also be relevant. But at this stage - and only at this stage - the indication of provisional measures under Rule 36 of the Commission’s Rules of Procedure comes into play. Such an indication gives the respondent State the assurance that the Commission considers the application to be of great importance under the Convention and that it will investigate the matter speedily (see paragraphs 52-55 above). Seen in this perspective, measures indicated under Rule 36 bind the State concerned since this is the only means to protect the applicant against a possible violation of his or her rights causing irreparable harm. Furthermore, it is, in our view, implicit in the Convention that in cases such as the present the Convention organs have the power to require the parties to abstain from a measure which might not only give rise to serious harm but which might also nullify the result of the entire procedure under the Convention.\n\nIn the final analysis, it is incompatible with Article 25 (art. 25) of the Convention that the first applicant in this case was expelled immediately after he had lodged his complaint contrary to the indication made under Rule 36 of the Commission’s Rules of Procedure.\n\n4.  It cannot be of any relevance in the present case that in the event the applicant was not tortured on his return to  and that he was able to take the necessary steps in the procedure before the Convention organs. The critical date is 6 October 1989. At that date a grave violation of human rights following deportation could not have been excluded and the Commission had clearly indicated that closer investigation appeared necessary and would be conducted speedily.\n\n5.  It is true that, unlike some other international instruments, the Convention does not contain any express provision as to the indication of provisional measures. But this does not exclude an autonomous interpretation of the European Convention with special emphasis placed on its object and purpose and the effectiveness of its control machinery. In this context too, present-day conditions are of importance. Today the right of individual petition and the compulsory jurisdiction of the Court have been accepted by nearly all the member States of the Council of Europe. It is of the essence that the Convention organs should be able to secure the effectiveness of the protection they are called on to ensure.\n\nHaving regard to the circumstances of the case, as described in detail in the judgment, and to the fact that in October 1989 the situation in Chile was still not wholly reassuring, there were, in my view, grounds for believing that the first applicant’s expulsion to that country was likely to expose him there to \"a real risk of being subjected to torture or to inhuman or degrading treatment or punishment\". I am therefore of the opinion that there has been a violation of his rights under Article 3 (art. 3) of the Convention.","title":""}
{"_id":"passage_223","text":"PROCEDURE\n\n1.  The case originated in an application (no. 71933/01) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Vakha Gartukayev, on 5 July 2001.\n\n2.  The applicant was represented before the Court by Mr I. Timishev, a lawyer practising in . The Russian Government (“the Government”) were represented by their Agent, Mr P. Laptev, Representative of the  at the European Court of Human Rights.\n\n3.  The applicant alleged, in particular, that a restriction on his right to liberty of movement had not been lawful or justified.\n\n4.  The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.\n\n5.  By a decision of 30 March 2004, the Court declared the application partly admissible.\n\n6.  On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Second Section (Rule 52 § 1).\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n7.  The applicant is an ethnic Chechen; he was born in 1941 in the  and lived there. In 1994 his property in the  was destroyed as a result of military hostilities. Since 1996 the applicant has been living in ; on 30 December 1996 a forced migrant’s card was issued to him. At the material time the applicant was the deputy chairman of the Board of the Union of Consumer Associations of the .\n\n8.  On 27 January 2000 the applicant returned by car from a mission in the  to  in Kabardino-Balkaria. He was accompanied by Mr Ba., driver, Mr M., a member of the Parliament of the , and Mr Bi., a representative of the Chechen elders.\n\n9.  At about 5 p.m. the applicant’s car was stopped at the check-point “Kurp-2” on the administrative border between Ingushetia and Kabardino-Balkaria. After three hours of checking the documents and identities of the applicant and his travelling companions, officers of the Kabardino-Balkaria State Inspectorate for Road Safety (ГИБДД МВД КБР) refused them entry to Kabardino-Balkaria on the ground of their Chechen ethnic origin.\n\n10.  In the night of 27 January 2000, the applicant and his companions took a long detour and reached  through a different check-point.\n\n11.  On 24 February 2000 the applicant lodged a complaint with the  against the Kabardino-Balkaria Ministry of the Interior (МВД КБР). The applicant sought a declaration that the actions of the police officers had been unlawful, and claimed compensation for non-pecuniary damage caused by the alleged violation of his constitutional right to liberty of movement.\n\n12.  The  accepted the complaint, but no proceedings took place for more than a year. Following the applicant’s complaint to the Supreme Court of the , the  held a hearing.\n\n13.  On 13 April 2001 the  gave its judgment. The court found that on 28 September 1999 the Ministry of the Interior of Kabardino-Balkaria had issued Directive no. 1/220 (Указание МВД КБР № 1/220) on the procedure for crossing the administrative border of Kabardino-Balkaria by residents of the . The regulation provided for stricter checks of vehicles and passengers of Chechen origin, as well as for the special registration of Chechens on the basis of migrants’ cards. The court questioned the police officers who had been on duty on 27 January 2000. The officers maintained that neither the applicant nor his companions had produced their migrants’ cards; the officers had informed their superior on duty of this situation and, pursuant to his oral order, they refused admission to the applicant and his companions. The court held that the applicant had failed to prove that he had indeed shown his migrant’s card to the police officers and, therefore, there was no ground to declare their actions unlawful. The court noted that on the same night the applicant had gained admission into Kabardino-Balkaria through a different check-point. The court also inspected the registration log of 27 January 2000 and noted that on the same day other Chechen passengers carrying migrants’ cards had been admitted into Kabardino-Balkaria.\n\n14.  The applicant appealed against the judgment of 13 April 2001. He submitted, in particular, that the regulation of 28 September 1999 had not been valid and enforceable because it had never been officially published.\n\n15.  On 22 May 2001 the Supreme Court of the  upheld the judgment of 13 April 2001. The court pointed out that the burden of proof was on the applicant, who had failed to show that he had been denied entry because of his ethnic (Chechen) origin.\n\nII.  RELEVANT DOMESTIC LAW\n\n16.  Article 19 of the Constitution of the  provides for the equality of all before the law and courts of law, and equality of rights and liberties.\n\n17.  Article 27 provides that everyone lawfully within the territory of the  shall have the right to move freely and choose his or her place of stay or residence.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL NO. 4\n\n18.  The applicant complained that he had been refused admission to Kabardino-Balkaria through the “Kurp-2” check-point. He relied on Article 2 of Protocol No. 4 which reads, in the relevant part, as follows:\n\n“1.  Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. ...\n\n3.  No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.\n\n4.  The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.”\n\n19.  The Government acknowledged that the restriction on the applicant’s right to liberty of movement had been unlawful. It had been imposed by a regulation issued by the Ministry of the Interior of Kabardino-Balkaria, whereas the Liberty of Movement Law (no. 5242-I of 25 June 1993) required that any such restriction be established by an act of the legislature.\n\n20.  The applicant took note of the Government’s submission.\n\n21.  The Court recalls that the common requirement of paragraphs 3 and 4 of Article 2 of Protocol No. 4 is that the impugned restriction should be imposed “in accordance with law”. The Government accepted that this condition had not been met in the present case because the requirement for former Chechen residents to produce a migrant’s card at the administrative border with Kabardino-Balkaria had been introduced by a regulation which had not had the quality of “law” in the domestic legal system. The Court has no reason to doubt the Government’s interpretation of their own legislation. Accordingly, the restriction on the applicant’s right to liberty of movement was not imposed in accordance with law. This finding makes it unnecessary to determine whether it pursued a legitimate aim and was justified in a democratic society.\n\n22.  There has been therefore a violation of Article 2 of Protocol No. 4.\n\nII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n23.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n24.  The applicant claimed 300,000 euros in respect of compensation for non-pecuniary damage.\n\n25.  The Government submitted that the applicant’s claim was excessive and unreasonable, and that a token amount would be equitable in the circumstances of the case.\n\n26.  The Court considers that the applicant has suffered non-pecuniary damage resulting from the actions and decisions of the domestic authorities incompatible with the Convention and its Protocols, which is not sufficiently compensated by its finding of a violation. However, it considers that the amount claimed by the applicant is excessive. Making its assessment on an equitable basis, the Court awards the applicant EUR 2,000.\n\nB.  Costs and expenses\n\n27.  The applicant claimed 40 euros in respect of costs and expenses.\n\n28.  The Government submitted that the applicant failed to substantiate his claim for costs with appropriate documents.\n\n29.  The Court notes that the applicant did not produce any receipts or vouchers showing that the expenses had been actually incurred. Accordingly, it does not make an award under this head.\n\nC.  Default interest\n\n30.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Holds that there has been a violation of Article 2 of Protocol No. 4;\n\n2.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,000 (two thousand euros) in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of settlement, plus any tax that may be chargeable;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n3.  Dismisses the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 13 December 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_74","text":"PROCEDURE\n\n1.  The case originated in an application (no. 39685/06) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Ms Rayshat Shakhabova, on 20 September 2006.\n\n2.  The applicant was represented by lawyers of the Stichting Russian Justice Initiative (“SRJI”), an NGO based in the Netherlands with a representative office in . The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the  at the European Court of Human Rights.\n\n3.  On 10 June 2008 the Court decided to apply Rule 41 of the Rules of Court and to grant priority treatment to the application and to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. The President of the Chamber acceded to the Government's request not to make publicly accessible the documents from the criminal investigation file deposited with the Registry in connection with the application (Rule 33 of the Rules of Court).\n\n4.  The Government objected to the joint examination of the admissibility and merits of the application and to the application of Rule 41 of the Rules of Court. Having considered the Government's objection, the Court dismissed it.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n5.  The applicant was born in 1942 and lives in the town of Urus-Martan, in the . She is the mother of Mr Adam Khurayev, born in 1978.\n\nA.  Disappearance of Adam Khurayev\n\n1.  The applicant's account\n\n6.  The applicant's house in Urus-Martan was destroyed during the military campaign in the  in the autumn of 1999. The applicant's family had to move temporarily to Ingushetia, where they lived at the material time. Adam Khurayev frequently visited his aunt, Ms M.M., who lived in Urus-Martan, and stayed at her house no. 14,  (the street name and the house number were later changed to 74, ).\n\n7.  In the summer of 2002 Adam Khurayev and his twin brother Arbi Khurayev submitted their documents to the Urus-Martan District Department of the Interior (the ROVD) to exchange their old Soviet passports for new Russian ones. On 22 November 2002 Adam and Arbi Khurayev went to Urus-Martan to pick up their new passports. The brothers stayed at their aunt's house at the above address. At the material time the town of  was under curfew. The authorities maintained manned checkpoints at the entry and exit points to the town.\n\n8.  At about 10 p.m. on 23 November 2002 the family of M.M. was at home. When Adam Khurayev went outside, to the toilet located in the courtyard, a group of over fifteen armed masked men in camouflage uniforms broke into the house. The intruders neither introduced themselves nor produced any documents. The applicant's relatives thought that they were Russian servicemen. They dispersed into different rooms, pointed their guns at the family members and ordered everyone to stay in their rooms. M.M.'s daughter, Ms L.M., rushed to the window and heard the intruders order someone in Russian: “Lie on the ground!” She thought that the order must have been given to Adam Khurayev, as he was the only family member in the yard.\n\n9.  Without providing any explanations or reasons for their actions, the servicemen conducted a quick but thorough search of M.M.'s house. They did not find anything of interest to them.\n\n10.  After that the servicemen returned to the yard and walked out into the street. Shortly thereafter M.M. and L.M. heard the sound of heavy military vehicles in the street.\n\n11.  Ms. A.M., one of M.M.'s neighbours, residing at , was woken up at about 10 p.m. on 23 November 2002 by the sound of heavy military vehicles in the street. She looked out of the window and saw an APC (armoured personnel carrier) and two military UAZ vehicles (“таблетка”) parked in the street. A.M. did not go outside because of the curfew. According to A.M., at the material time APCs were frequently driven in Urus-Martan at night and servicemen often took young men away. About fifteen minutes later the vehicles started their engines and drove away.\n\n12.  After the servicemen had left, the applicant's relatives realised that Adam Khurayev, who had been in the courtyard, had disappeared.\n\n13.  The applicant has had no news of Adam Khurayev since 23 November 2002.\n\n14.  The above account of the events is based on the applicant's application form and written statements by M.M. and A.M., dated 10 and 11 November 2005 respectively.\n\n2.  Information submitted by the Government\n\n15.  The Government submitted that on 23 November 2002 Adam Khurayev had been abducted by unidentified persons.\n\nB.  The search for Adam Khurayev and the investigation\n\n1.  The applicant's account\n\n(a)  The applicant's search for Adam Khurayev\n\n16.  In the morning of 24 November 2002 Arbi Khurayev went to Ingushetia to inform the applicant about the disappearance of Adam Khurayev. The applicant immediately went to Urus-Martan and started searching for her son. From 24 November 2002 for almost a month the applicant, who was elderly and illiterate, complained in person about her son's disappearance to a number of local law-enforcement agencies, including the Urus-Martan district military commander's office (hereafter “the district military commander's office”), the ROVD, and the Urus-Martan district prosecutor's office (“the district prosecutor's office”). The authorities denied any involvement on the part of their officials in the abduction of Adam Khurayev.\n\n17.  The applicant's relatives assisted her in the search for Adam Khurayev. They contacted, both in person and in writing, various official bodies, such as the President of the Russian Federation, the Envoy of the President of the Russian Federation for Ensuring Human Rights and Freedoms in the Chechen Republic, the Chechen administration, departments of the interior and prosecutors' offices at different levels, asking for help in establishing the whereabouts of Adam Khurayev. The applicant retained copies of a number of those complaints and submitted them to the Court. An official investigation was opened by the district prosecutor's office. The relevant information is summarised below.\n\n(b)  The official investigation into the abduction of Adam Khurayev\n\n(b)  The official investigation into the abduction of Adam Khurayev\n\n18.  On 23 December 2002 the applicant complained in writing about her son's disappearance to a number of State authorities, including the district military commander's office, the district prosecutor's office and the ROVD. She stated that on 22 November 2002 she and her sons Arbi and Adam had gone to Urus-Martan to obtain her sons' identity documents. At about 10 p.m. on that day armed and masked members of law-enforcement authorities, wearing camouflage uniforms, had broken into the house at no. 14  and had abducted Adam Khurayev. The intruders had used an APC and two UAZ vehicles. She stressed that prior to his abduction her son had undergone stomach surgery.\n\n19.  On 20 January 2003 the prosecutor's office of the  (“the republican prosecutor's office”) forwarded the applicant's complaint about her son's abduction to the district prosecutor's office for examination.\n\n20.  On 14 February 2003 the district prosecutor's office instituted an investigation into the abduction of Adam Khurayev under Article 126 § 2 of the Criminal Code (aggravated kidnapping). The criminal case file was given number 34022.\n\n21.  On 15 March 2003 the district prosecutor's office granted the applicant the status of a victim in criminal case no. 34022.\n\n22.  On 24 April 2003 the applicant wrote to a number of State authorities, including the prosecutor and the military prosecutor of the . She stated that her son had been abducted by servicemen from the law-enforcement agencies of the Urus-Martan district who had arrived in two UAZ vehicles and an APC. The applicant pointed out that her numerous complaints to various State bodies had failed to produce any results and that, apart from instituting an investigation into the abduction, the district prosecutor's office had failed to take any other measures aimed at establishing her son's whereabouts. She stressed that her son's abductors must have been representatives of the State as only they could have moved freely in the town during the curfew and used military vehicles.\n\n23.  On 22 May 2003 the republican prosecutor's office informed the applicant that on 14 February 2003 the district prosecutor's office had opened criminal case no. 34022 into the abduction of her son; that on 14 April 2003 the investigation had been suspended owing to the failure to establish the perpetrators and that unspecified operational and search measures aimed at solving the crime were under way.\n\n24.  On 9 June 2003 the military prosecutor's office of the United Group Alignment (“the UGA military prosecutor's office”) forwarded the applicant's complaint about her son's abduction to the military prosecutor's office of military unit no. 20102 for examination.\n\n25.  On 17 June 2003 the republican prosecutor's office forwarded the applicant's request for assistance in the search for her son to the district prosecutor's office and instructed the latter to inform the applicant of any developments in the investigation.\n\n26.  On 30 June and 2 July 2003 the military prosecutor's office of military unit no. 20102 informed the applicant that the examination of her complaints had failed to establish any involvement of Russian servicemen in the abduction of Adam Khurayev.\n\n27.  On 11 December 2003 the applicant complained to the minister of the interior of the , submitting that her son had been abducted by a group of armed men in camouflage uniforms who had arrived in two UAZ cars and an APC without number plates. She stressed that the abductors must have been State servicemen as only they could have moved freely in the town during the curfew and used military vehicles. The applicant pointed out that her numerous complaints to various State bodies had failed to produce any effect and that the criminal investigation had been suspended and reopened and had failed to produce any results.\n\n28.  On 17 December 2003 the applicant complained to the prosecutor of the , stating that her son had been abducted by a group of armed men in camouflage uniforms who had arrived in two UAZ vehicles and an APC. She averred that her son's abductors must have been representatives of the State as only they could have moved freely in the town during the curfew and used military vehicles. The applicant pointed out that her numerous complaints to various State bodies had failed to produce any effect and that the criminal investigation into her son's abduction had failed to produce any results and had been suspended and reopened on a number of occasions. She emphasised that her previous complaint to the prosecutor about the inactivity of the district prosecutor's office had not produced any results. Lastly, she requested the prosecutor to oblige the district prosecutor's office to solve the crime.\n\n29.  On 13 January 2004 the republican prosecutor's office forwarded the applicant's complaint to the district prosecutor's office. The latter was to provide the applicant with detailed information on the investigation and its results.\n\n30.  On 23 January 2004 the head of the ROVD informed the applicant that they had opened an operational-search file for the search for her son and that they had sent an unspecified number of requests for information to law-enforcement agencies in the Urus-Martan District and various regions of the .\n\n31.  Following a complaint by the applicant to the republican prosecutor's office, on 28 January 2004 the district prosecutor's office informed her that on 28 January 2004 it had resumed the investigation in criminal case no. 34022 and that the case file had been entrusted to another investigator.\n\n32.  On 1 March 2004 the republican prosecutor's office forwarded the applicant's complaint about her son's abduction to the district prosecutor's office for inclusion into the criminal case file and instructed the latter to inform the applicant of any developments in the case. The letter also stated that the investigation in case no. 34022 had been reopened.\n\n33.   On 24 March 2004 the district prosecutor's office informed the applicant that on 28 February 2004 they had suspended the investigation in criminal case no. 34022.\n\n34.  On 27 March 2004 the ROVD informed the applicant that their numerous requests for information to various law-enforcement agencies in  and other regions had failed to produce any results.\n\n35.  On 7 May 2004 the Prosecutor General's office in the Southern Federal Circuit informed the applicant that they had forwarded her complaint about the abduction of Adam Khurayev to the republican prosecutor's office.\n\n36.  On 31 May 2004 the district prosecutor's office informed the applicant that on 31 May 2004 they had resumed the investigation in criminal case no. 34022.\n\n37.  On 17 June 2004 the republican prosecutor's office informed the applicant that all information concerning the investigation into her son's abduction was to be obtained from the district prosecutor's office.\n\n38.  On 29 July 2004 the applicant wrote to a number of State authorities, including the Urus-Martan district prosecutor and the head of the ROVD. In her letter she described the circumstances of her son's abduction and pointed out that her numerous complaints to various State bodies had failed to produce any results. In particular, the criminal investigation into her son's abduction had been conducted in a superficial manner and had not produced any results. All her complaints about the ineffectiveness of the investigation, addressed to the supervisory bodies, had been forwarded to the district prosecutor's office. Although the latter body had replied to the complaints, none of those replies contained any information concerning investigative measures undertaken in the course of the criminal proceedings. Finally, the applicant submitted that her son's abductors must have been representatives of the State as only they could have moved freely in the town during the curfew, gone through existing checkpoints and used military vehicles.\n\n39.  On 4 August 2004 the district prosecutor's office replied to the applicant, stating that the investigation in criminal case no. 34022 had been carried out in compliance with the law. The district prosecutor's office had taken all the investigative measures which could be carried out in the absence of those to be charged with the crime. They had sent numerous requests for information to various law-enforcement agencies and hospitals. The republican prosecutor's office's (unspecified) instructions concerning the investigation had been complied with. The theory that Russian military servicemen had been involved in the abduction of Adam Khurayev had been examined but had not been confirmed. The latest decision to suspend the investigation owing to the failure to identify the perpetrators was dated 30 June 2004.\n\n40.  On 23 August 2004 the republican prosecutor's office informed the applicant that on an unspecified date the investigation in criminal case no. 34022 had been suspended, but operational-search measures aimed at solving the crime were under way.\n\n41.  On 2 September 2004 the district prosecutor's office informed the applicant that her complaint of 1 September 2004 had been included in the case file of criminal case no. 34022.\n\n42.  On 30 September 2004 the ROVD forwarded the applicant's complaint about her son's abduction to the district prosecutor's office for examination.\n\n43.  On 15 May 2005 the applicant wrote to the Urus-Martan district prosecutor, describing in detail the circumstances of her son's apprehension and pointing out that her son had been abducted by representatives of the State. The applicant complained that the investigation into Adam Khurayev's abduction had been too lengthy, that basic investigative measures had not been taken and that she had no information about its progress. The applicant requested the authorities to resume the investigation, to provide her with access to the criminal case-file materials and with copies of basic investigative documents to which she was entitled by law.\n\n44.  On 24 June 2005 the district prosecutor's office informed the applicant that on 6 June 2005 they had resumed the investigation in criminal case no. 34022 and that she could obtain a copy of the decision to grant her victim status and certain other documents from their office.\n\n45.  On 30 July 2005 the military prosecutor's office of military unit no. 20102 informed the applicant that the examination of her complaint about her son's abduction had failed to confirm any involvement of Russian servicemen in the abduction of her son.\n\n46.  On 11 November 2005 the applicant wrote to the Urus-Martan district prosecutor. She described in detail the circumstances of her son's apprehension and pointed out that her son had been abducted by representatives of the State. The applicant submitted that the investigation into Adam Khurayev's abduction had been ineffective and that it had failed to produce any results for more than three years. She complained about the lack of information about the investigation, requested the authorities to grant her victim status in the criminal case, to resume the investigation and provide her with access to the criminal case-file materials.\n\n47.  By a letter of 14 November 2005 the republican prosecutor's office forwarded the applicant's complaint about her son's abduction to the district prosecutor's office for examination.\n\n48.  On 18 November 2005 the district prosecutor's office informed the applicant that her complaint of 11 November 2005 had been granted only in part. The letter did not specify in which part, but stated that the applicant's request concerning access to the criminal case-file materials had been rejected pursuant to Article 42 of the Criminal Procedure Code.\n\n49.  On 15 December 2005 the applicant wrote to the district prosecutor's office. She pointed out that on 11 November 2005 she had requested the authorities to resume the investigation in criminal case no. 34022 and provide her with access to the case-file materials; that on 18 November 2005 the authorities had partially granted her request but had failed to specify in which part. The lack of clarity in the decision had precluded her from appealing against it. She requested that that matter be clarified.\n\n50.  On 23 December 2005 the district prosecutor's office replied to the applicant that she had been granted victim status on 15 March 2003 and that she was only entitled to access to procedural documents concerning investigative measures she had participated in.\n\n51.  On 24 April 2006 the district prosecutor's office informed the applicant that on an unspecified date they had resumed the investigation in criminal case no. 34022.\n\n2.  Information submitted by the Government\n\n52.  On 14 February 2003 the district prosecutor's office instituted a criminal investigation into the abduction of Adam Khurayev under Article 126 § 2 of the Criminal Code. The case file was attributed number 34022.\n\n(a)  Witnesses interviewed by the investigation\n\n(a)  Witnesses interviewed by the investigation\n\n53.  Being interviewed as a witness on 18 February 2003, M.M. stated that at 10 p.m. on 23 November 2002 armed persons in masks and camouflage uniforms had broken into her house and had abducted Adam Khurayev. Before coming to her household, the abductors had looked for Adam Khurayev in her brother's house. Neighbours known as “Zulay” and “Tamusa”, whose family names M.M. did not remember, had seen the abductors use APCs and UAZ vehicles.\n\n53.  Being interviewed as a witness on 18 February 2003, M.M. stated that at 10 p.m. on 23 November 2002 armed persons in masks and camouflage uniforms had broken into her house and had abducted Adam Khurayev. Before coming to her household, the abductors had looked for Adam Khurayev in her brother's house. Neighbours known as “Zulay” and “Tamusa”, whose family names M.M. did not remember, had seen the abductors use APCs and UAZ vehicles.\n\n54.  On 15 March 2003 the applicant was granted victim status and interviewed. She stated that she had learnt from M.M. that at about 10 p.m. on 23 November 2002 armed and masked persons had broken into M.M.'s house and had taken Adam Khurayev with them.\n\n54.  On 15 March 2003 the applicant was granted victim status and interviewed. She stated that she had learnt from M.M. that at about 10 p.m. on 23 November 2002 armed and masked persons had broken into M.M.'s house and had taken Adam Khurayev with them.\n\n55.  I.M., questioned on 20 January 2004 as a witness, submitted that on 24 November 2002 he had learnt from M.M. about the abduction of the applicant's son. M.M. had told him that she had not witnessed the abduction and that two women known as Zulay and Tamusa had told her that the abductors had arrived in an APC and two UAZ vehicles.\n\n55.  I.M., questioned on 20 January 2004 as a witness, submitted that on 24 November 2002 he had learnt from M.M. about the abduction of the applicant's son. M.M. had told him that she had not witnessed the abduction and that two women known as Zulay and Tamusa had told her that the abductors had arrived in an APC and two UAZ vehicles.\n\n56.  Zara S., interviewed as a witness on 4 February 2004, stated that in the morning of 24 November 2002 she had learnt from the applicant and other neighbours about the abduction of Adam Khurayev. Zara S. had not seen any vehicles and, apart from herself, there were no other women known as “Tamusa” who lived in the vicinity. Zara S. confirmed her statement while being questioned as a witness on 18 June 2004.\n\n56.  Zara S., interviewed as a witness on 4 February 2004, stated that in the morning of 24 November 2002 she had learnt from the applicant and other neighbours about the abduction of Adam Khurayev. Zara S. had not seen any vehicles and, apart from herself, there were no other women known as “Tamusa” who lived in the vicinity. Zara S. confirmed her statement while being questioned as a witness on 18 June 2004.\n\n57.  M.Ch. was interviewed as a witness on 11 February 2004. She stated that on the night of 23 November 2002 she had been at home with her husband A.Ch., who worked in the local military commander's office. At about 10 p.m. she had heard noise coming from the neighbouring household of Z.Ch. (see below). M.Ch. and her husband had rushed to Z.Ch.'s house and seen armed men wearing masks there. A.Ch. had asked them why they had broken into Z.Ch.'s house. In response the armed men had forced A.Ch. to the ground. M.Ch. had run back home and had fetched her own and her husband's identity papers. She had presented them to the armed men, explaining to them that her husband worked at the local military commander's office. At that moment the armed men had been ordered over a portable radio to leave, which they did quickly. They had left in several vehicles but M.Ch. did not remember what their models were. On the next morning M.Ch. had learnt about the abduction of Adam Khurayev.\n\n57.  M.Ch. was interviewed as a witness on 11 February 2004. She stated that on the night of 23 November 2002 she had been at home with her husband A.Ch., who worked in the local military commander's office. At about 10 p.m. she had heard noise coming from the neighbouring household of Z.Ch. (see below). M.Ch. and her husband had rushed to Z.Ch.'s house and seen armed men wearing masks there. A.Ch. had asked them why they had broken into Z.Ch.'s house. In response the armed men had forced A.Ch. to the ground. M.Ch. had run back home and had fetched her own and her husband's identity papers. She had presented them to the armed men, explaining to them that her husband worked at the local military commander's office. At that moment the armed men had been ordered over a portable radio to leave, which they did quickly. They had left in several vehicles but M.Ch. did not remember what their models were. On the next morning M.Ch. had learnt about the abduction of Adam Khurayev.\n\n58.  On 17 February 2004 the investigation questioned A.Ch. as a witness. He stated that on the night of 23 November 2002 he had been at home with his family. One of his family members had alerted him to the fact that something had been going on in Z.Ch.'s (his brother's) house. A.Ch. had rushed outside and in Z.Ch's yard he had run into several armed men wearing masks; their clothes had borne no insignia. When A.Ch. had asked what they were doing there, the armed men had forced him to the ground and ordered him to lie down. Several minutes later A.Ch. had overheard somebody order the armed men to leave, which they had done. A.Ch. and his wife had returned home and had learnt on the following day about the abduction of Adam Khurayev.\n\n58.  On 17 February 2004 the investigation questioned A.Ch. as a witness. He stated that on the night of 23 November 2002 he had been at home with his family. One of his family members had alerted him to the fact that something had been going on in Z.Ch.'s (his brother's) house. A.Ch. had rushed outside and in Z.Ch's yard he had run into several armed men wearing masks; their clothes had borne no insignia. When A.Ch. had asked what they were doing there, the armed men had forced him to the ground and ordered him to lie down. Several minutes later A.Ch. had overheard somebody order the armed men to leave, which they had done. A.Ch. and his wife had returned home and had learnt on the following day about the abduction of Adam Khurayev.\n\n59.  On 20 February 2004 the investigation interviewed Z.Ch. as a witness. He stated that at about 10 p.m. on 23 November 2002 he had been at home in his house in Urus-Martan. At that moment several armed men in camouflage uniforms had burst into his house and had requested his identity papers. Having carried out a passport check, they had left.\n\n59.  On 20 February 2004 the investigation interviewed Z.Ch. as a witness. He stated that at about 10 p.m. on 23 November 2002 he had been at home in his house in Urus-Martan. At that moment several armed men in camouflage uniforms had burst into his house and had requested his identity papers. Having carried out a passport check, they had left.\n\n60.  M.B., the wife of Z.Ch., was questioned as a witness on an unspecified date in February 2004. She stated that on the night of 23 November 2002, while she had been at home with her husband, several armed men in camouflage uniforms and masks had burst into their house and had ordered the family members to produce their identity documents for a passport check. Upon checking the documents one of the intruders had apologised, saying that the group had come to the wrong address, and they had left. M.B. had not noticed any insignia and did not remember how many intruders there had been. On the next day she had learnt about the abduction of the applicant's son.\n\n60.  M.B., the wife of Z.Ch., was questioned as a witness on an unspecified date in February 2004. She stated that on the night of 23 November 2002, while she had been at home with her husband, several armed men in camouflage uniforms and masks had burst into their house and had ordered the family members to produce their identity documents for a passport check. Upon checking the documents one of the intruders had apologised, saying that the group had come to the wrong address, and they had left. M.B. had not noticed any insignia and did not remember how many intruders there had been. On the next day she had learnt about the abduction of the applicant's son.\n\n61.  On 9 June 2004 M.M. was again questioned as a witness. She confirmed the previous statement she had given to the investigation and stated also that the intruders had carried out a search in her house; that the applicant's son had been outside in the toilet when the armed men had burst into her house and that in the morning on 24 November 2002 she had found his slippers at the toilet entry; and that she herself had not seen whether the intruders had come in military vehicles.\n\n62.  On 12 June 2004 the investigation questioned R.Kh., the applicant's daughter. She stated that on an unspecified date she had learnt from the applicant that on 23 November 2002 Adam Khurayev had been abducted while he had been at M.M.'s house in Urus-Martan.\n\n62.  On 12 June 2004 the investigation questioned R.Kh., the applicant's daughter. She stated that on an unspecified date she had learnt from the applicant that on 23 November 2002 Adam Khurayev had been abducted while he had been at M.M.'s house in Urus-Martan.\n\n63.  When questioned again on 15 June 2004 the applicant stated that on 22 November 2002 she had arrived in Urus-Martan with her sons, Arbi and Adam Khurayev, to pick up their passports. In the evening of 23 November 2002 the applicant and Arbi had stayed at Z.Ch.'s place, while Adam Khurayev had gone to stay at M.M.'s place. At about 10 p.m. several armed and masked men had burst into Z.Ch.'s house and had forced Z.Ch. to the ground. One of the intruders had said “I don't think it's him” and another armed man had replied to him “I don't think so either”. On the following morning the applicant had learnt from M.M. that armed men in camouflage uniforms had abducted Adam Khurayev on the previous night.\n\n(b)  Further investigative steps\n\n64.  On an unspecified date the investigator inspected the crime scene. No objects were seized during the inspection.\n\n65.  With a view to examining the possibility that representatives of the State had been involved in the applicant's son's abduction, on unspecified dates the investigating authorities made enquires with various State bodies, including the commander of military unit no. 6779, the military commander of the Urus-Martanovskiy District, the ROVD, unspecified remand prisons, detention centres and hospitals in the region as to Adam Khurayev's whereabouts. From the replies of those State authorities it followed that their officials had not arrested Adam Khurayev, had not instituted criminal proceedings against him and had no information on his whereabouts. According to those replies, he had not been held in detention and had not applied for medical assistance.\n\n66.  On an unspecified date the detention logs of the ROVD and its temporary detention ward were examined. No information concerning Adam Khurayev was found.\n\n67.  On 6 July 2005 the investigation in case no. 34022 was suspended.\n\n68.  On 18 November 2005 the investigation was resumed and the applicant was notified of that decision.\n\n68.  On 18 November 2005 the investigation was resumed and the applicant was notified of that decision.\n\n69.  Despite a specific request by the Court, the Government did not disclose most of the contents of the file in criminal case no. 34022, providing only copies of the records of the witness interviews described in paragraphs 53-63 above. The Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained personal data concerning the witnesses or other participants in the criminal proceedings.\n\nC.  Court proceedings against the investigators\n\n70.  On 3 March 2006 the applicant complained to the  (“the ”) about the ineffectiveness of the investigation into the abduction of her son. She requested that the investigation be resumed and the necessary investigative measures be taken and also sought access to the case file.\n\n70.  On 3 March 2006 the applicant complained to the  (“the ”) about the ineffectiveness of the investigation into the abduction of her son. She requested that the investigation be resumed and the necessary investigative measures be taken and also sought access to the case file.\n\n71.  By a decision of 30 March 2006 the  allowed the applicant's complaint in part. In particular, it held that the district prosecutor's office had unlawfully refused to provide the applicant with information concerning the developments in the investigation, which had prevented her from challenging the investigator's acts or inaction in court. The court ordered the district prosecutor's office to provide for the applicant's access to the case file, subject to the restrictions applicable under the rules of criminal procedure. Lastly, the court declared unlawful and unfounded the decision to suspend the investigation in case no. 34022 and ordered the district prosecutor's office to carry out an effective investigation. The decision, in so far as relevant, reads as follows:\n\n“... It emerges from the materials of case file no.34022 ... that on 23 November 2002 at about 10 p.m. unidentified masked persons carrying submachine guns broke into the household of [M.M.]'s family ... and abducted Adam Khurayev.\n\nThe investigation took steps aimed at solving the crime and identifying the perpetrators. In particular, M.M., I.M., Z.S., Z.Ch., R.B., M.Ch. and A.Ch. were interviewed as witnesses. ...\n\n... The investigation failed to identify the persons who had abducted Adam Khurayev or establish his whereabouts. In that connection it had been suspended ... on numerous occasions and then reopened again. The latest decision to suspend the investigation is dated 18 December 2005.\n\nHowever it transpires from the case file that the investigator failed to take all relevant investigative steps. In particular:\n\nit was not established which [military] units or power structures on the territory of the Urus-Martanovskiy District were equipped with APCs; where each military vehicle had been located at the time of the abduction, and where and on whose order it had been used [at the time of the abduction]”;\n\nthe commanders of units equipped with APCs at the time of the abduction and the drivers of the APCs were not interviewed;\n\nthe logbooks of the departments keeping records of the use of military vehicles at the time of the abduction were not examined;\n\nthe heads of the military commander's office, the district department of the FSB and the district department of the Interior were not questioned with a view to establishing who had been granted authorisation to pass through Urus-Martan on 23 November 2002 at night during the curfew;\n\nthe logbooks of detention facilities were not seized and checked and the persons responsible for detainees were not questioned with a view to verifying whether the abducted person was being or had been held in any detention facility.”\n\n72.  On 5 July 2006 the Supreme Court of the  upheld the decision on appeal.\n\nII.  RELEVANT DOMESTIC LAW\n\n73.  For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia (no. 40464/02, §§ 67-69, 10 May 2007).\n\nTHE LAW\n\nI.  THE GOVERNMENT'S OBJECTION REGARDING NONEXHAUSTION OF DOMESTIC REMEDIES\n\nA.  The parties' submissions\n\n74.  The Government contended that the complaint should be declared inadmissible for non-exhaustion of domestic remedies. They submitted that the investigation into the disappearance of Adam Khurayev had not yet been completed. They also pointed out that the applicant had not lodged a claim for compensation of non-pecuniary damage under Articles 1069-70 of the Civil Code.\n\nB.  The Court's assessment\n\n76.  The Court will examine the arguments of the parties in the light of the provisions of the Convention and its relevant practice (for a relevant summary, see Estamirov and Others v. Russia, no. 60272/00, §§ 73-74, 12 October 2006).\n\n77.   The Court notes that the Russian legal system provides, in principle, two avenues of recourse for the victims of illegal and criminal acts attributable to the State or its agents, namely, civil and criminal remedies.\n\n78.  As regards a civil action to obtain redress for damage sustained through the alleged illegal acts or unlawful conduct of State agents, the Court has already found in a number of similar cases that this procedure alone cannot be regarded as an effective remedy in the context of claims brought under Article 2 of the Convention (see Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, §§ 119-121, 24 February 2005, and Estamirov and Others, cited above, § 77). In the light of the above, the Court confirms that the applicant was not obliged to pursue civil remedies. The Government's objection in this regard is thus dismissed.\n\n79.  As regards criminal-law remedies provided for by the Russian legal system, the Court observes that the applicant complained to the law-enforcement authorities shortly after the kidnapping of Adam Khurayev and that an investigation has been ongoing since 14 February 2003. The applicant and the Government dispute the effectiveness of the investigation of the kidnapping.\n\n79.  As regards criminal-law remedies provided for by the Russian legal system, the Court observes that the applicant complained to the law-enforcement authorities shortly after the kidnapping of Adam Khurayev and that an investigation has been ongoing since 14 February 2003. The applicant and the Government dispute the effectiveness of the investigation of the kidnapping.\n\n80.  The Court considers that this limb of the Government's objection raises issues concerning the effectiveness of the investigation which are closely linked to the merits of the applicant's complaints. Thus, it decides to join this objection to the merits of the case and considers that the issue falls to be examined below under the substantive provisions of the Convention.\n\nII.  ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION\n\n81.  The applicant complained under Article 2 of the Convention that her son had disappeared after being detained by State agents and that the investigation into his disappearance had not been effective. Article 2 reads:\n\n“1.  Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.\n\n2.  Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:\n\n(a)  in defence of any person from unlawful violence;\n\n(b)  in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;\n\n(c)  in action lawfully taken for the purpose of quelling a riot or insurrection.”\n\nA.  Submissions by the parties\n\n82.  The Government submitted that the investigation was pending and that it had obtained no evidence that Adam Khurayev had been abducted by State agents or that any State authorities had conducted a special operation in Urus-Martan on the night of his abduction. Furthermore, there was no evidence that Adam Khurayev was dead. The investigation had failed to identify any eyewitnesses to the abduction. In particular, whilst the applicant had named M.M. as a witness, the latter had confirmed to the investigators that she had not witnessed the abduction. None of the persons interviewed by the investigators had seen the APC or UAZ vehicles mentioned by the applicant in her application form; they had only heard about them from neighbours. When interviewed by the investigators, M.M. had failed to give the addresses of her neighbours “Zulay” and “Tamusa”, who had allegedly seen the military vehicles. Furthermore, Zara S., who was allegedly known as “Tamusa”, stated that she had not seen any military vehicles. Only M.Ch. claimed to have seen several vehicles, but she had been unable to provide any particular details. Although A.M. claimed to have seen an APC and two UAZ vehicles, she had not witnessed the abduction of the applicant's son. Furthermore, there were inconsistencies in the applicant's and M.M.'s submissions concerning the abduction. In particular, whilst in the application form the applicant stated that she had learnt about the abduction from her son Arbi while she was in Nazran, she had told the investigators that she had been in Urus-Martan on the night of the abduction. In a statement appended to the application form M.M. submitted that she had been in Urus-Martan on 23 November 2002. At the same time, when interviewed by the investigators, she submitted that she had come to Urus-Martan together with Adam Khurayev.\n\n83.  The Government further argued that the investigation into the abduction of the applicant's son met the Convention requirement of effectiveness. It was being conducted by an independent authority, which had examined various theories of the abduction, had sent requests for information to numerous State bodies and had checked several detention centres. The investigators had interviewed numerous witnesses, inspected the crime scene and examined detention logs of the ROVD. The applicant had been duly notified of the progress in the investigation. Although the investigation had been suspended and resumed on numerous occasions, this fact did not detract from its effectiveness.\n\n84.  The applicant submitted that there existed a bulk of evidence proving beyond reasonable doubt that her son had been abducted by State agents and was to be presumed dead following his abduction. She considered that she had laid down a prima facie case that Adam Khurayev had been abducted by State agents. The applicant's son had been detained by a large group of armed individuals wearing camouflage uniforms, acting under one command and using military equipment, such as portable radios. Those individuals had driven military vehicles freely through the town at night, during curfew hours. The fact of the use of military vehicles had been proved by the statements of M.Ch., who had seen the abductors drive away, M.M.'s reference to the noise of military vehicles, A.M.'s statement that she had seen an APC and two military UAZ vehicles and the Town Court's findings concerning the APCs. It transpired from the Government's submissions that the theory of Adam Khurayev's abduction by State servicemen had been the only possibility examined by the domestic investigating authorities and the former had failed to provide any other explanation for what had happened to him. The applicant also invited the Court to draw conclusions from the Government's unjustified failure to submit the documents from the case file.\n\n85.  The applicant disputed the Government's argument that the investigation into the abduction of her son had met the effectiveness and adequacy requirements laid down by the Court's case-law. In particular, the authorities had failed to promptly open a criminal case into Adam Khurayev's abduction. Only two witnesses had been interviewed in 2003. The majority of witnesses had been questioned in 2004 and their interviews had been superficial. Although the abduction had occurred in a densely populated area, no attempts had been made to identify other witnesses who might have provided information on the vehicles and the direction they had taken. Despite the Town Court's guidelines, the investigation had failed to take the investigative steps enumerated in its decision. The investigation had been ongoing for more than five years and had failed to produce any results.\n\nB.  The Court's assessment\n\n1.  Admissibility\n\n86.  The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. Further, the Court has already found that the Government's objection concerning the alleged non-exhaustion of domestic remedies should be joined to the merits of the complaint (see paragraph 80 above). The complaint under Article 2 of the Convention must therefore be declared admissible.\n\n2.  Merits\n\n(a)  The alleged violation of the right to life of Adam Khurayev\n\n87.  The Court reiterates that, in the light of the importance of the protection afforded by Article 2, it must subject deprivations of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances. Detained persons are in a vulnerable position and the obligation on the authorities to account for the treatment of a detained individual is particularly stringent where that individual dies or disappears thereafter (see, among other authorities, Orhan v. Turkey, no. 25656/94, § 326, 18 June 2002, and the authorities cited therein). Where the events in issue lie wholly or in large part within the exclusive knowledge of the authorities, as in the case of persons under their control in detention, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII, and Çakıcı v. Turkey [GC], no. 23657/94, § 85, ECHR 1999-IV).\n\n88.  The Court observes that it has developed a number of general principles relating to the establishment of facts in dispute, in particular when faced with allegations of disappearance under Article 2 of the Convention (for a summary of these, see Bazorkina v. Russia, no. 69481/01, §§ 103-109, 27 July 2006). The Court also notes that the conduct of the parties when evidence is being obtained has to be taken into account (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25).\n\n89.  The applicant alleged that on the night of 23 November 2002 her son, Adam Khurayev, had been abducted by Russian servicemen and had then disappeared. She did not witness her son's abduction but enclosed statements by witnesses collected after his apprehension. She also invited the Court to draw inferences as to the well-foundedness of her allegations from the Government's failure to provide the documents requested from them.\n\n90.  The Government conceded that Adam Khurayev had been abducted by unknown armed men on the night of 23 November 2002. However, they denied that the abductors had been State servicemen, referring to the absence of evidence to that effect from the ongoing investigation.\n\n91.  The Court notes that despite its request for a copy of the investigation file into the abduction of Adam Khurayev, the Government refused to produce most of the documents from the case file, providing only copies of several interview records (see paragraph 69 above). They relied on Article 161 of the Code of Criminal Procedure. The Court observes that in previous cases it has already found this explanation insufficient to justify the withholding of key information requested by the Court (see Imakayeva v. Russia, no. 7615/02, § 123, ECHR 2006-XIII (extracts)).\n\n92.  In view of this and bearing in mind the principles cited above, the Court finds that it can draw inferences from the Government's conduct in this respect.\n\n93.  It is undisputed by the parties that at the material time Urus-Martan was under curfew and that the authorities maintained manned checkpoints at the entry and exit points to the town (see also the Town Court's findings described in paragraph 71 above). It further emerges from the copies of witness testimonies furnished by the Government that on the night of 23 November 2002 a group of armed men in camouflage uniforms, equipped with portable radios and driving several vehicles, proceeded to check identity documents in several households in Urus-Martan (see paragraphs 57-60 above).\n\n94.  The Government did not dispute the veracity of the statement by M.M.'s neighbour A.M., who claimed to have seen an APC and two UAZ vehicles in the vicinity of M.M.'s house on the night of the abduction. Furthermore, from M.M.'s statements it follows that, although she had not seen the intruders' vehicles, she had heard the noise of military vehicles immediately after the intrusion. Lastly and more importantly, it transpires from the decision of 30 March 2006 that the Town Court, which had had access to case file no. 34022, did not doubt the presence of military vehicles and, in particular, an APC, at the crime scene (see paragraph 71 above).\n\n95.  In the Court's view, the fact that a group of armed men in uniform in several military vehicles and equipped with portable radios was able to pass freely through checkpoints during curfew hours and proceeded to check identity documents in several households in a manner similar to that of State agents strongly supports the applicant's allegation that those were State servicemen and that they were conducting a special operation in Urus-Martan on the night of Adam Khurayev's abduction.\n\n96.  Contrary to the Government's assertion, the Court has not found any major inconsistencies in the applicant's and M.M.'s accounts of events in the course of both the domestic and  proceedings. As to their submission that there had been no witnesses to the abduction, it is noted that the Government did not dispute that Adam Khurayev was present in M.M.'s household when a group of armed men had burst into her household at about 10 p.m. on 23 November 2002. Having regard to the materials available to it, the Court considers that the applicant and M.M. had reasonable grounds to assume that the armed men who had broken into M.M.'s house had taken away Adam Khurayev and had driven away in the vehicles whose noise M.M. had heard and which had been described to her by A.M. as an APC and two UAZ vehicles (see, mutatis mutandis, Abdurzakova and Abdurzakov v. Russia, no. 35080/04, § 91, 15 January 2009). In any event, the Government offered no explanation whatsoever as to what had happened to Adam Khurayev after the armed men had broken into M.M.'s house.\n\n97.  The Court also notes that in her applications to the authorities the applicant consistently maintained that Adam Khurayev had been detained by unidentified servicemen, and requested the investigating authorities to look into that possibility. It further notes that after more than five years the domestic investigation has produced no tangible results.\n\n98.  The Court reiterates that where an applicant makes out a prima facie case and the Court is prevented from reaching factual conclusions owing to a lack of documents, it is for the Government to argue conclusively why the documents in question cannot serve to corroborate the allegations made by the applicant, or to provide a satisfactory and convincing explanation of how the events in question occurred. The burden of proof is thus shifted to the Government, and if they fail in their arguments issues will arise under Article 2 and/or Article 3 (see Toğcu v. Turkey, no. 27601/95, § 95, 31 May 2005, and Akkum and Others v. Turkey, no. 21894/93, § 211, ECHR 2005-II).\n\n99.  Taking into account the above elements, the Court is satisfied that the applicant has made out a prima facie case that her son was detained by State servicemen. The Government's statement that the investigation did not find any evidence to support the theory that the special forces were involved in the abduction is insufficient to discharge them from the above-mentioned burden of proof. Drawing inferences from the Government's failure to submit the documents which were in their exclusive possession or to provide a plausible explanation of the events in question, the Court finds it established that Adam Khurayev was abducted on 23 November 2002 at M.M.'s home in Urus-Martan by State servicemen during an unacknowledged security operation.\n\n100.  The Court further notes that there has been no reliable news of Adam Khurayev since November 2002. His name has not been found in the official records of any detention facilities. Finally, the Government have not submitted any explanation as to what happened to him after his abduction.\n\n101.  Having regard to the previous cases concerning disappearances in  which have come before it (see, among others, Bazorkina, cited above; Imakayeva, cited above; Luluyev and Others v. Russia, no. 69480/01, ECHR 2006XIII (extracts); Baysayeva v. Russia, no. 74237/01, 5 April 2007; Akhmadova and Sadulayeva, cited above; and Alikhadzhiyeva v. Russia, no. 68007/01, 5 July 2007), the Court finds that in the context of the conflict in the Republic, when a person is detained by unidentified servicemen without any subsequent acknowledgment of the detention, this can be regarded as life-threatening. The absence of Adam Khurayev or of any news of him for over five years supports this assumption.\n\n102.  Accordingly, the Court finds that the evidence available permits it to establish to the requisite standard of proof that Adam Khurayev was abducted on 23 November 2002 by State servicemen and that he must be presumed dead following his unacknowledged detention.\n\n103.  Article 2, which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, to which no derogation is permitted. In the light of the importance of the protection afforded by Article 2, the Court must subject deprivation of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances (see, among other authorities, McCann and Others v. the United Kingdom, 27 September 1995, §§ 146-147, Series A no. 324, and Avşar v. Turkey, no. 25657/94, § 391, ECHR 2001VII (extracts)).\n\n104.  The Court has already found it established that the applicant's son must be presumed dead following unacknowledged detention by State servicemen. Noting that the authorities do not rely on any ground of justification in respect of any use of lethal force by their agents, it follows that liability for his presumed death is attributable to the respondent Government.\n\n105.  Accordingly, the Court finds that there has been a violation of Article 2 in respect of Adam Khurayev.\n\n(b)  The alleged inadequacy of the investigation of the kidnapping\n\n106.  The Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State's general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see, mutatis mutandis, McCann and Others, cited above, § 161, and Kaya v. Turkey, 19 February 1998, § 86, Reports of Judgments and Decisions 1998I). The essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. This investigation should be independent, accessible to the victim's family and carried out with reasonable promptness and expedition. It should also be effective in the sense that it is capable of leading to a determination of whether or not the force used in such cases was lawful and justified in the circumstances, and should afford a sufficient element of public scrutiny of the investigation or its results (see Hugh Jordan v. the United Kingdom, no. 24746/94, §§ 105-109, 4 May 2001, and Douglas-Williams v. the United Kingdom (dec.), no. 56413/00, 8 January 2002).\n\n107.  The Court notes at the outset that very few documents from the investigation file were disclosed by the Government. It therefore has to assess the effectiveness of the investigation on the basis of very scarce information submitted by the Government and the few documents available to the applicant, which she provided to the Court.\n\n108.  Turning to the facts of the present case, the Court observes that, according to the applicant, on 24 November 2002 she notified a number of law-enforcement agencies in Urus-Martan, including the ROVD and the district prosecutor's office, about the abduction of Adam Khurayev. The Government did not dispute that assertion. They also failed to produce any documents from the case file, such as a copy of the applicant's stamped complaint to the authorities or the decision to launch the investigation, which could have cast doubt on it. The investigation was launched on 14 February 2003. Bearing this in mind, the Court cannot but conclude that the two-month delay in opening the investigation was attributable to the domestic authorities. Such a postponement per se was liable to affect the investigation of a kidnapping in life-threatening circumstances, where crucial action has to be taken in the first days after the event.\n\n109.  The Court also has to assess the scope of the investigative measures taken. In this connection it is noted that the Government submitted only copies of several records of witness interviews. It emerges from those documents that the investigating authority interviewed M.M. and the applicant in February and March 2003, while the remaining witnesses were questioned only a year later. In the Court's view, this delay in questioning witnesses, for which no explanation has been offered by the Government, must have had a negative effect on the ability of the investigation to establish the relevant facts since, with the passage of time, important details concerning the events of 23 November 2002 might have faded from the witness' memories. As regards the other investigative measures enumerated by the Government, in the absence of the related documents the Court is unable not only to assess how promptly those steps were taken but whether they were taken at all.\n\n110.  Furthermore, it appears that a number of crucial steps were never taken. It follows from the Town Court's decision that the investigation did not make any attempts to identify the owners of the APC, examine the relevant logbooks or detention logs and interview persons who could have provided information as to who had been permitted to pass through the town during curfew hours (see paragraph 71 above). In fact, there is no indication that the Town Court's instruction has been ever complied with.\n\n111.  It is obvious that, if they were to produce any meaningful results, those investigative measures should have been taken immediately after the crime was reported to the authorities, and as soon as the investigation commenced. The delays and omissions, for which there has been no explanation in the instant case, not only demonstrate the authorities' failure to act of their own motion but also constitute a breach of the obligation to exercise exemplary diligence and promptness in dealing with such a serious matter (see Öneryıldız v. Turkey [GC], no. 48939/99, § 94, ECHR 2004-XII).\n\n112.  The Court also notes that even though the applicant was granted victim status in the investigation concerning the abduction of her son, she hardly received any meaningful information about the developments in the investigation, a fact which appears to be confirmed by the Town Court's findings (see paragraph 71 above). Accordingly, the investigators failed to ensure that the investigation received the required level of public scrutiny, or to safeguard the interests of the next of kin in the proceedings.\n\n113.  Lastly, it transpires that the investigation was adjourned and resumed on numerous occasions. It also appears that there were lengthy periods of inactivity on the part of the prosecuting authorities when no investigative measures were being taken.\n\n114.  Having regard to the limb of the Government's preliminary objection that was joined to the merits of the complaint, inasmuch as it concerns the fact that the domestic investigation is still pending, the Court notes that the investigation, having being repeatedly suspended and resumed and plagued by inexplicable delays, has been pending open for many years with no tangible results. Accordingly, the Court finds that the remedy relied on by the Government was ineffective in the circumstances and dismisses their preliminary objection.\n\n115.  In the light of the foregoing, the Court holds that the authorities failed to carry out an effective criminal investigation into the circumstances surrounding the disappearance of Adam Khurayev, in breach of Article 2 in its procedural aspect.\n\nIII.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION\n\n116.  The applicant relied on Article 3 of the Convention, submitting that as a result of her son's disappearance and the State's failure to investigate it properly, she had endured mental suffering in breach of Article 3 of the Convention. Article 3 reads:\n\n“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”\n\nA.  The parties' submissions\n\n117.  The Government disagreed with these allegations and argued that the investigation had not established that the applicant had been subjected to inhuman or degrading treatment prohibited by Article 3 of the Convention.\n\n118.  The applicant maintained her submissions.\n\nB.  The Court's assessment\n\n1.  Admissibility\n\n119.  The Court notes that the complaint under Article 3 of the Convention is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\n2.  Merits\n\n120.  The Court has found on many occasions that in a situation of enforced disappearance close relatives of the victim may themselves be victims of treatment in violation of Article 3. The essence of such a violation does not mainly lie in the fact of the “disappearance” of the family member but rather concerns the authorities' reactions and attitudes to the situation when it is brought to their attention (see Orhan v. Turkey, cited above, § 358, and Imakayeva, cited above, § 164).\n\n121.  In the present case the Court notes that the applicant is the mother of the disappeared person. For more than five years she has not had any news of her son. During this period the applicant has made enquiries to various official bodies, both in writing and in person, about Adam Khurayev. Despite her attempts, the applicant has never received any plausible explanation or information about what became of him following his apprehension. The responses they received mostly denied State responsibility for her son's arrest or simply informed her that the investigation into the matter was ongoing. The Court's findings under the procedural aspect of Article 2 are also of direct relevance here.\n\n122.  The Court therefore concludes that there has been a violation of Article 3 of the Convention in respect of the applicant.\n\nIV.  ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION\n\n123.  The applicant further stated that Adam Khurayev had been detained in violation of the guarantees contained in Article 5 of the Convention, which reads, in so far as relevant:\n\n“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ...\n\n(c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;\n\n...\n\n2.  Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.\n\n3.  Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.\n\n4.  Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.\n\n5.  Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”\n\nA.  The parties' submissions\n\n124.  The Government asserted that no evidence had been obtained by the investigators to confirm that Adam Khurayev had been deprived of his liberty.\n\n125.  The applicant maintained her complaint.\n\nB.  The Court's assessment\n\n1.  Admissibility\n\n126.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that the complaint is not inadmissible on any other grounds and must therefore be declared admissible.\n\n2.  Merits\n\n127.  The Court has previously noted the fundamental importance of the guarantees contained in Article 5 to secure the right of individuals in a democracy to be free from arbitrary detention. It has also stated that unacknowledged detention is a complete negation of these guarantees and discloses a very grave violation of Article 5 (see Çiçek v. Turkey, no. 25704/94, § 164, 27 February 2001, and Luluyev, cited above, § 122).\n\n128.  The Court has found that Adam Khurayev was apprehended by State servicemen on 23 November 2002 and has not been seen since. His detention was not acknowledged, was not logged in any custody records and there exists no official trace of his subsequent whereabouts or fate. In accordance with the Court's practice, this fact in itself must be considered a most serious failing, since it enables those responsible for an act of deprivation of liberty to conceal their involvement in a crime, to cover their tracks and to escape accountability for the fate of a detainee. Furthermore, the absence of detention records, noting such matters as the date, time and location of detention and the name of the detainee as well as the reasons for the detention and the name of the person effecting it, must be seen as incompatible with the very purpose of Article 5 of the Convention (see Orhan, cited above, § 371).\n\n129.  The Court further considers that the authorities should have been more alert to the need for a thorough and prompt investigation of the applicant's complaints that her relative had been detained and taken away in life-threatening circumstances. However, the Court's findings above in relation to Article 2 and, in particular, the conduct of the investigation leave no doubt that the authorities failed to take prompt and effective measures to safeguard him against the risk of disappearance.\n\n130.  In view of the foregoing, the Court finds that Adam Khurayev was held in unacknowledged detention without any of the safeguards contained in Article 5. This constitutes a particularly grave violation of the right to liberty and security enshrined in Article 5 of the Convention.\n\nV.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION\n\n131.  The applicant complained that she had been deprived of effective remedies in respect of the aforementioned violations, contrary to Article 13 of the Convention, which provides:\n\n“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”\n\nA.  The parties' submissions\n\n132.  The Government contended that the applicant had had effective remedies at her disposal as required by Article 13 of the Convention and that the authorities had not prevented her from using them. The applicant had had an opportunity to challenge the acts or omissions of the investigating authorities in court and had availed herself of it. They added that participants in criminal proceedings could also claim damages in civil proceedings and referred to cases where victims in criminal proceedings had been awarded damages from state bodies and, in one instance, the prosecutor's office. In sum, the Government submitted that there had been no violation of Article 13.\n\n133.  The applicant reiterated the complaint.\n\nB.  The Court's assessment\n\n1.  Admissibility\n\n134.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\n2.  Merits\n\n135.  The Court reiterates that in circumstances where, as here, a criminal investigation into the disappearance has been ineffective and the effectiveness of any other remedy that might have existed, including civil remedies suggested by the Government, has consequently been undermined, the State has failed in its obligation under Article 13 of the Convention (see Khashiyev and Akayeva, cited above, § 183).\n\n136.  Consequently, there has been a violation of Article 13 in conjunction with Article 2 of the Convention.\n\n137.  As regards the applicant's reference to Articles 3 and 5 of the Convention, the Court considers that, in the circumstances, no separate issue arises in respect of Article 13, read in conjunction with Articles 3 and 5 of the Convention (see Kukayev v. Russia, no. 29361/02, § 119, 15 November 2007, and Aziyevy v. Russia, no. 77626/01, § 118, 20 March 2008).\n\nVI.  ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION\n\n138.  The applicant complained that she had been discriminated against in the enjoyment of her Convention rights, because the violations of which she complained had taken place as a result of her being resident in  and her ethnic background as a Chechen. This was contrary to Article 14 of the Convention, which reads as follows:\n\n“The enjoyment of the right and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”\n\n139.  The Court observes that no evidence has been submitted to it that suggests that the applicant was treated differently from persons in an analogous situation without objective and reasonable justification, or that they have ever raised this complaint before the domestic authorities. It thus finds that this complaint has not been substantiated.\n\n140.  It follows that this part of the application is manifestly ill-founded and should be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.\n\nVII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n141.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Pecuniary damage\n\n142.  The applicant claimed that she had sustained damage in respect of the loss of her son's earnings following his apprehension and disappearance. She claimed a total of 429,553.36 Russian roubles (RUB) (approximately 11,928 euros (EUR)) under this head.\n\n143.  The applicant submitted that Adam Khurayev had been unemployed at the time of his arrest, and that in such cases the calculation should be made on the basis of the subsistence level established by national law. Her calculations were also based on the actuarial tables for use in personal injury and fatal accident cases published by the United Kingdom Government Actuary's Department in 2007 (the so-called “ tables”). The applicant assumed that she would have benefitted from her son's financial support equal to 30% of his earnings.\n\n144.  The Government argued that the applicant's claims were unsubstantiated and that she had not made use of the domestic avenues for obtaining compensation for the loss of her breadwinner.\n\n145.  The Court reiterates that there must be a clear causal connection between the damage claimed by the applicant and the violation of the Convention, and that this may, in an appropriate case, include compensation in respect of loss of earnings. It has held that the loss of earnings also applies to dependant children and, in some instances, to elderly parents (see, among other authorities, Imakayeva, cited above, § 213). Having regard to its conclusions above, it finds that there is a direct causal link between the violation of Article 2 in respect of the applicant's son and the loss to her of the financial support which he could have provided.\n\n146.  Having regard to the applicant's submissions and the fact that Adam Khurayev was not employed at the time of his apprehension, the Court awards EUR 2,000 to the applicant in respect of pecuniary damage plus any tax that may be chargeable on that amount.\n\nB.  Non-pecuniary damage\n\n147.  The applicant claimed EUR 100,000 in respect of non-pecuniary damage for the suffering she had endured as a result of the loss of her son, the indifference shown by the authorities towards her and the failure to provide any information about his fate.\n\n148.  The Government found the amounts claimed exaggerated.\n\n149.  The Court has found a violation of Articles 2, 5 and 13 of the Convention on account of the unacknowledged detention and disappearance of the applicant's relative. The applicant herself has been found to have been the victim of a violation of Article 3 of the Convention. The Court thus accepts that she has suffered non-pecuniary damage which cannot be compensated for solely by the findings of violations. It awards to the applicant EUR 60,000, plus any tax that may be chargeable thereon.\n\nC.  Costs and expenses\n\n150.  The applicant was represented by the SRJI. They submitted an itemised schedule of costs and expenses that included research and interviews in Ingushetia and Moscow, at a rate of EUR 50 per hour, and the drafting of legal documents submitted to the Court and the domestic authorities, at a rate of EUR 50 per hour for SRJI lawyers and EUR 150 per hour for SRJI senior staff, as well as administrative expenses, translation and courier delivery fees. The aggregate claim in respect of costs and expenses related to the applicant's legal representation amounted to EUR 5,634.67, to be paid into the representatives' account in the .\n\n151.  The Government pointed out that the applicant should be entitled to the reimbursement of her costs and expenses only in so far as it had been shown that they had actually been incurred and were reasonable as to quantum (see Skorobogatova v. Russia, no. 33914/02, § 61, 1 December 2005).\n\n152.  The Court has to establish first whether the costs and expenses indicated by the applicant's relative were actually incurred and, second, whether they were necessary (see McCann and Others, cited above, § 220).\n\n153.  Having regard to the details of the information and legal representation contracts submitted by the applicant, the Court is satisfied that these rates are reasonable and reflect the expenses actually incurred by the applicant's representatives.\n\n154.  As to whether the costs and expenses incurred for legal representation were necessary, the Court notes that this case was rather complex and required a certain amount of research and preparation. It notes at the same time that due to the application of Article 29 § 3 in the present case, the applicant's representatives submitted their observations on admissibility and merits in one set of documents. The Court thus doubts that legal drafting was necessarily time-consuming to the extent claimed by the representatives. Furthermore, the case involved little documentary evidence, in view of the Government's refusal to submit most of the case file. Hence, it is also doubtful whether research was necessary to the extent claimed by the representatives. Lastly, the Court notes that it is its standard practice to rule that awards in relation to costs and expenses are to be paid directly into the applicant's representatives' accounts (see, for example, Toğcu, cited above, § 158; Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 175, ECHR 2005VII; and Imakayeva, cited above).\n\n155.  Having regard to the details of the claims submitted by the applicant, the Court awards her the amount of EUR 4,000, together with any value-added tax that may be chargeable to her, the net award to be paid into the representatives' bank account in the Netherlands, as identified by the applicant.\n\nD.  Default interest\n\n156.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Decides to join to the merits the Government's objection as to non-exhaustion of criminal domestic remedies and rejects it;\n\n2.  Declares the complaints under Articles 2, 3, 5 and 13 of the Convention admissible and the remainder of the application inadmissible;\n\n3.  Holds that there has been a substantive violation of Article 2 of the Convention in respect of Adam Khurayev;\n\n4.  Holds that there has been a violation of Article 2 of the Convention in respect of the failure to conduct an effective investigation into the circumstances in which Adam Khurayev disappeared;\n\n5.  Holds that there has been a violation of Article 3 of the Convention in respect of applicant;\n\n6.  Holds that there has been a violation of Article 5 of the Convention in respect of Adam Khurayev;\n\n7.  Holds that there has been a violation of Article 13 of the Convention in respect of the alleged violations of Article 2;\n\n8.  Holds that no separate issues arise under Article 13 of the Convention in respect of the alleged violations of Articles 3 and 5;\n\n9.  Holds\n\n(a)  that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Russian roubles at the date of settlement, save in the case of the payment in respect of costs and expenses:\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n10.  Dismisses the remainder of the applicant's claim for just satisfaction.\n\nDone in English, and notified in writing on 12 May 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_421","text":"PROCEDURE\n\n1.  The case originated in an application (no. 65413/01) against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Italian national, Mr Claudio Bonamassa (“the applicant”), on 20 January 2001.\n\n2.  The applicant is represented before the Court by Mr R. Mastroianni, a lawyer practising in Florence. The Italian Government (“the Government”) were represented by their Agent, Mr U. Leanza and by their successive co-agents, respectively Mr V. Esposito and Mr F. Crisafulli.\n\n3.  On 27 June 2002 the Court declared the application admissible.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n4.  The applicant was born in 1950 and lives in Florence.\n\n5.  He is the owner of a flat in Florence, which he had let to A.R.\n\n6.  In a registered letter of 29 June 1987, the applicant informed the tenant that he intended to terminate the lease on expiry of the term on 31 December 1987 and asked him to vacate the premises by that date.\n\n7.  The tenant told the applicant that he would not leave the premises.\n\n8.  In a writ served on the tenant on 7 July 1989, the applicant reiterated his intention to terminate the lease and summoned the tenant to appear before the Florence Magistrate.\n\n9.  By a decision of 21 September 1989, which was made enforceable on the same day, the Florence Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 21 September 1990.\n\n10.  On 25 November 1994, the applicant served notice on the tenant requiring him to vacate the premises.\n\n11.  On 9 February 1995, he served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 22 February 1995.\n\n12.  Between 22 February 1995 and 13 June 2001, the bailiff made nine attempts to recover possession. Each attempt proved unsuccessful, as the applicant was never granted the assistance of the police in enforcing the order for possession.\n\n13.  On 6 December 1995, the applicant made a statutory declaration that he urgently required the premises as accommodation for his son\n\n14.  On 17 August 2000, pursuant to section 6 of Law no. 431/98, the enforcement proceedings were suspended until 13 June 2001.\n\n15.  On 29 June 2001, the applicant recovered possession of the flat.\n\nII.  RELEVANT DOMESTIC LAW\n\n16.  Since 1947 the public authorities in Italy have frequently intervened in residential tenancy legislation with the aim of controlling rents. This has been achieved by rent freezes (occasionally relaxed when the Government decreed statutory increases), by the statutory extension of all current leases and by the postponement, suspension or staggering of the enforcement of orders for possession. The relevant domestic law concerning the extension of tenancies, the suspension of enforcement and the staggering of evictions is described in the Court's judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V.\n\nA. The system of control of the rents\n\n17.  As regards the control of the rents, the evolution of the Italian legislation may be summarised as follows.\n\n18.  The first relevant measure was the Law no. 392 of 27 July 1978 which provided machinery for “fair rents” (the so-called equo canone) on the basis of a number of criteria such as the surface of the flat and its costs of realisation.\n\n19.  The second step of the Italian authorities dated August 1992. It was taken in the view of progressive liberalisation of the market of tenancies. Accordingly, a legislation relaxing on rent levels restrictions (the so-called patti in deroga) entered into force. Owners and tenants were in principle given the opportunity to derogate from the rent imposed by law and to agree on a different price.\n\n20.  Lastly, Law no. 431 of 9 December 1998 reformed the tenancies and liberalised the rents.\n\nB.\tObligations of the tenant in the case of late restitution\n\n21.  The tenant is under a general obligation to refund the owner any damages caused in the case of late restitution of the flat. In this regard, Article 1591 of the Italian Civil Code provides:\n\n“The tenant who fails to vacate the immovable property is under an obligation to pay the owner the agreed amount until the date when he leaves, together with other remaining damages”.\n\n22.  However, Law no. 61 of 1989 set out, inter alia, a limit to the compensation claimable by the owner entitling him to a sum equal to the rent paid by the tenant at the time of the expiration of the lease, proportionally increased according to the cost of living (Article 24 of Law n. 392 of 27 July 1978) plus 20%, along the period of inability to dispose of the possession of the flat.\n\n23.  In the judgment no. 482 of 2000, the Constitutional Court was called upon to decide whether such a limitation complied with the Constitution. The Constitutional Court held that it was compatible with the Constitution with regard to periods of time during which the suspension of the evictions was determined by law. The Constitutional Court explained that the introduction of that limitation was intended to settle the tenancies of the time of the emergency legislation, when the housing shortage made the suspension of the enforcement necessary. While evictions were suspended ex lege, the law predetermined the quantum of the reimbursement chargeable to the tenant, both measures being temporary and exceptional. Besides, the interests of the owner were counterbalanced by the exemption for him from the burden to prove the damages.\n\n24.  The Constitutional Court declared the limitation to the compensation claimable by the owner unconstitutional with regard to cases where the impossibility for the owner to repossess the flat depended on the conduct of the tenant and was not due to a legislative intervention. Accordingly, it opened the way to owners for the institution of civil proceedings in order to obtain full reparation of the damages caused by the tenant.\n\nTHE LAW\n\nI.\tALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 AND OF ARTICLE 6 § 1 OF THE CONVENTION\n\n25.  The applicant complained of his prolonged inability to recover possession of his flat, owing to the lack of police assistance. He alleged a violation of his right of property, as guaranteed by Article 1 of Protocol No. 1 to the Convention, which provides:\n\n“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.\n\nThe preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”\n\n26.  The applicant also alleged a breach of Article 6 § 1 of the Convention, the relevant part of which provides:\n\n“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”\n\n27.  The Court has previously examined a number of cases raising issues similar to those in the present case and found a violation of Article 1 of Protocol No. 1 and Article 6 § 1 of the Convention (see Immobiliare Saffi, cited above, §§ 46-75; Lunari v. Italy, no. 21463/93, 11 January 2001, §§ 34-46; Palumbo v. Italy, no. 15919/89, 30 November 2000, §§ 33-48).\n\n28.  The Court has examined the present case and finds that there are no facts or arguments from the Government which would lead to any different conclusion in this instance. It notes that the applicant had to wait approximately six years and four months after the first attempt of the bailiff before being able to repossess the flat.\n\nConsequently, there has been a violation of Article 1 of Protocol No. 1 and of Article 6 § 1 of the Convention in the present case.\n\nII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n29.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Pecuniary damage\n\n30.  The applicant sought reparation for the pecuniary damage he had sustained, which he calculated as follows: 25,000 euros (EUR), the sum being the loss of rent for the period from to August 1992 (when the legislation relaxing on rent restrictions entered into force) and June 2001 (when the applicant recovered possession of the flat).\n\n31.  The Government contested the claim.\n\n32.  The Court observes that the applicant submitted the requested amount as the result of the difference between the market value rent and the rent imposed by law. For the purpose of assessing the market value rent, the applicant submitted two statements of an expert (estate agency) which estimates respectively the value of the flat for the year 1997 and the market value rent for the year 2001.\n\n33.  The Court notes that, in December 1995, the applicant made a statutory declaration that he urgently required the flat as accommodation for his son. Consequently, he cannot claim any entitlement to reimbursement of loss of rent but he can only claim the reimbursement of such costs and expenses incurred to rent another flat which go beyond the rent received from the tenant. However, he has not made such a claim. Therefore, the Court rejects the claim.\n\nB.  Non-pecuniary damage\n\n34.  The applicant claimed EUR 50,000 for the non-pecuniary damage.\n\n35.  The Government contested the claim.\n\n36.  The Court considers that the applicant must have sustained some non-pecuniary damage. Ruling on an equitable basis, it awards him EUR 6,000 under this head.\n\nC.  Costs and expenses\n\n37.  The applicant also claimed reimbursement of his legal costs and expenses as follows:\n\n- EUR 3,181.85 for the costs of the enforcement proceedings;\n\n- EUR 5,100 for the costs and expenses before the Court.\n\n38.  As regards the costs of the enforcement proceedings, the Government contested the claim. As regards the costs and expenses before the Court, the Government did not make any submissions.\n\n39.  On the basis of the information in its possession and the Court's case-law, the Court considers it reasonable to award the applicant the sum of EUR 1,500 for the costs and expenses incurred in the domestic proceedings and EUR 2,000 for the costs and expenses incurred before the Court.\n\n40.  The Court awards a total sum of EUR 3,500 for legal costs and expenses.\n\nD.  Default interest\n\n41.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;\n\n2.  Holds that there has been a violation of Article 6 § 1 of the Convention;\n\n3.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts:\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n4.  Dismisses the remainder of the applicant's claim for just satisfaction.\n\nDone in English, and notified in writing on 2 October 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_341","text":"PROCEDURE\n\n1.  The case originated in an application (no. 7589/12) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Marcin Brajer (“the applicant”), on 27 January 2012.\n\n2.  The applicant was represented by Mr P. Kozanecki, a lawyer practising in Łódź. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska of the Ministry of Foreign Affairs.\n\n3.  On 6 May 2013 the application was communicated to the Government.\n\n4.  The Government objected to the examination of the application by a Committee in part. After having considered the Government’s objection, the Court rejects it.\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n5.  The applicant was born in 1976 and is currently detained in Łódź Remand Centre.\n\nA.  The applicant’s pre-trial detention and criminal proceedings against him\n\n6.  On 25 September 2006 the Łódź District Court (Sąd Rejonowy) gave a decision, ordering the applicant’s detention on remand for a period of three months. He was charged with a number of offences committed in an armed organised criminal group. At that time the applicant was serving a prison sentence imposed in another criminal proceedings against him. The end of that prison sentence fell on 18 November 2007.\n\nIn its decision, the District Court relied on a reasonable suspicion that the applicant had committed the offences in question. The court further emphasised the gravity of the offences and the likelihood of a heavy prison sentence being imposed on the applicant after conviction. According to the domestic court, the fact that the applicant was at the relevant time serving a prison sentence did not minimise the risk of him obstructing the proceedings. Additionally, the ongoing questioning of other members of the criminal group as well as the necessity to obtain other evidence justified remanding the applicant in custody.\n\n7.  On 19 December 2006 and 26 June 2007 the Łódź  (Sąd Okręgowy) extended the applicant’s pre-trial detention. Subsequently, the Łódź Court of Appeal (Sąd Apelacyjny) extended the applicant’s detention on 19 September 2007, 19 December 2007, 28 March 2008, 18 June 2008, 22 October 2008 and on 23 December 2008.\n\nIn their detention decisions the courts repeatedly relied on a strong suspicion that the applicant had committed the offences in question and on the likelihood of a heavy prison sentence being imposed on him. The courts considered that keeping the applicant in detention on remand was necessary to secure the proper conduct of the proceedings. They emphasised the complex character of the case and the considerable number of co-accused involved who, if released, would had obstructed the proceedings. The courts noted that due to the nature of the organised criminal group, its methods of influencing and bringing pressure to bear on the other members of the group as well as witnesses, the authorities had had difficulties in collecting evidence and taking statements.\n\n8.  On 18 March 2009 the State Prosecutor (Prokurator Krajowy) lodged a bill of indictment against the applicant with the Łódź Regional Court. The applicant was charged with several counts of extortion and drug-trafficking committed in an organised and armed criminal group. The bill of indictment comprised 94 charges brought against 28 defendants. The prosecution authorities requested that 318 witnesses be heard before the court.\n\n9.  On 30 March 2009 the Łódź Court of Appeal extended the applicant’s detention on remand until 31 December 2009. Subsequently, the same court ordered prolongation of his detention on 21 December 2009 (detention extended until 30 September 2010), on 22 September 2010 (detention extended until 31 March 2011) and on 23 March 2011 (detention extended until 30 September 2011). The applicant lodged a number of motions to be released as well as appeals against the decisions extending his pre-trial detention, all in vain.\n\nIn their decisions the courts repeated the grounds previously given for the applicant’s detention.\n\n10.  Meanwhile, the court scheduled fifteen hearings for November and December 2009. Due to sick-leaves of the presiding judge and of some of the accused those hearings did not take place.\n\n11.  The trial was eventually opened on 18 January 2010. Subsequent scheduled hearings were adjourned due to absences of some of the coaccused and problems with sound system in the court room.\n\n12.  In May 2010 the Regional Court gave a severance order and decided to determine charges against two coaccused separately.\n\n13.  The bill of indictment was only finally read out to the defendants at the hearing held on 27 May 2010.\n\n14.  At the hearing of 28 May 2010 the Regional Court started taking evidence from the accused. It subsequently held fourteen hearings until the end of 2010, during which some of the accused gave evidence. Five of the scheduled hearings were adjourned due to sick-leaves of the accused. One hearing was adjourned because of the motion for disqualification of the presiding judge lodged by one of the co-accused.\n\n15.  In 2011 the Regional Court continued taking evidence from the defendants. Of the twenty nine hearings scheduled for this year, eleven took place. The trial court adjourned fifteen hearings due to justified absences of the parties, three hearings were cancelled due to sick-leaves of the presiding judge and the lay judges.\n\n16.  Meanwhile, on 17 August 2011 the Łódź Regional Court ordered that the applicant’s detention on remand be lifted on condition that he paid the bail in the sum of 20,000 Polish zlotys (PLN) within the period of two weeks from the date of the decision.\n\nOn the same date the applicant was released on bail and police supervision. He was also prohibited from leaving the country.\n\n17.  The Regional Court scheduled twenty hearings for 2012, of which six hearings were eventually held. At the hearing of 16 April 2012 the trial court started taking evidence from witnesses.\n\nOf the fourteen hearings cancelled this year, two were adjourned because of a sick-leave of a judge, three because of absences of witnesses, and the remaining nine hearings – because of absences of the parties.\n\n18.  Until 30 July 2013 the Regional Court scheduled nine hearings for 2013, of which seven were adjourned due to justified absences of the defendants.\n\n19.  The criminal proceedings against the applicant are still pending at first instance.\n\nB.  Proceedings under the 2004 Act\n\n20.  On 27 April 2011 the applicant lodged a complaint with the Łódź Court of Appeal under the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu przygotowawczym prowadzonym lub nadzorowanym przez prokuratora i postępowaniu sądowym bez nieuzasadnionej zwłoki – “the 2004 Act”). He sought a finding that the length of the criminal proceedings against him had been excessive and PLN 20,000 in compensation.\n\n21.  On 27 July 2011 the Łódź Court of Appeal dismissed the applicant’s complaint. The court found that, considering the complexity of the case and the number of co-accused who had actively tried to obstruct the proceedings, the Łódź  had conducted the proceedings in a correct and timely manner. Consequently, the appellate court refused to award the applicant compensation.\n\nII.  RELEVANT DOMESTIC LAW AND PRACTICE\n\nA.  Length of pre-trial detention\n\n22.  The relevant domestic law and practice concerning the imposition of pretrial detention (tymczasowe aresztowanie), the grounds for its extension, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are stated in the Court’s judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 2733, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 2223, 4 May 2006.\n\nB.  Length of proceedings\n\n23.  The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are set out in the Court’s decisions in the cases of Charzyński v. Poland (dec.), no. 15212/03, §§ 12-23, ECHR 2005V and Ratajczyk v. Poland (dec.), no. 11215/02, ECHR 2005-VIII, and its judgments in the cases of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V and Krzysztofiak v. Poland, no. 38018/07, §§ 23-30, 20 April 2010.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION\n\n24.  The applicant complained that the length of his detention on remand had been excessive. He relied on Article 5 § 3 of the Convention, which, in so far as relevant, reads as follows:\n\n“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”\n\n25.  By letter dated 22 October 2013 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issues raised by the application under Article 5 § 3 of the Convention concerning the length of applicant’s detention on remand. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.\n\nThe declaration provided as follows:\n\n“(...) the Government wish to express by way of the unilateral declaration, their acknowledgement of the fact that the period of the applicant’s pre-trial detention, was not compatible with a “reasonable time” requirement within the meaning of Article 5 § 3 of the Convention.(...)\n\nIn these circumstances, and having particular regard to violation of Article 5 § 3 of the Convention, the Government declare that they offer to pay the applicant the amount of PLN 10,000, which they consider to be reasonable in the circumstances of the case. The sum referred to above, which is to cover any pecuniary and nonpecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default periods plus three percentage points. (...)\n\nThe Government would respectfully suggest that the above declaration might be accepted by the Court as “any other reason” justifying the striking out of the case of the Court’s list of cases, as referred to in Article 37 § 1 (c) of the Convention.(...)”\n\n26.  The applicant indicated that he was not satisfied with the terms of the unilateral declaration and considered that the sum mentioned in the Government’s declaration was unacceptably low.\n\n27.  The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:\n\n“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.\n\n28.  It also recalls that in certain circumstances, it may strike out an application or part thereby under Article 37 § 1(c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.\n\n29.  To this end, the Court examined the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey, [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Spółka z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03).\n\n30.  The Court has established in a number of cases, including those brought against Poland, its practice concerning complaints under Article 5 § 3 of the Convention about the length of pre-trial detention (see Kauczor v. Poland, no. 45219/06, 3 February 2009 with further references).\n\n31.  Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of this part of the application (Article 37 § 1 (c)).\n\n32.  Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of this part of the application (Article 37 § 1 in fine).\n\n33.  In view of the above, it is appropriate to strike this part of the application out of the list.\n\nII.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE UNREASONABLE LENGTH OF THE PROCEEDINGS\n\n34.  The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:\n\n“In the determination of ...any criminal charge against him, everyone is entitled to a hearing within a reasonable time by [a] ... tribunal...”\n\n35.  The Government contested that argument.\n\n36.  The period to be taken into consideration began on 25 September 2006 and has not yet ended. It has thus lasted so far eight years for one level of jurisdiction.\n\nA.  Admissibility\n\n37.  The Court notes that this complaint is not manifestly illfounded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n1.  The parties submissions\n\n38.  The Government submitted that the national authorities displayed due diligence in the conduct of the proceedings in issue. They argued that the length of the proceedings was not excessive in the light of the complexity of the case, which concerned the charges of organised crime brought against several defendants. The Government further submitted that the frequent adjournments of the hearings were not attributable to the State, as they resulted from absences of the parties. They stressed that the trial court had scheduled altogether 101 hearings for a period of some three years and nine months of judicial proceedings.\n\n39.  The applicant submitted that the length of the proceedings against him was unreasonable. He stressed that he had remained in detention during a significant part of the criminal proceedings against him.\n\n2.  The Court’s assessment\n\n40.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).\n\n41.  The Court can accept that some delays in the procedure can be explained by the fact that the domestic authorities had to deal with a very complex case which involved a number of defendants and voluminous evidence. Moreover, the proceedings concerned charges of organised crime which inevitably made the task of trying the accused considerably more difficult than in an ordinary criminal case (see Horych v. Poland, no. 13621/08, § 115, 17 April 2012). However, these facts in themselves cannot justify the overall length of the proceedings.\n\n42.  As regards the conduct of the applicant, the Court notes that he had not contributed to the delays in the proceedings.\n\n43.  With respect to the conduct of the authorities, the Court observes that during the judicial stage of the proceedings, between June 2009 and July 2013, the trial court held only some forty hearings, that is less than one hearing per month (see paragraphs 9-17 above). It is true that a considerable number of hearings were scheduled and that most of the adjournments had been caused by reasons which could not in themselves be attributed to the trial court (see paragraphs 9-16 and 40 above). However, the duty to administer justice expeditiously was incumbent in the first place on the domestic authorities (see Kudła v. Poland [GC], no. 30210/96, § 130, ECHR 2000XI). Notwithstanding the significant difficulties which they faced in the present case, they were required to organise the trial efficiently and to ensure that the Convention guarantees were fully respected in the proceedings.\n\nThis is all the more relevant because the applicant was in custody for a substantial part of the proceedings (see paragraphs 5-6, 8 and 15 above). In this connection the Court would recall that persons kept in detention pending trial are entitled to “special diligence” on the part of the authorities (see, for example, Abdoella v. the Netherlands, judgment of 25 November 1992, Series A no. 248-A, p. 17, § 24; Jabłoński v. Poland, no. 33492/96, § 102, 21 December 2000).\n\nLastly, the Court notes that the proceedings, which have already lasted eight years, are still pending before the first-instance court.\n\n44.  Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case.\n\nHaving regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.\n\nThere has accordingly been a breach of Article 6 § 1.\n\nIII.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION\n\n45.  The applicant complained, without invoking any provisions of the Convention, that he had been detained in cells where window shutters had been installed and that constant darkness had caused deterioration of his sight. He also alleged that during his detention he had had limited contact with his family, he had not been able to attend his mother’s funeral and that he had not been allowed to work and had to rely on his family’s financial support.\n\nHowever, the Court observes that the applicant failed to raise any of the above complaints at the domestic level. They must therefore be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.\n\n46.  Lastly, the applicant complained under Article 13 of the Convention that he had had no ‘effective remedy’ against the excessive length of the proceedings. Article 13 provides:\n\n“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”\n\n47.  The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time. However, the “effectiveness” of a “remedy” within the meaning of that provision does not depend on the certainty of a favourable outcome for the applicant (see Kudła, cited above, § 154, §§ 156-157; Figiel v. Poland (no. 2), no. 38206/05, § 31, 16 September 2008).\n\n48.  The fact that in the present case the applicant’s claim for just satisfaction failed does not in itself render the remedy under the 2004 Act incompatible with Article 13. The expression “effective remedy” used in Article 13 cannot be interpreted as a remedy bound to succeed, but simply an accessible remedy before an authority competent to examine the merits of a complaint (see Figiel (no. 2), cited above, § 33, with further references).\n\nIn the light of the foregoing, the Court considers that in the circumstances of the present case it cannot be said that the applicant’s right to an effective remedy under Article 13 of the Convention has not been respected.\n\n49.  It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.\n\nIV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n50.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\n51.  The applicant did not submit a claim for just satisfaction or for costs and expenses. Accordingly, the Court considers that there is no call to award him any sum on that account.\n\nFOR THESE REASONS, THE COURT, UNANIMOUSLY,\n\n1.  Takes note of the terms of the respondent Government’s unilateral declaration as regards the complaint under Article 5 § 3 of the Convention concerning the excessive length of detention on remand;\n\n2.  Decides to strike this part of the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention;\n\n3.  Declares the complaint under Article 6 § 1 of the Convention concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible;\n\n4.  Holds that there has been a violation of Article 6 § 1 of the Convention.\n\nDone in English, and notified in writing on 13 January 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_180","text":"PROCEDURE\n\n1.   The case was referred to the Court by the European Commission of Human Rights (\"the Commission\") on 9 September 1994, within the three-month period laid down by Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the Convention.  It originated in an application (no. 14570/89) against the Grand Duchy of Luxembourg lodged with the Commission under Article 25 (art. 25) by an association under  law - the Agricultural Association for the Promotion of Milk Marketing (\"Procola\") - and sixty-three of its members on 22 November 1988.\n\nThe Commission's request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby  recognised the compulsory jurisdiction of the Court (Article 46) (art. 46).  The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 6 (art. 6) of the Convention.\n\n2.   In response to the enquiry made in accordance with Rule 33 para. 3 (d) of Rules of Court A, the applicant association stated that it wished to take part in the proceedings and designated the lawyer who would represent it (Rule 30).\n\n3.   The Chamber to be constituted included ex officio Mr A. Spielmann, the elected judge of  nationality (Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21 para. 3 (b)).  On 24 September 1994, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mr J. De Meyer, Mr R. Pekkanen, Mr J.M. Morenilla, Mr F. Bigi, Mr G. Mifsud Bonnici, Mr D. Gotchev and Mr P. Kuris (Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).\n\n4.   As President of the Chamber (Rule 21 para. 5), Mr Ryssdal, acting through the Registrar, consulted the Agent of the Luxembourg Government (\"the Government\"), the applicant's lawyer and the Delegate of the Commission on the organisation of the proceedings (Rules 37 para. 1 and 38).  Pursuant to the order made in consequence, the Registrar received the applicant association's and the Government's memorials on 5 January and 20 January 1995 respectively.  On 28 March the Secretary to the Commission informed the Registrar that the Delegate would submit his observations at the hearing.\n\n5.   In the meantime, on 17 March 1995, the Commission had produced the file on the proceedings before it, as requested by the Registrar on the President's instructions.\n\n6.   In accordance with the President's decision, the hearing took place in public in the Human Rights Building, , on 24 April 1995.  The Court had held a preparatory meeting beforehand.\n\nThere appeared before the Court:\n\n(a) for the Government\n\n(b) for the Commission\n\n(c) for the applicant association\n\nThe Court heard addresses by Mr Weitzel, Mr Entringer and Mr Welter.\n\nAS TO THE FACTS\n\nI.   THE CIRCUMSTANCES OF THE CASE\n\n7.   Procola is a dairy constituted as an agricultural association under  law.  Its registered office is at Ingeldorf.\n\nA. The origins of the case\n\n8.   Following the introduction of the \"milk quota\" system in the member States of the European Community by EEC Regulations Nos. 856/84 and 857/84 of 31 March 1984,  adopted, in a grand-ducal regulation of 3 October 1984, the provisions incorporating the Community rules into domestic law.  A number of ministerial orders were issued on 10 October 1984 allocating reference quantities for milk purchases (i.e. the quantities in excess of which an additional levy would be payable) to the four milk purchasers in the Grand Duchy, that is to say the dairies purchasing milk from producers - including the applicant association; the quantities were based on the figures for milk collected in 1981.\n\n9.   The applicant association and two other milk purchasers appealed to the Judicial Committee of the Conseil d'Etat against the decisions fixing the reference quantities.  In accordance with Article 177 of the Treaty establishing the European Economic Community (\"the EEC treaty\"), that court referred a number of questions to the Court of Justice of the European Communities (\"the Court of Justice\") for a preliminary ruling, which was given in a judgment of 25 November 1986.\n\n10.   In the light of the answers given by the Court of Justice, the Conseil d'Etat held, in a judgment of 26 February 1987, that the choice of 1981 as the reference year had led to discrimination between purchasers, contrary to Article 40 para. 3 of the EEC treaty.  The impugned decisions were accordingly set aside and the case was referred to the Minister of State for Agriculture for a fairer apportionment of the reference quantities among the four dairies in  by means of a grand-ducal regulation.\n\n11.   On 27 May 1987 the Minister of State submitted a new draft grand-ducal regulation under which the reference quantities were to be allocated to the four milk purchasers on the basis of the milk deliveries made to them in 1983.  In order to meet 's obligations under Community law, it was proposed in the draft regulation to make the new reference quantity system applicable not only in the future but also retrospectively to previous milk-production years, with effect from April 1984.  The draft regulation was submitted to the Conseil d'Etat for an opinion.\n\n12.   In a letter of 24 June 1987 the President of the Conseil d'Etat drew the Prime Minister's attention to the fact that such rules could be given retrospective effect only through legislation and not by means of a regulation.\n\n13.   At the close of its deliberations of 2 July 1987 the Conseil d'Etat proposed certain amendments and a single-clause bill giving the future regulation retrospective effect from 2 April 1984, the date on which the milk-quota system had come into force in the European Community countries.\n\n14.   With certain amendments, the Minister of State's draft regulation of 27 May 1987 became the Grand-Ducal Regulation of 7 July 1987 and the bill drafted by the Conseil d'Etat on 2 July 1987 became the Act of 27 August 1987, which made this regulation applicable with retrospective effect to \"the twelve-month periods of application of the additional levy on milk commencing respectively on 2 April 1984, 1 April 1985 and 1 April 1986\".  For these periods, paragraph 2 of the single section of the Act provided: \"Purchasers' reference quantities shall be reallocated on the basis of the provisions of Article 3 of the Grand-Ducal Regulation of 7 July 1987 referred to above, and the basic and supplementary individual reference quantities shall be recalculated on the basis of the relevant provisions of the same regulation.\"\n\n15.   On 21 September 1987 the Minister of State issued four ministerial orders fixing the applicant association's milk quantities for each of the four milk-production years between 2 April 1984 and 31 March 1988.\n\nB. The applications for judicial review lodged with the Conseil d'Etat\n\n16.   On 24 November 1987 Procola applied to the Judicial Committee of the Conseil d'Etat for judicial review of each of those four orders on the grounds that they adversely affected the association and its suppliers because its reference quantities for the milk-production years in question were too low.  In its pleadings, in addition to raising a number of grounds of appeal alleging the unlawfulness of the Grand-Ducal Regulation of 7 July 1987 and breaches of several of its provisions, the applicant association criticised its retrospective application to milk-production years before the one which had begun on 1 April 1987.  In the alternative, it asked the Judicial Committee to refer a number of questions to the Court of Justice for preliminary rulings, including one concerning the principle of non-retrospective application.\n\n17.   In a judgment of 6 July 1988 the Judicial Committee dismissed the applications in the following terms:\n\n\"While it is true that as a general rule a statute makes provision only for the future, it is open to the legislature to give retrospective effect to a statute, in so far as this is not prohibited under the Constitution.   was required to fill the legal vacuum created by the Judicial Committee's judgment of 26 February 1987 quashing the regulation, otherwise it would have been in breach of its binding obligations under the Treaty of Rome.\n\nUnder Article 189 of that treaty, Community regulations are directly applicable.  Consequently,  was obliged to legislate on the matter of milk levies for the periods from 2 April 1984 to 31 March 1987, and only Parliament, which had the approval of the Community authorities, had the power to do so.\n\nAt all events, the penalties attaching to any failure on the part of purchasers to comply with the quantities during the first, second and third periods are no higher than those which would have been payable under the previous legislation.  The difference, amounting to approximately 35 million [francs], is to be borne by the State, with the agreement of the Community authorities, so that the retrospective effect of the milk quantities, far from causing the applicant association prejudice, is in fact beneficial to it.\n\nA plea of unlawfulness cannot succeed against a statute and this ground must accordingly fail ...\"\n\nFour of the five members of the Judicial Committee had previously taken part in drawing up the Conseil d'Etat's opinion on the draft regulation and in framing the bill in issue.\n\nII.   RELEVANT LAW\n\nA. The EEC rules and their implementation in\n\n18.   In order to regulate and stabilise the market in milk and milk products, which was characterised by overproduction, the Council of Ministers of the European Economic Community adopted Regulations (EEC) Nos. 856/84 and 857/84 of 31 March 1984.  These established in the Community member States, for a five-year period commencing on 2 April 1984, a system of additional levies on all milk delivered in excess of a guaranteed quantity, also known as the \"reference quantity\".\n\nEach  was allocated a total reference quantity which it then had to apportion among milk producers, under Formula A, or milk purchasers (dairies) under Formula B.  The reference quantities for purchasers and producers were determined on the basis of the deliveries they took or their production in 1981, 1982 or 1983, weighted by a certain percentage fixed in such a way as not to exceed the guaranteed quantity.\n\nThe additional levy, which was set at a certain percentage of the target price for milk, was payable by producers or purchasers, as appropriate, on all milk produced or collected in excess of the reference quantity.  Where a  chose Formula B, purchasers were to pass on the cost of the additional levy only to those producers who had delivered a quantity of milk exceeding their quota.\n\n19.    opted for Formula B, and the measures for implementing the Community rules were laid down in a grand-ducal regulation of 3 October 1984 and a number of ministerial orders of 10 October 1984 (see paragraph 8 above).\n\nB. The Conseil d'Etat\n\n20.   At the time when the judgment complained of by the applicant association was given, the second and third paragraphs of Article 76 of the Luxembourg Constitution, which govern the subject, provided:\n\n\"In addition to the Government there shall be a Council, whose functions shall be to deliberate on draft legislation and any amendments proposed thereto, determine administrative disputes and give its opinion on any other question referred to it either by the Grand Duke or pursuant to a statutory provision.  The organisation of this Council and the manner in which it is to perform its functions shall be laid down by statute.\"\n\n1. Membership\n\n21.   The Act of 8 February 1961, as amended on 26 July 1972, laid down the organisation of the Conseil d'Etat.  Section 1 provides:\n\n\"The Conseil d'Etat shall be composed of twenty-one councillors, eleven of whom shall form the Judicial Committee.\n\nThe latter figure shall not include those members of the Reigning Family who form part of the Conseil d'Etat.\"\n\nThe Act does not distinguish between the Judicial Committee and the Conseil d'Etat proper with regard to the appointment of the Conseil d'Etat's members (section 4).  The members are all appointed by the Grand Duke, who chooses them either directly or from a list of candidates put forward by the Chamber of Deputies or the Conseil d'Etat itself.\n\nThe members of the Judicial Committee are chosen from among the members of the Conseil d'Etat (section 5).\n\n22.   Section 9 lays down the qualifying conditions for becoming a member of the Conseil d'Etat.  The same qualifying conditions apply to the Judicial Committee, except that its members must also be doctors of law or enjoy the rights appertaining to that title.\n\nThe duties of a member of the Conseil d'Etat are not full-time and are incompatible only with serving as a member of the Government, a Government adviser or a member of Parliament.  Section 22 (2) provides: \"Members of the Judicial Committee may not take part in the deliberations on cases which they have already dealt with in some other capacity than as member of the Conseil d'Etat.\"  It thus implies that a councillor who has already had to deal with a case as a member of the Conseil d'Etat is not prevented from dealing with the same case if it comes before the Judicial Committee.\n\n23.   In principle, the term of office of a member of the Conseil d'Etat ends only when he reaches the age-limit, which is at present 72.\n\n2. Functions\n\n24.   The Conseil d'Etat has mainly advisory and judicial functions (sections 7 and 8).\n\n25.   With regard to its advisory functions (section 27), the Conseil d'Etat gives its opinion on all Government and private members' bills, draft regulations on general administrative matters, and draft regulations or orders required for the implementation of treaties.\n\n26.   As a judicial body, the Conseil d'Etat, acting through its Judicial Committee, is the court of first and last instance in administrative proceedings.  Its judicial powers are restricted in two respects.  Firstly, it can only review the lawfulness of individual administrative decisions, not general regulatory decisions; secondly, except where there is an express statutory provision to the contrary (section 29), the only remedy available against these decisions is judicial review on the grounds of lack of competence, ultra vires, abuse of authority or breaches of the substantive or procedural rules protecting private interests (section 31).\n\n3. Proposed reform\n\n27.   In 1989 Article 76 of the Constitution was amended.  A bill at present before Parliament is intended to bring about a radical reform of this whole question, the aim being to separate the Conseil d'Etat's advisory and judicial functions.\n\nPROCEEDINGS BEFORE THE COMMISSION\n\n28.   Procola and sixty-three of its members, all farmers, applied to the Commission on 22 November 1988.  They complained of an infringement of their right to an independent and impartial tribunal, secured in Article 6 para. 1 (art. 6-1) of the Convention, on the ground that some of the members of the Judicial Committee who ruled on Procola's application for judicial review had previously given their opinion on the lawfulness of the impugned provisions.  They also argued that retrospective application of the decisions fixing the milk quantities was in breach of Article 7 (art. 7) of the Convention.  Lastly, they contended that the additional levies infringed their right to the peaceful enjoyment of their possessions contrary to Article 1 of Protocol No. 1 (P1-1).\n\n29.   On 1 July 1993 the Commission declared Procola's application (no. 14570/89) admissible as regards the first complaint and inadmissible as to the remainder.  It declared the complaints submitted by Procola's members inadmissible, on the ground that they had not exhausted domestic remedies.\n\nIn its report of 6 July 1994 (Article 31) (art. 31), it expressed the opinion by nine votes to six that there had been no violation of Article 6 (art. 6) of the Convention.  The full text of the Commission's opinion and of the dissenting opinion contained in the report is reproduced as an annex to this judgment .\n\nFINAL SUBMISSIONS TO THE COURT\n\n30.   In their memorial the Government asked the Court\n\n\"to hold that Article 6 para. 1 (art. 6-1) of the Convention is not applicable to the case before the Court or, in the alternative, that this provision (art. 6-1) was not violated\".\n\n31.   The applicant's lawyer asked the Court\n\n\"to hold, as regards the merits of the case, that there has been a violation of the European Convention for the Protection of Human Rights as regards Article 6 para. 1 (art. 6-1);\n\nto hold that the applicant's loss amounts to 4,456,453 [ francs (LUF)], together with interest of [LUF] 568,290, i.e. a total of [LUF] 5,024,743\".\n\nAS TO THE LAW\n\nI.   ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE CONVENTION\n\n32.   The applicant association complained that the Judicial Committee of the Conseil d'Etat was not independent and impartial.  It alleged a violation of Article 6 para. 1 (art. 6-1) of the Convention, which provides:\n\n\"In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing ... by an independent and impartial tribunal ...\"\n\nA. Applicability of Article 6 para. 1 (art. 6-1)\n\n33.   Procola argued that this provision (art. 6-1) was applicable in the case.  The Government and the Commission took the opposite view.\n\n1. Whether there was a dispute concerning a right\n\n34.   The Government maintained that the application for judicial review made to the Judicial Committee of the Conseil d'Etat was an \"objective\" one (recours objectif) - that is to say that it did not relate to a private right - directed against a decision applying Community rules; it did not, therefore, concern a \"contestation\" (dispute) between the parties to an action.  If the Judicial Committee had upheld the application, it could only have set aside the impugned orders and remitted the case to the Minister of State, so that he could take a fresh decision.  It could not have ordered repayment of sums paid without legal cause as, under Article 84 of the Constitution, only the ordinary courts were empowered to determine civil rights. Moreover, the Government continued, even if an application to the ordinary courts had been possible, no decision could have been given in Procola's favour, since the association as such had never had a legally enforceable claim.  The application could not have led to either repayment of the additional levies to Procola or the award of any compensation as, under the system adopted by Luxembourg, the levy, although imposed on the purchaser, was passed on by the latter only to those producers who had exceeded their quota (see paragraph 18 above). In short, the proceedings could not have had any result affecting the applicant's financial position.\n\n35.   The applicant association argued that unless the ministerial orders were quashed it could not seek damages in the civil courts; and only the Conseil d'Etat could quash them.  The proceedings in the Conseil d'Etat were thus decisive for a civil right, namely the right to repayment of the fine for overproduction.  Procola asserted that under the Formula B system chosen by  it was the party with which the State had to have legal relations and conduct financial dealings in the event of overproduction.  This was evidenced by the fact that the State had brought proceedings against the association to secure payment of the fine each time the reference quantity had been exceeded.\n\n36.   The Commission took the view that the application to the Conseil d'Etat had been lodged in connection with a public-law dispute which did not concern a private right of the applicant association.  Its real purpose was to secure a review in the abstract of the lawfulness of measures taken by the public authorities.\n\n37.   The Court notes that before the Judicial Committee the parties took opposite views on the question whether the ministerial orders fixing milk quantities could be given retrospective effect.  Procola maintained that for the years from 1984 to 1987 no levy was payable, since the previous rules had been set aside and it was impossible to make the orders retrospective, whereas the Delegate of the State maintained that the orders were lawful.  The applicant association's case was sufficiently tenable, since the Conseil d'Etat conducted a detailed examination of the conflicting arguments (see the Neves e Silva v. Portugal judgment of 27 April 1989, Series A no. 153-A, p. 14, para. 37, and the Editions Périscope v.  judgment of 26 March 1992, Series A no. 234-B, p. 65, para. 38).\n\nWithin the meaning of Article 6 (art. 6) of the Convention there was without any doubt a dispute concerning the determination of a right.\n\n2. As to the civil nature of the right in issue\n\n38.   The Court reiterates that Article 6 para. 1 (art. 6-1) is applicable where an action is \"pecuniary\" in nature and is founded on an alleged infringement of rights which are likewise pecuniary rights, notwithstanding the origin of the dispute and the fact that the administrative courts have jurisdiction (see, among other authorities, the Editions Périscope judgment, previously cited, p. 66, para. 40, and the Beaumartin v. France judgment of 24 November 1994, Series A no. 296-B, pp. 60-61, para. 28).\n\n39.   In order to satisfy itself that the proceedings were decisive for a civil right, the Court considers it necessary to look at the proceedings as a whole.  Procola sought repayment of the fine for overproduction of 4.5 million Luxembourg francs (LUF); the association argued that it had paid this sum wrongly, on the ground that its members had produced the milk during a period when there was a legal vacuum and the Luxembourg Government were not entitled to hold them to account for overproduction.\n\nAdmittedly, the application to the Conseil d'Etat could only result in the annulment of the impugned orders, but that annulment would have enabled the applicant association to bring proceedings in the civil courts to recover the sum it considered to have been wrongly paid.  By lodging the application, Procola were using the only means at their disposal - an indirect one - of attempting to obtain reimbursement of the additional levies.\n\nHaving regard to the close connection between the proceedings brought by Procola and the consequences that their outcome might have had for one of its pecuniary rights, and for its economic activities in general, the right in question was a civil one (see the Editions Périscope judgment, previously cited, p. 66, para. 40; the Beaumartin judgment, previously cited, pp. 60-61, para. 28; the Ortenberg v. Austria judgment of 25 November 1994, Series A no. 295-B, pp. 48-49, para. 28; and, by implication, the Van de Hurk v. the Netherlands judgment of 19 April 1994, Series A no. 288, p. 16, para. 43).\n\nIn any event, as the applicant pointed out, the Commission took the view in its decision on admissibility that the payment of an additional levy to the national authorities could be construed as a deprivation of possessions within the meaning of the first paragraph of Article 1 of Protocol No. 1 (P1 1), and the right to peaceful enjoyment of one's possessions is undoubtedly a civil right.\n\n40.   It follows that Article 6 para. 1 (art. 6-1) is applicable in the case.\n\nB. Compliance with Article 6 para. 1 (art. 6-1)\n\n41.   The applicant association pointed out that four of the five members sitting on the Judicial Committee when it ruled on Procola's application had previously sat on the advisory panel of the Conseil d'Etat which had given its opinion on the draft Grand-Ducal Regulation of 7 July 1987 and drafted a bill making that regulation retrospective. In view of the opinions they had previously expressed, particularly in the letter sent by the President of the Conseil d'Etat to the Prime Minister on 24 June 1987 (see paragraph 12 above), the members of the Judicial Committee could not have approached the question submitted to them, namely whether it was lawful to apply the ministerial orders of 21 September 1987 retrospectively, with a completely open mind.  In the instant case there was neither objective nor subjective impartiality.\n\n42.   The Government observed that before the Commission Procola had cast doubt only on the Judicial Committee's objective impartiality. The complaint now raised about subjective impartiality, in support of which no fresh evidence had been adduced, should therefore be rejected as being new.  In the instant case, they continued, it was quite true that some members of the Judicial Committee had performed first an advisory function - having given an opinion on the Grand-Ducal Regulation of 7 July 1987 and suggested that the Government have the Act of 27 August 1987 enacted - and then a judicial function. Nevertheless, it would be incorrect to infer that the Conseil d'Etat was not in a position to give an impartial ruling on the application. In the  legal system the Judicial Committee was bound to dismiss an application directed against a statute, not because it had earlier given its opinion on the draft but because in such a situation it had no discretion to do otherwise.\n\n43.   The Court considers that in the instant case it is not necessary to determine whether the Judicial Committee was an independent tribunal.  The applicant association did not put in doubt the method of appointing the Conseil d'Etat's members and the length of their terms of office or question that there were safeguards against extraneous pressure.\n\n44.   The only issue to be determined is whether the Judicial Committee satisfied the impartiality requirement of Article 6 (art. 6) of the Convention, regard being had to the fact that four of its five members had to rule on the lawfulness of a regulation which they had previously scrutinised in their advisory capacity.\n\n45.   The Court notes that four members of the Conseil d'Etat carried out both advisory and judicial functions in the same case.  In the context of an institution such as 's Conseil d'Etat the mere fact that certain persons successively performed these two types of function in respect of the same decisions is capable of casting doubt on the institution's structural impartiality.  In the instant case, Procola had legitimate grounds for fearing that the members of the Judicial Committee had felt bound by the opinion previously given. That doubt in itself, however slight its justification, is sufficient to vitiate the impartiality of the tribunal in question, and this makes it unnecessary for the Court to look into the other aspects of the complaint.\n\n46.   It follows that there has been a breach of Article 6 para. 1 (art. 6-1).\n\nII.   APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION\n\n47.   Under Article 50 (art. 50) of the Convention,\n\n\"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.\"\n\nA. Pecuniary damage\n\n48.   Procola requested reimbursement of the LUF 4,456,453 fine for overproduction, increased by LUF 568,290 interest, that had been imposed on the association as a result of the retrospective application of the Regulation of 7 July 1987.  They argued that, logically, the association should not have had to pay any fine in respect of the years preceding the regulation's entry into force.\n\n49.   The Government said that only Procola's individual members could claim to have sustained damage.  They further submitted that the amount in issue should be LUF 4,456,453, since the sum representing interest had not been collected.\n\n50.   The Delegate of the Commission expressed the view that it was difficult to speculate as to what the outcome of the dispute would have been if the Judicial Committee had been constituted so as to afford all the safeguards of an independent and impartial tribunal.\n\n51.   The Court likewise does not perceive any causal link between the breach of Article 6 para. 1 (art. 6-1) and the dismissal of Procola's application by the Conseil d'Etat.  It therefore disallows the claim.\n\nB. Costs and expenses\n\n52.   The applicant association, the Government and the Delegate of the Commission left this matter to the Court's discretion.  However, the applicant association suggested that, in view of the complexity of the case, the costs could be assessed at between 5 and 10% of the sum at stake in the proceedings, that is to say between LUF 250,000 and LUF 500,000.\n\n53.   Making an assessment on an equitable basis, as required by Article 50 (art. 50), and in the light of the relevant criteria, the Court awards Procola LUF 350,000.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.   Holds that Article 6 para. 1 (art. 6-1) of the Convention is applicable in this case;\n\n2.   Holds that there has been a breach of Article 6 para. 1 (art. 6-1) of the Convention;\n\n3.   Holds that the respondent State is to pay the applicant association, within three months, 350,000 (three hundred and fifty thousand)  francs for costs and expenses;\n\n4.   Dismisses the remainder of the claim for just satisfaction.\n\nDone in English and in French, and delivered at a public hearing in the Human Rights Building, , on 28 September 1995.","title":""}
{"_id":"passage_593","text":"PROCEDURE\n\n1.  The case originated in an application (no. 32783/03) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian national, Mr László Kalmár (“the applicant”), on 16 August 2003.\n\n2.  The Hungarian Government (“the Government”) were represented by Mr L. Höltzl, Agent, Ministry of Justice and Law Enforcement.\n\n3.  On 15 September 2005 the Court decided to give notice of the application to the Government. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time.\n\nTHE FACTS\n\n4.  The applicant was born in 1960 and lives in .\n\nA.  Civil proceedings\n\n5.  On 23 January 1996 the applicant brought an action in the Budapest Regional Court against the Budapest VII District Municipality, requesting it to find that his personality rights had been infringed by certain employees of the Municipality who had made allegedly untrue statements about him in the press.\n\n6.  On 26 January 1996 the  transferred the case to the Pest Central District Court. On 10 October 1996 the applicant extended his action and, on 20 November 1996, he identified further respondents. On 10 January 1997 the District Court requested another court to make available to it the case file of a related case. After the latter had been terminated, the file was sent to the District Court on 22 September 1998.\n\n7.  The District Court held hearings on 26 April 1999, 2 February, 14 June and 29 November 2000 and 24 June 2002.\n\n8.  On 30 June 2003 the court invited the applicant to recapitulate his action.\n\n9.  The hearings scheduled for 2 September and 7 December 2004 were adjourned. Meanwhile, on 6 October 2004 the  dismissed the applicant’s motion for bias, filed on 8 October 2003.\n\n10.  Further hearings were held on 22 March, 27 June and 3 November 2005. The proceedings are still pending at first instance.\n\nB.  Criminal proceedings\n\n11.  On 25 January 1994 a preliminary investigation was opened against the applicant. He was charged with causing unlawful damage (rongálás). He was also prosecuted for making a false accusation (hamis vád) and attempted subornation to perjury (hamis tanúzásra felhívás kísérlete). On 20 July 1994 and 19 September 1995, respectively, bills of indictment were preferred. In another case of false accusation, a bill of indictment was preferred on 21 December 1995. The applicant was entitled to copies of the bills of indictment under section 146(6) of the (Old) Code of Criminal Procedure.\n\n12.  The Pest Central District Court held hearings on 16 October 1995, 4 January and 20 March 1996. By decisions of 28 February and 21 June 1996, it joined all three cases.\n\n13.  Following a procedural dispute essentially concerning bias on the part of certain judges involved in the case, which started on 19 November 1997, the Supreme Court eventually assigned the case to the Buda Surroundings District Court on 1 March 1999.\n\n14.  On 28 July 1999 a further bill of indictment was preferred against the applicant in yet another case concerning 11 counts of false accusation. On 27 January 2000 these proceedings were joined to the existing ones.\n\n15.  The District Court held hearings on 20 April, 28 August and 17 November 2000, at which apparently only procedural steps were taken. After a hearing on 25 January 2001, at which five witnesses were interrogated, on 31 January 2001 the court acquitted the applicant of all charges save that of subornation to perjury, in respect of which it issued a reprimand. Although one witness, Mr M., whose testimony might have been relevant to this offence, could not be found and three further witnesses summoned had not appeared, the court was satisfied that the applicant’s guilt was proven beyond reasonable doubt by Mr M.’s testimony given during the investigation and by the letters in which the applicant had made the incriminated statement.\n\n16.  On appeal by the prosecution, on 27 November 2001 the  partly amended the first-instance judgment and convicted the applicant of one count of false accusation (an offence punishable by imprisonment of up to three years) and one count of subornation to perjury. As a cumulative sanction, it sentenced him to a fine of 30,000 Hungarian forints. In the reasoning, it was specified that:\n\n“[...A]s another mitigating factor, the second-instance court also appreciated the very significant lapse of time [since the commission of the offences] ...”\n\n17.  In reply to the applicant’s petition for review, on 12 June 2003 the Supreme Court reviewed the case and upheld the second instance judgment. In a detailed, lengthy analysis of the merits, it concluded that the applicant’s conviction had been justified.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE LENGTH OF THE CIVIL PROCEEDINGS\n\n18.  The applicant complained that the length of the civil proceedings had been incompatible with the “reasonable time” requirement of Article 6 § 1 of the Convention, which reads as follows:\n\n“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal...”\n\n19.  The Government contested that argument.\n\n20.  The period to be taken into consideration began on 23 January 1996 and has not yet ended. It has thus lasted over ten years and seven months for one level of jurisdiction.\n\nA.  Admissibility\n\n21.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.\n\nB.  Merits\n\n22.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).\n\n23.  The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present application (see Frydlender, cited above).\n\n24.  Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or convincing argument capable of persuading it to reach a different conclusion in the present case. Having regard to its jurisprudence on the subject, the Court considers that the length of the proceedings in the instant case was excessive and failed to meet the “reasonable time” requirement.\n\nThere has accordingly been a breach of Article 6 § 1.\n\nII.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION\n\n25.  The applicant also complained that the criminal proceedings against him had lasted an unreasonably long time.\n\n26.  The Government argued that the applicant could not claim to be a victim of a violation of his Convention rights in this respect, since the Regional Court had expressly acknowledged that the proceedings had been unusually long and, consequently, had provided redress by substantially reducing the applicant’s sentence. In any event, the authorities had displayed the requisite diligence in handling the case, complicated on account of the quadruple joinder. The applicant contested these views.\n\n27.  The Court notes that the  took account of the considerable lapse of time from the commission of the offences for which the applicant was convicted, and that this was one of the reasons for applying a lighter, cumulative sentence than the statutory minimum sanction for one of the offences alone. Against this background, the Court finds that the applicant obtained adequate redress for the alleged violation of his right under Article 6 § 1 of the Convention to the determination within a reasonable time of the criminal charges against him. Accordingly, he can no longer claim to be a victim, for the purposes of Article 34, of a violation of Article 6 § 1 in this respect. This complaint is therefore manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention (see Morby v. Luxembourg (dec.), no. 27156/02, ECHR 2003-XI; Lie and Bernsten (dec.), no. 25130/94; Tamás Kovács v. Hungary, no. 67660/01, § 26, 28 September 2004).\n\n28.  The applicant also complained about the decisions given. In particular, he submitted that his conviction had been unfounded, because the courts had only heard a fraction of the relevant testimony, that he had learnt about the charge of subornation to perjury only at the hearing of 20 April 2000, and that this charge had been upheld by the courts without hearing any witnesses. He relied on Article 6 §§ 1 and 3. The latter paragraph provides as relevant:\n\n“Everyone charged with a criminal offence has the following minimum rights:\n\n(a)  to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;\n\n(b)  to have adequate time and facilities for the preparation of his defence; ...\n\n(d)  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...”\n\n29.  As regards the fairness of the criminal proceedings, in so far as the applicant’s complaints may be understood to concern the assessment of the evidence and the result of the proceedings before the domestic courts, the Court reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999I).\n\n30.  In the present case, there is nothing in the case file indicating that the courts lacked impartiality or that the proceedings were otherwise unfair. In particular, the Court notes that the charge of subornation to perjury was contained in the bill of indictment filed on 19 September 1995, a copy of which the applicant had been entitled to. The applicant has not substantiated his claim that he was only informed of it in April 2000. Moreover, once convicted, the applicant had the possibility to challenge his conviction on this charge before the Regional and Supreme Courts, which both made a full review of the case. Furthermore, the Court reiterates that Article 6 cannot be interpreted as giving a defendant the right to have an infinite number of witnesses called. In the circumstances, it is satisfied that the fact that the courts heard some five witnesses and convicted the applicant of subornation to perjury, relying on clear documentary evidence, did not render the proceedings unfair as a whole. These complaints are therefore also to be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.\n\nIII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n31.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n32.  The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage.\n\n33.  The Government contested the claim.\n\n34.  The Court considers that the applicant must have sustained some non-pecuniary damage and that it should award the full sum claimed.\n\nB.  Costs and expenses\n\n35.  The applicant also claimed EUR 100 for the costs and expenses incurred before the Court.\n\n36.  The Government did not express an opinion on the matter.\n\n37.  The Court considers that the sum claimed should be awarded in full.\n\nC.  Default interest\n\n38.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Declares the complaint concerning the excessive length of the civil proceedings admissible and the remainder of the application inadmissible;\n\n2.  Holds that there has been a violation of Article 6 § 1 of the Convention;\n\n3.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 10,000 (ten thousand euros) in respect of non-pecuniary damage and EUR 100 (one hundred euros) in respect of costs and expenses, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n4.  Dismisses unanimously the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 3 October 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_69","text":"PROCEDURE\n\n1.  The case originated in an application (no. 13910/04) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Andrey Anatolyevich Tarasov (“the applicant”), on 6 March 2004.\n\n2.  The Russian Government (“the Government”) were represented by Mr P. Laptev, the Representative of the  at the European Court of Human Rights.\n\n3.  On 22 February 2005 the Court decided to communicate the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.\n\nTHE FACTS\n\n4.  The applicant was born in 1961 and lives in the town of  in the Moscow Region.\n\nA.  Proceedings for provision of housing\n\n5.  On 17 June 2002 the  allowed the applicant's claim against the Dubna Town Administration for provision of housing. The  ordered that the administration:\n\n“...provide Mr Tarasov, whose family comprises three members, with a separate well-equipped flat having a living surface of no less than 61 square metres on the basis of a special tenancy agreement...”.\n\n6.  The judgment was upheld on appeal on 12 August 2002 by the .\n\n7.  Enforcement proceedings were opened. However, the judgment could not be enforced because the town administration possessed no available housing or financial resources to purchase a flat.\n\n8.  On 24 February 2005 the Dubna Town Administration signed a contract with the applicant. According to the contract, the administration was to provide the applicant with a flat in 2005.\n\n9.  On 25 February 2005, upon the applicant's request, the  discontinued the enforcement proceedings.\n\n10.  In August 2005 the Dubna Town Administration bought a three-room flat for the applicant. It appears that in September 2005 the applicant moved into the flat.\n\nB.  Proceedings concerning the method of enforcement of the judgment of 17 June 2002\n\n11.  In February 2003 the applicant requested a court to amend the method of enforcement of the judgment of 17 June 2002 and to order that the Dubna Town Administration should pay him the value of a flat.\n\n12.  On 26 February 2003 the  dismissed the applicant's claim. That judgment was quashed on appeal on 2 April 2003 and the case was remitted for a fresh examination.\n\n13.  On 26 June and 18 September 2003 the  allowed the claim. Both judgements were quashed on appeal and the matter was remitted for re-examination.\n\n14.  On 10 March 2004 the  dismissed the applicant's claim. The judgment became final on 22 June 2004.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1\n\nArticle 6 § 1\n\n“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time... by [a]... tribunal...”\n\nArticle 1 of Protocol No. 1\n\n“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law...”\n\nA.  Admissibility\n\nB.  Merits\n\n20.  The Court has frequently found violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in cases raising issues similar to the ones in the present case (see Malinovskiy v. , no. 41302/02, § 35 et seq., ECHR 2005; Teteriny v. Russia, no. 11931/03, § 41 et seq., 9 June 2005; Gizzatova v. Russia, no. 5124/03, § 19 et seq., 13 January 2005; Burdov, cited above, § 34 et seq., ECHR 2002III).\n\n22.   The Court finds that by failing for years to comply with the enforceable judgment in the applicant's favour the domestic authorities impaired the essence of his right to a court and prevented him from receiving a flat he could reasonably have expected to receive.\n\n23.  There has accordingly been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1.\n\nII.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION\n\n24.  The applicant furthermore complained under Articles 6 and 8 of the Convention that the proceedings concerning the method of enforcement of the judgment of 17 June 2002 had been unfair and excessively long and that for more than three years he had not been able to live in a flat awarded by the judgment of 17 June 2002. However, having regard to all the material in its possession, and in so far as these complaints fall within the Court's competence ratione materiae, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.\n\nIII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n25.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Damage\n\n26.  The applicant claimed 23,000 euros (EUR) in respect of pecuniary and non-pecuniary damage.\n\n27.  The Government contested the claim as excessive and unsubstantiated.\n\n28.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, the Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards him EUR 2,400 under that head, plus any tax that may be chargeable.\n\nB.  Costs and expenses\n\n29.  The applicant also claimed EUR 11,100 for the costs and expenses incurred before the domestic courts and in the  proceedings. Those included EUR 10,800 in respect of legal fees paid to a lawyer and EUR 300 for postal expenses.\n\n30.  The Government did not comment.\n\n31.  According to the Court's case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court rejects the claim for legal expenses as the applicant was not represented by a lawyer in the domestic or  proceedings. As regards the remainder of the applicant's claims, the Court accepts that the applicant incurred postal expenses. It however considers the amount claimed to be excessive. Having regard to the elements at its disposal, the Court awards the applicant EUR 30 for the costs related to the proceedings before the Court, plus any tax that may be chargeable.\n\nC.  Default interest\n\n32.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Declares the complaint concerning non-enforcement of the judgment of 17 June 2002, as upheld on appeal on 12 August 2002, admissible and the remainder of the application inadmissible;\n\n2.  Holds that there has been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 on account of prolonged non-enforcement of the judgment of 17 June 2002, as upheld on appeal on 12 August 2002;\n\n3.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Russian roubles at the rate applicable at the date of the settlement:\n\n(i) EUR 2,400 (two thousand and four hundred euros) in respect of non-pecuniary damage;\n\n(ii) EUR 30 (thirty euros) in respect of costs and expenses;\n\n(iii) any tax that may be chargeable on the above amounts;\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n4.  Dismisses the remainder of the applicant's claim for just satisfaction.\n\nDone in English, and notified in writing on 28 September 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_586","text":"PROCEDURE\n\n12.  The case originated in an application (no. 34454/97) against Italy lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Italian national, Mrs Fabrizia Fleres (“the applicant”), on 5 October 1996.\n\n3.  The applicant was represented by Mr M. Albanesi Ginammi, a lawyer practising in Rome. The Italian Government (“the Government”) were represented by their Agent, Mr U. Leanza, and by their co-Agent, Mr V. Esposito.\n\n4.  The applicant complained under Article 1 of Protocol No. 1 that she had been unable to recover possession of her flat within a reasonable time. Invoking Article 6 § 1 of the Convention, she further complained about the length of the eviction proceedings.\n\n5.  The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).\n\n6.  The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1 of the Rules of Court. Mr. V. Zagrebelsky, the judge elected in respect of Italy, withdrew from sitting in the case (Rule 28). The Government appointed Mr. G. Raimondi as ad hoc judge to sit in his place (Article 27 § 2 of the Convention and Rule 29 § 2).\n\n7.  On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed First Section (Rule 52 § 1).\n\nTHE FACTS\n\nI.  THE CIRCUMSTANCES OF THE CASE\n\n8.  The applicant was born in 1959 and lives in Rome.\n\n9.  The applicant is the owner of an apartment in Rome, which she had let to G.S.\n\n10.  In a registered letter of 2 November 1983, the applicant informed the tenant that she intended to terminate the lease on expiry of the term on 31 December 1983 and asked him to vacate the premises by that date.\n\n11.  In a writ served on the tenant on 11 December 1984, the applicant reiterated her intention to terminate the lease and summoned the tenant to appear before the Rome Magistrate.\n\n12.  By a decision of 6 February 1985, which was made enforceable on the same day, the Rome Magistrate upheld the validity of the notice to quit and ordered that the premises must be vacated by 10 January 1986.\n\n13.  On 19 December 1986, the applicant served notice on the tenant requiring him to vacate the premises.\n\n14.  On 27 January 1987, she served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 13 March 1987.\n\n15.  Between 13 March 1987 and 27 January 1989, the bailiff made twelve attempts to recover possession.\n\n16.  On 12 May 1989, the applicant made a statutory declaration that she urgently required the premises as accommodation for her family.\n\n17.  Between 19 May 1989 and 14 July 1999, the bailiff made sixty-three attempts to recover possession. Each attempt proved unsuccessful, as the applicant was never granted the assistance of the police in enforcing the order for possession.\n\n18.  On 25 February 2000, the tenant vacated the premises.\n\nII.  RELEVANT DOMESTIC LAW\n\n19.  \tThe relevant domestic law is described in the Court's judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V.\n\nTHE LAW\n\nI.  ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 AND OF ARTICLE 6 § 1 OF THE CONVENTION\n\n20.  The applicant complained that she had been unable to recover possession of her flat within a reasonable time owing to the lack of police assistance. She alleged a violation of Article 1 of Protocol No. 1 to the Convention, which provides:\n\n“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.\n\nThe preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”\n\n21.  The applicant also alleged a breach of Article 6 § 1 of the Convention, the relevant part of which provides:\n\n“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”\n\nThe Court has on several previous occasions decided cases raising similar issues as in the present case and found a violation of Article 1 of Protocol No. 1 and Article 6 § 1 of the Convention (see Immobiliare Saffi, cited above, §§ 46-66; Lunari v. Italy, no. 21463/93, 11 January 2001, §§ 34-46; Palumbo v. Italy, no. 15919/89, 30 November 2000, §§ 33-47).\n\nThe Court has examined the present case and finds that there are no facts or arguments from the Government, which would lead to any different conclusion in this case. The Court refers to its detailed reasons in the judgments cited above and notes that in this case the applicant had to wait for thirteen years before recuperating the flat.\n\nConsequently, there has been a violation of Article 1 of Protocol No. 1 and of Article 6 § 1 of the Convention in the present case.\n\nII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n22.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.  Pecuniary damage\n\n23.  The applicant sought reparation for the pecuniary damage she had sustained, which she put at 168,000,000 Italian lire (ITL) [86,764.76 euros (EUR)], being the loss of rent for the period from 10 January 1986 (the date when the premises had to be vacated, as established by the decision of the Rome Magistrate of 6 February 1985) to 25 February 2000, ITL 60,000,000 [EUR 30,987.41] for renovation works in the flat after possession was recovered and ITL 3,334,100 [EUR 1,721.92] for the costs of executing the possession order.\n\n24.  The Government stressed that the amount claimed by the applicant was excessive. As regards the costs incurred for the domestic proceedings, the Government argued that the costs of the proceedings on the merits and the ones for renovation works in the flat after possession, were not related to the alleged violations.\n\n25.  The Court considers that the applicant must be awarded compensation for the pecuniary damage resulting from the loss of rent (see Immobiliare Saffi cited above, § 79), on the basis of the reimbursement of the difference between the global amount of the rents she could have endorsed and the rents she effectively collected. Having regard to the means of calculation proposed by the applicant, the Court, in the light of the evidence before it and the period concerned decides to award her on an equitable basis EUR 60,000.\n\nAs regards the costs of the enforcement proceedings, the Court considers that they must be reimbursed in part (see the Scollo v. Italy judgment of 28 September 1995, Series A no. 315-C, p. 56, § 50). Having regard to the means of calculation proposed by the applicant, the Court decides to grant the amount of EUR 1,600.\n\nAs regards the costs for the renovation works in the flat after possession was recovered, the Court considers that they are not related to the alleged violations. Therefore the Court rejects the applicant's claim.\n\nThe Court awards a total sum of EUR 61,600 for pecuniary damage.\n\nB.  Non-pecuniary damage\n\n26.  The applicant left the matter to be assessed by the Court in an equitable manner.\n\n27.  The Government submitted that a finding of a violation would in itself constitute sufficient just satisfaction.\n\n28.  The Court considers that the applicant must have sustained some non-pecuniary damage which the mere finding of a violation cannot adequately compensate. Therefore, the Court decides, on an equitable basis, to award EUR 10,000 under this head.\n\nC.  Legal costs\n\n29.  The applicant sought reimbursement of her legal costs, which she put at a sum superior to ITL 12,240,000 [EUR 6,321.43] globally for her costs and expenses before the national courts and for her costs and expenses before the Commission and the Court.\n\n30.  The Government left the matter to the discretion of the Court.\n\n31.  According to the Court's case-law, an award can be made in respect of costs and expenses only in so far as they have been actually and necessarily incurred by the applicant and are reasonable as to quantum (see the case Bottazzi v. Italy [GC], no. 34884/97, § 30, ECHR 1999-V). In the present case, on the basis of the information in its possession and the above-mentioned criteria, the Court considers that EUR 2,500 is a reasonable sum and awards the applicant that amount.\n\nD.  Default interest\n\n32.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;\n\n2.  Holds that there has been a violation of Article 6 § 1 of the Convention;\n\n3.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts:\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n4.  Dismisses the remainder of the applicant's claims for just satisfaction.\n\nDone in English and notified in writing on 19 December 2002, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_388","text":"PROCEDURE\n\n1.  The case originated in two applications (nos. 7638/02 and 24146/04) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Ms Sakine Aba (“the applicant”), on 12 September 2001 and 5 May 2004 respectively.\n\n2.  The applicant was represented by Mr A.A. Talipoğlu, a lawyer practising in . The Turkish Government (“the Government”) were represented by their Agent.\n\n3.  On 26 September 2006 the Court decided to join the applications, declared them partly inadmissible (the complaints which had been raised in application no. 24146/04) and decided to communicate to the Government complaints concerning the applicant’s time in police custody – its length, an alleged absence of a right to compensation and a lack of legal assistance. It also decided to examine the merits of the applications at the same time as their admissibility (Article 29 § 3).\n\nTHE FACTS\n\n4.  The applicant was born in 1965 and lives in . She was arrested and placed in police custody on suspicion of membership of an illegal organisation. During her custody period, she was interrogated by the police, the public prosecutor and the investigating judge respectively, in the absence of a lawyer. These statements were subsequently used for her conviction by the trial court.\n\nThe details of the application are indicated in the table below.\n\ntable-0\n\nTHE LAW\n\n5.  Relying on Article 5 § 3 of the Convention, the applicant complained that the length of her police custody exceeded the reasonable time requirement. Under Article 5 § 5 of the Convention, she further maintained that she did not have any remedy whereby to seek compensation for the time she had spent in police custody. Finally, invoking Article 6 §§ 3 (c) of the Convention, the applicant complained that she had been denied the assistance of a lawyer during this same period.\n\n6.  The Court notes that these complaints of the applicant are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.\n\n7.  As regards the complaint raised under Article 5 § 3 of the Convention, the Court notes that the applicant’s police custody lasted five days. It reiterates that in the case of Brogan and Others v. the United Kingdom,  (29 November 1988, § 62, Series A no. 145B), it held that detention in police custody which had lasted four days and six hours without judicial control fell outside the strict time constraints of Article 5 § 3 of the Convention, even if its purpose was to protect the community as a whole against terrorism. In the present case, the Court cannot accept that it was necessary to detain the applicant for five days without being brought before a judge or another officer authorised by law to exercise judicial power. There has accordingly been a violation of Article 5 § 3 of the Convention.\n\n8.  As regards the complaint of an absence of a remedy in compensation under Article 5 § 5 of the Convention, the Court has examined the present case and finds no particular circumstances which would require it to depart from its established case-law on the matter, to the effect that, indeed, no such remedy was available to the applicant (see, Saraçoğlu and Others v. Turkey, no. 4489/02, §§ 50-53, 29 November 2007; Sinan Tanrıkulu and Others v. Turkey, no. 50086/99, § 50, 3 May 2007; Medeni Kavak v. Turkey, no. 13723/02, § 34, 3 May 2007). There has accordingly been a violation of Article 5 § 5 of the Convention.\n\n9.  Finally, as regards the complaint concerning the lack of legal assistance to the applicant during her police custody, the Court observes that it has already examined the same grievance in the case of Salduz v. Turkey and found a violation of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1 ([GC], no. 36391/02, §§ 56-62, 27 November 2008). In the present case, it finds no particular circumstances which would require it to depart from its findings in the aforementioned Salduz judgment. There has therefore been a violation of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1 in the present case.\n\n10.  Concerning just satisfaction, the applicant claimed 423 euros (EUR) in respect of pecuniary damage and EUR 50,000 in respect of non-pecuniary damage. Based on the Istanbul Bar Association’s scale of fees, she further requested EUR 4,772 in respect of her lawyer’s fees and EUR 583 in respect of costs and expenses.\n\n11.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, in respect of non-pecuniary damage, ruling on an equitable basis, it awards EUR 3,000 to the applicant.\n\n12.  It further considers that the most appropriate form of redress would be the re-trial of the applicant in accordance with the requirements of Article 6 § 1 of the Convention, should the applicant so request (see, mutatis mutandis, Gençel v. Turkey, no. 53431/99, § 27, 23 October 2003, and Salduz, cited above, § 72).\n\n13.  According to its relevant case-law, in respect of costs and expenses, and in the light of the documents in its possession, the Court considers it reasonable to award the sum of EUR 1,500 to the applicant less the sum of EUR 850 received in legal aid from the Council of Europe.\n\n14.  The Court further finds it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.\n\nFOR THESE REASONS, THE COURT UNANIMOUSLY\n\n1.  Declares the remainder of the applications admissible;\n\n2.  Holds that there has been a violation of Article 5 § 3 of the Convention;\n\n3.  Holds that there has been a violation of Article 5 § 5 of the Convention;\n\n4. Holds that there has been a violation of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1, on account of the lack of legal assistance to the applicant while in police custody;\n\n5.  Holds\n\n(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Turkish liras at the rate applicable at the date of settlement:\n\n(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;\n\n6.  Dismisses the remainder of the applicant’s claim for just satisfaction.\n\nDone in English, and notified in writing on 3 March 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}
{"_id":"passage_22","text":"PROCEDURE\n\n1.  The case was referred to the Court by Mr Ernst Lughofer and Mrs Anna Lughofer (“the applicants”), Austrian nationals, on 22 October 1998, within the three-month period laid down by former Articles 32 § 1 and 47 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. It originated in an application (no. 22811/93) against the Republic of Austria lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 by the applicants. The applicants are represented by Mr E. Proksch, a lawyer practising in Vienna (Austria). The Government of Austria are represented by their Agent, Mr F. Cede, Ambassador, Head of the International Law Department at the Federal Ministry of Foreign Affairs.\n\nThe applicants’ application to the Court referred to Article 48 as amended by Protocol No. 9, which Austria had ratified. The object of the application was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 6 § 1 of the Convention.\n\n2.  Following the entry into force of Protocol No. 11 to the Convention on 1 November 1998 and in accordance with Article 5 § 4 thereof read in conjunction with Rule 100 § 1 and Rule 24 § 6 of the Rules of Court, a Panel of the Grand Chamber decided on 14 January 1999 that the case should be dealt with by a Chamber constituted within one of the Sections of the Court.\n\n3.  In accordance with Rule 52 § 1 of the Rules of Court, the President of the Court, Mr L. Wildhaber, assigned the case to the Third Section. The Chamber ultimately constituted within the Section included Mr. J.-P. Costa, Mr P. Kūris, Mrs F. Tulkens, Mr W. Fuhrmann, Mr K. Jungwiert, Mrs H.S. Greve and Mr K. Traja.\n\n4.  On 12 March 1999 the President of the Chamber invited the parties to submit a memorial on the issues of the case. By letter of 29 April 1999 the applicants informed the Court that they did not wish to submit a memorial; on 17 May 1999 the Government conceded that there had been a violation of Article 6 § 1 of the Convention in the circumstances of the case.\n\n5.  After consulting the Agent of the Government and applicants’ lawyer the Chamber decided not to hold a hearing in the case.\n\nAS TO THE FACTS\n\nI.\tTHE CIRCUMSTANCES OF THE CASE\n\n6.  The applicants' farm was the object of land consolidation proceedings (Zusammenlegungsverfahren) instituted by the Gmunden District Agricultural Authority (Agrarbezirksbehörde) on 22 February 1973.\n\n7.  On 21 August 1984 the District Authority held a hearing at which the farmers concerned could express their wishes (Wunschverhandlung) and on 22 August 1985 the District Authority ordered the provisional transfer of the properties concerned, inter alia, land owned by the applicants. In July 1989 the District Authority issued a consolidation plan (Zusammenlegungsplan). The applicants appealed, claiming that they had not received adequate land in exchange for their parcels AK 2 and AK 8. On 5 July 1990 the Upper Austria Regional Land Reform Board (Landesagrarsenat) dismissed the applicants' appeal after an oral hearing held in private, but in the presence of the parties and their lawyer.\n\n8.  On 25 September 1990 the applicants filed a complaint with the Administrative Court (Verwaltungsgerichtshof) against the above decision. They also asked the Court to hold an oral hearing.\n\n9.  On 15 December 1992 the Administrative Court dismissed the complaint, rejecting at the same time, in accordance with Section 39 (2) no. 6 of the Administrative Court Act, the applicants' request for an oral hearing.\n\nII.\tRELEVANT DOMESTIC LAW\n\nA.\tHearings before Land Reform Boards\n\n10.  Section 9 (1) of the Federal Agricultural Proceedings Act (Agrarverfahrensgesetz) provided as follows:\n\n\"Land Reform Boards take their decisions after an oral hearing in the presence of the parties.\"\n\nIt is the constant practice of administrative authorities to hold oral hearings in camera unless the law provides otherwise.\n\nBy virtue of legislation enacted in December 1993 (Bundesgesetzblatt no. 901, p. 7160), hearings before Land Reform Boards are now public.\n\nB.\tHearings before the Administrative Court\n\n11.  Pursuant to Section 36 of the Administrative Court Act (Verwaltungsgerichtshofgesetz), proceedings consist essentially in an exchange of written pleadings. If one of the parties so requests the Administrative Court may hold a hearing which is in principle held in public (Sections 39 (1) no. 1 and 40 (4)).\n\n12.  Section 39 (1) of the Administrative Court Act provides that the Administrative Court is to hold a hearing after its preliminary investigation of the case where a complainant has requested a hearing within the time-limit. Section 39 (2) no. 6, which was added to the Act in 1982, provides however:\n\n\"Notwithstanding a party's application ..., the Administrative Court may decide not to hold a hearing where ...\n\n6. it is apparent to the Court from the pleadings of the parties to the proceedings before it and from the files relating to the earlier administrative proceedings that an oral hearing is not likely to clarify the case further.\"\n\nPROCEEDINGS BEFORE THE COMMISSION\n\n13.  The applicants applied to the Commission on 27 September 1993. They alleged, inter alia, a violation of Article 6 § 1 of the Convention on account of the lack of a public hearing in the land consolidation proceedings.\n\n14.  The Commission declared the application (no. 22811/93) partly admissible on 16 April 1998. In its report of 9 September 1998 (former Article 31 of the Convention), it expressed the unanimous opinion that there had been a violation of Article 6 § 1 of the Convention.\n\nFINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT\n\n15.  By letter of 17 May 1999 the Government conceded that there had been a violation of Article 6 § 1 of the Convention in the circumstances of this application.\n\nAS TO THE LAW\n\nI.\tALLEGED VIOLATION OF aRTICLE 6 § 1 OF THE CONVENTION\n\n16.  Article 6 § 1 of the Convention reads, insofar as relevant, as follows:\n\n“1.  In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing  ... by an independent and impartial tribunal ... .”\n\n17.  The Government did not contest the opinion of the Commission on the allegation of a breach of this provision (see § 15 above).\n\n18.  The Court sees no reason to disagree with the conclusion reached by the Commission, which, moreover, coincides with the Court’s own findings in the case of Stallinger and Kuso v. Austria (judgment of 23 April 1997, Reports of Judgments and Decisions 1997-II, pp. 677-680, §§ 38-51). It concludes in the present case that the failure to hold a public hearing in the land consolidation proceedings was not compatible with Article 6 § 1 of the Convention.\n\nII.\tAPPLICATION OF ARTICLE 41 OF THE CONVENTION\n\n19.  Article 41 of the Convention provides:\n\n“If the Court finds that there has been a violation of the Convention or the protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”\n\nA.\tDamages\n\n20.  The applicants submitted that the pecuniary damage resulting from the improper procedure to which they were subject amounted to a total of 600,000 Austrian schillings (ATS). Moreover, as compensation for non-pecuniary damage they claimed an amount of ATS 50,000.\n\n21.  In the Government’s submission, compensation could not be awarded on the basis of speculation as to what the outcome of the proceedings would have been had a public hearing taken place. If the Court should consider to award compensation at all under this head, the amount should not exceed ATS 100,000.\n\n22.  The Court observes that the applicants have not sought to substantiate their claim for just satisfaction under Article 41. In any event, in so far as the claim may concern damage of a pecuniary nature, the Court cannot speculate as to the outcome of the proceedings had a public hearing taken place before the Administrative Court; the claim must therefore be rejected. As to non-pecuniary damage, the Court recalls its conclusion in the Stallinger and Kuso case that the finding of a violation of Article 6 § 1 of the Convention constitutes in itself sufficient just satisfaction (op. cit. pp. 680-681, § 57). The Court is unable to find any features distinguishing the present case from that of Stallinger and Kuso which might justify a departure from the Court’s approach in that judgment. Accordingly, it concludes that the finding of a violation of Article 6 § 1 of the Convention constitutes in itself sufficient just satisfaction for the applicants’ alleged non-pecuniary damage.\n\nB.\tCosts and expenses\n\n23.  The applicants further claimed a total of ATS 81,172.82 in respect of costs and expenses incurred in the domestic proceedings and in those before the Convention organs. ATS 30,965.42 of this amount relate to the proceedings before the Commission and the Court. The Government made no comment on this claim.\n\n24.  The Court finds that compensation for costs incurred in domestic proceedings may only be granted insofar as they were necessary in trying to prevent the violation found (see the König v. Germany judgment  of 10 March 1980 (Article 50), Series A no. 36, p.17, § 20). In the present case it does not appear from the applicants’ submissions that any specific costs were incurred in relation to the demand for an oral hearing. This part of the claim must therefore be rejected. As regards the costs for the proceedings before the Convention organs, the Court finds the claim reasonable, and consequently allows it in full.\n\nC.\tDefault interest\n\n25.  According to the information available to the Court, the statutory rate of interest applicable in Austria at the date of adoption of the present judgment is 4% per annum.\n\nFOR THESE REASONS THE COURT UNANIMOUSLY\n\n1.\tHolds that there has been a violation of Article 6 § 1 of the Convention;\n\n2.\tHolds\n\n3.\tDismisses unanimously, the remainder of the applicants’ claims for just satisfaction.\n\nDone in English and notified in writing on 30 November 1999, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.","title":""}